Gray v. Russell Corp.

• Decision Date: 15 October 1996
• Docket Number: No. 95-1962,95-1962
• Citation: 681 So.2d 310
• Parties: 21 Fla. L. Weekly D2253 Larry E. GRAY and Frederick White, Appellants, v. RUSSELL CORPORATION, Appellee.
• Court: Florida District Court of Appeals

Page 310

681 So.2d 310

21 Fla. L. Weekly D2253

Larry E. GRAY and Frederick White, Appellants, v. RUSSELL CORPORATION, Appellee.

No. 95-1962.

District Court of Appeal of Florida First District.

Oct. 15, 1996.

Kent Spriggs of Spriggs and Johnson and Paul H. Amundsen of Amundsen and Moore, Tallahassee, for Appellants.

Chris Mitchell and Michael D. Giles of Constangy, Brooks & Smith, Birmingham, AL, for Appellee.

SMITH, Senior Judge.

Appellants, Larry E. Gray and Frederick White, appeal from a final order of the Commission on Human Relations adopting the hearing officer's recommended order and ruling that appellee Russell Corporation (Russell) did not discriminate against appellants on account of their race when it discharged them from employment. Finding no error, we affirm.

Appellants have framed several issues on appeal so as to present questions of law. However, we find that disposition of the issues on appeal turns primarily upon our review of factual issues determined by the hearing officer below. After careful review, we conclude that the hearing officer's finding that there was no discriminatory intent in the discharge of appellants is supported by competent substantial evidence, and was not based on erroneous applications of the law.

Appellants, Gray and White, both black males, were employed by Russell from March 1988 and August 1987, respectively. At the time of their discharge, both held positions as lift truck operators, the highest paying hourly rate job in the plant except for the lead person position. Neither had prior disciplinary problems with Russell. They were both discharged from their employment in November 1991 after an incident in which the two disrupted a company-approved luncheon on company premises being hosted by personnel of the company's Embroidery Department. Appellants did not work in the Embroidery Department and were not invited to participate in the luncheon. The evidence established, as found by the hearing officer, that appellants entered the room where the luncheon was being set up, and that they took and consumed food prepared for others after being denied permission to do so by one of the employees who was helping to set up the food for the luncheon. Complaints were brought to the attention of managerial personnel, and a report was submitted to Russell's review committee which is composed of five supervisors and department heads, one of whom is black. The review committee concluded that the incident amounted to appellants' having "willfully destroyed the property of others," in violation of company rule, and therefore discharged appellants on that basis. Appellants filed charges of discrimination with the Florida Commission on Human Relations, alleging that they had been denied promotions and had been discharged on account of their race in violation of Florida Statutes, and specifically section 760.10, et seq., Florida's Human Rights Act of 1977.

This may be characterized as a "disparate treatment" case and thus subject to the burden of proof as explained by the Supreme Court in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), and subsequent cases. We have previously articulated at length the burden of proof in discrimination cases under the Florida Act, and no useful purpose would be served by reiteration of those requirements. See Florida Department of Community Affairs v. Bryant, 586 So.2d 1205 (Fla. 1st DCA 1991). Because the Act is patterned after Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., federal case law interpreting Title VII is applicable. Id. at 1209.

We initially observe that there was no direct evidence of a discriminatory motive on the part of Russell in discharging appellants. The hearing officer found, however, that appellants had established a prima facie case of discrimination by evidence regarding similarly-situated white employees who purportedly violated the same or similar rules having to do with damage to or destruction of property of the company or others, but who were not discharged. Although the hearing officer questioned the similarity of the "comparison" evidence, he found, nevertheless, that some of this evidence was sufficiently similar so that an ordinary person might "reasonably infer" discrimination from the facts shown, if those facts were unrebutted. See Goldstein v. Manhattan Industries, Inc., 758 F.2d 1435, 1443 (11th Cir.), cert. den'd, 474 U.S. 1005, 106 S.Ct. 525, 88 L.Ed.2d 457 (l985). The hearing officer then concluded that evidence presented by Russell concerning the facts considered by the review committee, and the reasons for its action in the instant case, provided a legitimate, nondiscriminatory reason for its decision to discharge appellants. Accordingly, the hearing officer found the burden was upon appellants to prove, by a preponderance of the evidence, that Russell's articulated reasons for discharging appellants were pretextual, and that they had failed to meet that burden. ¹

The evidence concerning comparable incidents of discipline or discharge of both white and black employees was of critical importance in the case, and we find that the hearing officer in his order has carefully summarized and evaluated the evidence pertaining to each incident. Numerous federal decisions have dealt with the requirements of "comparability" of evidence in the context of discrimination cases, as outlined by the federal court in Williams v. Publix Warehouse, 9 Fla. L. Weekly F. D14, 1995 WL 224423 (M.D. Fla. April 6, 1995):

Thus, to be deemed "similarly-situated", the individuals with whom the plaintiff seeks to compare his/her treatment must have dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment for them for it. Mazzella v. RCA Global Communications, Inc., 642 F.Supp. 1531 (S.D.N.Y.1986), aff'd., 814 F.2d 653 (2d Cir.1987); Lanear v. Safeway Grocery, 843 F.2d 298 (8th Cir.1988) (plaintiff must prove that he and white employee were similarly situated in all respects and that the other employee's acts were of comparable seriousness to his own); Cox v. Electronic Data Systems Corp., 751 F.Supp. 680 (E.D.Mich.1990)

[Quoting Mitchell v. Toledo Hosp., 964 F.2d 577 (6th Cir.1992).] Thus, a Plaintiff must show "that a person of another race would not also have been discharged under similar circumstances." Rush v. McDonald's Corp., 966 F.2d 1104, 1112 (7th Cir.1992) (quoting McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 281-84 [96 S.Ct. 2574, 2579-81, 49 L.Ed.2d 493] (1976)).

Id. at D16.

In the case before us, the hearing officer found that facts available to the review committee showed that appellants had taken food belonging to employees of the Embroidery Department, and further, that they had "taunted those employees, exhibiting a disregard for their feelings and a lack of remorse or apology for their conduct." This, according to the hearing officer, "was an aggravating factor considered by the review committee in terms of its concern for the morale of their fellow employees, and the maintenance of peace and good relationships in the work place...."

Appellant White argues that a distinction should be made between his conduct and that of appellant Gray, in that White exhibited none of the "taunting, mocking attitude" toward the other employees displayed by Gray. White's actions were apparently less noticeably egregious than the actions of Gray. Nevertheless, he knowingly participated in the incident with Gray, consuming food himself, and offering a piece of chicken to a fellow worker who was also not a member of the Embroidery Department. Both White and Gray failed to show any remorse or attempt to apologize for their actions, and White nodded in assent when Gray, upon being questioned, denied having eaten the food. White later, on two occasions, admitted having eaten the food without permission.

In his order the hearing officer, referring to the firings as a "seemingly harsh remedy," noted that it was specifically the absence of remorse or apology on the part of appellants and their misrepresentation of their actions that caused the review committee, including the black member, to unanimously vote to discharge appellants. The hearing officer found that the committee "was sensitive to a perceived need to take strong disciplinary action in order to preserve employee morale of those victimized by the incident and other employees who knew of it, and to show the committee's sensitivity to the necessity that co-workers respect each other's property and feelings."

It is apparent from our review that none of the comparative evidence involved incidents of willful destruction of the property of other employees, nor, more significantly, did any of these instances deal with disrespectful or intimidating conduct such as that engaged in by appellants. We reject appellants' contention that by requiring them to provide evidence of instances in which white employees were not discharged under similar circumstances, the hearing officer required them to "prove too much." The determination of comparable seriousness is a factual issue within the province of the hearing officer and it is not our function to second-guess his conclusions as to the comparability and seriousness of the conduct involved in each instance. Heifetz v. Department of Business Regulation, Division of Alcoholic Beverages & Tobacco, 475 So.2d 1277 (Fla. 1st DCA 1985) (factual issues susceptible to ordinary methods of proof and not infused with policy considerations are the prerogative of hearing officer, and ultimate findings of fact supported by competent, substantial evidence may not be changed by reviewing agency or...