STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

YDIELODE LUBIN, )

)

Petitioner, )

)

vs. ) Case No. 10-8899

)

AMERICAN CITADEL GUARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case pursuant to Sections 120.569 and 120.57(1), Florida Statutes,1 before Stuart M. Lerner, a duly-designated administrative law judge of the Division of Administrative Hearings (DOAH), on November 16, 2010, by video teleconference at sites in Orlando and Tallahassee, Florida.

APPEARANCES

For Petitioner: Ydielode Lubin, pro se

4939 Raleigh Street, Apartment 7

Orlando, Florida 32811

For Respondent: Jody Tada

Human Resource Director American Citadel Guard 6030 Unity Drive, Suite G Norcross, Georgia 30071

STATEMENT OF THE ISSUE

Whether Respondent committed the unlawful employment practice alleged in the Charge of Discrimination filed with the Florida Commission on Human Relations (FCHR) and, if so, what relief should Petitioner be granted.

PRELIMINARY STATEMENT

On or about February 2, 2010, Petitioner filed a Charge of Discrimination (Complaint) with the FCHR, alleging that Respondent had unlawfully, based on his race (black) and national origin (Haitian), terminated his employment as a Site Supervisor with the company. His Complaint contained the following "particulars":

1. I am Black. I am Haitian. I was employed by the above named Respondent [American Citadel Guard] from September 03, 2008, until December 29, 2009, as a Security Site Supervisor. During my employment, I have never had any performance problems and have always received favorable evaluations. On December 25, 2009, I had an employee involved in an accident with a golf cart. I reported the incident to Operations Manager Alex Potempa (White Hispanic). On December 29, 2009, after a meeting to discuss the incident, I was informed by Supervisor Site Manager Luis (White Hispanic) (LNU), that I was being terminated per Mr. Potempa's instructions.

   
   

2. No reason was given for the above named actions.

   
   

3. I believe that I have been discriminated against on the basis of my Race/Black and National Origin/Haitian, in

violation of Title VIII of the Civil Rights Act of 1964, as amended.

On August 3, 2010, the FCHR, following the completion of its investigation of the Complaint, issued a Notice of Determination: No Cause. Thereafter, Petitioner, on September 1, 2010, filed with the FCHR a Petition for Relief.

On September 3, 2010, the FCHR referred the matter to DOAH for the assignment of a DOAH administrative law judge to "conduct all necessary proceedings required under the law and submit recommended findings to the [FCHR]."

As noted above, the final hearing in this case was held before the undersigned on November 16, 2010. Two witnesses (Petitioner and Jody Tada, Respondent's Human Resources Director) testified at the hearing. In addition, three exhibits (Respondent's Exhibits 1 through 3) were offered and received into evidence. There was no court reporter present at either the Orlando or Tallahassee site during the hearing, and no transcript of the hearing has been prepared.2

At the close of the evidentiary portion of the hearing, the undersigned, on the record, set a December 6, 2010, deadline for the filing of proposed recommended orders. As of the date of this Recommended Order, neither party has filed a proposed recommended order.

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made:

1. Respondent (ACG) is a provider of contract security guard services. Its clients include FedEx and other shipping companies.

2. A critical responsibility of the ACG Security Guards stationed at these shipping companies' sites is "verifying all seal numbers & trailer numbers, against [the] manifest" in order "to make sure the correct shipment goes out with the correct trailer." When a trailer leaves the site with the wrong shipment (which ACG refers to as a "mispull"), ACG is obligated to compensate the client for monetary damages the client suffers as a result of the "mispull."

3. Site Supervisors are responsible for the performance of the Security Guards working at their site. It is ACG policy, where there are repeated incidents of Security Guard nonfeasance at a site, to take disciplinary action against the Site Supervisor.

4. Site Supervisors, in addition to having supervisory obligations, also must perform security guard functions at their assigned sites.

5. Petitioner is a black Haitian. He was employed by ACG as a Site Supervisor from August 13, 2006, until December 2009.

   
   

   He supervised two sites during his employment with ACG: the FedEx Freight site in Medley, Florida (until September 3, 2008), and the FedEx National site in Orlando, Florida (thereafter).

6. Petitioner worked under the supervision of three successive Operations Managers: Sheila Doyle (who was fired in October 2008), then Clarence Dorm, and finally Alex Potempa.

7. Mr. Potempa, who was Petitioner's supervisor at the time Petitioner left ACG's employ, has supervisory authority over Site Supervisors and Security Guards in ten east coast states, including Florida.

8. In addition to the FedEx Freight site in Medley and the FedEx National site in Orlando, there are two other sites in the central and southeast part of the state at which ACG is providing contract security guard services (under Mr. Potempa's supervision) to shipping company clients: the SouthEast Freight site in West Palm Beach, and the FedEx National site in Delray Beach. As of April 5, 2010, working at these four sites was a total of 15 ACG employees, of which all but one were black. Six of the black employees were of Haitian national origin, and one of these six employees was a Site Supervisor (of the SouthEast Freight site).

9. Over approximately a three-month period from October 2009, to December 2009, there were four separate incidents where a Security Guard under Petitioner's supervision at the FedEx

   
   

   National site was, in the opinion of Mr. Potempa, guilty of dereliction of duty. These incidents were: a "mispull" in late October; another "mispull" in late December; a Security Guard not being at his post, in late December, when a FedEx representative sought to access the site; and a Security Guard being involved, in late December, in an "at fault" accident while riding on an ACG golf cart on the site.

10. In accordance with the ACG policy described in Finding of Fact 3, Petitioner was removed from his Site Supervisor position because of these incidents. This disciplinary action was recommended by Mr. Potempa and approved by ACG's Regional Vice President, Jeff Darley.

11. Petitioner was offered the opportunity to remain with ACG in a non-supervisory, Security Guard position, but he declined the offer.

    CONCLUSIONS OF LAW

    
    

12. The Florida Civil Rights Act of 1992 (Act) is codified in Sections 760.01 through 760.11, Florida Statutes, and Section 509.092, Florida Statutes.

13. "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 n.1 (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."); Valenzuela v. GlobeGround North

    America, LLC, 18 So. 3d 17, 21 (Fla. 3d DCA 2009)("Because the FCRA is patterned after Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-2000e-17, we look to federal case law."); City of Hollywood v. Hogan, 986 So. 2d 634, 641 (Fla. 4th DCA 2008)("Federal case law interpreting Title VII and the ADEA applies to cases arising under the [Act]."); and School Board of Leon County v. Hargis, 400 So. 2d 103, 108 n.2 (Fla. 1st DCA 1981)("Florida's job discrimination statute is patterned on Title VII of the Civil Rights Act of 1964, 42

    U.S.C. § 2000e-2.").

    
    

14. Among other things, the Act makes certain acts "unlawful employment practices" and gives the FCHR the authority, if it finds following an administrative hearing conducted pursuant to Sections 120.569 and 120.57, Florida Statutes, that such an "unlawful employment practice" has occurred, to issue an order "prohibiting the practice and providing affirmative relief from the effects of the practice, including back pay."3 §§ 760.10 and 760.11(6), Fla. Stat.

    
    

15. To obtain such 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, the EEOC, or "any unit of government of the state which is a fair-employment-practice agency under 29 C.F.R. ss. 1601.70- 1601.80." § 760.11(1), Fla. Stat. This 365-day period within which a complaint must be filed is a "limitations period" that can be "be equitably tolled, but . . . only [based on the] acts or circumstances . . . enumerated in section 95.051," Florida Statutes. Greene v. Seminole Electric Co-op., Inc., 701 So. 2d 646, 648 (Fla. 5th DCA 1997).

16. "[T]o prevent circumvention of the [FCHR's] investigatory and conciliatory role, only those claims that are fairly encompassed within a [timely-filed complaint] can be the subject of [an administrative hearing conducted pursuant to Sections 120.569 and 120.57, Florida Statutes]" and any subsequent FCHR award of relief to the complainant. Chambers v. American Trans Air, Inc., 17 F.3d 998, 1003 (7th Cir. 1994).

17. In the instant case, Petitioner alleged in the Charge of Discrimination that he filed with the FCHR on or about February 2, 2010, that ACG discriminated against him on the

    
    

    basis of his race (black) and national origin (Haitian) when it terminated his employment with the company.

18. To remove an employee from his or her position because of the employee's race or national origin, as Petitioner claims ACG has done in the instant case, is an "unlawful employment practice" in violation of Section 760.10(1)(a), which provides as follows:

    It is an unlawful employment practice for an employer:[4]

    
    

    1. 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.

       
       

19. Petitioner had the burden of proving, at the administrative hearing held in this case, that he was the victim of such discriminatorily motivated action. See Department of

    Banking and Finance Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932, 934 (Fla. 1996)("'The general rule is that a party asserting the affirmative of an issue has the burden of presenting evidence as to that issue.'"); Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So. 2d 412, 414 (Fla. 4th DCA 1974)("[T]he burden of proof is 'on the party asserting the affirmative of an issue before an

    
    

    administrative tribunal.'"); and Mack v. County of Cook, 827 F. Supp. 1381, 1385 (N.D. Ill. 1993)("To prevail on a racially- based discriminatory discharge claim under Title VII, Mack must prove that she was a victim of intentional discrimination.").

20. "Discriminatory intent may be established through direct or indirect circumstantial evidence." Johnson v.

    Hamrick, 155 F. Supp. 2d 1355, 1377 (N.D. Ga. 2001); see also United States Postal Service Board of Governors v. Aikens, 460

    U.S. 711, 714 (1983)("As in any lawsuit, the plaintiff [in a Title VII action] may prove his case by direct or circumstantial evidence. The trier of fact should consider all the evidence, giving it whatever weight and credence it deserves.").

21. "Direct evidence is evidence that, if believed, would prove the existence of discriminatory intent without resort to inference or presumption." King v. La Playa-De Varadero Restaurant, No. 02-2502, slip op. at 15 n.9 (Fla. DOAH February 19, 2003)(Recommended Order); see also 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).

    
    

22. "[D]irect evidence is composed of 'only the most blatant remarks, whose intent could be nothing other than to discriminate [or retaliate]' on the basis of some impermissible factor. . . . If an alleged statement at best merely suggests a discriminatory motive, then it is by definition only circumstantial evidence." Schoenfeld v. Babbitt, 168 F.3d 1257, 1266 (11th Cir. 1999). Likewise, a statement "that is subject to more than one interpretation . . . does not constitute direct evidence." Merritt v. Dillard Paper Co., 120 F.3d 1181, 1189 (11th Cir. 1997).

23. "[D]irect evidence of intent is often unavailable." Shealy v. City of Albany, Ga., 89 F.3d 804, 806 (11th Cir. 1996). For this reason, those who claim to be victims of intentional discrimination "are permitted to establish their cases through inferential and circumstantial proof." Kline v. Tennessee Valley Authority, 128 F.3d 337, 348 (6th Cir. 1997).

24. Where a complainant attempts to prove intentional discrimination using circumstantial evidence, the "shifting burden framework established by the [United States] Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.Ed.2d 668 (1973) and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d

    207 (1981)" is applied. "Under this framework, the [complainant] has the initial burden of establishing a prima

    
    

    facie case of discrimination. If [the complainant] meets that burden, then an inference arises that the challenged action was motivated by a discriminatory intent. The burden then shifts to the employer to 'articulate' a legitimate, non-discriminatory reason for its action. If the employer successfully articulates such a reason, then the burden shifts back to the [complainant] to show that the proffered reason is really pretext for unlawful discrimination." Schoenfeld v. Babbitt, 168 F.3d at 1267 (citations omitted.).

25. "The analysis of pretext focuses only on what the decisionmaker, and not anyone else, sincerely believed." Little v. Illinois Department of Revenue, 369 F.3d 1007, 1015 (7th Cir. 2004); see also Schaffner v. Glencoe Park District, 256 F.3d 616, 622 (7th Cir. 2001)("[T]he issue is not whether Schaffner worked well with others, but whether the Park District honestly believed that she did not. In order to rebut the Park District's articulated reason, Schaffner must present evidence that it did not believe its own assessment. The

    affidavits of parents and of Schaffner's coworkers simply do not contradict whether the Park District honestly believed Schaffner worked well with others. . . . Because Schaffner did not present any evidence to contradict the Park District's honest, albeit possibly mistaken belief (as opposed to the underlying truth of that belief), she may not overcome the Park District's

    
    

    second articulated reason for not promoting her."); Komel v. Jewel Cos., 874 F.2d 472, 475 (7th Cir. 1989)("[T]he fact that the employee takes issue in general terms with the employer's overall evaluation is not sufficient to create a triable issue on pretext. As we have recently stated, the employee's 'own self-interested assertions [even where accompanied by the conclusory statements of a co-worker] concerning her abilities are not in themselves sufficient to raise a genuine issue of material fact.'"); Smith v. Flax, 618 F.2d 1062, 1067 (4th Cir. 1980)("Smith, of course, testified that he had versatility, and that his competence as an analyst was not confined to the field of logistics. Smith's perception of himself, however, is not relevant. It is the perception of the decision maker which is relevant."); and Breunlin v. Village of Oak Park, No. 07 C 4627, 2008 U.S. Dist. LEXIS 34924 *11-12 (N.D. Ill. Apr. 29,

    2008)("What Breunlin supposedly believed is irrelevant to demonstrating that the Village's proffered reason for Breunlin's termination--the Village Manager's lack of confidence in her abilities--is not pretextual. The only relevant inquiry is whether the employer (the Village) honestly believed the reason it offers.").

26. "Although the intermediate burdens of production shift back and forth, the ultimate burden of persuading the trier of fact that the employer intentionally discriminated against the

    
    

    [complainant] remains at all times with the [complainant]." EEOC v. Joe's Stone Crabs, Inc., 296 F.3d 1265, 1273 (11th Cir. 2002); see also Byrd v. BT Foods, Inc., 948 So. 2d 921, 927 (Fla. 4th DCA 2007)("The ultimate burden of proving intentional discrimination against the plaintiff remains with the plaintiff at all times."); and Brand v. Florida Power Corp., 633 So. 2d 504, 507 (Fla. 1st DCA 1994)("Whether or not the defendant satisfies its burden of production showing legitimate, nondiscriminatory reasons for the action taken is immaterial insofar as the ultimate burden of persuasion is concerned, which remains with the plaintiff.").

27. Where the administrative law judge does not halt the proceedings "for lack of a prima facie case and the action has been fully tried, it is no longer relevant whether the [complainant] actually established a prima facie case. At that point, the only relevant inquiry is the ultimate, factual issue of intentional discrimination. . . . [W]hether or not [the complainant] actually established a prima facie case is relevant only in the sense that a prima facie case constitutes some circumstantial evidence of intentional discrimination." Green

    v. School Board of Hillsborough County, 25 F.3d 974, 978 (11th Cir. 1994)(citation omitted); see also Aikens, 460 U.S. at 713- 715 ("Because this case was fully tried on the merits, it is surprising to find the parties and the Court of Appeals still

    
    

    addressing the question whether Aikens made out a prima facie case. We think that by framing the issue in these terms, they have unnecessarily evaded the ultimate question of discrimination vel non. . . . [W]hen the defendant fails to persuade the district court to dismiss the action for lack of a prima facie case, and responds to the plaintiff's proof by offering evidence of the reason for the plaintiff's rejection [as a candidate for promotion], the factfinder must then decide whether the rejection was discriminatory within the meaning of Title VII. At this stage, the McDonnell-Burdine presumption 'drops from the case,' and 'the factual inquiry proceeds to a new level of specificity.' After Aikens presented his evidence to the District Court in this case, the Postal Service's witnesses testified that he was not promoted because he had turned down several lateral transfers that would have broadened his Postal Service experience. The District Court was then in a position to decide the ultimate factual issue in the case. . . .

    Where the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant. The district court has before it all the evidence it needs to decide whether 'the defendant intentionally discriminated against the plaintiff.'")(citation omitted); Wallace v.

    Louisiana Board of Supervisors for the Louisiana State

    
    

    University Agricultural & Mechanical College, 364 Fed. Appx. 902 (5th Cir. 2010)("Because this case was tried on the merits, we are not concerned with the adequacy of the parties' showing under McDonnell Douglas and instead review the district court's finding on the ultimate factual issue of discrimination vel non for clear error."); Beaver v. Rayonier, Inc., 200 F.3d 723, 727 (11th Cir. 1999)("As an initial matter, Rayonier argues it is entitled to judgment as a matter of law because Beaver failed to establish a prima facie case. That argument, however, comes too late. Because Rayonier failed to persuade the district court to dismiss the action for lack of a prima facie case and proceeded to put on evidence of a non-discriminatory reason--i.e., an economically induced RIF--for terminating Beaver, Rayonier's attempt to persuade us to revisit whether Beaver established a prima facie case is foreclosed by binding precedent."); and Carmichael v. Birmingham Saw Works, 738 F.2d 1126, 1129 (11th Cir. 1984)("The plaintiff has framed his attack on the trial court's findings largely in terms of whether the plaintiff made out a prima facie case of discrimination. We are mindful, however, of the Supreme Court's admonition that when a disparate treatment case is fully tried, as this one was, both the trial and the appellate courts should proceed directly to the 'ultimate question' in the case: 'whether the defendant intentionally discriminated against the plaintiff.'").

    
    

28. The instant case was "fully tried," with Petitioner and ACG having both presented evidence.

29. While Petitioner may sincerely believe that ACG acted with anti-black and anti-Haitian animus in removing Petitioner from his Site Supervisor position with the company, a review of the evidentiary record reveals no persuasive proof to support a finding that ACG engaged in such discriminatory conduct.5 See Lizardo v. Denny's, Inc., 270 F.3d 94, 104 (2d Cir. 2001)("[A] jury cannot infer discrimination from thin air."); Byers v.

    Dallas Morning News, Inc., 209 F.3d 419, 427 (5th Cir. 2000)("Byers has failed to produce any direct evidence of discriminatory intent by Brown or TDMN or sufficient evidence indirectly demonstrating discriminatory intent. Instead, Byers urges this Court to rely on his subjective belief that Brown discriminated against him because he was white. This Court will not do so."); Mitchell v. Toledo Hospital, 964 F.2d 577, 585 (6th Cir. 1992)("Even if the Court were to consider the Affidavit, the statements contained therein are nothing more than rumors, conclusory allegations and subjective beliefs which are wholly insufficient evidence to establish a claim of discrimination as a matter of law."); Little v. Republic Refining Co., Ltd., 924 F.2d 93, 96 (5th Cir. 1991)("Little points to his own subjective belief that age motivated Boyd. An age discrimination plaintiff's own good faith belief that his

    
    

    age motivated his employer's action is of little value."); Elliott v. Group Medical & Surgical Service, 714 F.2d 556, 567 (5th Cir. 1983)("We are not prepared to hold that a subjective belief of discrimination, however genuine, can be the basis of judicial relief."); and Shiflett v. GE Fanuc Automation, 960 F. Supp. 1022, 1031 (W.D. Va. 1997)("[A]ll too many leaps and unjustifiable inferences must be made before one can reasonably conclude that any causal connection exists between plaintiff's termination and his disability. Nothing in the record, apart from plaintiff's private speculation, provides any reason to believe there is such a connection. But '[m]ere unsupported speculation, such as this, is not enough to defeat a summary judgment motion.'").

30. In light of the foregoing, Petitioner's Charge of Discrimination must be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Florida Commission on Human Relations issue a final order finding American Citadel Guard not guilty of the unlawful employment practice alleged by Petitioner and dismissing Petitioner's Charge of Discrimination.

DONE AND ENTERED this 13th day of December, 2010, in Tallahassee, Leon County, Florida.

S

STUART M. LERNER

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 13th day of December, 2010.

ENDNOTES

1 All references to Florida Statutes in this Recommended Order are to Florida Statutes (2010).

2 The Amended Notice of Hearing contained the following advisement:

Notwithstanding the requirements of Section 120.57(1)(g), Florida Statutes, and Florida Administrative Code Rule 28-106.214, the Florida Commission on Human Relations has ceased providing a court reporter to preserve the testimony at a final hearing. Although the Judge may use a tape recorder at the hearing to assist the Judge in preparation of the recommended order following the hearing, that recording is not expected to suffice for preparation of the transcript required for filing exceptions to the recommended order or for any subsequent appeal. If any party to this proceeding intends to provide a certified court

reporter to record the final hearing at that party's own expense so that there can be an official transcript, that party shall advise all other parties and the Judge no later than 48 hours prior to the final hearing.

Neither party provided a "certified court reporter to record the final hearing."

3 The FCHR, however, has no authority to award monetary relief for non-quantifiable damages. See City of Miami v. Wellman, 976 So. 2d 22, 27 (Fla. 3d DCA 2008)("[N]on-quantifiable

damages . . . are uniquely within the jurisdiction of the courts."); and Simmons v. Inverness Inn, No. 93-2349, 1993 Fla. Div. Adm. Hear. LEXIS 5716 *4-5 (Fla. DOAH October 27, 1993)(Recommended Order)("In this case, petitioner does not claim that she suffered quantifiable damages, that is, damages arising from being terminated from employment, or from being denied a promotion or higher compensation because of her race. Rather, through argument of counsel she contends that she suffered pain, embarrassment, humiliation, and the like (non- quantifiable damages) because of racial slurs and epit[he]ts made by respondents. Assuming such conduct occurred, however, it is well-settled in Florida law that an administrative agency (as opposed to a court) has no authority to award money damages. See, e. g., Southern Bell Telephone & Telegraph Co. v. Mobile America Corporation, Inc., 291 So. 2d 199 (Fla. 1974); State, Dept. of General Services v. Biltmore Construction Co., 413 So. 2d 803 (Fla. 1st DCA 1982); Laborers International Union of N.A., Local 478 v. Burroughs, 541 So. 2d 1160 (Fla. 1989). This being so, it is concluded that the Commission cannot grant the requested relief, compensatory damages.").

4 An "employer," as that term is used in the Act, is defined in Section 760.02(7), Florida Statutes, as "any person employing 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such a person."

5 For instance, there is no record evidence of any statement having been made by anyone above Petitioner in the chain of command suggesting an anti-black or anti-Haitian bias on the part of that person, nor does the record contain any evidence of a similarly situated non-black or non-Haitian Site Supervisor having been treated more favorably by ACG than was Petitioner.

COPIES FURNISHED:

Ydielode Lubin

4939 Raleigh Street, Apartment 7

Orlando, Florida 32811

Jody Tada

Human Resource Director American Citadel Guard 6030 Unity Drive, Suite G Norcross, Georgia 30071

Larry Kranert, 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: 10-008899

Orders for Case No: 10-008899