The Issue Whether Petitioner has established, by a preponderance of the evidence, that Respondent is guilty of unlawful employment practices as alleged in the Petition for Relief. AUTHORITY Chapters 120 and 760, Florida Statutes, and Rule 60Q, Florida Administrative Code.
Findings Of Fact Petitioner, D. Paul Sondel, was born August 13, 1928, and was, at the time of final hearing, 65 years of age. On April 11, 1993, Petitioner saw a newspaper advertisement for the position of Analyst I with the Florida Board of Bar Examiners (FBOBE). On April 12, 1993, Petitioner went to the office of the employment agency which the FBOBE was using to locate and screen applicants. Petitioner was told that he would not be allowed to apply or take the pre- employment test for the position because he had a graduate degree and only persons who have a Bachelor's degree but no graduate degree(s) were allowed to apply. On June 1, 1993, Petitioner filed a charge of discrimination with the Florida Commission on Human Relations, in which he alleged that the FBOBE requirement that no one would be considered for the position of Analyst I who had a higher level degree than the minimum required Bachelor's degree, served the "intended purpose" of eliminating older applicants, especially those over Petitioner further alleged that the existence and implementation of such FBOBE policy was in violation of the federal Age Discrimination in Employment Act (ADEA). Respondent hired two persons to fill the April 1993 advertised position of Analyst I. One of the persons hired was 24 and the other was 23 years of age. The FBOBE is an administrative agency of the Supreme Court of Florida and charged by the court with the responsibility of evaluating the character, fitness and competence of each applicant for admission to the Florida Bar. Petitioner has established that he is a person in a protected group; that adverse employment action was taken against him; that the persons hired for the position in question were outside the protected group; and that, but for his graduate degree, he was qualified for the position in question. The FBOBE has a current staff of 29 full time employees. As of March 30, 1994, of those employees, three were 40 years or older at the time of employment. Nine of these employees are currently 40 or older. The employment application used by the FBOBE does not request any information regarding an applicant's age. The FBOBE have hired individuals in the past who were 40 years of age or older. The FBOBE uses the American Employment Agency, Inc. to advertise vacancies and to conduct preliminary screening. Kathryn E. Ressel has been employed by the Respondent for over 22 years and is currently the Deputy Executive Director of the FBOBE. Ms. Ressel is responsible for the instructions given to the employment agency concerning the qualifications for the position of Analyst I. Ms. Ressel testified that the reason for the FBOBE policy of excluding applicants with post graduate college or university degrees is not intended to restrict employment opportunities to younger persons and is not related to the age of any applicant. Ms. Ressel's testimony is that past experience in hiring persons with graduate degrees has indicated that such persons tend to stay in the Analyst positions for short periods of time and leave when an employment opportunity presents itself in the field for which the person is educated. Ms. Ressel testified that the Analyst I position is an entry level position and that the Analyst receives extensive on-the-job training to enable the newly hired employee to perform assigned duties and meet job related responsibilities in an effective and efficient manner. Therefore, according to Ms. Ressel, when Analyst I's leave the employment of the FBOBE after a short time on the job, the Respondent is unable to recoup the time, energy and expense involved in training such individuals. Ms. Ressel's testimony articulates a reasonable nondiscriminatory basis for the employment practice at issue. Ms. Ressel's testimony indicates that the employment policy at issue is age neutral in that it is applied to all individuals who apply for the position of Analyst I, regardless of age. Ms. Ressel's testimony in this regard is unrefuted. Official notice is taken that a given individual is generally older at the time such person receives a graduate degree than when the same individual receives a Bachelor's degree. It does not follow, however, and Petitioner has failed to prove (statistically or otherwise), that in any specific job applicant pool available to the Respondent to fill Analyst I positions, potential applicants with graduate degrees are older than potential applicants who possess only Bachelor's degrees. Petitioner has failed to prove by a preponderance of the evidence (statistical or otherwise) that the employment policy at issue has a disparate impact on persons 40 years of age or older. Petitioner has failed to prove, by a preponderance of the evidence, that the legitimate, nondiscriminatory reason articulated by the FBOBE as the basis for rejecting Petitioner's application is in fact a pretext and/or that a discriminatory reason more likely motivated the Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the petition for relief filed in this case be denied. DONE and ORDERED this 19th day of May, 1994, in Tallahassee, Florida. JAMES W. YORK, 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 19th day of May, 1994.
Findings Of Fact Respondent, PPC Products Corporation (PPC), manufactures power transistors, recitifers, diodes, and semiconductors. Approximately 80 percent of its business deals with government contracts. Petitioner is Sandra Boatwright, a black female, who worked for PPC for sixteen years. During her career with PPC she received good evaluations. In September 1989, Ms. Boatwright was working in the marking section of the production department. Her duties included putting product units in an oven and removing the units at the end of the baking period. She was a line leader with two to three employees reporting to her. Ms. Boatwright's immediate supervisor was Blynn Gause, the manager of the production department. Stringent government requirements called for the brands on the products to be permanent. During the summer of 1989, a problem had developed concerning the permanency of the marking or branding of the units. Some of the brandings were coming off prematurely. Mr. Gause asked Dolf Storz an employee in the engineering section to find a solution. In order to eliminate possible causes of the problem, Mr. Storz instituted the use of a logbook in the marking section to record the time the units went in and came out of the oven. Logbooks were a common requirement by the engineering section as a means of gathering data. In September 1989, Mr. Storz took the logbook to the marking section and requested the employees, including Ms. Boatwright, to use it. Ms. Boatwright admitted that, contrary to her initial charge, Mr. Storz was never her supervisor. In the latter part of September 1989, after Mr. Gause had returned from a vacation, Ms. Boatwright complained to him that Mr. Storz had been "acting like a king" while Mr. Gause had been away and requested a meeting to discuss the matter. On October 3 Ms. Boatwright, Mr. Gause, and Mr. Storz met in Mr. Gause's office. The discussion centered around the logbook, which the marking section had not been using. Ms. Boatwright did not feel that it was necessary to use the logbook because the marking section was already using an informal logbook to track the units in production. Mr. Storz's position was that the logbook was required by the production specifications and the informal logbook did not record the times the units went in and came out of the oven. Mr. Gause resolved the issue by requiring Ms. Boatwright and the other employees in the marking section to use the engineering log book. Ms. Boatwright thereafter used the engineering log book. On October 3, 1989, the process specification for the marking process, Device Branding Process Specification No. 200-140 was changed to require that the oven data be recorded in a logbook. This change was called Revision J. Ms. Boatwright signed off on this change. Race had nothing to do with the requirement that a marking logbook be maintained. Mr. Gause never advised Ms. Boatwright that he treated whites better than blacks. There was no disparate treatment of Ms. Boatwright in the terms and conditions of Ms. Boatwright's employment with PPC. In mid September 1989, a vacant position in the Lorlin automatic test area of the quality control department was posted. Ms. Boatwright had previously worked in the quality control department. Some time during late September or early October 1989, Ms. Boatwright approached Marleen Williams Coker (Ms. Williams), the quality manager, and asked to be transferred to that position. Ms. Boatwright knew the position was not a supervisory position. Ms. Williams told her she would agree to the transfer but Ms. Boatwright would have to talk to Mr. Gause about the transfer. Ms. Boatwright told Mr. Gause that she wanted to transfer to the quality control department. Mr. Gause, Ms. Williams, and Mindy Hill, the general manager of PPC, discussed the transfer. Although such a transfer was not common in the company due to the necessity for retraining the transferring employee, they agreed to approve the transfer due to Ms. Boatwright's long-term employment with the company. Although the position in quality control was a lower position than her position in production, Ms. Boatwright's pay was not cut. The transfer was approved in early October with an effective date of October 24, 1989. After the approval was given, applications were discontinued for the posted position, a decision was made to combine two other sections with the marking section, a new position with different tasks and responsibilities was created to oversee the merged sections, and the engineering section was contacted to move an engineering employee to the new position. Sometime between the approval and the effective date of the transfer, Ms. Boatwright changed her mind about wanting to transfer. Mr. Gause, Ms. Williams and Mindy Hill met to discuss Ms. Boatwright's change-of-mind. Ms. Hill decided not to reverse the transfer because of the changes that were being made to accommodate the transfer. Race played no part in the decision to allow the transfer or in the decision not to reverse the transfer. Ms. Boatwright's transfer from production to quality was not involuntary. Ms. Boatwright began working in the testing area of the quality control section on October 24, 1989. There were two other employees in that section, Steve Matthey and Mary Lou Rouse, who was the line leader for that section. Ms. Boatwright and Mr. Matthey reported to Ms. Rouse, and Ms. Rouse reported to Ms. Williams. In January 1990, Ms. Boatwright received a good performance evaluation from Ms. Williams. On February 10, 1990, Ms. Boatwright received a pay increase. On March 14, 1990, Ms. Boatwright filed an employment discrimination charge against PPC, alleging that she had been discriminated against based on race in the terms and conditions of her employment. Specifically, she alleged that in the middle of 1989, that all the white line leaders were promoted to supervisory positions and that she, a black, was not promoted. At the hearing Ms. Boatwright stated this allegation was incorrect and should be for the years 1984 through 1990. She alleged that she received increased scrutiny on her work, and her non-black coworkers did not. She charged that Mr. Gause had told her that he treated whites better than blacks. Her complaint stated that she had inquired about a transfer and later informed Mr. Gause she was not interested in the transfer, but was transferred anyway, resulting in a loss of job responsibilities and supervisory promotional opportunities. Each PPC employee is issued an employee handbook, which contains information on various employment related topics, including promotional opportunities. If an employee was interested in an opening, the employee was to contact his supervisor to make sure he was considered and if an employee was interested in advancing to another position, the employee was to discuss it with his supervisor to determine what additional skills or education might be needed to qualify for the position. Ms. Boatwright never discussed supervisory promotional opportunities with Mr. Gause or Ms. Williams, and never inquired of them what education or skills she might need to qualify for a supervisor position. No evidence was presented to show that Ms. Boatwright ever applied for a promotional opening. The employee handbook states that the final decision to promote would be based on the employee's demonstrated skills and capabilities, the employee's experience, education and service with PPC. One of the biggest factors to be considered is the employee's past work performance. In order to qualify for a supervisor position an employee would have to have knowledge of the area that the employee would be supervising, including the equipment and process specifications, to be able to supervise personnel, including disciplining personnel, and to be able to generate reports. Based on Mr. Gause's observations of Ms. Boatwright's past performance in dealing with personnel, she would not be qualified to handle disciplinary matters. As a line leader, Ms. Boatwright brought all personnel problems to Mr. Gause for him to resolve. In 1989 and 1990 there were no promotions from line leader to supervisor at PPC. No evidence was presented to show whether there were promotions from line leader to supervisor during the years 1984 through 1988. Race played no part in Petitioner's lack of promotion in marking and production. PPC maintains an affirmative action plan and annually files an Equal Employment Opportunity Employer Information Report EEO-1. The affirmative action plan, which is updated annually, sets forth PPC's policy with respect to equal opportunity for all employees in hiring, employment practices, recruiting, training, terms and conditions of employment, and compensation. Ms. Boatwright was in Production I job classification for purposes of PPC's Equal Employment Opportunity reports. From 1987 through 1992, the statistics collected by PPC indicate that PPC utilized more minorities and females in Ms. Boatwright's job classification than were available in the general work force in Palm Beach County. The employee handbook states that leaving early is the same as being absent. Before leaving early, an employee must have prior approval from his supervisor, preferably a day in advance. On April 2, 1990, Ms. Williams fired Audrey Shanahan, a white female, for leaving work without informing her supervisor or department manager. The employee handbook states that if work is not available in the employee's area the employee may be assigned another task. The handbook provides for immediate discharge for insubordination. Each employee is expected to follow the work instructions of his immediate supervisor or any other person having the authority of supervisor. If the employee does not think that the instructions are legitimate, the handbook tells the employee to do the work instructed and then take up his complaint with the appropriate person in authority. Bobby Mills was a quality manager at PPC in 1990. He and Ms. Williams were of equal rank, but supervised different sections. Both reported to Mindy Hill, the general manager. When Ms. Williams was absent from work, Mr. Mills would supervise her section as well as his own. When Ms. Williams was present on the job, Ms. Rouse, as line leader, would relay employee requests for permission to go home early to Ms. Williams for a final decision. Ms. Rouse would then relay Ms. Williams' decision to the employees requesting to leave early. On May 2, 1990, Ms. Williams was absent from work, and Mr. Mills filled in for her. Work in the Lorlin testing area was slow on that day, although work was expected to come later in the day. Ms. Boatwright had asked her line leader, Ms. Rouse, for permission to go home at lunch because of the lack of work. Ms. Rouse, believing that she had the authority to grant the permission in Ms. Williams absence, told Ms. Boatwright that she could go home early. Mr. Mills, observing that Ms. Boatwright, Mr. Matthey, and Ms. Rouse were not working, inquired of them why they were not working. Ms. Boatwright told Mr. Mills that she was going to go home at lunch. Mr. Mills informed the group that they could work in another area or go home then. Ms. Rouse told him she could not afford to go home early and she went to another area to work. Mr. Mills left and came back a few minutes later and told both Mr. Matthey and Ms. Boatwright to go to the back to work. Both indicated that they were going to go home early, which they did. To Mr. Mills, their leaving constituted a refusal to follow orders and was therefore insubordination. Although Mr. Mills had the authority to fire employees under his supervision without consulting the general manager, he did discuss the incident with Mindy Hill because Ms. Boatwright and Mr. Matthey were in Ms. Williams' section. He recommended dismissal; however, he was unaware at that time that Ms. Boatwright had filed a discrimination complaint. His recommendation for dismissal of Ms. Boatwright was not racially motivated. Mindy Hill made the final decision to dismiss Mr. Matthey and Ms. Boatwright for insubordination for leaving the workplace when requested to work. No evidence was presented to show that either race or retaliation played a part in her decision to terminate Ms. Boatwright and Mr. Matthey. Mr. Matthey learned of his termination when he spoke to Mr. Mills by telephone on the same day. Ms. Boatwright was verbally advised of her termination when she returned to work the next day. On February 26, 1991, Ms. Boatwright amended her discrimination charge to include her termination from employment with PPC. She alleged that she was discharged in retaliation for having filed a charge of unlawful discrimination under Title VII of the Civil Rights Act of 1964, as amended. The statistics collected by PPC for its affirmative action plans show that for the year October 1, 1989 through September 1990, thirty-four Caucasians and eighteen blacks were terminated. For the previous year, thirty-two Caucasians and twenty-four blacks were terminated. On October 8, 1992, the Equal Employment Opportunity Commission (EEOC) issued a Determination of No Cause relating to Ms. Boatwright's charges. The Florida Commission on Human Relations conducted a substantial weight review and issued a Redetermination: No Cause on April 8, 1993, adopting the October 8, 1992 determination of the EEOC. Ms. Boatwright filed a Petition for Relief on May 6, 1993.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Petitioner has failed to prove that Respondent committed an unlawful employment practice against Petitioner. DONE AND ENTERED this 27th day of December, 1993, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 27th day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2647 To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraph 1 - Accepted in substance. Paragraphs 2 and 3 - Rejected as not supported by the weight of the evidence. Paragraph 4 - First, third, and fifth sentences accepted in substance. Second and fourth sentences rejected as not supported by the evidence. Paragraphs 5 and 6 - Accepted. Paragraph 7 - First and second sentences accepted in substance. Third sentence rejected as not supported by the evidence to the extent that there was no evidence to show that Ms. Rouse on prior occasions had given employees permission to leave early without getting approval from her superiors. Paragraph 8 - First, third and fourth sentences are accepted in substance. The second sentence is accepted to the extent that Petitioner did leave early but rejected to the extent that she left immediately after the conversation with Mr. Mills at which Ms. Rouse was present. Paragraph 9 - Accepted. Paragraph 10 - Rejected as subordinate to the facts actually found in this recommended order. Paragraphs 11 and 12 - Rejected as not supported by the evidence. Respondent's Proposed Findings of Fact. Paragraph 1 - Accepted. Paragraph 2 - Accepted except as to the date of hire. The evidence shows Ms. Boatwright began her employment on 2-8-74. Paragraphs 3 and 4 - Accepted in substance. Paragraph 5 - Rejected as unnecessary detail. Paragraph 6 - Accepted. Paragraphs 7 and 8 - Rejected as unnecessary detail. Paragraph 9 - Accepted. Paragraph 10 - Rejected as unnecessary detail. Paragraphs 11, 12, and 13 - Accepted in substance. Paragraph 14 - Accepted in substance. Paragraph 15 - Accepted in substance. Paragraph 16 - Accepted in substance. Paragraph 17 -Accepted. Paragraphs 18-22 - Accepted in substance. Paragraph 23 - The first sentence is accepted in substance. The second sentence is rejected as not supported by the evidence. Paragraph 24 - Accepted. Paragraph 25 - Accepted in substance. Paragraph 26 - The last sentence is rejected as unnecessary detail. The remainder is accepted in substance. Paragraphs 27, and 28 - Accepted in substance. Paragraph 29 - To the extent that the first sentence infers that Revision J was in operation prior to 10-3-89, it is rejected as not supported by the evidence. Storz testified Revision J instituted the logbook requirement and was not signed off until 10-3-89. The remainder of the paragraph is accepted in substance. Paragraph 30 - Accepted in substance. Paragraph 31 - Rejected as unnecessary detail. Paragraphs 32, 33, 34, 35 - Accepted in substance. Paragraph 36 - Rejected as unnecessary detail. Paragraphs 37, 38, 39 and 40 - Accepted in substance. Paragraph 41 - The first sentence is rejected to the extent that it infers that Revision J was in effect prior to 10-3-89. The remainder of the sentence is accepted in substance. Paragraph 42 - Accepted in substance. Paragraph 43 - Accepted. Paragraphs 44, 45, 46 and 47 - Accepted in substance. Paragraph 48 - The third sentence is rejected as subordinate and unnecessary detail. The remainder is accepted in substance. Paragraphs 49, 50, 51. and 52 - Accepted in substance. Paragraph 53 - Accepted Paragraph 54 - Accepted in substance. Paragraphs 55, 56, and 57 - Rejected as subordinate. Paragraph 58 - Accepted in substance. Paragraph 59 - The last sentence is rejected as not supported by the evidence to the extent that the term "personnel" included. Ms. Rouse, Ms. Boatwright, and Mr. Matthey. The greater weight of the evidence shows that those three persons did not understand that Mr. Mills was their supervisor. The remainder of the paragraph is accepted in substance. Paragraph 60 - Accepted. Paragraphs 61, 62, 63, 64, and 65 - Accepted in substance. Paragraph 66 - The last sentence is rejected to the extent that Mr. Mills instructed Ms. Rouse to go to the back upon his return. Ms. Rouse left before Mr. Mills returned. The remainder is accepted in substance. Paragraph 67 - Accepted in substance to the extent that Ms. Rouse complied with his instructions prior to Mr. Mills leaving the testing area to inquire if there was work in another area. Paragraphs 68 and 69 - Accepted in substance. Paragraph 70 - The first and fourth sentences are accepted in substance. The remainder of the paragraph is rejected as unnecessary detail. Paragraphs 71 and 72 - Accepted in substance. Paragraph 73 - The last sentence is rejected as not supported by the evidence to the extent that Mr. Mills clearly revoked Ms. Rouse's permission. It is obvious that it was not clear to Ms. Boatwright, Ms. Rouse, and Mr. Matthey. The remainder of the paragraph is accepted in substance. Paragraph 74 - Accepted in substance. Paragraph 75 - Rejected as subordinate and unnecessary detail. Paragraph 76 - Accepted in substance. Paragraphs 77 and 78 - Rejected as unnecessary detail. Paragraph 79 - The first sentence is accepted in substance and the remainder of the paragraph is rejected as unnecessary detail. Paragraph 80 - Rejected as subordinate to the facts actually found in this recommended order. Paragraph 81 - Accepted. Paragraph 82 - Rejected as unnecessary detail. Paragraph 83 - Accepted. Paragraphs 84 and 85 - Rejected as unnecessary detail. Paragraphs 86 and 87 - Rejected as subordinate to the facts actually found in this recommended order. Paragraph 88 - Accepted in substance. Paragraph 89 - Accepted. Paragraph 90 - Accepted in substance. Paragraph 91 - Rejected as subordinate to the facts actually found in this recommended order. Paragraph 92 - Accepted in substance. Paragraphs 93 and 94 - Rejected as subordinate to the facts actually found in this recommended order. Paragraph 95 - Accepted. Paragraph 96 - Accepted in substance. Paragraph 97 - Accepted. Paragraph 98 - Rejected as constituting a conclusion of law rather than a finding of fact COPIES FURNISHED: Ms. Sandra Boatwright 390 West 33rd Street Riviera Beach, Florida 33404-33036 Terry E. Lewis, Esquire Robert P. Diffenderfer, Esquire Suite 900 2000 Palm Beach Lakes Boulevard West Palm Beach, Florida 33409 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570
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 posed for decision herein is whether or not the Respondent, G & B Products/Bates File Company, unlawfully discriminated against Petitioner, Leona Sanders, a black female, in violation of Title VII of the Civil Rights Act of 1964, as amended, by unlawfully failing to consider her for employment based on her race. Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel and the entire record complied herein, I make the following:
Findings Of Fact The parties stipulated that the Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Petitioner timely filed her complaint and Petition for Relief with the Florida Commission on Human Relations. Chapter 9D-9.08, Florida Administrative Code, and Section 120.57(1), Florida Statutes. The Petitioner, Leona Sanders, is a black female who filed an application for employment with the Respondent, G & B Products/Bates File Company, for a factory worker's job on July 13, 1978. 1/ The Respondent, having employed fifteen (15) employees for each working day in each of twenty (20) or more calendar weeks during times material herein, is an employer within the meaning of the Human Rights Act. Petitioner satisfied Respondent's listed requirements for the position of factory worker and sought factory employment based on the advice of her doctor. Petitioner was unable to obtain a personal interview from Respondent when her application was originally filed inasmuch as Respondent's Personnel Director and Executive Secretary, Dorothy Russell (Director), was then on vacation. Petitioner was informed by a Personnel employee that she would be scheduled for an interview when the Director returned from vacation on July 17. Petitioner, after having waited until Wednesday, July 19, without receiving a call from Respondent, called the Director, since in her opinion the Director would not be granting her request for an interview without some prodding on her (Petitioner's) part. Petitioner was unable to schedule an interview with the Director on the following day, Thursday, July 20, at which time she was told by the Director that a full complement of employees had been hired. The Director assured Petitioner that she would be called during the following week should any vacancies occur. Petitioner was assured that in any event she would be notified if she would be hired by July 25. During the interview, Petitioner expressed a desire in being considered for work on the first and second shift inasmuch as she had four children who ranged in ages from ten to sixteen. However, she advised the Director that she would accept a position on any shift. From the date of the interview, July 20, through August 7, Petitioner was not called or otherwise notified of any vacancies for factory workers by Respondent. While reading the employment section of the classified ads in the local newspaper on August 7, Petitioner noted an advertisement by Respondent's Personnel Office for factory workers. Upon reading the ad for the factory workers, Petitioner immediately visited Respondent's factory and reported to the Personnel Office in hopes of being employed. Petitioner was again told by Respondent's Personnel Director that a full complement of workers had been hired but that she would be notified should any vacancies occur. Respondent hired sixteen non-black females as factory workers during the period July 15 through August 23. All of the sixteen newly hired employees made application for employment after Petitioner, i.e., July 15. Respondent, in completing the final phase of its heavy seasonal hirings, hired its first black factory worker on approximately August 28, 1978. Petitioner has suffered from hypertension in the past. As stated, she was encouraged to seek factory work by her physician. Petitioner has an automobile to commute from her home to Respondent's factory if offered a position. Petitioner passed a test designed to measure dexterity and aptitude. Results of the tests were provided to the Personnel Director. Petitioner has sought, and continues to seek, employment from neighboring employers. The list of employers she has applied to for employment includes St. Joseph Medical Center, The News Press, R. L. Polk & Company, and all local nursing homes. Petitioner's interim earnings during times material amount to $968.16. RESPONDENT'S DEFENSE Respondent's Personnel Director testified that the number of applicants greatly outnumbered the available factory worker positions. Director Russell considered Petitioner better suited for employment at a hospital, nursing home or for clerical work and suggested that she seek employment in those areas. According to Director Russell, Petitioner displayed a poor attitude during the interview since she attempted to dictate the hours that she was willing to work and she concluded that Petitioner would not work out satisfactorily in the factory based on her expressions as to the hours and positions for which she wanted to be considered for employment.
Conclusions The Florida Commission on Human Relations, a Section 706 deferral agency for the United States Equal Employment Opportunity Commission, administers the Human Rights Act of 1977, as amended. The intent of the Human Rights Act of 1977 (Act) is to eradicate employment discrimination based on certain protective classifications, including race. Chapter 23.167(1)(a), Florida Statutes (1979). Respondent is an employer subject to the guides of the Act. Respondent, as an employer, has an established affirmative action policy and employee selection plan which guides it in its search of employees on an equal opportunity basis. Respondent also has a policy of attempting to hire those employees with children to work on the first shift. (Testimony of Director Russell.) During the months of July and August, Respondent repeatedly placed ads for employees in the local newspaper. Petitioner, during this period, repeatedly sought employment at Respondent's factory, as well as with other employers. As reflected by all the available criteria required by Respondent for its selection of employees. Despite Petitioner's continuing efforts to be selected for employment with Respondent, she was repeatedly told that a full complement of employees had been selected. On the other hand, Respondent continued to advertise for factory employees. Given the above factors which reveal that Petitioner satisfied the eligibility criteria for employment selection as required by Respondent; Petitioner's continued efforts to be selected for employment with Respondent; Respondent's continued search for employees by the placing of ads in the local newspaper and the rejection to Petitioner based on the claim that the full employee complement had been selected, leads to the inescapable conclusion that the Petitioner was unlawfully discriminated against by Respondent in violation of Section 23.167(1)(a) and (b), Florida Statutes (1979). I shall so recommend. 2/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law and in order to effectuate the purposes of the Florida Human Rights Act of 1977, it is RECOMMENDED: That the Florida Commission on Human Relations enter an order requiring Respondent, G & B Products/Bates File Company, to: Cease and desist from discriminatorily denying or limiting Petitioner's employment opportunities. Take the following affirmative action which will effectuate the policies of the Florida Human Rights Act of 1977, as amended: Make Petitioner whole by: Reimbursing Petitioner for the difference in wages between what Petitioner would have earned as a factory worker and what she earned in other employment from July 13, 1978, plus interest until Petitioner is offered employment by Respondent as a factory worker. Back pay is to be computed in accordance with Schedule "A" attached here. Offer to Petitioner the next available factory worker position on the first shift. Post, for a period of sixty (60) days, in Respondent's facilities in places where notices to employees are usually posted, copies furnished by the Commission to the effect that Respondent will not discriminate because of race in affording equal employment opportunities and terms and conditions of employment to all its applicants and employees. Report to the Commission, within thirty (30) days of the Commission's order, steps taken by it respecting the fulfillment of the above conditions. RECOMMENDED this 22nd day of August 1980, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August 1980.
The Issue The issue in the case is whether Respondent unlawfully discriminated against Petitioner by terminating her employment in violation of the Age Discrimination Employment Act.
Findings Of Fact Lombardi started her employment as a judicial assistant with Dade County in 1971. Judge Mattie Belle Davis was the first judge who hired Petitioner. Judicial Assistants serve at the pleasure of the appointing Judge.1 Judge Bruce Levy hired Lombardi as his judicial assistant after Judge Davis retired. In December 2004, Judge Levy lost his re-election bid and Petitioner no longer had a full-time position as a judicial assistant with a judge. Lombardi started working in the temporary pool of judicial assistants. The position allowed Petitioner to retain her benefits while seeking a permanent judicial assistant position. While serving in the pool, Petitioner worked for Judge Leon Firtel from February 14, 2005, through February 28, 2006, before he let her go. Petitioner then worked for Judge Rosa Rodriguez from April 1, 2006, through May 23, 2007, until she let her go. Petitioner last worked for Dade County when she served as retired Judge Roger Silver's ("Silver") judicial assistant from September 1, 2007, until January 7, 2008. Lombardi was terminated in Silver's chambers with a bailiff and Ms. Suarez from Human Resources present. Silver informed the Petitioner her services were no longer needed and he was letting her go. Petitioner questioned why she was being terminated; however, Silver did not provide an explanation. Silver terminated Petitioner because he was not happy with her work performance. Silver testified that Petitioner had the following problems regarding her work: taking lunch breaks beyond the one hour he had discussed with her; numerous complaints from attorneys; selling Avon at the work place; not answering the phones and allowing calls to go to voicemail; and repeatedly setting unnecessary hearings on the docket. Prior to terminating Lombardi, Silver inquired with Human Resources about a replacement and was informed that he could not be assured that he would be able to get a temporary assistant to replace Lombardi due to the unavailability of funding. He still choose to terminate Petitioner because, "[he] felt having no one was better than what [he] had under the circumstances." Petitioner was not able to go back in the "temporary pool" of judicial assistants as she had in the past after Silver terminated her. In 2008, the Eleventh Judicial Circuit had a hiring freeze whereby the temporary pool was no longer funded. Human Resources eventually sent Elizabeth Gonzalez, whose date of birth is May 26, 1965, to Silver as a temporary judicial assistant. Silver had never met Gonzalez prior to her coming to work for him. There was no discussion of age when Silver requested a judicial assistant or when Gonzalez was assigned to him. Gonzalez served as Silver's temporary judicial assistant for a number of weeks and, when personnel advised him he could hire someone, including Gonzalez, Silver hired Gonzalez on or about March 10, 2008, because he was pleased with her work. Gonzalez worked with him until his retirement in December 2008. At the time when Petitioner filed her Charge of Discrimination, Petitioner was unaware of the exact age of her replacement. Petitioner's date of birth is May 18, 1948.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief. DONE AND ENTERED this 30th day of November, 2009, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2009.
The Issue The central issue in this cause is whether Petitioner abandoned his position and thereby resigned his career service position at Children, Youth, & Families Services.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Petitioner was employed as a counselor working with the District XI Children, Youth, & Families (CYS) Services. Petitioner was assigned to monitor approximately twenty-five foster care children. After some past employment disputes, Petitioner was reinstated by the Department effective March 31, 1987. Petitioner returned to work on April 17, 1987, however, he was not satisfied with the working environment. In a memorandum dated April 22, 1987, Petitioner alleged: The same pattern of capricious, arbitrary and discriminatory practices which led to my previous illegal dismissal from services at a time I was disable, as the result of an accident which had occurred while fulfilling my duties for this Department, are still present. All my fundamental rights have been thoroughly violated. Even workman compensation has been denied to me. With so painful experience and in light of outstanding losses I have consequently suffered, any idea of subsidizing HRS with my own car, car insurance, car repairs and advance funding for gasoline purchase as an obligatory condition for employment at CYF is being rejected as unfair practices; and violate the equal Employment Opportunity Laws. Various efforts made to have this abusive situation corrected have been met with the flagrant opposition of fierce administrators of this department, totally obstinated not to let fairness and logic prevail. In light of all these facts, it is my conclusion that my interests can be better preserved by my abstention from any involvement at HRS until these matters are properly attended by your diligence in the best of the delays, or by a court of law. In consequence effective Friday April 24, 1987 I have decided to temporarily not to be in attendance at Unit 462 Foster Care. In response, the District Program Manager for Social Services, Frank Manning, wrote to Petitioner on April 23, 1987, and advised him that failure to report to work as scheduled would be cause for action pursuant to Chapter 22A- 7.010(2). Petitioner failed to appear or to call in to work for hour consecutive work days, to wit: April 27-30, 1987. Petitioner was not authorized to take leave during the time in question.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Administration enter a Final Order affirming the decision that Petitioner abandoned his position and thereby resigned from the Career Service. DONE and RECOMMENDED this 5th day of February, 1988, in Tallahassee, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 1988. COPIES FURNISHED: Morton Laitner, Esquire Dade County Health Unit 1350 North West 14th Street Miami, Florida 33215 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Louis C. Germaine 308 Northeast 117th Street Miami, Florida 33161 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue The issue for determination is whether Petitioner was subjected to an unlawful employment practice by Respondent due to Petitioner's race in violation of Section 760.10(1), Florida Statutes.
Findings Of Fact Respondent hired Petitioner on October 13, 1997, as a maintenance operator. Six months later he was promoted to the position of Maintenance Technician I. During his employment, Petitioner was one of six technicians. He was the only black technician. Petitioner was initially paid at a rate of $6.00 per hour. He received no pay increase with his first promotion. His yearly evaluation was delayed, but finally received by him on December 7, 1998. His evaluation for 1999 was received by December 23, 1999. His wages had climbed by this time to $8.40 per hour. His evaluations were satisfactory or above. Although Petitioner had been told he would be provided training on the job, he was relegated to the night shift, working by himself. As a consequence, he educated himself on maintenance of Respondent’s facility. In 1999, all technicians were to receive formal training. Another technician, who was white and lower in seniority than Petitioner, was selected for training before Petitioner. When Petitioner brought this to the attention of a supervisor, Petitioner was sent to other training provided by Siemen’s Corporation in Atlanta, Georgia. Petitioner stated he was treated unfairly because he was required to absorb the cost of lodging for the first night in Atlanta, prior to commencement of training. The five other technicians employed by Respondent were being paid a minimum of $11.00 per hour when Petitioner, on or about May 5, 2000, requested an increase from his current $8.40 per hour rate to $10.00 per hour. His supervisor responded that he could not grant the increase. An argument ensued and Petitioner left the office and returned to work. Later that day, Respondent’s human resource officer contacted Petitioner. He informed Petitioner that Petitioner’s employment was terminated due to “insubordination.” On Respondent’s termination form, the reason listed for Petitioner’s termination was insubordination and using “slanders to his senior manager.” The form also listed Petitioner’s absence from work on Saturday, April 29, 2000, as a reason for employment termination. In rebuttal, Petitioner produced a copy of an annual leave slip at final hearing requesting approval of his absence on the date in question. Petitioner had accumulated ample leave to cover the requested time. Respondent’s approving authority failed to approve Petitioner’s absence, but no notification was given to Petitioner. Respondent’s claim of unauthorized absence is effectively rebutted. According to a copy of a letter dated June 19, 2003, and received by DOAH on June 24, 2003, bearing the purported signature of David Anderson, registered agent for Respondent on June 20, 2002, Respondent was reputed to have ceased operation. According to statements contained in the letter, the Bank of America sold Respondent on March 10, 2002, in the “form of rights in collateral.” The letter additionally stated “unliquidated assets” in the bankruptcy were “sold in a Section 363 auction” on May 23, 2002. No direct evidence was presented on behalf of Respondent corroborating the contents of the letter and consequently the letter is not credited. Petitioner produced documentation at the final hearing, specifically a corporation reinstatement form issued by the Florida Department of State, documenting Respondent’s continued existence as of April 22, 2002.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered directing that Respondent to cease the discriminatory employment practice evidenced in this case and awarding Petitioner back pay at the rate of $10.00 per hour for each normal 40-hour work week between May 5, 2000, and the present. DONE AND ENTERED this 19th day of March, 2004, in Tallahassee, Leon County, Florida. S DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 2004. COPIES FURNISHED: Michael F. Coppins, Esquire Coppins & Monroe Post Office Box 14447 Tallahassee, Florida 32317-4447 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Dwight E. Mazion 1713 Calgary Drive Desoto, Texas 75115 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent committed an unlawful employment practice by discriminating against Petitioner based on his race.
Findings Of Fact In February 2006, Respondent hired Petitioner, an African-American male, knowing that he had a criminal record. Respondent employed Petitioner as a porter. Respondent employed other African-American and Caucasian people as porters, housekeepers, and janitors. Initially, Respondent paid Petitioner $7.25 per hour. Respondent was impressed with Petitioner's enthusiasm and willingness to perform physically demanding work. Respondent gave Petitioner a reward for always being on time and not being absent. Respondent eventually raised Petitioner's salary to $10.00 per hour or $400 per week. Respondent gave Petitioner the promotion so that he and his wife could qualify for a mortgage. Respondent helped Petitioner pay off his wife's credit card debt for the same reason. After Petitioner and his family moved into their new home, Carol Collett, Respondent's Caucasian General Manager, helped Petitioner furnish the house. Ms. Collett also attended the christening of Petitioner's new baby. Ms. Collett tried to help Petitioner as much as she could because she believed that everyone deserves a second chance. At all times relevant here, Petitioner worked the night shift when there was no supervisor on the premises. Petitioner's position required Ms. Collett's trust because his duties included taking care of the front desk. From approximately June 2007 through November 2007, Petitioner worked an average of 62 hours per week with no overtime compensation. There is no persuasive evidence that the other porters, Caucasian and/or African-American, were paid more than Petitioner or for overtime work. Petitioner never requested a raise, but he did request to work as a janitor. However, Petitioner presented no evidence that a janitor's position was available. More importantly, Petitioner lacked the skills to perform janitorial/maintenance work for Respondent. In time, Ms. Collett noticed a change in Petitioner's behavior. On one occasion, Petitioner's wife informed Ms. Collett that Petitioner had not come home with his pay check. On or about November 3, 2007, Ms. Collett confronted Petitioner about his declining job performance and his suspicious activities involving hotel guests. Petitioner denied that he was using or selling drugs or that he brought hookers to the job site. During the conversation, Petitioner began to cry, stating that he had let Ms. Collett down. Petitioner said that he "would rather to go back jail where life was easier and he would not have the pressure of daily life." Ms. Collett did not have a chance to terminate Petitioner because he left voluntarily. Petitioner came back to the hotel one time to pick up his last pay check. At that time, Ms. Collett confronted Petitioner about some money that was missing from the front office. The office had been locked the night before, but someone had entered it through the ceiling from the adjoining room. Petitioner could not find another job. He is now in prison.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 27th day of May, 2009, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 27th day of May, 2009. COPIES FURNISHED: Kenneth W. Johnson, DC #646344 Gulf Correctional Institution 699 Ike Steele Road Wewahitchka, Florida 32465 Jerome D. Mitchell, Esquire Riggio & Mitchell, P.A. 1326 South Ridgewood Avenue Suite 8 Daytona Beach, Florida 32114 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Did Respondent, State of Florida, Department of Professional Regulation, commit an unlawful employment practice by discriminating against Petitioner on the basis of race?
Findings Of Fact Petitioner is a 35-year-old Black male. Prior to December 1986, Petitioner was employed by Respondent in an OPS position in "Central Files". His work performance in Central Files was both superior and exemplary, and he was offered a State Career Service position as a Senior Clerk within Respondent's "Complaint Section". Upon accepting the Career Service position, Petitioner entered into a mandatory six months' probationary period. In the Senior Clerk position, Petitioner's primary duties were to answer the phone a specific 4-hour daily shift; to assist or act as backup for phone answering during Senior Clerk Terri Jones' (Black female) 4-hour daily phone shift; to prepare and distribute Class II complaint cases to Respondent's "Legal Section"; and to distribute mail and other materials as assigned by his immediate supervisor, Louise Bull (white female). On January 5, 1987, Petitioner took 4 hours unauthorized leave without pay for which he received a written reprimand on January 6, 1987. He had previously been orally reprimanded for the same practice. It was established by competent substantial evidence that Petitioner's immediate supervisor, Louise Bull, had had a number of absences without leave, some of which occurred before Petitioner's termination and some of which occurred after his termination, and that she also received at least one written reprimand for these absences. For some of her absences, Ms. Bull was required to reimburse money to the State, however it was not clear whether the reimbursement was because she was absent when she falsely claimed to be present or was standard reimbursement procedure when the leave actually taken is not covered by accrued leave time. Either way, Ms. Bull was not in a probationary status at any material time and, clearly, as Petitioner's supervisor, hers was not a substantially similar position to that of Petitioner. Petitioner and Cindy Dexter testified that many permanent employees in addition to Ms. Bull were playing fast and loose with tardiness and absenteeism, but their evidence is very indefinite and the race and gender of the employees accused was not established. Ms. Dexter's testimony was vague and not credible on this point. Their testimony on this subject was not confirmed by other credible witnesses nor was it ever established that any of the permanent employees accused by Petitioner held positions substantially similar to his. From almost the beginning of his probationary period, Petitioner had difficulty adjusting to his new position. He evidenced difficulty accepting supervision from Ms. Bull. This disrupted standard office practice. Over the probationary term, Ms. Bull orally counselled Petitioner approximately seven times concerning his lack of acceptance of her supervision as well as excessive tardiness and excessive personal phone usage. Diane Orcutt, the regular Complaint Office Supervisor and Ms. Bull's superior, described Petitioner as avoiding Louise Bull and coming directly to her about problems he perceived in the office operation. Petitioner and Terri Jones, his female job counterpart who is also Black, had an early but undefined job- related dispute, after which he sent her flowers to "make-up". On one occasion, after a loud and disruptive argument arose between Petitioner and Ms. Bull in the general office area, Evelyn McNeely, who was acting supervisor to them both during Ms. Orcutt's vacation, required Ms. Bull to prepare a memorandum clarifying Petitioner's job duties because, in Ms. McNeely's view, the Petitioner did not seem to understand his duties. This was done on June 17, 1987. This memorandum, headed "Performance Evaluation" from Ms. Bull to Petitioner also warned Petitioner that Ms. Bull would recommend extension of his probationary period because he was falling short on acceptable performance in several areas. Louise Bull prepared, delivered, and discussed with Petitioner her performance evaluation, indicating, based upon her personal observations, his failure to satisfactorily perform in the following areas: repeatedly tardy over the last several weeks; failure to properly handle routine telephone duties; failure to comply with their section's procedures for routing of case files; and continued failure to accept supervision under their section's chain of command. Ms. Bull admitted that she suffered emotional problems while Petitioner worked for her and apparently thereafter. She had crying jags and consulted a psychologist. She also received a prescription from some source for the tranquilizer valium. Ms. Bull denied that she and the psychologist ever identified a reason for her emotional state. Melinda Wagoner testified that Ms. Bull related to her that her emotional problems stemmed from living in a Black neighborhood and fighting with Black children when she was a child. The foregoing hearsay is admissible as an admission of a party (DPR) through its supervising agent (Louise Bull), but even if fully credible, this evidence would be insufficient to establish a nexus between Bull's behavior and the reason for Petitioner's eventual termination, in light of the record as a whole. Terri Jones, the permanent employee most substantially similar to Petitioner, was also a Senior Clerk. She is also Black. Her job duties were identical to those of Petitioner, except that they had primary responsibility for phone calls during different parts of each day. Ms. Jones had no supervisory problems of her own with Louise Bull. Ms. Jones asserted that Petitioner had excellent telephone manners but confirmed that Petitioner's regularity in answering the phone either on his shift or as her backup was often insufficient. The Complaint Section's phone was often placed on "hold" with no one waiting on the other end. Although anyone in the office could place a call on "hold" and any caller could hang up before an employee returned to the phone, the inference from all witnesses' testimony as a whole was that this "hold" procedure was being done excessively by Petitioner. Diane Orcutt, regular Complaint Office Supervisor, reviewed Petitioner's phone logs prior to evaluating him at the six months' point. The representative phone logs of the two substantially similar employees, Petitioner and Terri Jones, show that Petitioner logged only 34 calls in the same period that Ms. Jones logged 359. This vast discrepancy can be interpreted in a number of ways: either Petitioner was not answering the phone as directed, or he was not logging all calls as directed, or he was not maintaining the logs as directed. By any interpretation of this empirical data, Petitioner was not fulfilling a prime requirement of his job. At the time of his six months' evaluation, on June 22, 1987, Diane Orcutt made a joint decision with Louise Bull to extend Petitioner's six months probationary period by four months. Ms. Orcutt did this for a number of reasons: his early absences without leave, oral complaints from lower echelon employees that Petitioner would frequently neglect his telephone duties in one way or another, and the disruptive nature of his failure to accept Ms. Bull's supervision. In requiring the additional probation, Ms. Orcutt gave greater weight to the administrative/managerial friction and less weight to Petitioner's reprimanded early absences; however, with regard to the complaints of other employees, she testified that she felt sure Petitioner could do the work because of his past excellent performance on OPS and because of her personal observation but that he needed more time to actually do the job instead of engaging in uncooperative disputes with Ms. Bull. Additionally, Ms. Orcutt was giving Petitioner the benefit of any doubt by taking additional time to sort out whether the disruption problem arose from Ms. Bull or from Petitioner, because at that point, Ms. Bull had no problems supervising other Black or white employees; no oral complaints had been made by other employees against Ms. Bull; and oral complaints against Petitioner confirming Ms. Bull's unrecorded observations of Petitioner had been received personally by Ms. Orcutt. When presented with Orcutt's Mid-Cycle Appraisal and the 4 months' additional probation plan on June 22, 1987, Petitioner was hostile, refused to sign the appraisal, and another disruptive scene arose among Petitioner, Ms. Bull and Ms. Orcutt. Petitioner spent all of the workday of June 23, 1987 in "Personnel" complaining that his evaluation and the 4 months' additional probation was unjust. On two of the remaining successive days of that work week, Petitioner accomplished some work. On one of the remaining successive days in that week, he took his "Personal Leave Day". A weekend intervened, and on Monday, June 28, 1987, Diane Orcutt reassessed the situation, determined that Petitioner was not intending to cooperate, and terminated him, as had always been her option during his probationary period.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Florida Human Relations Commission dismissing the complaint and petition for relief filed by Robert Baucham. DONE and ENTERED this 3rd day of November, 1989, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 3rd day of November, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-0712 The following constitute specific rulings, pursuant to Section 120.59(2), Florida Statutes, upon the parties' respective proposed findings of fact (PFOF): Petitioner's Proposed Findings of Fact None filed Respondent's Proposed Findings of Fact Respondent's proposals have been accepted in substance and modified to conform to the record. Where they have not been accepted, they are rejected as misleading as stated or not supported by the record as stated. COPIES FURNISHED: Robert Baucham Hearings 1021 Idlewild Drive, P-161 Tallahassee, FL 32301 E. Harper Field Deputy General Counsel Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Dana Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, FL 32399-1570 Kenneth D. Easley, General Counsel Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Donald A. Griffin, Executive Director Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, FL 32399-1570
The Issue The issue is whether Respondent committed an unlawful employment practice by discriminating against Petitioner based upon her race.
Findings Of Fact Respondent is an "employer" within the meaning of section 760.02(7), Florida Statutes. Petitioner, an African-American female, submitted an application for employment directly with the store manager, Jerry Wienhoff. Mr. Wienhoff personally interviewed Petitioner and hired her within 48 hours of her application for the afternoon clerk position. She began working for Respondent on July 21, 2009. Petitioner received a notice of a disciplinary issue on March 9, 2010. Respondent cited Petitioner for failure to complete her work in a timely manner. Petitioner was warned that if her work did not improve, her employment would be terminated. Not long after issuance of this disciplinary notice, Mr. Wienhoff, the store manager and Pensacola Regional Manager for 17 years, began receiving complaints about Petitioner's behavior. One complaint came from a long-time customer, while another came from a co-employee. The complaints were that Petitioner treated them rudely. During her employment, Petitioner complained that her work duties were heavier than those of the morning clerk. Mr. Wienhoff relieved Petitioner of certain duties related to tagging each garment dropped off during the afternoon shift. None of the other stores out of the four area stores had similar requests to remove this duty. Petitioner testified that the morning clerk, a white female, Amanda Sidner, was given a lighter workload. Petitioner further testified that Ms. Sidner was given additional hours during Petitioner's vacation, yet Petitioner was not given additional hours during Ms. Sidner's vacation. Mr. Wienhoff testified and Petitioner admitted that she took vacation days during the same week that Ms. Sidner took vacation days. Further, Petitioner was given additional hours during the days Ms. Sidner was on vacation, and the balance of those hours that Petitioner was not interested in working went to Petitioner's daughter, Anastarsia Martinez, also an African- American female. On December 14, 2010, Petitioner was issued her second and final corrective action report by Mr. Wienhoff. At that time, Mr. Wienhoff terminated Petitioner due to the ongoing complaints about her behavior in the workplace. Respondent also established the racial composition of every employee under Mr. Wienhoff's supervision. The company profile in Pensacola shows a racially diverse mix of employees. Petitioner candidly testified that she never heard Mr. Wienhoff make racially insensitive comments to her or any other employee. Her claim of discrimination is based upon favoritism. She believes that other employees were treated better than she, but did not tie this perceived favorable treatment to their race.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that no act of discrimination was committed by Respondent and dismissing the Petition for Relief. DONE AND ENTERED this 27th day of January, 2012, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 27th day of January, 2012. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Thomas A. Groendyke, Esquire Douberley & Cicero 1000 Sawgrass Corporate Parkway, Suite 590 Sunrise, Florida 33323 Mary Cottrell 776 Backwoods Road Century, Florida 32535 Christopher J. Rush, Esquire Christopher J. Rush & Associates, P.A. 1880 North Congress Avenue, Suite 206 Boynton Beach, Florida 33426 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
