08-002159 Darrell Roulhac vs. Family Dollar Status: Closed Recommended Order on Tuesday, September 30, 2008.

Summary: Petitioner complained that he was discharged because of his race. Held: Petitioner was discharged because of consistently poor performance.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DARRELL ROULHAC, )

)

Petitioner, )

)

vs. ) Case No. 08-2159

)

FAMILY DOLLAR, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for final hearing before Harry L.

Hooper, Administrative Law Judge with the Division of

Administrative Hearings, on August 8, 2008, in Marianna,

Florida.

APPEARANCES

For Petitioner: Darrell Roulhac, pro se

652 Pecan Street

Chipley, Florida 32428

For Respondent: Wayne L. Helsby, Esquire

Allen, Norton & Blue, P.A.

1477 West Fairbanks Avenue, Suite 100

Winter Park, Florida 32789

STATEMENT OF THE ISSUE

The issue is whether Respondent engaged in an unlawful

employment practice.

PRELIMINARY STATEMENT

Petitioner, Darrell Roulhac (Mr. Roulhac), filed an

Employment Complaint of Discrimination with the Florida

Commission on Human Relations (Commission) on October 9, 2007.

The entity complained of was Family Dollar Services, Inc.

(Family Dollar), located in Marianna, Florida. The Complaint

alleged discrimination based on race, sex, and claimed

retaliation.

On March 27, 2008, the Commission, subsequent to an

investigation, entered a Notice of Determination: No Cause.

Subsequently, Mr. Roulhac filed a Petition for Relief with the

Commission that complained only of discrimination based on race.

The matter was transmitted to the Division of Administrative

Hearings and filed May 1, 2008. It was set for hearing in

Marianna, Florida, for July 17, 2008. Family Dollar filed for a

continuance on July 14, 2008, which was granted.

The hearing was held on August 8, 2008.

Mr. Roulhac was the sole witness at the hearing. Family

Dollar offered and had accepted into evidence Exhibits 1

through 17.

A Transcript was filed on September 11, 2008. After the

hearing, Respondent filed its Post-Hearing Submittal on

September 22, 2008. Petitioner did not file a proposed

recommended order.

References to statutes are to Florida Statutes (2007)

unless otherwise noted.

FINDINGS OF FACT

1. Family Dollar operates a large distribution center

immediately south of Marianna, Florida. The center supports the

retail activities of Family Dollar.

2. Mr. Roulhac is an African-American male. He was first

employed by Family Dollar at its distribution center on

September 26, 2005. His job title was "bulk order filler." On

that date he signed a New Associate Orientation Checklist,

indicating that he understood his conditions of employment.

3. On September 26, 2005, he also signed a statement that

he had reviewed and understood Family Dollar's Statement of

Major Company Policies. Included on that form was a direction

on how to report misconduct, including discrimination.

4. On September 26, 2005, Mr. Roulhac also signed a

document acknowledging that he had read and that he understood

Family Dollar's Policy on Harassment in the Workplace. This

document informed him that Family Dollar did not tolerate, among

other things, discrimination based on race or a hostile work

environment that might be created on account of race. In bold

letters the document informed as to how complaints regarding

instances of discrimination based on race or a hostile work

environment could be reported.

5. A "bulk order filler" is responsible for pulling

merchandise and filling orders, labeling the orders, and placing

the orders on conveyor belts for loading on board Family Dollar

trucks, so that they may be delivered to its stores.

6. Mr. Roulhac received an evaluation for the period from

September 26, 2005, his inception date, and December 26, 2005.

This evaluation noted that he had an outstanding attitude, that

he exceeded expectations, and that he worked well with little

supervision.

7. By August 2006, Mr. Roulhac had entered into a downward

performance spiral. He was counseled by his manager, Matt

Johnson, who noted that he was failing to meet "Argent"

standards. "Argent" standards are production standards required

by Family Dollar. This was memorialized in an Associate

Corrective Action Review prepared on September 5, 2006, and

signed by Mr. Roulhac on September 11, 2006. He was advised

that he could seek additional training if he wished.

8. In an Associate Corrective Action Review dated

November 1, 2006, Mr. Roulhac received another written

counseling from manager Matt Johnson that noted that he had only

reached 75.9 percent of standards when he should have attained

90 percent. He was advised that he could seek additional

training if he wished.

9. In an Associate Corrective Action Review dated

December 27, 2006, Mr. Roulhac received another written

counseling that noted that he had only reached 76.5 percent of

standards when he should have attained 90 percent. The form

notes that he "failed to sign." Manager Matt Johnson also

failed to sign the form. Mr. Roulhac was again advised that he

could seek additional training if he wished.

10. In an Associate Corrective Action Review dated

April 11, 2007, Mr. Roulhac received another written counseling

that noted that he had only attained 73 percent of standards

when he should have attained 90 percent. This was signed by

manager Matt Johnson. This written counseling contained the

following comment: "Please notify me if you feel you need

additional training to perform the duties and responsibilities

of your position. It is critical that you increase your

production to meet the minimum engineered standard. Failure to

improve your job performance could result in further

disciplinary action, including a possible suspension or

discharge." This was signed by manager Matt Johnson.

11. In an Associate Corrective Action Review dated May 3,

2007, Mr. Roulhac received another written counseling for "work

habits-insubordination." The counseling noted that, "It is the

responsibility of each associate to follow the instructions

given to them by management and to follow all company policies

and procedures. Failure to follow these instructions may result

in corrective action and possible discharge." This counseling

resulted from Mr. Roulhac's failure to attend a "start-up

meeting, failure to clean the "Mod," and leaving his assigned

area without authorization. This was signed by manager Matt

Johnson.

12. In an Associate Corrective Action Review dated May 21,

2007, Mr. Roulhac received another written counseling for "Work

Habits-Failure to Comply with Job Responsibilities." This

review noted that he failed to go where he was told and that his

failure impeded production and caused unnecessary downtime. It

had the following comment: "Please notify me if you feel you

need additional training to perform the duties and

responsibilities of your position. Failure to improve your job

performance or compliance with Family Dollar policies and

procedures could result in further disciplinary action,

including a possible suspension or termination." This was

signed by Christopher Miller. Mr. Roulhac refused to sign this

counseling memorandum.

13. In an Associate Corrective Action Review dated May 31,

2007, Mr. Roulhac received another written counseling for

"Safety-Unsafe Act." This counseling occurred because he

operated the Tugger 409 without authority. It advised him that,

"Failure to perform your job in exact conformance with all

safety requirements will result in corrective action up to and

including termination of employment. Michael Shutes signed this

counseling. The form noted that Mr. Roulhac refused to sign.

14. In an Associate Corrective Action Review, also dated

May 31, 2007, Mr. Roulhac received another written counseling

for a "work habit/time clock" infraction. The counseling noted

that, "You have received three time clock infractions within a

60-day period. April 17th, May 29th, and May 30th, 2007." This

counseling was given by Michael Shutes.

15. In an Associate Corrective Action Review dated

June 13, 2007, Mr. Roulhac received another written counseling

from Christopher Miller for failure to comply with job

responsibilities. This review noted that he had failed to

attend the "start up meeting." The form noted that, "Failure to

improve your job performance or compliance with Family Dollar

policies and procedures could result in further disciplinary

action, including a possible suspension or termination."

16. In an Associate Corrective Action Review dated

June 14, 2007, Mr. Roulhac received another written counseling

from Christopher Miller for "work habits/failure to comply with

job responsibilities." This counseling addressed another

failure to attend the "start up meetings." It noted: "Final

Written Counseling (Active 1 Year.)"

17. On July 10, 2007, Mr. Roulhac received another written

counseling from Christopher Miller for reporting that at

1:59 p.m. that he, Mr. Roulhac, had completed his labels, and

noted that, "You failed to call and open up new labels until

2:55 p.m. There is no record of work being performed during

this time." This counseling asserted that Mr. Roulhac was

terminated. However, a hand-written note on the form related

that, "After discussing with Darrell, we have decided to give

him an opportunity to correct his behavior." This was signed by

Jeff Diamond on July 12, 2007.

18. There is no evidence of record that Mr. Roulhac ever

availed himself of the opportunity to receive the additional

training offered in each Associate Corrective Action Review.

19. On July 13, 2007, Mr. Roulhac asserts that he was

called a "monkey" and a "boy" by Mr. Miller. This assertion was

not rebutted. No evidence was offered that might illuminate the

context in which these words were said.

20. On July 14 and 16, 2007, Mr. Roulhac was late to

"start up" meetings. On July 17, 2007, Mr. Miller told him to

report to Mr. Johnson. At a meeting attended by Mr. Johnson,

Mr. Roulhac, Mr. Miller, and Mr. Diamond, Mr. Roulhac was

informed that he was terminated. The discharge was approved by

Craig Moore, an African-American, who was the regional vice-

president at the Marianna facility.

21. Mr. Roulhac was paid $11.23 per hour while working for

Family Dollar. About three days from the date of his

termination, he went to work for a funeral parlor making the

same hourly wage.

22. No evidence whatsoever was introduced that indicated a

racially offensive working environment. No evidence was

provided that indicated that Mr. Roulhac was treated differently

from any other employee. In fact, the evidence demonstrates

that, considering the number of adverse counselings he received,

Family Dollar exhibited remarkable forbearance in retaining him

despite his inability to meet standards.

CONCLUSIONS OF LAW

23. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. §§ 120.57(1) and 760.11(7) Fla. Stat. (2007).

24. Subsection 760.02(1), Florida Statutes, states that

the "Florida Civil Rights Act of 1992" (the Act) comprises

Sections 760.01 through 760.11, and 509.092, Florida Statutes.

25. Mr. Roulhac is an "aggrieved person," and Family

Dollar is an "employer" as defined by Section 760.02, Florida

Statutes.

26. Pursuant to Subsection 760.10(1), Florida Statutes, it

is an unlawful employment practice for an employer to discharge

or otherwise discriminate against an individual on the basis of

race.

27. The Act is patterned after Title VII of the Federal

Civil Rights Act, 42 U.S.C. Section 2000e et seq . Federal case

law interpreting Title VII is applicable to cases arising under

the Act. See Florida Department of Community Affairs v. Bryant ,

586 So. 2d 1205 (Fla. 1st DCA 1991) and School Board of Leon

County v. Weaver , 556 So. 2d 443 (Fla. 1st DCA 1990).

28. Racial discrimination, generally, may be evidenced by

proof of a hostile work environment or by proof of disparate

treatment.

29. A hostile work environment claim is established upon

proof that "the workplace is permeated with discriminatory

intimidation, ridicule, and insult, that is sufficiently severe

or pervasive to alter the conditions of the victim's employment

and create an abusive working environment." Miller v. Kenworth

of Dothan, Inc. , 277 F.3d 1269, 1275 (11th Cir. 2002) (quoting

Harris v. Forklift Sys., Inc. , 510 U.S. 17, 21, 114 S. Ct. 367,

126 L. Ed. 2d 295 (1998)). To establish a hostile work

environment claim, an appellant must show:

(1) that he belongs to a protected

group;

(2) that he has been subject to

unwelcome harassment;

(3) that the harassment must have been

based on a protected characteristic of the

employee, such as race;

(4) that the harassment was

sufficiently severe or pervasive to alter

the terms and conditions of employment and

create a discriminatorily abusive working

environment; and

(5) that the employer is responsible

for such environment under either a theory

of vicarious or of direct liability.

30. A single instance of Mr. Roulhac having heard a

supervisor refer to him as a "boy" or "monkey," however impolite

or inappropriate, does not constitute a hostile work

environment. In Harrington v. Disney Reg'l Entm't, Inc. , 276

Fed. Appx. 863 (11th Cir. 2007), a manager, told several black

bussers that they "looked like a bunch of monkeys. " Another

manager, in the same case, referred to African-Americans, as

"ghetto." The Court did not find these statements, without

more, to be the sort of "severe and pervasive" comments that

might sustain a claim of a hostile work environment.

31. Having failed to prove the existence of a hostile work

environment, Mr. Roulhac is left with trying to prove disparate

treatment. Because there is no direct evidence of

discrimination, Mr. Roulhac must proceed using the McDonnell

Douglas framework. To do this, Mr. Roulhac must establish a

prima facie case of race discrimination. If he does so, Family

Dollar may offer a legitimate, nondiscriminatory reason for its

actions. If it does so, Mr. Roulhac must prove that Family

Dollar's reason is a pretext for race discrimination, if he is

to prevail.

32. In order to prove a prima facie case, Mr. Roulhac must

show that: (1) he is a member of a protected class; (2) he was

subjected to an adverse employment action; (3) he was treated

differently than similarly-situated employees of a different

race; and (4) that he was qualified for the job or job benefit

at issue. See Gillis v. Ga. Dep't of Corr. , 400 F.3d 883 (11th

Cir. 2005).

33. Mr. Roulhac is a member of a protected class because

he is an African-American. His discharge was an adverse

employment action. Although he was apparently qualified to

perform the job of "bulk order filler," the numerous counselings

he received indicate that he was unqualified. No evidence was

produced indicating that similarly situated employees of a

different race were treated differently. Accordingly,

Mr. Roulhac has failed to prove a prima facie case.

34. If one were to suspend disbelief and find that

Mr. Roulhac proved a prima facie case, Family Dollar proved

beyond any doubt that its actions were based on poor job

performance, not discrimination, and this assertion was not

proven to be pretextual.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is

RECOMMENDED that the Florida Commission on Human Relations

dismiss Mr. Roulhac's Petition for Relief.

DONE AND ENTERED this 30th day of September, 2008, in

Tallahassee, Leon County, Florida.

S

HARRY L. HOOPER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of September, 2008.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Wayne L. Helsby, Esquire

Allen, Norton & Blue, P.A.

1477 West Fairbanks Avenue, Suite 100

Winter Park, Florida 32789

Darrell Roulhac

652 Pecan Street

Chipley, Florida 32428

W. Edward Singletary, Esquire

Family Dollar Services, Inc.

Post Office Box 1017

Charlotte, North Carolina 28201

Larry Kranert, 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 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.