STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DWIGHT E. MAZION,

Petitioner,

vs.

NRT CORPORATION,

Respondent.

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) Case No. 03-0725

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RECOMMENDED ORDER

Administrative Law Judge Don W. Davis of the Division of Administrative Hearings (DOAH) held a formal hearing in this cause in Tallahassee, Florida, on February 25, 2004. The following appearances were entered:

For Petitioner: Dwight E. Mazion, pro se

1713 Calgary Drive

Desoto, Texas 75115 For Respondent: No Appearance

STATEMENT OF THE ISSUE

The issue for determination is whether Petitioner was subjected to an unlawful employment practice by Respondent due to Petitioner's race in violation of Section 760.10(1), Florida Statutes.

PRELIMINARY STATEMENT

Petitioner filed a Charge of Discrimination against Respondent with the Florida Commission on Human Relations (FCHR) on July 10, 2000, alleging race discrimination.

On or about January 21, 2003, the FCHR issued its determination: No Cause.

On or about February 24, 2003, Petitioner filed a Petition for Relief with the FCHR. Subsequently, on or about February 28, 2003, the case was forwarded to DOAH for formal proceedings.

During the final hearing, Petitioner testified in his own behalf and presented six exhibits. No appearance was made on behalf of Respondent. Official recognition was taken by the undersigned with regard to the contents of DOAH case file number 03-0725. An audiotape was made at the time of the hearing and a copy was provided to Petitioner.

Petitioner was granted leave to file any proposed recommended order no later than 20 calendar days after the final hearing.

Petitioner filed a Proposed Recommended Order, which has been reviewed and considered in the preparation of this Recommended Order. No post-hearing submission was filed on behalf of Respondent.

FINDINGS OF FACT

1. Respondent hired Petitioner on October 13, 1997, as a maintenance operator. Six months later he was promoted to the

   position of Maintenance Technician I. During his employment, Petitioner was one of six technicians. He was the only black technician.

2. Petitioner was initially paid at a rate of $6.00 per hour. He received no pay increase with his first promotion. His yearly evaluation was delayed, but finally received by him on December 7, 1998. His evaluation for 1999 was received by December 23, 1999. His wages had climbed by this time to $8.40 per hour. His evaluations were satisfactory or above.

3. Although Petitioner had been told he would be provided training on the job, he was relegated to the night shift, working by himself. As a consequence, he educated himself on maintenance of Respondent’s facility.

4. In 1999, all technicians were to receive formal training. Another technician, who was white and lower in seniority than Petitioner, was selected for training before Petitioner. When Petitioner brought this to the attention of a supervisor, Petitioner was sent to other training provided by Siemen’s Corporation in Atlanta, Georgia. Petitioner stated he was treated unfairly because he was required to absorb the cost of lodging for the first night in Atlanta, prior to commencement of training.

5. The five other technicians employed by Respondent were being paid a minimum of $11.00 per hour when Petitioner, on or

   about May 5, 2000, requested an increase from his current $8.40 per hour rate to $10.00 per hour. His supervisor responded that he could not grant the increase. An argument ensued and Petitioner left the office and returned to work.

6. Later that day, Respondent’s human resource officer contacted Petitioner. He informed Petitioner that Petitioner’s employment was terminated due to “insubordination.”

7. On Respondent’s termination form, the reason listed for Petitioner’s termination was insubordination and using “slanders to his senior manager.” The form also listed Petitioner’s absence from work on Saturday, April 29, 2000, as a reason for employment termination. In rebuttal, Petitioner produced a copy of an annual leave slip at final hearing requesting approval of his absence on the date in question. Petitioner had accumulated ample leave to cover the requested time. Respondent’s approving authority failed to approve Petitioner’s absence, but no notification was given to Petitioner. Respondent’s claim of unauthorized absence is effectively rebutted.

8. According to a copy of a letter dated June 19, 2003, and received by DOAH on June 24, 2003, bearing the purported signature of David Anderson, registered agent for Respondent on June 20, 2002, Respondent was reputed to have ceased operation. According to statements contained in the letter, the Bank of America sold Respondent on March 10, 2002, in the “form of

   rights in collateral.” The letter additionally stated “unliquidated assets” in the bankruptcy were “sold in a Section 363 auction” on May 23, 2002. No direct evidence was

   presented on behalf of Respondent corroborating the contents of the letter and consequently the letter is not credited.

9. Petitioner produced documentation at the final hearing, specifically a corporation reinstatement form issued by the Florida Department of State, documenting Respondent’s continued existence as of April 22, 2002.

   CONCLUSIONS OF LAW

   
   

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

    §§ 120.56(9) and 120.57(1), Fla. Stat.

    
    

11. Chapter 760, Florida Statutes, the "Florida Civil Rights Act of 1992," provides security from discrimination based upon race, color, religion, sex, national origin, age, handicap, or marital status.

12. The adverse effectuation of an employee’s compensation, conditions and privileges of employment on the basis of race is an unlawful employment practice.

13. The burden of proof rests with Petitioner to show a prima facie case of employment discrimination. After such a showing by Petitioner, the burden shifts to Respondent to articulate a nondiscriminatory reason for the adverse action.

    If Respondent is successful and provides such a reason, the burden shifts again to Petitioner to show that the proffered reason for adverse action is pre-textual. School Board of Leon County v. Hargis, 400 So. 2d 103 (Fla. 1st DCA 1981).

14. The testimony and other evidence produced by Petitioner, taken as true, is sufficient to establish a prima

    facie case of racial discrimination by employees or supervisors of Respondent, toward Petitioner, despite FCHR’s determination of no cause.

15. Section 760.11(7), Florida Statutes, reads as follows:

    
    

    (7) If the commission determines that there is not reasonable cause to believe that a violation of the Florida Civil Rights Act of 1992 has occurred, the commission shall dismiss the complaint. The aggrieved person may request an administrative hearing under Sections 120.569 and 120.57, but any such request must be made within 35 days of the date of determination of reasonable cause and any such hearing shall be heard by an administrative law judge and not by the commission or a commissioner. If the aggrieved person does not request an administrative hearing within the 35 days, the claim will be barred. If the administrative law judge finds that a violation of the Florida Civil Rights Act of 1992 has occurred, he or she shall issue an appropriate recommended order to the commission prohibiting the practice and recommending affirmative relief from the effects of the practice, including back pay. Within 90 days of the date the recommended order is rendered, the commission shall issue a final order by adopting, rejecting, or modifying the recommended order as provided under Sections 120.569 and 120.57. The 90-

    day period may be extended with the consent of all the parties. In any action or proceeding under this subsection, the commission, in its discretion, may allow the prevailing party a reasonable attorney's fee as part of the costs. It is the intent of the Legislature that this provision for attorney's fees be interpreted in a manner consistent with federal case law involving a Title VII action. In the event the final order issued by the commission determines that a violation of the Florida Civil Rights Act of 1992 has occurred, the aggrieved person may bring, within one year of the date of the final order, a civil action under subsection (5) as if there has been a reasonable cause determination or accept the affirmative relief offered by the commission, but not both.

    
    

16. Petitioner’s rate of pay at time of his employment termination by Respondent was $8.40 per hour, well below that of his white peers (most of them junior to Petitioner in seniority) earning $11.00 per hour. The failure of Respondent or a representative for Respondent to appear and effectively rebut Petitioner’s claim of racial animus, coupled with the disparate treatment accorded Petitioner regarding expenses for the training seminar in Atlanta, leave only one conclusion. Discriminatory treatment of Petitioner occurred.

17. Accordingly, Respondent’s discriminatory employment practice, as enforced toward Petitioner, should cease. Petitioner should be re-instated in his job and receive back pay at a rate of $10.00 per hour per each 40-hour work week between May 5, 2000, and the present date.

RECOMMENDATIONS

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

RECOMMENDED:

That a Final Order be entered directing that Respondent to cease the discriminatory employment practice evidenced in this case and awarding Petitioner back pay at the rate of $10.00 per hour for each normal 40-hour work week between May 5, 2000, and the present.

DONE AND ENTERED this 19th day of March, 2004, in Tallahassee, Leon County, Florida.

S

DON W. DAVIS

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 19th day of March, 2004.

COPIES FURNISHED:

Michael F. Coppins, Esquire Coppins & Monroe

Post Office Box 14447 Tallahassee, Florida 32317-4447

Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Dwight E. Mazion 1713 Calgary Drive

Desoto, Texas 75115

Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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: 03-000725

Orders for Case No: 03-000725