02-003998 Lonnie Jennings vs. Sandco, Inc. Status: Closed Recommended Order on Friday, February 14, 2003.

Summary: Petitioner failed to prove that he was dismissed from his employment based upon his race.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LONNIE JENNINGS, )

)

Petitioner, )

)

vs. ) Case No. 02 - 3998

)

SANDCO, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on January 6, 2003, a formal hearing

was held in this case. Authority for conducting the hearing is

set forth in Sections 120.569 and 120.57(1), Florida Statutes.

The hearing location was the DeSoto Building, 1230 Apalachee

Parkway, Tallahassee, Florida. Charles C. Adams, Administrative

Law Judge, conducted the hearing.

APPEARANCES

For Petitioner: Lonnie Jennings, pro se

Post Office Box 782

Greenville, Florida 32331

For Respondent: Vehad Ghagvini, President

Vicki Goodman, Personnel Representative

Sandco, Inc.

2811 Industrial Plaza Drive

Tallahassee, Florida 32310

STATEMENT OF THE ISSUE

Did Respondent engage in unlawful employment practices

against Petitioner on the basis of race, and if so, what remedies

are available to redress the wrong? Sections 760.10 and 760.11,

Florida Statutes.

PRELIMIN ARY STATEMENT

On February 9, 2001, Petitioner filed an amended charge of

discrimination against Petitioner with the Florida Commission on

Human Relations (FCHR). The alleged cause of discrimination was

based upon race. In particular, it was alleged that:

I. Personal harm was suffered by Petitioner on December

4, 2000, from being terminated from his position as a

serviceman.

II. The reasons for personal harm were stated as

Petitioner being told that he was no longer needed.

III. The statement co ncerning discrimination was that

Petitioner believed that he was discriminated against

because of his race, Black, in violation of Chapter 760

of the Florida Civil Rights Act as amended in Title VII

of the Federal Civil Rights Act for reason that the

Super intendent, Larry Smith, showed favoritism toward

white employees. For example, Mr. Smith would make sure

that Petitioner and other Blacks were working while white

employees were not performing nor required to perform at

the same level. And two, Petitione r was asked on two

occasions not to have conversations with a white female

on the job. One other Black male was discharged for

talking to a white female on the job, according to the

claim.

The allegations were investigated by FCHR. On September 23,

20 02, FCHR filed its determination of no cause and gave separate

notice of that determination.

On October 9, 2002, Petitioner filed his Petition for Relief

against Respondent with FCHR. In the petition Petitioner alleged

that Respondent showed favoritism toward white employees.

Petitioner alleged that he was told not to talk to white female

employees. Petitioner alleged that black employees were worked

harder than white ones. As to facts, Petitioner alleged that

Larry Smith treated Petitioner and other Blacks on the job

unjustly. Petitioner alleged that Mr. Smith would allow Whites to

stand around and talk but did not allow Blacks to do so.

Petitioner alleged that Mr. Smith especially got angry when Blacks

on the job spoke to white women on the job. P etitioner alleged

discrimination attributable both to Respondent and Larry Smith and

Petitioner stated his desire for compensation in relation to the

alleged discrimination pertaining to financial stress and strain

due to being fired around Christmas.

On October 15, 2002, the Division of Administrative Hearings

received the transmittal of the petition from FCHR, and the case

was opened under the aforementioned number. The case was

scheduled to be heard before Stephen F. Dean, Administrative Law

Judge. T he case was reassigned and the hearing conducted by the

undersigned.

Petitioner testified in his own behalf. Petitioner's

Exhibits numbered 1 and 2 were denied admission. Those denied

exhibits are transmitted with the record. Petitioner's Exhibits

num bered 3 through 6 were admitted.

Respondent presented the testimony of Vicki Goodman and Vehad

Ghagvini. Respondent's Exhibits numbered 1 through 5 were

admitted.

On January 23, 2003, the hearing transcript was filed with

the Division of Administrativ e Hearings. No proposed recommended

orders were provided.

FINDINGS OF FACT

1. Petitioner meets the definition of "person" in Section

760.02(6), Florida Statutes, entitled to assert claims for relief

under the Florida Civil Rights Act.

2. It was not disputed that Respondent is an "employer"

within the meaning Section 760.02(7), Florida Statutes. Based

upon the record it is inferred that Respondent is an employer

subject to the Florida Civil Rights Act in the conduct of its

employment practices.

3. Respondent is a corporation with three shareholders who

each have a one - third interest in the business. In the

corporation the shareholders are Vehad Ghagvini and his brothers.

Vehad Ghagvini is the president of the corporation and responsible

for the da y - to - day operation. Vicki Goodman serves as the Human

Resources Administrator for the company and is responsible for

matters associated with claims of discrimination by company

employees.

4. At times relevant Larry Smith was a supervisor for

Respondent .

5. On two separate occasions Petitioner worked for

Respondent. The first occasion was from November 8, 1999, through

June 7, 2000. His position with the company was that of a

laborer. When he separated from employment on June 7, 2000, it

was based upon his own decision. At that time it was indicated in

his personnel record that Petitioner would be subject to being

rehired and it was commented that Petitioner was considered to be

a hard worker and reliable. The personnel records show the

signature of Larry Smith as supervisor when Petitioner terminated

his employment with Respondent on June 7, 2000.

6. Petitioner returned to employment with Respondent in

October 2000, and was involuntarily terminated on December 5,

2000, from his position of a la borer. According to the papers

describing his separation from employment on December 5, 2000, he

was terminated for "failure to attend job responsibilities;

excessive absences on Saturdays." The form indicated that his

work evaluation was poor. It was i ndicated that Respondent did

not intend to rehire Petitioner beyond that date. Other comments

in the discharge indicated that Petitioner "was a reliable and

diligent worker during previous employment with the company but

failed to work to same standards t his time around."

7. Petitioner was required to work on Saturday. He did not

work on October 7, 2000, a Saturday, the Saturday of the week of

October 9, 2000, the Saturday of the week of October 23, 2000, the

Saturday of the week of October 30, 2000, the Saturday of the week

of November 13, 2000, and Saturday, December 2, 2000. During this

time frame Petitioner worked as a service truck operator with

duties that included fueling Respondent's equipment on road

construction jobs that were ongoing on the Sa turday dates that

Petitioner missed. Before his termination Petitioner had been

counseled on October 17, 2000, and in November 2000 concerning his

absences on Saturdays. Petitioner's testimony that he was only

required to work on Saturday on a voluntary basis and that meant

that he only needed to work one Saturday in his more recent

employment is not accepted.

8. Attached to Respondent's Exhibit numbered 5 is an EEO

summary from Respondent pointing out that employees of various

races had been subject t o termination in a pattern that does not

discriminate based upon race. Petitioner's termination on

December 5, 2000, is in keeping with that practice.

9. Petitioner has portrayed his dismissal from employment

with Respondent as originating with his mis treatment by his

supervisor, Larry Smith, not his absence from the job.

10. As Petitioner describes it, about a week or two before

he was terminated in December 2000, Larry Smith approached

Petitioner and told Petitioner that he did not want Petitioner

having conversations with females on the job. Petitioner is an

African - American. At that time there were two Caucasian females

working at the same location Petitioner worked.

11. In particular, one of the females on the job asked

Petitioner to take he r position directing traffic on the roadway

while she went to the restroom. Before she returned Mr. Smith

pulled up and saw Petitioner holding the flag for directing

traffic. Mr. Smith asked Petitioner why he was holding the flag.

Petitioner explained t hat he was helping the female employee while

she went to the restroom by directing traffic until she returned.

Later Mr. Smith came back and told Petitioner that he did not want

Petitioner having conversations with that female employee.

Petitioner surmis ed that the reason that Mr. Smith had for

Petitioner not speaking to the female employee was in relation to

the difference in their races, Petitioner's race and that of the

female employee. This opinion was reinforced in Petitioner's mind

because a simila r conversation about not speaking to the female

employee occurred three times. Mr. Smith stated his position in

such a manner as to have his comments pertain to both female

employees on the job. Mr. Smith's remarks were not stated in a

manner where he li terally said that he did not wish Petitioner to

speak to the female employees because Petitioner was an African -

American or Black and that the other persons were Caucasian or

White.

12. Another incident described by Petitioner was one in

which an Afr ican - American employee of Don Olsen Tire Company came

to repair a tire on a piece of equipment belonging to Respondent.

One of the female employees asked for a ride with that individual

in his truck back to another location where her van was located.

Pet itioner, the Don Olsen truck driver, and the female employee

rode in the tire repair truck. This was observed by Mr. Smith.

Mr. Smith approached the female employee and told her that he did

not appreciate that she was disrespecting him and his wife by

be ing in the truck with two black guys. Later that day, a Friday,

Mr. Smith approached Petitioner and stated that he did not want

Petitioner having a conversation or anything to do with females on

the job. The following Monday Petitioner was terminated.

P etitioner believes that he was terminated because of the

circumstances with the female employees of another race that have

been described.

13. Mr. Smith also told the Don Olsen employee that he did

not want that individual back on the job site fixing an ything

because the white female employee had been in that individual's

truck.

14. There was no showing that Petitioner made Respondent's

upper level managers aware of Mr. Smith's comments concerning

conversations which Petitioner had with Caucasian fema les on the

job. According to company records, at one time Petitioner had

been informed by Respondent concerning the procedures for making

complaints about employment practices related to issues of alleged

discrimination.

15. At the time that Petitioner was terminated, Mr. Smith

pulled up beside him on the job site and commented to the effect

"I don't need you no more." That was the only reason given at a

subsequent time when Petitioner spoke to Mr. Ghagvini concerning

Petitioner's termination. Mr. Gha gvini said that he had heard

from Superintendent Smith and that he was going to leave it at

that.

16. Petitioner presented no evidence concerning his claim

that Whites were allowed to stand around and talk and that black

employees were not allowed to do so, or that black employees were

in any manner worked harder than white employees.

17. Notwithstanding the prospect that Mr. Smith's motives

when telling Petitioner not to speak to female employees on the

job was racially motivated, the reason for Peti tioner's dismissal

was in relation to his failure to attend his duties on Saturday at

various times. That explanation was not created as a pretext to

divert attention from racial discrimination.

18. After his termination from Respondent, Petitioner fil ed

for unemployment and received those unemployment payments until

his eligibility ran out. In that time period he looked for jobs.

Eventually Petitioner obtained a position as a pipe layer with

Sayaler Utility. He began employment with that company in October

2002, and the employment was continuing at the time of the

hearing. Petitioner receives $8.00 an hour for his work and works

on an average 35 hours a week. When he was dismissed from his

employment with Respondent, Petitioner was receiving $8.50 an hour

and was working an average of 35 hours a week.

CONCLUSIONS OF LAW

19. The Division of Administrative Hearings has jurisdiction

over the subject matter and the parties in accordance with

Sections 120.569 and 120.57(1), Florida Statutes.

20. T his action is maintained pursuant to the Florida Civil

Rights Act, Sections 760.01 through 760.11, Florida Statutes. The

Florida law is patterned after Title VII of the Civil Rights Act

of 1964, as amended, 42 U.S.C. s.2000e et seq. School Bd. of Leon

Co unty v. Hargis , 400 So. 2d 103 (Fla. 1st DCA 1981). As a

consequence federal case law dealing with Title VII is deemed

applicable to the cases under the Florida Civil Rights Act.

21. By virtue of the Petition for Relief, Petitioner claims

disparate tre atment and hostile work environment leading to his

termination based upon race, this constituting an unlawful

employment practice by Respondent. Section 760.10(1), Florida

Statutes.

22. Petitioner is a person as defined in Section 760.02(6),

Florida St atutes, who is an aggrieved person having filed a

complaint with FCHR. Section 760.02(10), Florida Statutes.

23. Respondent is an employer as defined in Section

760.02(7), Florida Statutes, subject to the Florida Civil Rights

Act concerning its conditi ons of employment for its employees.

24. To prevail Petitioner has the initial burden of making a

prima facie case of racial discrimination as alleged. In the

event that the Respondent articulates what it considers to be a

legitimate non - discriminatory reason for the termination of

Petitioner's employment, then Petitioner must demonstrate that the

proffered reason was a mere pretext for Respondent's

discriminatory action. McDonnell Douglas Corp. v. Green , 411 U.S.

792, 93 S. Ct. 1817 (1973), and Texas Department of Community

Affairs v. Burdine , 450 U.S. 248, 101 S. Ct. 1089 (1981)

25. No evidence was presented which demonstrates that

Petitioner based upon his race as a member of a protected class,

African - American, was treated differently than Caucas ian

employees, in that African - American employees were made to work

harder than Caucasian employees or that Caucasian employees were

allowed to stand around and talk while African - American employees

were not allowed to stand around and talk.

26. Pet itioner has shown that as a member of a protected

group according to his race, African - American, he was subject to

unwelcome conduct by Larry Smith on the basis of his race in

prohibiting Petitioner from talking to the Caucasian females, the

only females o n the job site which affected the conditions of the

employment. It was not shown that Respondent in the person of its

management was made aware of Mr. Smith's actions such that

imposition of liability on Respondent would be appropriate.

Henson v. City of Dundee , 682 F.2d 897 (11th Cir. 1982)

27. Moreover, it would not be appropriate to impose

liability on the Respondent for the acts of its supervisor because

the reason offered for termination, non - attendance at the job on

scheduled dates of work, suppo rts the finding that the basis for

termination was not related to unlawful discrimination.

Petitioner has not met his ultimate burden of persuasion that the

termination was for reason of discrimination by showing that the

Respondent's explanation of the g rounds of termination were a mere

pretext lacking legitimacy.

RECOMMENDATION

Upon the consideration of the facts found and conclusions of

law reached, it is

RECOMMENDED:

That a final order be entered by FCHR dismissing Petitioner's

Petition for Relief in all respects.

DONE AND ENTERED this 14th day of February, 2003, in

Tallahassee, Leon County, Florida.

CHARLES C. ADAMS

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 14th day of February, 2003.

COPIES FURNISHED:

Lonnie Jennings

Post Office Box 782

Greenville, Florida 32331

Vehad Ghagvini, President

Vicki Goodman, Personnel Representative

Sandco, Inc.

2811 Industrial Plaza Drive

Tallahassee, Florid a 32310

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Talla hassee, 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 this recommended or der should be filed with the agency that

will issue the final order in this case.