STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

A final hearing was conducted in this case by telephone conference on April 27, 2009, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Kenneth W. Johnson, pro se DC# 646344

Gulf Correctional Institution 699 Ike Steele Road Wewahitchka, Florida 32465

For Respondent: Jerome D. Mitchell, Esquire

1326 Ridgewood Avenue, Suite 8 Daytona Beach, Florida 32465

STATEMENT OF THE ISSUE

The issue is whether Respondent committed an unlawful employment practice by discriminating against Petitioner based on his race.

PRELIMINARY STATEMENT

On December 5, 2008, Petitioner Kenneth W. Johnson (Petitioner) filed an Employment Complaint of Discrimination against Respondent Daytona Inn Beach Resort (Respondent) with the Florida Commission on Human Relations (FCHR). The complaint alleged that Respondent had discriminated against Petitioner based on his race.

On February 23, 2009, FCHR issued a Determination: No Cause. Petitioner subsequently filed a Petition for Relief with FCHR. On March 27 2009, FCHR referred the case to the Division of Administrative Hearings.

A Notice of Telephonic Final Hearing dated April 8, 2009, scheduled the hearing for April 27, 2009.

During the hearing, Petitioner testified on his own behalf.

Petitioner offered no exhibits for admission into evidence.

Respondent presented the testimony of one witness.

Respondent offered no exhibits for admission into evidence. A transcript of the proceeding was not filed with the

Division of Administrative Hearings.

Respondent filed a Proposed Recommended Order on April 28, 2009. As of the date that this Recommended Order was issued, Petitioner had not filed proposed findings of fact and conclusions of law.

FINDINGS OF FACT

1. In February 2006, Respondent hired Petitioner, an African-American male, knowing that he had a criminal record. Respondent employed Petitioner as a porter. Respondent employed other African-American and Caucasian people as porters, housekeepers, and janitors.

2. Initially, Respondent paid Petitioner $7.25 per hour.

   
   

   Respondent was impressed with Petitioner's enthusiasm and willingness to perform physically demanding work. Respondent gave Petitioner a reward for always being on time and not being absent.

3. Respondent eventually raised Petitioner's salary to

   
   

   $10.00 per hour or $400 per week. Respondent gave Petitioner the promotion so that he and his wife could qualify for a mortgage. Respondent helped Petitioner pay off his wife's credit card debt for the same reason.

4. After Petitioner and his family moved into their new home, Carol Collett, Respondent's Caucasian General Manager, helped Petitioner furnish the house. Ms. Collett also attended the christening of Petitioner's new baby. Ms. Collett tried to help Petitioner as much as she could because she believed that everyone deserves a second chance.

5. At all times relevant here, Petitioner worked the night shift when there was no supervisor on the premises.

   Petitioner's position required Ms. Collett's trust because his duties included taking care of the front desk.

6. From approximately June 2007 through November 2007, Petitioner worked an average of 62 hours per week with no overtime compensation. There is no persuasive evidence that the other porters, Caucasian and/or African-American, were paid more than Petitioner or for overtime work.

7. Petitioner never requested a raise, but he did request to work as a janitor. However, Petitioner presented no evidence that a janitor's position was available. More importantly, Petitioner lacked the skills to perform janitorial/maintenance work for Respondent.

8. In time, Ms. Collett noticed a change in Petitioner's behavior. On one occasion, Petitioner's wife informed

   Ms. Collett that Petitioner had not come home with his pay check.

9. On or about November 3, 2007, Ms. Collett confronted Petitioner about his declining job performance and his suspicious activities involving hotel guests. Petitioner denied that he was using or selling drugs or that he brought hookers to the job site.

10. During the conversation, Petitioner began to cry, stating that he had let Ms. Collett down. Petitioner said that he "would rather to go back jail where life was easier and he

    would not have the pressure of daily life." Ms. Collett did not have a chance to terminate Petitioner because he left voluntarily.

11. Petitioner came back to the hotel one time to pick up his last pay check. At that time, Ms. Collett confronted Petitioner about some money that was missing from the front office. The office had been locked the night before, but someone had entered it through the ceiling from the adjoining room.

12. Petitioner could not find another job. He is now in prison.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case pursuant to Sections 120.569, 120.57, and 760.11, Florida Statutes (2008).

14. Section 760.10(1)(a), Florida Statutes (2008), states as follows:

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

       (a) 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.

15. The Florida Civil Rights Act (FCRA), Sections 760.01 through 760.11, Florida Statutes (2008), as amended, was patterned after Title VII of the Civil Rights Act of 1964, 42

    U.S.C. §2000 et seq. Federal case law interpreting Title VII is applicable to cases arising under the FCRA. See Green v. Burger King Corp., 728 So. 2d 369, 370-371 (Fla. 3rd DCA 1999); Florida State Univ. v. Sondel, 685 So. 2d 923 (Fla. 1st DCA 1996).

16. Petitioner has the burden of proving by a preponderance of the evidence that Respondent discriminated against him based on his race. See Florida Dep't of Transportation v. J.W.C. Company, Inc. 396 So. 2d 778 (Fla. 1st DCA 1981).

17. Petitioner can establish a case of discrimination or retaliation through direct evidence or circumstantial evidence. See Holifield v. Reno, 115 F.3d 1555, 1561-1562 (11th Cir. 1997). In this case, Petitioner has not shown any direct evidence of discriminatory or retaliatory intent.

18. Under McDonnell Douglas Corp v. Green, 411 U.S. 792, 802-805 (1973), an employment discrimination case based on circumstantial evidence involves the following burden-shifting analysis: (a) the employee must first establish a prima facie case of discrimination; (b) the employer may then rebut the prima facie case by articulating a legitimate, nondiscriminatory reason for the employment action in question; and (c) the

    employee then bears the ultimate burden of persuasion to establish that the employer's proffered reason for the action taken is merely a pretext for discrimination.

19. Petitioner's allegations of racial discrimination are two-fold. Specifically, Petitioner alleges that Respondent engaged in unlawful disparate treatment by failing to promote him and by failing to pay him overtime.

20. In order to prove a prima facie case of failure to promote, Petitioner must show the following: (a) he is a member of a protected group; (b) he was qualified for and applied for the promotion; (c) he was rejected despite his qualifications; and (d) other employees with equal or lesser qualification who were not members of the protected group were promoted. See Walker v. Mortham, 158 F. 3rd 1177 (11th Cir. 1998).

21. Petitioner has not met his prima facie case of proving a failure to promote for the following reasons: (a) Petitioner did not request a promotion; and (b) Petitioner was not qualified to be a maintenance/janitor.

22. To prove a prima facie case of disparate treatment by failing to pay for overtime hours, Petitioner must show the following: (a) he is a member of a protected group; (b) he was qualified for the job and the employer was satisfied with his performance; (c) he was not paid overtime; and (d) other

    employees with equal or lesser qualifications, who were not members of the protected group, were paid overtime.

23. Petitioner arguably has met his prima facie burden of showing disparate treatment because he was not paid for overtime hours. In the beginning, Respondent was satisfied with Petitioner's performance. Then, in order to help Petitioner qualify for a mortgage, Respondent put Petitioner on a salary of

    $400 per week.

    
    

24. Respondent presented testimony that it did not pay Petitioner overtime because Respondent did not believe salaried employees had to be paid for overtime hours. Regardless of whether Respondent's belief was correct or incorrect, Respondent established a non-discriminatory reason for failing to pay Petitioner overtime. Petitioner has not shown that Respondent's reason for not paying him overtime was a pretext for racial discrimination.

RECOMMENDATION

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

RECOMMENDED:

That Florida Commission on Human Relations enter a final order dismissing the Petition for Relief.

DONE AND ENTERED this 27th day of May, 2009, in Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 2009.

COPIES FURNISHED:

Kenneth W. Johnson, DC #646344 Gulf Correctional Institution 699 Ike Steele Road Wewahitchka, Florida 32465

Jerome D. Mitchell, Esquire Riggio & Mitchell, P.A.

1326 South Ridgewood Avenue Suite 8

Daytona Beach, Florida 32114

Denise Crawford, Agency Clerk

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry Kranert, 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: 09-001592

Orders for Case No: 09-001592