STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DOSWELL BROWN, )

)

Petitioner, )

)

vs. ) Case No. 05-2600

) FLORIDA TRANSPORTATION SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this case on September 14, 2005, via videoteleconference at sites in Fort Lauderdale and Tallahassee, Florida, before Florence Snyder Rivas, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Doswell Brown, pro se

1101 Northwest 23rd Terrace Fort Lauderdale, Florida 33311

For Respondent: Carmen M. Rodriguez, Esquire

Carmen Rodriguez, P.A.

9245 Southwest 157th Street, Suite 209

Miami, Florida 33157 STATEMENT OF THE ISSUE

Whether Respondent engaged in an unlawful employment action as alleged by Petitioner and, if so, what relief should be granted.

PRELIMINARY STATEMENT

Petitioner Doswell Brown (Petitioner) filed an employment Charge of Discrimination dated September 27, 2004, with the Florida Commission on Human Relations (FCHR). The named employer was Respondent Florida Transportation Services (Respondent).

The Charge of Discrimination was investigated and on

June 9, 2005, the FCHR issued its determination of "no cause." Petitioner timely asserted his right to a hearing and on

July 20, 2005, the FCHR referred the matter to the Division of Administrative Hearings for the assignment of an Administrative Law Judge to conduct the proceedings.

The identity of witnesses, testimony, and attendant rulings are reflected in the one-volume transcript of the proceedings filed on September 20, 2005. Neither party offered exhibits.

The parties filed timely post-hearing submissions which have been duly-considered.

All citations to the Florida Statutes are to the current version of the statutes. At the time of the events from which this case arises, all material portions of the Florida Civil Rights Act of 1992 (FCRA) were the same as the current version of the statutes.

FINDINGS OF FACT

1. Petitioner is a black male. He identifies himself variously as a "Caribbean black," "Jamaican," and "Rastafarian."

2. Respondent conducts its business at Port Everglades, a major Florida seaport (Port Everglades or the Port). Respondent's business is to service passenger and commercial shipping by transporting and loading cargo in and about Port Everglades.

3. Respondent is an employer within the meaning of the applicable statutory provisions. Petitioner was employed by Respondent from August 13, 2002, until October 29, 2003, when he was terminated.

4. At all relevant times, Lizabeth Divers (Divers) has been Respondent's Director of Human Resources. In that capacity she was responsible for Respondent's personnel matters as well as its compliance with the FCRA. Her job includes, at all relevant times, hiring and firing; employee discipline; implementing company polices; and receiving and investigating complaints lodged verbally or in writing by employees about any matters affecting their employment.1

5. At all times material to this case, Petitioner was aware of his right to lodge complaints verbally or in writing with Divers with respect to any matter affecting his employment,

   including any alleged unlawful employment practice. At no time prior to his termination did Petitioner do so.

6. The record contains no persuasive evidence concerning the composition of Respondent's workforce by race, national origin, religion, or any other classification relevant to Petitioner's claim against Respondent under the FCRA.

7. As previously noted, Petitioner was employed by Respondent from August 13, 2002, until October 29, 2003, when his employment was terminated by Divers for violating a company policy prohibiting possession of firearms or other weapons on Port property (the weapons policy). All of Respondent's employees, including Petitioner at all times material to this case, gain access to Port Everglades only by passing a security checkpoint. A security guard thereupon confirms that the individual has current port identification and parking decal. Once cleared to enter the Port, Respondent's employees have access to the entire Port, and are generally not under direct supervision as they perform their jobs.

8. Respondent's weapons policy is grounded in reasons that were obvious to any employee, and which had to have been obvious to Petitioner. The need for such a policy is self-evident. There is no evidence that any other person employed by Respondent has ever violated the weapons policy.

9. At relevant times Petitioner was licensed by the state to carry a concealed weapon. State licensure does not constitute authorization for Petitioner to ignore Respondent's weapons policy.

10. Petitioner had no job-related reason to carry a gun.

    
    

    Petitioner's job was to drive a truck known to seaport workers as a "mule." Mules are used to transport cargo from one location to another. Petitioner's basic job duty was to drive box loads of material from one location to another at Port Everglades.

11. Petitioner was qualified to do his job and performed his duties adequately with no prior disciplinary record.

12. Divers was unaware of Petitioner's alleged violation of the weapons policy until the start of the business day on Monday, October 29, 2003. At that time, it was brought to her attention that one or more of Petitioner's co-workers had confronted him over the weekend regarding a bulge at his waist, and that Petitioner had confirmed that the bulge was a gun.

13. Divers felt this alleged violation of the weapons policy was a serious accusation which, if true, would warrant immediate termination. She also felt that it posed a potentially life-threatening situation. Divers determined that Petitioner was scheduled to work that day. Divers immediately

    left her office and proceeded to the Broward County Sheriff's Office (BCSO) Port Everglades precinct to advise of the potential security threat. Divers sought BCSO's assistance in addressing this unprecedented and potentially dangerous situation.

14. BCSO immediately provided assistance in the form of three armed deputies. Each officer drove his police vehicle to intercept Petitioner on Port grounds.

15. The officers interviewed Petitioner in the presence of Divers. Petitioner freely admitted that he regularly concealed his gun in his vehicle. Petitioner had access to his vehicle throughout his shift.

16. The officers verified Petitioner's concealed weapons permit. Divers informed Petitioner and the officers that she was terminating Petitioner's employment.

17. There is no persuasive evidence that Petitioner protested this action or complained that it was motivated by race, national origin, or religion. Instead, the evidence established that Divers made a decision she was authorized to make, i.e., to terminate Petitioner for his admitted violation of the weapons policy. The officers disassembled Petitioner's gun, placed it in the trunk of Petitioner's vehicle, and escorted Petitioner off the Port property.

18. There is no evidence regarding who, if anyone, was hired to replace Petitioner following his termination. Petitioner has failed to show that any other similarly situated employee who violated the weapons policy was treated differently from Petitioner.

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

20. In this proceeding, Petitioner has the burden of proving by the preponderance of the evidence that Respondent committed an unlawful employment practice. Florida Department of Transportation v. J. W. C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

21. Section 760.10, Florida Statutes, sets forth the relevant portion of the FCRA and provides:

    1. It is an unlawful employment practice for an employer:

       
       

       1. To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.

          
          

       2. To limit, segregate, or classify employees or applicants for employment in

          any way which would deprive or tend to deprive any individual of employment opportunities, or adversely affect any individual's status as an employee, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.

          
          

22. The Supreme Court of the United States established, in McDonnell-Douglas Corporation v. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), a three-step analysis to be used in cases alleging discrimination where, as in this case, there is no direct evidence of discrimination.

23. Pursuant to this analysis, Petitioner has the burden of establishing a prima facie case of unlawful discrimination by a preponderance of the evidence. If a prima facie case is established, Petitioner must articulate some legitimate, non- discriminatory reason for the action taken against Petitioner. Once this non-discriminatory reason is offered by Respondent, the burden then shifts back to Petitioner to demonstrate that the offered reason is merely a pretext for discrimination. Before finding discrimination, "[t]he fact finder must believe the plaintiff's explanation of intentional discrimination." St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).

24. In order for Petitioner to establish a prima facie

    
    

    case, he must demonstrate each of the following: (1) he belongs

    to a protected class; (2) Respondent treated similarly situated employees outside of his classification differently or more favorably, or he was replaced by a person outside his protected class; (3) he was qualified for the position he held; (4) and suffered an adverse employment action. Maynard v. Board of Regents of Division of Universities of the Florida Department of

    Education, 342 F.3d 1281 (11th Cir. 2003).

    
    

25. Petitioner failed to prove a prima facie case because he proved only three of the four required elements. Petitioner proved that he belonged to a protected class; was qualified for the job he held; and suffered an adverse employment action, i.e. termination. However, Petitioner did not prove that Respondent treated similarly situated employees outside of his classification differently or more favorably. There is no evidence that any similarly situated employee would not be terminated for a violation of the company policy prohibiting weapons. Neither did Petitioner prove that he was replaced by a person outside his protected class. There is no evidence regarding who, if anyone, replaced Petitioner following Petitioner's termination. The failure to prove an element of a prima facie case is fatal to Petitioner's claim.

26. Under no circumstances is proof that, in essence, amounts to no more than mere speculation and self-serving belief

    on the part of the complainant concerning the motives of the employer sufficient, standing alone, to establish a prima facie

    case of intentional discrimination. See Lizardo v. Denny's, Inc., 270 F.3d 94, 104 (2d Cir. 2001)("The record is barren of any direct evidence of racial animus. Of course, direct evidence of discrimination is not necessary. . . . However, a jury cannot infer discrimination from thin air. Plaintiffs have done little more than cite to their mistreatment and ask the court to conclude that it must have been related to their race. This is not sufficient.")(citations omitted.); Reyes v. Pacific

    Bell, 21 F.3d 1115 (Table), 1994 WL 107994 **4 n.1 (9th Cir. 1994)("The only such evidence [of discrimination] in the record is Reyes's own testimony that it is his belief that he was fired for discriminatory reasons. This subjective belief is insufficient to establish a prima facie case."); Little v.

    Republic Refining Co., Ltd., 924 F.2d 93, 96 (5th Cir. 1991)("Little points to his own subjective belief that age motivated Boyd. An age discrimination plaintiff's own good faith belief that his age motivated his employer's action is of little value."); Elliott v. Group Medical & Surgical Service, 714 F.2d 556, 567 (5th Cir. 1983)("We are not prepared to hold that a subjective belief of discrimination, however genuine, can be the basis of judicial relief."); Rouillard v. Potter, 2003 WL

    21026814*9 (D. Minn. 2003)("A plaintiff's subjective belief or speculation that statements are discriminatory does not establish a claim of hostile work environment."); Coleman v.

    Exxon Chemical Corp., 162 F. Supp. 2d 593, 622 (S.D. Tex. 2001)("Plaintiff's conclusory, subjective belief that he has suffered discrimination by Cardinal is not probative of unlawful racial animus."); Cleveland-Goins v. City of New York, 1999 WL 673343 *2 (S.D. N.Y. 1999)("Plaintiff has failed to proffer any relevant evidence that her race was a factor in defendants' decision to terminate her. Plaintiff alleges nothing more than that she 'was the only African-American man [sic] to hold the position of administrative assistant/secretary at Manhattan Construction.' (Compl.¶ 9.) The Court finds that this single allegation, accompanied by unsupported and speculative statements as to defendants' discriminatory animus, is entirely insufficient to make out a prima facie case or to state a claim under Title VII."); Umansky v. Masterpiece International Ltd., 1998 WL 433779 *4 (S.D. N.Y. 1998)("Plaintiff proffers no support for her allegations of race and gender discrimination other than her own speculations and assumptions. The Court finds that plaintiff cannot demonstrate that she was discharged in circumstances giving rise to an inference of discrimination, and therefore has failed to make out a prima facie case of race

    or gender discrimination."); and Lo v. F.D.I.C., 846 F. Supp. 557, 563 (S.D. Tex. 1994)("Lo's subjective belief of race and national origin discrimination is legally insufficient to support his claims under Title VII.").

27. Assuming arguendo that Petitioner had established a prima facie case, it would be necessary to consider the second McDonnell Douglas factor, which requires Respondent to provide a legitimate, nondiscriminatory reason for its adverse employment action.

28. In this case, Respondent elected to put on a defense and established by convincing evidence that the reason for its action was Petitioner's violation on October 29, 2003, of Respondent's weapons policy. The evidence established that Divers, who was authorized to hire and fire employees, regarded violation of the weapons policy as a firing offense, even if an employee had violated the policy only once. The evidence established that Petitioner was terminated for a legitimate, non-discriminatory reason, i.e. his admitted failure to abide by the weapons policy.

29. Petitioner did not demonstrate that the reason given by Respondent for the adverse employment action was pretextual. It bears emphasis that Petitioner was not a credible witness. Respondent presented convincing testimony from its human

resources director, Divers, that not only established that there was a legitimate nondiscriminatory reason for Petitioner's termination, but that also cast serious doubt on the credibility of Petitioner's entire testimony (even those portions that were not directly contradicted by Respondent's evidentiary presentation). See Walker v. Florida Department of Business and

Professional Regulation, 705 So. 2d 652, 655 (Fla. 5th DCA 1998)(Dauksch, J., specially concurring)("[T]he trier of fact is never bound to believe any witness, even a witness who is uncontradicted."); Maurer v. State, 668 So. 2d 1077, 1079 (Fla. 5th DCA 1996)("A judge acting as fact-finder is not required to believe the testimony of police officers in a suppression hearing, even when that is the only evidence presented; just as a jury may disbelieve evidence presented by the state even if it is uncontradicted, so too the judge may disbelieve the only evidence offered in a suppression hearing."); and Bellman v.

Yarmark Enterprises, Inc., 180 So. 2d 663, 664 (Fla. 3d DCA 1965)("The two principal witnesses relied upon by appellant for the proof of usury were substantially impeached and we cannot say that the trial court was bound to accept their testimony. A chancellor as the 'finder of fact' may find a witness who has been impeached completely unworthy of belief, and in such

circumstances it is within his province to reject such testimony.").

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing the Petition for Relief and denying all relief requested therein.

DONE AND ENTERED this 1st day of November, 2005, in Tallahassee, Leon County, Florida.

S

FLORENCE SNYDER RIVAS

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 1st day of November, 2005.

ENDNOTE

1/ Divers has worked for Respondent for sixteen years. Petitioner deemed it necessary to accuse Divers of lying under oath and coercing others not to testify truthfully. Petitioner was afforded ample opportunity to provide a factual basis for his accusations and did not do so. Petitioner's contention that Divers lied under oath is rejected. Based upon careful

observation of all the witnesses and consideration of the record as a whole, it is specifically determined that Petitioner is not a reliable witness. It would serve no useful purpose to recount the baseless accusations contained in the transcript because it is determined that alleged events upon which Petitioner bases his claim of criminal wrongdoing by Divers and possibly by Respondent's attorney did not happen, and are, as well, irrelevant to the application of the law to the facts of this case.

COPIES FURNISHED:

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

Tallahassee, Florida 32301

Doswell Brown

1101 Northwest 23rd Terrace Fort Lauderdale, Florida 33311

Lizabeth Divers

Florida Transportation Services Post Office Box 22696

Fort Lauderdale, Florida 33335

Carmen M. Rodriguez, Esquire Carmen Rodriguez, P.A.

9245 Southwest 157th Street, Suite 209

Miami, Florida 33157

Cecil Howard, General Counsel 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: 05-002600

Orders for Case No: 05-002600