89-000712 Robert Baucham vs. Department Of Professional Regulation Status: Closed Recommended Order on Friday, November 3, 1989.

Summary: Claim of disparate treatment on basis of race (black) and sex (male) would not stand in face of empirical data supporting nondiscriminatory termination

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT BAUCHAM , )

)

Petitioner , )

)

v. ) CASE NO. 89-0712

)

FLORIDA DEPARTMENT OF )

PROFESSIONAL REGULATION , )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing in Tallahassee,

Florida on September 5, 1989 before Ella Jane P. Davis, a duly assigned Hearing

Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Robert Baucham, pro se

1021 Idlewild Drive P-161

Tallahassee, FL 32301

For Respondents: D. Harper Field

Deputy General Counsel

Department of Professional Regulation

Suite 60

1940 North Monroe Street

Tallahassee, FL 32399-0792

STATEMENT OF THE ISSUES

Did Respondent, State of Florida, Department of Professional Regulation,

commit an unlawful employment practice by discriminating against Petitioner on

the basis of race?

PRELIMINARY STATEMENT

Petitioner presented the oral testimony of Cindy Dexter, Louise Bull, Diane

Orcutt, and Melinda Wagoner, and testified on his own behalf. He had admitted

in evidence P-1 page 1, P-2, P-3 and P-4. P-1 page 2 was not admitted in

evidence. Other exhibits tendered by Petitioner were withdrawn before being

marked for identification. Respondent presented the oral testimony of Terri

Jones and Evelyn McNeely and had R-1 (a composite) admitted in evidence.

The Human Relations Commission tape-recorded the formal hearing. The

parties agreed to 15 days in which to submit post- hearing proposals. All

timely-filed proposed findings of fact have been ruled upon pursuant to Section

120.59(2), F.S. in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner is a 35-year-old Black male.

2. Prior to December 1986, Petitioner was employed by Respondent in an OPS

position in "Central Files". His work performance in Central Files was both

superior and exemplary, and he was offered a State Career Service position as a

Senior Clerk within Respondent's "Complaint Section". Upon accepting the Career

Service position, Petitioner entered into a mandatory six months' probationary

period.

3. In the Senior Clerk position, Petitioner's primary duties were to

answer the phone a specific 4-hour daily shift; to assist or act as backup for

phone answering during Senior Clerk Terri Jones' (Black female) 4-hour daily

phone shift; to prepare and distribute Class II complaint cases to Respondent's

"Legal Section"; and to distribute mail and other materials as assigned by his

immediate supervisor, Louise Bull (white female).

4. On January 5, 1987, Petitioner took 4 hours unauthorized leave without

pay for which he received a written reprimand on January 6, 1987. He had

previously been orally reprimanded for the same practice.

5. It was established by competent substantial evidence that Petitioner's

immediate supervisor, Louise Bull, had had a number of absences without leave,

some of which occurred before Petitioner's termination and some of which

occurred after his termination, and that she also received at least one written

reprimand for these absences. For some of her absences, Ms. Bull was required

to reimburse money to the State, however it was not clear whether the

reimbursement was because she was absent when she falsely claimed to be present

or was standard reimbursement procedure when the leave actually taken is not

covered by accrued leave time. Either way, Ms. Bull was not in a probationary

status at any material time and, clearly, as Petitioner's supervisor, hers was

not a substantially similar position to that of Petitioner.

6. Petitioner and Cindy Dexter testified that many permanent employees in

addition to Ms. Bull were playing fast and loose with tardiness and absenteeism,

but their evidence is very indefinite and the race and gender of the employees

accused was not established. Ms. Dexter's testimony was vague and not credible

on this point. Their testimony on this subject was not confirmed by other

credible witnesses nor was it ever established that any of the permanent

employees accused by Petitioner held positions substantially similar to his.

7. From almost the beginning of his probationary period, Petitioner had

difficulty adjusting to his new position. He evidenced difficulty accepting

supervision from Ms. Bull. This disrupted standard office practice. Over the

probationary term, Ms. Bull orally counselled Petitioner approximately seven

times concerning his lack of acceptance of her supervision as well as excessive

tardiness and excessive personal phone usage. Diane Orcutt, the regular

Complaint Office Supervisor and Ms. Bull's superior, described Petitioner as

avoiding Louise Bull and coming directly to her about problems he perceived in

the office operation. Petitioner and Terri Jones, his female job counterpart

who is also Black, had an early but undefined job- related dispute, after which

he sent her flowers to "make-up".

8. On one occasion, after a loud and disruptive argument arose between

Petitioner and Ms. Bull in the general office area, Evelyn McNeely, who was

acting supervisor to them both during Ms. Orcutt's vacation, required Ms. Bull

to prepare a memorandum clarifying Petitioner's job duties because, in Ms.

McNeely's view, the Petitioner did not seem to understand his duties. This was

done on June 17, 1987. This memorandum, headed "Performance Evaluation" from

Ms. Bull to Petitioner also warned Petitioner that Ms. Bull would recommend

extension of his probationary period because he was falling short on acceptable

performance in several areas.

9. Louise Bull prepared, delivered, and discussed with Petitioner her

performance evaluation, indicating, based upon her personal observations, his

failure to satisfactorily perform in the following areas: repeatedly tardy over

the last several weeks; failure to properly handle routine telephone duties;

failure to comply with their section's procedures for routing of case files; and

continued failure to accept supervision under their section's chain of command.

10. Ms. Bull admitted that she suffered emotional problems while

Petitioner worked for her and apparently thereafter. She had crying jags and

consulted a psychologist. She also received a prescription from some source for

the tranquilizer valium. Ms. Bull denied that she and the psychologist ever

identified a reason for her emotional state. Melinda Wagoner testified that Ms.

Bull related to her that her emotional problems stemmed from living in a Black

neighborhood and fighting with Black children when she was a child. The

foregoing hearsay is admissible as an admission of a party (DPR) through its

supervising agent (Louise Bull), but even if fully credible, this evidence would

be insufficient to establish a nexus between Bull's behavior and the reason for

Petitioner's eventual termination, in light of the record as a whole.

11. Terri Jones, the permanent employee most substantially similar to

Petitioner, was also a Senior Clerk. She is also Black. Her job duties were

identical to those of Petitioner, except that they had primary responsibility

for phone calls during different parts of each day. Ms. Jones had no

supervisory problems of her own with Louise Bull. Ms. Jones asserted that

Petitioner had excellent telephone manners but confirmed that Petitioner's

regularity in answering the phone either on his shift or as her backup was often

insufficient.

12. The Complaint Section's phone was often placed on "hold" with no one

waiting on the other end. Although anyone in the office could place a call on

"hold" and any caller could hang up before an employee returned to the phone,

the inference from all witnesses' testimony as a whole was that this "hold"

procedure was being done excessively by Petitioner.

13. Diane Orcutt, regular Complaint Office Supervisor, reviewed

Petitioner's phone logs prior to evaluating him at the six months' point. The

representative phone logs of the two substantially similar employees, Petitioner

and Terri Jones, show that Petitioner logged only 34 calls in the same period

that Ms. Jones logged 359. This vast discrepancy can be interpreted in a number

of ways: either Petitioner was not answering the phone as directed, or he was

not logging all calls as directed, or he was not maintaining the logs as

directed. By any interpretation of this empirical data, Petitioner was not

fulfilling a prime requirement of his job.

14. At the time of his six months' evaluation, on June 22, 1987, Diane

Orcutt made a joint decision with Louise Bull to extend Petitioner's six months

probationary period by four months. Ms. Orcutt did this for a number of

reasons: his early absences without leave, oral complaints from lower echelon

employees that Petitioner would frequently neglect his telephone duties in one

way or another, and the disruptive nature of his failure to accept Ms. Bull's

supervision.

15. In requiring the additional probation, Ms. Orcutt gave greater weight

to the administrative/managerial friction and less weight to Petitioner's

reprimanded early absences; however, with regard to the complaints of other

employees, she testified that she felt sure Petitioner could do the work because

of his past excellent performance on OPS and because of her personal observation

but that he needed more time to actually do the job instead of engaging in

uncooperative disputes with Ms. Bull. Additionally, Ms. Orcutt was giving

Petitioner the benefit of any doubt by taking additional time to sort out

whether the disruption problem arose from Ms. Bull or from Petitioner, because

at that point, Ms. Bull had no problems supervising other Black or white

employees; no oral complaints had been made by other employees against Ms. Bull;

and oral complaints against Petitioner confirming Ms. Bull's unrecorded

observations of Petitioner had been received personally by Ms. Orcutt.

16. When presented with Orcutt's Mid-Cycle Appraisal and the 4 months'

additional probation plan on June 22, 1987, Petitioner was hostile, refused to

sign the appraisal, and another disruptive scene arose among Petitioner, Ms.

Bull and Ms. Orcutt. Petitioner spent all of the workday of June 23, 1987 in

"Personnel" complaining that his evaluation and the 4 months' additional

probation was unjust. On two of the remaining successive days of that work

week, Petitioner accomplished some work. On one of the remaining successive

days in that week, he took his "Personal Leave Day". A weekend intervened, and

on Monday, June 28, 1987, Diane Orcutt reassessed the situation, determined that

Petitioner was not intending to cooperate, and terminated him, as had always

been her option during his probationary period.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has jurisdiction over the

parties to and the subject matter of this proceeding. Section 120.57(1),

Florida Statutes.

18. Under the provisions of Section 760.10(1)(a), it is an unlawful

employment practice for an employer:

To discharge or to fail or refuse to hire any

individual, or otherwise to discriminate

against any individual with respect to

compensation, terms, conditions, or privileges

of employment, because of such individual's

race, color, religion, sex, natural origin,

age, handicap, or marital status.

Subsection 8(b) of the same statute provides, however, that:

This subsection shall not be construed to make

unlawful the rejection or termination of

employment when the individual applicant or

employee has failed to meet bona fide

requirements or the job or position sought or

held ....

19. When an individual alleges he is subjected to disparate treatment in

employment because of his race or national origin, he has the initial burden of

establishing, prima facie, a case of discrimination by a preponderance of the

evidence. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Once a

complainant has done so, the burden of going forward then shifts to the employer

to demonstrate a legitimate, nondiscriminatory reason for the action complained

of. Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981).

Where a legitimate, nondiscriminatory reason for the employer Respondent's

actions is shown, the claimant then must establish and prove that the proffered

reason was in fact "pretextual". Texas Department, supra; Simmons v. Camden

Board of Education, 757 F.2d 1187, 1189 (11th Cir. 1985), reh'q en banc den.,

767 F.2d 938 (11th Cir. 1985), cert. den., 106 S.Ct. 385 (1985). See also,

Suson v. Zenith Radio Corp., 763 F.2d 304 (7th Cir. 1985).

20. Petitioner alleged a conspiracy to terminate him because he is both a

Black and a male (race and sex). Although he may have demonstrated that Louise

Bull held some prejudice or fear of him either as a Black or personally, he did

not prove that due to unpleasant experiences with Black children of both sexes,

she was prejudiced against Black males specifically. Moreover, he did not

establish the necessary nexus that Ms. Bull's prejudice, unenlightened and

unfounded as such prejudices always are, resulted in a discriminatory

termination of Petitioner's employment. Moreover, the fact that Ms. Bull had no

problems with Black female employees strongly militates against Petitioner's

allegation of racial prejudice. Although Diane Orcutt consulted with Louise

Bull, she also had independent knowledge and empirical data demonstrating

Petitioner's failure to meet his job requirements before she, not Louise Bull,

terminated the Petitioner. One may argue that Ms. Orcutt should have stuck to

her original intention to give Petitioner four more months to successfully

fulfill his probation requirements, but it has not been demonstrated that she

was under any requirement to do so.

21. Petitioner has not met the first level of proof: that he was fired or

received bad evaluations solely because of his race or gender or both.

Respondent has established that valid non-pretextual, job-related reasons

existed for his termination. This cause should be dismissed.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is

recommended that the Florida Human Relations Commission dismissing the complaint

and petition for relief filed by Robert Baucham.

DONE and ENTERED this 3rd day of November, 1989, at Tallahassee, Florida.

___________________________________

ELLA JANE P. DAVIS

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of November, 1989.

APPENDIX TO RECOMMENDED ORDER

IN CASE NO. 89-0712

The following constitute specific rulings, pursuant to Section 120.59(2),

Florida Statutes, upon the parties' respective proposed findings of fact (PFOF):

Petitioner's Proposed Findings of Fact

None filed

Respondent's Proposed Findings of Fact

Respondent's proposals have been accepted in substance and modified to conform

to the record. Where they have not been accepted, they are rejected as

misleading as stated or not supported by the record as stated.

COPIES FURNISHED:

Robert Baucham Hearings

1021 Idlewild Drive, P-161

Tallahassee, FL 32301

E. Harper Field

Deputy General Counsel

Department of Professional Regulation

Suite 60

1940 North Monroe Street

Tallahassee, FL 32399-0792

Dana Baird, General Counsel

Florida Commission on Human

Relations

Building F, Suite 240

325 John Knox Road

Tallahassee, FL 32399-1570

Kenneth D. Easley, General Counsel

Department of Professional Regulation

Suite 60

1940 North Monroe Street

Tallahassee, FL 32399-0792

Donald A. Griffin, Executive Director

Florida Commission on Human

Relations

Building F, Suite 240

325 John Knox Road

Tallahassee, FL 32399-1570