The Issue Whether Respondent Employer is guilty of an unlawful employment practice against Petitioner Employee.
Findings Of Fact On or about November 17, 2006, Petitioner filed an Employment Complaint of Discrimination (formerly known as a "Charge of Discrimination") on the basis of disability/handicap and national origin with the Florida Commission on Human Relations. On June 15, 2007, the Commission entered a Determination: No Cause. On or about July 2, 2007, Petitioner filed a Petition for Relief with the Commission. On or about July 5, 2007, this case was referred by the Commission to the Division of Administrative Hearings. On July 18, 2007, a telephonic conference was held to schedule a final disputed-fact hearing date. The hearing date agreed upon was October 1, 2007, and a Notice of Hearing and Order of Pre-hearing Instructions issued on July 18, 2007. Neither party complied with the Order of Pre-hearing Instructions. At the time noticed for October 1, 2007, Respondent appeared for hearing. In the Joint Response to Initial Order, filed July 16, 2007, and in a subsequent Motion filed September 26, 2007, Respondent referred to itself as "Wal-Mart Stores, East L.P. (incorrectly referred-to in the caption as Wal-Mart Stores)," but made no motion to correct the style of this cause. Respondent acknowledged in its pleadings, and its counsel acknowledged orally at hearing, that it was the appropriate Respondent in this cause, regardless of the case's style. After waiting 30 minutes, Petitioner still had not appeared for hearing. The undersigned made diligent inquiry to ensure that Respondent had done nothing to discourage Petitioner from appearing, and closed the hearing.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Employment Complaint of Discrimination and a Petition for Relief. DONE AND ENTERED this 3rd day of October, 2007, in Tallahassee, Leon County, Florida. S ___ ELLA JANE P. DAVIS 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 3rd day of October, 2007. COPIES FURNISHED: Cecil Howard, 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 Amy Harrison, Esquire Lindsay A. Connor, Esquire Ford & Harrison 225 Water Street, Suite 710 Jacksonville, Florida 32202 Catrina Soriano 1826 Nekoma Court Tallahassee, Florida 32304
The Issue Whether Petitioner was the subject of an unlawful employment practice as defined in Chapter 760, Florida Statutes.
Findings Of Fact On April 10, 1989, Petitioner, Mark Cleveland, a male, applied through Job Service of Florida, for employment as a telemarketer with Respondent, Sears Roebuck and Company at the Sears store located in Pensacola, Florida. Petitioner had several years of sales experience with at least six months of experience in telemarketing. He also had a good speaking voice as evidenced by the fact that he is currently employed as a disc jockey at a local radio station. Clearly, Respondent was qualified for the telemarketing position. The telemarketer position would enable Petitioner to earn approximately $85.00 a week or $365.50 a month. The telemarketing section at the Pensacola Sears store consisted of virtually all women with perhaps three or four rare male telemarketers. Petitioner had two separate interviews with two different Sears employees responsible for filling the telemarketing positions. During the Petitioner's interviews with the two Sears employees, Petitioner was repeatedly questioned on whether he could work with all women or mostly all women and be supervised by women. Petitioner assured his interviewers that he could since he grew up with six sisters and in general liked working with women. Petitioner left the interview with the information that he would be hired after another supervisor reviewed the applications and that he would be called once the supervisor's review was complete. After several days, Petitioner, being excited about what he thought was going to be his new job, called one of the two women who interviewed him. He was informed that the telemarketing positions had been filled. Later that same day Petitioner discovered that the positions had, in fact, not been filled and that he had been told an untruth. The telemarketing positions were eventually filled by women. Petitioner remained out of work for approximately four months before he was hired as a telemarketer by the Pensacola News Journal. A Notice of Assignment and Order was issued on August 27, 1991, giving the parties an opportunity to provide the undersigned with suggested dates and a suggested place for the formal hearing. The information was to be provided within ten days of the date of the Notice. This Notice was sent by United States mail to the Respondent at the address listed in the Petition for Relief. Respondent did not respond to the Notice. On October 10, 1991, a Notice of Hearing was issued setting the formal hearing for 11:00 a.m., September 11, 1990. The location of the hearing was listed in the Notice. The Notice of Hearing was sent by United States mail to the Respondent at the address listed in the Petition for Relief. Respondent's address and acknowledgment of this litigation was confirmed when Respondent filed its answer to the Petition for Relief with the Division of Administrative Hearings. Even though Respondent received adequate notice of the hearing in this matter, the Respondent did not appear at the place set for the formal hearing at the date and time specified on the Notice of Hearing. The Petitioner was present at the hearing. The Respondent did not request a continuance of the formal hearing or notify the undersigned that it would not be able to appear at the formal hearing. After waiting fifteen minutes for the Respondent to appear, the hearing was commenced. As a consequence of Respondent's failure to appear, no evidence rebutting Petitioner's facts were introduced into evidence at the hearing and specifically no evidence of a nondiscriminatory purpose was introduced at the hearing. 1/ Petitioner has established a prima facie case of discrimination based on his sex, given the fact that Sears tried to mislead him into believing the telemarketing positions had been filled when they had not, the positions were all eventually filled by women and Sears' clear concern over Petitioner's ability to work with women. Such facts lead to the reasonable inference that Sears was engaging in an unlawful employment practice based on Respondent being a male, a protected class, in order to preserve a female work force in telemarketing. Such discrimination based on sex is prohibited under Chapter 760, Florida Statutes, and Petitioner is entitled to relief from that discrimination.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Commission enter a final order finding Petitioner was the subject of an illegal employment practice and awarding Petitioner $1,462.00 in backpay plus reasonable costs of $100.95 and an attorney's fee of $2,550.00. RECOMMENDED this 30th day of March, 1992, in Tallahassee, Florida. DIANE CLEAVINGER 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 30th day of April, 1992.
The Issue Did Respondents violate Florida Administrative Code Rules 64E-6.010(5) and (7) by dumping untreated septage (untreated septic tank waste) onto the ground, instead of transporting it to an approved treatment facility? Did Respondents commit gross negligence, incompetence, and/or misconduct by dumping untreated septage onto the ground in violation of rule 64E-6.022(1)(n)? Did Respondents create a sanitary nuisance, exposing human and animal life to untreated human waste and endangering the public's health and safety by dumping untreated septage onto the ground in violation of rule 64E-6.022(1)(q)? If Respondents committed any of the offenses described above, what penalties should be imposed?
Findings Of Fact Mr. Casanova is a registered septic tank contractor, registration no. SR0041469. Mr. Casanova is the qualifying registered septic tank contractor for Busy Bee Septic, Inc. Mr. Casanova is authorized to provide septic tank contracting services through Busy Bee Septic, Inc., authorization no. SA0041225. Permit no. 36-QA-29343, issued by Lee County Health Department, authorizes Busy Bee to provide septage collection and disposal services. The permit authorizes Busy Bee to pump out septic tanks and transport septage collected from the tanks to an authorized disposal site. The permit does not authorize treatment of septage. It also requires Busy Bee to dispose of the septage at a permitted wastewater treatment facility. Carlos Casanova and Busy Bee are authorized to, and have provided, septic tank contractor services in Lee, Charlotte, and Collier Counties. The business operates 24 hours a day, seven days a week. Mr. Casanova and Busy Bee own and operate three 4,000-gallon septage collection trucks. Each truck has a passenger cab with a large tank behind it. Mr. Casanova delegates most field work to four male Busy Bee employees. Field work includes pumping septic tank contents into the trucks' tanks and transporting the septage to proper storage and disposal sites. Busy Bee is authorized to dispose of septage at Crews Environmental and Charlotte County Utility. On June 15, 2012, at approximately 10:45 p.m., a Busy Bee truck parked pointing east on the north side of Jacaranda Boulevard in Cape Coral, Lee County, Florida. Individuals with the truck ran a hose from the truck's tank into the wooded area beside Jacaranda Boulevard and discharged untreated septage into the wooded area through the hose. This is an area of palmetto and pine woods, with sandy soil. The water table lies about two feet below the surface. The next day the area where the contents of the Busy Bee truck had been discharged smelled strongly of sewage. Sewage sludge and bits of toilet paper were visible on the ground and palmetto fronds, along with marks in the dirt where the hose discharging the septage from the tanks had lain. Four days later, the 20-by-30-foot wooded area where the Busy Bee truck pumped out septage was still saturated with sewage and sludge. Traces of toilet paper remained, and the area still smelled of sewage. The hose marks remained also. The Busy Bee truck had discharged approximately 3000 gallons of septage into the area. The septage was soaking down through the sandy, porous soil to the groundwater. Septage discharged like this is a sanitary nuisance dangerous to human and animal life. It exposes animals and humans to pathogenic viruses. Eye witness testimony and photographs clearly and convincingly establish the presence of septage in the area alongside Jacaranda Boulevard. The same is true of the marks showing hoses had been run from the edge of the road to the area where the truck discharged the septage. The fact that a Busy Bee truck discharged septage onto the ground beside Jacaranda Boulevard the night of June 15, 2012, is also established by clear and convincing evidence. The evidence includes the very credible testimony of John Hendrick. The testimony of Laurie Hendrick corroborates his testimony. So, too, did photographs of the area where the septage was dumped and photographs of Busy Bee trucks. On June 15, 2012, Mr. and Ms. Hendrick were taking an evening drive in the area, which is close to their home, as was their custom. They both saw the truck when they first passed it. At that time, the truck was turning around on a side street. Mr. Hendrick was concerned when he saw the truck in a lightly populated residential area surrounded by wetlands. For this reason he drove past it again at the end of their drive to observe what the truck was doing and identify the name on the company's truck. Mr. Hendrick focused on identifying the truck by reading the name painted on it. The name Busy Bee was prominently displayed on the truck. Mr. Hendrick's testimony that Busy Bee was the name on the truck is credible, clear, and convincing for a number of reasons. He was paying close attention and concentrating on the name on the truck. Mr. Hendrick took the time needed to make sure he read the name. He slowed to 25 miles per hour to make sure that he could read the name. Although it was an evening, it was a summer evening, and there was enough light, especially with the aid of the car headlights. Mr. Hendrick's memory is clear and is his own. No one suggested the name Busy Bee to him. His emails the next day, trying to draw the authorities' attention to the septage discharge, identified the truck as a Busy Bee truck. Mr. Hendrick is also a trained observer. Before retiring, he worked 18-to-20 years in an emergency room where careful observation is an important skill. There is no indication that Mr. Hendrick's eyesight is impaired. Mr. Casanova argues that Mr. Hendrick's eyesight is deficient, because Mr. Hendrick had not had his eyes tested in three years. No evidence establishes that a person whose eyesight has not been tested in three years presumptively has impaired vision. Mr. Casanova also argues that because Mr. Hendrick expressed some uncertainty about the color scheme of the truck, his testimony about the name on the truck should be discounted. The argument is not persuasive. Mr. Hendrick focused on the name on the truck to make sure he could identify it. His memory of that focused observation is persuasive. Mr. Casanova's efforts to create the impression that Mr. Hendrick may have observed a truck of a septic tank contractor in Collier County with the name Beebe Septic were not persuasive for a number of reasons. The reasons include the fact that the Beebe name is not painted on the trucks and the fact that nothing in the name Beebe Septic resembles the "Busy" in Busy Bee. Mr. Casanova's other efforts to undermine the testimony of Mr. Hendrick are equally unpersuasive. Clear and convincing evidence proved that on the night of June 15, 2012, individuals operating a Busy Bee truck pumped untreated septage onto the ground adjacent to Jacaranda Boulevard in Cape Coral, Florida. The odor, the presence of toilet paper, the physical characteristics of the sludge, and the fact that the Busy Bee trucks were designed and permitted for transporting untreated septage establishes by clear and convincing evidence that the septage was untreated. The Department of Health has taken disciplinary action against Carlos Casanova three times in matters resolved by settlement agreements. The agreements expressly provide for consideration of them in subsequent disciplinary actions. On February 13, 2012, the Department entered Final Order No. DOH-12-0251-FOI-HST against Carlos Casanova imposing an administrative fine in the amount of $1,000.00 to resolve charges filed October 6, 2011. On February 13, 2012, the Department entered Final Order No. DOH-12-0252-FOI-HST against Carlos Casanova imposing an administrative fine in the amount of $1,000.00 to resolve charges filed on November 18, 2011. Finally, on February 13, 2012, the Department entered Final Order No. DOH-12-0253-FOI-HST against Carlos Casanova imposing a fine in the amount of $1,500 to resolve charges filed September 14, 2011.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order revoking the septage collection and disposal permits of Petitioners, Carlos M. Casanova and Busy Bee Septic, Inc., and revoking the septic tank contractor registration of Carlos M. Casanova. DONE AND ENTERED this 13th day of February, 2013, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 13th day of February, 2013.
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
Findings Of Fact Air Comfort Services, Inc. (ACS) was a subcontractor on state construction project No. BR-729, an extension of the Administrative Support Service Complex on the campus of the University of West Florida at Pensacola. The general contractor on the project was Samuel R. Sharpe, Inc. (Sharpe) Petitioner spent 248 hours on this job as an employee of ACS, between September 13, 1978, and January 24, 1979. After petitioner submitted his affidavit, Jack C. Coons, an administrator employed by the Department of General Services, directed Harrel Bolden, the project manager, to withhold $2,530.30 from the general contractor, pending resolution of the dispute between petitioner and ACS. ACS was also a subcontractor on state construction project No. BR-725, the Educational Research and Development Center at the University of West Florida. The general contractor on this project was Greenhut Construction Company, Inc. (Greenhut). Petitioner spent 176 hours on this job as an employee of ACS, between October 4, 1978, and November 22, 1978. After petitioner filed his affidavit, Jack C. Coons directed Harrel Bolden to withhold $590.24 from the general contractor, pending resolution of the dispute between petitioner and ACS. Petitioner is a certified welder. On the Sharpe job, he worked with other welders and pipefitters, putting in water lines. On November 26, 1978, the excavations for the pipes were first dug. Petitioner himself spent about five hours using a shovel to dig for pipes. Petitioner, who is not a certified pipe fitter, helped fit pipe together, and welded the joints, once everything was in place. In all, there were some 79 four inch pipe joints and 111 two inch pipe joints on the Sharp job water lines. Petitioner also helped a plumber put in other plumbing lines and assisted with the installation of piping for the air conditioning system. He silver soldered the copper pipe joints, and put in cast iron pipe for rain leaders. Petitioner performed similar tasks on the Greenhut job, including welding joints on about 1,020 feet of pipe with 1 1/2" and 2" diameters laid in double random lengths, and welding at least 8 joints of pipe with a four inch diameter. A welder can weld 20 four inch pipe joints or 30 two inch pipe joints in an eight hour day. Petitioner was initially paid at the rate of $6.00 per hour. Beginning in January of 1979, he was paid at the rate of $6.76 per hour. He was paid at the higher rate for 60 of the 248 hours he worked on the Sharpe job. Both the Greenhut and Sharpe jobs involved contracts in excess of $5,000.00.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner be paid $1,825.25. That Greenhut be paid nothing. That Sharpe be paid $1,295.29. DONE and ENTERED this 28th day of August, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Mr. Donald A. Lowery 7706 Gadsden Street Pensacola, Florida 32506 Sharpe, Inc. Post Office Box 107 Pensacola, Florida 32591 Greenhut Construction Co., Inc. Post Office Box 12603 Pensacola, Florida 32576 Lucian H. Morgan 5503 East Shore Drive Pensacola, Florida Mr. Luther Moore Department of Labor and Employment Security Room 205, Ashley Building 1321 Executive Center Drive East Tallahassee, Florida 32301 Air Comfort Services, Inc. 315 South A Street Pensacola, Florida
The Issue Whether, as alleged, Respondent, International Paper Company, violated the Human Rights Act of 1977, by discharging Petitioner from employment because of his race or color, and, if so, the affirmative relief which should be granted.
Findings Of Fact Petitioner, a twenty-five year old black male, was hired as a general laborer by the Company on August 4, 1972, and continued in the Company's employment until his discharge on August 28, 1978. During the course of his employment, Petitioner worked at the Company's Panama City pulp and paper mill as a laborer, power plant utility man, turbine operator, assistant water treatment plant operator, and finally, as a power plant tender. Each new job assignment was a promotion and was accompanied by a salary increase. At the time of his discharge by the Company, Petitioner was employed as a power plant tender, and received $9.08 per hour. (Testimony of Petitioner, P.E. 2, 4, 5, 6,) Petitioner's Performance Record During his six years of employment with the Company, Petitioner's work performance was periodically reviewed every six months by this supervisors through completion of an Employee Performance Review Form. His performance records reflect that his work performance was marginally satisfactory, generally meeting minimum Company standards, although falling below average in several areas. He was frequently characterized by his supervisors as an individual who was lazy, laced initiative, needed frequent reminders to do his work, and not dependably present at his work station. His last periodic performance evaluation, dated April 6, 1978, noted that his performance, after two and one half years on the job, had not improved, and that he "must improve his performance during the next period." (P.E. 9) The Petitioner's reactions, during the counseling session on that performance review, were characterized by his supervisor as "passive-unconcerned." Id. (Testimony of Petitioner, P.E. 8, 9) Petitioner's Disciplinary Record Prior to Discharge During his employment with the Company, and prior to the final infraction resulting in his discharge, Petitioner was subject to disciplinary actions by the Company on five separate occasions. Each disciplinary action was evidenced by an Employee Warning Record completed by the Petitioner's foreman at, or near, the time of the infractions. The first three disciplinary infractions occurred on July 8, 1974, January 14, 1976, and May 20, 1977. Each infraction involved defective work performance by Petitioner, or his failure to follow proper work and safety procedures. In each case, the Company action consisted of reprimanding the Petitioner, and warning him that further occurrences of such nature could result in stronger or more serious disciplinary action. (R.E.2) The next disciplinary infraction by Petitioner occurred during May, 1977. Petitioner had been counseled on four separate occasions during the work week beginning May 22, 1977, for being absent fro his area of responsibility, and not answering his calls. On May 27, 1977, he was again reminded of the importance of being in his assigned work area so that he could hear calls and immediately respond. Later that day, Petitioner was told to go to the fourth floor and stand by for a call to start the load burners. When he was later called from the control room, Petitioner did not respond. Upon checking, the shift foreman found him sitting on the fourth floor porch. The pertinent Employee Warning Record concluded: "Communication is a critical part of the Power Plant, and it has been reemphasized to Smith that he must be in the area where he can hear his calls and respond. He understands that a recurrence of this nature will result in more severe disciplinary action." (R.E. 2) On July 7, 1978, Petitioner, without authorization, used a company telephone to make personal long-distance calls at Company expense. In lieu of discharge, the Petitioner was lid off for fourteen working days, and required to reimburse the Company for the telephone charges connected with his calls. The Company expressly informed Petitioner that "further acts of neglect of duty and/or improper use of telephones will be considered as cause for discharge". (R.E. 2) Petitioner's Discharge for Repeated Acts of Neglect of Duty Since 1973, the Petitioner performed various jobs working in the company power plant which furnishes essential power to its Panama City pulp and paper mill. The mill is dependent upon the power plant for its electrical power - a ten minute interruption of power would require the mill to shut down production. Because of the sustained steam pressure, high temperature conditions, and the possibility of ruptured valves and pipes, work at the power plant can be both dangerous and difficult. Power plant workers must be able to respond immediately and effectively to the exigencies associated with operating the plant, and take remedial action. (Testimony of Weathers, Daniels, P.E. 8 and 9) On August 16, 1978, Petitioner worked as a power tender at the mill power plant during the 11:00 P.M. - 7:00 A.M. shift. He became overheated while working in the cinder pit area and asked for and received permission to take a break to "cool-off." Ten to fifteen minute breaks for such purposes were normally authorized at the plant, since no regular lunch hour or breaks were specified during the production workers' eight hour shift. Production workers, such as Petitioner, were required, however, to be on duty, i.e., within the work area or responsive to calls, at all times during their eight hour shifts. (Testimony of Weathers, Daniels, Petitioner) Upon receiving permission to take a break, Petitioner proceeded to the porch and then to the No. 5 men's bathroom. After Petitioner remained absent for twenty - twenty-five minutes, his lead worker, E. J. Weathers became concerned and sought to locate him by calling the control room, and repeatedly paging him on the house loudspeaker system. That system has loudspeakers located throughout the work area, including the bathrooms. (Testimony of Petitioner, Weathers) After Petitioner failed to respond to Weathers' efforts to locate him, Weathers called and reported the Petitioner's absence to his shift supervisor, Marion Daniels. Daniels told him to search for and locate the Petitioner. Five minutes later, Weathers located the Petitioner asleep, seated on the toilet, located in the first stall in the men's bathroom. Weathers, then, reported the incident to Daniels, without waking Petitioner, because Weathers had previously told him not to wake Petitioner if he were found sleeping. Daniels came immediately to the bathroom, where Petitioner remained seated on the toilet, asleep, with his head down, eyes closed, and pants down around his ankles. Daniels called out Petitioner's name, and shined a flashlight in his face - but Petitioner did not respond. Finally, Daniels turned up the squelch volume on his radio, and Petitioner awoke. Petitioner denied he had been sleeping. Approximately thirty - thirty-five minutes elapsed between the commencement of Petitioner's "cooling-off" break, and the awakening of him from his sleep. (Testimony of Weathers, Daniels and Petitioner) Daniels, then, filed a report on the incident with the power plant supervisor. The next day, the superintendent told Petitioner that he would be discharged and informed him of his appeal rights. On August 19, 1978, a meeting was held between the mill manager, union representatives, and Petitioner to discuss the incident. At the close of the meeting, the Petitioner was advised by the mill manager that he was "layed [sic] off until further investigation." On August 25, 1978, Petitioner was informed, in writing, by the mill manager that he was discharged from employment, effective August 22, 1978, for "repeated acts of neglect of duty." (Testimony of Petitioner, P.E. 12) Grounds for Discharge Under Labor Agreement Petitioner's discharge from employment was subject to a Labor Agreement between the Company and two labor unions represented at the Panama City mill. The Agreement lists fifteen specific grounds for the discharge of mill employees. The grounds are not necessarily mutually exclusive, and include, without further elaboration, "neglect of duty," and "deliberate sleeping on duty." An employee's previous disciplinary record may be considered in determining the appropriate disciplinary action, but; "[w]hen an Employee has received no disciplinary action for a period of one year, prior disciplinary warnings for minor offenses will not be used against him." (P.E. 1) (Testimony of Daniels) Several of the more specific grounds listed for discharge, such as "deliberate sleeping on duty," are interpreted by the Company's management as falling within the more general ground for discharge - "neglect of duty." An employee can be discharged for one or more of the grounds which apply to a given factual situation. (Testimony of Daniels) Company's Disciplinary Action Against Caucasian Mill Workers On July 7, 1978, Michael Dewberry, a white male employee, improperly used Company telephones to make long-distance personal calls at the Company's expense. As with Petitioner, he was laid off for fourteen days, required to reimburse the Company, and warned that further acts of neglect of duty or improper use of telephones would be grounds for discharge. He did not subsequently neglect his duty or improperly use the telephones. (Testimony of Petitioner, P.E. 17) Bill O'Neal, a white male employee, was laid off on June 24, 1976, for being under the influence of alcohol. He was given a thirty-day leave of absence with the understanding that he would make a good faith effort at rehabilitation, and expressly warned that future misconduct of such nature would be considered as grounds for discharge. On September 9, 1976, O'Neal was, again, disciplined for reporting to work under the influence of alcohol. Instead of being discharged, O'Neal was suspended from work, and advised that reinstatement would be considered only after he provided proof of having received professional assistance. (P.E. 20) Edward Demers, a white male employee, was disciplined for numerous infractions. On January 1, 1978, Demers was reprimanded for pulling a knife in an argument with another employee; on March 14, 1978, and June 16, 1978, he was reprimanded for reporting late to work, and not reporting prior to the start of his shift, respectively; on June 27, 1978, he was reprimanded for being uncooperative with fellow workers, inattentive to instructions, slow in performing his duties, and making personal telephone calls; and, on August 25, 1978, he was suspended from work for seven working days for defective work, and warned that neglect of such magnitude would not be tolerated and recurrence would result in "the most severe disciplinary action." Occasionally, however, Demers performed his work in a good, and above average, manner. (P.E. 22) From January 1, 1976, to December 31, 1978, eight Company employees were disciplined for sleeping on duty - three were white and five black. Each employee, irrespective of color, received the identical punishment - a seven day suspension. Company disciplinary records referred to these as "sleeping on job" rather than "neglect of duty" offenses. (P.E. 26) From January 1, 1976, to December 31, 1978, ten Company employees (five black, five white) were discharged from employment for disciplinary reasons. Six of these employees were discharged after having received prior Company warnings that another infraction would be grounds for, or result in, discharge. (P.E. 26) The Company has promulgated Absentee Control Guidelines which allow three or four unauthorized absences within a twelve month period before discharge can be considered. (R.E. 1)
Conclusions Conclusions: The company established that Petitioner was found sleeping on duty after receiving a prior warning that further neglect of duty would be grounds for his discharge. Such conduct by Petitioner constituted neglect of duty and provided a legitimate, nondiscriminatory reason for his discharge. Petitioner failed to prove, by statistical or comparative evidence, that this stated reason for his discharge was a pretext, or mask for a discriminatory motive. Since Petitioner did not show that he was discharged because of his race or color, the Company's action did not constitute an unlawful employment practice in violation of the Human Rights Act of 1977. [Section 23.167(1), Florida Statutes] Recommendation: That the Petition for Relief filed by Petitioner, and supported by Intervenor, be DISMISSED. Background: On October 11, 1978, Petitioner, a black male, filed with the Florida Commission on Human Relations (hereinafter "Commission"), a discrimination complaint charging Respondent, International Paper Company (hereinafter "Company"), with unlawfully discharging him from his employment because of his race or color. On June 6, 1979, after investigating the charges, the Commission entered a "Determination" that there was reasonable cause to believe that an unlawful employment practice had occurred. On August 15, 1979, after unsuccessful efforts to conciliate Petitioner's complaint, Petitioner filed a Petition for Relief from the Company's alleged unlawful employment practice. On October 25, 1979, the Commission forwarded the Petition for Relief to the Division of Administrative Hearings for assignment of a Hearing Officer and the conducting of a Section 120.57(1), Florida Statute (1979), hearing. The Commission's subsequent Motion to Intervene in the proceedings was granted. On November 28, 1979, the Company filed a Motion to Dismiss the Petition for Relief on several grounds. The motion was denied. The Company also filed its Answer to the Petition, denying that it had engaged in the alleged unlawful employment practice. On February 27, 1980, Petitioner filed a Motion for Summary Judgment, which was denied. By Notice of Hearing, dated November 9, 1979, final hearing was set for February 4, 1980. The Petitioner's subsequent motion to continue the hearing was granted and hearing was reset for March 5, 1980. On March 4, 1980, the Company moved to continue the hearing, which motion was granted and final hearing was rescheduled for April 8, 1980. At final hearing, Petitioner testified in his own behalf, and offered Petitioner's Exhibits Nos. 1 through 26, 1/ inclusive, each of which was received into evidence. The Company called E. J. Weathers and Marion Daniels as its witnesses, and offered Respondent's Exhibits Nos. 1 through 6, inclusive, each of which was received in evidence. At the close of hearing, the parties requested into evidence. At the close of hearing, the parties requested the opportunity to file proposed findings of fact and conclusions of law by April 21, 1980. On April 18, 1980, due to an automobile accident involving her husband, counsel for the Company requested additional time within which to submit proposed findings of fact and conclusions of law. After hearing arguments of the parties, the time for filing was extended to May 2, 1980, with the Petitioner and the Commission granted the additional right to file reply memoranda within five working days from the Company's filing. The parties agreed that the thirty-day period for submittal of the Recommended Order to the Commission would begin to run upon receipt of the proposed findings of fact and conclusions of law, or the reply memoranda, whichever was later.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petition for Relief filed by Petitioner, and supported by Intervenor, be DISMISSED. DONE and ENTERED this 5th day of June, 1980, in Tallahassee, Florida. R.L. CALEEN, JR., Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
