STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILFORD EVANS, )

)

Petitioner, )

)

vs. ) Case No. 00-0737

)

SUNRISE COMMUNITY, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge, Stephen F. Dean, held a formal hearing in the above-styled case on June 2, 2000 in Tallahassee, Florida.

APPEARANCES

For Petitioner: Wilford Evans, pro se

925 Cochran Street

Tallahassee, Florida 32301

For Respondent: Steven M. Weinger, Esquire

Kurzban, Kurzban, Weinger & Tetzeli, P.A.

2650 Southwest 27th Avenue Second Floor

Miami, Florida 33133 STATEMENT OF THE ISSUES

Whether Petitioner was discriminated against by being given poor evaluations, receiving disciplinary action as the result of

grievances, and being passed over for a promotion because of his

race.

PRELIMINARY STATEMENT

Petitioner was an employee of Respondent. He filed a claim of discrimination with the Commission on Human Relations (Commission) on March 19, 1996. This claim was investigated by the Commission, and a determination of no cause was made. On November 24, 1999, the Commission notified Petitioner of its findings and of his right to request a formal hearing. On December 23, 1999, Petitioner filed his request for a formal hearing with the Commission which referred it to the Division of Administrative Hearings on February 11, 2000.

The case was noticed for hearing on June 2, 2000, by a notice dated March 29, 2000. The case was heard as noticed. Petitioner called Joe McCabe, Cynthia Stringer, Archie Harris, and Ruth Kohler, whom Respondent made available, and introduced Petitioner's Exhibits 1, 2, 3, and 4 into the record.

Respondent called Kristen Korinko, as well as examining the witnesses called by Petitioner, and introduced Respondent's Exhibits 1, 2, 3, 4, and 5 into the record.

Petitioner contends that he was not promoted, received poor evaluations and reprimands because he was black. Respondent contends that Petitioner received reprimands for his harassing conduct, which was unacceptable, and his poor job performance

resulted in the poor evaluations. Respondent contends that Petitioner was not promoted because the person promoted was more qualified than Petitioner, not because Petitioner was poorly qualified. More importantly, Respondent points out that the person promoted was a black female, and Petitioner failed to show any racial motive in the actions against him.

Respondent filed proposed findings which were read and considered. Petitioner did not file proposed findings. A transcript was not ordered.

FINDINGS OF FACT

1. Petitioner was an employee of Respondent, Sunrise Community, Inc.

2. He was employed by Respondent for eleven years. He worked as a caregiver in a facility for persons requiring intermediate care or therapy. He was a home manager supervising several co-workers in caring for and training mentally handicapped residents.

3. Approximately one year prior to filing his complaint in 1996, Petitioner was counseled for improperly touching a female employee with whom he worked.

4. He did not perform certain activities associated with his job.

5. Because of his conduct and work deficiencies, Petitioner was given a poor performance evaluation.

6. Subsequently, a promotional position became open.

   
   

   Petitioner applied for the opening. He was qualified for the position. He was not promoted.

7. Petitioner is a black male.

   
   

8. Petitioner asserts that he was not promoted because he is a black male.

9. The evidence shows that Petitioner did touch a female co-worker inappropriately, and that Respondent gave him a reprimand for this conduct. He received a poor performance evaluation. Such evaluations are by their nature subjective; however, the reprimand and his poor job performance were sufficient cause to reduce his evaluation.

10. The promotional position was filled by a black female employee of the company who had more experience than Petitioner, and who had previously performed similar duties.

11. There was no showing that the grievances, evaluations, or failure to promote were racially motivated.

    CONCLUSIONS OF LAW

    
    

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

13. Petitioner has the burden of proof in this case to show that he was discriminated against on the basis of race. See McDonnell Douglas v. Green, 411 U.S. 792 (1973). Section

    760.10(1)(a), Florida Statutes, provided that it is an unlawful employment practice to discharge any individual or otherwise discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment on the basis of race.

14. Petitioner alleges that three things occurred that were adverse to him: he was counseled as the result of a grievance that was filed against him; he received poor performance evaluations; and he was not promoted.

15. The facts reveal that there was just cause for the grievance and Petitioner's conduct was sufficient to warrant counseling.

16. The facts reveal that Petitioner was counseled about poor job performance, and the failure to perform certain activities. This was the basis for his poor performance evaluation.

17. Both of the actions above, in the absence of some additional adverse impact, do not constitute activities for which relief can be granted, i.e., they are not discrimination with respect to compensation, terms, conditions, or privileges of employment. The failure to promote can be such an activity which impacts compensation.

18. In this case, the evidence shows that Petitioner was not promoted; however, the person who was promoted has more experience, better credentials, and is also black.

19. Petitioner has not provided any added information showing that Respondent discriminated against him on the basis

of race.

RECOMMENDATION

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

RECOMMENDED that the Florida Commission on Human Relations enter its final order dismissing Petitioner's Petition.

DONE AND ENTERED this 21st day of August, 2000, in

Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

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 21st day of August, 2000.

COPIES FURNISHED:

Wilford Evans

925 Cochran Street

Tallahassee, Florida 32301

Steven M. Weinger, Esquire Kurzban, Kurzban, Weinger

& Tetzeli, P.A.

2650 Southwest 27th Avenue Second Floor

Miami, Florida 33133

Sharon Moultry, Clerk

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana A. Baird, General Counsel Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

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: 00-000737

Orders for Case No: 00-000737