STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DANA L. MONROE, )

)

Petitioner, )

)

vs. ) Case No. 98-3083

) CENTER FOR DRUG FREE LIVING ) INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, Mary Clark, conducted a formal hearing in the above-styled action on February 4, 1999, by videoconference. The Administrative Law Judge presided from a videoconference center in Tallahassee, Florida; the parties, their counsel, witnesses, and the court reporter participated from the videoconference center in the Hurston Building, Orlando, Florida.

APPEARANCES

For Petitioner: Dana L. Monroe, pro se

5116 Hernandes Drive

Orlando, Florida 32810

For Respondent: Kimberly A. Wells, Esquire

Jackson, Lewis, Schnitzler, & Krupman

390 North Orange Avenue, Suite 1285 Orlando, Florida 32801

STATEMENT OF THE ISSUE

On April 27, 1995, Petitioner filed a charge of

discrimination alleging that Respondent discriminated against him on account of his race when it discharged him from employment.

The issue for disposition in this proceeding is whether that discrimination occurred and, if so, what remedy is appropriate.

PRELIMINARY STATEMENT

The Florida Commission on Human Relations referred the case to the Division of Administrative Hearings (DOAH) for a formal evidentiary hearing after the Commission failed to investigate Petitioner's complaint within 180 days and after Petitioner executed a form indicating his desire to file a petition for relief and to proceed with an administrative hearing. The petition, if filed, was not forwarded to the DOAH.

After several continuances for good cause, the hearing was held as described above.

Petitioner testified in his own behalf and presented the additional testimony of Michael Barrington and Angela Parker. Petitioner's three exhibits were received in evidence, including Exhibit No. 2, which had been taken under advisement at the hearing.

Respondent presented the testimony of Donald J. Feulner,

1. Finn Kavanaugh and Susan Matthews. Respondent's Exhibits Nos. 1-11 were received in evidence.

   The hearing transcript was filed on March 4, 1999; the parties filed proposed recommended orders on February 25 and March 10, 1999.

   FINDINGS OF FACT

   
   

   1. The Center for Drug Free Living Center is a not-for- profit corporation which operates substance abuse and juvenile justice programs in central Florida. It works in four counties with approximately 500 employees. The Center receives state and federal grants and contracts and also receives funds from United Way and various local governments.

   2. Approximately 5 years ago the Center expanded from a substance abuse treatment program into a program that also targets young juvenile offenders. Its largest facility for juvenile offenders is a 100-bed residential facility in Intercession City, Florida. That facility is called the Adolescent Residential Campus (ARC).

   3. Youths at the ARC are involuntarily committed for a variety of offenses, from property crimes to violent crimes against persons. ARC provides educational treatment, skills training, health care, and a broad range of residential services with the goal of returning the youths to productive lives in their communities. The entire ARC staff is trained in crises intervention.

   4. Dana Monroe is an African-American male who was hired by the Center on October 21, 1993, to work as a night monitor at the ARC. On June 15, 1994, retroactive to April 16, 1994, he was promoted to counselor and received a raise from $15,000.00 to

      $18,000.00. The new hire and promotion were both approved by the

      Center president, Donald J. "Jerry" Feulner.

      
      

   5. Bill Ferguson was the ARC program director when Dana Monroe was hired. Mr. Ferguson was a cordial, low-key professional administrator. When Mr. Ferguson left he was replaced with Scurry Miller sometime in late 1994. Mr. Miller's management style was very different from his predecessor's. As described by both superiors and subordinates, Mr. Miller was bold, abrasive, unorthodox, and strict. He began disciplining employees for matters which Mr. Ferguson had evidently ignored. Some employees found him a charismatic leader; others found him disagreeable and offensive.

   6. In December 1994, Dana Monroe received his first verbal warning for inappropriate use of physical force. A written memorandum documenting the meeting between Dana Monroe and Scurry Miller is dated December 15, 1994. A copy was provided to Finn Kavanaugh, the assistant director of ARC. The incident confirmed Mr. Kavanaugh's own observations of Dana Monroe's growing tendencies to yell and use physical intervention with clients or to inappropriately lose his temper.

   7. On March 3, 1995, Mr. Kavanaugh personally counseled Dana Monroe, by telephone, after Mr. Monroe failed to appear for work the preceeding day, March 2. Mr. Monroe's immediate supervisor, Vince Hennessy, an African-American male, had called Mr. Monroe at home when he did not appear for work and was told that Mr. Monroe was ill. The nature of the work and need for

      adequate staffing required that ARC employees give at least 2 hours prior notice for absenteeism due to illness.

   8. Also in the March 3 telephone conversation Finn Kavanaugh informed Mr. Monroe that Vince Hennessy had documented a written warning for Mr. Monroe's loss of professional composure with a client subsequent to the incident that was addressed by Mr. Miller in December. When asked what could be done to help him, Mr. Monroe denied that he had a problem.

   9. On March 31, 1995, Scurry Miller documented another verbal warning to Dana Monroe when two clients escaped while under his supervision. Mr. Monroe does not dispute the escape but claims that he was occupied with other clients at another location and was not responsible.

   10. On April 17, 1995, Finn Kavanaugh issued another written warning to Dana Monroe for two incidents of tardiness: April 2 and April 17. In a meeting that same date, among

       Mr. Kavanaugh, Mr. Miller, and Dana Monroe, Mr. Monroe became belligerent and abusive and refused to calm down. The meeting was terminated.

   11. On April 20, Scurry Miller and Finn Kavanaugh again met with Dana Monroe. Mr. Miller offered Mr. Monroe the opportunity to resign, based on his continued poor performance and lack of response to supervision. When Mr. Monroe refused to resign he was told that Mr. Miller would recommend his termination.

   12. As Center president, Jerry Feulner accepted the

       recommendation and Finn Kavanaugh notified Dana Monroe, by letter, that he was terminated effective April 21, 1995.

   13. There is no credible evidence that Dana Monroe's termination was based on racial discrimination.

   14. At the time of Dana Monroe's employment and continuing to the time of hearing, approximately half of the ARC employees were African-American; several of Mr. Monroe's immediate supervisors were African-Americans whom he conceded also disciplined him on occasion. Mr. Monroe heard Scurry Miller say "you guys" or "you people," but never any specific racial references. Those comments are not themselves evidence of racial animus and could be directed to any group, of any racial composition.

   15. Scurry Miller used profanity with staff and with clients and was counseled for that. White employees, including Mr. Monroe's witness, Ms. Parker, viewed him as disrespectful to all staff, not just the African-Americans or minorities.

   16. In June 1995, the Center hired Mr. Monroe's replacement, another African-American male.

       CONCLUSIONS OF LAW

       
       

   17. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause pursuant to Section 120.57(1), Florida Statutes.

   18. The Florida Civil Rights Act of 1992 provides that it is an unlawful employment practice for an employer "[t]o

       discharge or to fail to hire any individual . . . because of such individual's race, color, religion, national origin, age, handicap, or marital status." Section 760.10(a), Florida Statutes. The center is an "employer" within the meaning of the Florida Civil Rights Act of 1992.

   19. Dana Monroe, as Petitioner, has the burden of proving a prima facie case of unlawful discrimination. If a prima facie case is proven, the burden shifts to the Respondent, the Center, to articulate legitimate, non-discriminatory reasons for the alleged unlawful conduct. The burden then shifts back to the Petitioner to prove that the articulated reasons are a mere pretext for intentional discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981).

   20. Throughout the burden-shifting analysis, the burden of proving intentional discrimination remains at all times with the Petitioner. What this means is that the employer is never required to prove the veracity of its reasons for the termination. Those reasons may be patently false, but if the Petitioner does not affirmatively prove that the reasons are racially motivated, the employer prevails. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

   21. The Florida Commission on Human Relations and the Florida courts interpreting the provisions of the Florida Civil Rights Act of 1992 have determined that federal discrimination

       law should be used as a guide when construing the provisions of the Act. See, e.g., Brand v. Florida Power Corp., 633 So. 2d 504, 509 (Fla. 1st DCA 1994); Florida Dept. of Community Affairs v. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991).

   22. In order to establish a prima facie case of race discrimination under the Florida Civil Rights Act, Mr. Monroe must prove that: (i) he is a member of a protected group; (ii) he was qualified for the position that he held; (iii) he was discharged; and (iv) his position was filled by someone outside the protected group. He proved all but the fourth element and presented no evidence that filling the vacancy with a minority was itself pretextual. Edwards v. Wallace Community College, 49 F.3d 1517, 1520-1521 (11th Cir. 1995).

       
       

   23. Assuming that Mr. Monroe had established a prima facie case, the Center nonetheless met its burden of proffering a legitimate, non-discriminatory reason for his termination. There is no credible evidence that the reasons were merely pretext for intentional racial discrimination.

   24. Mr. Monroe's circumstances are strikingly similar to those of the terminated halfway house correctional officer in Hicks, supra, who also was the subject of repeated, increasingly severe discipline after a change in supervision. Personal animosity in that case did not suggest racial motivation. See Hicks v. St. Mary's Honor Center, 90 F.3rd 285 (8th Cir. 1996),

       on appeal after remand in Hicks, supra.

       
       

   25. Mr. Monroe and his witnesses were plainly distressed at the management style and practices of Scurry Miller. Whether that style was appropriate or effective is not the issue in this proceeding. Based on the evidence presented, Mr. Miller and the Center did not engage in racial discrimination in violation of Section 760.10, Florida Statutes.

RECOMMENDATION

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

RECOMMENDED that Dana L. Monroe's charge of discrimination be dismissed.

DONE AND ENTERED this 2nd day of April, 1999, in Tallahassee, Leon County, Florida.

MARY CLARK

Administrative 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

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1999.

COPIES FURNISHED:

Dana L. Monroe

5116 Hernandes Drive

Orlando, Florida 32810

Kimberly A. Wells, Esquire

Jackson, Lewis, Schnitzler, & Krupman

390 North Orange Avenue, Suite 1285 Orlando, Florida 32801

Sharon Moultry, Clerk

Florida Commission on Human Relations Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 34303-4149

Dana Baird, General Counsel

Florida Commission on Human Relations Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 34303-4149

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.

Docket for Case No: 98-003083

Orders for Case No: 98-003083