STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TERRANCE D. DAVENPORT, )

)

Petitioner, )

)

vs. ) Case No. 97-5058

)

VILLAGE ON THE GREEN, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held before the Division of Administrative Hearings by Daniel M. Kilbride, Administrative Law Judge, on March 11, 1998, by video conference to Orlando, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Terrance D. Davenport, pro se

861 Carver Street

Winter Park, Florida 32789

For Respondent: John Griffin, Qualified Representative

Director of Human Resources

Life Care Retirement Communities, Inc. d/b/a Village on the Green

200 East Grand, Suite 390 Des Moines, Iowa 50309

STATEMENT OF THE ISSUE

Whether Petitioner was demoted from his position as a security officer, and later terminated from his position with the Respondent as a groundskeeper on or about May 22, 1995, on the basis of his race (Black) or sex (male), in violation of

Section 760.10(1)(a), Florida Statutes (1995).

PRELIMINARY STATEMENT

The Petitioner filed a Charge of Discrimination with the Orlando Human Relations Department and the Florida Commission on Human Relations (FCHR), on June 22, 1995, charging the Respondent with employment discrimination. FCHR began an investigation; however, it was not completed within 180 days. On a form dated March 18, 1997, the Petitioner elected to withdraw his charge and requested the right to file a Petition for Relief and proceed with an administrative hearing. This matter was subsequently referred by FCHR to the Division of Administrative Hearings for formal hearing de novo on October 31, 1997. Following discovery, a formal hearing was held on March 11, 1998.

At the hearing, Petitioner appeared pro se. Petitioner testified in his own behalf; no exhibits were offered or received in evidence. The Respondent presented the testimony of three witnesses, and five exhibits were received in evidence. A transcript was ordered and was filed on April 7, 1998. The parties were allowed ten days from the hearing in which to file proposed findings of fact and conclusions of law. Neither party has filed proposed findings as of the date of this order.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. The Respondent is an employer as that term is defined under the Florida Civil Rights Act of 1992.

2. Petitioner is an African-American male, and is licensed as a Class D security officer by the State of Florida.

3. Respondent, Life Care Retirement Communities, Inc., is a not-for-profit corporation, based in Iowa, which owns Village on the Green, a community with 241 independent living units and 60 skilled health center beds in Longwood, Florida.

4. Petitioner was hired by Respondent, on April 27, 1998, as a security guard at Village on the Green in Longwood, Florida. He worked in that capacity until May 12, 1995.

5. In accordance with the company's standard procedure, all employees who have keys or access to resident's private property are required to have a criminal background check completed. Petitioner's position as a security guard required such a check. Petitioner signed a consent form and the background check was completed.

6. The background check revealed that, in 1993, Petitioner was arrested for the felony of grand theft auto. The charge was later reduced from the misdemeanor charge of Trespass to a Conveyance. On May 17, 1994, Petitioner pled nolo contendere to the charge. Adjudication was withheld by the Court and Petitioner was placed on six months probation. Petitioner successfully completed probation.

7. It is the policy of Respondent that an employee with a prior criminal record which involves theft may not be placed in a safety-sensitive position which permits employee access to a

   resident's living quarters or personal property. A security officer has such access.

8. Petitioner was then informed that he would be removed from his position as a security guard.

9. Petitioner was then offered a position in groundskeeping and Petitioner accepted. He was transferred to groundskeeping, at the same salary, and was employed from May 15, 1995, until May 22, 1995, at which time he was terminated.

10. Between May 15 and May 22, 1995, Petitioner performed his job satisfactorily.

11. On May 15, 1995, a severe electrical storm knocked out electricity to Petitioner's residence. As a result, Petitioner overslept and did not report to work at 7:00 a.m., the scheduled beginning of his shift. At approximately 8:00 a.m., Petitioner called the security guard on duty and advised her of the reason he was late and that he would not be in that day because the storm had caused damage to his automobile.

12. The fact that Petitioner reported in on May 15th was not conveyed by the unidentified security guard to Petitioner's supervisor.

13. Respondent's policy, as stated in the Employee Handbook, called "No show/no call," requires an employee to notify his supervisor if he is going to absent, or if he is unable to contact the supervisor, then he is to report his absence or tardiness to the switchboard operator.

14. The Employee Manual, at page 45, states in pertinent part: ". . . Failure to report for duty without notification, failure to call in prior to shift change and tardiness will result in disciplinary action."

15. After an internal investigation, which included an interview with Petitioner, Respondent was unable to determine that Petitioner had called in on May 15, 1995. Petitioner was terminated.

16. Petitioner has failed to demonstrate that Respondent's reason for termination was pretextural, or that the employer engaged in unlawful hiring, firing, pay or promotion practices.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to Sections 120.569 and 120.57(1), Florida Statutes, and Rule 60Y-4.016(1), Florida Administrative Code.

18. The State of Florida, under the legislative scheme contained in Chapter 760, Florida Statutes, incorporates and adopts the legal principles and precedents established in the federal anti-discrimination laws specifically set forth under Title VII of the Civil Rights Act of 1964, as amended, 42 USC Section 2000e et seq. The Florida law prohibiting unlawful employment practices is found in Section 760.10, Florida Statutes. This section prohibits discharge or otherwise to

    discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment because of such individual's race. (Sec. 760.10(1)(a), Florida Statutes). The Florida Commission on Human Relations and the Florida courts interpreting the provisions of the Florida Civil Rights Act of 1992 have determined that federal discrimination law should be used as guidance when construing provisions of the Act. See Brand v. Florida Power Corp. 633 So. 2d 504,509 (Fla. 1st DCA 1994); Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991); Cooper v. Lakeland Regional Medical Center, 16 FALR 567, 574 (FCHR 1993).

19. 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) and again in the recent case of St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742 (1993). The FCHR has adopted this evidentiary model. Kilpatrick v. Howard Johnson Co., 7 FALR 5468,5475 (FCHR 1985). McDonnell Douglas places upon the Petitioner the initial burden of proving a prima facie case of racial discrimination. See also Laroche v. Department of Labor and Employment Security, 13 FALR 4121 (FCHR 1991); Davis v. Humana of Florida, Inc., 15 FALR 231 (FCHR 1992).

20. Judicial authorities have established the burden of proof for establishing a prima facie case of discriminatory

    treatment. Petitioner must show that:

    
    

    1. The Petitioner is a member of a protected group;

    2. The employee is qualified for the position; and

    3. The employee was subject to an adverse employment decision (Petitioner was demoted, then terminated);

    4. The position was filled by a person of another race or that she was treated less favorably than similarly-situated persons outside the protected class:

    5. There must be shown by the evidence that there is a causal connection between a and c. Canino vs. EEOC, 707 F.2d 468, 32 FEP Cases 139 (11th Cir. 1983); Smith vs. Georgia, 684 F.2d 729, 29 FEP Cases 1134 (11th Cir. 1982); Lee vs. Russell County Board of Education, 684 F.2d 769, 29 FEP Cases 1508 (11th Cir. 1982), appeal after remand, 744 F.2d 768, 36 FEP Cases 22 (11th Cir. 1984).

21. Proving a prima facie case serves to eliminate the most common nondiscriminatory 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 employer from which discriminatory animus is inferred because experience has proven 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).

22. Once the Plaintiff has succeeded in proving all the

    elements necessary to establish a prima facie case, the employer must then articulate some legitimate, nondiscriminatory 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).

23. Once the employer articulates a legitimate reason for the action taken, the evidentiary burden shifts back to the Petitioner who must prove that the reason offered by the employer for its decision is not the true reason, but is merely a pretext. The employer need not prove that it was actually motivated by the articulated nondiscriminatory reasons or that the replacement was more qualified than the Petitioner. Texas Department of Community Affairs v. Burdine, at 257-8.

24. In Burdine, the Supreme Court emphasized that the ultimate burden of persuading the trier of fact that the Respondent intentionally discriminated against the Petitioner remains at all times with the Petitioner. Texas Department of Community Affairs v. Burdine, at 253. The Court confirmed this principle again in St. Mary's Honor Center v. Hicks, 509 U.S 502, 113 S.Ct. 2742 (1993).

25. In the case sub judice, the Petitioner has established that he is a member of a protected class, and that he was qualified for the position, at the time he was hired. The Petitioner has also established that he was subjected to an adverse employment decision when he was first transferred to

    another position and later terminated from the new position. However, Petitioner has failed to come forward with persuasive evidence that there is a causal connected between his race and his transfer or termination.

    
    

26. Although Petitioner's prior criminal record was not serious enough to prevent Petitioner from being licensed by the state as a Class D Security Officer, Respondent is not prevented from instituting a stricter policy as it applies to the security guards that it hires, as long as that policy is applied uniformly. Petitioner has failed to show that similarly-situated non-minority persons received more favorable treatment under similar circumstances.

27. Respondent was not required to offer Petitioner a position as a groundkeeper, however, once offered and accepted Petitioner must be treated fairly. Petitioner was hired and fired, while still on probation. The "no show/no call" rule is not arbitrary or unreasonable and there has been no showing that it was applied discriminatorily. Therefore, there can be no inference of discrimination. Pound v. Stone, 945 F.2d 796 (4th Cir.1991). "Whatever the employer's decision-making process, a disparate treatment claim cannot succeed unless the employee's protected trait actually played a role in that process and had a determinative influence on the outcome." Hazen Paper Co. v. Biggins, 505 U.S. 604, 113 S.Ct. 1701, 1706 (1993). This

    standard requires Petitioner to establish that "but for" his protected class and the employer's intent to discriminate, he would not have been terminated. Therefore, the Petitioner has

    failed to came forward with sufficient evidence to meet his initial burden of proof on the issue of racial discrimination.

28. Assuming arguendo that the Petitioner had met his initial burden, the sequence of presentation of evidence then required the Respondent to come forward and articulate valid, nondiscriminatory reasons for the resulting termination decision. The Respondent has done so. It established by credible evidence that its policy in regard to employment of security guards is reasonable and that the transfer of Petitioner was consistent with its policies. In addition, even though Petitioner called in on May 15, 1995, to report his reason for failure to report to work, he did not report to his supervisor nor the switchboard operator. Therefore, Respondent could find no record of his call, and, even if mistaken, Respondent could terminate Petitioner, since the termination was not based on a discriminatory reason.

29. Petitioner has failed to produce any evidence to demonstrate that the Respondent's articulated reasons for its actions in May 1995, were "pretextual."

30. From the testimony and the exhibits, the Petitioner has failed to carry the burden required by law to establish discriminatory conduct. There was no credible testimony by any of the witnesses that the reason for Petitioner's termination was because of his race, black. Petitioner may not rely on a mere refutal of the employer's stated reason to establish pretence.

Petitioner must establish that (i) that reason was false and (ii)

discrimination was the motivating factor for the employment action taken. St Mary's Honor Center v. Hicks, supra.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Florida Commission on Human Relations enter a Final Order which DENIES the Petition for Relief.

DONE AND ENTERED this 3rd day of June, 1998, in Tallahassee, Leon County, Florida.

COPIES FURNISHED:

John V. Griffin

DANIEL M. KILBRIDE

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

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 1998.

Director of Human Resources

Life Care Retirement Communities, Inc. d/b/a Village on the Green

200 East Grand, Suite 390 Des Moines, Iowa 50309

Terrance Davenport 861 Carver Street

Winter Park, Florida 32789

Sharon Moultry, Clerk Commission on Human Relations

325 John Knox Road Building F, Suite 249

Tallahassee, Florida 32303-4149

Dana Baird, General Counsel Commission on Human Relations

325 John Knox Road Building F, Suite 249

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days 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: 97-005058

Orders for Case No: 97-005058