03-000722 Frederick Augustine vs. Solutia, Inc. Status: Closed Recommended Order on Tuesday, August 26, 2003.

Summary: Petitioner failed to show that employees who were outside the protected class and similarly situated were treated more favorably or that the reason for termination (absenteeism) was pre-textual, even if he had proven a prima facie case.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FREDERICK AUGUSTINE, )

)

Petitioner, )

)

vs. )

) Case No. 03 - 0722

SOLUTIA, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this ca use came on for administrative

hearing before P. Michael Ruff, duly - designated Administrative

Law Judge of the Division of Administrative Hearings, in

Pensacola, Florida, on May 12, 2003. The appearances were as

follows:

APPEARANCES

For Petitioner : Debra Cooper, Esquire

1008 West Garden Street

Pensacola, Florida 32501

For Respondent: Erick M. Drlicka, Esquire

Emmanuel, Sheppard & Condon

39 South Spring Street

Pensacola, Florida 32501

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern

whether the Petitioner was disparately treated because of his

race when he was terminated from the Respondent's employment.

PRELIMINARY STATEMENT

The Respondent ope rates a manufacturing plant in Escambia

County, Florida, which makes nylon staple and no shock

conductive fiber. The Petitioner was employed as a carpet

operator in Respondent's carpet area until December 13, 2001.

The Petitioner filed a charge of race a nd sex discrimination

with the Florida Commission on Human Relations ("Commission") on

August 30, 2002 and ultimately filed Petition for Relief with

the Division of Administrative Hearings on February 28, 2003,

concerning his claim of disparate treatment.

The cause came on for hearing as noticed at which time the

Petitioner presented his own testimony. The Petitioner did not

call any other witnesses nor did he submit any exhibits. The

Respondent called four witnesses: Cathy Morris ("Morris"),

Murray Ham ilton ("Hamilton"), Julia Randolph ("Randolph"), and

Mike Kimbro ("Kimbro"). The Respondent submitted into evidence

exhibits one through twenty - one.

Upon conclusion of the proceedings the parties elected to

transcribe the proceedings and to avail themsel ves of the

opportunity to file proposed recommended orders. The Respondent

timely filed a Proposed Recommended Order which has been

considered in the rendition of this Recommended Order. All

citations are to Florida Statutes (2002) unless otherwise

indic ated.

FINDINGS OF FACT

1. The Respondent operates a manufacturing plant in

Escambia County, Florida, which produces nylon staple and no

shock conductive fiber in a portion of the plant known as the

carpet area.

2. The carpet area operates twenty - four h ours a day, seven

days a week. The carpet area is headed by a Team Leader.

Keith Chambers ("Chambers") was the Team Leader for the carpet

area until November 1, 2001. Morris succeeded Chambers as the

Team Leader. Underneath the Team Leader is the Carpet Team

Resource Coordinator. Hamilton was the Carpet Team Resource

Coordinator since May 2000.

3. There are four shifts in the carpet area: "A" Shift,

"B" Shift, "C" Shift and "D" Shift. Each shift is twelve hours,

starting at 6:00 a.m. and 6:00 p.m., respectively. The shifts

rotate between nights and days, as well as weekdays and

weekends.

4. Each shift has four teams. The teams are comprised of

seven carpet operators. The primary responsibility of the

carpet operators is to ensure there is no disruption in the

manufacturing process. Each team has a team captain who is

selected by his team to serve as team captain for six months.

The team captain is responsible for tracking vacation, overtime,

finding coverage when a team member calls in si ck and capturing

time exceptions. They are the same grade level and pay scale as

their team members and have no supervisory authority.

5. The carpet operators do not have to punch a time clock.

They are on an honor system with respect to the number of hours

worked. If there is any deviation from the twelve - hour shift,

the carpet operator is responsible for telling the team captain

so that the team captain can record the deviation on a time

sheet exception report. Carpet operators are entitled to one

t hirty - minute lunch break and two fifteen - minute breaks per

shift.

6. The Petitioner worked as a carpet operator on team one

of the "D" shift for approximately three years.

7. Kimbro was the Team Captain for team one of the "D"

shift from March, 2001 to November 22, 2001. Randolph succeeded

Kimbro as the Team Captain on November 22, 2001, and remained

the Team Captain through the balance of the Petitioner's

employment.

8. The Petitioner had been counseled about staying on his

assignment and sleeping o n the job on June 25, 1997,

June 16, 1998, and November 1, 1999.

9. On November 16, 2001, the Petitioner worked the 6:00

a.m. to 6:00 p.m. shift. He and a co - employee, Ray Grace

("Grace"), were seen by Chambers's, the Petitioner's former

supervi sor, at a convenience store located away from the plant,

less than two hours before the end of their shift.

10. Chambers notified Hamilton who in turn reported the

incident to Morris. Morris asked to review the Petitioner's and

Grace's badge records whi ch would show when they left and came

back to the plant over a period of time. Morris noticed that

the Petitioner left the plant on other occasions besides

November 16, 2001. One particular entry showed that the

Petitioner left the plant for over an hour and seventeen

minutes. Concerned over the latter entry, Morris ordered

additional badge records which went further back in time to

determine whether the latter entry was an isolated occurrence.

11. The additional badge records showed that there was a

definite, long - term pattern of the Petitioner leaving the plant

for extended periods of time during his shift. In particular,

the badge records showed the Petitioner left the plant thirty -

eight times for forty - five minutes to an hour at a time between

January 8, 2001 and November 16, 2001. The badge records also

showed that the Petitioner left the plant thirty - five times for

more than an hour at a time between January 8, 2001 and

November 16, 2001. The badge records showed that on eleven

shifts duri ng this time period, the Petitioner left the plant at

least two times for more than forty - five minutes at a time. The

total amount of time the Petitioner was absent from the plant,

for more than forty - five minutes, equaled approximately eighty -

seven hours and forty - five minutes between January 8, 2001 and

November 16, 2001. The badge records also showed that the

overwhelmingly majority of the time the Petitioner left the

plant was on a night or week - end shift, when his supervisors,

Hamilton and Morris, we re not in the plant.

12. After reviewing the badge records, Morris met with the

Petitioner to discuss the severity of the matter and to

determine whether Petitioner had an acceptable reason for

leaving the plant as often and for as long as he did. The

P etitioner was unable to provide any valid explanation for his

actions. He did indicate that other employees did the same

thing, but he would not give Morris the name of those employees.

He also indicated that on several occasions he went to see his

daugh ter in the hospital.

13. The Petitioner testified that it would take a minimum

of two hours to travel to and from the hospital to see his

daughter. A review of the Petitioner's badge records shows that

the longest he left the plant, at any one time, was one hour and

thirty - six minutes.

14. After meeting with the Petitioner, Morris pulled other

employees' badge records to compare them to Petitioner's badge

records. No other employee was remotely close to the Petitioner

as to the frequency and lengths o f time of absence from the

plant.

15. Based on the information gathered, Morris decided to

terminate the Petitioner.

16. The Petitioner was terminated on December 13, 2001.

17. The Petitioner identified six individuals who he

believed were similarly situated to him but were treated better.

They included Mike Kimbro (a white male), Dion House (a black

male), Terence Goldstein (a black male), Kevin Dykes (a white

male), Andretta Harris (a black female), and Loretta Adams (a

black female). However, the Petitioner was unable to show how

these individuals were similarly situated to him.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction of the subject matter and of the parties to this

proceeding. Section 120.57(1).

19. Pet itioner alleges that Respondent treated him

differently than white employees because of his race and gender

when he was terminated on December 13, 2001, in violation of

Section 760, and Title VII. Section 760 is patterned after

Title VII and is to be cons trued using federal case law

interpreting Title VII. Florida State University v. Sondel, 685

So. 2d 923 (Fla. 1st DCA 1996); Brand v. Florida Power Corp.,

633 So. 2d 504, 509 (Fla. 1st DCA 1994) and Florida Department

of Community Affairs v. Bryant, 586 S o. 2d 1205 (Fla. 1st DCA

1991).

20. The Petitioner has the burden of establishing that the

Respondent's actions were motivated by a discriminatory purpose,

either through direct evidence or circumstantial evidence using

the McDonnell Douglas standard of proof. Texas Department of

Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67

L. Ed. 207 (1981); St. Mary's Honor Center v. Hicks, 509 U.S.

502, 113 S. Ct. 2742, 2747, 125 L. Ed. 407, 416 (1993).

21. Petitioner has not presented any direct evidence of

discrimination. Accordingly, Petitioner's claim is analyzed

using the McDonnell Douglas standard. Pursuant to McDonnell

Douglas , the Petitioner has the burden of establishing a prima

facie case of race discrimination. If a prima facie case i s

demonstrated, then the Respondent must articulate a legitimate,

non - discriminatory reason for its actions. Once the Respondent

establishes a legitimate, non - discriminatory reason, then the

Petitioner must show that the proffered reason is pretextual.

T he ultimate burden of persuasion remains at all times with the

Petitioner. Texas Department of Community Affairs v. Burdine,

450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed.2d 207 (1981); St.

Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742,

2747, 125 L. Ed.2d 407, 416 (1993).

22. In order to establish a prima facie case, the

Petitioner must prove by a preponderance of the evidence that:

(1) he belongs to a protected class, (2) he was subjected to an

adverse employment action, (3) the Respondent treat ed similarly -

situated employees, outside the protected class, more favorably,

and (4) he was qualified to do the job. Jones v. Bessemer

Carraway Medical Center, 137 F.3d 1306, 1310 (11th Cir. 1998).

23. The Petitioner has failed to establish a prima fa cie

case in several respects. First, he has failed to establish

that the Respondent treated similarly - situated employees outside

the protected class more favorably. The Petitioner identified

six individuals who he believed were similarly - situated to him.

However, not all the individuals listed by the Petitioner were

outside the protective class. More specifically, four out of

the six were of the same race and/or gender as the Petitioner.

24. Even if they were all outside the protected class, the

Petit ioner failed to demonstrate that the other employees were

similarly - situated to the Petitioner and that they were treated

more favorably than he. The only evidence submitted by the

Petitioner that the six employees were similarly - situated and

treated more favorably is his subjective belief. The

Petitioner's subjective beliefs are not sufficient to meet the

Petitioner's burden. Earley v. Champion International Corp.,

907 F.2d 1077 (11th Cir. 1990) and William v. Hager Hinge

Company, 916 F.Supp. 1163 (M.D. Ala 1995).

25. In addition, the record evidence established that the

Petitioner's subjective belief that he was treated less

favorably than similarly - situated persons outside the protected

class was simply unfounded. The Petitioner left the plant for

m ore than forty - five minutes during his shift seventy times

between January 8, 2001 and November 16, 2001 for a total of

eighty - seven hours. No other employee left the plant as

frequently and for such lengths of time as the Petitioner.

26. Even if the Pe titioner established a prima facie case,

the Respondent has articulated a legitimate, non - discriminatory

reason for terminating the Petitioner. The reason for his

termination was time falsification. More specifically, the

pattern of leaving the plant as often and as long as the

Petitioner did not only violate company policy, it also resulted

in the Petitioner being paid for almost two weeks of time not

actually spent working.

27. The Petitioner has failed to come forward with any

evidence showing that the Respondent's articulated reason is

pre - textural. The Petitioner admits that he left the plant

while "still on the clock" on the dates and times indicated on

the badge records. He also admits that this was the reason for

his termination. When asked why he believed he was terminated

because of his race, the Petitioner proffered no explanation

other than "I just felt like I was just treated different."

Finally, the evidence shows that the Petitioner was not treated

any differently than persons ou tside his class since no other

employee committed a remotely comparable offense.

28. Finally, even if the Petitioner had established a

claim of discrimination, he failed to establish his claim for

damages. The Petitioner did not present any evidence as to the

amount of damages he is claiming.

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 dismissing the Petition for Relief in its

entirety.

DONE AND ENTERED this 26th day of August, 2003, in

Tallahassee, Leon County, Florida.

S

_____________________ ______________

P. MICHAEL RUFF

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 w ith the Clerk of the

Division of Administrative Hearings

this 26th day of August, 2003.

COPIES FURNISHED :

Debra Cooper, Esquire

1008 West Gaines Street

Pensacola, Florida 32501

Erick M. Drlicka, Esquire

Emmanuel, Sheppard & Condon

30 South Spring Street

Pensacola, Florida 32501

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

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 this Recommended Order should be fil ed with the agency that

will issue the final order in this case.