19-001636 Robert E. Pace vs. Saddle Creek Corporation Status: Closed Recommended Order on Thursday, July 11, 2019.

Summary: Former employee did not prove unlawful retaliation. He did not prove that employees who were not disciplined were similarly situated.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT E. PACE,

Petitioner,

vs. Case No. 19 - 1636

SADDLE CREEK CORPORATION,

Respondent.

_______________________________/

RECOMMENDED ORDER

Administrative Law Judge John D. C. Newton, II, of the

Division of Administrative Hearings (Division) , conducted the

final hearing in this case on June 5, 2019, by video

tele conference at locations in Lakeland and Tallahassee, Florida.

APPEARANCES

For Petitioner: Robert E. Pace, Sr., p ro s e

1100 North Davis Avenue

Lakeland, Florida 33805

For Respondent: Caren S. Marlowe, Esquire

Stephanie C. Generotti, Esquire

Ogletree, Deakins, Nash,

Smoak & Stewart, P.C.

Suite 3600

100 North Tampa Street

Tampa, Florida 33602

STATEMENT OF THE ISSUE

Did Respondent, Saddle Creek Corporation (Saddle Creek) ,

retaliate against Petitioner, Robert E. Pace, Sr., in violation

of section 760. 10(7) , Florida Statutes (201 8 ) , for filing

complaints of discrimination in employment against it?

PRELIMINARY STATEMENT

On April 2, 2018, Mr. Pace filed an Employment Complaint of

Discrimination with the Florida Commission on Human Relations

(Commission). The complaint alleged that Saddle Creek discharged

Mr. Pace in retaliation for his filing two complaints of

discrimination in employment on account of race. The Commission

investigated the complaint and determined that there was no

reasonable cause to believe that Saddle Creek had discharged

Mr. Pace unlawfully. Mr. Pace filed a Petition for Relief

reiteratin g his claim that Saddle Creek retaliated against him

for complaining of discrimination. On March 27, 2019, the

Commission transmitted the matter to the Division to conduct a

final hearing on Mr. PaceÓs claims.

The undersigned conducted the hearing on June 5, 2019.

Mr. Pace presented testimony from David Davidson, Ernie Diaz,

Brenda Ferguson, Craig Gardner, John Harmon, Dale Harrison, and

Ed Marshall. Mr. Pace did not testify on his own behalf or enter

any exhibits into evidence.

Saddle Creek presented testimony from Carol Arkins and

Mr. Pace. Saddle CreekÓs Exhibits 1 and 3 through 7 were

admitted into evidence.

A transcript of the hearing was filed. The parties timely

filed proposed recommended orders. Those proposed orders have

been considered in the preparation of this Recommended Order.

FINDING S OF FACT

1. Saddle Creek is a large logistics company that receives,

warehouses, and delivers goods for its customers, which include

large - scale retailers.

2. Mr. Pace worked at Saddle CreekÓs SamÓs Club

Distribution Center for at least 15 years. The center serves

approximately 78 SamÓs Clubs. Mr. Pace worked in various

positions. M ostly he unload ed trucks.

3. In June or July of 2016, Mr. Pace filed two complaints

of discrimination in employment on a ccount of race by Saddle

Creek.

4. On February 7, 2017, Saddle Creek instituted a new time -

keeping and productivity m easurement tool called Kronos.

5. In addition to recording employee time, Kronos tracked

the task that an employee was performing by using function codes .

This required employees to input into Kronos the function code

task they were performing and the time that they started and

ended the task , in addition to the traditional recording of the

workdayÓs start and end time. If an empl oyee started the workday

performing one task and switched to a different task later in the

day, the system required the employee to record the time one task

ended and the other began. Failure to record the task switch

would result in inaccurate productivi ty measurement for the

employee.

6. Along with the Kronos system, Saddle Creek instituted

productivity goals. Saddle Creek assigned each position in the

warehouse a different production goal. Saddle Creek developed

the goa ls based on the work forceÓs his tory of performance and

customer expectations. The goals also took into account Saddle

CreekÓs steps to improve efficiencies in each job function. All

warehouse employees assigned to jobs with production goals were

responsible for meeting 90 per cent of t heir goals, based on their

job function or functions.

7. The distribution center operated at a very high volume.

Saddle Creek required its employees to stay busy all day. That

meant employees had to switch tasks if the task they were working

on slowed o r stalled for a while.

8. Employees working on the warehouse floor had three

tasks. Goods arrived in pallets on trucks. Employees unloaded

those pallets. Then an employee had to identify which pallets

could be simply labeled and moved to another locati on for load ing

on to another truck for delivery to a SamÓs Club and which pallets

had to be broken down and re - distributed to other pallets , which

were then labeled and staged for redistribution to a SamÓs Club .

9. For the tasks of unloading , repacking, an d loading

pallet s, Saddle Creek tracked the volume of goods handled with

the labels affixed to the pallets. The employee who generated

the labels was different from the employees loading , repacking,

and unloading pallet s , but was a member of the same team.

Sometimes labeling back ed up , leaving the employees unloading,

redistributing, and loading idle. These were times that Saddle

Creek expected the employees to switch to another task. To

determine productivity , Saddle Creek divided the volume the

la bels represented by the number of employees on the team logged

in for each task for each sector of the warehouse.

10. Each position had a different production goal.

Pro duction goals for unloaders were lower than the goals of other

positions. This is bec ause the goals account for the

characteristics of each role. For employees unloading , those

characteristics are a slower pace, the need to rewrap or restack

items, and other problems associated with unloading a shipment.

11. When Saddle Creek started us ing Kronos , it provided

employees a one - month acclimation period. During this period ,

Saddle Creek also provided instructions and coaching on how to

operate the Kronos system and to succeed within it. Saddle Creek

recorded and reported employeesÓ product ivity for February 2017.

It did not, however, take any employment actions based upon the

productivity reports.

12. In March 2017, Saddle Creek began holding employees

accountable for meeting production goals. It maintained records

that demonstrated th e performance of all employees working on

Mr. PaceÓs shift in 2017. The records demonstrate that Mr. Pace

failed to meet his production goals for five months in a row :

the February acclimation month and the following four months.

13. In February 2017, five employees on Mr. PaceÓs shift

missed their production goals, including Mr. Pace. None of the

five was disciplined because February was the acclimation period.

14. Other employees in Mr. PaceÓs position met their goals.

In February , for example Donald Willett, who worked as an

unloader with Mr. Pace as part of a three - member team , exceeded

his goals despite working fewer hours.

15. One employee can be more productive than another

employee in fewer hours by changing job functions du ring down

time.

16. In March 2017, seven employees on Mr. PaceÓs shift

missed their production goals, including Mr. Pace.

17. All of those employees, except those in training,

received a document of counseling (DOC), if their productivity

was less than 90 per cent of their goal s .

18. The DOC is the first step of Saddle CreekÓs progressive

discipline policy. The next step in the progression is a written

warning, followed by a final written warning . T ermination is the

next and final step .

19. Mr. Pac e received a DOC on April 5, 2017, for missing

his productivity goal in March 2017. All employees who missed

their productivity goals in March also received a DOC. Mr. Pace

was the only employee on his shift to miss March production

goals.

20. Mr. Pace missed his productivity goals in April 2017.

He was one of three employees who missed their goals that month.

21. Saddle Creek, following its standard policy, gave

Mr. Pace a written warning on May 22, 2019. Saddle Creek also

provided Mr. Pace counse ling on how to meet productivity goals

and cautioned him that further disciplinary sanctions would

follow if he did not improve.

22. Mr. Pace missed his May 2017 productivity goals. On

June 14, 2017, Saddle Creek gave Mr. Pace a final written

warning. This was the standard sanction for a third failure to

meet productivity goals. Saddle Creek cautioned Mr. Pace that he

would be terminated if he did not meet his productivity goals for

June.

23. In June 2017, Mr. Pace and two other employees missed

their goals. This was the fourth month in a row, after the

February acclimation period, in which Mr. Pace failed to meet his

productivity goals.

24. After consulting with the human resources officer,

Carol Arkins, Mr. PaceÓs supervisor decided to terminate

M r. PaceÓs employment. Her decision was consistent with Saddle

CreekÓs progressive discipline policy. Ms. Arkin s did not

consider Mr. PaceÓs past charges of discrimination when making

her decision. She based the decision solely on Mr. PaceÓs

failure to m eet productivity goals four months in a row.

25. There is no evidence tending to prove that Saddle Creek

treated Mr. Pace differently than similarly situated employees.

As of July 2017, no other employee had missed production goals as

many as three times in a row.

26. Mr. Pace bases his belief that Saddle Creek retaliated

against him on the fact that other employees on his team achieved

their productivity goals while he did not. But the evidence does

not show those employees, although on the same team, were

similarly situated. This is because of the fact that employees

checked in and out of different task classifications on Kronos

during the course of the day. The evidence did not establish

that all members of the team were working in the same task

cla ssification as Mr. Pace for comparable periods from March

through June 201 7 .

CONCLUSIONS OF LAW

27. Sections 760.11(7), 120.569, and 120.57, Florida

Statutes (2018) , confer jurisdiction of this matter on the

Division.

28. Section 760.10(7), Florida Statutes (2017), makes

discrimination against an employee in retaliation for an employee

opposing an unlawful employment practice unlawful. Section

760.07, Florida Statutes (2017), creates a cause of action

against an emplo yer for an unlawful employment practice. Saddle

Creek is an employer, and it employed Mr. Pace. Mr. Pace seeks

relief under these provisions of c hapter 760.

29. Mr. Pace bears the burden of proving by a preponderance

of the evidence that Saddle Creek re taliated against him.

§ 120.57(1)(j), Fla. Stat. (2018); see also Fla. DepÓt of Transp.

v. J.W.C. Co. , 396 So. 2d 778 (Fla. 1st DCA 1981).

30. The court in Blizzard v. Appliance Direct, Inc. ,

16 So. 3d 922, 926 (Fla. 5th DCA 2009), described the analys is

required for a retaliation claim. The opinion says:

To establish a prima facie case of

retaliation under section 760.10(7), a

plaintiff must demonstrate: (1) that he or

she engaged in statutorily protected

activity; (2) that he or she suffered

adverse employment action; and (3) that the

adverse employment action was causally

related to the protected activity. See

Harper v. Blockbuster Entm Ó t Corp. , 139

F.3d 1385 (11th Cir.), cert. denied, 525

U.S. 1000, 119 S. Ct. 509, 142 L. Ed. 2d

422 (1998). Once the plaintiff makes a

prima facie showing, the burden shifts and

the defendant must articulate a legitimate,

nondiscriminatory reason for the adverse

employment action. Wells v. Colorado Dep Ó t

of Transp. , 325 F.3d 1205, 1212 (10th Cir.

2003). The plainti ff must then respond by

demonstrating that defendant's asserted

reasons for the adverse action are

pretextual. Id.

31. The record establishes that Mr. Pace engaged in

statutorily protected activity. The record establishes that

Mr. Pace suffered an adverse employment action. The record does

not present persuasive evidence, direct or circumstantial , that

Mr. PaceÓs discharge was causally related to his complaints of

racial discrimination. The persuasive evidence establishes that

Saddle Creek dischar ged Mr. Pace for failure to meet his

productivity goals .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations d ismiss the Petition for Relief of Robert E . Pace in

FCHR Case Number 2018 - 05908.

DONE AND ENTERED this 11th day of July , 2019 , in

Tallahassee, Leon County, Florida.

S

JOHN D. C. NEWTON, II

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of July , 2019 .

COPIES FURNISHED:

Tammy Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020

(eServed)

Robert E. Pace, Sr.

1100 North Davis Avenue

Lakeland, Florida 33805

Helen Price Palladeno, Esquire

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Suite 3600

100 North Tampa Street

Tampa, Florida 33602

(eServed)

Edmund J. McKenna, Esquire

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Suite 3600

100 North Tampa Street

Tampa, Florida 33602

(eServed)

Caren S . Marlowe, Esquire

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Suite 3600

100 North Tampa Street

Tampa, Florida 33602

(eServed)

Stephanie C. Generotti, Esquire

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Suite 3600

100 North Tampa Street

Tampa, Florida 33602

(eServe d)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020

(eServed)

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.