Pursuant to written notice, the above matter was heard before the Division of Administrative Hearings by Administrative Law Judge, Diane Cleavinger, on February 11 and April 29, 2009,
in Pensacola, Florida.
For Respondent: Michael S. Mitchell, Esquire
201 St. Charles Avenue Suite 3710
The issue in this case is whether Petitioner was the subject of an unlawful employment practice by Respondent.
On February 8, 2008, Fred Lindsey (Petitioner), filed an Employment Complaint of Discrimination with the Florida Commission on Human Relations (FCHR), alleging that Respondent, GSC Enterprises (Respondent or GSC), discriminated against him on the basis of race. Specifically, Petitioner alleged he was discriminated against when he was terminated from employment with GSC.
The allegations of discrimination were investigated by FCHR. On June 6, 2008, FCHR issued its Determination, finding “No Cause.”
On July 9, 2008, Petitioner filed a Petition for Relief.
In his petition, Petitioner reiterated the charges set forth in his original Employment Complaint of Discrimination. The petition was forwarded to the Division of Administrative Hearings.
At the hearing, Petitioner testified in his own behalf, but did not offer any exhibits into evidence. Respondent presented the testimony of 5 witnesses and offered 11 exhibits into evidence.
After the hearing, Respondent filed a Proposed Recommended Order on June 4, 2009. Petitioner did not file a Proposed Recommended Order.
Petitioner is a Black male.
Respondent is a grocery supply company that operates several large warehouses. It supplies groceries to military commissaries.
On November 26, 2002, Petitioner was hired by Respondent as a selector/stock picker. At some point, Petitioner became a stockchecker/loader. As such, Petitioner’s duties included gathering merchandise from Respondent’s warehouses, loading pallets and loading trucks. Petitioner’s primary work area was the front docks in the main warehouse; his direct supervisor was David Malloy. The main warehouse had two break rooms.
Petitioner’s scheduled start time was 6:30 a.m. During the work day, Petitioner had scheduled breaks in the morning and afternoon. Each break was for 10 minutes. No breaks were scheduled between 6:00 a.m.-6:30 a.m. Additionally, Petitioner had a scheduled lunch period. Employees were notified of a break or lunch period through the PA system. There was no evidence that Mr. Malloy permitted unscheduled breaks.
Prior to the end of January, 2008, GSC discovered that Hormel dinners and Capri Sun products were disappearing from the warehouse. Management and supervisors strongly suspected that these products were being stolen by employees.
At some point, GSC supervisors found a hidden stash of food products in the break room of Building 11, one of Respondent’s warehouses also known as the repack area. This warehouse was located about 3-4 minutes’ walk away from the front loading docks in the main warehouse.
In an effort to discover who had hidden the products, GSC supervisors were periodically checking the break room of Building 11.
Between 6:00 a.m. and 6:30 a.m., on January 28, 2008, Kim Howell, a warehouse supervisor, entered the break room of Building 11 and saw Petitioner and Anthony Smith, also a loader, standing at a counter in the break room. Petitioner was drinking coffee and Mr. Smith was eating one of the Hormel products from the hidden stash. Ms. Howell asked what the two men were doing. Petitioner stated that he had come to Building
11 to get some coffee. He did not state that he had come to the warehouse to select any products. Mr. Smith did not explain his presence in Building 11 because he was eating. When Ms. Howell asked about the food he was eating, Mr. Smith admitted that the food was not his and that he did not know who it belonged to. Eventually, Ms. Howell instructed both men to “get back to work.” Both men returned to the front docks in the main warehouse.
Eventually, Mr. Smith was sent home with instructions to return at 10:00 a.m. the next day. Petitioner remained at work.
Ms. Howell retrieved the Hormel box from the trash and immediately reported the incident to her supervisor, Harry Madden. The product code on the Hormel box matched the product code of the hidden Hormel meals. Later, Ms. Howell told Petitioner the incident was being investigated. She indicated that he would be interviewed about the incident by Mr. Madden and that he should tell the truth.
On January 29, 2008, Petitioner was interviewed by Mr. Madden. Ms. Howell was present. During the interview, Petitioner stated that he had gone to Building 11 to get a cup of coffee and that he saw Mr. Smith eating a Hormel meal in the break room when Ms. Howell entered the room. Mr. Madden and Ms. Howell thought Petitioner was more intent on asserting that
GSC could not prove that Mr. Smith had stolen the product he was eating because the Hormel product could have been purchased anywhere in the Pensacola area. Mr. Madden asked Petitioner several times if he knew where Mr. Smith had gotten the Hormel product. Petitioner stated that he didn’t know because he saw the same thing that Ms. Howell saw, i.e., Mr. Smith eating the food. Mr. Madden felt Petitioner was being uncooperative based on the fact that he was in the break room with Mr. Smith and
Petitioner’s attitude during the meeting. There was no evidence to show that Mr. Madden’s perception was unreasonable or a pretext for discrimination. Mr. Madden forwarded the issue of discipline to the Human Resources department, in part due to the perceived lack of cooperation by Respondent and, in part, due to the fact that Respondent was in a break room taking a break when it was not break time.
The Human Resources department reviewed Petitioner’s work and discipline history. The records showed that
Mr. Lindsey had been repeatedly warned and disciplined for tardiness. As testified to by Mr. Lindsey’s supervisor, Dave Malloy, the disciplinary write-ups included only those instances which warranted disciplinary action during a rolling six-month period. Because of his repeated tardiness, Petitioner had received a final warning. The records also showed that
Mr. Lindsey had been disciplined for failure to adequately perform the duties of his position.
Based on Petitioner’s disciplinary history and final warning, his presence in the break room during non-break hours, and his perceived refusal to cooperate during the company’s investigation of Mr. Smith’s activities, Mr. Lindsey was terminated on January 29, 2008. There was no evidence that Respondent’s reason for termination was unreasonable or a pretext to cover discrimination.
Eventually, Mr. Smith admitted to the theft and was terminated for theft. Mr. Smith did not implicate Petitioner in the theft.
Petitioner identified Kim Howell as the only non- minority employee who had allegedly been treated differently than him. He based his assertion on the fact that Ms. Howell was not terminated as he was over the events of January 28, 2008. However, Ms. Howell is clearly not similarly situated to Petitioner. She was authorized to be in Building 11 and was performing her investigative duties. She also was not on an unscheduled break. There was no evidence presented regarding Ms. Howell’s disciplinary history.
In comparison, Petitioner was primarily terminated for being on an unscheduled break and for his past disciplinary history. Even though incorrect, Mr. Madden, based on the circumstances, reasonably believed that Petitioner was not cooperating in the investigation. Given these facts, the Petition for Relief should be dismissed.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 760.11(6), 120.569, and 120.57, Fla. Stat. (2008).
Section 760.10, Florida Statutes (2008), provides that it is an unlawful employment practice for an employer
(a) . . . [t]o discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensations, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, national origin, age, handicap, or marital status.
FCHR and the Florida courts have determined that federal discrimination law should be used as guidance when construing provisions of Section 760.10, Florida Statutes. See Brand vs. Florida Power Corp., 633 So. 2d 504, 509 (Fla. 1st DCA 1994); Florida Dept. of Community Affairs vs. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991); and Scott v. Fla. Dept. of Children & Family Services, 19 Fla. L. Weekly Fed D.268 (N.D. Fla. 2005).
The Supreme Court of the United States established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), the analysis to be used in cases alleging discrimination under Title VII. This analysis was reiterated and refined in
St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). See also Zappa v. Wal-Mart Stores, Inc., 1 F. Supp. 2d 1354, 1356 (M.D. Fla. 1998); Standard v. A.B.E.L. Svcs., Inc., 161 F.2d 1318 (11th Cir. 1998); and Walker v. Prudential Property & Casualty Insurance, Co., 286 F.3d 1270 (11th Cir 2002).
Under McDonnell Douglas, Petitioner has the burden of establishing by a preponderance of the evidence a prima facie case of unlawful discrimination. If a prima facie case is established, Respondent must articulate some legitimate, non- discriminatory reason for the action taken against Petitioner. Once this non-discriminatory reason is offered by Respondent, the burden of production then shifts back to Petitioner to demonstrate that the offered reason is merely a pretext for discrimination. As the Supreme Court stated in Hicks, before finding discrimination, “[t]he fact finder must believe the plaintiff’s explanation of intentional discrimination.” Hicks,
509 U.S. at 519. Additionally, “Defendants burden is exceedingly light” and is merely one of production, not proof.” Perryman v. Johnson Products, Co., 698 F.2d 1138 (11th Cir. 1983).
In Hicks, the Court stressed that even if the fact- finder does not believe the proffered reason given by the employer, the burden remains with Petitioner to demonstrate a discriminatory motive for the adverse employment action. Id. See also Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248 (1981).
In order to establish a prima facie case of discrimination, Petitioner must demonstrate that:
Petitioner is a member of a protected class;
Petitioner is qualified for the position;
Petitioner was subject to an adverse employment decision; and,
Petitioner was treated less favorably than similarly situated persons outside the protected class.
Canino v. EEOC, 707 F.2d 468 (11th Cir. 1983); Smith v. Georgia, 684 F.2d 729 (11th Cir. 1982); Lee v. Russell County School Board, 684 F.2d 769 (11th Cir. 1984); and Holifield v. Reno,
115 F.3d 1555, 1562 (11th Cir 1997).
In this case, Petitioner has alleged that Respondent unlawfully discriminated against him on the basis of his race. He alleges that such discrimination occurred when he was terminated from his employment.
As a Black individual, Petitioner is a member of a protected class. Additionally, Petitioner was qualified for the position to which Respondent assigned him. The evidence also demonstrated that he suffered an adverse employment action when he was terminated from his position by Respondent.
However, Petitioner did not establish that there were any individuals outside of his protected class who engaged in similar misconduct and who were not terminated by Respondent.
The burden of proof is on Petitioner to identify a similarly situated employee who was treated more favorably
despite having engaged in similar misconduct and who is outside of Petitioner’s protected class. Davis v. City of Panama City, Fla., 510 F. Supp. 2d 671, 686 (N.D. Fla. 2007). In making the comparison, the quality of the misconduct must rise to the level of being nearly identical. See Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999) and Mayberry v. Vought Aircraft Co., 55 F.3d 1086 (5th Cir. 1995).
Since Petitioner did not meet this burden, the Petition for Relief should be dismissed.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a Final Order dismissing the Petition for Relief with prejudice.
DONE AND ENTERED this 24th day of June, 2009, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 2009.
Michael S. Mitchell, Esquire Fisher & Phillips, LLP
201 St. Charles Avenue Suite 3710
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.
