STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

This cause came on for formal hearing before Harry L. Hooper, Administrative Law Judge with the Division of Administrative Hearings, on April 22, 2008, in Tallahassee,

Florida.

APPEARANCES

For Petitioner: Lee Dell Kennedy, pro se

747 Pecan Street

Chipley, Florida 32428

For Respondent: Jason C. Taylor, Esquire

Carr Allison

305 South Gadsden Street Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Whether Respondent engaged in an unlawful employment practice.

PRELIMINARY STATEMENT

Petitioner Lee Dell Kennedy (Mr. Kennedy) signed an Employment Charge of Discrimination on September 16, 2006, and filed it with the Florida Commission on Human Relations (Commission). The Charge alleged that Trawick Construction (Trawick) discriminated against him because of his religion and retaliated against him because he reported discrimination.

After investigation, the Commission found no cause on the allegation of discrimination based on religion, but did find cause on the allegation of retaliation.

On August 23, 2007, Mr. Kennedy executed a Petition for Relief. The matter was transmitted to the Division of Administrative Hearings on September 19, 2007, and filed on September 20, 2007. The case was set for hearing on November 2, 2007. In a motion filed on October 25, 2007, Trawick asked for a continuance, and it was granted. In a motion filed

December 19, 2007, Trawick again requested a continuance stating that it was attempting to comply with the Order of Pre-hearing Instructions, but was unable to do so because they could not locate Mr. Kennedy. The motion was granted on December 20,

2007.

On January 8, 2008, Trawick again moved to continue the

case. Trawick noted that Mr. Kennedy had obtained counsel, but that the retained counsel asserted that he was going to withdraw

from the case. In an Order Granting Continuance and

Re-scheduling Hearing, the case was set for April 22, 2008, and was heard as then scheduled.

At the hearing, Petitioner testified in his own behalf and offered one exhibit into evidence. Respondent presented the testimony of one witness. No transcript was filed.

After the hearing, both Petitioner and Respondent filed their proposed findings of fact and conclusions of law on May 2, 2008.

References to statutes are to Florida Statutes (2005) unless otherwise noted.

FINDINGS OF FACT

1. Mr. Kennedy is of the Mormon faith. Mr. Kennedy had worked for Trawick in the past. He renewed his employment with Trawick in September 2005. He was a laborer. Sometime around the middle of September 2005, Mr. Kennedy was assigned to a work crew, whose foreman was Andrew Cooper.

2. Trawick Construction is involved in laying and maintaining communication cable. Trawick has a work yard in Chipley, Florida. In accomplishing its work Trawick erects poles, and strings and lays wires, including fiber-optic cable. The work crew in which Mr. Kennedy worked used a five-ton truck and a trencher. Shovels are also used.

3. Mr. Cooper had worked with Mr. Kennedy when both were laborers for Trawick in 1998. Mr. Cooper advanced to the position of foreman, but Mr. Kennedy remained a laborer and sometime after 1998 left the employ of Trawick.

4. Mr. Kennedy asserted that during working hours on September 26 and 27, 2007, Mr. Cooper talked roughly to him and was "bossy." During that time, the Lord came in a vision to Mr. Kennedy and told him that he needed to pray for Mr. Cooper, so that Mr. Cooper might become a more accommodating and

   gracious supervisor. Mr. Kennedy revealed to Mr. Cooper that he was praying for him, although Mr. Cooper did not recall hearing any prayers.

5. On September 27, 2007, the crew was working at a site near Enterprise, Alabama. On that day Mr. Kennedy worked slowly and was insubordinate toward Mr. Cooper. When he was told to accomplish designated tasks, Mr. Kennedy informed Mr. Cooper as to whether he would, or would not do as instructed. Mr. Kennedy was disrespectful and insubordinate to Mr. Cooper, who found this behavior to be unacceptable.

6. Mr. Cooper and his crew were late getting back to Chipley because of Mr. Kennedy's failure to participate in the crew's assigned work. On the return trip, apparently having given up on the efficacy of prayer, Mr. Kennedy instead cursed and ranted in the presence of Mr. Cooper.

7. After their return to Chipley, Mr. Cooper prepared a disciplinary report in response to Mr. Kennedy's behavior. The report was presented to Mr. Kennedy and he was asked to sign it. He refused to sign the document Mr. Cooper prepared. Instead he said, "I quit."

8. The next morning, Wednesday, September 28, 2007,

   
   

   Mr. Kennedy put his gear in the five ton truck as if his employment continued, but Mr. Cooper told him to remove it and reminded Mr. Kennedy that he had been fired. Mr. Cooper called Carlton Wells, a supervisor, who eventually arrived at the Trawick facility in Chipley. Mr. Wells could have reversed the termination. However, by the time he arrived, Mr. Kennedy had departed the Chipley work yard. Mr. Wells, by doing nothing, ratified the action of Mr. Cooper.

9. Neither Mr. Cooper nor Mr. Wells was aware of

   
   

   Mr. Kennedy's religious affiliation. No one in the Trawick organization harassed Mr. Kennedy because he was a Mormon, because no one knew he was a Mormon. Accordingly, whatever the hostility of the work situation, it was not in any manner related to religion.

10. The timesheet maintained by Mr. Cooper reflects that Mr. Kennedy was fired on Wednesday, September 28, 2005. It is found as a fact that Mr. Kennedy was fired on September 28, 2005.

11. Trawick has quarterly "safety" meetings. Despite the nomenclature, Trawick uses these "safety" meetings to educate its workers on many subjects, including the company policy forbidding discrimination. Mr. Cooper has attended these meetings when Trawick's policy as to nondiscrimination was taught. As a result, Mr. Cooper is quite aware that Trawick does not tolerate discrimination based on sex, race, color, or religion. He understands that a failure to conform to Trawick's policy with regard to discrimination could result in his demotion.

12. Religion was not a factor in Mr. Cooper's decision to terminate Mr. Kennedy. No one retaliated against Mr. Kennedy because he complained of discrimination based on his religion. In fact, the first complaint of discrimination made by

    Mr. Kennedy was when he complained to the Commission and by that time he was no longer employed by Trawick.

13. Mr. Kennedy provided no evidence of harm, monetary or otherwise, during the hearing.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. §§ 120.57(1) and 760.11(7) Fla. Stat. (2007).

15. Trawick is an employer who is subject to the Florida Civil Rights Act of 1992. § 760.02(7) Fla. Stat.

    
    

    Stat.

16. Mr. Kennedy is an aggrieved person. § 760.02(10) Fla.

    
    

17. Section 760.10, Florida Statutes, provides in part as

    
    

    follows:

    
    

    § 760.10. Unlawful employment practices

    
    

    1. It is an unlawful employment practice for an employer:

       
       

       (a) To discharge or to fail 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.

       * * *

       
       

       (7) It is an unlawful employment practice for an employer, an employment agency, a joint labor-management committee, or a labor organization to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section.

       
       

       * * * Discrimination based on religion

18. Federal employment discrimination law, including discrimination based on religion, can be used for guidance in construing the provisions of Chapter 760, Florida Statutes.

    Florida Dept. of Community Affairs v. Bryant, 586 So. 2d 1205, 1209 (Fla. 1st DCA 1991).

19. No direct evidence of discrimination was adduced at the hearing. No evidence of a hostile work environment because of Mr. Kennedy's religion was provided. Accordingly, if

    Mr. Kennedy is to prevail on his charge of discrimination he must use indirect proof.

20. In McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973), the U. S. 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.

21. Mr. Kennedy must, under the McDonnell-Douglas formula, establish a prima facie case of discrimination based on religion. In order to do so he must prove (1) membership in a protected group; (2) that the he was qualified for the position;

    (3) that he was terminated; and (4) that the position was ultimately filled by someone from outside the protected group.

22. Under the McDonnell-Douglas scheme, "establishment of a prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee." See

    Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S. Ct. 1089, 1094 (1981). That presumption, if it had been attained, would have placed upon Trawick the burden of producing an explanation to rebut the prima facie case. This has generally been described as articulating a non- discriminatory reason for the action of which the plaintiff complains. Burdine, supra.

23. Should Trawick articulate a non-discriminatory reason for its action, then Mr. Kennedy is permitted the opportunity to attempt to demonstrate that the articulated reason is, in fact, a pretext for what really is unlawful discrimination. While the McDonnell-Douglas presumption shifts the burden of production to the defendant, the ultimate burden of persuading the trier-of- fact that the defendant intentionally discriminated against the plaintiff remained at all times with Mr. Kennedy. Burdine, 450

    U.S. at 253.

    
    

24. Mr. Kennedy proved he was a Mormon, a protected group;

    
    

    (2) that the he was qualified for the position; and (3) that he was fired. He did not prove that the position was ultimately filled by someone from outside the protected group. Accordingly, he did not prove a prima facie case.

25. Even if one assumes arguendo that Mr. Kennedy proved this type of prima facie case, Trawick articulated a nondiscriminatory reason for the action of which the plaintiff

    complains. The evidence did not demonstrate that any employee of Trawick was aware that Mr. Kennedy was a Mormon. Trawick proved that Mr. Kennedy was fired for nondiscriminatory reasons, in that he would not follow instructions, and was disrespectful and insubordinate to his foreman. There was no proof that the nondiscriminatory reasons were pretextual.

26. Another form of prohibited religious discrimination occurs when an employee unlawfully fails to accommodate an employee's religious needs.

27. A prima facie case in such instance would require that Mr. Kennedy show that (1) he had a bona fide religious belief;

    1. he informed his employer of his religious views; (3) these views were in conflict with his responsibilities as an employee; and (4) he was discharged because of his observance of that belief. Roger D. Andrews v. Albertson's, Inc., Case No. 88-3318 (DOAH January 19, 1989) and Ansonia Board of Education v. Philbrook, 479 U.S. 60 (1986). Once this burden is met, respondent must then show it made a good faith effort to accommodate petitioner's religious beliefs.

28. There is no evidence in this case that Mr. Kennedy informed Trawick of his religion or that Mr. Kennedy's views conflicted with his job responsibilities and no evidence was adduced that any accommodation was requested. Accordingly, it

    cannot be found that Trawick was required to make an accommodation and failed to do so.

    Retaliation

    
    

29. In order to establish a prima facie case of retaliation, Mr. Kennedy must satisfy four requirements. He must show (1) that he engaged in a statutorily protected activity; (2) that Trawick was aware of the protected activity;

    1. that Mr. Kennedy suffered an adverse employment action; and

       
       

    2. that the adverse action was causally related to the protected activity. See Little v. United Technologies, Carrier Transicold Division, 103 F.3d 956, 959 (11th Cir. 1997) (citing Coutu v. Martin County Bd. of County Commissioners, 47 F.3d 1068, 1074 (11th Cir. 1995)).

30. Should Mr. Kennedy satisfy the requirements of a prima facie case, the McDonnell-Douglas scheme would be used to determine liability.

31. To the extent that Mr. Kennedy engaged in statutorily protected activity, he did it subsequent to his termination. His termination could not have been related to any complaint of discrimination based on religion. Accordingly, retaliation did not occur.

    Summary

    
    

32. There is no evidence, either direct or indirect, that the termination of Mr. Kennedy's employment was related to his

religious beliefs or in retaliation for the filing of a complaint. An employer may terminate an employee fairly or unfairly and for any reason or no reason at all without incurring Title VII liability unless its decision was motivated by invidious discrimination. Kossow v. St. Thomas University, Inc., 42 F. Supp. 2d 1312, 1317 (S.D. Fla. 1999) (citing Nix v.

WLCY Radio/Rahall Communications, 738 F.2d 1181, 1187 (11th Cir. 1984)). No unlawful discrimination occurred in this case.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law,

it is

RECOMMENDED that the Florida Commission on Human Relations

dismiss the complaint of Lee Dell Kennedy.

DONE AND ENTERED this 12th day of May, 2008, in Tallahassee, Leon County, Florida.

S

HARRY L. HOOPER

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 12th day of May, 2008.

COPIES FURNISHED:

Mark J. Levine

Levine & Associates, P.C.

4747 Bellaire Boulevard, Suite 500

Bellaire, Texas 77401

David Britain, Jr., Esquire Trawick Construction

1360 Post Oak Boulevard, Suite 2100

Houston, Texas 77056

Lee Dell Kennedy 747 Pecan Street

Chipley, Florida 32428

Denise Crawford, Agency Clerk

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

H. Lester McFatter, Esquire Carr Allison

305 South Gadsden Street Tallahassee, Florida 32301

Jason C. Taylor, Esquire Carr Allison

305 South Gadsden Street Tallahassee, Florida 32301

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: 07-004366

Orders for Case No: 07-004366