STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

A hearing was held pursuant to notice, on April 9, 2008, in Madison, Florida, before the Division of Administrative Hearings by its designated Administrative Law Judge, Barbara J. Staros.

APPEARANCES

For Petitioner: Raymond T. Goings, pro se

Post office Box 346 Quitman, Georgia 31643

For Respondent: No appearance

STATEMENT OF THE ISSUE

Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Charge of Discrimination filed by Petitioner on June 25, 2007.

PRELIMINARY STATEMENT

On June 25, 2007, Petitioner, Raymond T. Goings, filed an employment Charge of Discrimination with the Florida Commission

on Human Relations (FCHR) which alleged that Respondent, Twin Oak Juvenile Development, Inc. violated Section 760.10, Florida Statutes, by discriminating against him on the basis of race which resulted in his termination.

The allegations were investigated and on December 6, 2007, FCHR issued its Determination: No Cause and Notice of Determination: No cause. A Petition for Relief was filed by Petitioner on or about January 8, 2008.

FCHR transmitted the case to the Division of Administrative Hearings on or about January 16, 2008. A Notice of Hearing was issued setting the case for formal hearing on April 9, 2008.

The Notice of Hearing was mailed to Petitioner and to Respondent at the addresses provided by FCHR. Nothing was returned in the mail to indicate that the Notice of Hearing had not been received by either party.1/

At the commencement of the hearing, Petitioner appeared on his own behalf, but no appearance was made on behalf of Respondent. The hearing was recessed for approximately 30 minutes to give a representative of Respondent an opportunity to appear, but no appearance was made on Respondent’s behalf.

Petitioner testified on his own behalf. Petitioner’s Exhibits numbered 1 through 3 were admitted into evidence.

The hearing was not transcribed. Neither party filed a post-hearing submission.

FINDINGS OF FACT

1. Petitioner is an African-American male who was hired by Respondent in approximately September 2006. When hired, the name of the facility was Greenville Hills Academy. The nature of Respondent’s business was a residential facility which housed boys under an apparent contractual arrangement with the Department of Juvenile Justice.

2. Petitioner was hired by Respondent as a tester, teacher of life skills, and also was assigned library duties.

3. On December 5, 2006, Petitioner received a memorandum from George Hare, Lead Teacher, entitled “Areas of Concern.”

   The memorandum addressed Respondent’s areas of concern regarding Petitioner, including problems with administering intake and exit tests to clients, as well as Petitioner’s attitude with co- workers.

4. At some point, Petitioner was placed in a welding class. It is his understanding that, in the context of his teaching certificate, he is not permitted to teach outside his field. Petitioner was not certified in welding. Because of that, he refused to teach the welding class or to give grades to students in the class.

5. On March 21, 2007, Petitioner received another memorandum from Mr. Hare. The memorandum notes that the grades in question were not welding grades but grades for the life

   skills portion of the welding class. The memorandum concludes by placing Petitioner on suspension for two days for failure to perform a duty or to follow instructions.

6. On March 26, 2007, Petitioner received a Memorandum from Jeff McSpaddin, Director of Grants and Projects, notifying him that his employment was being terminated for insubordination and continued nonperformance of assigned duties and responsibilities.

7. Petitioner asserts that he was not properly trained by Respondent and that white employees were properly trained.

   Other than Petitioner’s general statements, there is no specific evidence in the record as to who these other employees were, their positions, or what type of training they may have received that he did not.

8. Petitioner also asserts that he was not provided with another staff person who could cover for him when he went to the restroom. Because of the nature of the facility, teachers were not permitted to leave students in a classroom even while going to the restroom, and needed a staff person to cover in that instance. As a result, Petitioner could not go to the restroom when needed. He does not know, however, if other teachers were assigned staff to assist them in this regard.

9. Other than the general allegations that he believed white employees received training that he did not and were generally treated better than he was, Petitioner did not identify any similarly situated employees of Respondent outside of his protected class who were treated more favorably. Moreover, there is no evidence that anyone of another race replaced him.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case.

    §§ 120.569 and 120.57, Fla. Stat.

    
    

11. 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.

12. 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.

13. To establish a prima facie case, Petitioner must prove that (1) he is a member of a protected class; (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 McDonnell, supra; Gillis v. Georgia Department of Corrections, 400 F.3d 883 (11th Cir. 2005).

14. Petitioner has met the first and second elements to establish a prima facie case of discrimination in that he is a member of a protected class and was subject to an adverse employment action.

15. However, he has not proven the third element, that his employer treated similarly situated employees who are not members of the protected class more favorably. There is no evidence that establishes that race played any part in his termination, nor whether anyone of another race replaced him. Petitioner has not provided any competent evidence that any non- minority employees with whom he compares his treatment were similarly situated yet treated more favorably. See Holifield v.

    Reno, 115 F.3d 1555 (11th Cir. 1997).

    
    

16. Other than Petitioner’s assertions that Respondent discriminated against him, Petitioner presented no evidence establishing that Respondent’s actions in terminating him were racially motivated. Petitioner’s speculation and personal belief concerning the motives of Respondent are not sufficient to establish intentional discrimination. See Lizardo v. Denny’s, Inc., 270 F.3d 94, 104 (2d Cir. 2001) ("Plaintiffs have done little more than to cite to their mistreatment and ask the court to conclude it must have been related to their race. This is not sufficient.")

17. As to the fourth component, Petitioner asserts that he holds a teaching certificate. There is nothing in the memoranda from Respondent to indicate that he was not qualified for the job. It is concluded that Petitioner meets the fourth component of establishing a prima facie case regarding his being qualified for the job.

18. Applying the McDonnell analysis, Petitioner did not meet his burden of establishing a prima facie case of discriminatory treatment. In summary, Petitioner has failed to carry his burden of proof that Respondent engaged in racial discrimination toward Petitioner when it terminated him.

19. Because a prima facie case was not established, it is not necessary to go to the next level of the McDonnell analysis. In any event, Respondent did not appear at the hearing to present any such evidence.

RECOMMENDATION

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 9th day of May, 2008, 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 9th day of May, 2008.

ENDNOTES

1/ Prior to the hearing date, the undersigned’s assistant attempted to call Mr. Michael Baty, the person indicated on the FCHR transmittal letter as Respondent’s representative, to make standard pre-hearing inquiries as to whether the case was proceeding to hearing as scheduled, as nothing had been filed on behalf of Respondent. An unidentified person informed her that Mr. Baty was no longer in Madison and that the name of the facility had again changed and was no longer Twin Oak Development. However, there is nothing in the record to substantiate this or to indicate whether Respondent’s entity presently exists. In any event, she did not reach Mr. Baty and no one appeared on behalf of Respondent.

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:

Raymond T. Goings Post Office Box 346

Quitman, Georgia 31643

Michael Baty

Twin Oak Juvenile Development, Inc. 742 Southwest Greenville Hill Road Greenville, Florida 32331

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.

Docket for Case No: 08-000309

Orders for Case No: 08-000309