04-001280 Tyrone White vs. Road Mart, Inc. Status: Closed Recommended Order on Monday, August 22, 2005.

Summary: On remand, the legal analysis is more developed. No prima facie case was established.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TYRONE WHITE, )

)

Petitioner, )

)

vs. ) Case No. 04 - 1280

)

ROAD MART, INC., )

)

Respondent. )

)

AMENDED RECOMMENDED ORDER

This matter is before the Division of Administrative

Hearings on an Order Remanding Petition for Relief from an

Unlawful Employment Practice dated June 15, 2005 (Remand).

The parties were provided opportunity to confer with their

clients and on or about August 12, 2005, verbally ad vised that

their clients took no position on the Remand.

Upon consideration, the Recommended Order dated and

rendered April 1, 2005, is amended, nunc pro tunc , in accordance

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

request that the undersigned clarify the legal analysis

employed, as follows:

APPEARANCES

For Petitioner: Marva A. Davis, Esquire

Marva A. Davis, P.A.

121 South Madison Street

Post Office Drawer 551

Quincy, Florida 32353 - 0551

For Respondent: Robert E. Larkin, III, Esquire

Allen, Norton & Blue, P.A.

906 North Monroe Street, Suite 100

Tallahassee, Florida 3230 3

STATEMENT OF THE ISSUE

Whether Respondent terminated Petitioner's employment on

account of his race in violation of Florida law.

PRELIMINARY STATEMENT

By Petition for Relief dated April 9, 2004, Petitioner

alleged he had been disciplined and terminated from employment

in violation of Chapter 760 , Florida Statutes, popularly known

as the Florida Civil Rights Act (FCRA). The FCRA prohibits

discrimination against an individual on the basis of, among

other things, race.

The identity of witnesses and exhibit s, and attendant

stipulations and rulings are contained in the two - volume

transcript of the proceedings, which was filed on February 21,

2005. The parties timely submitted Proposed Recommended Orders,

which have been carefully considered.

References to st atutes are to the Florida Statutes (2004).

FINDINGS OF FACT

1. Respondent, Road Mart, Incorporated, (Respondent or

Road Mart) is a family - owned and operated tire sales and service

company. Respondent is an employer within the meaning of

Section 760.02(7) , Florida Statutes.

2. Road Mart operates stores in North Florida and

neighboring states, including the store at which all events

relevant to this case occurred.

3. Petitioner, Tyrone White (Petitioner or White), is an

African - American male. White was employed by Road Mart at one

of its Florida stores at all times material to this case. White

held positions of trust from May 24, 1999, when he commenced

employment, until October 1, 2001, when he was terminated.

4. Sometime in 1999, White was offered a promotion to

store manager. White declined the position because it would

have required him to make other arrangements for his child's

transportation.

5. A Caucasian male employee was thereafter offered the

promotion which White had refused. In due co urse, White was

offered a promotion which he was in a position to accept.

6. On May 8, 2001, Respondent imposed written discipline

upon Petitioner in a disciplinary report which cited three

separate violations of company policy. In particular,

Petitioner charged merchandise to a customer's account without

having an approved credit application on file; left work for a

half - day without prior supervisor approval; and failed to take

adequate measures to collect past due accounts assigned to him

for follow - up. 1

7 . On August 31, 2001, Petitioner was reprimanded for not

completing daily duties.

8 . Petitioner responded to this disciplinary action by

directing Respondent’s attention to a Caucasian male who was,

similarly, failing to complete daily duties. Prior to

Petitioner’s complaint, Respondent was unaware of this

individual’s violation of company policy with respect to

completion of daily duties.

9 . Upon investigation, Respondent determined that the

individual about whom Petitioner complained had in fact fa iled

to complete daily duties, a fact of which Respondent previously

had been unaware. Immediately, Respondent took appropriate

disciplinary action against the Caucasian male employee.

1 0 . On September 18, 2001, Petitioner received two

additional written reprimands. The first concerned merchandise

that Petitioner had placed "on quote" and removed from the store

to show a customer. "On quote" is a term used at Road Mart to

indicate that particular merchandise or services are to be made

available to the c ustomer at the "on quote" price for a

reasonable length of time. "On quote” prices are to be

reflected in the company computer under the customer's name.

Merchandise held “on quote” is not to be removed from the store

unless it is paid in full and docume nted in accordance with Road

Mart's procedures for documenting specific transactions. Road

Mart reasonably requires that this policy be followed unless

other arrangements acceptable to management are made in advance.

11 . After receiving the reprimand, Pe titioner billed the

parts under his own account, at the employee discount price of

Road Mart's cost, plus ten percent. Road Mart policy limits the

use of the employee discount to bona fide employee purchases.

The employee discount is a significant saving s over the retail

price charged to the public at large.

12 . The second reprimand was given because Road Mart

learned that White had, approximately six weeks earlier,

purchased parts from a Road Mart supplier at Road Mart’s cost to

be used on White’s perso nal vehicle. White failed to re - bill

these charges to his personal account, contrary to company

policy.

13 . Road Mart reasonably viewed this conduct as dishonest

and could have terminated him for this violation, but elected

not to.

14 . With respect to Petitioner’s violation of company

policy as regards the use of the “on quote” process, employee

discount usage, and purchasing parts at cost from Respondent’s

dealers for personal use, Petitioner failed to identify any

similarly situated individual outsid e the protected class who

was treated more favorably with respect to the enforcement of

company policy regarding such rules.

15 . Petitioner offered no persuasive evidence that the

September 18, 2001, reprimands were rendered with any

discriminatory intent or impact. To the contrary, all of the

persuasive evidence, much of it provided by White himself,

established that the September 18, 2001 , reprimands were not

pretextual, but rather in furtherance of Respondent's desire to

require all employees to adhere to company policy, particularly

policies designed to prevent theft.

16 . In addition, White offered no credible or persuasive

evidence that any similarly situated individual outside the

protected class was treated more favorably with reference to any

of t he company policies addressed in the September 18, 2001,

reprimands.

17 . On September 30, 2001, White committed multiple

v iolations of company policy which resulted in his termination

of employment.

18 . Unbeknownst to any Road Mart employee, and without

authority to do so, White arranged to meet an individual he

described as an “associate,” one Robert Newkirk, on

September 30, 2001, at the Road Mart store.

19 . That date fell on a Sunday, a day when Road Mart is

closed to the publicusted employees , s uch as White was at

the time, have access to the store to serve the emergency needs

of customers. However, as White knew at all material times,

such access is only to be exercised under circumstances which

did not exist here, and in accordance with specif ic procedures

which White failed to follow.

20 . White entered the store using another employee's

security code number to de - activate the alarm system. Employees

with a valid reason to access the store when it is closed are

required to use their own secur ity code.

21 . White, by his own admission, met Newkirk at the store

for the purpose of installing two deluxe tires on Newkirk's

Lexus GS300.

22 . Previously, Road Mart had sold a pair of these tires,

known as Toyo Proxy 200s, to Newkirk, and on September 30, 2001,

Newkirk wanted the mates installed on his car.

23 . At least one Toyo Proxy 200 tire was on display in the

Road Mart showroom until September 29, 2001, when the store was

closed for the balance of the weekend. At that time, this tire

and all oth er showroom inventory were placed in the store's

warehouse for the weekend.

24 . White installed the display tire and one other on

Newkirk's Lexus.

25 . Road Mart renders a separate charge to customers who

receive such after - hours service. In addition, Ro ad Mart

imposes upon all customers a charge for the installation and

balancing of tires, as well as for disposing of the old tires.

Each of these charges should have been billed to Newkirk and

collected when the service was performed, absent other

arrange ments with White's supervisors. White did none of these

things.

26 . Newkirk paid White a portion of the retail value of

the second pair of tires, in cash. White never informed anyone

of this transaction, but, instead, pocketed Newkirk's money.

27 . As p reviously noted, company policy reasonably

requires that merchandise and services be paid for in full, and

documented in the company computer , unless other arrangements

acceptable to the owners are made, before merchandise leaves the

property and/or servic es are performed. Apart from protecting

the company against theft, the policy is essential for the legal

and financial protection of buyer and seller.

28 . In this case, documenting the sale of the tires to

Newkirk would have obliged the manufacturer to honor warranties

in the event the tires proved defective. Additionally , Road

Mart's insurer would have been obligated to provide coverage if

White had installed the tires in a negligent manner, resulting

in injury to Newkirk or other parties.

29 . Moreove r, by giving Newkirk the tires without

documenting what had been paid, the balance due, and what

arrangements had been made with Newkirk to pay the balance,

Newkirk was in a position to claim he had paid in full, which he

had not.

30 . White's activities o n September 30, 2001, violated

company policy, placed his employer in legal and financial

jeopardy, and, standing alone, warranted termination.

31 . When the store opened for regularly scheduled business

on Monday, October 1, 2001, White's co - workers almos t

immediately noticed that the display Toyo Proxy 200 was missing

and began to search for it. White, who arrived at work shortly

after the store opened, was aware that his co - workers were

seeking the missing tire s , but said nothing.

32 . Mid - morning, Whit e registered the tires in the store

computer, placing them “on quote,” in his name, at his employee

discount.

33 . Apart from the fundamental dishonesty of attempting to

rewrite the history of this transaction as his colleagues were

expending efforts to l ocate Respondent's missing tires, White

violated company policy by placing the tires “on quote” in his

own name and on his own authority. As previously noted, White

was not at liberty to extend the employee discount to Newkirk or

anyone else.

34 . Later t hat morning, White entered the tires into the

computer as a sale to himself at the employee discount rate.

35 . By the end of the morning, Road Mart's management had

uncovered most of the details regarding White's unauthorized and

improper activities of t he previous 24 hours. Management

confronted White with the results of its investigation, and

terminated his employment.

36 . Petitioner’s October 1, 2001, termination was based

entirely upon his multiple violations of company policy in the

24 hours preced ing his termination. Petitioner f ailed to

identify any similarly - situated individual outside the protected

class who was treated more favorably with respect to the

enforcement of company policy regarding requirements that sales

be timely and properly docu mented.

CONCLUSIONS OF LAW

37 . The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to Sections 120.57(1), 120.569 , and Chapter 760,

Florida Statutes.

38 . Section 760.10, Florida Statutes, p rohibits

discrimination against any individual with respect to

compensation, terms, conditions, or privileges of employment

because of the individual's race or gender. See § 760.10(1),

Fla. Stat.

39 . As a condition precedent to bringing any civil cause

of action under Chapter 760 an aggrieved person must file a

complaint with the Commission within 365 days of the alleged

violation. See § 760.11(1), Fla. Stat.

40 . Petitioner filed his Charge of Discrimination with the

Commission on May 21, 2002. Thus, any complaint of

discrimination grounded in the promotion which Petitioner

refused in 1991 and/or the imposition of discipline on May 8,

2001, is time barred and must be dismissed as a matter of law.

See Greene v. Seminole Electric Cooperative, Inc. , 701 So. 2d

646, 648 (Fla. 5th DCA 1997).

41 . Florida courts have determined that federal case law

applies to claims arising under Florida’s Civil Rights Act, and

as such, the United States Supreme Court’s model for employme n t

discrimination cases set forth in McDonnell Douglas Corp. v.

Green , 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973),

applies to claims arising under Section 760.10, Florida

Statutes. See Florida Department of Community Affairs v. Bryant

586 So. 2d 1205 (Fla. 1st DCA 1991).

42 . U nder the McDonnell Douglas analysis, in employment

discrimination cases, Petitioner has the burden of establishing

by a preponderance of evidence a prima facie case of unlawful

discrimination.

43 . To establish a prima facie case of racial

discrimination b ased on disparate treatment, Petitioner must

show: (a) he belongs to a racial minority; (b) he was subjected

to an adverse employment action; (c) he was qualified for his

position; and ( d) Respondent treated similarly - situated

employees outside the protec ted class more favorably. See

Holifield v. Reno , 115 F.3d 1555, 1562 (11th Cir. 1997).

44 . If the prima facie case is established, the burden

shifts to Respondent , as the employer, to rebut this preliminary

showing by producing evidence that the adverse action was taken

for some legitimate, non - discriminatory reason. If the employer

rebuts the prima facie case, the burden shifts back to

Petitioner to show by a preponderance of evidence that

Respondent’s offered reasons for its adverse employment decisio n

were pretextual. See Texas Department of Community Affairs v.

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

45 . Petitioner has failed to prove a prima facie case of

unlawful employment discrimination.

46 . Petitioner established that he is a member of a

protected group, African - American. Petitioner also established

that he was subject to adverse employment action in that he was

terminated from his job. Finally, Petitioner established that

he was qualified to do his job.

47 . However , Petitioner presented no evidence that his

race played any role in his termination. No other similarly -

situated employee; i.e. , an employee outside the protected

class , was treated more favorably by management with respect to

any disciplinary issue. Hav ing failed to establish this

element, Petitioner has not established a prima facie case of

employment discrimination.

48 . Even if Petitioner had set forth a prima facie case,

Respondent presented evidence of legitimate, non - discriminatory

reasons for term inating Petitioner, thereby rebutting any

presumption of race discrimination. The undisputed evidence

presented by Respondent established that Petitioner was

terminated for multiple failures to follow company policy on

September 30, 2001 , and October 1, 2 001, with respect to

handling after - hours transactions.

49 . Petitioner failed to prove that Respondent’s reasons

for terminating him were pretextual.

RECOMMENDATION

Upon the Findings of Fact and Conclusions of Law it is

RECOMMENDED that the Florida Commis sion on Human Relations enter

a final order denying all claims and dismissing the Petition for

Relief.

DONE AND ENTERED this 22nd day of August 2005, in

Tallahassee, Leon County, Florida.

S

FLORENCE SNYDER RIVAS

Admini strative 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 Admi nistrative Hearings

this 22nd day of August 2005.

ENDNOTE

1/ Claims under Chapter 760 relating to the promotion

Petitioner declined in 1999 or to the May 8, 2001, discipline

are time - barred, because they were made more than 365 days after

the discrimin atory conduct alleged with reference to these

events. In addition, White offered no credible or persuasive

evidence that any similarly situated individual outside the

protected class was treated more favorably with reference to

promotions, nor to the disc ipline, for violating any of the

three company policies addressed in the May 8, 2001, written

disciplinary report.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Flori da 32301

Marva A. Davis, Esquire

Marva A. Davis, P.A.

121 South Madison Street

Post Office Drawer 551

Quincy, Florida 32353 - 0551

Robert E. Larkin, III, Esquire

Allen, Norton & Blue, P.A.

906 North Monroe Street, Suite 100

Tallahassee, Florida 32303

Cecil Howard, General Counsel

Florida Commission 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 o f this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.