STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BENSON OKORONKWO, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5377

)

NORTH CENTRAL FLORIDA )

SAFETY COUNCIL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before Stephen F. Dean, duly-designated Hearing Officer of the Division of Administrative Hearings, on February 21, 1996, in Gainesville, Florida.

APPEARANCES

For Petitioner: Steven Scheck, Esquire

106 Northwest 2nd Avenue Gainesville, Florida 32601

For Respondent: Robert E. Roundtree, Jr., Esquire

Clayton, Johnston, Quincey, Ireland Felder, Gadd and Roundtree, P.A.

Post Office Box 23939 Gainesville, Florida 32601

STATEMENT OF THE ISSUES

Whether the Respondent committed an unlawful employment practice by terminating the Petitioner's employment on the basis of race or national origin.

PRELIMINARY STATEMENT

After a "no cause" determination of the Petitioner's claim was filed on January 26, 1994 by the Florida Commission on Human Relations, this case was forwarded to the Division of Administrative Hearings for a de novo proceeding on October 13, 1995. The Petitioner's claim for relief was transmitted to the Division of Administrative Hearings on November 7, 1995; and the Respondent's response was filed on November 30, 1995.

At formal hearing, the Petitioner testified in his own behalf. He presented no other witnesses. The Petitioner introduced two exhibits into evidence. The Respondent presented the testimony of Jim Scott, clinical supervisor of DUI evaluators for the Respondent. The Respondent also introduced into evidence five reports of evaluations performed by the Petitioner written by Jim Scott.

Both parties filed proposed findings which were read and considered.

Consideration of this case was abated to permit the parties to file portions of the transcript supporting their conflicting factual proposals regarding replacement of the Petitioner with a non-black individual. The parties encountered problems in having the transcript reproduced; however, it was eventually filed on May 28, 1996. The parties did not supplement their original post hearing briefs to cite the hearing officer to that a portion of the transcript upon which they based their original proposed findings. In the absence of supplemental citations, the hearing officer read the transcript, and resolved the conflict to his satisfaction. The Appendix to this order states which of the parties' findings were adopted, and which were rejected and why.

FINDINGS OF FACT

1. The Petitioner, a black African male, was hired by Larry Schenck, Executive Director of the Respondent, in April of 1992 as a DUI evaluator.

   
   

2. The Petitioner was qualified for the position of DUI evaluator by virtue of his education and experience.

   
   

3. As a DUI evaluator, the Petitioner interviewed clients of the Respondent to make determinations regarding whether the clients had a problem with alcohol or other drugs which required treatment, and to make referrals for treatment as necessary.

   
   

4. The Petitioner was supervised by Jim Scott. Mr. Scott is the clinical supervisor for the Respondent.

   
   

5. Mr. Scott, as clinical supervisor of DUI evaluators, performed the following functions:

   
   

   1. Supervision of evaluators for one hour of clinical per 40 hours of evaluator time.

   2. Personal observation of one DUI evaluation interview or review of an audio or video recording of an evaluation interview once every six months for each DUI evaluator.

   3. Monthly review of at least three client case records for each DUI evaluator.

      
      

6. In addition, Mr. Scott conducted a 20-hour training class for DUI evaluators, which each DUI evaluator was required to attend before beginning evaluations. The Petitioner attended the training class conducted by Mr. Scott.

   
   

7. After reviewing DUI interviews, Mr. Scott personally discussed the evaluations with the DUI evaluator or prepared a written report of his evaluation for dissemination to the DUI evaluator. However, Mr. Scott could not state whether his evaluations of the Petitioner had been provided to the Petitioner.

   
   

8. Mr. Scott prepared five written reports of evaluations performed by the Petitioner on the following dates: June 22, 1992; August 25, 1992; January 26, 1993; April 13, 1993; and June 22, 1993. The Petitioner acknowledged receiving the first four of these reports.

   
   

9. Mr. Scott testified that there were significant deficiencies in his evaluation technique.

10. The Petitioner's deficiencies were:

    
    

    1. The Petitioner had difficulty in accepting the client's responses. The Petitioner seemed to be looking for a certain response and would keep questioning the client until he received the response for which he was looking.

    2. The Petitioner failed to use open-ended questions in his interview technique. The Petitioner used leading questions designed to elicit a certain response. This is an improper evaluator interview technique.

    3. The Petitioner failed to provide an assessment of his findings to the client. The Petitioner did not mention any "critical factors" or symptoms to the client. He only

       told the client "you meet our criteria, there- fore I am referring you".

       
       

11. In addition to five evaluations of the Petitioner's client interviews, Mr. Scott randomly reviewed each month Petitioner's case files for quality assurance. At least eleven of the Petitioner's evaluations deviated from the Evaluator Guide which required that written substantiation be provided for evaluations. The Petitioner's deficiencies resulted in clients being improperly referred for treatment.

    
    

12. In July of 1993, Respondent was fired by Larry Schenck, Executive Director of North Central Florida Safety Council because of the Petitioner's poor evaluations.

    
    

13. Of the six DUI evaluators, including the Petitioner, employed by the Respondent, three were black and three were white.

    
    

14. The Respondent's chief DUI instructor is another black African male, Mr. Costeau.

    
    

15. There was no evidence presented at hearing that the Petitoner was replaced by a non-black or non-foreign individual.

    
    

16. The undisputed evidence presented was that in 1992, the Petitioner received wages of $4,060.00 from his employment and in 1993, received $3,975.00 from his employment.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this cause pursuant to Section 120.57(1), Florida Statutes.

    
    

18. This is a case alleging an unlawful employment practice of disparate treatment as to terms, conditions, or privileges of employment, on the basis of race or national origin.

    
    

19. The Petitioner prays for relief from an unlawful employment practice in the form of reinstatement, back pay and lost benefits, lost future wages and benefits, and costs and attorneys fees.

20. Respondent asserts that it fired the Petitioner for unsatisfactory job performance and not because of his race or national origin. Respondent also seeks the award of costs and attorney's fees for having to defend this action.

    
    

21. The standard to determine a disparate treatment claim of unlawful employment practice has been outlined in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). This standard has been adopted by Florida courts in Department of Corrections v. Chandler, 582 So.2d 1183, Fla.App. 1 Dist., 1991. The Burdine standard as followed by Chandler is:

    
    

    Pursuant to the Burdine formula, the employee has the initial burden of establishing a prima facie case of intentional discrimination, which once established raises a presumption that the employer discriminated against the employee.

    If the presumption arises, the burden shifts to the employer to present sufficient evidence to raise a genuine issue of fact as to whether

    the employer discriminated against the employee. [The employer may do this by stating a legiti- mate, nondiscriminatory reason for the employment decision; a reason which is clear, reasonable specific, and worthy of credence]. Because the employer has the burden of production, not one

    of persuasion, which remains with the employee, it is not required to persuade the trier of fact that its decision was actually motivated by the reason given. If the employer satisfies its burden, the employee must then persuade the fact

    finder that the proffered reason for the employment decision was a pretext for intentional discrimina- tion. The employee may satisfy that burden by showing directly that a discriminatory reason more likely than not motivated the decision, or indirectly by showing that the proffered reason

    for the employment decision is not worthy of belief. If such proof is adequately presented, the employee satisfies his or her ultimate burden of demonstrating by a preponderance of evidence that he or she has been the victim of intentional discrimination. Id, at 252-56, 101 S.Ct. at

    1093-95, 67 L.Ed.2d at 215.17.

    [Emphasis supplied.]

    
    

    Department of Corrections v. Chandler, 582 So.2d 1183, 1186 (Fla. App. 1 Dist.

    1991).

    
    

22. Benson Okoronkwo is black and African, therefore, he is a member of two protected classes. He was qualified from the position from which he was terminated.

    
    

23. The Petitioner failed to establish that the position which he filled was subsequently filled by a person who is not a member of either protected class. Proof that the Petitioner was replaced by a person who was not a member of either protected class is an essential element of proof.

24. Further, the Respondent put forth a legitimate, non-discriminatory reason for the Petitioner's termination: poor job performance.

    
    

25. The Respondent's reason for termination was clear, reasonably specific, worthy of credence and supported by written documentation from the Petitioner's supervisor.

    
    

26. Further, the Petitioner was fired by the person who hired him as a DUI evaluator fourteen months earlier. This raises an inference of lack of discrimination. Buhrmaster v. Overnite Transportation Co., 61 F.3d 461 (6th Cir. 1995). The Petitioner did not overcome Respondent's articulated non- discriminatory reasons for his termination by demonstrating that the Respondent's reasons for termination were a pretext for intentional discrimination.

    
    

27. Although the Petitioner failed to introduce evidence that Petitioner was replaced by a individual from a non-protected class, the Respondent made no motion to dismiss the case raising this missing element prior to hearing. Evidence was presented that Petitioner was a member of a protected class and that he was discharged. Notwithstanding the failure to prove an essential element in this type of case, in the absence of a motion raising this matter prior to hearing, attorneys fees and costs are denied.

RECOMMENDATION

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

RECOMMENDED:

That the Petition for Relief and its underlying discrimination claim be dismissed.

DONE AND ENTERED this 1st day of August, 1996, in Tallahassee, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SunCom 278-9675

Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 1996.

APPENDIX TO RECOMMENDED ORDER

The parties filed proposed findings which were read and considered. The Respondent's proposed findings were adopted. The following states which of the Petitioner's findings were adopted and which were rejected and why:

PETITIONER'S RECOMMENDED ORDER FINDINGS

1-3. Statement of case.

1. Paragraph number 1.

2. Paragraph number 16.

6-7. Rejected, as contrary to better evidence.

8-9. Conclusions of law.

COPIES FURNISHED:

Steven Scheck, Esquire

106 N.W. 2nd Avenue Gainesville, Florida 32601

Robert E. Roundtree, Jr., Esquire Post Office Box 23939 Gainesville, Florida 32602

Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

Dana C. Baird, General Counsel Human Relations Commission Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency 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 contact the agency that will issue the Final Order in this case concerning agency rules on the deadline for filing exceptions to 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: 95-005377

Orders for Case No: 95-005377