This cause came on for final hearing before Harry L. Hooper, Administrative Law Judge with the Division of Administrative Hearings, on August 8, 2008, in Marianna,
Florida.
For Respondent: Wayne L. Helsby, Esquire
Allen, Norton & Blue, P.A.
The issue is whether Respondent engaged in an unlawful employment practice.
Petitioner, Darrell Roulhac (Mr. Roulhac), filed an Employment Complaint of Discrimination with the Florida Commission on Human Relations (Commission) on October 9, 2007. The entity complained of was Family Dollar Services, Inc. (Family Dollar), located in Marianna, Florida. The Complaint alleged discrimination based on race, sex, and claimed retaliation.
On March 27, 2008, the Commission, subsequent to an investigation, entered a Notice of Determination: No Cause. Subsequently, Mr. Roulhac filed a Petition for Relief with the Commission that complained only of discrimination based on race. The matter was transmitted to the Division of Administrative Hearings and filed May 1, 2008. It was set for hearing in Marianna, Florida, for July 17, 2008. Family Dollar filed for a continuance on July 14, 2008, which was granted.
The hearing was held on August 8, 2008.
Mr. Roulhac was the sole witness at the hearing. Family Dollar offered and had accepted into evidence Exhibits 1 through 17.
A Transcript was filed on September 11, 2008. After the hearing, Respondent filed its Post-Hearing Submittal on September 22, 2008. Petitioner did not file a proposed recommended order.
References to statutes are to Florida Statutes (2007) unless otherwise noted.
Family Dollar operates a large distribution center immediately south of Marianna, Florida. The center supports the retail activities of Family Dollar.
Mr. Roulhac is an African-American male. He was first employed by Family Dollar at its distribution center on September 26, 2005. His job title was "bulk order filler." On that date he signed a New Associate Orientation Checklist, indicating that he understood his conditions of employment.
On September 26, 2005, he also signed a statement that he had reviewed and understood Family Dollar's Statement of Major Company Policies. Included on that form was a direction on how to report misconduct, including discrimination.
On September 26, 2005, Mr. Roulhac also signed a document acknowledging that he had read and that he understood Family Dollar's Policy on Harassment in the Workplace. This document informed him that Family Dollar did not tolerate, among other things, discrimination based on race or a hostile work environment that might be created on account of race. In bold letters the document informed as to how complaints regarding instances of discrimination based on race or a hostile work environment could be reported.
A "bulk order filler" is responsible for pulling merchandise and filling orders, labeling the orders, and placing the orders on conveyor belts for loading on board Family Dollar trucks, so that they may be delivered to its stores.
Mr. Roulhac received an evaluation for the period from September 26, 2005, his inception date, and December 26, 2005. This evaluation noted that he had an outstanding attitude, that he exceeded expectations, and that he worked well with little supervision.
By August 2006, Mr. Roulhac had entered into a downward performance spiral. He was counseled by his manager, Matt Johnson, who noted that he was failing to meet "Argent" standards. "Argent" standards are production standards required by Family Dollar. This was memorialized in an Associate Corrective Action Review prepared on September 5, 2006, and signed by Mr. Roulhac on September 11, 2006. He was advised that he could seek additional training if he wished.
In an Associate Corrective Action Review dated November 1, 2006, Mr. Roulhac received another written counseling from manager Matt Johnson that noted that he had only reached 75.9 percent of standards when he should have attained
90 percent. He was advised that he could seek additional training if he wished.
In an Associate Corrective Action Review dated December 27, 2006, Mr. Roulhac received another written counseling that noted that he had only reached 76.5 percent of standards when he should have attained 90 percent. The form notes that he "failed to sign." Manager Matt Johnson also failed to sign the form. Mr. Roulhac was again advised that he could seek additional training if he wished.
In an Associate Corrective Action Review dated
April 11, 2007, Mr. Roulhac received another written counseling that noted that he had only attained 73 percent of standards when he should have attained 90 percent. This was signed by manager Matt Johnson. This written counseling contained the following comment: "Please notify me if you feel you need additional training to perform the duties and responsibilities of your position. It is critical that you increase your production to meet the minimum engineered standard. Failure to improve your job performance could result in further disciplinary action, including a possible suspension or discharge." This was signed by manager Matt Johnson.
In an Associate Corrective Action Review dated May 3, 2007, Mr. Roulhac received another written counseling for "work habits-insubordination." The counseling noted that, "It is the responsibility of each associate to follow the instructions given to them by management and to follow all company policies
and procedures. Failure to follow these instructions may result in corrective action and possible discharge." This counseling resulted from Mr. Roulhac's failure to attend a "start-up meeting, failure to clean the "Mod," and leaving his assigned area without authorization. This was signed by manager Matt Johnson.
In an Associate Corrective Action Review dated May 21, 2007, Mr. Roulhac received another written counseling for "Work Habits-Failure to Comply with Job Responsibilities." This review noted that he failed to go where he was told and that his failure impeded production and caused unnecessary downtime. It had the following comment: "Please notify me if you feel you need additional training to perform the duties and responsibilities of your position. Failure to improve your job performance or compliance with Family Dollar policies and procedures could result in further disciplinary action, including a possible suspension or termination." This was signed by Christopher Miller. Mr. Roulhac refused to sign this counseling memorandum.
In an Associate Corrective Action Review dated May 31, 2007, Mr. Roulhac received another written counseling for "Safety-Unsafe Act." This counseling occurred because he operated the Tugger 409 without authority. It advised him that, "Failure to perform your job in exact conformance with all
safety requirements will result in corrective action up to and including termination of employment. Michael Shutes signed this counseling. The form noted that Mr. Roulhac refused to sign.
In an Associate Corrective Action Review, also dated May 31, 2007, Mr. Roulhac received another written counseling for a "work habit/time clock" infraction. The counseling noted that, "You have received three time clock infractions within a 60-day period. April 17th, May 29th, and May 30th, 2007." This counseling was given by Michael Shutes.
In an Associate Corrective Action Review dated
June 13, 2007, Mr. Roulhac received another written counseling from Christopher Miller for failure to comply with job responsibilities. This review noted that he had failed to attend the "start up meeting." The form noted that, "Failure to improve your job performance or compliance with Family Dollar policies and procedures could result in further disciplinary action, including a possible suspension or termination."
In an Associate Corrective Action Review dated
June 14, 2007, Mr. Roulhac received another written counseling from Christopher Miller for "work habits/failure to comply with job responsibilities." This counseling addressed another
failure to attend the "start | up meetings." | It noted: | "Final |
Written Counseling (Active 1 | Year.)" |
|
|
On July 10, 2007, Mr. Roulhac received another written counseling from Christopher Miller for reporting that at
1:59 p.m. that he, Mr. Roulhac, had completed his labels, and noted that, "You failed to call and open up new labels until 2:55 p.m. There is no record of work being performed during this time." This counseling asserted that Mr. Roulhac was terminated. However, a hand-written note on the form related that, "After discussing with Darrell, we have decided to give him an opportunity to correct his behavior." This was signed by Jeff Diamond on July 12, 2007.
There is no evidence of record that Mr. Roulhac ever availed himself of the opportunity to receive the additional training offered in each Associate Corrective Action Review.
On July 13, 2007, Mr. Roulhac asserts that he was called a "monkey" and a "boy" by Mr. Miller. This assertion was not rebutted. No evidence was offered that might illuminate the context in which these words were said.
On July 14 and 16, 2007, Mr. Roulhac was late to "start up" meetings. On July 17, 2007, Mr. Miller told him to report to Mr. Johnson. At a meeting attended by Mr. Johnson, Mr. Roulhac, Mr. Miller, and Mr. Diamond, Mr. Roulhac was informed that he was terminated. The discharge was approved by Craig Moore, an African-American, who was the regional vice- president at the Marianna facility.
Mr. Roulhac was paid $11.23 per hour while working for Family Dollar. About three days from the date of his termination, he went to work for a funeral parlor making the same hourly wage.
No evidence whatsoever was introduced that indicated a racially offensive working environment. No evidence was provided that indicated that Mr. Roulhac was treated differently from any other employee. In fact, the evidence demonstrates that, considering the number of adverse counselings he received, Family Dollar exhibited remarkable forbearance in retaining him despite his inability to meet standards.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. §§ 120.57(1) and 760.11(7) Fla. Stat. (2007).
Subsection 760.02(1), Florida Statutes, states that the "Florida Civil Rights Act of 1992" (the Act) comprises Sections 760.01 through 760.11, and 509.092, Florida Statutes.
Mr. Roulhac is an "aggrieved person," and Family Dollar is an "employer" as defined by Section 760.02, Florida Statutes.
Pursuant to Subsection 760.10(1), Florida Statutes, it is an unlawful employment practice for an employer to discharge
or otherwise discriminate against an individual on the basis of race.
The Act is patterned after Title VII of the Federal Civil Rights Act, 42 U.S.C. Section 2000e et seq. Federal case law interpreting Title VII is applicable to cases arising under the Act. See Florida Department of Community Affairs v. Bryant,
586 So. 2d 1205 (Fla. 1st DCA 1991) and School Board of Leon County v. Weaver, 556 So. 2d 443 (Fla. 1st DCA 1990).
Racial discrimination, generally, may be evidenced by proof of a hostile work environment or by proof of disparate treatment.
A hostile work environment claim is established upon proof that "the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 367,
126 L. Ed. 2d 295 (1998)). To establish a hostile work environment claim, an appellant must show:
that he belongs to a protected group;
that he has been subject to unwelcome harassment;
that the harassment must have been based on a protected characteristic of the employee, such as race;
that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment; and
that the employer is responsible for such environment under either a theory of vicarious or of direct liability.
A single instance of Mr. Roulhac having heard a supervisor refer to him as a "boy" or "monkey," however impolite or inappropriate, does not constitute a hostile work environment. In Harrington v. Disney Reg'l Entm't, Inc., 276 Fed. Appx. 863 (11th Cir. 2007), a manager, told several black bussers that they "looked like a bunch of monkeys." Another manager, in the same case, referred to African-Americans, as "ghetto." The Court did not find these statements, without more, to be the sort of "severe and pervasive" comments that might sustain a claim of a hostile work environment.
Having failed to prove the existence of a hostile work environment, Mr. Roulhac is left with trying to prove disparate treatment. Because there is no direct evidence of discrimination, Mr. Roulhac must proceed using the McDonnell Douglas framework. To do this, Mr. Roulhac must establish a prima facie case of race discrimination. If he does so, Family Dollar may offer a legitimate, nondiscriminatory reason for its
actions. If it does so, Mr. Roulhac must prove that Family Dollar's reason is a pretext for race discrimination, if he is to prevail.
In order to prove a prima facie case, Mr. Roulhac must show that: (1) he is a member of a protected class; (2) he was subjected to an adverse employment action; (3) he was treated differently than similarly-situated employees of a different race; and (4) that he was qualified for the job or job benefit at issue. See Gillis v. Ga. Dep't of Corr., 400 F.3d 883 (11th Cir. 2005).
Mr. Roulhac is a member of a protected class because he is an African-American. His discharge was an adverse employment action. Although he was apparently qualified to perform the job of "bulk order filler," the numerous counselings he received indicate that he was unqualified. No evidence was produced indicating that similarly situated employees of a different race were treated differently. Accordingly,
Mr. Roulhac has failed to prove a prima facie case.
If one were to suspend disbelief and find that Mr. Roulhac proved a prima facie case, Family Dollar proved beyond any doubt that its actions were based on poor job performance, not discrimination, and this assertion was not proven to be pretextual.
dismiss Mr. Roulhac's Petition for Relief.
DONE AND ENTERED this 30th day of September, 2008, in Tallahassee, Leon County, Florida.
HARRY L. HOOPER
Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 2008.
Wayne L. Helsby, Esquire Allen, Norton & Blue, P.A.
W. Edward Singletary, Esquire Family Dollar Services, Inc. Post Office Box 1017
Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
