Michael Ruff, duly-designated Administrative Law Judge of the Division of Administrative Hearings. The hearing was conducted in Deland, Florida, on January 26, 2006. The appearances were as follows:
For Petitioner: Billy K. Speed, pro se
For Respondent: James L. Reinman, Esquire
The issue to be resolved in this proceeding concern whether the Petitioner was subjected to an adverse employment action (termination) for discriminatory reasons, based upon his race, an alleged violation of Section 760.10, Florida Statutes (2005).
This action arose upon the filing of a charge of discrimination and later a Petition for Relief by the Petitioner, Billy K. Speed. The Petitioner contends that he was terminated from his employment with the Respondent for discriminatory reasons based upon his race (black). The Florida Commission on Human Relations (Commission) made a preliminary investigation and found cause to believe that employment discrimination occurred.
The cause was transmitted to the Division of Administrative Hearings and the undersigned Administrative Law Judge for adjudication. The cause came for hearing, as noticed, at which the Petitioner presented one witness, himself, and two exhibits, which were admitted into evidence. The Respondent presented the testimony of Larry Coltelli, one of the owners of the Respondent corporation; Rick Rinear, the Respondent's general manager; and Leanne Thompson, the personnel manager for the Respondent. The Respondent also offered one exhibit, which was admitted into evidence. Upon conclusion of the proceedings the parties elected to submit Proposed Recommended Orders which have been considered in the rendition of this Recommended Order.
Billy K. Speed was an employee of Premier Hospitality, Management, Inc., doing business as the Grand Seas Resort, for approximately three years prior to the termination of his employment, which resulted in this action. Mr. Speed is a black male.
The Respondent operates a resort in Daytona Beach and a substantial portion of its business activities involves conducting sales tours of its properties. A significant part of Mr. Speed's duties as an employee of the resort was to drive the tour buses bringing potential customers to the Grand Seas Resort facility. His duties additionally involved working on the "image team" involving keeping the exterior of the facility and grounds in proper condition. He worked on the maintenance staff and the maintenance manager or supervisor was his immediate superior. Mr. Speed occasionally assisted in cleaning up "the fitness center" in the Grand Seas facility, although this was not part of his regular duties. He was not performing that duty on the day the events in question, described below, unfolded.
Mr. Speed had a prior criminal record but the Grand Seas Resort management was aware of that when he was hired. As shown by the testimony of Managers Mr. Rinear and Mr. Cottelli, Mr. Speed was a good employee and was well liked by his fellow employees and by the members of management who testified for the
Respondent in this proceeding. He had good evaluations and had good personal relationships with his superiors at the facility.
On or about October 23, 2004, a motor cycle wash or "bike wash" was conducted on the grounds of the resort, just outside the fitness facility on the ground floor level. Various employees were helping with the bike wash which was apparently a charitable fund raising event. During the course of the day one of the employees who was helping with the bike wash, Heather Wood, placed her purse (apparently on a shelf) under the receptionist counter in the fitness facility. The fitness facility was open that day and various persons and employees had access to the facility and could move in and out of it, including the Petitioner.
The Petitioner maintains that there were five white females who were helping with the bike wash who he saw in the fitness center at various times that day in the vicinity of the receptionist counter. Three of the white females were employees and two of them were former employees. The Petitioner also had access to and did enter the fitness center that day. He contends that sometime around 2:30 in the afternoon of that day, just before he left the resort's premises for the day, he went into the fitness facility to use the telephone. The telephone was kept on top of the counter in the fitness facility. The Petitioner maintains that it was his habit and on this occasion
he did squat down or sit down behind and below the level of the counter top while using the phone. There was a bar-type stool behind the counter in the fitness facility.
The five white females had access to the fitness facility that day as did an unknown number of employees and non- employees of the resort who were either working at the bike wash event or present on the premises for other reasons. The Respondent employees a substantial number of minority employees as well as Caucasian employees. Many of them, whether or not their work assignment involved their presence in the fitness facility, had access to the fitness facility that day.
Heather Wood reported to the Respondent's management that money was missing from her purse which had been behind and underneath the reception area counter in the fitness facility. Upon learning of that occurrence, Mr. Colitelli, a partial owner of the resort and Mr. Rinear, the general manager, viewed a surveillance tape recorded by the security company used by the Respondent, which was taken that day by a surveillance camera located in the fitness facility. Mr. Colitelli and Mr. Rinear viewed the entire tape for that day as well as the portion of the tape which was introduced into evidence.1/
In viewing the tape both Mr. Colitelli and Mr. Rinear observed that the Petitioner had gone behind the counter in the fitness facility that day during a relevant time period before
the alleged theft was reported and they observed that he bent down for some substantial period of time behind the counter, out of sight of the camera and where the purses were located. Both Mr. Colitelli and Mr. Rinear maintained in their testimony that no other person who entered the fitness facility during that day was shown on the surveillance tape to be in the area of the purses behind and beneath the counter. The Petitioner maintained in his testimony that the five white females he considers to be similarly situated employees (or former employees) were around and behind the counter at various times that day and, under his theory of the case, would have opportunity to have been suspects in the theft as well.
It is also a fact that due to the circumstances of the way the bike wash event was conducted and due to the fact that the fitness facility was open that day to other employees of the resort, as well as persons participating in the bike wash, that other persons both employees and otherwise had access to the fitness facility that day. In any event, according to both
Mr. Colitelli and Mr. Rinear, no other person who entered the facility during the day in question was shown on the tape to have been in the immediate area of the purses, including the purse from which money was allegedly taken. Accordingly, they believed that they had a reasonable suspicion that the Petitioner may have been involved in the theft of the missing
money. This belief is based upon his presence behind the counter and his bending down out-of-sight behind the counter for a significant period of time where the purses were located.
Consequently, the Petitioner was called to a meeting with Mr. Colitelli and Mr. Rinear for them to question him about this occurrence. When they questioned the Petitioner about what he knew concerning the theft incident he denied any knowledge or responsibility for it. Mr. Colitelli's and Mr. Rinear's testimony indicates that the Petitioner offered to take a polygraph to establish that he was not guilty of the theft and the Petitioner maintains that they asked him to take a polygraph. The Respondent had never followed a practice of requiring any employees to submit to a polygraph examination and this was the first such occasion where a polygraph was scheduled for an employee. In fact, as established by Mr. Rinear, in his four years with the Respondent company no employee had ever been required to take a polygraph. He did not even know of a polygraph examiner, but had to look in the yellow pages to locate one when he and Mr. Colitelli decided to schedule a polygraph for the Petitioner.
The polygraph was scheduled for two days later Friday, October 26, 2004. The Petitioner told them that he would have to "speak to someone" about whether or not to take the polygraph. The next morning, Thursday morning, he came in and
talked to Ms. Thompson about the matter and told her that upon advice of an attorney that he had decided not to take the polygraph. At that point Ms. Thompson recommended to her superiors that he be "laid-off." The Petitioner's employment was terminated that day.
The Petitioner admitted that he was in the fitness center on the day the theft occurred and admitted going behind the counter. He admitted stooping down behind the counter for a significant period of time and offered no explanation for doing so other than using the phone. In fact, in order to use the phone it was not necessary to stoop down low behind the counter because the phone was kept on top of the counter. The Petitioner could have access to the phone from in front of the counter, or alternatively, their was a bar stool behind the counter upon which the Petitioner could sit while using the phone. He offered no plausible explanation as to why he had to stoop down low behind the counter where he would not appear on the camera.
The management of the Respondent's facility,
Mr. Colitelli and Mr. Rinear, did not question other persons who had entered the fitness facility on the day in question because no other person shown on the video tape had been in the immediate area of the purses and squatting down behind the counter, out-of-sight of the camera. The five white females
referenced by the Petitioner in his testimony were not questioned, but neither was any other employee or other person who had access to the fitness facility that day. This is because the witnesses for the Respondent saw no other persons on the tape they viewed who were in the vicinity of where the purse was kept behind the counter and who behaved in such a way as to arouse suspicion that they might have been capable of taking the money.
The Petitioner offered no witnesses in support of his contention or version of events other than his own testimony. The Petitioner admitted that he had a good relationship with his manager, Mr. Rinear, who made the decision to lay him off. They had always had friendly relations and he did not ever feel discriminated against by Mr. Rinear or other Grand Seas employees or managers, except with regard to the termination incident at issue. The Petitioner also admitted that it would have not have been necessary to go behind the counter to use the phone and that he had no employment business in the fitness center that day. He offered no reason why he was there on that date other than the stated need to use the telephone.
The Respondent clearly had a reasonable suspicion that the Petitioner might have taken the money. The Respondent candidly acknowledges that the suspicious nature of the Petitioner's behavior depicted on the tape does not prove that,
in fact, the Petitioner took the missing money. It terminated him because of its suspicion that he took the money not because it had proof that he took the money. The Respondent elected not to make any record of the Petitioner being terminated, as a termination for cause, because of any misconduct related to this incident. Rather, it entered the reason for his termination on employment compensation filing documents as being that the Petitioner was the subject of a lay-off that it carried out with regard to some forty-five or forty-six other employees. This was due to hurricane damage to the resort suffered during the 2004 hurricanes.
Ms. Thompson, the personnel director, testified that the Petitioner was selected to be part of the lay-off because he did not have alternative skills such as plumbing, painting, or electrician skills, which might have enabled him to assist in the repair work being done on the facility due to the hurricane damage. It is determined, however, that such was a reason given by the Respondent in order to insure that the Petitioner would not have a firing for cause on his record, would be able to obtain a good employment reference upon leaving the Respondent's employ, and would be able to obtain his unemployment compensation benefits. It is found that the real reason he was terminated was due to the Respondent's suspicion of his involvement in the theft.
The Respondent's witnesses established that they and the Petitioner had always had a good relationship and that, by showing his departure as being as a result of a lay-off due to a reduction in employees because of hurricane damage, they would be doing him a favor by preserving his right to unemployment compensation benefits and to a good reference for other employment.
There was no testimony elicited by the Petitioner or the Respondent which indicated that the employment decision was affected by or based upon the Petitioner's race. The Respondent has employed substantial numbers of minorities of several categories. In fact, the percentage of black employees was approximately double the percentage of blacks available in the community labor market for employment. The lay-off due to hurricane damage of approximately 46 persons did not disproportionately consist of minorities either. In fact, the majority of the persons laid off in this effort were Caucasian. The only incident of racial discrimination during his employ with the Respondent, testified to by the Petitioner, was an incident that had occurred approximately 1 1/2 years before when an unknown person had written a racial epithet on a newspaper in the work area where Mr. Speed worked at the time, while he was away from the area. The Petitioner admitted that he had no idea who had done it but he reported it to his superiors and
Ms. Thompson, the personnel director. She vigorously investigated the incident and interviewed all employees who had reasonable access to the area where the newspaper was found.
She was unable to determine if anyone who worked for Grand Seas, or any other person, might have been guilty of committing that act.
Whether or not the Petitioner requested the polygraph or Mr. Rinear and Mr. Colitelli requested that he take the polygraph makes little difference. The Petitioner maintains that he was discriminated against because of being black because the five white females he postulated as comparative employees were treated more favorably than he with regard to the incident (no questioning and no polygraph.) This theory fails to take into account the fact that it has not been demonstrated that the Petitioner and those five white females were the only persons who had access to the fitness facility when the purported theft occurred during that day. No other employees, whether white females or other minority or Caucasian employees were questioned or scheduled for a polygraph. The Petitioner was questioned because of the above-referenced behavior, witnessed by management on the video tape on the day at issue, which caused them to focus their suspicions on him. Since they felt they had no reasonable suspicion of any other employee whether minority or not, who had access to the fitness facility that day, they
had a plausible reason for not attempting to schedule a polygraph or questioning of such other employees or persons.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2005).
The Petitioner has the burden of proof and the ultimate burden of persuasion in this proceeding to show by a preponderance of the evidence that he was the victim of an adverse employment decision based upon his race and that he suffered damages as a result. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
The Respondent has been shown to be an employer within the meaning of Chapter 760, Florida Statutes. It is an unlawful employment practice under Section 760.10, Florida Statutes, for an employer to discharge or to fail or refuse to hire an individual or otherwise discriminate against an individual with respect to that individual's race. § 760.10(1)(a), Fla. Stat. (2005). Since Chapter 760, Florida Statues, was patterned after Title VII of the Civil Rights Act of 1964, as amended, federal cases are appropriate in analyzing claims under the Florida Civil Rights Act, Chapter 760, Florida Statutes. See Harper v.
Blockbuster Entertainment Corp., 139 F.3d 1385, 1387 (11th Cir.
1998).
In order for a Petitioner to prove intentional discrimination through circumstantial evidence as is the case in the instant situation, the burden-shifting analysis employed by the court in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802-805 (1973) is appropriately employed. A prima facie case of discrimination through circumstantial evidence is made if the Petitioner's shows that he is a member of a protected class or category; that he was subjected to an adverse employment action; that he was either replaced by a person outside his protected class or similarly situated employees outside his protected class were treated more favorably than he; and that he was qualified to perform his job. See Joseph v. Publix Supermarkets, Inc., 983 F. Supp. 1431, 1444 (Southern District Florida 1997); Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997).
If the Petitioner establishes a prima facie case of discrimination based upon race, the burden shifts to the Respondent employer to show that the employment decision rather was motivated by a legitimate, non-discriminatory reason. Texas Department of Community Affairs v. Burdine, 101 S. Ct. 1089, 1993 (1981) 450 U.S. 248 (1981). If a legitimate, non- discriminatory reason for the employment action taken is articulated by the employer, then the Petitioner must demonstrate that reason is, in fact, pretextual and not the true
reason for the employment decision made. If a prima facie case of discrimination is established by the Petitioner and the Respondent employer's articulated reason is not deemed credible, then circumstantial evidence is sufficient to define that reason as pretextual. See Farley v. Nationwide Mutual Insurance Company, 197 F.3d 1322, 1337 (11th Cir. 1999).
Concerning the question of establishment of a prima facie case of race discrimination, the Petitioner has established that he is a member of a protected category since he is black. He also established that he suffered an adverse employment action. However, he was not replaced by any person of a protected class or a non-protected class after he left the Respondent's employ through the date of the hearing. He established that he was qualified to perform his job. In fact, his employers liked him as a person and were well-pleased with his job performance over the three years he was employed with the Respondent. They took the employment action reluctantly because of this.
Concerning the proof element as to whether similarly- situated employees were treated more favorably who were outside his protected class, the Petitioner maintains that the five white females were not required to take a polygraph test nor questioned concerning the theft. It has not been shown, however, that they were similarly-situated employees since the
preponderant evidence shows that the five white females were not simply working behind the desk (as Petitioner contends) where the money was stolen, in spite of which the Petitioner was the only individual questioned about the theft, scheduled for a polygraph, and subsequently terminated. In fact, not only those five white females, but other employees and persons as well, had access to the fitness facility and the desk area on the day in question. It has not been definitively shown that they were similarly-situated, because none of them or any other person or employee observed on the video tape to have been in the fitness facility that day behaved in the manner in which the Petitioner did, as described above. The preponderant evidence of record shows that this behavior is the reason suspicion was focused on the Petitioner, not because of his race. It is also a reasonable basis why no other person was actually questioned by the Respondent.
Even if a more careful, thorough investigation might have included questioning of other persons who had access to the fitness facility, the failure to do so does not indicate that the focus on the Petitioner was merely because of his race. It also does not indicate that similarly situated persons were treated more favorably, because the persons not questioned were not shown to have been in the same category of location and behavior as the Petitioner, and to have only consisted of
persons outside the protected class. This is especially true when one considers the unrefutted fact that a substantial number of minorities are employed by the Respondent and that the lay- offs that occurred were in major part directed at Caucasian employees.
It is also noteworthy that the Respondent has no history of any racially discriminatory conduct towards its employees. When the Petitioner reported the incident of the racial epithet written on the newspaper, the Respondent vigorously investigated the matter, was apologetic to the Petitioner concerning its occurrence, and made reasonably energetic attempts to ascertain the guilty person. In summary, it has not been clearly and preponderantly demonstrated that the five white females selected by the Petitioner were truly similarly-situated employees. The Petitioner's unsupported, subjective belief that they were is not sufficient to meet his burden. Earley v. Champion International Corporation, 907 F.2d 1077 (11th Cir. 1990); William v. Hager Hinge Co., 916 F. Supp. 1163 (M.D. Ala. 1995).
Even assuming arguendo that the Petitioner is correct and that he was singled out to be accused of theft, or questioned concerning it at least, that the five white females were not, and that therefore the Petitioner was disparately treated, the Respondent has advanced and articulated a
legitimate, non-racially discriminatory reason for the employment action taken. It is determined, based upon preponderant, credible evidence that the employment action was taken because the Respondent had a reasonable suspicion that the Petitioner was guilty of the theft involved in this case. That was the true reason that the Petitioner was terminated. He was not terminated through a lay-off due to hurricane damage as a pretext for what amounted to racial discrimination. Rather, the lay-off rationale based upon hurricane damage, and the need to include the Petitioner in a fairly large universe of employees who were laid-off after the hurricanes damaged the resort, was a reason publicly given and filed with unemployment compensation claim documents because the Respondent was attempting to assist the Petitioner in obtaining unemployment compensation benefits and a good reference for later employment. This is because the Petitioner's supervisors genuinely liked the Petitioner and found him to be a good, loyal employee and genuinely regretted what they believed was the necessity to terminate his employment when they were admittedly not entirely certain that he had committed the theft. They rather felt that he was the only person they reasonably could suspect of the theft.
In the face of this showing, the Petitioner did not persuasively establish that this was a pretextual reason for what really amounted to a decision based upon race
discrimination. Even if an employer's reason may not be overly laden with wisdom and fairness, if the decision is reasonable, under the circumstances, as here, and its reason articulated is one which would motivate a reasonable employer, pretext is not proven. Combs v. Plantation Patterns, 106 F.3d 1519, 1543 (11th Cir. 1997). The Petitioner's testimony constituting his opinion that he was singled out because of his race for termination does not constitute preponderant evidence that such was the case, in the face of the evidence adduced by the Respondent and its three witnesses. A Petitioner's subjective opinion, standing alone, is not sufficient to establish discrimination. William v. Hager Hinge Co., supra.
In summary, given the entire body of circumstantial evidence adduced in this case, preponderant evidence that the termination was due to racially discriminatory animus on the part of the Respondent has not been established. Accordingly, the Petitioner's ultimate burden of persuasion has not been successfully borne.
