The Issue Whether Respondent discharged Petitioner in violation of Section 760.10, Florida Statutes (1991).
Findings Of Fact The Petitioner, Aubray Grandison (hereinafter "the Petitioner" or Grandison"), is a black male, and began working as a casual local driver at the Pensacola, Florida terminal facility of the Respondent, Consolidated Freightways Corp. of Delaware (hereinafter "the Respondent" or "CF") in October, 1987. (Tr. 10, 71; R. Ex. 5 and 6) 1/ CF is an interstate trucking carrier, transporting general commodity freight to and from various locations throughout the United States, including its Pensacola terminal facility (Tr. 63-64). At CF's Pensacola terminal, it employs a terminal manager (who is generally responsible for the terminal operation), an account manager, a dock foreman, a part-time office clerk, and a number of local drivers, both casual and regular. At all times material herein, the Terminal Manager at the Pensacola facility was Ken Webb (Hereinafter "Webb"). (Tr. 63-64. As of June 14, 1989, CF employed nine regular drivers at the Pensacola terminal, of whom seven were white, and two (or 22%), Robert Sparks and Aubray Grandison, were black. At this time, the Company also utilized four casual local drivers, of whom two were white and two (or 50%) were black (Tr. 65-66; R. Ex. 11). At all times material herein, Respondent had in effect a Company-wide EEO policy, insuring equal employment opportunity without regard to race, color, age, religion, sex, handicap or national origin. (Tr. 68; R. Ex. 3). Local drivers at CF's Pensacola terminal were assigned various duties to include unloading incoming freight, properly loading and delivering freight to CF customers in the Pensacola area, picking up freight from customers to be delivered, and properly completing their paperwork for all their activities. The duties were the same for both casual and regular drivers (Tr. 69, 75). The difference between casual drivers and regular drivers was that regulars had seniority rights and were guaranteed 40 hours per week (unless on lay off), whereas casual drivers had no guarantee of hours or seniority rights, and were called on as needed for about 30 hours per week. CF's drivers at the Pensacola terminal, including Petitioner, were covered by a collective bargaining agreement, the National Master Freight Agreement and Southern Conference Area Local Freight Forwarding Pick Up and Delivery Supplemental Agreement, and were represented by a labor union, Teamsters Local 991 based in Mobile, Alabama (Tr. 69; Burnthorn dep. 8-9). The Local 991 business agent representing CF's Pensacola drivers was Jerry Burnthorn, and the shop steward was Larry Douglas. (Tr. 70-71, Burnthorn dep. 7). Grandison worked as a casual driver for approximately one year, and during this time, his job performance was very good, including his performance with respect to the delivery of freight and the proper completion of paperwork relating to his loads of freight. His performance was good enough that Terminal Manager Webb recommended that he be hired as a regular driver, notwithstanding an unfavorable reference from a previous employer (Tr. 74, 81-82). Grandison became a regular driver, effective October 25, 1988. (Tr. 78-79; R. Ex. 1, 7). CF experienced no problems with Grandison's performance until approximately three months after he became a regular driver. Beginning in approximately February, 1989, Webb began experiencing various problems in Grandison's performance, particularly with respect to the misdelivery of freight and the improper completion of his paperwork relating to his loads of freight. (Tr. 82; R. Ex. 9). CF did not have a formal training program for its personnel to teach them how the various paperwork was to be completed. The paperwork required was relatively complex as revealed in the extensive testimony of Webb about Grandison's errors. Grandison received several verbal warnings in February and early March, 1989. During the course of the next six months, he received a number of written reprimands in accordance with the collective bargaining agreement. On March 13, 1989, Grandison received a warning letter for a preventable accident on February 20, 1989. This accident originally was ruled nonpreventable by Webb because the police investigated and issued no citation. Webb was overruled by the Company's safety officer because the company paid a claim to the driver of the other vehicle. (Tr. 89-91; R. Ex. 10). On March 31, 1989, Grandison received a warning letter for a misdelivery of freight on March 27, 1989, involving a tire delivered to the wrong customer. The tire was clearly marked with the destination. (Tr. 99-103; R. Ex. 11) On March 31, 1989, Grandison received a warning letter for failure to follow instructions by misdelivering freight, involving two loads of freight, each cross-delivered to the wrong customer. (Tr. 103-104; R. Ex. 12). On March 31, 1989, Grandison received a warning letter for failing to follow instructions on March 29, 1989, by failing to list the pro numbers for freight he picked up on his daily P&D Trip Manifest. The pro numbers identify the freight which the driver picked up. (Tr. 104-105; R. Ex. 13). On March 31, 1989, Grandison received a warning letter for failing to follow instructions on March 23, 1989, by not properly completing a bill of lading upon which he failed to write the date and "CFWY" as required by Company policy. (Tr. 105-106; R. Ex. 14). On March 31, 1989, Grandison received a warning letter for failing to follow instructions on March 23, 1989, by not properly completing eight different bills of lading by failing (1) to note the number of forklift moves, which the Company uses to properly bill the freight (Tr. 106-111; R. Ex. 15), and (2) failing to note the number of pieces of freight picked up on each bill. (Tr. 112-114; R. Ex. 16). On March 31, 1989, Grandison received a warning letter for threatening a work slow down on March 30, 1989. (Tr. 199; R. Ex. 17). On April 17, 1989, Grandison received a warning letter (reduced to verbal warning) for failing to follow instructions on April 7, 1989, by not noting that pick up was a single shipment pick up on the pro number. The Company must have this information in order to bill the customer a surcharge for a single shipment pick up. (Tr. 120-121; R. Ex. 18). On April 17, 1989, Grandison received a written warning (reduced to verbal warning) for failure to follow instructions on April 14, 1989, by failing to complete the required documentation and failing to place the required "refused" sticker on freight that was refused receipt. As a result, the Company did not have a record of why the freight was refused. (Tr. 121-122, R. Ex. 19). In conjunction with the April 17, 1989 letters, Webb met with Business Agent Burnthorn, Shop Steward Douglas, and Grandison. Webb agreed to reduce the written warnings to verbal warnings, in exchange for an agreement from Grandison that he would attempt to complete his paperwork properly from that point on. (Tr. 122-123). On May 25, 1989, Grandison received a suspension letter suspending Petitioner for two days without pay for the misdelivery of freight on May 16, 1989. (Tr. 126-127; R. Ex. 20). Grandison filed a grievance under the collective bargaining agreement contesting this suspension, but the grievance was denied. (Tr. 26-27, 129). On June 30, 1989, Grandison received a warning letter for failing to follow instructions on June 20, 1989, by not showing a single shipment pick up on his pro number. (Tr. 131; R. Ex. 21). On June 30, 1989, Grandison received a suspension letter imposing a five day suspension without pay for the misdelivery of freight on June 22, 1989. (Tr. 132; R. Ex. 22). On August 4, 1989, Grandison received a warning letter for failing to follow instructions on July 24, 1989 by failing to sign the delivery receipt as required by Company policy. (Tr. 133; R. Ex. 23). On August 4, 1989, Grandison received a warning letter for failing to follow instructions on August 1, 1989 by not properly completing two delivery receipts. (Tr. 133; R. Ex. 24). On August 24, 1989, Grandison received a warning letter for failing to follow instructions on August 23, 1989, by not completing several dock expedite write ups while unloading freight at the CF depot. These are necessary in order to properly reroute the freight. (Tr. 133-139; R. Ex. 25). On September 8, 1989, Grandison received a warning letter for failing to follow instructions on September 5, 1989, by failing to record the seal number removed from a trailer on the Terminal Unloading Check Sheet. This is required by the Company's security policy. (Tr. 140-141; R. Ex. 26). On September 8, 1989, Grandison received a warning letter for failure to follow instructions on September 7, 1989, by dropping a 500 pound piece of medical equipment on the ground while attempting to load the equipment on the customer's truck with a forklift, and causing $7,000 of damage to the equipment. (Tr. 141-142; R. Ex. 27). This incident was personally witnessed by Terminal Manager Webb. (Tr. 196). On September 21, 1989, Grandison also received a suspension letter for misdelivering freight to a customer (Scotty's, Inc.) on September 11, 1989. However, Grandison contested this suspension by filing a grievance. In an informal meeting at the terminal with Grandison and Business Agent Burnthorn, Webb agreed to withdraw the suspension and give Grandison another chance. (Tr. 144-145; R. Ex. 28). On October 12, 1989, Grandison received a suspension letter imposing a five day suspension without pay for the misdelivery of freight to a customer on October 2, 1989. (Tr. 148; R. Ex. 29). On October 19, 1989, Grandison was discharged by CF for two separate misdeliveries of freight, one involving a shipment to Babbage's on October 10, 1989 and another involving a shipment to Eglin Air Force Base on October 16, 1989 (Tr. 152-156; R. Ex. 31). The Babbage's misdelivery allegedly involved Petitioner's failure to deliver 3 of 7 boxes in a delivery to Babbage's, and the Eglin misdelivery allegedly involved in failure to deliver ten boxes of phones in a 32 box shipment. According to Webb, on October 28, 1989, he received a call from an employee of Babbage's, a retail store, complaining that only four of seven boxes had been delivered. Webb advised the woman that he had a receipt she had signed for seven boxes. She advised him she did not have a copy of the receipt, but that she only received four boxes. Webb had a search conducted, and found three boxes for delivery to Babbage's. The lady wrote Webb a letter stating she had only received four of seven boxes. (Tr-152.) According to Webb, on October 16, 1989, the Respondent was suppose to deliver 32 phones to Eglin AFB. The Respondent called to get an exception number to permit him to deliver 22 of 32 items and reflect 10 items short. The 10 cartons he was supposedly short where found on his truck when he returned to the depot. (Tr.-155) Terminal Manager Webb advised Grandison of the reason for his discharge at the terminal with Shop Steward Douglas present. Webb also personally handed to Grandison a copy of his discharge letter. When Grandison refused to sign CF's copy of the letter acknowledging receipt of it, Webb, also mailed him a copy via certified mail with a copy also being sent to the local union in accordance with the collective bargaining agreement. Grandison's copy of the letter was returned unclaimed, but the local union received its copy. (Tr. 157-158; R. Ex. 31). Grandison filed a grievance contesting his discharge on October 30, 1989. (Tr. 158; R. Ex. 32). Grandison's grievance was heard by the Southern Multi-State Grievance Committee in Ft. Lauderdale, Florida on January 16, 1990. Grandison, who was present at this hearing and testified in his own behalf, was represented by Business Agent Burnthorn. CF was represented by Labor Relations Representative Bill Jenkins. (Burnthorn dep. 18-20). In accordance with Article 45 of the collective bargaining agreement, the Committee was an impartial arbitration panel comprised of an equal number of management and labor representatives, neither of whom was affiliated with either CF or Local 991. (Burnthorn dep. 12-14, 19). After hearing the evidence presented by both sides, the Committee denied Grandison's grievance and upheld his discharge. (Tr. 162; R. Ex. 33; Burnthorn dep. 21). This decision was final and binding on both sides. (Burnthorn dep. 15; R. Ex. 4, p. 124). Although the transcript of the Committee's proceeding was introduced, the Committee only records its ruling. Discharge of an employee is addressed in Article 46 of the collective bargaining agreement. Under this provision, there were certain dischargeable offenses (such as dishonesty or using or being under the influence of alcohol, narcotics or drugs while on duty) without a prior warning. For other offenses, the contract required that the Company give the employee one prior written warning prior to discharging the employee (R. Ex. 4, p. 127; Burnthorn dep. 22- 23). In order to uphold Grandison's discharge under the contract, the Committee had to find that he was properly discharged for the violations stated. (Burnthorn dep. 21). In the case of Grandison's dismissal for misdelivery of freight, he had received more than one written warning, and also had been suspended on two occasions, prior to being discharged for the same offense. (Burnthorn dep. 23-25, Ex. 4). Grandison could have asserted a grievance under Article 37 of the collective bargaining agreement alleging race discrimination with respect to his discharge (R. Ex. 4, p. 98; Burnthorn dep. 30). He did not do so. Although Burnthorn did not uncover any evidence that CF was motivated by racial prejudice during his investigation of Grandison's discharge, he wasn't investigating this is because it was not alleged in the grievance. (Burnthorn dep. 30). After Grandison was discharged, CF hired two regular drivers at the Pensacola terminal, Joe Fendley (white) on December 11, 1989, and Jessie Smith (black) on December 29, 1989 (R. Ex. 2). These drivers replaced both Grandison and driver Dean Dallas (white) who had retired shortly before Grandison's discharge (Tr. 163-164). It cannot be determined whether Grandison was replaced by the black or the white under the facts. CF disciplined other employees at the Pensacola terminal, both white and black, for offenses similar to those for which Grandison was disciplined. For instance, written warning letters were issued on various occasions to drivers Robert Sparks (black) (R. Ex. 34), Steve King (white) (R. Ex. 35), Terry Ward (white) (R. Ex. 36), and Jimmy Foley (white) (R. Ex. 37, TR. 164-165). Terminal Manager Webb also had suspended white drivers for infractions, including Larry Douglas and Steve King (Tr. 166), and had discharged a white supervisor, Jimmy Hines. (Tr. 166). Grandison showed that on one occasion he was charged with misdelivery but hadn't misdelivered the load. Grandison showed that Pat Gordon at Babbage's signed a receipt for seven packages. He returned the phones from Eglin because the NCO in charge would not accept the phones. The parties stipulated that the Petitioner had suffered a reduction of $5.50/hour in pay as a result of his discharge. (Tr. 46).
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 the Commission enter its final order dismissing Petitioner's petition. DONE and ENTERED this 20th day of August, 1992, 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 August, 1992.
Findings Of Fact Petitioner, Jo Nees, is a 52 year old caucasian woman who appears to be her age. Ms. Nees first moved to Destin, Florida in or about April, 1982, and upon arrival in the area, submitted an application for employment to the Delchamps store which was accepted, but about which she never heard anything from store personnel. Ms. Nees lives in the Destin East Mobile Home Park with Mr. Emerson, a gentleman with whom she has shared the mobile home for several years. In January or February, 1985, Ms. Nees went to the Delchamps store in Destin, where, she alleges, she spoke with the store manager, Mr. Owens, and asked him for an application for employment. At this point, according to Ms. Nees, he refused, indicating he preferred people younger than Petitioner. She concluded from their discussion that he felt that due to the large number of customers during the crowded summer tourist season, she would not be able to keep up and used the term, she contends, "older people." As a result she became quite upset with Mr. Owens and after this colloquy, she paid for her groceries and left. Ms. Nees contends that the conversation referenced above was overheard by the assistant manager, Mr. Few, and the cashier, Kathy Richardson. Though the cashier did not say anything at the time, she was present at the check-out counter where the conversation took place and must have heard it. The assistant manager, Mr. Few, in Ms. Nees' recollection, tried to smooth things over and calm her down. At approximately 4:30 a.m. in November, 1985, just before Thanksgiving, Ms. Nees was again in the Delchamps store. Mr. Few, she contends, came up to her and spoke to her by name. However, as she was checking out a few moments later, and he was manning the cash register, he advised her that if she filed any sort of complaint against the company, he would not know her. Ms. Nees continued to patronize the Delchamps store after the conversations with Mr. Owens because it is the only major supermarket in the area and she prefers to use it because of the quality of the product and the price. At no time has she been offered an application for employment by the store, nor has she been offered employment. As of the hearing, Ms. Nees had a job at a convenience and package store in Destin where she has worked since May, 1985. At the time she applied for a position with Delchamps she had been unemployed since December, 1984, when she left her prior job as manager of a local motel because of poor wages. In May, 1985, she was earning $4.20 an hour on a 40-hour week. Though complaining about the fact that she was not offered employment or even given an application in January, 1985, Petitioner is nonetheless satisfied that at that time, no employment was available at the Delchamps store. She contends, however, that they could have accepted her application and hired her even though she was not needed so that she would be available later on when the busy season came. At the time of the application, the period was one of low employment in the area. Ms. Nees has also filed a discrimination complaint against the neighboring Eckerd's Drug Store for failure to hire her, also on the basis of age. At the hearing, Petitioner testified that she had applied to Delchamps only once, yet on cross examination it appears she applied once and requested an application a second time. The EEOC form 5 filed in April, 1985, reflects that she applied three times for a position at Delchamps. Ms. Nees explains that the information contained on the form 5, though it bears her signature, was given over the telephone to the clerk at the Commission office and that she only applied once and requested an application form a second time. Inasmuch as Ms. Nees' testimony indicates that she applied in January or February, it is quite possible that in recounting the story over the telephone, the clerk misunderstood her comment and put down that she applied in both January and February, 1985, and that Ms. Nees failed to catch the mistake when she signed the form. This is, however, de minimus. What is more significant is the fact that none of the other parties involved identified by Ms. Nees, have any recollection of the situation being as she describes it. According to Mr. Owens, Ms. Nees at no time ever asked for an application, nor did he ever make to her the comments that she attributes to him. When he saw her at the investigation conducted by CHR, he recalled having seen her previously as a customer in the store, but at no time did she ever discuss employment with him, either alone or in the presence of Mr. Emerson, who, she claims, was a witness to the entire situation. Delchamps' policy is to accept an application form from anyone who asks for it and keep it on file. When employees are needed, people from the filed applications are called and interviewed, and selections are made. It is not company policy to take on as full-time employees, people who have not worked within the company before. Instead, people are hired on a part- time basis and then promoted to full-time positions from part- time status when openings occur. During the winter months, Mr. Owens has a staff of between 70 and 75 people. During the tourist season, that figure increases up to 120. Mr. Few, present at the discussion with Mr. Owens, does not recall any meeting between Nees and Owens and denies age discrimination. He agrees he saw her at the delicatessen counter early one morning as she alleges and greeted her. She seemed to be complaining to the counter clerk about Delchamps employment policy. When she got to the check-out counter he was manning, he offered her an application form in the hope it would put an end to the matter. She refused to accept it, however, and left after paying for her purchases. Kathryn Guidas, the cashier at the time of the alleged conversation between Ms. Nees and Mr. Owens, recalls seeing Petitioner in the store numerous times as a customer, but did not hear any conversation between Petitioner and Mr. Owens regarding employment. In fact, she has never seen Petitioner and Mr. Owens together. She has been asked for application forms by customers from time to time. When this happens, she refers them to either the manager or his assistant. Petitioner has not, to the best of her knowledge, ever asked her for an application form. On one occasion, Mr. Emerson mentioned that he had filed an employment discrimination complaint against the company and expected to hear something soon, but made no mention of any discrimination complaint by Petitioner. In her testimony at the prior inquiry, Ms. Nees identified Vicky White as an employee who was present at the conversation she claims to have had with Mr. Owens. Ms. White has worked in the Destin store as a clerk in the bakery and deli for approximately 10 years, but denies having ever seen Petitioner prior to the hearing. Neither does she know Mr. Emerson and she denies she has ever discussed company hiring policy with either Petitioner or Emerson. She has never been present at any conversation between Owens and Nees. In light of the above, it is most likely that Ms. Nees did not ask for an application at all. It would have been unnecessary for Owens to deny her one in light of the policy when, if she was not wanted, she need not have been called in for an interview. Ms. Nees would like to be compensated for the time she was improperly denied employment by Delchamps and would like to be offered a permanent job at the store. She is concerned, however, that if offered a job as a result of a settlement, she would be discharged shortly thereafter: a result that she does not desire. If she is to be hired, she would like to be assured that she can keep the job and not face layoff as retribution for her actions here. In her post hearing submission, she reiterates her desire for a settlement and a job because she is, apparently, no longer working at the convenience store and the Delchamps store is only two blocks from-her residence. Based on all the evidence, considering the inherent probabilities and improbabilities of the testimony, it is obvious that Ms. Nees is anxious to be employed by Delchamps and/or to receive compensation from them. She has, however, scant evidence to establish that she was discriminated against because of her age. She admits that there were no openings at the time of her alleged conversation with Mr. Owens, and that she also filed a discrimination complaint against Eckerd' s, again knowing that no vacancies existed. When Ms. Nees was not hired, it was clearly for undisclosed reasons other than her age and there is no evidence of any discrimination by Respondent
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Petition for Relief filed by Jo Nees be denied. RECOMMENDED in Tallahassee, Florida this 9 day of May, 1986. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of May, 1986. COPIES FURNISHED: Jo Nees Box 89 Destin East Mobile Home Park Destin, Florida 32541 William C. Tidwell, Esquire Post Office Box 123 Mobile, AL 36601 - Donald A. Griffin, Executive Director Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303
The Issue Whether Petitioner has been the subject of an unlawful employment practice.
Findings Of Fact On May 18, 1992, a Notice of Hearing was issued setting the date, time, and place for the formal administrative hearing. The Notice of Hearing was sent by United States mail to the Petitioner and his counsel at the addresses listed in the Petition for Relief and accompanying information. Petitoner's attorney appeared at the hearing. However, even though Petitioner received adequate notice of the hearing in this matter, the Petitioner did not appear at the place set for the formal hearing at the date and time specified on the Notice of Hearing. The Respondent was present at the hearing. The Petitioner did not request a continuance of the formal hearing or notify the undersigned or his attorney that he would not be able to appear at the formal hearing. Petitioner was allowed fifteen minutes to appear at the hearing. As a consequence of Petitoner's failure to appear, no evidence was presented to support Petitioner's case. Specifically, no evidence of discrimination based on handicap or race was forthcoming. Therefore, Petitioner's attorney was advised that the Petition for Relief would be dismissed and a Recommended Order entered recommending the Commission do likewise.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Florida Commission on Human Relations enter a Final Order dismissing the Petition for Relief. DONE and RECOMMENDED this 14th day of September, 1992, at Tallahassee, Florida. COPIES FURNISHED: Robert Allen, Esquire 322 West Cervantes Street P.O. Box 12322 Pensacola, Florida 32581 Joseph L. Hammons, Esquire 17 West Cervantes Street Pensacola, Florida 32501 Margaret A. Jones Agency Clerk Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, FL 32399-1570 Dana Baird General Counsel Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, FL 32399-1570 DIANE CLEAVINGER, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 1992.
The Issue The issues to be resolved in this proceeding concern whether the Respondent, Lehigh Portland Cement Company/Furniture Division ("Lehigh"), discriminated against the Petitioner on account of her race (white) by discharging her from employment following a verbal altercation with a black co- employee in which the Petitioner allegedly uttered racial slurs directed at or concerning that black co-employee and whether the Petitioner was discriminated against on account of her sex (female) and because of a perceived interracial, personal relationship with another co-employee, who is black.
Findings Of Fact The Petitioner is a former employee of Lehigh. She was discharged by that concern on August 4, 1989 as a disciplinary measure in response to her utterance of racial slurs concerning a black co-worker in the vicinity of the factory floor on Lehigh's premises immediately before the workday began on the date in question. She ultimately filed a charge of discrimination raising the issues and commencing the proceedings referenced in the above Statement of Issues and Preliminary Statement. Lehigh is a furniture manufacturer located in Marianna, Florida. Its plant consists of several large buildings where employees assemble and finish furniture. Lehigh employs somewhat over 400 persons at that factory. On the morning of August 2, 1989, Dorothy Hall and Major Hallmon, both black co-workers of the Petitioner, were having a discussion concerning union business just before the workday commenced on or in the vicinity of the shop floor of Lehigh's factory. Ms. Hall was a shop steward for the union in the paint shop, where the Petitioner was employed. Mr. Hallmon was the chief union steward for Lehigh as a whole. Ms. Hall was expressing concern to Mr. Hallmon about employees in her department or "shop", including the Petitioner, avoiding her, in her capacity as shop steward, and presenting problems directly to Mr. Hallmon when issues or incidents arose which they felt involved the responsibility of their union representatives. Ms. Hall mentioned the Petitioner as one of the employees who had complained about her to Mr. Hallmon. While Ms. Hall was making these comments to Mr. Hallmon, the Petitioner approached them and interrupted their conversation, getting into a verbal altercation with Ms. Hall. Mr. Hallmon attempted to get the Petitioner to cease arguing and yelling. Lehigh's personnel management procedures require that if employees engage in a physical or verbal altercation in their work area, they must cease arguing or fighting and move the disagreement to their supervisor's office for their supervisor to handle with them in an adult manner. Ms. Hall retreated from the confrontation with the Petitioner and walked into the office of George Williams, the supervisor of both of them. The Petitioner then made loud comments which were overheard by a number of co-workers. During their argument, or about the time Ms. Hall walked away in the direction of the supervisor's office, she referred to the Petitioner as a "stupid, white fool" or a "white fool". When the Petitioner walked away from the site of their verbal altercation, a white co-worker, Annette White, told the Petitioner that "Dorothy said she is going to whip your tail" or words to that effect. At this point, the Petitioner responded "I am not afraid of no black ass nigger." The Petitioner's comments were made in a very loud voice and were overheard by a number of co-workers nearby although Ms. Hall, herself, did not hear them nor did Mr. Hallmon. Anne Hamlin, a white woman, who worked in the Petitioner's department, heard the Petitioner say the above-quoted comment. Ms. Hamlin admonished the Petitioner that she should not be calling people by that name. Wilford Pittman, a black man, observed Mr. Hallmon trying to calm the Petitioner during or shortly after her verbal altercation with Ms. Hall. He heard the Petitioner use the word "nigger" and state words to the effect that "I am not scared of that nigger". Odell Harrison, a white man, also heard the Petitioner state "I am not scared of that nigger". Ron Baker, a black man, heard the Petitioner reference Ms. Hall as "a black son of a bitch". The Petitioner, herself, admitted that she stated "I am not afraid of no black ass nigger". The Petitioner immediately joined Ms. Hall in the office of the supervisor after the above incident. Mr. Jack Toole, a crew leader, was also present in the office on that occasion. The argument was renewed once the Petitioner and Ms. Hall were together in the supervisor's office. During the course of their renewed argument, in one of the Petitioner's comments, she used the words "I am white" to which Ms. Hall retorted "No you ain't, your shorts is white". Mr. Toole, who was present during the argument in the supervisor's office, recalls Ms. Hall telling the Petitioner that she was "a white fool for fooling around with Major Hallmon and ruining his life". He also recalls Ms. Hall first coming into the office when he was already present and stating words to the effect that "if we didn't do something about that white woman out there, she would do something with her". Mr. Williams remembers Ms. Hall stating "you make an old fool out of Major". The Petitioner then made a comment to the effect that Ms. Hall should stay home and tend to her "thieving husband" and stay out of other people's business, whereupon Ms. Hall picked up an ashtray as though to strike the Petitioner. Mr. Toole grabbed her arm and took the ashtray from her hand, replacing the ashtray on the desk. The signal to begin work then sounded and Mr. Williams instructed both antagonists to leave his office and begin work. Lehigh has a very specific policy prohibiting racial slurs. That policy provides: Further, it is a stated policy of Lehigh to prevent and prohibit discriminatory conduct in the work environment including statements or actions which could be interpreted as, racially, sexually, religiously or ethnically based, sexual harassment or any other discriminatory harassment or conduct with respect to co-employees, subordinate employees, or supervisors. Any employee who is found to have violated this policy will be subject to discipline, up to and including discharge. This equal employment opportunity policy was posted on all of the company's bulletin boards in the work place in early 1987 and was so maintained and posted forward of that time. Lehigh's management had experienced two disciplinary incidents in the past where two employees, Mr. Cecil Sims and Mr. Coy Jackson, both white, had used the word "nigger", in a conversational context with two black co-employees or in a circumstance where those employees overheard the comment, although it was not uttered in the course of an argument or verbal altercation. Those employees were disciplined by Lehigh for uttering that word, which is found to constitute a "racial slur". Shortly thereafter, during contract negotiations with the union in November of 1988, union representatives informed Lehigh's management that they felt that Lehigh was not enforcing its anti-discrimination policy as vigorously as it should, with the Sims and Jackson incidents used as examples of the union's perception that management's disciplinary practices with regard to the use of this racial slur by employees was too lax. Although Lehigh's management took the view, and still does, that it had taken appropriate disciplinary action in those two prior incidents, Lehigh also agreed with union representatives that such racial slurs constituted a serious offense and agreed that the company would thenceforth enforce its discrimination policy more vigorously. Lehigh's policy, with regard to racial slurs, includes its view that the word "nigger" is one of the most severe or offensive words used to disparage or embarrass a person on account of that person's race. This interpretation of its anti-discrimination policy is a reasonable one because it was established in the record that that word, dating from the time of slavery in America forward to the present time, has been used essentially as a term of disparagement. It is one of the few words in the American vocabulary most likely to demean the person to whom it is directed, to arouse ill will between the person employing the word and the person or persons to whom it is directed, or about whom it is referenced, and even to incite violence between them. It is rational for Lehigh to consider that the use of that racial slur is one of the most severe offenses to which its anti-discrimination policy is directed and designed to prohibit and prevent. In carrying out its disciplinary policy and procedures, Lehigh investigates alleged violations of company rules or policies to find out what occurred and to determine if a rule or policy was, indeed, violated. That customary procedure was performed in the instant case situation. If the management of Lehigh determines that an employee has violated a rule or policy of the company, it evaluates the nature of the offense and views it against the past employment and disciplinary record of the employee to determine what discipline, if any, is appropriate. The management of the company considers the severity of the offense; whether the violation was a willful one; whether it was done with malice; whether the employee under investigation was the aggressor in the incident; the degree of provocation for that employee's behavior; whether the employee expresses or demonstrates any remorse for the occurrence; and the employee's past general work history and disciplinary record. All of these factors are weighed by the company's management in determining what discipline is appropriate. The company customarily has viewed the disciplinary history of an employee as a very significant factor in determining the appropriate discipline to be imposed for a violation of company rules or policies under review as to that employee. In imposing discipline for infractions of company rules or policies, Lehigh employs progressive discipline whenever possible in order to attempt to persuade the employee to change his or her behavior which has resulted in the violation. If an employee exhibits a pattern of rule infractions, especially infractions of the same rule or type of rules, the company imposes a progressively harsher discipline. When considering an employee's past disciplinary record, the company considers only disciplinary violations which have occurred within the past nine months, however. This is because the company's union contract, by which it is bound in terms of its personnel policies and procedures with regard to its union-member employees, contains a provision which requires this restriction. This provision has been applied to all hourly employees of Lehigh for the life of that contract or approximately the past 18 years. It is thus a regular and customary past practice of the company for purposes of the terms of its union contract. The disciplinary measures, which the company imposes for infractions of its rules and policies, range from an oral reprimand (the imposition of which is recorded in the employee's personnel record even if delivered verbally); a written reprimand; suspension from employment for a discreet time period; and permanent discharge from employment. Mr. Albert Berger is the Vice President of Operations for Lehigh. He is responsible for personnel management, among other duties. His personnel management duties include the investigation of alleged infractions of the company's personnel policies and rules, interpreting the company's disciplinary policies and procedures and arriving at decisions about how to discipline employees. Mr. Berger investigated the subject incident involving the Petitioner and Ms. Hall, ultimately determined how to discipline each employee and imposed that discipline. He followed the company's disciplinary policies and procedures in deciding how to discipline the Petitioner and Ms. Hall concerning the incident of August 2, 1989. Upon learning of the incident between those two employees on August 2, 1989, Mr. Berger commenced an investigation of the matter that same day. After making a preliminary inquiry into the matter, he elected to suspend the Petitioner from work sometime on the morning of August 2, 1989, such that she left the company premises under suspension shortly before Noon. He continued his investigation that afternoon, conducting taped interviews with employees and supervisors who had witnessed the altercation. Those witnesses later signed summaries of their statements to Mr. Berger. The Petitioner returned to the factory between 1:00 and 2:00 on the afternoon of August 2, 1989, while Mr. Berger was still concluding his interviews of other employees and supervisors. He gave the Petitioner an opportunity to relate her version of the incident to him. During her taped interview, the Petitioner was very loud and hostile in her demeanor and statements and responses to his questions. She repeatedly employed the term "nigger" with reference to Ms. Hall and her version of the occurrence in question. During the course of the hearing, the Petitioner attempted to explain her behavior during the taped interview with Mr. Berger by insinuating that she was under the influence of alcohol when she exhibited loud and hostile demeanor and comments during the interview, including the use of the term "nigger". She attempted to substantiate this claim by stating that she had consumed several six-packs of beer between the time she left the company premises under suspension shortly before Noon on August 2, 1989 and the time of her interview with Mr. Berger at approximately 2:00 that afternoon. She did not, however, appear drunk or under the influence of alcohol to Mr. Berger when he interviewed her nor did her verbal statements and responses depicted on the tape of that interview justify a finding that she was drunk or under the influence of alcohol at the time of the interview. Moreover, this explanation of her conduct during the interview is self-serving and is thus deemed not credible. Upon concluding his investigation and in the process of determining what, if any, discipline to impose on the two protagonists, Mr. Berger reviewed and considered the employment histories of both the Petitioner and Ms. Hall. Ms. Hall's disciplinary record was a good one. Her most recent disciplinary offense had occurred 13 years before the August 2, 1989 incident. She had been disciplined only one other time, approximately 16 years before the August 2, 1989 incident. Under its union contract, Lehigh was prohibited from considering those two disciplinary incidents in deciding whether and how to impose discipline for the current August 2, 1989 occurrence because those disciplinary infractions occurred more than nine months prior to the August 2, 1989 incident. In addition to the fact that her disciplinary record was a good one with no disciplinary infractions for more than a decade, Ms. Hall readily expressed remorse for her involvement in the incident, apologizing to Mr. Berger and promising to let no such occurrence happen in the future. Because of this and because Lehigh's management, through Mr. Berger, viewed the racial slur "nigger", loudly uttered by the Petitioner, as more egregious than the remark "white fool", "old fool", or "you're not white, your shorts are white", made by Ms. Hall, a lesser discipline was imposed upon Ms. Hall. Mr. Berger imposed a written warning upon Ms. Hall for picking up the ashtray as a threatening gesture directed to the Petitioner and a verbal warning upon her for the above- quoted name calling. This is not a minimal sanction. Written memoranda of both types of discipline are made a part of such an cmployee's personnel record. Concerning the discipline imposed upon the Petitioner, the record establishes that on June 23, 1989, less than two months prior to the incident concerning Ms. Hall, the Petitioner received a three-day suspension for interference with company operations through the use of abusive language directed at another employee. This incident involved the Petitioner painting the words "High Ass" on the door front of a piece of furniture and sending it down the assembly line so that it could be viewed by the co-worker to whom the words were directed. The Petitioner admitted that the words were directed at a black co-worker who was farther down the assembly line. In conjunction with her suspension, Mr. Berger warned her that if she continued to engage in name calling or racial slurs, the consequences for the next such incident would be more severe, including the potential loss of her employment. Mr. Berger concluded and the record establishes that the Petitioner's conduct on August 2, 1989 clearly violated the company's explicit policy against racially-discriminatory conduct in the work place, as that policy is quoted in the above Findings of Fact. The Petitioner's conduct on August 2, 1989, along with the incident leading to her earlier suspension for similar conduct, establishes a pattern of abusive, racially-discriminatory behavior towards her co-workers. Further, the Petitioner was shown to be the aggressor in the incident, interrupting the private conversation between Ms. Hall and Mr. Hallmon, and making statements or comments which incited the ensuing argument and name-calling episode. The Petitioner showed no remorse for her behavior. She was still hostile and inflammatory in her description and reaction to the occurrence concerning Ms. Hall in her interview with Mr. Berger hours later, when she had every reason to believe that her job was at stake with a strong resulting incentive to be conciliatory and remorseful in her reaction and relation of her version of the occurrence to Mr. Berger. Because of these differences in her conduct, her past record, and the severity of her infraction of company policy, as opposed to that of Ms. Hall, and because of Ms. Hall's relative demeanor and reaction to the occurrence and the subsequent summons by Mr. Berger to account for it, Mr. Berger decided, after considering all of the above factors, to convert the Petitioner's suspension to a termination. Discharging the Petitioner for the August 2, 1989 violation in consideration of the above factors related to her conduct, demeanor and past record, as opposed to that of Ms. Hall, was shown to be reasonable, pursuant to Lehigh's customarily-followed "progressive discipline" policy. The differences in severity between the actions of the Petitioner and Ms. Hall, the differences in their personnel histories, the differences in the circumstances of their actions and their demeanor and conduct after the occurrence with regard to it support the differences in the discipline imposed upon them. In attempting to establish a prima facie case of disparate treatment and discrimination related to her termination, the Petitioner employed in her case the examples of Coy Jackson, a white employee and crew leader, being disciplined, but not terminated for using the term "nigger" directed at a black co-employee, Rudolph Townsend, and the similar example of Cecil Sims, a department supervisor, who is also a white man, using the term "nigger" in the presence of a black co-employee. Mr. Sims was also not terminated, but was given a lesser level of discipline. Concerning the Jackson and Sims incidents, the record establishes that in 1988, Coy Jackson spoke of Mr. Townsend, the black employee, who had complained of being cold, as follows: "Get that nigger a coat before he freezes to death." Mr. Sims, a supervisor in that same department, investigated that incident. During Mr. Sims' investigation, he questioned the employees involved about the name calling and the use of the words "black" and "nigger". Mr. Sims stated to Mr. Townsend that there were two names "you all" (meaning black people) could be called-"black" or "nigger"-and he then asked Mr. Townsend which he preferred to be called. Mr. Townsend responded that he simply wished to be called by his own name. Mr. Townsend complained about Mr. Sims' comment to him; and Mr. Berger investigated that incident, as well. He ultimately decided to give Mr. Sims a verbal warning concerning it and admonished him that he was never to use the word "nigger" again in any context and that the next incident, when it occurred, would result in his discharge. The discipline imposed on Mr. Sims was based upon the fact that Mr. Sims readily expressed remorse for the incident, that he had a long, unblemished career with Lehigh, and was then near retirement. He had had no prior history of uttering abusive language, name calling, or the use of racial slurs in the work place. Moreover, the incident occurred in Mr. Sims' office in a normal conversational tone; it was not shouted or uttered loudly on the factory floor in the presence of a number of other employees. Mr. Jackson, the crew leader who made the remark concerning the coat, was also given a verbal warning for use of the word "nigger". The imposition of a verbal warning as discipline for Mr. Jackson was directly related to the fact that Mr. Jackson had personally apologized to Mr. Townsend for making the remark even before the occurrence had been related to Mr. Berger and any investigation of the matter instituted. Moreover, he had made the comment quietly to one other employee and did not shout it in the work place before a number of other employees. Further, these two incidents occurred in February of 1988 before Lehigh elected, at the urging of the employees' union, to more vigorously enforce its policy against racial slurs, which vigorous enforcement policy it has uniformly pursued since that time. These incidents were thus not proven to be similar to the incidents involving the Petitioner and her employment and disciplinary record. Neither involved the disciplining of a black employee differently than a white employee. The Petitioner, Mr. Sims and Mr. Jackson are white. The less severe discipline imposed on Mr. Sims and Mr. Jackson was rationally related to the mitigating circumstances described above, rather than to their status as men or white men. It is also noteworthy that several years before the Petitioner's discharge, a white man employed in Lehigh's loading department, in the course of a conversation with a black employee, held up a piece of rope, apparently tied as a hangman's noose, and told the black employee that he would show him what use was made of rope in the white employee's home town. The black employee, at this juncture, hit the white employee with his fist. Mr. Berger investigated that incident, as well. Although it was alleged to him that the white employee had used the term "nigger", Mr. Berger was not able to identify a disinterested witness who would actually establish that the term had been used. In any event, however, Lehigh's management, through Mr. Berger, determined that this was a serious, malicious violation of the company's anti-discrimination policy. He promptly discharged the white employee for this conduct. The black employee, in turn, was also discharged for engaging in violence, which the company has uniformly considered to be one of the most severe violations of its disciplinary rules. Each of those employees was individually disciplined for their respective violations of company policy, based upon the circumstances peculiar to each. Neither of those incidents is similar to the incident for which Lehigh discharged the Petitioner. The discipline imposed on each of them was shown to be consistent with the company's customary anti-discrimination policy. None of the exemplary incidents described above serve to establish that white employees, male or female,(or, for that matter, black employees) have been subjected to a pattern of discriminatory disciplinary measures, including termination. They, likewise, do not show that any of those employee groups were accorded favored treatment. Rather, the facts regarding these incidents show that the company has pursued a pattern of non-discriminatory employee discipline. The employees who were disciplined in these three incidents were not shown to be similarly situated to the Petitioner, in terms of the infraction she committed, her past record, the circumstances surrounding her infraction and the investigation afterward, versus the underlying reasons for the various disciplinary measures imposed on these other employees, related above. During the hearing, the Petitioner first raised the issue of alleged discriminatory treatment because of a perceived close interracial relationship between her and Mr. Hallmon. Accordingly, she amended the Petition, ore tenus, without objection. Mr. Hallmon and the Petitioner had apparently become close friends at the point when he asked her to be his assistant in his position as chief union steward. She accepted the position. Mr. Hallmon indicated that this was because of his concerns about tensions between black and white employees. He wished a white employee to be his assistant to, as he termed it, "balance things out". That association began approximately three years ago. Mr. Hallmon and the Petitioner customarily would spend their lunch period together on frequent occasions to discuss union business. They sometimes met after work, in the parking lot next to the factory, to discuss union business because, as Mr. Hallmon put it, he maintained his union business office in the trunk of his car. The two also met many mornings prior to work for donuts and coffee. Their apparent friendship is corroborated by the fact that Mr. Hallmon elected to urge one of the witnesses to the Petitioner's behavior on August 2, 1989 to conceal her knowledge of it. He stopped Anne Hamlin in the parking lot on the day of the incident and told her that she should say nothing about it. The Petitioner has been engaged in contesting her discharge through the union grievance procedure or the administrative process before the Commission on Human Relations and the Division of Administrative Hearings for more than a year and one-half as of the time of hearing. However, she never had complained prior to the day of hearing that her friendship with Mr. Hallmon or any perceived close, personal interracial relationship between her and Mr. Hallmon had been involved in the reasons for her discharge or any discriminatory treatment she believed had been imposed upon her. Mr. Hallmon contended at the hearing that 80% of the approximately 400 workers at Lehigh had made comments about their relationship but, upon questioning about this testimony, was only able to relate two specific comments which had been made to him concerning his and the Petitioner's relationship. Neither of these comments were made by management-level personnel of Lehigh. Moreover, both the Petitioner and Mr. Hallmon, as union representatives, were acquainted with procedures for bringing a grievance to the attention of management, concerning discriminatory treatment, or any other basis for a grievance and yet neither had complained concerning any perceived discriminatory treatment to management. The only instance in which management might have gained any knowledge of their alleged relationship, other than personal observation, was from a conversation between Mr. Hallmon and Mr. Berger on one occasion when Mr. Hallmon asked Mr. Berger whether there was any violation of company policy if two people, black and white, or male or female, have lunch together. Mr. Berger responded by stating, in effect, that it was not any of management's business or anyone else's business concerning which employees had lunch together. Mr. Berger, however, upon learning that Mr. Hallmon had an apparent concern about the perception which management or co-employees might have concerning his and the Petitioner's relationship, did advise him to remember that "...this is the deep south...and I wouldn't want any of these rednecks catching up with you". When asked if he could recall any discussions between management personnel concerning the amount of time Mr. Hallmon and the Petitioner spent together, Mr. Berger answered "no, it's none of our business". Although Mr. Berger had observed the Petitioner and Mr. Hallmon together on several occasions, he felt that was none of his business as a manager of the company. Neither body of testimony, appearing at pages 49, 50 and 90 of the transcript nor any other testimony or evidence in this record, establishes that management had any knowledge of any pervasive discriminatory pattern of behavior in the work place by co-workers toward the Petitioner and Mr. Hallmon, if such indeed existed, which was not proven. It was also not established that management had any concern with any real or perceived relationship between the Petitioner and Mr. Hallmon and it was not demonstrated that it had any effect on the decision to discipline the Petitioner nor on the severity of the discipline imposed. After her termination, the Petitioner attempted to secure employment through the services of Job Services of Florida by application of August 28, 1989. Job Services referred her to Russell Corporation on September 8, 1989 and to Wal-Mart on September 21, 1989. She applied for employment unsuccessfully at both places. These were the only attempts the Petitioner made to obtain employment from the time of her August 2, 1989 termination until the hearing. Her listing, as available for employment, with Job Services of Florida became inactive on November 30, 1989. It was not established that she sought to reactivate that listing until just prior to the hearing. During the period of her unemployment, there were opportunities to seek employment which she did not avail herself of. On the date of the hearing, there were 22 jobs with private employers and 15 jobs with public employers listed with Job Services of Florida for which the Petitioner could have qualified to apply. She contended that she had looked in the help-wanted advertisements in a weekly newspaper for jobs, but there were none for which she was qualified. Local papers published in Jackson, Calhoun and Liberty counties, in the immediate vicinity of the Petitioner's residence in Altha, reveal that there were a number of advertisements for jobs during her unemployment period which she could have qualified to apply for and possibly to secure. The Petitioner's payroll records for 1988 reveal seven pay periods out of 52 when her total hours equaled or exceeded 50 hours. There were seven pay periods when she worked fewer than 40 hours per week. The average hours worked weekly during 1988 were 42.2. The highest gross pay received in 1988 was $375.76 per week, and the lowest weekly gross pay was $98.56. Her weekly gross pay on an average basis for 1988 was, thus, $273.24. The Petitioner worked 36 pay periods in 1989. She worked more than 40 hours in only eight of those weekly pay periods. The time in excess of 40 hours in these eight pay periods varied, with 5.5 hours being the largest number of hours in excess of 40 hours worked for a weekly pay period; and .3 hours was the lowest number of hours in excess of 40 hours worked for a weekly pay period. In 15 of these 36 pay periods, the Petitioner worked fewer than 40 hours. The average hours per pay period for 1989 were, thus, 33.98. She received overtime pay in eight pay periods. Her highest gross salary for any pay period in 1989 was $309.28. Her lowest gross salary for a pay period in 1989 was $51.28. Her average gross pay for 1989 was, thus, $220.72 per week. The average weekly gross pay for the entire period of her employment was $246.12. She earned $6.41 per hour at the time of her discharge. Had she remained employed, this would have increased to $6.63 per hour on December 16, 1989 and to $6.83 on December 16, 1990. She was eligible for two weeks of paid vacation per year since she had been employed for three years, and eight paid holidays per year. Federal income tax, social security, and union dues were withheld from her gross weekly pay. In 1988, income tax withholding totaled $1,022.80; social security totaled $1,066.98; and union dues totaled $110.00. In 1989, federal income tax totaled $513.97; social security totaled $596.76; and union dues totaled $96.00 for the 36 pay periods she worked in 1989. Lehigh was self- insured for health insurance and any amounts exceeding the employee contributions were to be paid by Lehigh. The employees, including the Petitioner, contributed $7.50 per week towards health insurance. Her payroll records reveal, however, that she ceased participating in the employer-provided group health insurance after the seventh pay period of 1989. In arriving at the above Findings of Fact, it has been necessary, to some extent, to reject the testimony of the Petitioner and Mr. Hallmon. This is because the Hearing Officer finds the testimony of other witnesses to the argument between the Petitioner and Ms. Hall and the surrounding circumstances and events to be more credible. The testimony of the other witnesses to these events was accepted because of their basic agreement on the significant circumstances concerning the occurrences in question and the fact that these other witnesses were demonstrated to have no reason to shade the truth concerning the occurrences and the underlying circumstances, including the fact that these witnesses, whose testimony has been accepted as more credible, are of both races involved. The Petitioner, however, is interested in the litigation and admits using the words "black ass nigger" and her tape-recorded statements made the same day of the argument in question are corroborative of the statements, behavior and demeanor on the part of the Petitioner reported by the other witnesses who have been found to be more credible and who are named in the above Findings of Fact. It is found that Mr. Hallmon's close relationship with the Petitioner might have influenced his recollection of the events in question. More significantly, his effort to actually prevent Ms. Hamlin from relating her knowledge about the incident is evidence of a bias in favor of the Petitioner. Moreover, the Petitioner's testimony about alleged recent job-search efforts was impeached because in her deposition taken approximately a week prior to hearing, she repeatedly asserted that the potential jobs at Russell and Wal-Mart were the only ones she had sought, although she maintained at hearing that she had also applied for work at Oglesby Nursery and McDonald's two or three weeks prior to hearing. She offered no explanation of why she did not mention job applications allegedly made less than a month prior to her deposition testimony. It is simply not credible that she would have forgotten those applications if, indeed, they had been made, especially since she was repeatedly asked about that subject matter at her deposition. Thus, her testimony about applying for employment with the two additional employers is deemed not credible.
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 the Petitioner, Donna J. Brown, was not discharged in violation of Section 760.10, Florida Statutes (1989), and was not the victim of a discriminatory employment practice and, therefore, that her Petition be dismissed in its entirety. RECOMMENDED this 7th day of August, 1991, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 7th day of August, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-6596 Petitioner's Proposed Findings of Fact 1-3. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter after determination of the relative credibility of the witnesses. Accepted. 6-9. Accepted. 10-11. Accepted. Accepted, but not material based upon the issues actually pled even by ore tenus amendment at hearing in this proceeding. It has not been established that the employer had knowledge, constructive or otherwise, of any pattern of usage of racial slurs by multiple employees on such a frequent basis, or with any frequency. Thus, it could not have condoned such a pattern of utterance of racial slurs if it was not shown to have known about them, nor was it established that the use of the word "nigger" by fellow employees approximately once or twice a month, as apparently heard by Mr. Hallmon, was made only by white employees. Accepted. Accepted, but not to the extent that this finding establishes a pattern of discrimination against white employees by Mr. Berger or the management of Lehigh. 15-17. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. As delineated in the Hearing Officer's findings of fact, a number of factors were considered in the decision to terminate as opposed to imposing another type or degree of discipline; not consideration of the word "nigger" alone. 20-21. Accepted. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. This finding of fact is not, in itself, materially dispositive of the issues to be adjudicated. Accepted, but not material to resolution of the relevant issues presented for adjudication. Accepted, but not material in this de novo proceeding. Accepted, but subordinate to the Hearing Officer's more detailed findings of fact concerning this subject matter and issue. 26-30. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter, including finding that the Petitioner did not participate in the group health insurance program any longer than the period of time delineated in the Hearing Officer's findings of fact. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. It has not been established that employment available for purposes of mitigation of damages for lost wages and benefits has to be precisely comparable in circumstances, condition, quality, wages or benefits or any other element in order to be a relevantly considered available job. Rejected, as contrary to the Hearing Officer's findings of fact on this subject matter. It has not been established that the Petitioner would work 50 hours, with 10 hours of overtime, for each week which she would have worked since August 2, 1989 had she not been discharged. Such a figure is therefore speculative, rendering the figures contained in this proposed finding, other than the actual wage figures for a 40-hour work week, speculative. The Hearing Officer's findings of fact on this subject matter are adhered to and those in this paragraph are rejected as not supported by the evidence and as subordinate to the Hearing Officer's findings of fact. Rejected, as not supported by the preponderant evidence of record in light of the Hearing Officer's findings of fact concerning the liability issue. Respondent's Proposed Findings of Fact 1-2. Accepted. 3. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by the record. 4-6. Accepted. 7. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by the evidence of record. 8-10. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, except as modified by the Hearing Officer's findings of fact. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 15-17. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. 20-25. Accepted. 26. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 27-98. Accepted, except as modified by the Hearing Officer's findings of fact and by the Hearing Officer's acceptance of the proposed findings of fact by the Petitioner concerning the hourly wage rates Petitioner would have received with her next scheduled pay raises had she remained employed. COPIES FURNISHED: Margaret Jones, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Dana Baird, Esq. General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Ben R. Patterson, Esq. PATTERSON & TRAYNHAM 1215 Thomasville Road P.O. Box 4289 Tallahassee, FL 32315-4289 George J. Little, Esq. 134A Constitution Lane P.O. Box 1612 Marianna, FL 32446 John D.C. Newton, III, Esq. AURELL, RADEY, ET AL. Suite 1000, Monroe-Park Tower 101 North Monroe Street P.O. Drawer 11307 Tallahassee, FL 32302
The Issue The issue is whether Amalgamated Transit Union Local 1395 (“the Union”) committed an unlawful employment practice against Petitioner (“Addie L. McMillan”) by failing to provide her with the same level of advocacy provided to Union members and non-African-Americans.
Findings Of Fact Ms. McMillan is a 55-year-old, African-American female who had worked at ECAT for 22 years. She began as a part-time beach trolley operator and progressed to becoming a full-time bus driver. The Union and ECAT had a labor agreement1/ in place between October 23, 2013, and September 30, 2016 (“the labor agreement”). Article 52 of the labor agreement had a policy regarding the use of cell phones by ECAT employees and provided as follows: While on duty the use of cellular phone or any other personal communication device is limited as follows: SECTION 1: The use by an employee of a cellular phone or any other personal communication device while behind the wheel of a transit vehicle, or any other Company motor vehicle is prohibited while the vehicle is not secured. Push to talk communication devices issued by the Company may be used for work related purposes only where authorized by the Company and permitted by law, but must be used in a manner, which would not create an unsafe situation. Note – Secured definition: Vehicle must be in neutral/park position and emergency brake on. SECTION 2: If it becomes necessary to use a cellular phone, employees must be at the end of the line/trip (on layover, if applicable) or in a safe location with the bus secure. At no time is it permissible to use a cellular phone if the use will cause the trip to be late at its next scheduled time point. SECTION 3: The use of a cellular phone or other communication device by an employee while on the shop floor or during work time (unless previously approved) is prohibited, other than a Push to Talk communication device issued by the Company for work related purposes, and only where authorized by the Company and permitted by law. Federal and State law supersede the above policy. SECTION 4: Disciplinary Action: Failure to comply with any portion of this policy may result in disciplinary action as follows: Violation of Section 2 or Section 3 of this Article: 1st offense: 3-day suspension 2nd offense: Termination Violation of Section 1 of this Article: 1st offense: Termination On the morning of July 29, 2015, Ms. McMillan was driving a route that went through the Naval Air Station in Pensacola, Florida. At that time, the navy base had been on alert status for approximately one month. As a result, every vehicle entering the navy base had to be searched, and that caused Ms. McMillan’s bus to run behind schedule. At approximately 10:30 that morning, Ms. McMillan needed to use a bathroom and called a dispatcher via a radio provided by ECAT. The dispatcher contacted by Ms. McMillan was not receptive to her request for a bathroom break and cut off communications. Because Ms. McMillan was unsuccessful in re- establishing contact with the dispatcher over the radio, she used her personal cell phone to call a coworker, Elaine Wiggins. Ms. McMillan was hoping that Ms. Wiggins could assist her with contacting an ECAT general manager. At this point in time, the bus driven by Ms. McMillan was in traffic and moving. In other words, it was not “secured” by being in the neutral/park position with the emergency brake on. Diane Hall was an assistant general manager for ECAT during the time period at issue, and Ms. Hall talked to Ms. McMillan via Ms. Wiggins’ cell phone. Ms. Hall stated to Ms. McMillan that the route she was driving had a pre-arranged break point at a bowling alley and that Ms. McMillan could use a bathroom there. It is possible that Ms. McMillan would not have suffered any consequences for her violation of the cell phone policy but for a customer complaint provided to ECAT on July 28, 2015. On July 28, 2015, at 12:25 p.m., Roberta Millender, a customer service representative at ECAT, received a phone call from a customer who reported that the bus driver for Route 57 had left the bus at approximately 11:00 a.m. in order to smoke a cigarette, even though the bus was 25 minutes behind schedule. Ms. McMillan also drives that route. ECAT’s buses are equipped with video cameras. Therefore, ECAT reviewed the videotape from that particular bus in order to investigate the complaint. Because the bus videotapes are on a continuous loop, ECAT had to pull video corresponding to days before and after July 28, 2015. While looking for the incident on July 28, 2015, that led to the customer complaint, an ECAT employee noticed that Ms. McMillan was using her cell phone on July 29, 2015. There is no dispute that Ms. McMillan is not the bus driver who took the cigarette break on July 28, 2015.2/ On July 30, 2015, ECAT began an investigation of Ms. McMillan’s cell phone use. ECAT notified Ms. McMillan that she would continue to work during the investigation. ECAT terminated Ms. McMillan on August 3, 2015, for violating section 1 of Article 52 of the labor agreement. Article 5 of the labor agreement sets forth the procedures that ECAT and the Union follow in order to resolve labor issues. Pursuant to Section 2 of Article 5, Michael Lowery, the President of the Union, filed an “Official Grievance Form” (“the McMillan grievance”) with Mike Crittenden, ECAT’s General Manager. Ms. McMillan had reservations about Mr. Lowery handling her grievance. Because she had not joined a recent strike and was not a Union member, Ms. McMillan feared that Mr. Lowery would not use his best efforts on her behalf. However, Mr. Lowery handles the majority of the grievances, and he handles all of the grievances involving termination.3/ The McMillan grievance stated the following: The employee does not dispute the offered video and will stipulate that she used her personal cellphone while operating a transit bus while not secure. This professional bus operator understood the Company policy but did not clearly understand the proper procedure to request assistance to disembark her motor coach while under tremendous physical bodily stress to relieve herself of a bodily function. Operator McMillan understood the procedure to request a 10-7 (Operator off Motor Coach) but was concerned with her bodily stress and finding a safe, clean rest room which was continuing to cause significant additional stress. The Company has clearly FAILED to work at providing known secure, clean, safe facilities for professional bus operators to utilize while operating ECAT buses. The Union has brought this topic forward to Management numerous times and no action has been taken to formulate the needs of the professional bus operators on many bus routes including the bus route that Operator McMillan was driving on the day in question. Operator McMillan was dealing with other related stress on that particular run. The military base was under alert and traffic was extremely backed up. She was dealing with one Dispatcher Supervisor and had reached agreement with him on how to proceed on the bus route. But when another Dispatch Supervisor came on duty it was clear that neither of those Supervisors had shared information on dealing with Route 57 with the military heighten[ed] alert. The new Dispatch was difficult to communicate with about established procedures set earlier with another Dispatcher. This did not help the already adverse or very demanding circumstance. Mr. Lowery concluded the grievance by asking that ECAT rescind its termination of Ms. McMillan, pay her lost wages and benefits, and remove any discipline from her file. Ordinarily, the first step in resolving a grievance involves settlement discussions between ECAT officials and the Union. However, because Ms. McMillan’s grievance involved a termination, it went directly to Mr. Crittenden for his consideration. Via an e-mail dated August 4, 2015, Mr. Crittenden notified Mr. Lowery that he was “denying this grievance and upholding the termination of the subject employee.” Because Ms. McMillan’s grievance was denied, the next step in the process called for the Union to decide whether it wanted to submit the grievance to arbitration.4/ As part of this next step, Mr. Crittenden prepared a draft version of a “Last Chance Agreement” for the Union to review. A Last Chance Agreement is an agreement between an employee, ECAT, and the Union. The draft Last Chance Agreement prepared by Mr. Crittenden contained the following provisions: The employee violated the Company’s cell phone [policy] which is a serious safety infraction that warrants immediate termination. In lieu of terminating her employment, the Employee’s discipline record will reflect this infraction as suspended without pay from August 3, 2015 to August 14, 2015 and returning to work on August 17, 2015 upon acceptance of this agreement, and placed on a twelve month probation/Last Chance Agreement. The employee will retain her rate of pay and security. The employee understands that in the event she violates company policy by being charged with any infraction that warrants immediate termination, her employment will be terminated without any further consideration. This agreement will be in effect for a period of twelve (12) months from the date of signature. The Employee attests that her signature below was in no way coerced by any party or by the representative of any party. By entering into this agreement, the employee acknowledges that she has read and considered each of the provisions of this Agreement and that she voluntarily enters into this Agreement with full knowledge of the consequences. This Agreement is made on a one-time only, non-precedent basis that shall not be used or referred to in any future discipline or termination case or during any grievance/arbitration hearings between the parties. Mr. Lowery presented the proposed Last Chance Agreement to the Union’s legal counsel, and the Union had an issue with the seventh provision’s reference to “non-precedent basis.” Mr. Lowery attempted to reach an agreement with Mr. Crittenden for amending that provision, but his efforts were unsuccessful. Mr. Crittenden would not consent to the removal of that language. Ms. McMillan was disturbed by the fact that she had no input into the Last Chance Agreement proposed by Mr. Crittenden and that it was not presented to her for approval. However, after the Union decided not to accept Mr. Crittenden’s proposal, Ms. McMillan’s approval or disapproval became irrelevant. As noted above, a Last Chance Agreement involves three consenting parties: the employee, ECAT, and the Union. Thus, even if Ms. McMillan had been satisfied with the Last Chance Agreement proposed by Mr. Crittenden, it would not go into effect without the Union’s approval. In order for the Union’s Executive Board to vote on whether to refer Ms. McMillan’s case to arbitration, Mr. Lowery put Ms. McMillan’s grievance on the agenda of the Executive Board’s August 23, 2015, meeting. The five members of the Executive Board who were present and eligible to vote unanimously recommended against pursuing arbitration for Ms. McMillan’s grievance because her case lacked merit. As for why Ms. McMillan’s case lacked merit, Mr. Lowery testified that Well, basically, it’s pretty simple, we negotiated the policy in the labor agreement, and this was a video. And the video showed that she had clearly violated the policy. And so from there, it was going to be very difficult, based on that evidence, that we were not going to be able to go forward. And that’s why the membership voted not to go forward. The Executive Board’s recommendation was considered by the full Union membership later that day, and the Union voted to accept the Executive Board’s recommendation. When asked to explain why the Union elected not to arbitrate Ms. McMillan’s grievance, Mr. Lowery testified that Simply it’s the severity of the policy, which was it’s in the labor agreement. It was negotiated between the Union and the company. And because they had a solid video, we would not be able to demonstrate a way to achieve a victory in that arbitration case. And, potentially, because it’s in the Labor Agreement, that would be used against us in an arbitration because we negotiated it. We negotiated the policy. When subsequently asked a very similar question, Mr. Lowery reiterated that Well, basically, it’s pretty simple, we negotiated the policy in the labor agreement, and this was a video. And the video showed that she had clearly violated the policy. And so from there, it was going to be very difficult, based on that evidence, that we were not going to be able to go forward. And that’s why the membership voted not to go forward. The Union has not arbitrated any grievances in which a driver has been terminated for using a cell phone while a bus was not secured. Including Ms. McMillan, four drivers have been terminated for violating section 1 of Article 52 since the labor agreement has been in place. Three of those drivers were African-American (two females and one male), and one was a Caucasian female. Mr. Crittenden was unaware of any driver being retained by ECAT after violating the cell phone policy.5/ In addition to Mr. Crittenden, Ms. McMillan called three other ECAT employees who were unaware of any bus driver being retained after violating the cell phone policy. Mr. Lowery represents every grievance to the best of his ability, and he represented Ms. McMillan’s grievance to the best of his ability. The greater weight of the evidence demonstrates that he handled Ms. McMillan’s grievance no differently than any other grievance.6/ Mr. Lowery did not consider Ms. McMillan’s race or religion in the course of representing her.7/ The Union did not discriminate against Ms. McMillan based on her race or non-union status. In addition, to whatever extent that Ms. McMillan is alleging that she was discriminated against on any other grounds, there is no evidence to support such allegations.
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 dismissing Addie L. McMillan’s Petition for Relief from an Unlawful Employment Practice. DONE AND ENTERED this 31st day of May, 2017, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 31st day of May, 2017.
The Issue Whether the Respondent committed the violations alleged in the Second Amended Order of Penalty Assessment filed February 2, 2006, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency charged with the responsibility of enforcing the requirement of Section 440.107, Florida Statutes, that employers in Florida secure workers' compensation insurance coverage for their employees. § 440.107(3), Fla. Stat. Twin City is a Minnesota corporation that registered to do business in Florida on October 24, 2004. During the times material to this proceeding, Twin City was engaged in the roofing business. On July 8, 2004, an investigator employed by the Department stopped at Twin City's office in Jupiter, Florida, because he had observed vehicles parked around the office that had signs indicating that the company engaged in roofing work. He arrived at the office early, and waited about 15 minutes, when individuals began arriving in the office parking lot. Most of the individuals wore shirts that carried the name "Twin City Roofing." When he consulted the database routinely used by the Department to determine whether businesses operating in Florida had workers' compensation insurance coverage as required by Florida law, the Department's investigator found no record that Twin City had obtained a Florida policy providing workers' compensation insurance coverage for its employees. Twin City did, however, have workers' compensation insurance coverage through the Minnesota Workers' Compensation Assigned Risk Plan, which issued a Standard Workers' Compensation and Employers' Liability Policy covering Twin City only under the Workers' Compensation Law of Minnesota. Pursuant to Section 3.C. of the policy, the policy did not apply in any state other than Minnesota. The Department's investigator issued a Stop Work Order and an Order of Penalty Assessment on July 8, 2004, and personally delivered them to the Twin City office. The Stop Work Order required that Twin City "cease all business operations in this state" and advised that a penalty of $1,000.00 per day would be imposed if Twin City were to conduct any business in violation of the Stop Work Order. Twin City violated the Stop Work Order by continuing to engage in business activities on July 12 and 13, 2005. At the same time he delivered the Stop Work Order and the Order of Penalty Assessment to Twin City's office, the Department's investigator hand-delivered a Request for Production of Business Records for Penalty Assessment Calculation. Identification of Twin City's employees The Department's investigator questioned a number of the individuals he saw in Twin City's parking lot on the morning of July 8, 2005, and asked if they were employed by Twin City. On the basis of a "Turn Around Report" provided later in the day by Twin City, the Department's investigator verified that, except for Aaron Colborn, Jimmy Benegas, and Jaime Andrade, the individuals he questioned in the parking lot were leased employees and that the leasing company provided these employees with workers' compensation insurance coverage, as required by Florida law. Aaron Colborn and Jimmy Benegas were not leased employees, and, based on the admission of Twin City, Aaron Colborn and Jimmy Benegas were employees of Twin City during the period extending from October 24, 2004, through July 8, 2005.3 Jaime Andrade was one of the individuals standing outside the Twin City office on the morning of July 8, 2004. Unlike the other individuals, Mr. Andrade was not wearing a shirt bearing Twin City's name. Mr. Andrade told the investigator that he was a Twin City employee, that he had been employed for only two days, and that he had not yet been paid. His name did not appear on the list of leased employees provided in the Turn Around Report. The Department's investigator included Mr. Andrade as an employee of Twin City based on Mr. Andrade's statements. The evidence presented by the Department is not sufficient, however, to establish that Jaime Andrade was an employee of Twin City during this period. The investigator also spoke with several individuals in the Twin City office during his early-morning visit on July 8, 2004, and during a visit later that morning. The investigator spoke with James Geisen, the president of Twin City, and Jeffrey Willett, Mr. Geisen's stepson, who both identified themselves as Twin City employees. The investigator also observed Karen Geisin, James Geisen's wife, apparently working at a desk in the office, and he assumed that Mrs. Geisen was also an employee of Twin City. Twin City does not dispute that Mr. Geisen and Mr. Willett were employed by Twin City during the time it did business in Florida.4 Mr. Geisen worked in Florida with Twin City for approximately half of the period extending from October 24, 2004, through July 8, 2005, and was paid a salary by Twin City during this period. Mr. Willett worked in Florida with Twin City for approximately half of the period extending from January 1, 2005, through July 8, 2005, and was paid a salary by Twin City during this period. Mr. Geisen and Mr. Willett were, therefore, imputed to be employees of Twin City for the period extending from October 24, 2004, through July 8, 2005. Mrs. Geisen often accompanied her husband to Florida during the period extending from October 24, 2005, through July 8, 2005. She sometimes worked for Twin City in Florida, but she did not receive any salary or other remuneration for her services. Based on the admission of Twin City, however, Mrs. Geisen was an employee of Twin City during the period at issue.5 The employees of Twin City for the period at issue, therefore, were James Geisin, Karen Geisin, Jeffrey Willett, Aaron Colborn, and Jimmy Benegas. Penalty assessment for failure to secure workers' compensation coverage. The penalty for failure to secure the workers' compensation insurance coverage required by Florida law is 1.5 times the premium that would have been charged for such coverage for each employee. The premium is calculated by applying the approved manual rate for workers' compensation insurance coverage for each employee to each $100.00 of the gross payroll for each employee. Twin City failed to provide payroll records on which the Department's investigator could base his calculation of the penalty for Twin City's failure to obtain the workers' compensation insurance coverage required by Florida law within 45 days of the date of the July 8, 2005, request. Based on his observations and because of the lack of payroll records for Twin City, the Department's investigator included as employees in his calculation the six individuals he observed at Twin City on July 8, 2005, who were not identified as leased employees: James Geisen; Karen Geisen; Jeff Willett; Aaron Colborn; Jimmy Benegas, and Jaime Andrade. Because Twin City failed to provide payroll records from which the Department's investigator could determine the gross payroll for these six individuals, the Department's investigator applied Florida's official statewide average weekly wage to determine the gross payroll to be imputed to each of the six individuals. Florida's official statewide average weekly wage was $626.00 per week for the period extending from October 24, 2004, through December 31, 2004, and $651.38 for the period extending from January 1, 2005, through July 8, 2005. The gross payroll imputed to each of the six employees was, therefore, $9,770.70 from October 24, 2004, through December 31, 2004, and $26,380.89 from January 1, 2005, through July 8, 2005. In calculating the premium for workers' compensation insurance coverage, the Department's investigator used the risk classifications and definitions of the National Council of Compensation Insurance, Inc. ("NCCI") SCOPES Manual. Because Twin City provided no payroll records, the Department's investigator classified all six individuals under the highest- rated classification for Twin City's business operations, which was classification code 5551, the classification code assigned to employees of businesses engaged in roofing activities of all kinds. The approved Florida manual rate assigned to Scopes classification code 5551 was $46.17 per $100.00 of payroll for the period extending from October 24, 2004, through December 31, 2004, and $37.58 per $100.00 of payroll for the period extending from January 1, 2005, through July 8, 2005. The Department's investigator used these figures to calculate the workers' compensation insurance coverage premium for each of Twin City's employees as $4,511.13 for the period extending from October 24, 2004, through December 31, 2004, and $9,913.94 for the period extending from January 1, 2005, through July 8, 2005, for a total premium of $86,550.42. The penalty assessment was calculated by multiplying the total premium by 1.5, for a penalty of $129,825.66. Because the evidence establishes that Twin City had five rather than six employees during the period at issue herein, the penalty calculation must be modified as follows: The total penalty must be reduced by $21,637.61 ($6,766.70 + $14,870.91), for a revised total penalty of $108,188.05 ($129,825.66 - $21,637.61).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers' Compensation, enter a final order: Finding that Twin City Roofing Construction Specialists, Inc., failed to have Florida workers' compensation insurance coverage for five of its employees, in violation of Sections 440.10(1)(a) and 440.38(1), Florida Statutes; Assessing a penalty against Twin City in the amount of $108,188.05, which is equal to 1.5 times premium based on imputed payroll for these five employees and on the approved manual rate for the classification code 5551 for the period extending from October 24, 2004, through December 31, 2004, and from January 1, 2005, through July 8, 2005, as provided in Section 440.107(7)(a), (d), and (e), Florida Statutes; Finding that Twin City engaged in business operations for two days during the pendency of the Stop Work Order issued July 8, 2005, in violation of Section 440.107(7)(a), Florida Statutes, and imposing a penalty of $2,000.00, against Twin City for engaging in business operations on July 12 and 13, 2005, as provided in Section 440.107(7)(a) and (c), Florida Statutes. DONE AND ENTERED this 30th day of August, 2006, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 30th day of August, 2006.
The Issue Whether Petitioner, Kurt Shannon, was subject to an unlawful employment practice by Respondent, Amalgamated Transit Union, Local 1593, based on his race in violation of the Florida Civil Rights Act.
Findings Of Fact Petitioner is a former bus operator for the Hillsborough Area Regional Transit (“HART”). Petitioner worked for HART from 2006 through January 2014. At all times relevant to this proceeding, Petitioner was a member in good standing with the Union. Petitioner joined the Union in 2006 as soon as he was eligible. The Union is the bargaining unit for HART. The Union has approximately 350-600 members. The Union’s membership consists of a majority of African-American and Latino members. The Union’s executive board is also majority African-American and Latino. HART terminated Petitioner based on an incident that occurred on December 6, 2013. At the time, Petitioner was operating his bus and had stopped to allow passengers to board. A young male patron climbed onto the bus and attempted to pay his bus fare with a pass card. The patron’s pass card would not work. Petitioner questioned the patron as to whether his pass card was expired. The patron became unruly and began cursing. Petitioner admonished him and ordered him off the bus. Immediately, thereafter, Petitioner left his seat (revealing he was not wearing his seatbelt) and followed the patron off the bus. Petitioner explained that he wanted to ensure that the patron did not attempt to re-enter the bus. When he stepped off the bus, however, Petitioner recounted that the two men exchanged heated words. Without warning, the patron lunged at Petitioner and hit him in his face. Petitioner testified that he could not retreat. Therefore, he punched the patron back in an attempt to defend himself. Several bus passengers stepped in to stop the fight. One of them called the police. Upon learning of the incident, HART initiated termination proceedings. HART asserted that Petitioner should never have left his seat. Instead, once the patron exited the bus, Petitioner should have closed the bus door and proceeded on his route. HART charged Petitioner with three infractions: use of threat or force, other than self-defense (a class “A” violation which may result in termination); disorderly/inappropriate conduct by leaving his seat and following the patron off the bus (a class “B” violation); and failing to actively and properly engage in work duties/responsibilities by not having his seat belt fastened (a class “C” violation). On January 14, 2014, HART formally notified Petitioner that it was terminating his employment. HART dismissed Petitioner based on the class “A” violation. HART and the Union are parties to a collective bargaining agreement entitled Contract Between Hillsborough Area Regional Transit Authority and Amalgamated Transit Union Local 1593 (the “Bargaining Agreement”). The Bargaining Agreement provides a grievance procedure to process complaints by aggrieved HART employees. The grievance procedure culminates in final and binding arbitration. The Union is required to process grievances for its members. Following his termination, Petitioner requested the Union take his case to arbitration. The Union executive board agreed. The Union timely notified HART that it was initiating the grievance process to contest Petitioner’s discharge. Petitioner’s grievance culminated in an arbitration hearing which was held on December 9, 2014. The crux of Petitioner’s complaint of unlawful discrimination, as more fully set forth below, is that the Union did not provide an attorney to represent him at his arbitration hearing. Instead, then-Union President James Saunders, a non- lawyer, decided to personally represent Petitioner at the arbitration. Unfortunately for Petitioner, his arbitration was not decided in his favor. Petitioner testified at the arbitration and asserted that his actions were simply self-defense. The Arbitrator agreed that Petitioner did not commit the alleged class “A” violation of assault because the evidence failed to show that Petitioner had placed the patron in fear of imminent harm. However, the Arbitrator concluded that Petitioner did commit two class “B” violations by leaving his seat and exiting the bus, and by gesturing in a provocative manner towards the patron. Moreover, the Arbitrator found Petitioner’s testimony to be less than credible because his version of events was inconsistent with his prior statements and other relevant evidence. Under the Bargaining Agreement, Article 74, Section 1, the penalty for two class “B” violations in close proximity includes discharge. Consequently, on or about March 13, 2015, the Arbitrator issued an opinion denying Petitioner’s request for relief and upholding the termination. At the final hearing, Petitioner asserted that he lost his grievance proceeding because of inferior representation at the arbitration hearing. Petitioner complained that President Saunders did a very poor job of defending him. Petitioner thought President Saunders was ineffective and unprepared, and made no effort on his behalf at the hearing. Petitioner complained that President Saunders did not offer any substantive comments and failed to present Petitioner’s primary defense to the Arbitrator--that Petitioner was not the aggressor and did not initiate the confrontation. As an example, Petitioner claimed that President Saunders did not offer the police report into evidence which would have supported his version of the incident.2/ Neither did President Saunders contest HART’s witnesses’ testimony or argue for a more appropriate punishment based on similar incidents. At the final hearing, Petitioner insisted that he had a good case. He asserted that he would have prevailed at the arbitration if he had an attorney representing him.3/ Petitioner claims that the Union deliberately decided not to provide him an attorney based on his race. Petitioner testified that the Union obtained attorneys to represent other Union members at their arbitration hearings. Petitioner did not believe that the Union took his case seriously. President Saunders was not present at the final hearing. Henry Marr, the Union’s financial secretary, testified regarding why President Saunders represented Petitioner instead of an attorney. Mr. Marr explained that the Union is not required to retain an attorney to represent its members in grievance proceedings. It is only required to provide representation. Mr. Marr relayed that the Union has conducted many hearings with non-lawyer representatives.4/ Mr. Marr recounted that in Petitioner’s grievance proceeding, after the Union agreed to take the case to arbitration, President Saunders decided that Petitioner’s matter did not warrant an attorney. Mr. Marr expressed that the Union felt comfortable with President Saunders’ decision to represent Petitioner himself. President Saunders had significant experience advocating for Union members. The Union had arranged for President Saunders to receive training from the George Meany Institute in Maryland on how to advocate for employees in arbitrations. President Saunders had also participated in many arbitration hearings on behalf of Union members. Mr. Marr believed that President Saunders’ decision to represent Petitioner himself was appropriate because Petitioner’s grievance did not present any technical questions and did not involve the application or interpretation of Florida Statutes. In 2015, following Petitioner’s arbitration decision, President Saunders resigned from his post with the Union. The Union replaced him with its vice-president, Daniel Silva. At the final hearing, President Silva testified regarding President Saunders’ decision to represent Petitioner. President Silva opined that President Saunders was sufficiently knowledgeable and experienced to present Petitioner’s case. President Silva also relayed that financial concerns factor into the Union’s decision on whether to provide private legal counsel to represent members. The Bargaining Agreement states that each party “shall bear the cost of preparing and presenting its case.”5/ The Union is conscious of the need to conserve its funds whenever possible, including attorneys’ fees. At the final hearing, Petitioner presented the names of three other Union members for whom the Union provided legal counsel at arbitration hearings. Petitioner did not provide details regarding the circumstances of HART’s employment actions or whether the underlying facts of each matter were substantially similar to his incident. At the final hearing, the Union conceded that for most arbitration hearings it offers its members the services of an attorney. However, President Silva testified that President Saunders represented at least one other white Union member at an arbitration in November 2014. This member, Robert Rackham, did not prevail at his arbitration.6/ President Silva and Mr. Marr testified that Petitioner’s race had no bearing in President Saunders’ decision not to assign an attorney to represent Petitioner at his arbitration hearing. Rather, President Saunders made his decision because he believed he could competently represent Petitioner on his own. Mr. Marr testified that he is not aware of any decision the Union has made based on a member’s race. Based on the evidence and testimony presented at the final hearing, Petitioner did not demonstrate, by a preponderance of the evidence, that the Union discriminated against him based on his race in violation of the Florida Civil Rights Act.
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 that Respondent, the Union, did not commit any unlawful employment practice against Petitioner and dismiss his Petition for Relief from an Unlawful Employment Practice. DONE AND ENTERED this 2nd day of December, 2016, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 2nd day of December, 2016.
Findings Of Fact Petitioner was employed as a journeyman sheet metal worker at the Florida Power and Light Crystal River project in May, 1982. At the time of his employment, the local union could not provide the sheet metal workers required by Respondent and Petitioner, with others, were hired as "travelers" as opposed to locals. Petitioner was qualified for the job held. In August, 1982, Petitioner was injured on the job and was placed on worker's compensation and returned to Alabama until he recovered. While Petitioner was on worker's compensation, the project on which he was working neared completion and it became necessary to reduce the number of workers employed thereon. Pursuant to an unwritten agreement between the union and Anco, "travelers" are the first to go when the work force is to be reduced. Thereafter, pursuant to the contract (Exhibit 1), the employer can lay off as he deems necessary to keep the best qualified people without regard to seniority. In accordance with this unwritten policy most of the "travelers" quit when the reduction of work made their jobs redundant. Some of those leaving were from Petitioner's Alabama union and were asked to tell Petitioner not to return to work unless called. None of these employees so advised Petitioner. The local union provides all applicants for jobs at Anco. If available these always comprise members of the local union. If the trades needed are unavailable, the union notifies sister unions located elsewhere and members of those unions may apply for the job openings. These are "travelers" and are expected to leave the job to make room for locals anytime the latter become "idle" (out of work) Petitioner returned to the job site September 26, 1982. At that time no "travelers" were employed as sheet metal workers. To help compensate Petitioner for his expenses in returning to the job site from Alabama, petitioner was put back to work for two days before he was discharged on September 23, 1982.
Findings Of Fact Richard H. Blake, Petitioner, was employed by the City of Tallahassee in February of 1981 as a coach operator driving a Taltran bus. During the period between February 1981 and his discharge on May 11, 1982, his attendance had not been good and in April 1982 he was issued a written reprimand (Exhibit 5). The specific incident giving rise to this reprimand was Petitioner's calling in shortly before he was due to take his bus out saying he did not feel like driving. The City has a policy that drivers must notify their supervisors at least one hour prior to the time their run is due out if they are unable to meet that scheduled commitment. The reprimand was given for Blake's failure to comply with this policy. He was directed to report for work, which he did after the supervisor had departed with Blake's bus. Blake did not claim to be sick or ask for sick leave. At the same time this reprimand was issued Blake was directed to report to the Employee Assistance Program for evaluation and help. The Employee Assistance Program (EAP) for employees of the City of Tallahassee is operated by Apalachee Mental Health Services. City employees with certain problems affecting their work performance are referred to EAP for evaluation and, if desired by the employee, assistance. The evaluation is not revealed to the employer and the employee is not required to undergo treatment recommended by EAP. The employee referred to EAP is required to go for evaluation. The program is conducted at no cost to the employee and time off is given the employee to go for evaluation and treatment. This program is considered to be a fringe benefit to the employees of the City of Tallahassee. Petitioner reported to EAP as directed and embarked on a rehabilitation program with Apalachee Mental Health Services. No report of Petitioner's evaluation or treatment was made to Respondent. On Monday, May 10, 1982, Petitioner called in around 6:45 a.m. to say he was sick and did not feel like coming to work. The call was made within 30 to 45 minutes before time for his run to start and too late for a relief driver to be obtained. Blakes's supervisor told him to come to work so his bus could go out on schedule. Blake reported as directed, took his bus out and about an hour later (around 8:00 a.m.) called in from his route claiming he was sick and needed someone to relieve him. At the time this call for relief came the Superintendent of Operations, Lloyd McCoy, was at the Taltran depot and he drove a relief driver to Blake's location where Blake was relieved and driven back to the depot by McCoy. Enroute back to the depot McCoy smelled what he thought to be alcohol on Blake's breath and asked Blake if he would consent to a breathalyzer test. Blake agreed to a test and was left in the car while McCoy went into the station to make arrangements with the police. When McCoy came out to tell Blake arrangements had been made for the test, Blake had departed. Later that morning Blake reported to the Police Station but the police would not administer the breathalyzer test without his supervisor being present. Blake then went to the City of Tallahassee Personnel Office where he talked to Beulah Gregory, a Personnel Analyst with the City and Coordinator of EAP. Blake told her he had been told to take a breathalyzer test but would not go unless she went with him. Gregory called McCoy, who met her and Blake at the Police Station, where, at approximately 11:25 a.m. the breathalyzer test was taken by Blake. The test showed a reading of between .05 and .06 percent blood-alcohol. Blake testified that during the period he worked for the City of Tallahassee as a Taltran bus driver he was an alcoholic; that he had been an alcoholic for ten years but did not list this as a handicap on his employment application; that he drank every evening until midnight when he would stop drinking and go to bed so he would be able to work the following morning; that during the weekends while he was not on duty he drank all weekend; that Sunday, May 9, 1982, he drank all day and into the night; that after he went to bed that night at his girlfriend's house he started coughing and had a runny nose; that he started taking Nyquil to help his cough; that between midnight and 7:00 a.m. the following day he drank almost one and one-half bottles of Nyquil; that he did not know Nyquil contained alcohol until after he had taken the breathalyzer test; that when he called in May 10 to say he was sick he had a cough and runny nose; and that it was his cough and runny nose that necessitated him calling for a relief driver after he started his route on May 10, 1982. Between the time he was relieved at his bus until the breathalyzer test was taken Blake took one dose (one and one-half ounces) of Nyquil. A person the weight of Petitioner with the blood-alcohol reading of .055 at 11:25 a.m. related back to 8:00 a.m. when Petitioner was relieved from his run on May 10 would, in the absence of additional alcohol intake after the run started, have shown a blood-alcohol level of .11 percent at 8:00 a.m. A blood-alcohol reading of .10 percent is conclusively presumed to represent intoxication and any person driving a vehicle with that blood-alcohol level will be charged with driving under the influence. The police may arrest and charge a driver with DUI whose blood-alcohol level is .05 and above who is driving erratically or otherwise indicates something abnormal. Following receipt of the results of the blood-alcohol test on May 10, 1982, Petitioner was dismissed as a Taltran bus driver by Respondent on May 11, 1982. No evidence was presented by Petitioner to raise any inference that his race had any relation to his discharge. The evidence respecting race that was presented is that the majority of Taltran bus drivers are black and that the driver hired to replace Petitioner following Petitioner's dismissal was also black. Blake was subsequently rehired by the City of Tallahassee as a Custodian II. He contends that he is now sober and a reformed alcoholic. This testimony was not rebutted.
Findings Of Fact The Communication Workers of America (CWA) is an employee organization and the St. Petersburg Junior College is a public employer. In June, 1976, CWA was attempting to organize various employees at SPJC. To facilitate getting their message to the employees and the group for which representation was sought, CWA inquired of SPJC about renting a classroom. Initially CWA was advised that no bar to renting the room was foreseen; however, the following day CWA was advised by SPJC that they would not rent the use of a classroom to CWA. Thereafter on June 14, 1976 CWA submitted a written request (Exhibit 3) to SPJC requesting rental of a room any weekday between July 19 and July 30. No written response to this request was made but upon oral inquiry CWA was advised that they would not be able to rent the room. In April, 1975 the President of SPJC issued a memorandum (Exhibit 6) to managerial employees advising that union activities were being conducted on the campus and that they should be on the lookout for various signs of union activities. Examples of what to look for were given. A union organizer at SPJC, Ms. Marcia Warden, was the principal complaining witness in these proceedings. She testified she was being followed by "supervisory" personnel each time she came on SPJC campus and was thereby prevented from having access to the employees. There were only two employees in the unit solicited by CWA that were excluded from union participation by reason of their managerial status. Another witness, an employee of SPJC, never saw either of these two employees in the vicinity of Ms. Warden the 10 or so times she observed Ms. Warden on the campus. At the beginning of the organization drive notices of union organizational meetings were removed from campus bulletin boards. However, after October the union was allowed to post on these bulletin boards notices of union meetings. This authorization was memorialized in a letter to Ms. Warden dated October 18, 1976 (Exhibit 9). Thereafter on October 31, 1976, Ms. Warden advised PERC that as a result of this change in SPJC's policy, no further amendments would be made to their unfair labor practice charge (Exhibit 7). Prior to the end of 1976 a settlement agreement was executed between SPJC and CWA (Exhibit 8). During the organization drive SPJC did not cooperate with the CWA to facilitate their task. A list of employees was not given to CWA until after a law suit was brought by CWA. A full list of employees was provided CWA 7 days prior to the election. Ms. Warden also testified that by refusing to rent the union a room SPJC removed CWA from access to the employees other than at the parking lot where she was being watched by supervisors. An employee of SPJC in the proposed unit testified that she received numerous notices in the mail at her home address and that Ms. Warden had visited her at her home on organizational business. SPJC's policy regarding renting classrooms to non-profit organizations is contained in Exhibit 5. Most such organizations that apply to lease meeting space from the college are successful in doing so. The only exceptions noted at the hearing were a karate group that had previously done some property damage, a gay liberation group, and the CWA. Meetings had been held between SPJC and a previous group attempting to represent the college employees called the Career Services Employment Council. No meetings were held with that organization subsequent to July, 1976 and no evidence was presented that the group was ever allowed to rent college space for Organizational meetings. No evidence was presented that union representatives were barred from SPJC campus, that reasonable diligence on the part of union organizers would have been unsuccessful in Obtaining the names and addresses of employees in the proposed unit, or that the employer actively interfered with CWA Communicating with its employees during non-working hours. On the other hand SPJC did not cooperate with CWA so as to facilitate the Organizational efforts of the CWA. CWA requested the use of a room at SPJC during working hours, i.e. from 1 to 4 P.M. and meetings held during those times could have interfered with the program of the college. However the union proposed these hours in order to have access to the largest shift of employees in the proposed bargaining unit who normally reported for duty at 2:50 P.M. Subsequent to 3:00 P.M. CWA proposed to meet with the shift that came off duty at 2:50 P.M. All proposed findings of fact submitted by Respondent are treated in the findings herein submitted or were considered immaterial to the issues to be resolved.
