vs.
Respondent.
) Case No. 06-0455
This cause came on for formal hearing before Robert S. Cohen, Administrative Law Judge with the Division of Administrative Hearings, on April 19, 2006, in Tallahassee, Florida.
For Respondent: Rupesh J. Patel, Esquire
The issue is whether Respondent engaged in an unlawful employment practice by discriminating against Petitioner on the basis of his race in violation of the Florida Civil Rights Act of 1992 ("FCRA").
On August 4, 2005, Petitioner, Clyde Akins, filed a charge of discrimination with the Florida Commission on Human Relations ("FCHR"), alleging that Respondent, Lee and Cates Glass, Inc., discriminated against him on the basis of his race.
Specifically, Petitioner alleged that Respondent refused to hire him as a glass installer because he is African-American.
After investigating Petitioner's charge, the FCHR issued an Amended Determination: No Cause on February 1, 2006, in which it found no reasonable cause to believe that an unlawful employment practice had occurred. Petitioner filed a Petition for Relief on February 1, 2006, requesting a formal administrative hearing, and the case was referred by the FCHR to the Division of Administrative Hearings on February 2, 2006. On February 16, 2006, a Notice of Hearing was issued scheduling a final hearing for April 19, 2006.
At the hearing, Petitioner testified on his own behalf and offered Petitioner's Exhibit Nos. 1 and 2 into evidence, which were not admitted. Respondent presented the testimony of Silas Jeff Smith, Steve Gruenewald, and Darryl Gray, and offered Respondent's Exhibit No. 1 into evidence, which was accepted.
A Transcript was filed on May 10, 2006. After the hearing, Respondent filed its Proposed Findings of Fact and Conclusions of Law on May 23, 2006. Petitioner did not file proposed findings of fact and conclusions of law.
References to statutes are to Florida Statutes (2005) unless otherwise noted.
Petitioner is an African-American male who sought employment with Respondent as an auto glass technician.
Respondent is a full-service glass company engaged in the business of installing, repairing, and distributing auto glass, as well as residential and commercial flat glass. Respondent operates a store at 1134 West Orange Avenue, Tallahassee, Florida 32310.
The manager of Respondent's store for the past three years is Silas Jeff Smith. Mr. Smith supervises 14 employees and is responsible for reviewing applications for employment, and hiring qualified individuals for available positions.
In February of 2005, Petitioner presented himself at Respondent's facility and indicated he wanted to apply for employment as an auto glass technician. Mr. Smith was not present at the time, but Petitioner completed an application for employment.
Approximately two weeks after his initial visit to Respondent's store, Petitioner appeared again to follow up on his earlier inquiry as to the availability of a position with Respondent. At that time, Mr. Smith informed Petitioner that Respondent had no auto glass technician positions available and, therefore, he was not hiring any auto glass technicians.
During the follow-up visit, Mr. Smith told Petitioner that he would first review any applications on file should an auto glass technician position become available.
At the time Petitioner sought employment with Respondent, it was not advertising or posting any employment opportunities for auto glass technicians. Petitioner was aware of this fact.
Petitioner was not offered employment by Respondent because it did not have an available auto glass technician position at its Tallahassee store.
The testimony from Mr. Smith was clear that, even had an auto glass technician position been available, he would probably not have offered the job to Petitioner because he received information from two of his current employees that Petitioner was not a skilled auto glass technician.
Steve Gruenewald, a sales representative with Respondent, previously had worked with Petitioner for a year at a competitor of Respondent's, Harmon Auto Glass. When they were
employed together at Harmon Auto Glass, Mr. Gruenewald was a sales representative while Petitioner was an auto glass technician.
Mr. Gruenewald was present at Respondent's store when Petitioner appeared seeking employment in February 2005. Shortly thereafter, Mr. Gruenewald met with Mr. Smith to inform him about his previous working experience with Petitioner.
Mr. Gruenewald reported that Petitioner had issues with warranty recall work when they were both employed at Harmon Auto Glass.
Petitioner's work had received enough complaints from auto body shops to lead those shops to no longer allow Petitioner to perform their auto glass work. Mr. Gruenewald testified that, even though no auto glass technician position was currently available, he believed it was important to let Mr. Smith know of his previous working history with Petitioner.
Mr. Smith also recounted that Leonard Brownell, another auto glass technician in Respondent's Tallahassee store, had worked with Petitioner at Safelite Solutions, and reported that Respondent should not hire Petitioner because he had a poor reputation as an auto glass technician.
Respondent has not hired anyone solely as an auto glass technician in the Tallahassee store since the time Petitioner first applied for a job with Respondent.
The last auto glass technician hired by Respondent in its Tallahassee store was Leonard Brownell, hired in September 2004. At the time of his hiring, Mr. Brownell was a master- certified glass technician with the National Glass Association.
Petitioner claims that Respondent hired Darryl Gray, a Caucasian male, as a glass technician after Petitioner sought employment with Respondent. However, Gray was not hired in the position for which Petitioner sought employment.
Respondent's business employs two different types of glass technicians. Auto glass technicians repair or replace windshields and door glass on automobiles. Flat glass technicians install, repair, or replace glass windows, mirrors, doors, bath enclosures, or other glass used in commercial or residential buildings. As a result, the skill and experience required for each position is different. An individual experienced as an auto glass technician does not necessarily have the ability or skill to perform flat glass work.
Mr. Smith testified that a flat glass technician should have either a construction background or at least have general building knowledge. He also testified that flat glass work varies more than auto glass work on a day-to-day, or job- to-job basis because the details of each flat glass job will be completely different.
Respondent hired Darryl Gray, in May of 2005 as a flat glass technician. At the time of his hire, Mr. Gray was a certified master glass technician with the National Glass Association. While Respondent does not require its glass technicians to be certified, it generally prefers them to have the certification.
Mr. Gray is certified to perform both flat glass and auto glass work and, as a result, he occasionally performs auto glass work for Respondent. Mr. Smith testified that his hiring of Mr. Gray was based upon his ability to perform multiple tasks in Respondent's organization, and was not racially motivated. Prior to hiring Mr. Gray, Respondent had pursued recruiting him from his previous employer for two years because of his excellent reputation and his ability to serve in the dual capacity of both flat glass and auto glass installer.
In contrast to Mr. Gray, Petitioner sought employment only as an auto glass technician. Petitioner testified that he was an experienced auto glass technician and had worked for many previous employers only as an auto glass technician.
Petitioner does not claim to be more qualified than Mr. Gray. He admits that Mr. Gray is a good glass technician who may have more experience than he.
Respondent has an Equal Employment Opportunity Policy which prohibits discrimination based upon an individual's protected status, including race, with respect to recruitment, hiring, and all other terms and conditions of employment.
Mr. Smith is aware of Respondent's Equal Employment Opportunity Policy; he understood the policy's applicability to hiring decisions; and his decision not to hire Petitioner complied with Respondent's policy.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. §§ 120.569, 120.57(1), and 760.11, Fla. Stat.
Pursuant to Section 760.10(1), Florida Statutes, it is unlawful for an employer to discharge, refuse to hire, or otherwise discriminate against an employee with respect to compensation, terms, conditions, or privileges of employment, based on the employee’s race, gender, or national origin.
Federal discrimination law may properly be used for guidance in evaluating the merits of claims arising under Section 760.10, Florida Statutes. See 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, 1209 (Fla. 1st DCA 1991).
In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973), the Supreme Court articulated a burden of proof scheme for cases involving allegations of discrimination under Title VII, where the plaintiff relies upon circumstantial evidence. The McDonnell Douglas decision is persuasive in this case, as is St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 506- 07 (1993), in which the Court reiterated and refined the McDonnell Douglas analysis.
Pursuant to this analysis, the plaintiff (Petitioner herein) has the initial burden of establishing by a preponderance of the evidence a prima facie case of unlawful discrimination. Failure to establish a prima facie case of discrimination ends the inquiry. See Ratliff v. State, 666 So. 2d 1008, 1012 n. 6 (Fla. 1st DCA), aff’d, 679 So. 2d 1183 (1996) (citing Arnold v. Burger Queen Systems, 509 So. 2d 958 (Fla. 2d DCA 1987)).
If, however, the plaintiff succeeds in making a prima facie case, then the burden shifts to the defendant (Respondent herein) to articulate some legitimate, nondiscriminatory reason for its complained-of conduct. If the defendant carries this burden of rebutting the plaintiff’s prima facie case, then the plaintiff must demonstrate that the proffered reason was not the true reason but merely a pretext for discrimination. McDonnell Douglas, 411 U.S. at 802-03; Hicks, 509 U.S. at 506-07.
In Hicks, the Court stressed that even if the trier- of-fact were to reject as incredible the reason put forward by the defendant in justification for its actions, the burden nevertheless would remain with the plaintiff to prove the ultimate question of whether the defendant intentionally had discriminated against him. Hicks, 509 U.S. at 511. “It is not enough, in other words, to disbelieve the employer; the fact finder must believe the plaintiff’s explanation of intentional discrimination.” Id. at 519.
Petitioner complains that Respondent's failure to hire him was motivated by his race. This is a disparate treatment claim. To present a prima facie case of disparate treatment using the indirect, burden-shifting method just described, Petitioner needed to prove, by a preponderance of the evidence, that “(1) [he] belongs to a racial minority; (2) [he] was subjected to adverse job action; (3) [his] employer treated similarly situated employees outside [his] classification more favorably; and (4) [he] was qualified to do the job.” Holifield
v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997).
Here, Petitioner failed to establish a prima facie case of unlawful discrimination using circumstantial evidence. He produced no credible evidence that similarly situated applicants for employment of a different classification (either non-African-Americans specifically or non-minorities generally)
were treated more favorably than he, as was his burden under McDonnell Douglas. See Campbell v. Dominick’s Finer Foods,
Inc., 85 F. Supp. 2d 866, 872 (N.D. Ill. 2000) (“To establish this element, [the claimant] must point to similarly situated non-[minority] employees who engaged in similar conduct, but were neither disciplined nor terminated.”). Petitioner failed to demonstrate that he was qualified for the position he sought, even if a position were available at the time he filled out an application. Petitioner did not demonstrate that any position for which he was qualified existed at Respondent's place of business. As Mr. Smith testified, and as Petitioner acknowledged, no open auto glass technician positions were available at the time Petitioner applied for a job with Respondent. Moreover, Respondent has not hired any auto glass technician since the time Petitioner made application in February 2005. Petitioner claims that Respondent hired
Darryl Gray as a glass technician. This is true, but Mr. Gray was hired as a flat glass technician, a position requiring different skills from those possessed by Petitioner. The fact that Mr. Gray may perform auto glass technician duties from time to time when needed in Respondent's business does not support Petitioner's claim that he was passed over in a discriminatory manner by Respondent in hiring a glass technician.
Petitioner offered no evidence to demonstrate that he sought employment for a position other than as an auto glass technician. Petitioner's employment history indicates that he has been employed in the past only as an auto glass technician, and not as a flat glass technician. Because Petitioner has failed to demonstrate that an auto glass technician position was filled by someone outside the protected class, he has failed to establish a prima facie case of discrimination and his claim must be dismissed. See Duffy v. Lowe's Home Centers, Inc., 414
F. Supp. 2d 1133,1144 (M.D. Fla. 2006) (plaintiff failed to establish a prima facie case where he failed to offer evidence that there was an available position for which the employer was seeking applicants and the position was filled by someone outside the protected class).
Assuming, for the sake of argument, that Petitioner could establish a prima facie case of failure to hire, he nevertheless cannot prove that Respondent's legitimate business reasons for not hiring him are a pretext for unlawful racial discrimination. See Issenbergh v. Knight-Ridder Newspaper Sales, Inc., 97 F.3d 436, 444 (11th Cir. 1996)(“Conclusory allegations of discrimination, without more, are not sufficient to raise an inference of pretext or intentional discrimination where [a defendant] has offered extensive evidence of legitimate, non-discriminatory reasons for its
actions.”)(quoting Young v. General Food Corp., 840 F.2d 825, 830 (11th Cir. 1988)(“Once a legitimate, non-discriminatory reason for dismissal is put forth by the employer, the burden returns to the plaintiff to prove by significant probative evidence that the proffered reason is a pretext for discrimination.”). The most persuasive evidence indicates that Respondent had legitimate, non-discriminatory reasons for not hiring Petitioner. Mr. Smith testified that even if Respondent had an available auto glass technician position, he probably would not have hired Petitioner, based upon information he received that Petitioner was not a skilled auto glass technician. Further, Mr. Smith's hiring of Mr. Gray was based upon the legitimate reason that Mr. Gray possessed skill in both flat glass and auto glass work. Petitioner made no attempt to show he was more qualified than Mr. Gray. On the contrary, he admitted that Mr. Gray was probably more skilled than he.
Moreover, it is not the role of the courts to second- guess an employer’s business judgment. In Chapman v. AI
Transport, 229 F.3d 1012, 1031 (11th Cir. 2000), the 11th Circuit reiterated that:
[f]ederal courts do not sit as a super- personnel department that reexamines an entity’s business decisions. No matter how medieval a firm’s practices, no matter how high-handed its decisional process, no matter how mistaken the firm’s managers, the
ADEA does not interfere. Rather our inquiry is limited to whether the employer gave an honest explanation of its behavior.
See also Elrod v Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991); Nix v. WLCY Radio-Rahall Communications, 738 F.2d 1181, 1187 (11th Cir. 1984)(An “employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason.”).
Accordingly, Petitioner failed to prove his ultimate burden that Respondent engaged in unlawful racial discrimination by denying him employment. At most, Petitioner has produced nothing more than his own belief and speculation concerning the motives for Respondent's actions. This alone is not sufficient to satisfy Petitioner's burden of proving intentional discrimination. Avril v. Village S., Inc., 934 F. Supp. 412,
417 (S.D. Fla. 1996) ("[a] plaintiff's mere belief, conjecture, or speculation that he or she was discriminated against is not sufficient to support an inference of discrimination or to satisfy the plaintiff's burden"). Respondent had legitimate, non-discriminatory reasons for firing Petitioner. The greater weight of the evidence indicates that Respondent did not commit an unlawful employment practice.
RECOMMENDED that FCHR enter a final order dismissing the Petition for Relief.
DONE AND ENTERED this 2nd day of June, 2006, in Tallahassee, Leon County, Florida.
ROBERT S. COHEN
Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 2006.
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Rupesh J. Patel, Esquire Constangy, Brooks & Smith, LLC Post Office Box 41099 Jacksonville, Florida 32234-1099
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
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.
