STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHRISTOPHER HOOKS, )

)

Petitioner, )

)

vs. ) CASE NO. 92-4290

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above- styled case on October 29, 1992 at Tampa, Florida.

APPEARANCES

For Petitioner: Christopher Hooks, pro se

Post Office Box 310623 Tampa, Florida 33680

For Respondent: Lynn T. Winston, Esquire

2601 Blair Stone Road Tallahassee, Florida 32399-2500

STATEMENT OF THE ISSUES

Whether Petitioner was discriminated against in employment by reason of his race.

PRELIMINARY STATEMENT

By Petition for Relief received by the Florida Commission on Human Relations June 11, 1992, Christopher Hooks, Petitioner, alleged the Department of Corrections, Respondent, violated the Human Rights Act of 1977 in terminating his employment because of his race. The Petition was forwarded to the Division of Administrative Hearings for formal hearing and these proceedings followed.

At the hearing Petitioner testified in his own behalf, Respondent called five witnesses and eight exhibits were admitted into evidence. At the close of the hearing the parties were given ten days in which to file proposed recommended orders. Petitioner did not file any proposed findings. Proposed findings submitted by Respondent are accepted. Those proposed findings not included below were deemed unnecessary to the conclusions reached. Having fully considered all relevant evidence presented, I present the following:

FINDINGS OF FACT

1. Petitioner was employed by the Hillsborough Corrections Institute on October 19, 1990 as a trainee and entered the Corrections Officer Academy (Academy) the following Monday, October 22, 1990.

   
   

2. The Academy is run by Hillsborough Community College under the guidelines established by the Florida Division of Criminal Justice Standards and Training Commission.

   
   

3. Completion of the Academy is a prerequisite for certification. Section 943.13, Florida Statutes.

   
   

4. After successfully completing the Academy the trainees are promoted to probation correction officers for nine months and assigned to a correction facility.

   
   

5. Petitioner, while in the Academy, reinjured a military service connected injury and was unable to attend and participate in the self-defense portion of the curriculum while it was given. He presented a doctor's certificate that he should avoid walking or running exercises for a prolonged period of time (Exhibit 4).

   
   

6. Petitioner was advised more than once that he would need to take the self-defense portion of the Academy curriculum before he could be certified and that he had six months in which to take this portion of the training. At least two and possibly three classes were available to Petitioner during the six month period following the graduation of his class in which he could have taken the Self-Defense portion of the curriculum.

   
   

7. Petitioner attended the graduation ceremonies with his class but he did not receive a certificate that he had completed the Academy.

   
   

8. Immediately following the graduation ceremony Petitioner received the same 10% pay raise the other trainees received. Hillsborough Correction Institute (HCI) was not aware that Petitioner had not successfully completed the Academy until May 2, 1991. At this time the personnel manager at HCI accompanied by Major Berry went to the superintendent with the problem and recommended Petitioner's dismissal.

   
   

9. With HCI laboring under the false assumption that Petitioner had completed the Academy and was eligible for certification, he had been allowed to work in the prison compound. Since only certified correctional officers are allowed to so work, the Institute was exposed to legal liability if any injury had occurred to a prisoner or a corrections officer and Petitioner had been involved in the incident.

   
   

10. Effective May 6, 1991, Petitioner was terminated because he had not successfully completed the Academy within the time specified.

    
    

11. Petitioner contends that two white correction officer trainees were treated differently than he was treated, but could testify only to what he had heard from other correction officers.

    
    

12. The two trainees referred to by Petitioner were David Collins and a Ms. Duhamel. Respondent presented evidence (Exhibit 2) that Collins had been a corrections officer in another state. His application for employment at HCI was

    sent to the Florida Department of Law Enforcement (FDLE) for review of his training. FDLE advised HCI that Collins needed only 40 hours of additional training and he was enrolled at Hillsborough Community College. Subsequent to the completion of this training, FDLE found they had made an error and Collins needed an additional 40 hours of training. He was sent back to Hillsborough Community College for this training.

    
    

13. Ms. Duhamel received work related injuries to her back while she was taking the self-defense training and was placed on Workers' Compensation for an extended period. She was subsequently certified after successfully completing all of the hours and courses required at the Academy.

    
    

14. Petitioner presented no evidence that his race played any part in the decision to terminate his employment. Despite this lack of evidence from Petitioner, Respondent presented evidence that all trainees who do not complete the Academy are terminated in employment and cited four specific instances in which three of the dismissed trainees were white.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings.

    
    

16. Section 760.10(1), Florida Statutes, makes it an unlawful employment practice for an employer to discriminate against a person because of that person's age. Chapter 760, Florida Statutes, is patterned after Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e, et seq., ("Title VII"). Hargis v. School Board of Leon County, 400 So.2d 103, 108 n. 2 (Fla. 1st D.C.A. 1981). As such, federal precedent construing the similar provisions of Title VII should be accorded great deference. Pasco County School Board v. PERC, 353 So.2d 108, 116 (Fla. 1st D.C.A. 1979); Wood v. K-Mart Corp., 10 FALR 6189 (FCHR 1985).

    
    

17. The Supreme Court established, and later clarified the burden of proof in disparate treatment cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). The FCHR has adopted this evidentiary model. Kilpatrick v. Howard Johnson Co., 7 FALR 5468,

    
    

18. Where discriminatory discharge is claimed, a prima facie case is proved under the McDonnell Douglas approach by showing, 1) the plaintiff is qualified for the position; 2) he was discharged; and 3) he was replaced by a person outside the protected class. Lee v. Russell County Board of Education, 684 F.2d 769 (11th Cir. 1982); Maggio v. Martin Marietta Aerospace, 9 FALR 2168 (FCHR 1986).

    
    

19. Proving a prima facie serves to eliminate the most common non- discriminatory reasons for the plaintiff's disparate treatment. See Teamsters

    v. U.S., 431 U.S. 324, 358 and n. 44 (1977). It is not, however, the equivalent of a factual finding of discrimination. It is simply proof of actions taken by the employee from which discriminatory animus is inferred because experience has proved that in the absence of any other explanation it is more likely than not that those actions were bottomed on impermissible considerations. The presumption is that more often than not people do not act in a totally arbitrary manner, without any underlying reason, in a business setting. Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).

20. Once the plaintiff has succeeded in proving all the elements necessary to establish a prima facie case, the employer must then articulate some legitimate, non-discriminatory reason for the challenged employment decision. The employer is required only "to produce admissible evidence which would allow the trier of fact to conclude that the employment decision had not been motivated by discriminatory animus." Texas Department of Community Affairs v. Burdine, at 257. The employer "need not persuade the court that it was actually motivated by the proffered reasons . . . it is sufficient if the [employer's] evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff." Id. at 254-255. This burden is characterized as "exceedingly light." Perryman v. Johnson Products Co., Inc., 698 F.2d 1138 (11th Cir. 1983).

    
    

21. Here Petitioner has failed to establish a prima facie case of discrimination. All he has proved is his race (black). Specifically, the evidence clearly showed that Petitioner was not qualified for certification as a corrections officer because he did not complete the basic training program. Furthermore, he presented no credible evidence that other trainees were treated differently than he was treated, while Respondent presented evidence that all trainees who fail to complete the Academy courses within the specified period are discharged.

RECOMMENDATION

It is recommended that a final order be entered dismissing the petition for relief from an unlawful employment practice filed by Christopher Hooks against the Florida Department of Corrections.

DONE AND ENTERED this 10th day of November, 1992, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1992.

COPIES FURNISHED:

Lynne T. Winston, Esquire Department of Corrections 2601 Blair Stone Road

Tallahassee, Florida 32399-2500

Christopher Hooks

Post Office Box 310623 Tampa, Florida 33602

Dana Baird, General Counsel Harry K. Singletary, Jr., Sec. Commission on Human Relation Department of Corrections Building F, Room 240

2601 Blair Stone Road 325 John Knox Road Tallahassee, Florida 32399-2500 Tallahassee, FL 32303 4149

Louis A. Vargas Margaret Jones, Clerk

General Counsel Commission on Human Relation

Department of Corrections Building F, Room 240

2601 Blair Stone Road 325 John Knox Road Tallahassee, Florida 32399-2500 Tallahassee, FL 32303 4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT TO THE DEPARTMENT OF CORRECTIONS WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST TEN DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONSULT WITH THE DEPARTMENT OF CORRECTIONS CONCERNING ITS RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER.

Docket for Case No: 92-004290

Orders for Case No: 92-004290