02-003994 Clarence Goosby vs. Florida Extruders International, Inc. Status: Closed Recommended Order on Wednesday, July 9, 2003.

Summary: Petitioner claimed employment discrimination based on his race when he was discharged for fighting with a supervisor. Failed to establish a prima facie case.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLARENCE GOOSBY, )

)

Petitioner, )

)

vs. ) Case No. 02 - 3994

)

FLORIDA EXTRUDES INTERNATIONAL, )

INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursua nt to notice, the Division of Administrative

Hearings, by its duly - designated Administrative Law Judge,

Jeff B. Clark, held a formal administrative hearing in this case

on April 28, 2003, in Orlando, Florida.

APPEARANCES

For Petitioner: David Glasser, Es quire

Glasser and Handel

Suite 100, Box N

150 South Palmetto Avenue

Daytona Beach, Florida 32114

For Respondent: James W. Seegers, Esquire

Vale ncia Percy Flakes, Esquire

Akerman Senterfitt

255 South Orange Avenue

Orlando, Florida 32801

STATEMENT OF THE ISSUE

Whether Petitioner, Clarence Goosby, suffered racial

discriminatio n when he was terminated from employment for

fighting.

PRELIMINARY STATEMENT

On June 27, 2001, Petitioner filed an Amended Charge of

Discrimination with the Florida Commission on Human Relations.

On September 10, 2002, the Florida Commission on Human Rela tions

advised Petitioner of its Determination: No Cause. On October 7,

2002, Petitioner filed his Petition for Relief.

On October 15, 2002, the Division of Administrative Hearings

received a Transmittal of Petition for Relief. On October 16,

2002, an Ini tial Order was forwarded to both parties. On

October 28, 2002, a hearing was scheduled for December 2 and 3,

2002, in Orlando, Florida. On November 18, 2002, a continuance

was granted on the joint motion of the parties.

On December 10, 2002, the case wa s rescheduled for

February 3 and 4, 2003. On January 30, 2003, the case was

continued as a result of Respondent's Motion for Summary Final

Order. On February 28, 2003, the case was rescheduled for

April 28 and 29, 2003.

The case was heard as reschedule d on April 28, 2003. At the

hearing, Petitioner testified in his own behalf, presented three

witnesses, and offered five exhibits, which were received into

evidence and marked Petitioner's Exhibits 1 through 5.

Respondent presented five witnesses and offe red 39 exhibits,

which were received into evidence and marked Respondent's

Exhibits 1 through 39. On May 28, 2003, an Unopposed Motion for

Enlargement of Time for filing proposed recommended orders was

granted enlarging the filing time to June 30, 2003. Both parties

filed Proposed Recommended Orders.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing, the following findings of fact are made:

1. Petitioner, Clarence Goosby, is an African - American, who

was employed b y Respondent from October 13, 1999, until he was

terminated on February 17, 2000.

2. Respondent, Florida Extruders International, Inc., a

manufacturing company located in Sanford, Florida, employs

approximately 500 employees and is an "employer" as define d in

Subsection 760.02(7), Florida Statutes.

3. Some of the manufacturing activities at Respondent's

plant are dangerous. One of these activities, melting aluminum

scrap, takes place in the Cast House, which is noted as a

"restricted area." Workers in t he Cast House wear fire -

protective clothing.

4. On February 17, 2000, an African - American employee,

Broderick Demps ("Demps"), was noticed in the Cast House where he

had gone to use the restroom. A Caucasian supervisor, William

Wilson ("Wilson"), questio ned Demps regarding his presence in a

restricted area and was advised by Demps that his supervisor had

given him permission to use the restroom.

5. Demps exited the Cast House and was followed by Wilson

to another building, the Warehouse, Demps' workstati on. Wilson

met another supervisor, Frank Witherspoon ("Witherspoon"), as he

entered the Warehouse.

6. Wilson and Witherspoon located Demps' supervisor, Warren

Lawrence ("Lawrence"), who advised that he had not given Demps

permission to enter the Cast Hou se.

7. At this point, Demps began yelling at Wilson; his

language was obscene and racial. The other supervisors tried,

without success, to control Demps.

8. Petitioner, hearing the altercation, left his work area

in the same building, and recognized Dem ps (who he referred to as

his "God - brother"), who continued yelling obscenities at Wilson.

Petitioner's supervisor, Kenneth McKinney ("McKinney"), told

Petitioner to return to his work area. Petitioner ignored

McKinney's directive.

9. Petitioner approac hed Wilson and the other supervisors

and began yelling obscenities and racial slurs at Wilson. While

standing in close proximity to Wilson and shouting at him,

Petitioner made a quick move with his hand and arm.

10. Wilson, believing that Petitioner was attempting to

strike him, responded by striking Petitioner. Demps then struck

Wilson in the head, knocking him to the floor.

11. Both Petitioner and Demps jumped onto Wilson, striking

and kicking him. Witherspoon, McKinney, and Lawrence physically

pulle d Petitioner and Demps off Wilson. Petitioner and Demps

continued yelling obscenities and racial slurs at Wilson as they

were being removed from the Warehouse.

12. Petitioner officiously injected himself into a volatile

situation involving Demps and his supervisors. By his

confrontational conduct, Petitioner precipitated a physical

altercation among himself, Wilson, and Demps.

13. Witherspoon contacted Dana Lehman ("Lehman"),

operations manager and highest - level executive at Respondent's

plant, by radio and advised him of the altercation.

14. Lehman immediately went to the Warehouse, where a crowd

of employees had gathered in addition to the individuals

mentioned hereinabove.

15. Lehman inquired of several employees regarding the

altercation but no one reported having seen it. Lehman attempted

to speak to Petitioner and Demps about the incident. Petitioner

and Demps were confrontational; Lehman obtained no relevant

information from them.

16. Lehman questioned McKinney, Lawrence, and Witherspoon

and r eceived their reports regarding the incident, which are

detailed hereinabove. Wilson confirmed the descriptions and

observations of the three supervisors/witnesses.

17. McKinney, Petitioner's supervisor, recommended to

Lehman that Petitioner be terminate d for unauthorized leaving of

his work area and instigating a fight with a supervisor.

18. Respondent had in the past terminated several employees

of different ethnicities for fighting.

19. Respondent's employees' handbook ( Policies and

Procedures Handb ook ) reads, in pertinent part, as follows:

Conduct Meriting Immediate Discharge

Certain actions are such serious breaches of

responsibilities to the company that no prior

warnings or probation notices are required

and may result in immediate discharge. F or

example:

* * *

Fighting or hitting another employee, or

similar disorderly conduct, during work hours

or on company premises.

Willful disobedience (insubordination)

20. Petitioner was aware of Respondent's prohibition

against fighting and i nsubordination.

21. Lehman discharged Petitioner on the day of the incident

for fighting and insubordination.

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. Su bsection 120.57(1), Florida Statutes.

23. Subsection 760.10(1)(a), Florida Statutes, provides

that it is an unlawful employment practice for an employer:

(1)(a) To discharge or to fail or refuse

to hire any individual, or otherwise to

discriminate agai nst any individual with

respect to compensation, terms, conditions,

or privileges of employment because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

24. Florida courts have determined that federal

di scrimination law should be used as guidance when construing

provisions of Section 760.10, Florida Statutes. Harper v.

Blockbuster Entertainment Corp. , 139 F.3d 1385 (11th Cir. 1998);

Florida Department of Community Affairs v. Bryant , 586 So. 2d

1205 (Fla. 1st DCA 1991).

25. The United States Supreme Court established, in

McDonnell - Douglas Corporation v. Green , 411 U.S. 792 (1973) and

Texas Department of Community Affairs v. Burdine , 450 U.S. 248

(1981), the analysis to be used in cases alleging discrimina tion

under Title VII, which is persuasive in the instant case, as

reiterated and refined in the case of St. Mary's Honor Center v.

Hicks , 509 U.S. 502 (1993).

26. This analysis illustrates that a petitioner has the

burden of establishing, by a preponderan ce of evidence, a prima

facie case of discrimination. If that prima facie case is

established, the respondent must articulate a legitimate, non -

discriminatory reason for the action taken. The burden then

shifts back to the petitioner to go forward with e vidence to

demonstrate that the offered reason is merely a pretext for

unlawful discrimination. The Supreme Court stated in Hicks ,

before finding discrimination in that case, that:

[T]he fact finder must believe the

plaintiff's explanation of intentional

discrimination.

509 U.S. at 519.

27. In the Hicks case, the Court stressed that even if the

fact finder does not believe the proffered reason given by the

employer, the burden still remains with the petitioner to

demonstrate a discriminatory motive for t he adverse employment

action taken.

28. To establish a prima facie case of discrimination,

Petitioner must show that: he is a member of a protected class;

he suffered an adverse employment action; he received disparate

treatment from other similarly situ ated individuals in a non -

protected class; and that there is sufficient evidence of bias

to infer a causal connection between his race and the disparate

treatment. McDonnell - Douglas Corporation v. Green , 411 U.S. 792

(1973); Canino v. U.S. E.E.O.C. , 707 F .2d 468, (11th Cir. 1983);

Andrade v. Morse Operations, Inc ., 946 F.Supp. 979 (M.D. Fla.

1996) .

29. Petitioner has demonstrated that he is member of a

protected class and suffered an adverse employment action; he

has failed to demonstrate that he was the victim of dissimilar

treatment from an individual in a non - protected class or that

there was any relationship between his race and his discharge.

Petitioner failed to demonstrate that Wilson, the Caucasian

supervisor, who was involved in the physical alte rcation, was a

similarly situated employee. Wilson was a supervisor and, more

importantly, he was doing his job when Petitioner unnecessarily

involved himself in a volatile situation causing a fight. The

evidence revealed that Wilson's conduct was approp riate given

Petitioner's aggressive onslaught. Silvera v. Orange County

School Board , 244 F.3d 1253, 1259 (11th Cir. 2001).

30. Petitioner's officious conduct raised the level of a

verbal confrontation to a physical altercation. His conduct

clearly viol ated reasonable, published employee regulations. No

credible evidence was presented that his discharge from

employment was because of his race. Petitioner's conclusory

allegations that his discharge was racially motivated is not

sufficient to raise a inf erence of discrimination where an

employer has offered evidence of legitimate, non - discriminatory

reasons for his discharge. Coutu v. Martin County Board of

County Commissioners , 47 F.3d 1068, 1073 (11th Cir. 1995); Young

v. General Foods Corp. , 840 F.2d 825, 830 (11th Cir. 1988).

31. While Petitioner failed to establish a prima facie

case, Respondent offered legitimate, non - discriminatory reasons

for Petitioner's discharge.

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 the Petition for Relief filed in

this case.

DONE AND ENTERED this 9th day of July, 2003, in

Tallahassee, Leon County, Florida.

S

________________________________ ___

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of July, 2003.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

David Glasser, Esquire

Glasser a nd Handel

Suite 100, Box N

150 South Palmetto Avenue

Daytona Beach, Florida 32114

James W. Seegers, Esquire

Valencia Percy Flakes, Esquire

Akerman Senterfitt

255 South Orange Avenue

Orlando, Florida 32801

Cecil Howard, General Counsel

Florida Commissio n on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to th is Recommended Order should be filed with the agency that

will issue the Final Order in this case.