01-002619 Artie Johnson vs. Pcs Phosphate Status: Closed Recommended Order on Friday, October 12, 2001.

Summary: Petitioner failed to show a prima facie case of gender discrimination in the workplace. Accordingly, the Petition for Relief should be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ARTIE JOHNSON, )

)

Petitioner, )

)

vs. ) Case No. 01 - 2619

)

PCS PHOSPHATE, )

)

Respondent. )

)

RECOMMENDED ORDER

Don W. Davis, Administrative Law Judge of the Division of

Administrative Hearings, conducted the final hearing in this case

on August 17, 2001, in Jasper, Florida. The following appearances

were entered:

For Petitioner: Artie C. Johnson, pro se

2672 Northwest 6th Drive

Jennings, Florida 32053

For Respondent: Mary L. Wakeman, Esquire

McConnaughhay, Duffy, Coonrod, Pope,

and Weaver, P.A.

Post Office Drawer 229

Tallahassee, Florida 32302 - 0229

STATEMENT OF THE ISSUE

The issue for determination is whet her Petitioner was

subjected to discrimination in the work environment by Respondent

due to Petitioner's gender in violation of Section 760.10, Florida

Statutes.

PRELIMINARY STATEMENT

Petitioner filed a Charge of Discrimination against

Respondent with the Florida Commission on Human Relations (FCHR)

on June 2, 1997, alleging sex discrimination.

On or about May 22, 2001, the FCHR issued its Determination:

No Cause.

On or about June 27, 2001, Petitioner filed a Petition for

Relief with the FCHR. Subsequ ently, on or about July 2, 2001, the

case was forwarded to the Division of Administrative Hearings for

formal proceedings.

During the hearing, Petitioner testified on her own behalf

and also presented the testimony of five witnesses. Petitioner

presented no exhibits. Respondent presented the testimony of six

witnesses and 16 exhibits. A transcript of the proceeding was

filed on September 13, 2001.

The parties requested and were granted leave to file proposed

recommended orders more than ten days f rom conclusion of the final

hearing. Both Petitioner and Respondent filed Proposed

Recommended Orders which have been reviewed and considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner was employed as a payload operator by

Respondent, a fertilizer manufacturer, at the time of her

employment termination in August of 1996. Petitioner’s job

duties included scooping fertilizer onto the pay loader, or

front - end loader, and dropping the fertilizer into a “hopper”

for subsequent loading into rail cars.

2. Petitioner was expected, along with other payload

operators, to perform other duties, including the cleaning of

work areas when she ceased her loading function.

3. During Petitioner's employment, a union contract

existed between Res pondent and the International Chemical

Workers Union of which Petitioner was a member. The union

contract governed overtime assignments, pay structure, shift

structure, disciplinary/termination procedures and lay - offs,

among other things.

4. Respondent p aid Petitioner and gave her breaks,

contrary to her allegations, in the same manner as other

employees. Governed by the union contract during the busy

1995 - 96 period, Respondent assigned work to employees on many

different shifts. The plant operated 24 hours a day, seven days

a week. Overtime requirements were based on business necessity.

All employees worked the same number of hours regardless of the

shift to which they were assigned. Petitioner never formally

complained to anyone regarding displeasu re with shift

assignments.

5. Neither salary nor number of work hours were affected

by Petitioner’s assignments to different work shifts.

Petitioner and other employees worked the same number of hours.

Petitioner took breaks just like other employees. Changes from

shift to shift experienced by Petitioner had nothing to do with

her gender.

6. The union contract governed how Respondent assigned

overtime to its employees. The contract established a procedure

that distributed overtime hours evenly and fairly among all of

Respondent's employees. Those procedures were adhered to by

Respondent and all employees were given overtime opportunities

in an equal manner without regard to gender.

7. On one occasion, Petitioner complained about her

overtime assi gnment. She felt that she should have been called

into work on a day when another operator (male) was called to

come in and work. Respondent had attempted to contact

Petitioner at contact numbers provided by Petitioner, without

success.

8. Safety equi pment was distributed to all employees.

Petitioner signed a check list indicating that she had received

or knew how to request safety equipment. A pair of boots

requested by Petitioner on one occasion had not yet arrived, but

did arrive before the conclu sion of the business day. The delay

in delivery of Petitioner's requested boots to her was not

related to her gender.

9. Petitioner complained that adverse comments were made

to her on the job by male workers. The alleged comments ranged

from women should only do "clean up work" to "if you don't smoke

or drink, we don't need you in this department." All of the

alleged comments were roundly denied by Petitioner's co - workers

at the final hearing. The credibility and candor of the

testifying co - worker s establishes that the adverse comments were

not made.

10. One incident in which Petitioner complained about her

work assignment resulted in the general foreman's immediately

contacting Respondent's human resource department. A meeting

was then held with Petitioner to address the situation. The

foreman felt confident that Petitioner would voice any

additional concerns if the situation did not change. Petitioner

never voiced further concerns to the foreman.

11. Petitioner alleged that she was denied the right of

free speech at a meeting attended by her, Respondent

representatives, and union representatives. As established at

the final hearing, she was told by the union representative to

remain quiet and let him do the talking if Respondent

representativ es made Petitioner angry. However, the union

representative did not instruct Petitioner to otherwise remain

silent.

12. Under the union contract, Respondent could terminate

employees who received three reprimands within a 12 - month

period. Petitioner was aware of this procedure.

13. Petitioner had numerous instances of work - related

misconduct and received more than three reprimands in a

12 - month period. Counseled on June 4, 1995, for damaging a

payloader, Petitioner received a reprimand on July 1 8, 1995, for

again damaging a payloader.

14. Petitioner was counseled again on August 14, 1995, for

failure to communicate with the shipping operator. On

October 16, 1995, Petitioner received a second reprimand for

poor work performance for mixing dis carded product with good

product, a violation of Respondent policy.

15. Petitioner received her third reprimand on

February 28, 1996, for loading hot fertilizer, a violation of

Respondent's policy. The difficulty of loading fertilizer

before it cooled was the later removal of the hot product which

would harden upon cooling into a concrete - like substance.

16. Petitioner was given a second chance and not fired

upon receiving her third reprimand in a 12 - month period.

Management hoped that Petitioner wou ld seek to improve her work

performance.

17. Petitioner refused to help clean the plant on July 10,

1996, and was counseled by her supervisor. On July 25, 1996,

she received a verbal warning for failure to report an accident.

In August of 1996, Petitione r received her final reprimand for

failure to attend a company meeting at the proper time and for

again loading hot product. Petitioner's employment was

terminated.

18. The various reprimands imposed on Petitioner were from

different supervisors at diff erent times. None of the

reprimands were based on Petitioner's gender.

19. After a complete review of Petitioner's case, the

union representative determined that Respondent had properly

terminated her employment.

CONCLUSIONS OF LAW

20. The Division of A dministrative Hearings has jurisdiction

over the parties to, and the subject matter of, these proceedings.

21. Chapter 760, Florida Statutes, the "Florida Civil

Rights Act of 1992," provides security from discrimination based

upon race, color, religion, s ex, national origin, age, handicap,

or marital status.

22. The adverse effectuation of an employee’s

compensation, conditions, and privileges of employment on the

basis of sex is an unlawful employment practice.

23. The burden of proof rests with Petiti oner to show a

prima facie case of employment discrimination. After such a

showing by Petitioner, the burden shifts to Respondent to

articulate a nondiscriminatory reason for the adverse action.

If Respondent is successful and provides such a reason, the

burden shifts again to Petitioner to show that the proffered

reason for adverse action is pre - textual. School Board of Leon

County v. Hargis , 400 So. 2d 103 (Fla. 1st DCA 1981).

24. Petitioner failed to establish a prima facie case of

sexual harassment o r discrimination by employees or supervisors

of Respondent.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law it is

RECOMMENDED:

That a Final Order be entered dismissing the Petition for

Relief.

DONE AND ENTERED this 12th day of October, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

DON W. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 967 5 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of October, 2001.

COPIES FURNISHED :

Azizi M. Dixon, Clerk

Florida Commission on Human Relations

325 John Kno x Road

Building F, Suite 240

Tallahassee, Florida 32303 - 4149

Artie Johnson

2672 Northwest 6th Drive

Jennings, Florida 32053

Mary L. Wakeman, Esquire

McConnaughhay, Duffy, Coonrod, Pope,

and Weaver, P.A.

Post Office Drawer 229

Tallahassee, Florida 32 302 - 0229

Cecil Howard, General Counsel

Florida Commission on Human Relations

325 John Knox Road

Building F, Suite 240

Tallahassee, Florida 32303 - 4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

1 5 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.