STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONALD H. LAIRSEY,

Petitioner,

vs.

LEON COUNTY SHERIFF'S OFFICE,

Respondent.

)

)

)

)

) Case No. 02-1441

)

)

)

)

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on June 27, 2002, in Tallahassee, Florida, before the Division of Administrative Hearings by its designated Administrative Law Judge, Diane Cleavinger.

APPEARANCES

For Petitioner: Donald Lairsey, pro se

8031 Smith Creek Road Tallahassee, Florida 32310

For Respondent: Linda G. Bond, Esquire

Powers, Quaschnick, Tischler & Evans

1669 Mahan Drive

Tallahassee, Florida 32308 STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding are whether Respondent was the employer of Petitioner; and, whether Petitioner was terminated from his employment with Respondent because of his race.

PRELIMINARY STATEMENT

On September 26, 2000, Petitioner, Donald Lairsey, filed a Charge of Discrimination with the Florida Commission on Human Relations (FCHR). The Charge of Discrimination alleged that the Leon County Sheriff's Office had terminated Petitioner based on his race.

On March 20, 2002, FCHR entered a Determination of No Cause on Petitioner's Charge of Discrimination. Petitioner was advised of his right to contest FCHR's determination, by filing a Petition for Relief. On April 3, 2002, Petitioner filed a Petition for Relief, alleging that he had been terminated from his employment based on his race. The Petition listed the Leon County Sheriff's Office as the employer. Petitioner's petition was forwarded to the Division of Administrative Hearings.

At the hearing, Petitioner testified in his own behalf and presented the testimony of three other witnesses. No exhibits were offered into evidence. Respondent did not call any witnesses or introduce any exhibits into evidence.

After the hearing, Respondent filed a Proposed Recommended Order on July 8, 2002. Petitioner filed a Proposed Recommended Order on July 11, 2002.

FINDINGS OF FACT

1. Petitioner is a white male.

   
   

2. At all times relevant to this matter, Petitioner was employed with the City of Tallahassee (City). Petitioner continues to be employed by the City.

3. As part of its municipal function, the City of Tallahassee has the responsibility of maintaining drainage ditches located within the City limits. The Leon County Sheriff’s Office (Sheriff's Office) provides inmate work crews to the City for assistance in carrying out this responsibility. The Sheriff's Office also provides the inmates with any food or other items they require. The inmate work crews are supervised by City employees who have completed the Sheriff’s Office certification program for supervising inmates. The certification program is required because of security concerns involved with utilizing the labor of incarcerated individuals outside of the controlled environment of a jail. Because of security concerns, employees are instructed not to provide contraband to inmates. Contraband is defined as any item given to an inmate which the Sheriff's Office has not authorized to be given to the inmate. If any items are provided to inmates, all inmates must receive the item.

4. Petitioner completed the certification program and was employed by the City to supervise inmate work crews. He was

   told during the training session that inmate supervisors could not provide contraband to inmates, but if any items were provided to inmates, all inmates must receive the item.

5. On or about August 16, 2000, Petitioner gave a bucket of Popeye's chicken to an inmate under his supervision. The bucket of chicken had been given to Petitioner by a Popeye’s employee to give to the inmates because the Popeye's employee knew one of the inmates. Each inmate received a piece of chicken. However, even though Petitioner checked the bucket for weapons, Petitioner did not obtain or attempt to obtain authorization from the Sheriff's Office to give the chicken to the inmates. When Sergeant Lee, a Sheriff’s Office sergeant, visited the work site and saw the chicken bucket and that chicken had been eaten, he asked Petitioner if he had given the chicken to the inmates. Believing that he had done something wrong, Petitioner lied to Sergeant Lee and said that he had not given chicken to the inmates. Sergeant Lee instructed Petitioner to return the inmates to the Leon County Jail.

6. While at the jail, Petitioner admitted that he had given the chicken to the inmates.

7. Petitioner was advised by the Sheriff’s Office that he could no longer supervise inmates. The Sheriff's Office also advised the City that Petitioner was no longer certified to

   supervise inmates. The City then transferred Petitioner to another position but did not reduce his pay or benefits.

8. On a date after Petitioner’s removal from supervising inmates, the City held a luncheon and invited inmates. There was no evidence presented that the invitation to lunch was or was not authorized by the Sheriff’s Office.

9. Ted Hubbard, a white City employee, has provided watermelons to inmates and other unnamed black inmate supervisors were present when Leon County employees gave Gatorade and other items to inmates. Neither Hubbard nor any other person has been removed from supervising inmates. However, other than very vague references to these "other" supervisors, Petitioner offered no evidence of any similarities between his employment and these other employees or that the items allegedly given to the inmates were not authorized by the Sheriff's Office or that the Sheriff's Office even knew alleged contraband had been given to any inmates. Certainly, no other person lied about providing items to inmates.

10. At no time did the Sheriff's Office make any employment decisions on behalf of the City. Likewise, at no time did the Sheriff's Office employ Petitioner. In fact, the City made all decisions with regard to Petitioner's employment and was the actual employer of Petitioner. Therefore, the Petition for Relief should be dismissed.

    CONCLUSIONS OF LAW

    
    

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

12. Under the provisions of Section 760.10, Florida Statutes, it is an unlawful employment practice for an employer:

    (1)(a) To discharge 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, national origin, age, handicap, or marital status.

    
    

13. The Florida Civil Rights Act of 1992, Section 760.11, Florida Statutes, provides that a charge of discrimination must be filed within 365 days of the alleged violation, "naming the employer, employment agency, labor organization, or joint

    labor-management committee responsible for the violation." (emphasis supplied)

14. FCHR and the Florida courts have determined that federal discrimination law should be used as guidance when construing provisions of Section 760.10, Florida Statutes. See Brand v. Florida Power Corp., 633 So. 2d 504, 509 (Fla. 1st DCA 1994); Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991); Cooper v. Lakeland Regional

    Medical Center, 16 FALR 567 (FCHR 1993).

15. The Supreme Court of the United States established in McDonnell-Douglas Corporation v. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), the analysis to be used in cases alleging discrimination under Title VII such as the one at bar. This analysis was reiterated and refined in St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

16. Pursuant to this analysis, Petitioner has the burden of establishing by a preponderance of the evidence a prima facie case of unlawful discrimination. If a prima facie case is established, Respondent must articulate some legitimate,

    non-discriminatory reason for its employment action. If the employer articulates such a reason, the burden of proof then shifts back to Petitioner to demonstrate that the offered reason is merely a pretext for discrimination. As the Supreme Court stated in Hicks, before finding discrimination, "[t]he fact finder must believe the Plaintiff's explanation of intentional discrimination." 509 U.S. at 519.

17. In Hicks, the Court stressed that even if the fact finder does not believe the proffered reason given by the employer, the burden at all times remains with Petitioner to demonstrate intentional discrimination. Id.

18. In order to establish a prima facie case, Petitioner must establish that:

    1. He is a member of a protected group;

    2. He is qualified for the position;

    3. He was subject to an adverse employment decision;

    4. He was treated less favorably than similarly-situated persons outside the protected class; and

       
       

       Canino v. EEOC, 707 F.2d 468, 32 FEP Cases 139 (11th Cir. 1983);

       
       

       Smith v. Georgia, 684 F.2d 729, 29 FEP Cases 1134 (11th Cir. 1982); Lee v. Russell County Board of Education, 684 F.2d 769,

       29 FEP Cases 1508 (11th Cir. 1982), appeal after remand, 744 F.2d 768, 36 FEP Cases 22 (11th Cir. 1984).

19. If Petitioner fails to establish a prima facie case of race discrimination, judgment must be entered in favor of Respondent. Bell v. Desoto Memorial Hospital, Inc., 842 F.Supp. 494 (M.D. Fla. 1994).

20. As indicated earlier, if a prima facie case is established, a presumption of discrimination arises and the burden shifts to Respondent to advance a legitimate,

    non-discriminatory reason for the action taken against Petitioner. However, Respondent does not have the ultimate burden of persuasion but merely an intermediate burden of production. Once this non-discriminatory reason is offered by Respondent, the burden shifts back to Petitioner. Petitioner must then demonstrate that the offered reason was merely a pretext for discrimination.

21. In the instant case, Petitioner alleges that he was terminated because of racial discrimination. Thus, Petitioner must prove by a preponderance of the evidence that Respondent acted with discriminatory intent. Case law recognizes two ways in which Petitioner can establish intentional discrimination. First, discriminatory intent can be established through the presentation of direct evidence. See Early v. Champion International Corporation, 907 F.2d 1081 (11th Cir. 1990). Second, in the absence of direct evidence of discriminatory intent, intentional discrimination can be proven through the introduction of circumstantial evidence.

22. In this case, Petitioner's belongs to a protected class. However, Petitioner was not terminated from his employment with the City. He was transferred to another position which did not involve inmate supervision. Petitioner's employment benefits remained the same. Adverse employment actions do not encompass each and every aspect of one’s employment. The courts have generally determined that ultimate decisions are limited to hiring, granting leave, discharging, promoting, and compensating employees. See Landraf v. USI Film Products, 968 F.2d 427, 431 (5th Cir. 1992), wherein the court held that hostility from fellow employees and resulting anxiety, without more, cannot constitute an ultimate employment decision or adverse employment action. Importantly, job reassignments

    without any tangible harm are outside of the protection of Title VII. Davis v. Town of Lake Park, Florida, 245 F.3d 1232, 1245 (11th Cir. 2001). In this case, there was no adverse employment action taken against Petitioner. Therefore, Petitioner did not establish a prima facie case against Respondent and the Petition for Relief should be dismissed.

23. Moreover, the evidence did not show that Petitioner was terminated because of his race. Petitioner did not establish that similarly situated non-minority employees were treated more favorably.

24. The burden is on Petitioner and not on Respondent to introduce admissible evidence that his conduct was similar in nature to other employees outside his protected classification and that the other employees were treated more favorably. Jones v. Gerwens, 874 F.2d 1534, 1541 (11th Cir. 1989). In order to establish that employees are similarly situated, Petitioner must show he and comparable employees are similarly situated in all respects, including dealing with the same

    supervisor, having been subject to the same standards, and that Petitioner engaged in approximately the same conduct as the other employees. See Gray v. Russell Corporation, 681 So. 2d 310, 312, 313 (Fla. 1st DCA 1996); Jones 137 F.3d at 1311-13.

    The most important factors in the disciplinary context are the nature of the offenses committed and the nature of the

    punishments imposed. Id. Accordingly, the quantity and quality of the comparator’s misconduct must be nearly identical to prevent courts from second-guessing employers’ reasonable decisions and confusing apples with oranges. (Emphasis added) Dartmouth Review v. Dartmouth College, 889 F.2d 13, 19 (1st Cir. 1989) ("Exact correlation is neither likely nor necessary, but the cases must be fair congeners. In other words, apples should be compared to apples.").

25. Petitioner alleges that other employees were similarly situated and not terminated for giving unauthorized items to inmates. However, Petitioner's vague references to other black supervisor's does not show that these employees were similarly situated or that these employees, if they gave the inmates anything, did not have authorization to do so. Indeed the only employee referenced by name by the Petitioner was a white supervisor in the same protected class as Petitioner. Therefore, Petitioner has not established a prima facie case of race discrimination.

26. Moreover, even if Petitioner provided sufficient proof to establish a prima facie case of race discrimination, Respondent articulated a credible, non-discriminatory basis for Petitioner's decertification.

27. Finally, in this case, the evidence was clear that the Sheriff's Office did not employ Petitioner. The City was the

employer responsible for any employment decision regarding Petitioner. Therefore, since the Respondent is not the employer responsible for Petitioner's decertification, the Petition for Relief should be dismissed.

RECOMMENDATION

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

RECOMMENDED:

That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief.

DONE AND ENTERED this 16th day of July, 2002, in Tallahassee, Leon County, Florida.

DIANE CLEAVINGER

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 16th day of July, 2002.

COPIES FURNISHED:

Linda G. Bond, Esquire

Powers, Quaschnick, Tischler & Evans Post Office Box 12186

Tallahassee, Florida 32317-2186

Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Donald H. Lairsey 8031 Smith Creek Road

Tallahassee, Florida 32310

Cecil Howard, 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.

Docket for Case No: 02-001441

Orders for Case No: 02-001441