The Issue Whether Respondent subjected Petitioner to an unlawful employment practice based on Petitioner’s race, in violation of section 760.10, Florida Statutes (2016)1/; and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Aaron Pittman, a black male, was at all times relevant hereto employed at Sunland Center (Sunland) by the Agency for Persons with Disabilities (APD). Sunland Center is an assisted-living facility operated by APD in Marianna, Florida, serving clients with intellectual and developmental disabilities. Petitioner was first employed at Sunland on August 7, 1987, as a Maintenance Mechanic. Petitioner’s full-time job was to maintain wheelchairs for use by residents. According to Petitioner, the work was very steady, with continuous repairs to footrests, wheels, seats, and many other parts of well-used wheelchairs throughout the facility. Petitioner remained in that position for 17 years. In 2007, Petitioner was promoted from Maintenance Mechanic to Electronics Tech II. The duties of the Electronics Tech II include installation of televisions, cleaning fire detection and other safety equipment, conducting fire drills, and repairing all manner of electronics. After Petitioner was promoted to Electronics Tech II, an employee with the last name of Moss was assigned to wheelchair maintenance. Apparently Mr. Moss was not capable of performing the duties of wheelchair maintenance and requested Petitioner’s assistance with those duties. Mr. Moss left Sunland sometime in 2010. When Mr. Moss left, John Kramer, Maintenance Supervisor, asked Petitioner to help out “temporarily” with the wheelchair maintenance. Petitioner testified that he agreed to resume wheelchair maintenance “temporarily” because Mr. Kramer was “a nice man and [Petitioner] wanted to help him out.” Petitioner first worked overtime on a night shift to complete the wheelchair maintenance work. However, Petitioner did not request prior approval for the overtime and was instructed to take time off to compensate for the overtime. Clarence Holden, Sr., a black male, was employed at Sunland for 40 years. Mr. Holden began in an entry-level position, but was promoted to a supervisory position. Mr. Holden supervised Petitioner during Mr. Holden’s last five years of employment in the position of Telecommunication Specialist. Mr. Holden also supervised Keith Hatcher, the only employee other than Petitioner in the Maintenance Department. Mr. Hatcher retired sometime before Mr. Holden. Mr. Holden retired in 2014, leaving Petitioner as the only employee in the Maintenance Department. Petitioner testified that he “took over [Mr. Holden’s] duties” when Mr. Holden retired, but was never compensated for essentially working two jobs. Petitioner never supervised any employees at Sunland. Petitioner did not have any authority to hire or fire other employees or perform evaluations of other employees. After Mr. Holden’s retirement, Petitioner asked Allen Ward (whose position in the chain of command was not identified) about applying for the Telecommunication Specialist position. Petitioner was told management was “holding” that position. Petitioner testified that Mr. Ward advertised and filled the position of Telecommunication Specialist “while [Petitioner] was out.” Petitioner admitted that the position of Safety Specialist3/ was eventually advertised, and that Petitioner did not apply for the position. Amanda Johnson, former Employee Relations Specialist at Sunland, met with Petitioner sometime in 2012 regarding his complaint about working two positions without additional compensation. In June 2013, Petitioner received a ten-percent salary increase “for additional duties and responsibilities for maintaining resident wheelchairs and electric/mechanical hospital beds.” Petitioner seeks back pay for performing duties of two positions beginning in 2010. Petitioner separately complains that he was subject to harassment based on his race and Respondent failed to do anything about it. Petitioner testified that there used to be an employee who used the “N word,” and under a previous administration the supervisor would “take care of it,” but that under the current administration “nothing happens.” Petitioner indicated that other employees used to “make postings about lynching.” Petitioner did not identify any specifics of those incidents--when they occurred, who made the posting, or whether there were consequences to those employees. Petitioner complained that a fellow employee once wrote “Trump” on a dirty work truck. However, when the incident was reported, the manager washed the truck. Petitioner complained that white employees sit around and talk with each other for extended periods without any consequence, but that if he sits to talk with a fellow employee for 15 minutes “people complain.” Petitioner has never been disciplined by Respondent. Respondent is managed by a black Superintendent and black Deputy Superintendent. Sunland employs a number of black mid-level managers and supervisors.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition for Relief from an Unlawful Employment Practice filed by Petitioner against Respondent in Case No. 201700575. DONE AND ENTERED this 30th day of March, 2018, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 2018.
The Issue Whether respondent is guilty of an unlawful employment practice as alleged by petitioner.
Findings Of Fact Based upon the entire record, the following findings of fact are determined: This discrimination case involves an allegation by petitioner, David Coleman, that he was denied employment by respondent, City of Jacksonville (City), because of his handicap. The City denies this allegation. A preliminary investigation by the Commission on Human Relations (Commission) found no probable cause that an unlawful employment practice had occurred. By way of background, petitioner has been employed by the City on four separate occasions, the last time as an employee in the mosquito control department in 1984. He was "released" the same year for "unacceptable leave." Since 1990, he has applied for at least twenty separate positions with the City. In conjunction with those and earlier efforts to obtain a job with the City, he has filed several job applications, including one in December 1987 and another in June 1992. Such applications are valid for a period of two years after they are signed and filed with the City. Therefore, if petitioner applied for a position with the City in March 1991, he did not have a valid job application on file. The petition for relief filed by Coleman describes the unlawful employment practice allegedly committed by the City as follows: unlawful hired or employment practice: with veteran preference that I have, and a handicap, which is alleged. The petition for relief does not describe the handicap. At hearing, however, petitioner contended he suffers from paranoia schizophrenia. Petitioner says that he applied for a job as a "traffic checker" with the City's engineering department in March 1991. City records reveal, however, that it has no such position called "traffic checker," and thus it hired no one for that job in 1991. It does have a position called "parking enforcement specialist," but since no description of the functions of that job is of record, it is unknown if the two positions are the same. Even so, City records do not show that petitioner made application for that position in March 1991. Notwithstanding this shortcoming, petitioner says that he interviewed for the position with an unidentified "supervisor," and he was told to prepare a resume, which he later gave to the interviewer's secretary. Thereafter, he made inquiry with the City's affirmative action office and learned that a veteran, not disabled, had been hired to fill the slot. Petitioner then brought this action charging the City with an unlawful employment practice. It is noted he has subsequently filed a second discrimination claim pertaining to another job application with the City. At hearing, petitioner contended that he suffers from paranoia schizophrenia. Other than his own assertion, however, no evidence was produced to confirm this disability, and as to this issue it is found that insufficient credible evidence exists to support a finding in petitioner's favor. The City admits that in one of petitioner's job applications filed with the City, petitioner attached a copy of a DD214 form reflecting that he was honorably discharged from the military. Also, the City acknowledges that in one of the applications is found a statement that petitioner had a 30 percent service related disability but the type of disability is not described. Whether the service related disability was still valid in March 1991 is not of record. Finally, petitioner's exhibit 1 is a copy of what purports to be a "statement of patient's treatment" from a VA outpatient clinic prepared in February 1985, but this document is hearsay, and in any event, is so dated as to have no probative value in this case. The more credible evidence shows that petitioner did not apply for the position of "traffic checker" or parking enforcement specialist in 1991. Moreover, petitioner had no valid application on file at that time, and there is no credible evidence as to who, if anyone, was hired to fill the position or what were the qualifications of the person hired. Even if one assumes an application was filed, the record is silent as to why petitioner's application may have been denied or, assuming he had a handicap, whether he could adequately perform the essential functions of the job. Given these considerations, and the lack of evidence to establish that petitioner is disabled with a handicap, it is found that the City did not commit an unlawful employment practice.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order denying the petition for relief. DONE AND ENTERED this 9th day of May, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of May, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5926 Respondent: Partially accepted in finding of fact 4. Partially accepted in finding of fact 5. Partially accepted in finding of fact 6. Note - Where a proposed finding of fact has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, not supported by the evidence, or a conclusion of law. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commissioin Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149 Dana C. Baird, Esquire Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149 Mr. David Coleman 1071 Ontario Street Jacksonville, FL 32205 Brian M. Flaherty, Esquire 600 City Hall 220 East Bay Street Jacksonville, FL 32202
The Issue The issues to be resolved in this proceeding concern whether the Petitioner was discriminated against based upon his age when he was not selected for promotion by the Respondent Corporation, and when he was ultimately terminated.
Findings Of Fact The Petitioner, Harlan Hamer, has many years of experience working in the trucking industry, particularly in management capacities. He has been engaged in managing safety, finance and administrative operations of large motor carriers, as well as operational aspects of a 350- truck unit motor carrier corporation. He has an extensive knowledge of the various aspects of regulation and operations pertaining to the trucking industry. He is also a licensed commercial, Class A driver, qualifying him to operate commercial vehicles such as large, over-the-road trucks. The Respondent is a dry-freight trucking company which, at the height of its operations in 2006-2007, operated 260 to 300 trucks. Apparently most of these were owned by the Respondent Shoreline. It employed the requisite number of drivers to keep this approximate number of trucks operating, as well as a significant number of office and terminal administrative, operations, management, and maintenance personnel. In early 2007, the Petitioner interviewed with Shoreline concerning an employment position. He interviewed with Randa Shipp, who was a recruiter for Shoreline at that time. Ultimately, Mr. Hamer was not selected for that job and secured alternative employment as a driver for Mineola Water Company. Soon thereafter, however, he received a call from Shoreline offering him a position as a "night dispatcher." He accepted that position and began working for Shoreline on May 14, 2007, at a weekly salary of $750. He completed an application at that time in which he revealed his age. The Respondent thus became well aware of his age at the time it hired him. His resume also describes his birth year as being 1947. The Shoreline form which documents his hiring, signed by the safety director at that time, Cheryl Allender, also reflects that birth date. His age of 60 or 61 years, at times pertinent to this case, was well known by the Respondent and had been since he was hired. The Petitioner had been a truck driver early in his career and later managed drivers. He was a manager for Pucket Oil Company; Santee Carriers, Inc; and Transwood, Inc. In some of these capacities he had been responsible for U.S. Department of Transportation mandated compliance with government regulations applicable to the trucking industry, as well as Equal Opportunity (EEO) compliance. When the Petitioner was hired as a night dispatcher he was given approximately three nights of training. Greg Bruce, testifying for the Petitioner, was also a night dispatcher and the Petitioner's counterpart. For the first three months of his employment in 2006, however, Greg Bruce had worked with the dayshift team as a Fleet Manager, in which he performed dispatching duties, while managing a group of drivers. Beginning in October 2006, Bruce had worked as a night dispatcher. He testified that the Petitioner responded well to training and, as far as he knew, performed his duties well after commencing his employment. Bruce however, did not observe the Petitioner performing his duties after the training period ended because they worked at different times. He did establish that the Petitioner consistently arrived early for his shift and communicated regularly with the day shift team, before they departed at the end of their shift. He established that the Petitioner had a good attendance record, and was seldom or never absent, because he never had to "cover" the Petitioner's duties, which he would have done if the Petitioner had missed work. The night dispatcher for Shoreline functioned alone while on shift, had to answer four telephone lines and respond to text messages from drivers, concerning any issues arising during the night. The night dispatcher was also required to communicate with customers and to generate new loads. The night dispatcher had responsibility for resolving equipment break-down issues for Shoreline as well as Shoreline Transportation of Alabama, a related trucking company under the same ownership. The night dispatcher's duties were essentially the same as those performed during the day by fleet managers, as well as load data entry personnel and customer service personnel. The testimony of the Petitioner and Bruce, together, establishes that the Petitioner was generally adequately qualified to perform the duties of Night Dispatcher. Mistakes were made by the night dispatchers, including the Petitioner, as well as by day-shift personnel. Day-shift personnel would sometimes omit a correct "pick-up number" so that the night dispatchers would have to search the office to locate a particular bill of lading to determine load/delivery information. Because of the large number of trucks on the road at any given time, resolving such issues could take a considerable period of time. Both the night dispatchers, including the Petitioner as well as the day-shift personnel, made mistakes such as entering incorrect numbers in the company record system concerning trucks, drivers and loads. The totality of the testimony and evidence shows, however, that, after training, and after gradually improving on the job the Petitioner was adequately qualified for the night dispatcher job at the time of his termination. Sometime in August 2007, the Petitioner learned that the company would be hiring an Operations Manager to assist Clayton Gremillion in his operations management duties. The Petitioner therefore approached Clayton Gremillion (his supervisor) about his interest in being considered for that new position. Clayton Gremillion acknowledged in his testimony that the Petitioner had informed him of his interest in moving into a management position, and had informed him about his qualifications. Clayton Gremillion further acknowledged that the company was creating such a management position and that he told the Petitioner that he would "keep him in mind" for that position. The position was not posted or advertised and there was no actual opportunity to make a formal application. In any event, the Petitioner was never interviewed for that position nor was it ever discussed with him, after the initial conversation he had with Clayton Gremillion. Clayton Gremillion, and his father, Don Gremillion, the owner, interviewed and then hired Justin Allen for the new position, on January 21, 2008. He was hired as an Operations Manager, at a weekly salary of $1,346.15. Allen was much younger than the Petitioner, being born in 1979. Mr. Bruce testified that he had more than 20 years experience in trucking management and he would have been qualified and wished to have been considered for the job. He testified that he considered the Petitioner even more qualified because of his longer experience in management with trucking companies with similar operations. Justin Allen had much less experience in the trucking business than either the Petitioner or Greg Bruce. He did have a few years of experience working for J.B. Hunt Trucking Company, but he lacked significant management experience. Justin Allen was hired, however, because it was believed that he had business connections which would be of significant assistance in generating new revenue and accounts for the company, chiefly accounts with Lowe's and Wal-Mart. This was the primary reason for Shoreline to hire Allen, as well as the fact that it was considered important to obtain help for Clayton Gremillion in managing the company's operations. The evidence is not clear as to how much new revenue Allen may have generated for Shoreline. Allen also performed some human resource duties, as well as helping Clayton Gremillion in operations management. In 2007, as well as into 2008, Shoreline was adversely impacted by an economy entering a severe recession, with a particularly severe financial strain caused by escalating diesel fuel prices. Indeed, Shoreline lost $1.7 million in 2007 and lost over $2 million in the first six months of 2008, which resulted in its closure, effective July 1, 2008. On that date, the company operations ceased and all assets and equipment were leased to Evergreen Transportation Corporation. During the period leading up to this company closure, economic adversity caused Shoreline to take some 40 trucks out of service, in approximately early February of 2008. This resulted in the layoff of numerous drivers and some office personnel. In early 2008, the New Orleans office of Shoreline was closed, due largely to economic conditions. An employee, Mike Hill, who had been staffing the New Orleans office, was transferred to the main office in Cantonment, Florida. Mike Hill had been initially hired by Shoreline on August 30, 2004. He had worked in the trucking industry prior to that time as a driver and also had approximately ten months experience in dispatching before being hired by Shoreline. In 2007 and early 2008, Hill was being paid a $1,000 weekly salary plus a $300 car allowance. While working for Shoreline in the New Orleans area he serviced the Gulf States Coca-Cola Company account, at its facility in New Orleans, as one of Shoreline's most important customers. Hill is a substantially younger person than the petitioner, being born in 1971. Apparently, Mr. Hill had communication difficulties, or disputes, with Coca-Cola's representative, Shawn Blazer. While that may have affected the decision to remove him from the Louisiana office and return him to the Florida office, the evidence shows that Shoreline kept the Coca-Cola account and had it serviced by Hill, and later Norman Macintosh and ultimately by Greg Bruce. Bruce testified that because of his efforts Shoreline regained business that Hill had lost with Coca-Cola. Be that as it may, the evidence shows that the primary reason that Mike Hill was transferred back to the Cantonment office was due to the economic downturn and the Respondent's closure of the New Orleans area office or terminal. Mike Hill had worked for Shoreline since 2004 and had worked in the night dispatching and breakdown clerk position before Mr. Hamer ever joined the company. Consequently, due to his seniority and due to his relevant experience, Hill was moved back from New Orleans and given the position held by the Petitioner. The Petitioner was therefore informed by Cheryl Allender, on or about February 6, 2008, that Clayton Gremillion had decided to terminate the Petitioner's employment because the position would be filled by Mike Hill. The Petitioner was told it was necessary to lay him off due to the need to reduce forces as a result of economic conditions. The financially-driven reduction of Shoreline's forces in New Orleans and the decision to retain Mike Hill who was an employee with seniority, according to the Respondent, led to the Petitioner's layoff. In addition to the Petitioner, six other office personnel were laid off within thirty days of the Petitioner's layoff. Clayton Gremillion testified that there were certain performance deficiencies displayed in the Petitioner's work as a night dispatcher. These involved tardy or incorrect input of data into the computerized load/truck/customer tracking and records system, and some delays in arranging for the repair of truck break-downs and for alternative means of delivery or pick-up of the relevant loads. The primary reason for the layoff, however, was as a result of the reduction of forces in the New Orleans operation and the decision to transfer employee, Mike Hill, with his seniority, and experience in dispatch work, to replace the Petitioner in his position. It is true that Shoreline hired some other personnel after the Petitioner's layoff, and in the face of the economic downturn. However, none of these personnel were hired to fill the Night Dispatch/Break-Down Clerk position that the Petitioner had occupied. Lloyd Randall was hired after the Petitioner was laid off. Lloyd Randall, born in 1954, was approximately seven years younger than the Petitioner. He was hired to work as a fleet manager on the recommendation of a mutual acquaintance to Clayton Gremillion. In fact, as Clayton Gremillion conceded, he hired him "as a favor to a friend." He hired him at a salary rate of approximately $475 per week. On the day of his hire, Mr. Randall decided he would not stay, whereupon Clayton Gremillion offered him $565 per week for the position. Mr. Randall, however, determined that it was not the type of work he desired and left after being employed for approximately one day. Mike Hill, who had been hired in the position from which the Petitioner was terminated, left the company fairly soon, on March 31, 2008. The position which had been occupied by the Petitioner, and then Mike Hill, was next filled by Norman Macintosh, who is over 50 years of age and had worked with Shoreline since the 1980's. Shoreline employed people in all age ranges. This included several over the age of 40, some over the age of 50, and some over the age of 60. In February 2008, for example, when the Petitioner was laid off, numerous drivers were employed over the age of 50 and Norman Macintosh and Jerry Adkins, longtime company employees, respectively in the dispatcher positions and maintenance supervisor positions, were over the age of 50. Mr. Adkins was over 60 years of age at the time. Shoreline continued to run ads seeking to fill certain positions, including office positions, after the Petitioner's layoff. These were not ads seeking employees for the night dispatcher/break-down clerk position that the Petitioner had held, however. Although Shoreline hired some additional personnel after the Petitioner's layoff, none of them were hired to fill his position. In any event, the Petitioner noticed the ads and called Jerry Adkins to find out "what was going on." The fact is, however, that in response to the ads the Petitioner never contacted anyone else at Shoreline in an effort to either get his former job back, or to seek some other position with the company, such as those referenced in the ads. Mr. Adkins, the Maintenance Supervisor for Shoreline, was over 60 years of age. The Petitioner contends that he is a biased witness because he was a long- time company employee and, even after the cessation of company operations, still had a company-supplied vehicle. It is not found that this fact, together with any facts elicited on cross-examination of Mr. Adkins, or otherwise, has established him to be lacking in credibility, however. Mr. Adkins did not believe that the Petitioner's layoff was associated with his age. Instead, he stated that it was to accommodate bringing the more senior employee, Mike Hill, back to the company headquarters location from the closed New Orleans location and operation. His testimony is accepted as credible. When the Petitioner learned that his former position with Shoreline was being advertised, in March 2008, he did not apply for it. He had an application pending with another trucking company at the time which he anticipated would be a better employment opportunity. Moreover, he did not apply for other employment positions which he maintains were filled with younger people. There is no evidence to show that in instances when substantially younger people were hired for positions with the company, before and after the Petitioner's layoff, that it was at the expense of persons more in the Petitioner's age range, who sought the positions also and were rejected. That was simply not shown, in addition to the fact that the Petitioner did not apply for other positions. In fact, these positions have fairly low pay levels. It thus may be that these positions, or some of them, were filled by significantly younger people because older, more experienced applicants would not be attracted by the relatively low pay levels. In any event, had the Petitioner made an inquiry concerning being re-hired by the Respondent for any position, it would not likely have occurred. This is because of performance problems described by the testimony of daytime dispatcher Chip Wasdin, as well as by Clayton Gremillion. The Petitioner made mistakes and had difficulty ensuring that data was entered correctly into the company's computer system. The Petitioner acknowledged making mistakes in this regard, even after his first few months in his position. In summary, it has not been demonstrated that the Petitioner was terminated, nor that he failed to receive the promotion to the management position, because of his age. The Respondent has established the above-referenced legitimate business reasons for the hiring of Justin Allen and Mike Hill. Other substantially younger people hired for positions, even if their tenure was very short in those positions in late 2007, or the spring of 2008, were not shown to be hired at the expense of the Petitioner or any other applicants in the Petitioner's age range. In fact, the Petitioner applied for no such positions. Given the overall tenor of Clayton Gremillion's testimony, it may even be the case that, in one or more of the hiring situations, the hiring related at least somewhat to cronyism. Clayton Gremillion admitted hiring Lloyd Randell as a favor to a friend, and the same may be true in terms of a friend's recommendation with regard to Justin Allen. In any event, however, there was no showing of any intent to discriminate, based upon age, by the hiring of significantly younger people than the Petitioner, or in the failure to promote or the termination of the Petitioner. Finally, the lack of intent to discriminate based upon age is borne out by the fact that the Respondent was fully aware of the Petitioner's age in the spring of 2007, when it chose to hire him.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties it is, therefore, RECOMMENDED that a Final Order be entered by the Florida Commission on Human Relations finding that no discriminatory employment actions based upon the Petitioner's age occurred and dismissing the Petition in its entirety. DONE AND ENTERED this 16th day of June, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 2009. COPIES FURNISHED: Heather F. Lindsay, Esquire Lindsay & Andrews, P.A. 5218 Willing Street Milton, Florida 32570 Michael W. Kehoe, Esquire Fuller, Johnson, Kehoe, Horky and Rettig, LLC 3298 Summit Boulevard, Suite 11 Pensacola Florida 32503 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The central issue in this case is whether Petitioner's employment with the Respondent was terminated in violation of Chapter 760, Florida Statutes.
Findings Of Fact Based upon the documentary evidence received at the hearing, the following findings of fact are made: At all times material to the allegations of this case, Petitioner was an employee of FRSA. On or about September 26, 1989, Petitioner's employment with FRSA was terminated and the charges of discrimination were filed. Prior to termination, Petitioner's work performance with the company had been acceptable. In fact, for the performance review issued on January 31, 1989, Petitioner received a superior rating in eight of the eleven categories, a good rating in two categories, and an outstanding rating in one category. At the time of her termination with FRSA, Petitioner earned an annual salary of $35,000. Petitioner claims a total of $83,568 for the lost wages and benefits resulting from her termination with FRSA. At the time of her termination, Petitioner was pregnant.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the charge of discrimination filed by the Petitioner in this cause against the Respondent. DONE and ENTERED this 4th day of September, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 COPIES FURNISHED: Elizabeth Rubeis Reno Rubeis 4350 Wyndcliff Circle Orlando, Florida 32817 Susan McKenna Garwood & McKenna, P.A. 322 East Pine Street Orlando, Florida 32801 Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 1992. Dana Baird, General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Margaret Jones, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570
The Issue The issue is whether the Respondent discriminated unlawfully against the Petitioner by discharging him because of a handicap contrary to Chapter 760, Florida Statutes, and, if so, the nature and extent of financial loss suffered by the Petitioner.
Findings Of Fact The Petitioner, Shannon M. Spence, was employed from March 1993 until May 1, 1993 by the Respondent. The Respondent is an employer as defined by Chapter 760, Florida Statutes. The Petitioner, who earned on average $125/week, was employed by the Respondent as a bouncer and "bar backer", a person who assisted the bartender. On or about April 29, 1993, the Petitioner suffered an on the job injury which was duly reported to the employer and for which the Petitioner was treated at a local hospital pursuant to arrangements made by the employer. The Petitioner's injury was determined to be a right inguinal hernia, and the Petitioner was cautioned against lifting more than 25 pounds and standing for long periods of time. The Petitioner reported for work the following day, and communicated to his supervisor his inability to lift and to stand for long periods of time. His supervisor, Jess Wall or J.W., placed the Petitioner on security detail for the parking lot and entrance. There were additional light duties available for security personnel within the employer's business in which the employee could have been placed. The Petitioner's employment was terminated later that evening. The testimony is conflicting regarding whether the Petitioner was discharged because he was dating another employee, or because he was injured, or quit in sympathy with Jess Wall, who was also terminated on that evening. The most credible evidence is that the Petitioner was discharged because of his injury, but was told it was because he was dating another employee. The prohibition against dating was a new rule, it was applied against the Petitioner without any prior warning, the female employee was not discharged, and the Petitioner was the only person discharged for this activity although there were others who dated employees. The alternative theory that Petitioner quit in sympathy with the head bouncer, Mr. Wall, is specifically rejected for lack of credibility of the various witnesses. The Petitioner subsequently settled his workman's compensation claim arising from this injury with the Respondent for $15,000. No details were received regarding the allocation of moneys for medical and wages. The Petitioner is entitled to back wages from his discharge until the hearing on April 27, 1995, less any mitigation, including any portion of the settlement of his workman's compensation claim attributable to lost wages, occurring after surgical repair of the hernia when the Petitioner was reemployed. The Petitioner is entitled to reasonable costs and attorneys fees.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Commission find that the Petitioner was unlawfully discriminated against by the Respondent, and that the Respondent be ordered to pay the Petitioner his lost wages from May 1, 1993 until April 27, 1995 less any amounts the Petitioner earned during this period and any amounts included in the workman's compensation settlement specifically provided for wages; that the Commission retain jurisdiction for the award of damages and attorney's fees and costs; and the Commission remand the matter for a determination of the attorney's fees and costs and to permit the Respondent to present any evidence in mitigation of its damages. DONE and ENTERED this 20th day of June, 1995, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1995. APPENDIX The parties filed proposed findings which were read and considered. The following states which of their findings were adopted and which were rejected and why: Petitioner's Recommended Order Findings Paragraph 1,2 Subsumed in Paragraph 1 and 2. Paragraph 3-5 Subsumed in Paragraphs 3-5. Paragraph 6-8 Subsumed in Paragraphs 6-9. Paragraph 9 Subsumed in 3 and 11. Respondent's Recommended Order Findings Paragraphs 1-3 Paragraphs 1-3 Paragraph 4 Rejected because the date was April 29, 1993. Paragraph 5 Subsumed in Paragraphs 4,5. Paragraph 6,7 Rejected as contrary to more credible evidence. Paragraph 8,9 Subsumed in Paragraphs 10,11. COPIES FURNISHED: James P. Tarquin, Esquire Michael B. Staley, Esquire P.O. Box 906190 Ocala, FL 34478 John Daley, Esquire 201 E. Pine Street 15th Floor Orlando, FL 32801 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113
The Issue Whether the Respondent's suspension of Petitioner was in compliance with Chapter 110, Florida Statutes, and Chapter 22 A-10, Florida Administrative Code. Whether the Respondent's suspension of Petitioner should be sustained.
Findings Of Fact Louise M. McAdams was an Examiner II employed by Respondent, Department of Highway Safety and Motor Vehicles in Marianna, Florida. By letter dated February 11, 1975, Mrs. McAdams, the Petitioner, was notified that she was being suspended for three work days without pay by the Respondent, Department of Highway Safety and Motor Vehicles, Division of Drivers License, for: Third offense, rude and improper handling of a driver license applicant in willful violation of the Division of Driver Licenses' Disciplinary Policy, Section II, Pages 23-25 Examiner Manual (Appendix "A"). Mrs. McAdams appealed this suspension. Petitioner had previously received two written reprimands from Respondent, one dated April 5, 1975 and one dated April 12, 1975 involving similar charges. The two previous reprimands did not result in the suspension of Petitioner. The Department Respondent has presented documentary evidence that there were numerous complaints as to the work of Petitioner; her absences from the office; and, the handling of the general public. The Respondent Department has proceeded properly under its policy and rules and the rules of the Career Service Commission and under the statutes of the State of Florida. Petitioner McAdams is am attractive personable woman but one who suffers from ill health. The routine pressures of the job of Examiner II and the general job pressure of state employment together with her physical condition is evidently responsible for her inability to satisfy the requirements of the job which is a job that requires a certain amount of job pressure and requires personnel to be at all times pleasant, smiling and courteous as well as consistently prompt in daily attendance. The Hearing Officer further finds: The Respondent has properly followed the rules and regulations and statutes relative to the suspension of employees. That the suspension of Petitioner, Louise McAdams, was proper. That just cause existed for the suspension of Petitioner.
The Issue Whether Respondent unlawfully discriminated against Petitioner.
Findings Of Fact For many years Mark Dunning Industries, Inc. (MDI), held the contract for trash removal and processing for Naval Air Station, Pensacola, Florida (NAS Pensacola). In the summer of 1995, the contract for these services, for a period beginning January 1996, were the subject of a bid solicitation. The apparent winner of the bid was Ohio Disposal Systems, Inc (ODSI). This bid was contested by MDI. Ultimately, ODSI prevailed in the bid contest and was selected to perform the contract. Performance was to begin on January 1, 1996, however, ODSI was not informed that it was to be the contractor until early December 1995. Petitioner was born on July 12, 1922. He is a U.S. citizen from Puerto Rico, and of Hispanic origin. Petitioner first came to be employed by MDI in the summer of 1994. Petitioner worked on the "hill," which is an elevated portion of the trash dump on board NAS Pensacola. It was his job to weld broken equipment. He also operated two kinds of equipment: a Bobcat, which is a small front-end loader, and a backhoe with a dozer blade mounted on the front. Petitioner was paid about $16.00 per hour as a welder. Victor Cantrel, Petitioner's friend, commenced employment with MDI in July 1995. He worked on the "hill" and also drove the Bobcat and the back-hoe. He would utilize this equipment to push trash into a compactor. In trash-handling parlance, he was known as a "hill man." He was not a welder. He worked closely with Petitioner. Mr. Cantrel was born on June 25, 1972, and is Anglo- American. He was paid about $9.00 per hour. The supervisor of Petitioner and Mr. Cantrel, during the latter months of 1995 while they were working for MDI, was Thomas Lucky. The principal of ODSI was Vince Crawford. On or about December 28, 1995, at the end of the workday, Mr. Lucky informed the employees, including Petitioner, Mr. Cantrel, and a number of trash truck drivers, that there was to be a meeting in the company office near the "hill." Present at the meeting in the office, which commenced around 6:30 p.m., was Petitioner, Mr. Cantrel, Mr. Lucky, several truck drivers, Mr. Crawford, and his wife Cathy. Mr. Crawford informed the assembled employees that he was bringing in all new equipment; that because there would be new equipment, the new employees of ODSI would be able to work 40 hours per week; and that due to the requirement to get his company in shape in time to meet the January 1, 1996, deadline, many of the employees of MDI would be offered jobs with ODSI. After revealing these preliminary matters, Mr. Crawford asked a man named Lee what he did at MDI; this man said that he was a truck driver. Mr. Crawford told him that he was hired with the new company. Then he asked Mr. Cantrel what he did; he said he drove the Bobcat. Mr. Crawford said, "Recycle, huh. You are hired." Mr. Cantrel subsequently filed an employment application. However, he knew that after the announcement at the meeting, he was going to work for ODSI. When Mr. Crawford inquired of two more people, they both responded, "truck driver," and Mr. Crawford informed them that they were hired. When he asked Petitioner, Petitioner said, "Welder." Mr. Crawford then said, "We don't need no welders here." This was the first and last encounter Petitioner had with Mr. Crawford. The next day Petitioner arrived at work at the usual time and was informed that he no longer was employed at that facility. On January 2, 1996, Petitioner presented an employment application to the office at ODSI seeking employment as a "Welder and/or Heavy Equip. Opr." He never received a response. No evidence was adduced that at that time there were job openings for a "welder and/or heavy equipment operator." Additionally, according to Petitioner, no one from ODSI informed Petitioner that he was not qualified. No evidence was adduced at the hearing which indicated that Mr. Crawford noticed that Petitioner was 73 years of age, or that he was a Puerto Rican, or that he was of Hispanic origin. The unrebutted evidence demonstrated that Petitioner was not hired, at the time jobs were available, because Mr. Crawford was bringing in new equipment. New equipment does not require frequent welding and, therefore, Mr. Crawford did not need a welder.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered finding Respondent committed no unlawful employment practice. DONE AND ENTERED this 28th day of March, 2002, in Tallahassee, Leon County, Florida. HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 2002. COPIES FURNISHED: Bruce Committe, Esquire 17 South Palafox Place, Suite 322 Pensacola, Florida 32501 Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 H. William Wasden, Esquire Pierce, Ledyard, Latta, Wasden & Bowron, P.C. Post Office Box 16046 Mobile, Alabama 36616 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether Respondent committed an unlawful employment practice against Petitioner in violation of Section 760.10, Florida Statutes.
Findings Of Fact Petitioner, Jerry McCoy, is an African American and is a member of a class protected by Chapter 760, Florida Statutes. Petitioner worked as a tanker truck driver for Florida Rock from 1980 until October, 1993. During his employment, he was assigned to Florida Rock's terminal in Panama City, Florida. Respondent, Florida Rock & Tank Lines, Inc., is a transportation company engaged in the hauling of liquid and dry bulk commodities throughout the United States. Respondent transports gasoline, diesel fuel, asphalt, chemicals and other hazardous and corrosive materials. Respondent is an employer within the meaning of Section 760.02(7), Florida Statutes. Petitioner, during his 13-year employment with Florida Rock, was generally considered a good truck driver. Over the years, Petitioner received several compliments from customers, safety bonuses and emblems, and a set of his and her watches after 10 years of maintaining a good safety record. On the other hand, Petitioner also received several customer complaints, committed some safety violations, and was banned from two customers' terminals. The trucking industry is heavily regulated. As such, Respondent must obey federal, state, county and city traffic, and transportation laws. In addition, Respondent must follow federal and state environmental laws and regulations because it transports toxic and hazardous substances. The transportation and environmental laws and regulations are strictly enforced. Minor violations can result in substantial penalties. Respondent or the driver, or both, can be fined for violations of any of these laws. To ensure compliance with the federal, state, county, and city laws, and to satisfy requirements of its customers, Respondent established a safety program. Respondent's safety policies were developed as a result of experience in tank truck transportation and, when followed by drivers, have resulted in safe loading, transportation, and unloading of products that Respondent transports. To enforce the safety program, Respondent adopted a points system. Under the points system, a driver is assessed points for preventable violations of a safety policy or procedure. A driver who accumulates 24 points within one year is automatically terminated. On a driver's anniversary date, all points assessed during the previous year are removed from the driver's record and the driver begins the year with a clean company driving record. The rules, policies, and procedures of the safety program are contained in the driver's safety manual. All drivers receive a copy of the safety manual when hired. All drivers also receive safety training before being allowed to operate a truck transporting hazardous materials. In addition, to maintain driver awareness of safety rules and regulations, Respondent conducts monthly safety meetings at each terminal. The meetings are conducted by the terminal manager or safety supervisor, or both, and consist of a review of safety rules, policies, procedures, and equipment and recent changes in relevant laws. The safety program is administered by the safety department of Respondent. Luc Cleyman, Director of Safety, directs the daily operations of the safety department. When a spill, mixture, or other violation of the safety program occurs, the driver's terminal manager initiates a review of the incident to determine whether it was preventable or non-preventable. If the terminal manager determines that the violation was preventable, the driver is assessed points and/or subjected to other discipline based on the type and severity of the violation. A driver is not assessed points for a non- preventable violation of safety rules and procedures. In certain situations, Mr. Cleyman may instruct the terminal manager to assess a number of points greater or less than the amount specified in the safety manual, and to administer further disciplinary action for safety violations. Under the safety program, management has the authority to administer further disciplinary action for a safety violation, if in their opinion it is warranted. In addition, management has the authority to impose less discipline than that which is set forth in the safety manual. The safety department reviews all citations issued to verify that the correct number of points was assessed. An employee's race is not referenced in the files maintained by the safety department. Consequently, in disciplinary actions, management does not know the race of an employee unless the individual in management knows that particular employee. In this case, unlike most terminal managers, Nancy Dinnes, the terminal manager at the Panama City Terminal, always consulted with the safety department before her initial assessment of points against a driver for a safety violation. Respondent's safety program includes an appeal procedure by which a driver may appeal the determination that an incident was preventable and/or the assessment of points. The safety manual provides: The driver has the right of appeal, without prejudice. The appeal must be made to the Safety Department, in writing, within ten working days after the driver receives his/her notification. Once the appeal is received in the Safety Office, the incident facts will be reviewed by the Accident Review committee and/or the Violation Review Committee. Each committee will be comprised of the Vice President, Division Vice President, and the Director of Safety. The Committee's decision regarding work- related injury claims and spillages, mixtures, and contaminations will be final in all cases. In the event a driver does not agree with the committee's decision regarding a traffic accident, then he/she must submit, in writing, his/her disfavor to the Safety Department within ten (10) days after his/her receipt of the committee's decision. The accident facts will then be submitted to the National Safety Council Accident Review Committee for their review and decision. Their determination will be final in all cases. To encourage drivers to follow the safety program's policies and procedures, Respondent pays substantial quarterly and annual safety bonuses to eligible drivers. An eligible driver receives a quarterly safety bonus of four percent of his previous quarter's earnings and an annual safety bonus of two percent of his previous annual earnings. A driver is eligible to receive a quarterly safety bonus unless he or she is assessed six or more points during the quarter. A driver who accumulates 21 or more points during the year is not eligible to receive an annual safety bonus. Quarterly bonuses are paid in the month following the end of the quarter. Annual safety bonuses are paid in January of the following year. The amount of quarterly and annual safety bonuses is substantial. Drivers always know when they are due a bonus and whether that bonus has been paid. If a driver does not receive a quarterly or annual safety bonus he or she has a right of appeal. The safety manual provides: It is Florida Rock and Tank Lines, Inc.'s desire to pay all earned Quarterly and Annual Safety Bonuses. Any driver that does not qualify for the quarterly or annual bonus has the right of appeal, without prejudice. The appeal must be made to the Safety Department, in writing, within ten working days after the quarter in question has ended or the year in question has ended. Once the appeal is received in the Safety Office, the case will be reviewed by the Bonus Review Committee. The Bonus Review Committee consists of the Vice President, Division Vice President, and Director of Safety. Their findings and recommendations will be final. Petitioner was hired as a driver of tractor-trailer trucks at Respondent's Panama City Terminal on February 28, 1980. His duties included loading petroleum products at distribution terminals and transporting them to gas stations and other facilities in the southeastern part of the United States where he would unload the product into storage tanks. Petitioner was aware of the company's safety policies and procedures. In particular Petitioner was aware of the safety policies and procedures involved in this action. On April 13, 1993, Petitioner delivered resin, a very thick material, to the Georgia-Pacific facility in Albany, Georgia. The hose used for unloading resin is two inches in diameter. The hose was in bad shape. It's end blew off while Petitioner was pumping resin into the storage tank. A spill, which is a potential violation of the company's safety policy, occurred. The violation carries an assessment of twelve points. Petitioner brought the failed hose back to the terminal and showed it to Nancy Dinnes. Upon investigation, Mr. Cleyman was told by a representative of Georgia-Pacific that Petitioner was pumping the resin too fast and blew the end of the hose off. The same Georgia-Pacific representative also complimented Petitioner for his help in containing and cleaning up the spill. Both Ms. Dinnes and Mr. Cleyman were of the opinion that hoses did not fail unless Petitioner was forcing too much product into the hose by pumping the product too fast. However, both conceded that Petitioner's claim that the hose failed while he was properly unloading the resin could have occurred. Both gave Petitioner the benefit of the doubt. Therefore, no points were assessed against Petitioner since the spill was deemed unpreventable due to the unpredicted failure of the hose. On April 28, 1993, Petitioner was dispatched to deliver ethanol no-lead regular fuel to Sunshine Jr. Store No. 28 in Springfield, Florida. When he arrived at the store, Petitioner testified that he was unable to determine into which tank to dispense the ethanol unleaded regular fuel because the storage tanks were not properly marked for ethanol fuel. Likewise, the pumps were not marked for ethanol fuel because the store had not sold ethanol fuel for several months. There were separate storage tanks marked for regular unleaded fuel, mid- grade fuel and premium fuel. Because he was unable to determine the correct tank into which to drop his load, he asked the store manager to identify the correct tank. The store manager did not know and called Sunshine Jr.'s corporate offices. After the store manager contacted someone at the corporate office, the store manager told Petitioner to unload the no-lead regular fuel into the premium fuel tank. Without calling the terminal, Petitioner unloaded regular gasoline in with premium gasoline causing a mixture of the two fuels and downgrading the premium fuel to a lesser octane fuel. Petitioner did not draw a diagram of the storage tanks with their markings on the Bill of Lading for the delivery. In instances where the storage tanks are not clearly marked, a driver is required to diagram the location of the storage tanks and the type product each contains so that the information will be on record at the terminal. Petitioner admits that he was aware of the requirement of a diagram under such circumstances. His failure to diagram the storage tanks at Sunshine, Jr. Store No. 28 demonstrates that Petitioner was not confused by the markings on the storage tanks. Indeed he had been disciplined for unloading fuel into the wrong storage tank the previous year at Rice's Grocery. The mixture resulted in the loss of over 1,500 gallons of fuel and caused a hazardous situation. Eventually, the fuel was removed and transported to another location. Because of the dangers to the public from a mixture of hazardous materials and the substantial penalties resulting from such a violation of environmental laws and regulations pertaining to the transportation of petroleum products, Respondent's safety program includes a policy imposing 12 points, or further discipline up to discharge, for preventable mixtures of fuel and other hazardous materials. Respondent's load/unload procedures in the driver's safety manual require a driver before unloading to: Check the fill pipe identifications to be sure they are labeled properly and indicate the same product you intend to unload. Do not depend on identification by others. If fill pipes are not properly identified and you are unable to personally identify the contents of the tank, call your terminal for instructions. Failure to do so may endanger lives, property and the environment. Thus, a driver who cannot determine the correct tank in which to unload may not rely on others for identification of the proper storage tank, but must contact the terminal manager for instructions. A driver who contacts the terminal for instructions does not violate safety rules and procedures if a mixture results. As indicated, Petitioner did not call the terminal for instructions. Petitioner's very confusing testimony to the contrary is not credible. Petitioner admits the above procedure is correct. On April 29, 1993, the day after Petitioner's delivery, Sunshine Jr., Stores contacted terminal manager Dinnes to inform her that Petitioner had unloaded ethanol unleaded fuel into the premium fuel storage tank causing a mixture of the two fuels. Ms. Dinnes investigated the report. As part of her investigation, Respondent sent Fernando Berrios, mechanic, to the site to conduct a visual inspection of the storage tanks. Mr. Berrios found that the tanks were properly marked. Additionally, a diagram identifying the layout of the store's storage tanks with their markings was displayed in the store's window. Mr. Berrios drew a diagram showing the layout of the storage tanks with their markings at Sunshine Jr. Store No. 28 on the face of the Truck Bill of Lading pursuant to which Petitioner had delivered the fuel. After her investigation, Ms. Dinnes contacted the safety department and informed Mr. Cleyman that Sunshine Jr. Stores had reported a mixture and to discuss the appropriate discipline. Mr. Cleyman and Ms. Dinnes determined that Petitioner had failed to follow written company procedures pertaining to the unloading of products and mixed two different fuels together by unloading one fuel into the incorrect storage tank. Specifically, they concluded that Petitioner failed to follow written company safety procedures requiring a driver to contact the terminal if the driver is uncertain about which storage tank to unload into or the storage tanks are not properly marked and deliberately mixing two different grades of gasoline together. The mixture was clearly preventable. The points schedule in the safety manual provided that a driver who mixes product should receive twelve points. Accordingly, Mr. Cleyman instructed Ms. Dinnes to assess 12 points against Petitioner's driving record in accordance with the schedule contained in the safety manual. As a result of this violation, Petitioner did not receive his quarterly safety bonus. Petitioner did not appeal the assessment of points on his record or the disqualification for a quarterly safety bonus. Petitioner's claim that he did not receive the Sunshine, Jr. citation is not credible. Moreover, this fact is irrelevant since there was no evidence that the incident was contrived or that Petitioner was harmed if he had not received the Sunshine, Jr. citation. Petitioner admits that contacting the terminal manager is the procedure he should have followed. He did not follow that procedure. Petitioner, also admits he mixed two different grades of fuel. On October 6, 1993, Petitioner delivered diesel fuel to Diamond Sand Company at Mossy Head, Florida. Petitioner returned to the terminal with 510 gallons of diesel fuel in his trailer. Petitioner did not notify the terminal of the left- over fuel. The next day, the tanker trailer containing the diesel fuel was assigned to another driver, David Wood (white), who loaded gasoline into the tank containing the diesel fuel resulting in a mixture of petroleum products. Admittedly, Wood violated Company safety policy by failing to check his trailer for fuel prior to loading it. However, relevant to Petitioner, Respondent's safety policy also required Petitioner to verify that all product had been unloaded from his tanker. A tanker like the one involved here unloads from the bottom of the compartment. Even if the product is not being pumped, gravity causes the product to flow out of the tanker. To determine whether product remains in a tank after unloading, a driver is trained not to open the trailer dome lids, but to open the valve of a tank slightly and to drain the tank's contents into a bucket. If the tank is empty, little or no product will drain into the bucket. If the tank contains product, it will continue to drain into the bucket and the driver will have to close the tank's valve to cut-off the flow. The process is known as the bucket test. If the tank is not empty, the driver is required to contact the terminal to obtain further instructions regarding the disposal of the remaining product. The bucket test is not part of a driver's pre- or post-inspection. The pre-or post-inspection is a term of art which refers to a particular type of DOT required inspection. Petitioner testified that he performed the bucket test, drained the diesel fuel in a bucket until the flow stopped. He gave the fuel to a man in charge of unloading to pour into the storage tank. Petitioner also testified that a man on top of the tanker told him the compartment was empty. Petitioner did not reference this other man in his appeal letter or his FCHR affidavit. Ms. Dinnes did not recall Petitioner telling her about the man on top of the tanker. The safety manual provides that a driver must always call [the terminal] for instructions when a customer cannot take all of the load or does not want all of the load the customer has ordered and owns. Respondent instituted this policy because an extremely hazardous situation is created when petroleum products are stored in a tanker trailer at the terminal without the implementation of appropriate safety precautions. In addition, management needs to be informed about the presence of the product in a tanker trailer, so the next driver using the tanker can be informed to minimize the chance of a mixture. On October 7, 1993, during loading, Mr. Wood discovered that the tank he was loading gasoline into was not empty when the pump cut-off before depositing the amount of gasoline he had entered into the system. He immediately contacted the terminal manager, Ms. Dinnes, to report the mixture. Ms. Dinnes was also contacted by D & H Oil Company and informed the customer did not receive all of the fuel it had ordered. Ms. Dinnes contacted the safety department and informed Mr. Cleyman of the facts and circumstances surrounding the incident. Petitioner failed to notify the terminal that he did not unload 510 gallons of diesel fuel at Mossy Head, Florida. If Petitioner had reported to the terminal that he had leftover product, the terminal manager or dispatcher would have provided instructions to Petitioner for its distribution or recorded its presence in the tanker trailer so that the next driver using the tanker would be informed of its presence thereby preventing a mixture. Mr. Cleyman and Ms. Dinnes concluded that Petitioner violated written company safety policy by failing to notify the terminal that diesel fuel remained in the tanker trailer after his last delivery which created a hazardous situation at the terminal and contributed to the creation of a mixture by the next driver to be given the truck to drive. They also concluded that Mr. Wood violated safety rules by failing to check the tanker trailer to verify it was empty before loading gasoline into it. Mr. Cleyman instructed Ms. Dinnes to assess twelve points against both Petitioner and Mr. Wood in accordance with the safety manual. The contaminated product was sold by Respondent to Davis Oil Company in Dothan, Alabama. Respondent lost an estimated $1,988.56 as a result of the safety violations by Petitioner and Mr. Wood. Importantly, using the same tanker trailer that Petitioner used to transport the diesel fuel, Mr. Wood delivered the product to Davis Oil Company without any malfunction of the tanker trailer's equipment, including its emergency and unloading valves. These were the same valves which would have had to malfunction to cause Petitioner to believe the tanker was empty when he allegedly performed the bucket test at Mossy Head. After Petitioner received a Notice of Termination, Petitioner appealed to Respondent's safety review committee the assessment of points for the Sunshine, Jr. store and the Mossy Head violations. In his appeal letter, Petitioner contended that he did not violate safety policy because he did not "stick the tank before and after" unloading since "it was unsafe for [him] to climb on top of [the trailer] and there are no guard rails." "Sticking the tank" is where a driver inserts a measuring stick into a compartment to see if any product is left or to measure the amount of product remaining. Petitioner further contended that he was directed by Respondent not to open the trailer dome lids because someone had been killed in an explosion by doing so. Irrespective of the issue of climbing on the tanker to check to see if it was empty, the evidence was uncontroverted that the valves involved in unloading the tanker and performing the bucket test do not malfunction intermittently, but continue to malfunction until repaired. If the valves had not been working, the valves would not have been functioning when the mixture was later unloaded by Mr. Wood. The only conclusion is that Respondent either did not perform the bucket test or performed it improperly. Both conditions violate the company's safety policy. The returned product and the resultant mixture were clearly preventable. Pursuant to Respondent's policy, an investigation of the incident based on Petitioner's appeal letter by the safety review committee was initiated. After review of the incident and all contentions made by Petitioner in his appeal letter, the safety review committee upheld the point assessment against Petitioner. It was reasonable for Respondent to rely on the functioning of valves in analyzing the veracity of Petitioner's appeal. Petitioner was discharged on October 8, 1993, for violations of Respondent's safety program. Respondent's safety program specifies that the accumulation of 24 points in one year by an employee results in the dismissal of the employee. In 1993, Petitioner violated the company's safety policies on two separate occasions. The two violations caused Petitioner to accumulate 24 points within one year. The safety policies Petitioner violated were: (1) mixture of petroleum products on April 28, 1993; and (2) failure to notify the terminal of undelivered product left in the tanker trailer he brought back to the terminal after his last delivery which later resulted in a mixture on October 7, 1993. Each violation of the safety program was reported by Nancy Dinnes, Terminal Manager, to Luc Cleyman, Director of the company's safety department. The safety department reviewed the facts of each infraction as given to them by the terminal manager. In each case the infractions were preventable. In each case, the point assessment against Petitioner's driving record was in accordance with the point schedule contained in the driver's safety manual. In each case, the number of assessed points was reasonable. However, Petitioner contends that white drivers were treated differently than black drivers. Much of Petitioner's accusations are based on rumor. For instance, Petitioner contends in his Affidavit that Clayton Vaughn (white) had a major spill at Sunshine Jr. Store No. 214, cleaned up by Dave Garner, that was not reported. Petitioner testified that he had no evidence to support this allegation or first-hand knowledge of this incident. He stated that he learned of it through "driver talk," although he could not remember the name of the driver he had heard it from. Mr. Vaughn, Ms. Dinnes, and Ms. Cleyman each state that no such incident occurred and that Petitioner's claim is not true. Petitioner also contends that in July 1991, Lane Corbin (white)and Tommy Jordan (white) could not pass a random drug test, so Ms. Dinnes told them to purchase a bottle of Murine eye drops to put into the urine specimen bottle. Again Petitioner admits that he has no evidence, only hearsay, to support this allegation. Ms. Dinnes denies Petitioner's allegation. Mr. Cleyman states that the drug testing of urine specimens utilized by Respondent would have detected an adulterated specimen, therefore, Murine eye drops would not have concealed the use of illicit substances by a test subject. In his Affidavit, Petitioner contends that Tommy Jordan was assessed six points instead of 12 points for a mixture. The citation referred to by Petitioner clearly indicates that 12 points were assessed against Mr. Jordan's driving record. In his Affidavit, Petitioner asserts that Mr. Vaughn had a spill at Citgo. Again, Petitioner has no evidence, only hearsay, to support this assertion. Mr. Vaughn, Ms. Dinnes, Mr. Cleyman, and Gail Williams (dispatcher) state that no such incident took place. Petitioner contends in his Affidavit that Mr. Vaughn tried to load 1,500 gallons of gas into a 1,000 gallon tank, which caused a spill. Petitioner admittedly has only hearsay to support this contention. Mr. Vaughn, Ms. Dinnes and Mr. Cleyman state that no such incident occurred. In his Affidavit, Petitioner states that Mr. Vaughn and Dave Oyler (white) received speeding citations and were not assessed points. Petitioner testified that he had no first-hand knowledge of this allegation. Ms. Dinnes and Mr. Cleyman state that they are unaware of any instance where Mr. Vaughn or Mr. Oyler received points for speeding violations. Moreover, each year, Respondent obtains a Division of Motor Vehicle (DMV) report on all drivers and other employees who operate company vehicles. The DMV report does not list infractions. Petitioner also asserts that in November 1992, Tommy Jordan, in violation of company rules, drove through a tunnel in Mobile, Alabama with a placarded trailer. Ms. Dinnes and Mr. Cleyman state that the incident referred to by Petitioner was thoroughly investigated by the safety department and determined to be nonpreventable. The investigation showed that the exit ramp for trucks carrying hazardous materials was not properly marked. As a consequence, Jordan did not have sufficient notice to safely exit the roadway before entering the tunnel. Therefore, the incident was determined to be nonpreventable. Petitioner contends in his Affidavit that Tommy Jordan delivered product to the wrong location which caused a mixture. Petitioner has only hearsay to support this contention. No evidence exists showing that such an incident occurred. Petitioner contends that Mr. Vaughn had a large spill at A.W. Herndon Convenience Store. Petitioner has no first-hand knowledge of this incident. Mr. Vaughn, Mr. Fernando, Mr. Berrios, Ms. Dinnes, and Mr. Cleyman state that a spill occurred; however, the amount spilled was not large, only two gallons. After a thorough investigation of this incident, the safety department determined that the spill was nonpreventable. The investigation showed that the spill was caused by a malfunctioning lock-down fitting, and that the size and severity of the spill was minimized by Mr. Vaughn's quick response. At hearing Petitioner presented evidence of some racial slurs in the workplace. In February, 1993, Petitioner testified that Ms. Dinnes told Tommy Jordan that she had to fire that nigger J.J. (John Jordan) because he is influencing that nigger Sheffield and that nigger McCoy. Again, Petitioner testified that he had no first-hand knowledge of this alleged incident. Petitioner learned of the comment from John Jordan. Ms. Dinnes and Tommy Jordan both state that no such statement was made by Mr. Dinnes. John Jordan testified that he overheard the statement. The statement was raised in John Jordan's charge of racial discrimination to FCHR against Respondent. However, the evidence showed that John Jordan was legitimately discharged for deliberately dumping hazardous material at the terminal. Around December 18, 1992, Tommy Jordan delivered product to Tyndall Air Force Base. A black sergeant had instructed Mr. Jordan to deliver the product differently than had been done before. After the sergeant walked away, Mr. Jordan stated in front of a white airman, "Who does that nigger think he is?" The airman informed the sergeant of Mr. Jordan's comment. Ms. Dinnes received a telephone call from the Air Force sergeant. He informed her of Tommy Jordan's conduct. Ms. Dinnes informed the sergeant that Mr. Jordan would be terminated immediately. The sergeant told Ms. Dinnes that he did not want Mr. Jordan to be discharged, but would be satisfied if he was never assigned to deliver product to the base again. Ms. Dinnes called Florida Rock's main office and believes she spoke with Bob Jackson, then president of Florida Rock. She informed him of the incident and the sergeant's desire. Both took the sergeant's request into consideration when making a decision regarding disciplinary action. Ms. Dinnes confronted Tommy Jordan about his conduct. He admitted he made the statement. She told him that he would be terminated immediately if he ever made such a comment again. Ms. Dinnes also told him that if it were not for the sergeant's request that he not be fired, he would have been discharged. Mr. Jordan did not use another racial slur in the workplace again. Mr. Jordan was not assigned to haul another load to Tyndall Air Force Base. Tommy Jordan was later terminated for accumulating too many points for safety violations. Numerous other minority and non-minority employees employed at the Panama City Terminal during 1991 through 1993 testified that they had never heard Ms. Dinnes or any other of Respondent's manager or supervisor make a derogatory comment based upon race. Mr. Harrison, a black driver, testified that the only derogatory comments relating to race he heard at the terminal from any employee of Respondent were made by Petitioner. Every time Petitioner "got a chance to get close to Harrison" since 1985, Mr. Harrison testified that he called him an "Uncle Tom" and a "bootie kisser" because Harrison refused to get "up in the white folks' face." Mr. Miller a black driver also testified that the only derogatory comments relating to race he heard at the terminal from Respondent's employee were made by Petitioner. Mr. Miller testified that Petitioner called him an "Uncle Tom," a "suck ass," and a "suck butt" because Petitioner said he "liked white people." When Mr. Miller asked Petitioner to stop calling him these names, Petitioner told Mr. Miller that he would "get a gun and shoot [him]." The record clearly indicates that use of racial slurs in the workplace were few and far between. Respondent's policy was to attempt to prohibit such conduct. The company president, Mr. Mabbett, personally investigated Petitioner's claims. In this case, the sporadic racial slurs which occurred are not a sufficient basis to infer an intent to discriminate against Respondent. The terminal manager of Whitaker Oil Company (Whitaker), Jerry Watkins, testified that he barred Petitioner for over two years beginning in late 1990 from hauling loads for Whitaker. Mr. Watkins decided to bar Petitioner after Petitioner said that he could deliver Whitaker loads any time he wanted. Mr. Watkins believed that Petitioner's attitude jeopardized Whitaker's reputation with its customers. Mr. Watkins testified that Whitaker's reputation was its most important asset. He also testified that Petitioner's race had nothing to do with his decision. Three drivers (all white) other than Petitioner also were barred by Mr. Watkins from hauling Whitaker loads during the more than 15 years he has been Whitaker's terminal manager. Only one of these three drivers was employed by Respondent. Pud Parker, a white driver, was barred by Mr. Watkins because he refused to clean his truck. During the time Mr. Parker was barred, Ms. Dinnes did not call Mr. Watkins attempting to have the prohibition lifted as she did for Petitioner. During the time Petitioner was barred, Ms. Dinnes contacted Mr. Watkins repeatedly asking him to allow Petitioner to haul Whitaker loads again. Mr. Watkins refused Ms. Dinnes' request. In defiance of Mr. Watkins' orders, Ms. Dinnes formulated a plan to permit Petitioner to haul Whitaker loads without Mr. Watkins' knowledge. Ms. Dinnes arranged to have Mr. Berrios and other drivers load tanker trailers for Petitioner. Mr. Berrios would go to the Whitaker terminal, load the tanker trailer, and bring it back to the Panama City Terminal where Petitioner would take over the transportation duties. Ms. Dinnes instituted this plan to permit Petitioner to earn a living during a time when business was slow. He had complained to her about not being able to make enough money to support his family. This practice continued until Mr. Watkins discovered that Petitioner was hauling Whitaker loads without his permission. When he found out, Mr. Watkins contacted Ms. Dinnes who admitted to him that she had arranged for Petitioner to haul Whitaker loads clandestinely. He directed Ms. Dinnes that Petitioner was barred from transporting any Whitaker loads until further notice. After approximately two years, Mr. Watkins decided to lift the ban. Petitioner had also been barred from hauling loads from the Chevron terminal. Again, Ms. Dinnes repeatedly attempted to have the prohibition lifted. After approximately two years, Petitioner was permitted to transport Chevron loads. Reports pertaining to the compensation of drivers at Respondent's Panama City Terminal from 1991 through 1996 show no discrimination toward black drivers in the area of compensation or load assignments. The compensation reports show that the drivers receiving the most compensation in 1991 were Petitioner and Michael Davis, both black drivers. For 1992, 1993 and 1994, Mr. Davis was the second most highly compensated driver. For 1995 and 1996, Mr. Davis was the most highly compensated driver. As discussed below with respect to Petitioner's disparate impact claim, an evaluation of driver discharges from 1990 to August 1997, shows no adverse effect on black drivers in terminations for safety violations. During this period, 18.7 percent of the drivers employed by Tank Lines were black and 74.4 percent were white. Of the drivers discharged for safety violations 18.9 percent were black and 77.5 percent were white. The percentage of white drivers terminated for safety violations actually exceeded the percentage of white drivers employed by the company. In comparison, the percentage of black drivers discharged for safety violations was nearly identical to the percentage of black drivers employed by Respondent. The undisputed evidence establishes that Respondent applied its safety policies equally to all drivers regardless of their race. A total of 20 white drivers were identified in the discovery process, where according to the safety manual, they could have received 12 points but received less points for creating or contributing to mixtures. With the exception of Roderick Miller, a black driver, all drivers receiving six points for a mixture. For each white driver that was assessed less than the minimum 12 points for the mixture, an explanation of "extenuating circumstances" was offered by Florida Rock to justify the assessment. The white drivers assessed less than the minimum 12 points for a mixture and the explanation for "extenuating circumstances" that justified the assessment of less points as testified to by Luc Cleyman, the safety director, is as follows: Dan Butow, a white driver at the Panama City terminal, along with James "Pud" Parker received six points on January 10, 1991. The citation issued described the incident as failed to check trailer and loaded on top. The safety department determined that extenuating circumstances existed. The investigation of the incident established that it was caused by a faulty internal valve which failed to open when the handle was pulled. Consequently, the drivers thought that the tanker trailer was empty because when they pulled the handle to open the valve to determine whether the tank was empty, no product came out of the pipe. The bucket test was performed. The tanker trailer used by Parker and Butow had to be repaired before it could be used to transport product again. Ms. Dinnes was directed by the safety department to assess six points against the driving records of Parker and Butow because it was felt the drivers should have recognized the odd feel of the cable when it was pulled and should have known something was wrong. However, it was not clear if the cable felt strange when it was pulled. James Parker, a white driver at the Panama City terminal, received six points. The citation issued described the incident as failed to check trailer and loaded on top. This is the same incident described above. Lane Corbin, a white driver at the Panama City terminal, failed to unload number 3 compartment of supreme gas and loaded 96 gallons of no lead gas on top of it in 1989. Mr. Cleyman advised he had no knowledge of any extenuating circumstances since it was prior to his time as safety director. Archie Trull, a white driver at the Panama City terminal, downgraded a product and blended mid-grade in August, 1991. He was given six points. The "extenuating circumstances" justifying the six points was because it was a blending error constituting driver error, not a mixture. The evidence showed that there is a difference between mixing or blending products to purposefully obtain a certain grade of product and the mixtures involved in this case. There is no category in the safety manual specifically referring to blending errors. The error falls in the general or other category of safety violations. A blending error typically results in the assessment of six points. Daniel Webb, a white driver at the Panama City terminal, received six points for a mixture on March 24, 1990. The "extenuating circumstances" justifying Mr. Webb receiving six points was because this was a training situation. Webb removed the tags which identified the product, the trainee mixed the product, and because there was some comparative negligence with him and the trainee, Roderick Miller (black), only six points were assessed. The incident occurred five days after Miller was hired. Miller was being trained by Webb at the time of the incident. Because Miller was a new driver in training at the time of the mixture, the safety department directed Ms. Dinnes to assess six points against both drivers. William White, a white driver at the Panama City terminal, brought back 595 gallons to the yard and did not completely unload the no-lead product in October, 1990. Six points were assessed because there was no indication of a mixture. Kenneth Albritton, a white driver at another terminal, received zero points for a spill. The original point assessment was voided. The "extenuating circumstances" justifying assessing zero points is unknown. Mr. Cleyman testified that to void points it must be deemed unpreventable. Barry Sanders, a white driver at another terminal, had a spill. The cause of the spill was an equipment malfunction because the drop pipe coupling was egg-shaped and did not fit the hose. Ricky Brannen, a white driver at another terminal, received six points for a mixture where he brought product back on the trailer and then loaded other product on top (no- lead on top of premium). Brannen four months earlier had a spill which was deemed preventable in which he got 12 points. If Brannen would have received 12 points for the mixture he would have been terminated. Mr. Cleyman was on vacation and did not have sufficient knowledge regarding the assessment. Rosemary Crossman, a white driver at another terminal, had a spill which was voided. The "extenuating circumstances" justifying zero points was because she was not properly trained and therefore, not able to "pump off". Lou Dostal, a white driver at the Atlanta terminal, was given 12 points for a spill in 1991. Ultimately, the 12 points were reduced to six points by Cleyman. However, Mr. Cleyman did not know the reasons for the reduction. James Garner, a white driver at the Ocoee terminal, had a mixture and received six points in 1991. The mixture resulted in an upgrade of fuel to a higher octane. There is no rationale set forth in the file. Cleyman believes that he spoke with the terminal manager or had some reason to give six points instead of 12. However, he could not recall the reason for the point assessment. Dennis Lee Hall, a white driver at the Albany terminal received six points for a mixture around July 1993. The six points was [sic] issued for failing to follow procedure which is less harsh than mixture. The point assessment was based on a conversation between Cleyman and the terminal manager. The terminal manager felt that no points should be assessed. The mixture occurred at a tank farm with confusing tanks and pipes. The driver simply hooked to the pipe he thought correct. However, he had traced the wrong connection. Ronnie Harrison, a white driver at the Tampa terminal, who initially received 12 points for a spill in November 1995. In January of 1996, Cleyman removed the points. Steve Cassell, regional manager, requested Cleyman take action on behalf of the driver based on a deceased terminal manager's alleged agreement. Before he died, Fred Tatum, the terminal manager, gave Mr. Harrison three days off, when no pay can be earned, and 12 points, but according to the driver, he intended that he would still get his safety bonus. In trying to honor the deceased terminal manager's alleged arrangements, Cleyman, two months after the incident, removed the 12 points and gave Harrison his safety bonus. Additionally, the tanks were not properly marked and the delivery was made to a commercial private account which controlled the delivery. Robert Holland, a white driver at the Tampa terminal, received three days off and six points for failure to unload all of the product at the site. No mixture was involved. Cleyman did not recall the incident in detail. Ray E. Kersey, a white driver at the Tampa terminal, received six points for a spill in March 1990. Cleyman cannot recall the reason for the six-point assessment because it was a difficult drop process at Respondent's terminal and Mr. Kersey could have received zero points. If Cleyman did not believe Kersey, he could have given him 12 points. Cleyman did not totally believe the narrative written by the driver accurately reflected what happened, but gave him the benefit of the doubt. Michael Koester, a white driver at the Atlanta terminal, received six points for a mixture in 1991. Chevron assumed responsibility for the occurrence because the tag and identification cover did not match. The tag was under muddy water and could not be seen. Mr. Mabbett and Cleyman deemed it unpreventable but still assessed six points. Kee Wayne Laurendine, a white driver at the Jacksonville terminal, received six points for a mixture in 1994. He dropped premium into no-lead fuel. Also, he cross-dropped a kerosene tank with diesel and received 12 points. On July 4th, thousands of people who had been watching fireworks, began to converge on the gas station where the driver was loading product. The people were flipping cigarettes, shooting off fireworks and sparklers, etc. Mr. Laurendine became excited, confused, tense and scared that he was going to be blown up. He made an error. Robert Remillard, a white driver at the Atlanta terminal, received six points for a mixture. Luc Cleyman stated that the "extenuating circumstances" were that unloading paint thinner in a tank containing only alcohol residue was not a mixture. Remillard received six points because he was supposed to check and see if the tank was clean and he failed to do so. He had been told the tank was clean. On August 15, 1990, Mr. Remillard wrote a narrative describing spilling product on the grass. Luc Cleyman offered no "extenuating circumstances". Elvin Roe, a white driver at the Ocoee terminal, received six points for a mixture in September 1990. Mr. Higgins, a vice president, was sent a memorandum to review the incident on September 23, 1990, for Mr. Roe. Mr. Bob Jackson and Mr Higgins agreed Roe should get six points rather than 12 points and Cleyman issued six points. An alternative disciplinary approach was proposed which included suspension, probation, and forfeiture of a yearly bonus. David Trimmel, a white driver at the Tampa terminal, received six points for failure to unload. There was no mixture. Trimmel also received only 12 points for a spill that he did not report, clean up, notify DEP or the fire department. Mr. Trimmel quit before he could be terminated by the terminal manager. After reviewing all of the above records, the record shows that each case turned on facts different from those of Mr. McCoy. Some were treated more harshly than hindsight would have warranted. Some were not. Insufficient facts were presented to show that the facts and circumstances were similar to those of Petitioner. No expert testimony was offered as to the validity of the sampling of employees or that these employees constituted a statistically significant group. Indeed if the exercise of judgment by management is the objectionable policy of Petitioner, then a larger sample constituting the entire safety program would be appropriate since the exercise of judgment is present throughout the company's disciplinary process. The only evidence presented in this regard was the statistical evidence presented by Respondent. That evidence did not demonstrate an adverse impact or treatment of Petitioner or other minorities. Petitioner's statistical evidence was not shown to be reliable or sufficiently valid. Therefore, the sample referenced above cannot form the basis for an inference of discriminatory intent or disparate impact. At the time of his termination on October 8, 1993, McCoy had earned $26,291.99 for approximately 40 weeks of work in 1993. Therefore, McCoy's annualized earnings in 1993 would have been approximately $34,000. In 1992, McCoy earned $30,254.28 from Florida Rock. In 1991, McCoy earned $26,549.38 from Florida Rock. Based on these earnings, McCoy's gross wages from Florida Rock increased in 1992 by 14 percent and in 1993 by 12.3 percent. Therefore, based on McCoy's increase from 1991-1993 and the exemplary models above, it is more than reasonable to assume that McCoy's earnings as a driver at Florida Rock would have continued to increase at a minimum of five percent per year. Florida Rock also provides significant fringe benefits to its employees that include health benefits, life, and accidental death insurance, dental insurance, profit sharing, a 401K deferred earning plan, disability benefits, holiday, and vacation days, a flexible spending account plan, and payroll taxes. According to Florida Rock, these employee benefits represent an "additional 40 percent of compensation" to Florida Rock's employees. Florida Rock's benefit plan is significantly better than the typical employer. At the time of his termination, Petitioner was 50 years of age. After Petitioner was terminated, he could not find comparable employment and filed for and received unemployment benefits. The State of Florida, Department of Labor, required Petitioner to make a "thorough and continued effort to obtain work" in order to receive unemployment compensation benefits. The Petitioner's family goal regarding his re- employment was for him to get a job in the Panama City area. Petitioner continued to look for employment with out- of-town employers that hired in the Panama City area so he would not be away from his family at night. He either was not hired by these employers, or in order to be considered for the positions, he was told he would have to relocate out of state. Petitioner's educational background was limited to high school and he had never received any specific education or training on job searches or job placement. Petitioner attempted to get retrained at Haney Vocational Technical School; however, the company, JTPA, went out of business. Despite not having the background or this knowledge, McCoy attended job fairs and sought training in the communications field from a friend (Robert Alford) who had been in the business for 18 years. Since Petitioner could not locate a truck-driving job similar to or of a like nature with his Florida Rock position, he decided after approximately five to six months to start his own lawn care and telephone communications business. Petitioner reasonably believed that both businesses could be very successful in the Panama City area. Because Petitioner had limited income after being terminated, he used his pension money from his Florida Rock 401K plan both for living expenses and for capital to start his businesses. Petitioner withdrew $102,556 of his 401K savings during this time. Petitioner's telephone communications business was very successful in the beginning. His first bid was accepted and a lucrative contract was obtained to install the phone system for a new hotel in Panama City. At the same time, while the communications business was just starting Petitioner continued to operate a lawn care business after having observed the financial success of others, including family members. Margie McCoy took care of all of the bills and invoices associated with the businesses, as well as provided the information to the accountant for the preparation of the income tax returns. At times, Petitioner's lawn care business was seasonal, but for each season, McCoy would provide different types of services for his client as opposed to not working at all. There was at lease one six-month period in which McCoy could not work because he had a stroke on March 21, 1995. There was no credible evidence that Petitioner's stroke or high blood pressure was caused by his termination from Florida Rock. Petitioner's high blood pressure did contribute to his stroke. However, Petitioner demonstrated symptoms of elevated blood pressure prior to his discharge from Florida Rock. Notwithstanding his health restrictions, Petitioner continued to try to make his lawn care and telephone businesses successful. Petitioner would work in the sun trying to make the lawn care business successful in violation of his doctor's orders. Petitioner's earnings/losses from his communications and lawn care businesses are as follows: 1994 - $878; 1995 - $6,722; 1996 - $7,055; 1997 - $739; 1998 - $1,689. Petitioner currently works for the Bay County School Board driving a school bus. He was hired in 1998. He continues to work his lawn care and communications businesses. He took a night class to become certified as a bus driver, while at the same time operating his lawn care business during the day. The evidence did not show that Petitioner is currently physically able to work for Florida Rock because his blood pressure was not under control as late as January 2000. Therefore reinstatement would not be appropriate. Petitioner earned $7,086 as a school bus driver in 1998, and $12,554.89 in 1999. Based on the circumstances presented to Petitioner after he was terminated from Florida Rock in October 1993, Petitioner used reasonable efforts to seek employment of a like nature compared to his driver's position at Florida Rock. Also, he used reasonable efforts to earn income by starting his own businesses. Following his stroke, McCoy continued to use reasonable efforts to obtain a bus driver position with the Bay County School Board that provided insurance benefits, while at the same time, continuing to operate his lawn care business. There is no indication that Petitioner failed to use reasonable efforts to earn income following his termination from Florida Rock. Moreover, Petitioner's pension/401K savings of $102,556 that was lost and used to start the businesses and for living expenses (as well as additional amounts that would have been contributed to the 401K plan), would have continued to grow and compound during this period. Petitioner's damages from lost earnings and benefits, lost earnings on his 401K plan (assuming 10 percent simple interest), and total back pay damages less mitigated earning from October 1993 to the present is as follows: Date Lost Wages Lost Benefits (40%) Lost Earnings To 401K2 Less Mitigated Earnings Total Loss Oct. 93- Dec 93 $8,000 $3,200 $10,255 $11,200 1994 $35,700 $14,280 $10,255 <$4,250> (unemploy -ment) $55,985 1995 $37,485 $14,994 $10,255 0 $62,734 1996 $39,359 $15,743 $10,255 0 $65,357 1997 $41,327 $16,530 $10,255 <$739> $67,373 1998 $43,393 $17,357 $10,255 <$7,086> $63,919 1999 $45,562 $18,224 $10,255 <$12,554> $61,487 Jan. 00- Sept. 00 $35,880 $14,352 $7,691 <$9,415> $48,508 401K Withdrawal $102,556 Total Back Pay Damages $539,119 However, Petitioner's damages would have terminated upon his stroke in March 1995. At that time, Petitioner was no longer qualified for employment with Respondent due to his uncontrolled high blood pressure. However, Petitioner would have received $5500.00 in disability benefits because of his stroke.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a Final Order finding Respondent not guilty of committing an unlawful employment practice and dismissing the Petition For Relief. DONE AND ENTERED this 9th day of November, 2000, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 2000. COPIES FURNISHED: Davisson F. Dunlap, Jr., Esquire Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A. Post Office Drawer 190 Tallahassee, Florida 32302-0190 John P. McAdams, Esquire Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A. Post Office Box 3239 Tampa, Florida 33601 Harriett W. Williams Esquire Henry, Buchanan, Hudson, Suber & Carter, P.A. Post Office Drawer 1049 Tallahassee, Florida 32302 J. Steven Carter, Esquire Henry, Buchanan, Hudson, Suber & Williams, P.A. Post Office Drawer 1049 Tallahassee, Florida 32302 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether Respondent committed the unlawful employment practice alleged in the Employment Complaint of Discrimination filed with the Florida Commission on Human Relations (FCHR) and, if so, the appropriate relief for such action.
Findings Of Fact For purposes of this case, the Petitioner began his employment with the Respondent in July of 2007. Although the Petitioner had worked for the Respondent in prior years (at another location), he had voluntarily left the company to pursue other opportunities. When the Petitioner returned to employment with the Respondent in connection with this case, it was ten years after a heart transplant. At the time of hiring, the Respondent knew the Petitioner's medical condition and age. The Petitioner is approximately 61 years of age. The Respondent is a national corporation with several sites for engineering and manufacture of its products. The Respondent is an equal opportunity employer and maintains policies prohibiting unlawful discrimination. One of the Respondent's facilities, Sykes Creek, is located in Brevard County, Florida. The Petitioner was hired to work at the Sykes Creek facility in the role of engineering supervisor. The Sykes Creek site builds luxury power yachts ranging from 50–to-60 feet in length. The price of these yachts runs from approximately $900,000 to $2,000,000 each. Typically, the yacht is ordered and customized to the buyer's specification. The Petitioner was responsible for supervising and directing work at Sykes Creek and reported to Kevin Shaw, his immediate supervisor. Mr. Shaw in turn reported to the plant manager, Steven Fielder. The Petitioner reviewed the work and attendance of approximately 21 hourly employees. When the Petitioner was hired (2007), the Sykes Creek facility produced 116 yachts and employed approximately 575 people. Within the Petitioner's department (engineering) there were 26 people; four others like Petitioner were salaried employees. The economic crunch that struck most of the nation drastically reduced the Respondent's business. In 2008 the Respondent instituted unpaid furloughs and layoffs due to the lack of business. By 2009 the economic condition in the industry had not improved. Accordingly, the Respondent had to make additional cuts to its staff. To that end, Mr. Fielder advised Mr. Shaw that the Petitioner's department would have to be cut to reduce the number of hourly employees and one salaried employee. To determine who should be cut, the Respondent looked to the number of years of service with the company and the skill set/education they provided for the facility. The Petitioner had the shortest length of service with the Respondent except for an employee named Julie Halesma. That person was not chosen for lay-off because she was a credentialed industrial engineer. The Petitioner did not have those credentials. The Petitioner was not offered a lower, hourly paid position because he did not have the skill set to perform the work as well as the hourly employees who were already doing the jobs. A number of employees were laid off the same day the Petitioner was dismissed. The Petitioner's job position was eliminated and has not, as of the date of hearing, been restored. The Respondent has continued to lay off workers. In 2009 the Sykes Creek facility was down to 175 employees. The engineering department was down to 15 people. Absent a return to more prosperous times, it is not expected that the facility will be able to rehire employees. The job tasks that the Petitioner performed are now shared by other employees at the facility. Throughout his time at the Sykes Creek facility, the Petitioner was allowed to take time off as needed to attend to medical issues. Based upon the frequency of the medical leave, the Respondent knew or should have known that the Petitioner's medical condition required monthly treatment. The extent of the medical treatment, however, was unknown to the Respondent. As a salaried employee the Petitioner did not have to "punch the clock." The Respondent allowed the Petitioner to complete his work as he might dictate so that he was free to leave the facility to attend to his medical needs. Clearly, the Respondent knew the Petitioner had had the heart transplant at the time of hiring but that medical condition did not impede the Petitioner's ability to perform his job assignments. The medical situation required that he be absent, but there is no indication that Petitioner could not perform his job. The cost of the Petitioner's medical care was unknown to the persons charged with making the lay-off decisions. The cost of the Petitioner's medical care played no part in the decision to eliminate the Petitioner's job. Similarly, the Petitioner's age did not play a part of the Respondent's decision to eliminate the Petitioner's job. The Respondent articulated legitimate business reasons for eliminating the Petitioner's job position. Clearly the Respondent knew of the Petitioner's age at the time of hiring. The Respondent did not replace the Petitioner with a younger employee. The Respondent's explanation for whom it chose to retain in employment was not based upon an employee's age but rather legitimate business interests. Episodes during which the Petitioner required medical attention at the facility did not rise to a level to cause the Respondent to be concerned for Petitioner's medical well-being. Incidents of the Petitioner being light headed or with low blood sugar did not cause the Respondent to seek to eliminate the Petitioner's job position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding no cause for an unlawful employment practice as alleged by the Petitioner, and dismissing his employment discrimination complaint. DONE AND ENTERED this 9th day of March, 2009, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 2009. COPIES FURNISHED: Rolf J. Bierman 1035 Palmer Road Rockledge, Florida 32955 Brian W. Koji, Esquire Bona M. Kim, Esquire Allen, Norton & Blue, P.A. 324 South Hyde Park Avenue, Suite 225 Tampa, Florida 33606 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent engaged in unlawful employment practices with regard to Petitioner.
Findings Of Fact Graham is a black male. He filed an employment application with Pier 1, a "chain retailer," on August 23, 1999. The application indicated that he applied for a position as a sales associate but in fact he was to be employed as a stockroom assistant. His employment application included a block denominated, "Work Availability." Graham completed this block indicating that he was available to work between 6:00 a.m., and 12 p.m., Monday through Saturday. The employment application stated in the block denominated, "Work Availability," the following: "Although an effort will be made to accommodate individual work schedule preferences and availability, work schedules such as start time, number of daily or weekly hours and assigned work days are subject to change at any time. Availability to work on weekends is required. Number of hours may vary based on business necessity and could change an individual's employment status." Graham was hired on August 30, 1999, as a full-time employee. He worked primarily in the back stockroom. A meeting of store personnel was scheduled at the store on Sunday, November 17, 1999, at 6:30 p.m. Graham was aware of the meeting. He was 20 minutes late because he was participating in a church service at Macedonia Primitive Baptist Church. As a result of his tardiness he was presented with an Associate Corrective Action Documentation, which is a confidential Pier 1 form. The form noted that this was his first "tardy." The form as completed took no action such as suspension or loss of pay. It merely informed him that further instances of tardiness could lead to disciplinary action. Graham testified that he was treated differently from a white woman employee, one Christy Musselwhite, who did not attend the meeting, because Musselwhite did not receive a counseling form. However, Graham's personal knowledge of Musselwhite's situation was insufficient to demonstrate that Musselwhite was treated differently from Graham because of race or gender. Graham felt humiliated because he received the Associate Corrective Action Documentation form. Graham resigned from Pier 1 effective November 12, 1999, so that he could begin employment with the Florida Department of Children and Family Services at a rate of pay in excess of that which he received at Pier 1.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission Human Relations enter a final dismissing Petitioner's claim of discrimination. DONE AND ENTERED this 15th day of November, 2001, in Tallahassee, Leon County, Florida. HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 2001. COPIES FURNISHED: Russell D. Cawyer, Esquire Kelly, Hart & Hallman 201 Main Street, Suite 2500 Fort Worth, Texas 76102 Kenneth Terrell Graham 2811 Herring Drive Tallahassee, Florida 32303-2511 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Ronni Morrison Pier 1 Imports Post Office Box 961020 Fort Worth, Texas 76161-0020
