STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

This cause came on for final hearing before Harry L. Hooper, Administrative Law Judge with the Division of Administrative Hearings, on January 7, 2009, in Shalimar,

Florida.

APPEARANCES

For Petitioner: Patrick McLaughlin, pro se

748 Amos Street

Crestview, Florida 32539

For Respondent: Jason Eric Vail, Esquire

Allen, Norton & Blue

906 North Monroe Street, Suite 100

Tallahassee, Florida 32303 STATEMENT OF THE ISSUE

The issue is whether Petitioner has been the subject of an unlawful employment practice pursuant to Chapter 760, Florida Statutes.

PRELIMINARY STATEMENT

Petitioner, Patrick McLaughlin (Mr. McLaughlin), filed an Employment Complaint of Discrimination (Complaint) with the Florida Commission on Human Relations (Commission) on

November 5, 2007. The Complaint alleged that the City of Crestview, Florida, (City) discriminated against him because of his race. Specifically, it alleged that he was the subject of disparate treatment when compared to others who were not of his race.

On April 24, 2008, the Commission entered a Notice of Determination: No Cause. Subsequently, Mr. Laughlin filed a Petition for Relief with the Commission. The Petition for Relief was transmitted to the Division of Administrative Hearings and filed May 30, 2008. It was set for hearing on September 25, 2008. On September 22, 2008, Mr. McLaughlin requested a continuance, which was granted, and the hearing was rescheduled for December 2, 2008. The hearing was rescheduled, sua sponte, for January 7, 2009, by the administrative law judge, and heard as scheduled.

At the hearing, Petitioner testified on his own behalf and offered seven exhibits into evidence. Respondent presented the testimony of four witnesses and offered three exhibits into evidence.

A Transcript was filed on February 4, 2009. After the hearing, Petitioner filed his Proposed Recommended Order on January 20, 2009. Respondent filed its Post-hearing Submittal on February 16, 2009.

References to statutes are to Florida Statutes (2007) unless otherwise noted.

FINDINGS OF FACT

1. Respondent is a municipal corporation under the laws of the State of Florida. It provides many public services to its citizens, including the provision of beautification on city rights-of-way and parks. The City's Public Works Department operates the Crestview Beautification Crew (CBC) that provides maintenance for public areas.

2. Mr. McLaughlin is an African-American. He applied for a position as an equipment operator with the CBC in May 2007. The Assistant Director of Public Works, Wayne Steele, a Caucasian man, interviewed Mr. McLaughlin. Mr. Steele also made inquiry and learned that Mr. McLaughlin had some negative experiences with his driver's license. Mr. Steele also learned that Mr. McLaughlin had attendance and attitude problems at his previous place of employment. Mr. Steele believed that

   Mr. McLaughlin would not be a good hire and recommended that he not be employed.

3. Despite the recommendation, General Cox, a Caucasian man and the City of Crestview Director of Public Works, decided to hire Mr. McLaughlin. Mr. Cox believed Mr. McLaughlin should be given a second chance.

4. Mr. McLaughlin commenced employment with the City's CBC on June 20, 2007. He was initially hired on a probationary basis for 90 days just like all City employees. During the probationary period an employee's supervisor is given the opportunity to observe his or her performance. If the performance is deficient, the supervisor may terminate the employee. An employee terminated during a probationary period has no right to contest the action at a hearing.

5. Mr. McLaughlin was provided a copy of the City's personnel manual and signed a statement affirming that he understood the conditions of his probationary employment. Because of his history of attendance problems at his previous job, Mr. McLaughlin was expressly advised by Mr. Vance, his supervisor, that tardiness would not be tolerated.

6. Mr. McLaughlin was hired as an equipment operator and as such mowed grass, operated a weed eater, and engaged in basic landscaping tasks. At daily meetings held at 7:00 a.m., crew assignments in the CBC are made. It is important for all CBC members to be present at these meetings so that everyone is aware of their daily mission. Attendance is critical during

   these meetings. If employees are absent the daily routine is disrupted and substitutions must be made.

7. Mr. McLaughlin was tardy on a number of occasions.

   
   

   This tardiness amounted to simply arriving a few minutes late for the crew meeting. On at least two occasions, he called in saying that he could not attend work as scheduled.

8. Mr. McLaughlin also had problems performing his duties.

   
   

   He was rough on his assigned equipment which resulted in a damaged mower deck, broken belts, and broken wheels. The damage occurred because he mowed over objects and struck objects with his mower that he should have bypassed.

9. Mr. McLaughlin presented no evidence that another similarly situated person of a different race was treated differently from him. The only asserted evidence of discrimination came from his conversations with a co-equal worker and friend, and the language they used with one another indicated that any racial slurs made, if they were in fact made, were made as permissible jests.

10. Mr. McLaughlin never complained of racial bias to his superiors. A crew leader with whom he worked, Kenneth Martin, an African-American, stated that he never heard any racial remarks made in the presence of Mr. McLaughlin and noted that Mr. McLaughlin never complained to him about any real or imagined discrimination.

11. All supervisors in Mr. McLaughlin's chain of command agreed with the decision to terminate him on August 8, 2008. The decision was made because of Mr. McLaughlin's pattern of tardiness and because of his poor performance while operating the equipment. The record is void of any evidence of racial discrimination against Mr. McLaughlin by any employee of the City.

    CONCLUSIONS OF LAW

    
    

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

13. Subsection 760.02(1), Florida Statutes, states that the "Florida Civil Rights Act of 1992" (the Act) comprises Sections 760.01 through 760.11, and 509.092, Florida Statutes.

14. Pursuant to Subsection 760.10(1), Florida Statutes, it is an unlawful employment practice for an employer to discharge, refuse to hire, or otherwise discriminate against an individual on the basis of race.

15. The Act is patterned after Title VII of the Federal Civil Rights Act, 42 U.S.C. Section 2000e et seq. Federal case law interpreting Title VII is applicable to cases arising under the Act. See Florida Department of Community Affairs v. Bryant,

    586 So. 2d 1205 (Fla. 1st DCA 1991) and School Board of Leon County v. Weaver, 556 So. 2d 443 (Fla. 1st DCA 1990).

16. Racial discrimination, generally, may be proven by evidence of a hostile work environment or by proof of disparate treatment.

17. A hostile work environment claim is established upon proof that "'the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'" Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, (1998)). To establish a hostile work environment claim, an appellant must show:

    1. that he belongs to a protected group;

       
       

    2. that he has been subject to unwelcome harassment;

       
       

    3. that the harassment must have been based on a protected characteristic of the employee, such as race;

       
       

    4. That the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment; and

       
       

       
       

       Id.

    5. that the employer is responsible for such environment under either a theory of vicarious or of direct liability.

       
       

18. No evidence of a hostile work environment was adduced.

19. With regard to disparate treatment, Mr. McLaughlin could meet his burden of proof by using (1) direct evidence; (2) circumstantial proof; or (3) statistical proof. Mr. McLaughlin provided nothing that would support statistical proof or direct evidence of discrimination. Therefore, the only possible proof available is proof through circumstantial evidence.

20. To prove racial discrimination by disparate treatment when there is an absence of direct evidence, Mr. McLaughlin must proceed using the McDonnell Douglas framework to establish a prima facie case. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

21. To prove a prima facie case, Mr. McLaughlin must prove that: (1) he is a member of a protected class; (2) he was subjected to an adverse employment action; (3) he was treated differently than a similarly situated employee of a different race; and (4) he was qualified for the position.

22. Mr. McLaughlin established that he was a member of a protected class, African-American; and that he was subjected to an adverse employment action, termination.

23. Mr. McLaughlin did not, however, establish that he was treated differently than a similarly situated employee of a different race. Mr. McLaughlin did not name any "comparator" or provide any information that might indicate any person was

    treated differently than he. Therefore, Mr. McLaughlin could not demonstrate disparate treatment.

24. Furthermore, Mr. McLaughlin was not qualified for the position he held. He was rough on the equipment he was assigned to operate and damaged it on more than one occasion. A qualified operator would have carried out his mowing responsibilities without damaging the mower.

25. If, in the face of all evidence to the contrary, one were to find that a prima facie case had been made, the City demonstrated beyond any doubt that its actions were taken for reasons that had nothing to do with racial discrimination.

Mr. McLaughlin was unable to demonstrate that the nondiscriminatory reasons posited by the City were pretextual.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law,

it is

RECOMMENDED that the Florida Commission on Human Relations

dismiss the Petition for Relief filed by Patrick McLaughlin.

DONE AND ENTERED this 4th day of March, 2009, 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

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 2009.

COPIES FURNISHED:

Denise Crawford, Agency Clerk

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Jason Eric Vail, Esquire Allen, Norton & Blue

906 North Monroe Street, Suite 100

Tallahassee, Florida 32303

Patrick McLaughlin 748 Amos Street

Crestview, Florida 32539

Larry Kranert, 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: 08-002621

Orders for Case No: 08-002621