vs. ) Case No. 97-0559
Respondent. )
An administrative hearing was conducted on April 16, 1997, in Orlando, Florida, by Daniel Manry, Administrative Law Judge, Division of Administrative Hearings. The parties, witnesses, and court reporter attended the hearing in Orlando. The undersigned participated by video conference from Tallahassee, Florida.
For Petitioner: Peter T. Hickey, Esquire Post Office Box 1323
For Respondent: Jeffrey J. Newton, Esquire Orange County Attorney's Office
The issue in this case it whether Respondent discriminated against Petitioner because of Petitioner's national origin by engaging in the adverse employment actions alleged in the Charge Of Discrimination and Petition For Relief.
employment. On October 8, 1995, Petitioner filed a Charge of Discrimination with the Florida Commission On Human Relations (the "Commission"). Petitioner alleged that Respondent discriminated against him on the basis of his national origin.
The Commission entered a Notice Of Determination on November 22, 1996. The Commission found no cause to support the Charge of Discrimination.
On December 23, 1996, Petitioner filed a Petitioner For Relief with the Commission (the "Petition"). On January 30, 1997, the Commission referred the matter to the Division of Administrative Hearings to conduct an administrative hearing.
At the hearing, Petitioner testified in his own behalf, called four witnesses, and submitted no exhibits for admission in evidence. Respondent presented the testimony of one witness and submitted two exhibits for admission in evidence.
The identity of the witnesses and exhibits, and the rulings regarding each, are set forth in the transcript of the hearing filed with the undersigned on May 2, 1997. Neither party filed proposed recommended orders.
Petitioner is male and Cuban. He is a member of a protected group and a qualified individual.
Petitioner was employed by the Fleet Manager for Orange County, Florida in February, 1981, as a Mechanic I. He was later reclassified as a Mechanic II as part of an internal reorganization.
Petitioner's duties require him to drive County vehicles to various locations to repair other County vehicles. The parties stipulated that Petitioner is a good mechanic and has always performed mechanical repairs competently.
Orange County is a subdivision of the state. It employs a substantial number of people.
The Fleet Manager maintains Orange County vehicles, operates and maintains the County's refueling system, and operates and manages emergency rescue vehicles and emergency generators for the County. The Fleet Manager is responsible for all personnel matters for County employees assigned to the fleet system.
Mr. James Brock is the Fleet Manager who took the employment actions on behalf of Orange County that are the subject of this proceeding. Orange County employed Mr. Brock as a traffic engineer in 1987 and promoted him to Assistant Fleet Manager and Fleet Manager, respectively, in 1989 and 1992. Orange County and the Fleet Manager are referred to hereinafter as "Respondent."
Respondent maintains a progressive discipline policy. Discipline progresses from counseling or verbal reprimand, to written reprimand, suspension, and then termination.
The purpose of the progressive discipline policy is to make individual employees productive workers by modifying their behavior from inappropriate to appropriate behavior. The purpose of the progressive discipline policy is not to punish employees.
Respondent prohibits discrimination, including that based on national origin. Respondent prohibits the implementation of its progressive discipline policy in a manner that discriminates against employees.
Petitioner has a long history of discipline that began in his first year of employment. In November, 1981, Petitioner wrecked at least three vehicles. He received a written reprimand.
In 1982, Petitioner ran over a battery charger. In 1985, after repeated warnings and notices, Petitioner was suspended for approximately three days for refusing to follow County policies.
In 1991, Petitioner wrecked a County vehicle in an automobile accident with another vehicle driven by a member of the public. The truck driven by Petitioner was totally destroyed.
The employment actions at issue in this proceeding began in April 1993. Respondent received information that Petitioner kept his County vehicle at his house on work days and used it for personal purposes, including hauling bricks to build a fence.
Respondent convened a meeting with Petitioner, Petitioner's foreman, and an interpreter. Respondent and the foreman advised Petitioner that it was a violation of County policy to take a County vehicle home, to take the
vehicle outside of the County where Petitioner resides, and to falsify work records.
In September 1993, Respondent issued a written reprimand to Petitioner for threatening a co
worker with Petitioner's vehicle. Respondent concluded that Petitioner drove his vehicle toward a co
worker at a rapid speed and stopped just before impact.
In October 1993, Respondent received repeated telephone calls from a third party that Petitioner was home during work days with his County vehicle. Respondent verified the reports with its own investigation and charged Petitioner with insubordination, taking a County vehicle home, and falsifying work records.
Respondent conducted a predetermination hearing in accordance with due process requirements. Respondent notified Petitioner of his right to have a representative, attorney, or union steward present and to appeal any adverse determination.
Petitioner attended the predetermination hearing. Both Petitioner and Respondent presented evidence including the testimony of witnesses under oath. The hearing was recorded. Respondent suspended Petitioner for four days without pay.
In February 1994, Petitioner wrecked another County vehicle. He backed over a County lawn mower while backing his own vehicle out of the heavy equipment shop. Respondent counseled Petitioner after the incident.
Petitioner does not have a good driving record. He has numerous speeding tickets.
In August 1994, Respondent required Petitioner to attend a cultural awareness course. The course teaches cooperation among individuals from diverse cultural or ethnic backgrounds. Respondent requires all employees to attend the course.
Petitioner argued with the instructors and refused to stay in the course. In September 1994, Respondent issued a letter of direction requiring Petitioner to attend the course.
In September 1994, Petitioner took his County vehicle home again. Respondent counseled Petitioner for the violation and conducted an investigation that was still pending in October 1994.
On October 14, 1994, Petitioner responded to a request for emergency repair of another County vehicle. Respondent drove his County vehicle recklessly and made an obscene gesture to another motorist. Petitioner followed the motorist up an access ramp on the East
West Expressway at a speed of 35
40 mph, made an obscene gesture, and passed the motorist improperly.
Petitioner followed the motorist at a distance of less than one foot. Petitioner then turned on the yellow warning lights on his County vehicle. When the motorist did not pull over and allow Petitioner to pass, Petitioner made an obscene gesture and passed the motorist while on the access ramp.
The motorist pulled up beside Petitioner and wrote down the number of the vehicle. The motorist reported the incident to Respondent on the same day.
Respondent investigated the incident and conducted a predetermination hearing on November 2, 1994. Petitioner participated in the predetermination hearing. Respondent terminated Petitioner on November 11, 1994.
While Petitioner was employed by Respondent, Petitioner applied for promotion to Mechanic III approximately three times. Respondent never promoted Petitioner.
Promotions are determined by a board composed of four mechanics who sit for a prescribed period and then are replaced by other mechanics. The mechanics are appointed to the board by management.
The board is racially diverse. It typically includes Hispanics.
The board conducts a separate interview of each candidate for promotion. The board members ask each candidate identical questions and score the responses from each candidate. The board then recommends the candidate with the highest score.
The board never recommended Petitioner for promotion. Respondent has never deviated from the recommendation of the board.
The candidates recommended by the board are racially diverse. They include Hispanics.
Respondent has never taken any employment action against Petitioner on the basis of Petitioner's national origin. Respondent has never taken any employment action against Petitioner for a discriminatory reason.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statutes (1995). (All chapter and section references are to Florida Statutes (1995) unless otherwise stated). The parties were duly noticed
for the administrative hearing.
The burden of proof is on Petitioner. Petitioner must show by a preponderance of evidence that Respondent discriminated against him on the basis of his national origin by undertaking the adverse employment actions alleged in the Charge of Discrimination and the Petition. St. Mary's Honor Ctr. v. Hicks, 113 S.Ct. 2742, 2747 (1993); Brand v. Florida Power Corp., 633 So. 2d 504, 507 (Flat 1st DCA 1994); Florida Department of Transportation
v. J.W.C. Company, Inc., 396 So. 2d 778 (Flat 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Flat 1st DCA 1977).
State and federal statutes control the resolution of employment discrimination cases. State statutes are promulgated in Chapter 760. Federal statutes are in Title VII of the Civil Rights Act of 1964, 42 United States Code,
Section 2000e et sea ("Title VII").
Chapter 760 is patterned after the federal statutes. Petitioner's allegations of discrimination are properly resolved under applicable Title VII standards. Florida Department of Community Affairs v. Brvant, 586 So. 2d 1205, 1209 (Flat 1st DCA 1991); Fredette v. BVP Management Associates, 905 F. Supp. 1034, 1037 (M.D. Fla. 1995); Greenfield v. City of Miami Beach, Fla., 844 F.Supp. 1519, 1524 n.1 (S.D. Fla. 1992).
Petitioner must make a prima facie showing of discrimination. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973).
If Respondent articulates a legitimate, non
discriminatory reason for the contested employment action, Petitioner has the burden of proving that the reason asserted by Respondent is pretextual. Burdine, 450 U.S. at 245
255, 101 S.Ct. at 1094
1095; McDonnell, 411 U.S. at 804
805, 93 S.Ct. at 1825
1826.
A prima facie case of discrimination requires a showing that: Petitioner be a member of a protected group; an adverse employment action took place; he received
dissimilar treatment; and sufficient evidence exists to infer a causal connection between Petitioner's protected status and the disparate treatment. McDonnell, 411 U.S. at 802, 93 S.Ct. at 1824; Clemons v. Hardee County School Board, 848 F.Supp. 1535, 1538 (M.D. Fla. 1994).
It is undisputed that Petitioner is a member of a protected class. His national origin is Hispanic.
The evidence does not show that Respondent discriminated against Petitioner in any way including the employment actions taken by Respondent in connection with vehicles at home, accidents on the job, and the reckless
driving incident. The evidence does not show that Respondent took employment action of any kind against Petitioner because of his national origin.
The evidence shows no adverse employment action other than Respondent's discipline of Petitioner for legitimate, non
discriminatory reasons. Petitioner failed to present any evidence that he and a similarly situated non
protected employee received dissimilar treatment. The discipline of Petitioner was consistent with Respondent's established progressive discipline policy.
Even if Petitioner had shown disparate treatment, Petitioner failed to show a causal connection between his protected status and the disparate treatment. Petitioner presented no evidence that the actions he complains of on the part of Respondent were in any way connected to his national origin.
The evidence shows that Respondent disciplined Petitioner for non
discriminatory reasons. Petitioner failed to show that the reasons given by Respondent for its disciplinary action were pre-textual.
Respondent may take employment action against Petitioner for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all as long as such employment actions are not undertaken for a discriminatory reason. Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1187 filth Cir. 1984). Petitioner failed to show that Respondent took any employment action against Petitioner for a discriminatory reason.
RECOMMENDED that the Commission enter a Final Order finding Respondent not guilty of discriminating against Petitioner on the basis of his national origin.
RECOMMENDED this 9th day of June, 1997, in Tallahassee, Florida.
Florida Commission On Human Relations Building F. Suite 240
Florida Commission On Human Relations Building F. Suite 240
Peter T. Hickey, Esquire Post Office Box 1323 Orlando, Florida 32802
Jeffrey J. Newton, Esquire Orange County Attorney's Office
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.
