STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD R. LAKE,

Petitioner,

vs.

ARNOLD TRUSS CO., INC.,

Respondent.

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) Case No. 07-1128

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RECOMMENDED ORDER

A hearing was held pursuant to notice, on May 24, 2007, in Ocala, Florida, before the Division of Administrative Hearings by its designated Administrative Law Judge, Barbara J. Staros.

APPEARANCES

For Petitioner: Richard R. Lake, pro se

6404 Southwest Ninth Avenue Ocala, Florida 34474

For Respondent: Michael J. Cooper, Esquire

321 Northwest Third Avenue Ocala, Florida 34475

STATEMENT OF THE ISSUE

Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Complaint of Discrimination filed by Petitioner on September 28, 2005.

PRELIMINARY STATEMENT

On September 28, 2005, Petitioner, Richard R. Lake, filed an Employment Complaint of Discrimination with the Florida

Commission on Human Relations (FCHR) which alleged that Arnold Truss Company violated Section 760.10, Florida Statutes, by discriminating against him on the basis of race and retaliation, which resulted in unfair terms and conditions of employment, reduction in pay, and termination. The Employment Complaint of Discrimination alleged that Petitioner was injured on the job and was treated differently than a white employee injured on the job; that he received a reduction in pay for no reason; and that when he complained about the discrepancies, he was terminated.

The allegations were investigated and on December 21, 2006, FCHR issued its Determination: Adverse Inference Clause with respect to Petitioner’s racial discrimination claim, and No Cause with respect to Petitioner’s claim of retaliation. A Petition for Relief was filed by Petitioner on January 22, 2007.

FCHR transmitted the case to the Division of Administrative Hearings on or about March 7, 2007. A Notice of Hearing was issued setting the case for formal hearing on May 24, 2007. The hearing proceeded as scheduled.

At hearing, Petitioner testified on his own behalf. Petitioner did not present any documents into evidence. Petitioner requested that Official Recognition be taken of the documents in the file (i.e., the Employment Complaint of Discrimination, the Petition for Relief, and the Notice of Determination). That request was granted. Respondent presented

the testimony of Paul Miller Arnold, Michael Webb, and Terry McCall. Respondent’s Exhibits 1 through 5 were admitted into evidence.

The hearing was not transcribed. Petitioner filed a post- hearing letter and Respondent filed a Proposed Recommended Order, which have been considered in the preparation of this Recommended Order.1/

FINDINGS OF FACT

1. Petitioner is an African-American male who was employed by Respondent from January 2005 until his termination on

   August 1, 2005. Petitioner also worked for Respondent briefly in the early 1990s.

2. Respondent, Arnold Truss Company, Inc. (Arnold Truss), is an employer within the meaning of the Florida Civil Rights Act. Arnold Truss manufactures roof and floor trusses and other building components. Paul Arnold is the President and owner of Respondent.

3. When hired in January 2005, Petitioner worked on the day shift as a truss assembler. While on the day shift, Petitioner was paid $9.00 per hour.

4. In February 2005, Petitioner was transferred to the night shift. While on the night shift, Petitioner was paid

   $10.00 per hour.

5. There is a $1.00 per hour pay differential in wages paid to day and night shift employees. That is, it is standard practice in Respondent’s business for employees working the night shift to earn $1.00 more per hour than the day shift employees.

6. On April 12, 2005, Petitioner failed to show up for work.

7. On April 21, 2005, Mr. Arnold received a letter from Petitioner informing Mr. Arnold that Petitioner was incarcerated in the Marion County Jail. In the letter, Petitioner requested that Mr. Arnold re-hire him when he got out of jail.

8. Mr. Arnold re-hired Petitioner on May 24, 2005.

   
   

   Initially, Petitioner was assigned to the night shift and again received wages of $10.00 per hour. However, Petitioner requested that he be placed back on the day shift because he had transportation problems.

9. It was unusual for Respondent to move a night shift employee to the day shift. Despite this, Respondent moved Petitioner to the day shift as requested. Consequently, his rate of pay was reduced from $10.00 per hour to $9.00 per hour. He remained on the day shift until he was terminated by his supervisor on August 1, 2005.

10. Petitioner claims that he was only paid $8.00 per hour for two weeks after the transfer back to day shift. However, the preponderance of the evidence establishes that he was paid

    $9.00 per hour. In any event, there is no evidence that any reduction in pay was related to anything but the change from working night shift to day shift.

11. At hearing, Mr. Arnold reviewed employees’ positions and rates of pay. While a few employees received slightly more pay than others, this was due to raises earned by employees over time. The pay received by Petitioner for day and night shift work is consistent with the pay received by other employees with similar experience for working these shifts.

12. Michael Webb, a black male, is plant manager for Respondent. He has been employed by Respondent for approximately five years. In 2005, Mr. Webb was a supervisor trainee.

13. In June 2005, Petitioner approached Mr. Webb telling him that he had been injured. Mr. Webb told him to report this to Bill Baker, who was the supervisor at that time. Mr. Baker did not testify at the hearing, but according to Petitioner, Mr. Baker told Petitioner to go home, which he did.

14. Also according to Petitioner, a white employee named David was injured on the night shift and was taken to the hospital in an ambulance. There is no evidence as to the nature

    or extent of Petitioner’s injury, or the nature or extent of the other employee’s injuries. There was conflicting testimony as to the other injured employee’s race (white or Hispanic). In any event, because of the lack of evidence regarding this in the record, it is impossible to conclude one way or the other as to whether the injuries sustained by Petitioner and the other employee were in anyway similar, or whether or not the men were treated differently by Respondent.

15. According to Respondent’s document entitled “Employee Notes” Petitioner was fired by his supervisor, Bill Baker, in August 2005, “because he refused to do the job he was asked to do and caused a scene.” There is very little else in the record regarding the circumstances surrounding Petitioner’s termination.

16. There was no competent evidence presented that establishes or even suggests that Petitioner’s change in pay or termination was based on race.

17. There was no competent evidence presented that Petitioner engaged in statutorily protected activity before his termination. That is, there was no evidence presented that Petitioner complained to Respondent that he was being discriminated against on the basis of race prior to the reduction in pay or his termination.

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case.

    §§ 120.569 and 120.57, Fla. Stat.

    
    

19. Section 760.10(1), Florida Statutes, states that it is an unlawful employment practice for an employer to discharge or otherwise discriminate against an individual on the basis of race.

20. In discrimination cases alleging disparate treatment, the Petitioner generally bears the burden of proof established by the United States Supreme Court in McDonnell Douglas v. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981).2/ Under this well established model of proof, the complainant bears the initial burden of establishing a prima facie case of discrimination. When the charging party, i.e., Petitioner, is able to make out a prima facie case, the burden to go forward shifts to the employer to articulate a legitimate, non-discriminatory explanation for the employment action. See Department of Corrections v. Chandler, 582 So. 2d 1183 (Fla. 1st DCA 1991) (court discusses shifting burdens of proof in discrimination cases). The employer has the burden of production, not persuasion, and need only persuade the finder of fact that the decision was non-discriminatory. Id. Alexander v. Fulton

    County, Georgia, 207 F.3d 1303 (11th Cir. 2000). The employee must then come forward with specific evidence demonstrating that the reasons given by the employer are a pretext for discrimination. "The employee must satisfy this burden by showing directly that a discriminatory reason more likely than not motivated the decision, or indirectly by showing that the proffered reason for the employment decision is not worthy of belief." Department of Corrections v. Chandler, supra at 1186; Alexander v. Fulton County, Georgia, supra. Petitioner has not met this burden.

21. To establish a prima facie case, Petitioner must prove that (1) he is a member of a protected class (e.g., African- American); (2) he was subject to an adverse employment action;

    (3) his employer treated similarly situated employees, who are not members of the protected class, more favorably; and (4) he was qualified for the job or benefit at issue. See McDonald, supra; Gillis v. Georgia Department of Corrections, 400 F.3d 883 (11th Cir. 2005).

22. Petitioner has met the first and second elements to establish a prima facie case of discrimination in that he is a member of a protected class and was subject to an adverse employment action.

23. However, he has not proven the third element, that his employer treated similarly situated employees who are not members of the protected class more favorably. The preponderance of the evidence established that he was paid the same rate of pay as others who worked the same shift, regardless of race. There is no evidence that establishes that race played any part in his termination, nor whether anyone of another race replaced him. Petitioner has not provided sufficient evidence that the non-minority employees with whom he compares his treatment were similarly situated yet treated more favorably. See Holifield v. Reno, 115 F.3d 1555 (11th Cir. 1997).

24. As for Petitioner’s allegation that he was injured on the job and was treated differently from an injured white employee, there is insufficient evidence to establish that this rises to the level of adverse employment action. To be actionable, the employment action must be materially adverse as viewed by a reasonable person in the circumstances, not by the employee’s subjective view. Davis v. Town of Lake Park, 245

    F.3d 1232, 1239 (11th Cir. 2001). “Tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Id.

25. Moreover, Petitioner did not present competent evidence to prove the fourth component of establishing a prima

    facie case regarding his being qualified for the job, although that does not appear to be in dispute.

26. Applying the McDonnell analysis, Petitioner did not meet his burden of establishing a prima facie case of discriminatory treatment. Even assuming that Petitioner had demonstrated a prima facie case of discriminatory conduct, Respondent demonstrated a legitimate, non-discriminatory reason for Petitioner’s reduction in pay. That is, there was a wage differential of $1.00 less per hour for the day shift as opposed to the night shift.

27. Even if it were necessary to go to the next level of the McDonnell analysis, Petitioner did not produce any evidence that Respondent’s legitimate reasons were pretext for discrimination. Therefore, Petitioner has not met his burden of showing that a discriminatory reason more likely than not motivated the actions of Respondent toward Petitioner or by showing that the proffered reason for the employment decision is not worthy of belief. Consequently, Petitioner has not met his burden of showing pretext.

28. In summary, Petitioner has failed to carry his burden of proof that Respondent engaged in racial discrimination toward Petitioner when it reduced his pay or in terminating him.

29. To make a prima facie case of retaliation, Petitioner must show that he engaged in protected activity, that he suffered adverse employment action, and that there is some causal relation between the protected activity and the adverse employment action. Casiano v. Gonzales, 2006 U.S. Dist. Lexis 3593 (N.D. Fla. 2006); Jeronimus v. Polk County Opportunity

Council, Inc., 2005 U.S. App. Lexis 17016 (11th Cir. 2005). Petitioner has not produced any competent evidence that he engaged in protected activity (i.e., complained about unlawful discriminatory treatment), to support a charge of retaliation.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is

RECOMMENDED:

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

DONE AND ENTERED this 19th day of July, 2007, in Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

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 19th day of July, 2007.

ENDNOTES

1/ Petitioner attached several paycheck stubs from his employment at Respondent’s business to his post-hearing submission. However, these attachments are in the nature of late-filed exhibits and, therefore, cannot be considered in formulating these findings of fact. § 120.57(1)(j), Fla. Stat.

2/ FCHR and 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 Corporation, 633 So. 2d 504, 509 (Fla. 1st DCA 1994).

COPIES FURNISHED:

Richard R. Lake

6404 Southwest Ninth Avenue Ocala, Florida 34474

Michael J. Cooper, Esquire

321 Northwest Third Avenue Ocala, Florida 34475

Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk 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: 07-001128

Orders for Case No: 07-001128