Michael Ruff, duly-designated Administrative Law Judge of the Division of Administrative Hearings. The hearing was conducted in Deland, Florida, on April 21, 2006. The appearances were as follows:
For Petitioner: Julian J. Lawrence, pro se
For Respondent: Taylor B. Smith, Esquire
The issues to be resolved in this proceeding concern whether the Petitioner has been the victim of discrimination based upon his race and upon retaliation regarding his termination (lay-off) from employment with the Respondent and with regard to his allegation that he was denied overtime by the
Respondent.
This cause arose upon the filing of a charge of discrimination and Petition for Relief by the Petitioner with the Florida Commission on Human Relations (Commission). It is alleged that a discriminatory employment action occurred based upon race and retaliation. The Petitioner charges that while employed at the Respondent's job sites he was subjected to a racial epithet by a white employee of a subcontractor of the Respondent. He alleges that some few days later his foreman directed other employees of the Respondent to come in Saturday for overtime work, but that the Petitioner was not allowed such overtime. The Petitioner also alleges that on or about May 6, 2005, he was laid-off from work and alleges that he was discriminated against because of his race and in retaliation for opposing the racial comments made by the employee of the subcontractor of the Respondent.
Upon the filing of the Petition for Relief with the Commission, the Petition was referred to the Division of Administrative Hearings and the undersigned for conduct of a formal proceeding.
The cause came on for hearing as noticed. At the hearing the Petitioner presented his own testimony and one exhibit which was admitted. The Respondent presented the testimony of four witnesses and presented two exhibits. The Respondent contends that the Petitioner has failed to state a prima facie case of either racial discrimination or retaliation but that, in any event, there are legitimate reasons for its actions with regard to the Petitioner and that there has been no showing of pretext.
Upon conclusion of the proceeding a transcript thereof was obtained and the parties availed themselves of the right to submit Proposed Recommended Orders. The Proposed Recommended Order have been considered in the rendition of this Recommended Order.
The Petitioner was a laborer and carpenter's helper for the Respondent, a construction company, at times pertinent to this case. The two construction projects involved in this proceeding are known as the Oceans Grande Project, a 20-story high rise condominium in Daytona Beach Shores and the Salida Del Sol project in Daytona Beach Shores. The first was commenced in
construction in January 2004, and the Salida project in December 2004. They are still ongoing.
Sometime in 2004 the Petitioner applied at the Respondent's Oceans Grande worksite asking for a wage rate of
$14.00 per hour. He filled out an application and left and had no more contact with the Respondent employer for two or three months. He returned after that period of time and spoke with Grady Johnson, the project superintendent for the Respondent.
He ultimately took a job at $12.00 per hour with the Respondent as a carpenter's helper/laborer. He was thus employed initially at the Oceans Grande project.
The Petitioner was employed at that location from
June 21, 2004 until early March 2005, when he was transferred to the Salida Del Sol project. Prior to that transfer, in November 2004, at the Oceans Grande site the Petitioner suffered an on- the-job injury. He was provided medical care by the Respondent, and had been placed on light duty by his physician.
In early March 2005, the Oceans Grande project no longer had any light duty work available. It was the understanding of the superintendent, Grady Johnson, that at all times after November 15, 2004, the Petitioner had been on light duty status. He was aware of three specific letters that the company received from the physician. The latest one, advising that the Petitioner must remain on light duty, was received in
March according to Mr. Johnson; however, rather than lay-off the Petitioner, the Respondent transferred the Petitioner to the Salida Del Sol project. That project was just getting underway at that time and light duty work was available. Two other employees were also transferred to that project.
Thus, the Petitioner's employment at Salida Del Sol consisted of light duty work. Superintendent Getz of that project re-affirmed that the transfer to his project was because of a lack of a need for one such as the Petitioner on light duty at the Oceans Grande project, as well as the fact that his project at this time had light duty work. The transfer to the Salida Del Sol project occurred on March 7, 2005.
At the time of the Petitioner's transfer to the Salida job site there were only two Yates employees, including the Petitioner, who were employed there, aside from supervisory personnel. On or about April 12, 2005, an employee of a subcontractor referred to the Petitioner with a racial slur, and made other unkind, argumentative comments toward him. The Petitioner made no mention of it initially, but on the very next day was working in that area and realized that one of the female employees was quite angry because of her awareness of the racially derogatory comment that the subcontractor's employee had made toward the Petitioner. This co-employee made a
complaint about the matter to Rick Getz, the project superintendent at the Salida job.
Mr. Getz immediately investigated the matter and confronted the employee of the subcontractor ("Dominick") and told him in no uncertain terms that such conduct was not to be tolerated on that job, regardless of whom he worked for. Subsequently Mr. Getz, along with the assistant project superintendent Rick Bilodeau, met with the subcontractor's employee, Dominick, as well as his employer and reiterated to both of them that this type of conduct would not be condoned and there would be no further incidents like this. There were no more complaints thereafter by the Petitioner or any other employee of the Respondent.
In a conversation shortly after this meeting,
Mr. Bilodeau informed the Petitioner that the matter had been resolved, at which point the Petitioner made a statement to the effect that he wanted to know the name and address of Dominick's employer because "my people like people with big mouths and lots of money." In any event, the Respondent's action remedied the situation and stopped any further racially derogatory incidents.
The Petitioner has also complained of being denied overtime. This stems from Friday, April 29, 2005, when the Petitioner learned that the other two employees on his job site were going to work overtime the next day, Saturday. He claims
he knew nothing about it and was not told by his employer and concluded therefore that he was denied overtime. The Respondent, however, offered preponderant evidence that there was overtime available on Saturday April 30, 2005, and that no effort had been made to exclude the Petitioner. Rather, overtime is voluntary and because of the small number of employees superintendent Getz had announced to all employees near the end of the workday on Friday that work was available for anyone who wanted to work on Saturday. It was Mr. Getz's impression that this had been made known to the Petitioner, but if the Petitioner had not heard the announcement at a gathering at the end of the day, it was not through any intentional effort by the Respondent to exclude him from an overtime opportunity.
This was confirmed by Assistant Superintendent Billodeau in his testimony to the effect that it was customary on the job site on Friday to announce to everyone congregated in the afternoon whether they were going to work on Saturday or not. It was Billodeau's impression also that the Petitioner was present on that occasion. So all employees were told as a group that there was work to be done on Saturday. It is also true that numerous occasions had arisen on this and the Oceans Grande project in which the Petitioner was asked to work overtime but declined for various reasons, as the Petitioner himself has conceded.
Finally, the Petitioner complains concerning his lay- off from the Oceans Grande project on May 6, 2005. In fact, efforts were made to avoid laying the Petitioner off, and to find him available work at the Salida project. Additional efforts were also made to contact the Petitioner for re-call purposes even after he was laid-off from the Oceans Grande project. This belies any intention on the part of the Respondent to retaliate against the Petitioner for complaining about the racial comment incident by denying him overtime or laying him off.
On May 2, 2005, the Salida Del Sol project had reached a stage in which there was very little work to do. The project was waiting for a work permit and for the installation of a tower crane. Therefore there was no work for a laborer, the Petitioner, or for the two carpenters, Felix Hernandez and Otillo Toledo. Rather than lay them off, however, Superintendent Getz called the project Superintendent,
Mr. Johnson, at the Oceans Grande project to see if there was any work for the three employees. Mr. Johnson told him that he might have work for perhaps a week and therefore the Petitioner and the other two employees were transferred to the Oceans Grande project. Both Hernandez and Toledo were skilled carpenters, as opposed to the Petitioner, who was a laborer/carpenter's helper. When this transfer occurred it left
only two traffic control employees, who were females, at the Salida job site, along with the tower crane operator.
On May 6, 2005, the Petitioner was laid-off from the Oceans Grande project. There was simply no further work for a laborer at that job site so Mr. Mecker, the foreman, explained to the Petitioner why he was laid-off. He also told him that the company might soon have another project starting known as the Halifax Landing project and that he might have work available there.
He told the Petitioner that he should remain in contact with the Oceans Grande project supervisory personnel in case a re-call came up because of additional work becoming available. The Respondent also noted in the Petitioner's personnel file at the time of this "reduction in force" that the Petitioner was "recommended for re-hire." Mr. Johnson also testified that as far as he was concerned the Petitioner was still eligible for re-hire and that he actually liked Julian Lawrence as a person and as an employee.
It is undisputed, however, that the Petitioner never contacted the Respondent and never made any inquiry as to additional work. On occasion, Project Superintendent Johnson made efforts to call the Petitioner at the only phone number he had for him, regarding re-calling him for more work. This was probably three to four weeks after the lay-off. The fact that
the Respondent noted on the personnel record at the time of his lay-off that the Petitioner was recommended for re-hire belies any indication that the Petitioner was being retaliated against by the Respondent.
It also significant that the decision-maker with regard to the lay-off was Grady Johnson. The Petitioner maintains that he was laid-off in retaliation for complaining about the racial epithet incident involving "Dominick" at the Salida project. Mr. Johnson however, was totally unaware of that incident at the time he made the decision to lay the Petitioner off. Thus it was not possible that he did so as an act of retaliation. Indeed the Petitioner himself did not complain regarding the racial comment incident, but rather learned of it from the female employee who had made the complaint to the Respondent's management. Equally significant, no derogatory employment action was ever taken against the female employee who complained to the Respondent regarding the incident either.
Project Superintendent Johnson established, based upon his 45 years experience in the construction industry, that it is important to understand how a construction project and company operates. There are different steps and different stages. During these different steps and stages of a project different employees are required and then become un-needed at a later
stage of the project. Many times much of the work at various stages is performed by subcontractors. Additionally, it is important to acknowledge that not only was Mr. Johnson unaware of the "Dominick" incident, but when asked if the lay-off of the Petitioner was in any degree an effort, to retaliate,
Mr. Johnson was very adamant in denying that. He stated, "I've never done that in my life." Indeed, the testimony shows that on at least two occasions the Respondent sought to find available work for the Petitioner rather than lay him off.
Mr. Johnson established that the Petitioner's employment record was marked as "eligible for re-hire" and the Respondent's attempts to reach the Petitioner after the lay-off was because the Respondent was actively trying to effect an arrangement so that the Petitioner would have work at different times with the Respondent. In Mr. Johnson's words, "We like Julian. Julian is good guy. There was no selection . . . we were trying to work it out where he could go to the other job, but that didn't work out."
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2005).
Section 760.10(1)(a), Florida Statutes (2005) provides that:
It is an unlawful employment practice for an employer:
To discharge or fail or refuse to hire any individual or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges or employment, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.
Section 760.10(7), Florida Statutes (2005), likewise provides that:
It is an unlawful employment practice for an employer . . . to discriminate against any person because that person has opposed any practice which is an unlawful employment practice . . .
The Florida Civil Rights Act, Chapter 760, Florida Statutes was patterned after Title VII of the Federal Civil Rights Act of 1964. Florida courts have therefore used the same analysis when considering claims under the Florida Civil Rights Act as is used in decisions employed in resolving claims under the Federal Act. See Harper v. Blockbuster Entertainment Corp.,
139 F.3d 1385, 1387 (11th Cir. 1998); Castleberry v. Chadbourne,
Inc., 810 So. 2d 1028 (Fla. 1st DCA 2002).
To the extent that the Petitioner might be attempting to establish a racially hostile work environment as underpinning to his claim, the Petitioner must establish that he belongs to a protected group, was subjected to unwelcome harassment, that the
harassment was based upon his race, that it was so severe and pervasive as to alter the terms and conditions of his employment and created a discriminatorily abusive working environment.
Further, he must establish that there is a basis for holding the employer liable for that harassment. Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002).
In order to establish that harassment affected a condition of employment the Petitioner must show that the harassment was so severe or pervasive that it altered the interpersonal climate of the workplace, creating an objectively abusive and hostile atmosphere. Gupta v. Florida Board of Regents, 212 F.3d 571, 582-83 (11th Cir. 2000). Racial slurs, for instance, must be so "commonplace, overt and denigrating, that they create an atmosphere charged with racial hostility.” EEOC v. Beverages Canners, Inc., 897 F.2d 1067, 1068 (11th Cir. 1990).
In deciding whether a hostile environment was created courts must look at the frequency of the discriminatory conduct, the severity of the conduct and whether the discriminatory conduct threatens or humiliates and whether it unreasonably interferes with the Petitioner's performance of his work. Gupta, supra. "Simple teasing, off-hand comments, and isolated
incidents, (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment
in the above-referenced context." Faragher v. City of Boca Raton, 524 U.S. 775, 778 (1998). The protections of Title VII "do not extend to everything that makes an employee unhappy." Davis v. Town of Lake Park, 245 F.3d 1232, 1242 (11th Cir.
2001). Title VII is not designed to make federal courts "sit as a super-personnel department that re-examines an entity's business decisions." Elrod v. Sears Roebuck and Co., 939 F.2d 1466, 1470 (11th Cir. 1991).
A prima facie case of race discrimination cannot be established on the theory of a racially hostile work environment because it has not been established by the Petitioner that the racial comment in question permeated the workplace. The Petitioner alleges that he was called "nigger" and "dumb ass" on one occasion. This is an isolated incident, and because it is isolated and because it was not condoned by the Respondent and it was uttered by a person who was not an employee of the Respondent, it does not rise to the requisite level of severity to term it an instance of racial harassment by the Respondent. The Petitioner has not alleged that he was subjected to harassment or discriminatory behavior at any other time, and his allegation that a racial slur was used on this one occasion does not establish "severe and pervasive" conduct under these circumstances. It is important to note that although the provisions of Title VII prohibiting discrimination encompass
work place harassment, the Eleventh Circuit and other federal courts have cautioned that they are not a federal "civility code." See Mendoza v. Borden, Inc., 195 F.3d 1238, 1245; (11th Cir. 1999) cert. den. 529 U.S. 1068 (2000); Meritor Savings Bank
v. Benson, 477 U.S. 57, 67 (1986). Moreover, not all workplace conduct that may be described as harassment affects a term, condition, or privilege of employment within the meaning of Title VII. See also Canady v. Wal-Mart Stores, Inc., 440 F.3d 1031 (8th Cir. 2006); reh. den. at 452 F.3d 1020 (8th Cir. May
30, 2006).
Thus, off-hand comments and isolated incidents are insufficient to establish a hostile work environment. See Blevins v. Helig-Myers Corp., 52 F.2d 1337 (M.D. Ala. 1998). Even if the Petitioner's allegations were determined to be sufficiently severe and pervasive to state a claim, the undisputed evidence establishes that once the Respondent learned of the incident, it acted promptly, reasonably, and effectively to investigate, to remedy the issue and to prevent such from occurring again. Thus the Respondent established the defense necessary to absolve it of liability with regard to that incident. Walton v. Johnson and Johnson, 347 F.3d 1272, 1288 (11th Cir. 2003).
Retaliation Claim
In order to establish a prima facie case of retaliation a Petitioner must show (1) that he engaged in a statutorily protected expression or conduct, (2) that an adverse employment action has occurred, and (3) that there is a causal connection between the protected expression or conduct and the adverse employment action. See Farley v. Nationwide Mutual Insurance Company, 197 F.3d 1322, 1336 (11th Cir. 1999). The Petitioner must establish that his protected activity or conduct and the adverse employment action were related in some way. He must show that the decision-maker, with regard to the adverse employment action alleged, was aware of the protected conduct engaged in by the Petitioner before taking the adverse employment action. Once a prima facie case of discrimination based on retaliation has been established, the employer has an opportunity to articulate a legitimate, non-discriminatory reason for the adverse employment action. Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278 (11th Cir. 1997). The Petitioner must "demonstrate that it will be able to establish at trial that the employer's proffered non- discriminatory reasons are a pretextual ruse designed to mask retaliation." Id.
In order to prevail on a retaliation claim the plaintiff must establish that the employer was actually aware of
the protected expression or conduct at the time the adverse decision was made. Clover v. Total Systems Services, Inc., 176 F.3d 1346, 1354-56 (11th Cir. 1999); see also Sullivan v.
National R.R. Passenger Corp., 175 F.3d 1056, 1060 (11th Cir. 1999). Brumgart v. Bell South Telecommunication, Inc., 231 F.3d 791, 799 (11th Cir. 2000).
In order to establish that there is a causal link between the conduct engaged in by a Petitioner and the adverse employment action the evidence must show that the employer's employment decision was motivated, in part at least, on knowledge of the protected activity engaged in by the Petitioner. Grizzle v. Travelers Health Network, Inc., 14 F.3d 261, 267 (5th Cir. 1994). If this were not the case impermissible speculation could support a finding that a decision to terminate was causally connected to complaints a petitioner employee had made. See Foster v. Solvay Pharmaceuticals, Inc., 160 Fed. Apps. 385, 389 (5th Cir. 2005). The Clover decision supra illustrates that temporal proximity between the protected conduct engaged in by the Petitioner and the adverse employment decision, is insufficient to create a genuine issue of fact as to causal connection where there is un- rebutted evidence that the decision-maker did not have knowledge that the employee had engaged in the protected conduct. See Clover, 176 F.3d at 1355, 56.
The Petitioner has failed to establish a prima facie case based on retaliation with regard to the lay-off occurring in May of 2005. This is because he failed to establish that Grady Johnson, the decision- maker, had any knowledge of the incident between the Petitioner and the employee of the sub- contractor. The Respondent produced affirmative un-refutted evidence that Mr. Johnson had no such knowledge, thus the Petitioner cannot establish a prima facie claim.
Even if such a prima facie case had been established the Respondent came forward with legitimate, non-discriminatory reasons for the necessary reduction in force in May of 2005. In fact, the Respondent laid the Petitioner off because there was simply no longer any work he could do, at least for the next few weeks. It is also noteworthy that the Respondent assured him when he was laid-off that he would be subject to re-call and re- hire as soon as work became available. Indeed, his personnel file contains the contemporaneous notation, made when the Petitioner was laid-off, to the effect that he was "eligible for re-hire." The Respondent's evidence negates any possible inference of retaliation with regard to the lay-off.
The Respondent established a specific process by which it decided to lay-off and transfer employees from the Salida project to the Oceans Grande project. The Petitioner did not establish that the reasons for the transfers and layoffs are
untrue. Additionally, the Petitioner did not show that the employees who were transferred back to Salida from the Oceans Grande project were less qualified for the positions than he was. The employees who were transferred back, instead of being laid-off, were skilled carpenters and the Petitioner was a laborer/carpenters helper, a less skilled position. As in the instance occurring in Gupta v. Florida Board of Regents, supra the Petitioner has not been able to show that the two employees referred to as exemplars who were not laid-off were less qualified than he.
The United States Supreme Court in Clark County School District v. Breeden, 532 U.S. 268, 272 (2001) held clearly that employers need not suspend previously planned employment actions upon discovering that a complaint has been made. The employer's proceeding along lines previously contemplated, though not yet definitively determined, is evidence of causality, that is, causal connection between the protected conduct engaged in by the employee and the adverse employment decision made by the employer. Additionally, the Supreme Court in that decision held that a retaliation claim can not be based on a non-severe single incident of alleged harassment. Moreover, once the employer offers a legitimate, non-discriminatory reason that explains both the adverse action and the timing, then temporal relationship is insufficient to sustain the case for the
Petitioner. See Swanson v. General Services Administration, 110 F.3d 1180, 1188 (5th Cir. 1997). The Swanson case provides a good synopsis concerning the proposition that a petitioner's "opinions," standing alone, do not constitute competent evidence. 110 F.3d at 1186.
Denial of Overtime-Retaliation
The Petitioner contends that he was also retaliated against for complaining of the racial comment incident by being denied overtime opportunity on April 29, 2005. Although denial of overtime opportunities can be adverse employment actions, the Petitioner has not established a prima facie case of discrimination because he has not shown a causal connection between these events. The Petitioner admits that he never actually reported his allegations concerning racial harassment to any employee or agent of the Respondent. If he never reported the complaint, then he never engaged in protected activity, a necessary part of his prima facie case of retaliation. Rather, the Respondent employer was acting to alleviate the racial harassment issue based on the report of a co-employee, before the Petitioner was aware it was doing so.
Even if the Petitioner had made such a complaint, it is well-established that general allegations of unlawful employment practices must refer to a specific practice of the employer. "Vagueness as to the nature of the grievance . . .
prevents a protest from qualifying as a protected activity." Guess v. Miramar, 889 So. 2d 840 (Fla. 2005), citing Dupont-
Lauren v. Schneider (USA), Inc., 994 F. Supp. 802, 823 (S.D. Texas 1998). In the Dupont-Lauren decision the plaintiff did not complain of a specific activity nor did she accuse any specific person of discriminating against her, and thus her comments were too vague to constitute a protected activity.
Likewise in the Guess case, a memo that did not give the name of the harasser or describe the specific incidents of harassment was not deemed to describe a protected activity. Here the Petitioner did not complain to the employer at all of racial harassment. The employer Respondent found out through the report of another employee. Temporal sequence is not enough, alone, to establish a causal connection between the so-called racial harassment and the alleged denial of overtime, merely because that event occurred later. The Petitioner must also show, as discussed above, that the decision-maker knew of the racial harassment incident and complaint, which he did not. The Fifth Circuit has held that the mere fact that an employment action occurred after a complaint may have been filed is not sufficient to establish by itself a causal connection in attempting to prove retaliation. Raggs v. Mississippi Power and
Light Company, 278 F.3d 463, 471-72 (5th Cir. 2002).
In summary, the Petitioner alleges that he was discriminated against by the fact that the sub-contractor's employee used a racial slur. However, the Petitioner admits that he never complained of this to the Respondent, but when the Respondent learned of it from a collateral source, the Respondent on its own volition took the necessary remedial action to stop this conduct. The Petitioner had no further complaints regarding such or similar conduct. Thus the Petitioner did not show that he was singled out for discriminatory treatment, that the Respondent engaged in any conduct fraught with racially discriminatory animus, nor that it condoned such on the part of an employee or other co-worker.
There is an insufficient nexus between the racial epithet incident and any employment action taken by the Respondent, (i.e. alleged overtime denial or the lay-off itself). The Petitioner made no showing that when he was laid- off persons with similar duties and qualifications outside his protected class (i.e. non-black) were retained in employment or in any way treated better than he. The same is true as to the alleged denial of overtime as a purported adverse employment action. The Petitioner offered no persuasive evidence to establish that he was in fact denied overtime, nor that it was related to the racial slur incident. Indeed, the evidence offered by the Respondent is un-contradicted in establishing
that on some occasions when the Petitioner was asked to work overtime he refused. As to the April 29, 2005, overtime issue, the project superintendent and assistant project superintendent established that they did not announce to any particular person the availability of overtime work. They simply announced to all of the employees gathered at the work-site on Friday afternoon that they would also be working on Saturday April 30 for those who wished to volunteer to do so. The Petitioner simply neglected to report on Saturday and/or did not get the message, but there is nothing to show that he was intentionally omitted from notice of over-time availability.
Moreover, on two occasions, the Petitioner was transferred rather than being laid-off. He was transferred from Oceans Grande to Salida Del Sol. This transfer was because of his medical condition and light duty requirement, which limited his ability, but he was not laid-off. Then later, when Salida Del Sol, with only a few employees, had a downward trend in available work, the Petitioner was not laid-off, but rather was transferred to Oceans Grande for a week while the Respondent attempted to find more work for him. This helpful attitude by his employer tends to negate any possibility of intent to deny over-time as retaliation.
When the ultimate lay-off at Oceans Grande occurred the Petitioner was reminded by the Respondent that there might
be additional work at other Respondent projects and that he should attempt to remain in contact with the Respondent so that he could be re-called. The Petitioner chose not to do so however, and, even so, the Respondent made attempts to telephone the Petitioner to re-call him to work, to no avail.
Additionally, the personnel file of the Petitioner shows by an entry when he was laid-off, that he would be eligible for re- hire.
Thus the Respondent articulated legitimate reasons for the reduction in force involving the Petitioner in May of 2005,
