STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BOBBIE EDWARDS,
Petitioner,
vs.
CITY OF DELAND,
Respondent.
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) Case No. 05-4142
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RECOMMENDED ORDER
A hearing was held pursuant to notice, on February 3, 2006, in Deland, Florida, before the Division of Administrative Hearings by its designated Administrative Law Judge, Barbara J.
Staros.
APPEARANCES
For Petitioner: Bobbie Edwards, pro se
155 East Stetson Street Apartment 6
Deland, Florida 32724
For Respondent: Jeffrey E. Mandel, Esquire
Ackerman Senterfitt Post Office Box 231
Orlando, Florida 32802-0231 STATEMENT OF THE ISSUE
Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on May 10, 2005.
PRELIMINARY STATEMENT
On May 10, 2005, Petitioner, Bobbie Edwards, filed a Charge of Discrimination with the Florida Commission on Human Relations (FCHR) which alleged that the City of Deland violated Section 760.10, Florida Statutes, by discriminating against him on the basis of race. The Charge of Discrimination alleged hostile work environment, failure to reassign to another job position, constructive discharge, and retaliation.
The allegations were investigated and on October 5, 2005, FCHR issued its determination of "no cause" and Notice of Determination: No Cause. A Petition of Relief was filed by Petitioner on November 7, 2005.
FCHR transmitted the case to the Division of Administrative Hearings (Division) on or about November 14, 2005. A Notice of Hearing was issued setting the case for formal hearing on February 3, 2006. The hearing proceeded as scheduled.
At hearing, Petitioner presented the testimony of Jane Wilkinson and testified on his own behalf. Petitioner's Exhibits numbered 14, 17-20, 25, 26, 28, and 32 were admitted
into evidence. Petitioner's Exhibits numbered 6 through 13, 22,
23, 29, 30 and 31 were also admitted for a limited purpose:
as evidence that Petitioner wrote the documents that are those exhibits but not as proof of the contents of those exhibits.
Respondent presented the testimony of John Stanberry, and
James Ailes. Respondent offered into evidence Exhibits Numbered
1 through 14, 16 through 20, 23, and 25 through 30 which were admitted into evidence.
A Transcript, consisting of two volumes, was filed on February 17, 2006. On February 11, 2006, Petitioner filed a letter in the nature of post-hearing arguments. Petitioner filed a proposed Order March 2, 2006, and Respondent filed a Proposed Recommended Order on March 3, 2006, which have been considered in the preparation of this Recommended Order.
FINDINGS OF FACT
Petitioner is an African-American male1/ who was employed by Respondent from 1998 until his resignation on May 13, 2004.
Respondent, the City of Deland (City), is an employer within the meaning of the Florida Civil Rights Act.
At all times while he was employed by Respondent, Petitioner worked in the City's Utilities Department, Water Production Division. Petitioner began his employment as a Maintenance Worker I and was promoted to Maintenance Worker II in 2003. A Maintenance Worker II is responsible for the upkeep of the wells and plants and performs a variety of semi-skilled manual tasks including laying pipe, pouring and forming concrete, installing water meters, mowing, fence maintenance, digging, cleaning, painting, simple maintenance on vehicles and
equipment, yard maintenance, routine custodial work, and minor repairs.
The Water Production Division is responsible for the care and maintenance of the City's drinking water wells. The City owns 11 wells and seven water production plants. The plants are drinking water class "C" plants.
John Stanberry is the Chief Water Plant Operator for the City. He has been in that position since 1999 and has worked for the City for 19 years. At all times material to this proceeding he has been either Petitioner's immediate supervisor or his second-level supervisor.
Petitioner received "above standard" ratings from Mr. Stanberry on his 1999, 2000, and 2001 performance
appraisals. These ratings were endorsed (given a second-level rating) by Robert Harrison, the Deputy Utilities Director.
On each of his performance appraisals, the City encouraged Petitioner to begin a class "C" drinking water course to obtain a drinking water certification or license. Petitioner was also encouraged verbally by his supervisors to obtain this certification. In order to obtain this certification, a person must pass a state examination and obtain one year's experience in actual plant operations. Obtaining this certification would have allowed Petitioner to advance within the Department and become a plant operator.
The "well route" is a daily operation that must be performed by a person holding at least a class "C" license. Lloyd Joiner holds such a license and is directly responsible for the well routes. He is required to take daily well readings and note the well pumpage and the chemicals used at each water plant. He is also required to perform daily well functions, such as maintenance, repairs and hauling away hazardous materials. Because of the hazards involved in this work, a second person is required to accompany Mr. Joiner on the well route. If the plant operator is out sick or on vacation, the position is temporarily filled by a maintenance worker.
During 2001, the plant operator position which served as the second person on the well route became vacant. The position was advertised, but the City did not receive any applications as there was a shortage of water operators in the state. Petitioner was assigned to temporarily fill-in on the well route. Consequently, Petitioner's primary focus changed from performing regular maintenance work to performing day-to- day well route operations.
Petitioner was informed by his supervisors that he would be permitted to study for the class "C" drinking water exam during work hours and that he would not be able to stay on the well route permanently if he did not get the class "C" certificate.
In 2002, Petitioner's performance appraisal was completed by Lloyd Joiner, Assistant Chief Plant Operator and was endorsed by John Stanberry. Again, Petitioner received an "above standard" rating. Petitioner was then promoted to Maintenance Worker II in 2003.
In 2003, Petitioner had gained the necessary work experience to obtain the drinking water license but had not enrolled in any course to enable him to take the certification examination. Mr. Stanberry removed Petitioner from the well route and returned him to regular maintenance duties.
At that time, another Maintenance Worker II, Leo Woulard, had enrolled in a course to obtain his drinking water certificate but needed the necessary work experience to obtain his certificate. The decision was made by Deputy Director Robert Harrison and Mr. Stanberry to replace Petitioner on the well route with Mr. Woulard. Mr. Woulard is an African- American.
Petitioner was not pleased that he was taken off the well route and returned to regular maintenance duties. After Petitioner was returned to regular maintenance duties,
Mr. Stanberry observed what he believed to be unsatisfactory work by Petitioner.
Petitioner's 2003 job performance evaluation was again completed by Mr. Joiner and endorsed by Mr. Stanberry.
Mr. Joiner gave Petitioner high scores on the well route work. Mr. Stanberry, however, rated Petitioner's work in performing his regular maintenance duties and gave him low scores in three areas. This was the first time since Petitioner began his employment for the City that Mr. Stanberry gave him below standard scores. Notwithstanding these lower scores, Petitioner received an "above standard" rating on his 2003 performance appraisal and received a merit pay increase. Petitioner did not regard this performance appraisal as discriminatory.
On September 9, 2003, which was immediately after the 2003 performance appraisal, Mr. Stanberry wrote a memo to Petitioner as a written backup to verbal counseling he had given to Petitioner:
This memo is to inform you of your responsibility when assigned work duties. When I give you a task to do, I expect the job to be done. I want the job completed in a timely manner with good results. I don't want corners to be cut or jobs to be avoided because you don't feel it's your responsibility. If you have questions about a task, you need to ask me and make sure you understand what is expected of you in the assigned job or make sure it's done better than what I expect. I don't feel like you do projects to the best of your abilities and I would like to see improvement.
This memo was not considered formal disciplinary action and was, therefore, not placed in Petitioner's personnel file.
The September 9, 2003, memo was the first time that Mr. Stanberry had issued a counseling memo to Petitioner and is what Petitioner perceives to be the first incident of discrimination by Mr. Stanberry towards him. Petitioner's allegations regarding discrimination involve only Mr. Stanberry.
Petitioner asked Mr. Stanberry to clarify the September 9, 2003, memo. The next day, Mr. Stanberry wrote a follow-up memo which read as follows:
This memo is to clarify the previous memo. You were assigned to clean well houses for three days on August 27, 28, and 29 upon my inspection on Sunday, August 31st I found that you had done very little cleaning and had not cleaned three well sites at all. In three days time all of the wells should have been spotless. I have told you time and again what to clean and how, and you failed to do this completely again. It is my opinion that your performance related to this assignment does not meet minimum standards.
Mr. Stanberry gave this memo to Petitioner in person at a meeting with Petitioner and Mr. Joiner. At this point, things began to deteriorate between Petitioner and
Mr. Stanberry. Mr. Stanberry asked Petitioner to mow the grass at the main water plant but Petitioner refused. Petitioner made reference in this meeting to the Taliban either hiring or
looking for fighters. Mr. Stanberry felt threatened by this statement.
On the afternoon of September 10, 2003, Petitioner met with Mr. Stanberry, Mr. Joiner, and Mr. Harrison to discuss what happened that morning. Petitioner was belligerent at this meeting and stated that he did not want to work for
Mr. Stanberry any longer and would not report back to work until he had been transferred to another department.
On September 11, 2003, Petitioner reported to work at 7:00 but refused to work for Mr. Stanberry. Instead, Petitioner waited for Mr. Harrison to arrive. Mr. Harrison allowed Petitioner to complete a Leave of Absence request form for six days of vacation to begin the next day. Petitioner then left the work premises without permission and without clocking out and did not return to work that day.
On September 11, 2003, Mr. Stanberry wrote a memo to Jim Ailes, Utility Director, informing him of the events of the past two days regarding Petitioner's evaluation and meeting with supervisors.
On September 16, 2003, Mr. Stanberry wrote another memorandum to Mr. Ailes outlining violations of personnel rules committed by Petitioner and requesting a meeting with Mr. Ailes to get recommendations as to what disciplinary actions should be taken against Petitioner.
After returning from his vacation on September 23, 2003, Petitioner again refused to perform work assigned to him by Mr. Stanberry. Mr. Stanberry informed Mr. Ailes of this. As a result, Mr. Ailes issued Petitioner a written reprimand for "insubordination by disobeying or refusing to follow a direct order or by refusing to perform assigned work or to comply with an official and legal supervisory directive or by demonstrating an antagonistic, insolent, disrespectful or belligerent attitude toward management." It was Mr. Ailes' decision to issue the written reprimand.
Under the City's disciplinary guidelines, insubordination is an offense for which an employee may be discharged upon the first offense. However, Mr. Ailes decided to issue a written reprimand in conformance with the City's step disciplinary action process. Mr. Stanberry's memos to Petitioner were considered written confirmation of oral reprimands. This written reprimand was the next step of discipline.
On September 24, 2003, another incident occurred in which Petitioner again refused a work assignment. Mr. Stanberry reported this to Mr. Ailes. As a result, Mr. Ailes suggested that Petitioner receive his work assignments from Mr. Joiner instead of Mr. Stanberry in an attempt to diffuse this situation. However, this did not solve the matter.
Petitioner requested a transfer. Mr. Ailes inquired of other department heads as to whether there were any available positions and whether or not the other department heads were willing to take Petitioner as an employee. There were no positions in the other branches in the utilities department to which Mr. Ailes could transfer Petitioner. He also attempted to transfer Petitioner outside the Utilities Department, including Mr. Davenport of the Public Works Department. However,
Mr. Davenport was not willing to allow the transfer. Mr. Davenport is an African-American.
Further, Mr. Ailes directed Petitioner to visit the City's employee assistance program (EAP) in a memo dated October 1, 2003.
A series of incidents happened during the first half of October 2003 in which Petitioner continued to refuse or challenge assignments made to him by his supervisors.
On October 13, 2003, Petitioner met with
Mr. Stanberry, Mr. Harrison and plant operator Jeff Hunter. The purpose of the meeting was to discuss and resolve allegations of an incident that occurred a year prior to this time. The incident concerned a telephone call made by Petitioner's girlfriend, Jane Wilkinson. According to Ms. Wilkinson, she called Petitioner's workplace for Petitioner, and the phone was answered by Mr. Hunter, who asked her whether or not she and
Petitioner were married and would have children. Mr. Hunter had been counseled not to make inappropriate comments to anyone when answering the phone shortly after the incident occurred.
However, in this meeting on October 13, 2003, Petitioner told Mr. Hunter that he would "kick his ass" if he ever spoke to his girlfriend again and made other inappropriate comments.
Another incident happened on October 14, 2003, when Petitioner dropped a weed-eater spool on Mr. Stanberry's desk. Mr. Stanberry instructed Petitioner to work on something else until a new spool was purchased but Petitioner refused. Petitioner made inappropriate comments to Mr. Stanberry. In response, Mr. Stanberry told Petitioner that he was acting like a "damn fool."
Mr. Stanberry received a verbal reprimand from
Mr. Ailes for making that statement to Petitioner. Mr. Ailes informed Mr. Stanberry that if any further similar conduct occurred that progressive disciplinary action would be taken.
On October 15, 2003, Mr. Ailes issued a Notice of Proposed Discipline to Petitioner in which Mr. Ailes proposed a three-day suspension without pay and a letter of reprimand and warning for violations of the City's personnel rules on
October 9, 10, 13, and 14, 2003. The notice listed several offenses, including four which were identified as dismissal offenses, and instructed Petitioner, "[Y]our continuous
challenge of every assignment given to you must stop. The disrespectful, belligerent, threatening, and defamation of character of your immediate supervisor must stop." The letter also noted that Petitioner had refused to contact the City's EAP despite having been instructed to do so on three occasions.
Petitioner did not contest the proposed disciplinary action and served the three-day suspension.
Another incident occurred on October 27, 2003, resulting from a disagreement between Mr. Stanberry and Petitioner concerning an assignment of mowing the grass at a well station. Petitioner told Mr. Stanberry that he was acting "freaked out" and that Petitioner could not understand why. Petitioner said that he would understand Mr. Stanberry being "freaked out" if he got a call about his son being run over by a truck or turning up missing. Mr. Stanberry was alarmed about this comment and believed it to be a threat against his family.
Based upon the October 27, 2003, incident, Petitioner was placed on paid administrative leave pending an investigation. Mr. Ailes made an appointment for Petitioner with the EAP that day in an effort to diffuse the situation. Mr. Ailes recommended that Petitioner be terminated from employment in a Notice of Proposed Discipline.
A predetermination hearing was held on November 7, 2003, in which Mr. Ailes concluded that Petitioner committed all of the offenses outlined in the October 27, 2003, Notice of Proposed Discipline. However, Petitioner was not terminated. Petitioner was required to write a letter of apology to
Mr. Stanberry, refrain from making threats to co-workers and supervisors, and report to another supervisor, Mr. Hadley, for his work assignment. Additionally, Petitioner was placed on probation for a 90-day period and warned that if any further occurrence happened during that period, he would be terminated immediately.
On May 3, 2004, Mr. Stanberry went to Mr. Hadley, another supervisor, to discuss daily duties. Petitioner was in Mr. Hadley's office at the time. Mr. Stanberry wanted Petitioner to do painting and other tasks within his job description, but Petitioner responded that it was not his job to do so. Mr. Stanberry told Petitioner that these duties were his assignment for the day, and that if he did not want to complete them, he could leave. Petitioner and Mr. Stanberry argued. Petitioner called Mr. Stanberry a "faggot" and a "fucking faggot" and threatened to "whip [Mr. Stanberry's] ass."
Mr. Stanberry responded by telling Petitioner that if Petitioner came anywhere near him or his family that Mr. Stanberry would kill him.
As a result of this altercation, Mr. Ailes determined that both Petitioner and Mr. Stanberry should be disciplined. As for Mr. Stanberry, Mr. Ailes determined that Mr. Stanberry should receive a three-day suspension without pay.
Mr. Stanberry waived his predetermination hearing and wrote a letter of apology. Based upon Mr. Stanberry's apology letter and his years of service to the city, Mr. Ailes reduced the suspension to a two-day suspension and required Mr. Stanberry to attend a conflict management and confrontational skills seminar. He further advised Mr. Stanberry that if further incidents occurred, it could lead to termination.
As for Petitioner, Mr. Ailes issued a Notice of Proposed Disciplinary Action on May 6, 2004, in which he recommended that Petitioner be terminated and setting a date of May 14, 2004, for a predetermination hearing.
Prior to a final decision on the proposed termination, Petitioner resigned from his employment from the City. He did not request a predetermination hearing.
Mr. Stanberry played no role in the decision to discipline Petitioner for either the October 27, 2003, incident for which he was suspended, nor for the May 3, 2004, incident. Those decisions to discipline Petitioner were solely Mr. Ailes'.
Mr. Ailes proposed different levels of discipline for Mr. Stanberry and Petitioner because they were at different levels of the progressive discipline process. Petitioner had already received both oral and written reprimands and had been suspended for misconduct. Further, Petitioner had been recommended for termination as a result of the October 27, 2003, incident, but was instead placed on probation and allowed to return to work. In contrast, Mr. Stanberry had received only one previous verbal warning. Although the next step in the progressive discipline process for Mr. Stanberry would have been a written reprimand, Mr. Ailes believed the circumstances warranted an unpaid suspension.
There was no evidence presented that establishes or even suggests that Mr. Ailes' decision to impose discipline on Petitioner was based on race.
The only disciplinary actions imposed on Petitioner from Mr. Stanberry were the verbal and written counseling memo on September 9, 2003. Mr. Stanberry had written memos of a similar nature on at least two occasions to Caucasian employees. There is no evidence that Mr. Stanberry's actions toward Petitioner were based on race.
On August 2, 2004, Petitioner threw a cinder block through the front glass doors of City Hall. Petitioner was charged with Throwing a Deadly Weapon. Petitioner pled nolo
contendere to the charge. Adjudication was withheld and the court placed him on probation. He was later charged with violation of his probation. Petitioner ultimately pled guilty to the probation violation and he was adjudicated guilty of throwing a deadly missile at a building.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case.
§§ 120.569 and 120.57, Fla. Stat.
Section 760.10(1), Florida Statutes, states that it is an unlawful employment practice for an employer to discharge or otherwise discriminate against an individual on the basis of race.
In discrimination cases alleging disparate treatment, the Petitioner generally bears the burden of proof established by the United States Supreme Court in McDonnell Douglas v.
Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981).2/ Under this well established model of proof, the complainant bears the initial burden of establishing a prima facie case of discrimination. When the charging party, i.e., Petitioner, is able to make out a prima facie case, the burden to go forward shifts to the employer to articulate a legitimate, non-discriminatory explanation for the employment action. See Department of
Corrections v. Chandler, 582 So. 2d 1183 (Fla. 1st DCA 1991) (court discusses shifting burdens of proof in discrimination cases). The employer has the burden of production, not persuasion, and need only persuade the finder of fact that the decision was non-discriminatory. Id. Alexander v. Fulton
County, Georgia, 207 F.3d 1303 (11th Cir. 2000). The employee must then come forward with specific evidence demonstrating that the reasons given by the employer are a pretext for discrimination. "The employee must satisfy this burden by showing directly that a discriminatory reason more likely than not motivated the decision, or indirectly by showing that the proffered reason for the employment decision is not worthy of belief." Department of Corrections v. Chandler, supra at 1186; Alexander v. Fulton County, Georgia, supra. Petitioner has not met this burden.
Petitioner claims he was constructively discharged because of race discrimination. To establish a prima facie
case, he must prove that (1) he is a member of a protected class (e.g., African-American); (2) he was subject to an adverse employment action; (3) his employer treated similarly situated employees, who are not members of the protected class, more favorably; and (4) he was qualified for the job or benefit at issue. See McDonald, supra; Gillis v. Georgia Department of
Corrections, 400 F.3d 883 (11th Cir. 2005).
Petitioner has not proven all of the elements to establish a prima facie case of discrimination. Although Petitioner was reluctant to identify himself as African-American at hearing (see endnote 1), he is a member of a protected class and was subject to an adverse employment action.
However, he has not proven that his employer treated similarly situated employees who are not members of the protected class more favorably. The person who replaced Petitioner on the well route was another African-American male.
As for disciplinary action, the only discipline imposed on Petitioner by Mr. Stanberry were the verbal warnings and two written memos. All other discipline Petitioner received was recommended and imposed by Mr. Ailes. Petitioner made no allegation that Mr. Ailes discriminated against him.
Even if Petitioner had made such an allegation, the actions taken by Mr. Ailes were consistent with the progressive discipline policy used by the City. That is, Mr. Ailes disciplined both Petitioner and Mr. Stanberry for the inappropriate statements made to each other on May 3, 2004.
Mr. Stanberry was required to serve a two-day unpaid suspension and attend an anger management course. Mr. Ailes did not recommend termination for Mr. Stanberry because it was only the second level of misconduct. Mr. Stanberry had previously been given a verbal warning for making an inappropriate comment to
Petitioner (calling him a "damn fool"). The second incident on May 4, 2004, should have resulted in Mr. Stanberry's receiving a written reprimand under the City's progressive discipline policy. However, Mr. Ailes imposed a more severe form of discipline, a two-day suspension. In contrast, Petitioner had previously been given a number of verbal and written warnings, served a suspension, and had been recommended for termination and placed on probation for making threatening statements and for failing to perform his duties. By the time the May 4, 2004, incident occurred, the next step in progressive discipline was a recommended termination.
Moreover, Petitioner did not prove the fourth component of establishing a prima facie case regarding his being taken off the well route in that he did not have the necessary certificate or license to be placed in the well route position permanently.
Applying the McDonald analysis, Petitioner did not meet his burden of establishing a prima facie case of discriminatory discharge. Even assuming that Petitioner had demonstrated a prima facie case of discriminatory discharge, the City demonstrated a legitimate, non-discriminatory reason for recommending his termination. The decision-maker (Mr. Ailes) followed the City's progressive discipline policy. The first level of discipline is a verbal warning, followed by a written
reprimand. The next level of discipline is suspension, then finally termination. Petitioner had received a number of verbal and written warnings and was given an un-paid suspension before the final recommended termination. In at least one instance, Petitioner was given the benefit of more lenient discipline than the progressive discipline policy would have warranted. The City's reasons for disciplining Petitioner were legitimate and non-discriminatory.
Even if it were necessary to go to the next level of the McDonald analysis, Petitioner did not produce any evidence that the City's legitimate reasons were pretext for discrimination. Therefore, Petitioner has not met his burden of showing that a discriminatory reason more likely than not motivated the decisions to impose disciplinary action or to replace Petitioner with another African-American male to the well route, or by showing that the proffered reason for the employment decision is not worthy of belief. Consequently, Petitioner has not met his burden of showing pretext.
In summary, Petitioner has failed to carry his burden of proof that Respondent engaged in racial discrimination toward Petitioner when it imposed disciplinary action or replaced him on the well route.
To make a prima facie case of retaliation, Petitioner must show that he engaged in protected activity, that he
suffered adverse employment action, and that there is some causal relation between the protected activity and the adverse employment action. Casiano v. Gonzales, 2006 U.S. Dist. Lexis 3593 (N.D. Fla. 2006); Jeronimus v. Polk County Opportunity Council, Inc., 2005 U.S. App. Lexis 17016 (11th Cir. 2005).
Petitioner has not produced any evidence that he was retaliated against.
As to the hostile work environment charge, to establish a prima facie case, Petitioner must prove that he is a member of a protected group, that he was subject to unwelcome harassment, that the harassment complained of was based on race, that the harassment complained of was sufficiently severe or pervasive to alter a term, condition, or privilege of employment by creating an abusive working environment, and that the employer knew or should have known of the harassment in question and failed to take remedial action. Sparks v. Pilot Freight
Carriers, Inc., 830 F.2d 1554 (11th Cir. 1987); Henson v. City
of Dundee, 682 F.2d 897, 905 (11th Cir. 1982).
Petitioner's asserts that he was subject to a hostile, intimidating, work environment by Mr. Stanberry. Certainly, after Petitioner was removed from the well route, the relationship between the two men began to deteriorate.
Mr. Stanberry made inappropriate comments to Petitioner after Petitioner began to refuse to take work assignments from
Mr. Stanberry and in response to inappropriate comments of Petitioner. These comments do not rise to the level of conduct described above and do not meet the essential elements to prove that a hostile work environment existed.
Petitioner's subjective belief that these inappropriate comments were motivated by unlawful discriminatory intent is generally insufficient to establish a violation of Title VII, regardless of the hostility of the conduct. For example, in Triplett v. Electronic Data Systems, 710 F. Supp. 667 (W.D. Mich. 1989), an employee "believed in [her] heart" that her supervisor was discriminating against her when he would continuously identify shortcomings in her work, would never look at her or talk to her casually, and was always very short with her. Id. at 671-72. Yet upon analysis of these claims, the court ruled that the plaintiff's observations and opinions were insufficient to establish violation of Title VII. Id.
While plaintiff may rightly complain that she was treated discourteously by [the defendant], no facts have been presented to support a finding that the tension was related to racial difference. The statutes under which plaintiff seeks redress for race discrimination are designed for that limited purpose, they do not provide a shield against all harsh treatment in the work place.
Id., at 672 citing McCollum v. Bolger, 794 F.2d 602, 610 (11th Cir. 1986)(personal animosity is not the equivalent of unlawful
harassment and is not proscribed by Title VII and a personal feud cannot be turned into a discrimination case merely by accusation).
Petitioner has not produced any competent evidence that he was subject to a hostile work environment created by
racial harassment.
Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is
RECOMMENDED:
That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief.
DONE AND ENTERED this 20th day of March, 2006, in
Tallahassee, Leon County, Florida.
S
BARBARA J. STAROS
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 20th day of March, 2006.
ENDNOTES
1/ At hearing, Petitioner testified that he is not African- American or a "black" person. However, he identified himself as an African-American male in his Charge of Discrimination. At hearing, he appeared to be an African-American male.
2/ FCHR and Florida courts have determined that federal discrimination law should be used as guidance when construing provisions of Section 760.10, Florida Statutes. See Brand v. Florida Power Corporation, 633 So. 2d 504, 509 (Fla. 1st DCA 1994).
COPIES FURNISHED:
Bobbie Edwards
155 East Stetson Street Apartment 6
Deland, Florida 32724
Jeffrey E. Mandel, Esquire Ackerman Senterfitt
Post Office Box 231
Orlando, Florida 32802-0231
Cecil Howard, General Counsel
Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Tallahassee, Florida 32301
Denise Crawford, Agency Clerk
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.
| Issue Date | Document | Summary |
|---|---|---|
| May 18, 2006 | Agency Final Order | |
| Mar. 20, 2006 | Recommended Order | Petitioner did not establish a prima facie case of race discrimination. Respondent established a legitimate, non-discriminatory reason for disciplinary action. |
