vs.
Respondent.
) Case No. 10-4444
Pursuant to notice, a hearing was conducted in this case before J. D. Parrish, a duly-designated Administrative Law Judge of the Division of Administrative Hearings, on September 28, 2010, in Sanford, Florida.
Whether Respondent committed the unlawful employment practice as alleged in the Petition for Relief filed with the Florida Commission on Human Relations (FCHR) and, if so, what relief should Petitioner be granted.
On December 7, 2009, Petitioner, Timothy James Faison (Petitioner), filed a Charge of Discrimination with the FCHR claiming that his former employer, Respondent, Flea World/Fun World (Respondent), had discriminated against him based on his race. According to the complaint, which contained the following discrimination statement, the most recent discrimination took place on May 17, 2009:
On May 21, 2010, following the completion of its investigation of Petitioner's complaint, the FCHR issued a Notice of Determination: No Cause, advising Petitioner that a determination had been made that "no reasonable cause exists to believe that an unlawful employment practice occurred."
Thereafter, on or about June 23, 2010, Petitioner filed a Petition for Relief. The case was forwarded to the Division of Administrative Hearings for formal proceedings on June 30, 2010.
At the hearing, Petitioner testified in his own behalf.
Respondent presented the testimony of George Schnippel, Earlene Garza, Tom Patterson, Eddie Fisher, Dottie Wetherhold, and Joseph Bryan. Respondent’s Composite Exhibit 1 was admitted into evidence. Because much of the information contained therein must be considered hearsay, it could not be considered as the basis for a finding of fact herein unless it were corroborated by testimony.
In accordance with the directions of the undersigned at the conclusion of the hearing, the parties' proposed recommended orders were to be filed within ten days of the hearing.
Petitioner filed a handwritten statement on October 8, 2010. Concurrent with the entry of this Recommended Order is a Notice of Ex-Parte Communication, as it does not appear from the document filed that Petitioner provided a copy of the handwritten document to Respondent. A transcript of the proceeding will not be filed. Respondent did not file a
proposed order.
Petitioner is a black male and is an African-American.
He was employed by Respondent in 2005 and continued his
employment until May 2009. Petitioner worked the area of the property known as “Fun World.” Petitioner was a ride attendant and was assigned to operate one of the rides available to the public in the park.
Respondent is a flea market and family amusement park, operated for the public on Highway 17-92, in Sanford, Florida. At the time of the allegations of this case, Respondent had approximately 24 employees: ten Caucasian, ten black or African-American, and four Hispanic.
Fun World has a number of rides described in the record of this case. Petitioner’s assignment varied based upon the need of the park. Petitioner was assigned to the Tilt-A-Whirl ride, at the times most pertinent to the allegations of the
case.
A series of incidents ultimately led to Petitioner
leaving employment at Fun World. First, Petitioner described an incident wherein he was in need of using the restroom. He did not see his supervisor or another ride attendant who could watch his ride, but due to his personal need, he left his station unattended. A second employee observed the unattended ride and told a company manager that Petitioner had left his ride with people waiting and, thereby, made the ride unavailable to the public. Thereafter, Petitioner and the other ride attendant, a Caucasian male, exchanged harsh words. Based upon Petitioner’s
admission of what he said, Petitioner received a warning and counseling regarding his behavior and verbal threat to the co- worker.
A second incident resulted in Petitioner's being sent home, because he attempted to clock-in late. Respondent has a strict policy that requires employees to clock-in at a designated time. If an employee is going to be late, he must call in advance of the clock-in time and advise a supervisor or manager that he will be late. On one date mentioned by Petitioner, he was on time to work, and in the general vicinity of the time clock, but was technically late to the clock-in process. Respondent sent Petitioner home and advised him he was not needed that day. Another employee was allowed to clock-in after Petitioner had been denied. That worker, a high school football player, had called in to let Respondent know he would be five minutes late. Petitioner and the football player are the same race.
Based upon what he believed was disparate treatment, Petitioner determined that Respondent’s management was “out to get him.” First, Respondent had taken the Caucasian co-worker’s side in the dispute arising from the unattended ride issue. Secondly, Respondent had allowed an employee, who was much later than he, to clock-in. Respondent’s acts regarding Petitioner’s assertions had nothing to do with Petitioner’s race.
Moreover, Petitioner’s race had nothing to do with why he ultimately left employment with Respondent. The final issue came to light after the aforementioned incidents. Respondent received a telephone tip that Petitioner was selling ride tickets off property. In theory, Petitioner failed to turn in tickets at the ride site, then pocketed tickets for resale off property.
To follow up on the allegation, Respondent audited the Tilt-A-Whirl ride tally sheets to compare the number of riders to the number of tickets turned in by Petitioner. Simply stated, Petitioner was required to keep tabs on the number of riders based upon the hour, the ride, and the type of rider (ticket holder or banded pass) before each ride started. For up to eight times per hour, the ride could be operated, and, for each ride, the designated information was to be entered on the tally sheet. At the end of the day, Petitioner was to turn in the tally sheet with his notations for all of the pertinent data.
Tickets turned in for the ride were to be placed in the ticket box. The number of tickets in the box should correspond to the tally sheet data. The ticket box was locked and was to be opened by management. Petitioner’s tickets did not match the tally sheet data.
When confronted with the discrepancy, Petitioner was given the option of leaving employment or having Respondent call in law enforcement to address the ticket discrepancy.
Petitioner clocked out and left the property. Respondent did not act based upon Petitioner’s race, but due to the fact that it was concerned that tickets were missing and unaccounted for
from Petitioner’s ride.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. §§ 120.57(1) and 760.11, Fla. Stat. (2010).
The Florida Civil Rights Act of 1992 (the Act) is codified in Sections 760.01 through 760.11, Florida Statutes (2009). "The Act, as amended, was [generally] patterned after Title VII of the Civil Rights Acts of 1964 and 1991, 42 U.S.C.
§ 2000, et seq., as well as, the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623. Federal case law interpreting [provisions of] Title VII and the ADEA is [therefore] applicable to cases [involving counterpart provisions of] the Florida Act." Florida State University v.
Sondel, 685 So. 2d 923, 925 (Fla. 1st DCA 1996); see also Joshua
v. City of Gainesville, 768 So. 2d 432, 435 (Fla. 2000) ("The [Act's] stated purpose and statutory construction directive are modeled after Title VII of the Civil Rights Act of 1964.").
The Act makes certain acts prohibited "unlawful employment practices," including those described in Section 760.10, Florida Statutes (2009), which provides:
It is an unlawful employment practice for an employer:
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.
To limit, segregate, or classify employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities, or adversely affect any individual's status as an employee, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.
It is an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of race, color, religion, sex, national origin, age, handicap, or marital status or to classify or refer for employment any individual on the basis of race, color, religion, sex, national origin, age, handicap, or marital status.
It is an unlawful employment practice for a labor organization:
To exclude or to expel from its membership, or otherwise to discriminate against, any individual because of race, color, religion, sex, national origin, age, handicap, or marital status.
To limit, segregate, or classify its membership or applicants for membership, or to classify or fail or refuse to refer for employment any individual, in any way which would deprive or tend to deprive any individual of employment opportunities, or adversely affect any individual's status as an employee or as an applicant for employment, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.
To cause or attempt to cause an employer to discriminate against an individual in violation of this section.
It is an unlawful employment practice for any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual because of race, color, religion, sex, national origin, age, handicap, or marital status in admission to, or employment in, any program established to provide apprenticeship or other training.
Whenever, in order to engage in a profession, occupation, or trade, it is required that a person receive a license, certification, or other credential, become a member or an associate of any club, association, or other organization, or pass any examination, it is an unlawful employment practice for any person to discriminate against any other person seeking such license, certification, or other credential, seeking to become a member or associate of such club, association, or other organization, or seeking to take or pass such examination, because of such other person's race, color, religion, sex, national origin, age, handicap, or marital status.
It is an unlawful employment practice for an employer, labor organization, employment agency, or joint labor-management committee to print, or cause to be printed or published, any notice or advertisement relating to employment, membership, classification, referral for employment, or apprenticeship or other training, indicating any preference, limitation, specification, or discrimination, based on race, color, religion, sex, national origin, age, absence of handicap, or marital status.
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.
Notwithstanding any other provision of this section, it is not an unlawful employment practice under ss. 760.01-760.10 for an employer, employment agency, labor organization, or joint labor-management committee to:
Take or fail to take any action on the basis of religion, sex, national origin, age, handicap, or marital status in those certain instances in which religion, sex, national origin, age, absence of a particular handicap, or marital status is a bona fide occupational qualification reasonably necessary for the performance of the particular employment to which such action or inaction is related.
Observe the terms of a bona fide seniority system, a bona fide employee benefit plan such as a retirement, pension, or insurance plan, or a system which
measures earnings by quantity or quality of production, which is not designed, intended, or used to evade the purposes of ss. 760.01-
760.10. However, no such employee benefit plan or system which measures earnings shall excuse the failure to hire, and no such seniority system, employee benefit plan, or system which measures earnings shall excuse the involuntary retirement of, any individual on the basis of any factor not related to the ability of such individual to perform the particular employment for which such individual has applied or in which such individual is engaged. This subsection shall not be construed to make unlawful the rejection or termination of employment when the individual applicant or employee has failed to meet bona fide requirements for the job or position sought or held or to require any changes in any bona fide retirement or pension programs or existing collective bargaining agreements during the life of the contract, or for 2 years after October 1, 1981, whichever occurs first, nor shall this act preclude such physical and medical examinations of applicants and employees as an employer may require of applicants and employees to determine fitness for the job or position sought or held.
Take or fail to take any action on the basis of age, pursuant to law or regulation governing any employment or training program designed to benefit persons of a particular age group.
Take or fail to take any action on the basis of marital status if that status is prohibited under its antinepotism policy.
This section shall not apply to any religious corporation, association, educational institution, or society which conditions opportunities in the area of employment or public accommodation to members of that religious corporation,
association, educational institution, or society or to persons who subscribe to its tenets or beliefs. This section shall not prohibit a religious corporation, association, educational institution, or society from giving preference in employment to individuals of a particular religion to perform work connected with the carrying on by such corporations, associations, educational institutions, or societies of its various activities.
Each employer, employment agency, and labor organization shall post and keep posted in conspicuous places upon its premises a notice provided by the commission setting forth such information as the commission deems appropriate to effectuate the purposes of ss. 760.01-760.10.
The Act gives the FCHR the authority to issue an order prohibiting the practice, and providing affirmative relief from the effects of the practice, including back pay, if it finds, following an administrative hearing, that an unlawful employment practice has occurred. See § 760.11, Fla. Stat. (2009). To obtain relief from the FCHR, a person who claims to have been the victim of an "unlawful employment practice" must, "within
365 days of the alleged violation," file a complaint ("contain[ing] a short and plain statement of the facts describing the violation and the relief sought") with the FCHR.
§ 760.11(1), Fla. Stat. (2009). It is concluded that Petitioner filed a complaint within the statutory time limitation.
Petitioner's complaint alleged that he was subjected to disparate terms and conditions, since he was treated
differently from his white co-worker. Petitioner alleges first that while he was sanctioned for threatening the co-worker, when the co-worker similarly threatened Petitioner, nothing was done. Secondly, Petitioner claimed that he was not allowed to clock-in late, but that another presumably preferred co-worker was permitted to do so. Finally, Petitioner asserted he was
wrongly-terminated, unfairly accused of stealing tickets from the ride he operated, and that such action was because of his race. As each claim may stand alone as a basis for discriminatory conduct, each claim is addressed individually.
It is concluded that Petitioner was not subjected to disparate terms and conditions of his employment. Petitioner admitted to making threatening comments to his co-worker, for which he was disciplined. As to the threats the co-worker allegedly made toward Petitioner, Respondent did not take action against the white co-worker as there was no credible proof of the threat, such as a confession.
As to the clock-in incident, it is concluded that Petitioner was not subjected to disparate conditions of employment, as the young man who was allowed to clock-in late had called management and advised he would be five minutes late. The young man, also black, was given the benefit of being allowed to clock-in as all employees were. Petitioner was late to the time clock and was not allowed to clock-in, in accordance
with the company policy; and had nothing to do with Petitioner’s race. If Petitioner were disliked and not given special treatment (such as being allowed to clock-in late), it was more likely due to the disruptive influence Petitioner had on the work environment; i.e. the recent history of threatening a
co-worker.
Finally, with regard to Petitioner’s termination.
There is no evidence that the ticket incident was racially motivated. Petitioner’s ticket box was audited, and the ticket number compared with the ride tally sheet Petitioner had prepared. The count did not match. Moreover, it was not even close. Petitioner was given the option of clocking out and leaving the job or Respondent would contact the local authorities to have them investigate an alleged theft.
Petitioner clocked out, left the premises, and Respondent treated the departure as a resignation of sorts. Petitioner has not been charged with stealing the tickets, and no conclusion is reached herein that he did, in fact, steal the tickets.
Instead, it is concluded that Respondent’s act in auditing the ticket box and giving Petitioner the option of leaving was not racially based. Respondent employs persons without consideration of race, and nothing in this record establishes Petitioner was treated differently based upon his race.
Further, Petitioner did not establish that he was replaced by
someone in a “preferred race.” At best, Petitioner established that he and management were not always on the same page, as to Petitioner’s conduct.
Petitioner has the burden of proving the allegations asserted. "Discriminatory intent may be established through direct or indirect circumstantial evidence." Johnson v.
Hamrick, 155 F. Supp. 2d 1355, 1377 (N.D. Ga. 2001).
"Direct evidence is evidence that, if believed, would prove the existence of discriminatory intent without resort to inference or presumption." See Wilson v. B/E Aero., Inc., 376 F.3d 1079, 1086 (11th Cir. 2004) ("Direct evidence is 'evidence, that, if believed, proves [the] existence of [a] fact without inference or presumption.'"). "If the [complainant] offers direct evidence, and the trier of fact accepts that evidence, then the [complainant] has proven discrimination." Maynard v. Board of Regents, 342 F.3d 1281, 1289 (11th Cir. 2003). In this case, the Petitioner failed to prove discrimination either by direct or indirect evidence. He proved he is a black, African- American, but little else.
Moreover, although victims of discrimination may be "permitted to establish their cases through inferential and circumstantial proof," Petitioner similarly failed to present credible inferential or circumstantial proof. See Kline v. Tennessee Valley Authority, 128 F.3d 337, 348 (6th Cir. 1997).
Had Petitioner established circumstantial evidence of discrimination, the burden would have shifted to the Respondent to articulate a legitimate, non-discriminatory reason for its action. In this case, although not required to do so, Respondent addressed each of Petitioner’s claims: the threat from the co-worker was explained; the clock-in incident was explained; and the termination claim was explained. None of the incidents complained of was racially motivated. Moreover, all had explanations that cannot be deemed a pretext. If the employer successfully articulates a reason for its action, then the burden shifts back to the complainant to establish that the proffered reason was a pretext for the unlawful discrimination. See Malu v. City of Gainesville, 270 Fed. Appx. 945, 2008 U.S. App. LEXIS 6775 (11th Cir. 2008). In this case, the persuasive evidence established that Petitioner was not terminated for theft. Petitioner walked off the job when confronted with the option of leaving or having authorities check into the ticket allegation. No one forced Petitioner off the job. Petitioner did not establish that anyone treated him differently based upon his race or national origin.
In light of the foregoing, Petitioner's employment discrimination complaint must be dismissed.
RECOMMENDED that the Florida Commission on Human Relations issue a final order finding no cause for an unlawful employment practice as alleged by Petitioner, and dismissing his employment discrimination complaint.
DONE AND ENTERED this 15th day of November, 2010, in Tallahassee, Leon County, Florida.
J. D. PARRISH
Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 2010.
Timothy J. Faison
Larry Kranert, 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.
