A formal hearing was conducted in this case on January 12, 2010, in Shalimar, Florida, and by telephone on January 19, 2010, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings.
For Petitioner: Jeffery D. Toney, Esquire
For Respondent: Michael Wm. Mead, Esquire
John S. Mead, Esquire Post Office Drawer 1329
The issue is whether Respondent discriminated against Petitioner based on his national origin in violation of Section 760.10(1), Florida Statutes (2008).
On December 29, 2008, Petitioner Ruben C. Fernandez (Petitioner) filed an Employment Complaint of Discrimination with the Florida Commission on Human Relations (FCHR). The complaint alleged that Respondent Emerald Waste Services (Respondent) had discriminated against Petitioner based on his national origin and a disability/handicap. According to the complaint, the most recent act of discrimination took place on October 9, 2008.
On June 26, 2009, FCHR issued a Determination: No Cause. Petitioner filed a Petition for Relief with FCHR on
July 31, 2009. The petition alleged that Respondent discriminated against Petitioner by harassing him and by subjecting him to disparate treatment based on his Hispanic nationality. The petition did not raise the issue of discrimination based on an alleged handicap.
FCHR referred the petition to the Division of Administrative Hearings on August 5, 2009. An Initial Order was issued that same day. The parties filed a Joint Response to Initial Order on August 12, 2009.
In a Notice of Hearing dated August 14, 2009, the undersigned scheduled the hearing for October 1, 2009.
On September 24, 2009, Respondent filed an unopposed Motion for Continuance. The next day, the undersigned issued an Order
Granting Continuance and Re-scheduling Hearing for November 5, 2009.
On October 15, 2009, Respondent filed an unopposed Motion for Continuance. The next day, the undersigned issued an Order Granting Continuance and Re-scheduling Hearing for January 12, 2010.
When the hearing commenced, Petitioner testified on his own behalf and presented the testimony of one additional witness.
Petitioner was not allowed to present the testimony of other witnesses because Petitioner failed to disclose their names and addresses to Respondent prior to hearing. Petitioner presented one exhibit that was accepted as evidence.
Respondent presented the testimony of five witnesses.
Respondent offered six exhibits that were accepted as evidence.
The parties did not have an opportunity to complete the presentation of all evidence on January 12, 2010. Therefore, the undersigned issued a Notice of Telephonic Final Hearing dated January 13, 2010. The notice scheduled a continuation of the final hearing on January 19, 2010.
When the hearing reconvened, Petitioner testified on his own behalf. Petitioner did not offer any additional exhibits.
The Transcript was filed on February 8, 2010.
Respondent filed its Proposed Recommended Order on February 18, 2010. Petitioner filed his proposed findings of fact and conclusions of law on March 2, 2010.
All references hereinafter are to Florida Statutes (2008) except as otherwise indicated.
Respondent operates a residential and commercial waste collection and disposal business. Respondent has multiple locations across the southeastern United States. It employs approximately 8,623 employees.
Payroll Management, Inc. (PMI) is an employee leasing company. It assists companies with their human resource issues, payroll needs, employee benefits and worker compensation coverage. Respondent is a client of PMI.
Petitioner is an Hispanic male, who was born in Cuba in 1972. As a permanent resident, Petitioner is entitled to work. Petitioner is able to speak some English but occasionally needs a Spanish interpreter.
David Otano was a driver/supervisor for Respondent's predecessor in Panama City, Florida. When Respondent bought the predecessor in 2006, Mr. Otano worked as operations manager for Respondent.
Petitioner and Mr. Otano are friends. In February 2008, Mr. Otano recommended that Respondent hire Petitioner as a
"slinger." A slinger rides on the back of a garbage truck to assist the driver in collecting garbage.
On February 11, 2008, Petitioner filled out an employment application with PMI. At that time, Petitioner signed an acknowledgement that he was a leased employee of PMI who was assigned to work for a work site employer. Among other things, the acknowledgement stated as follows:
I acknowledge that I am aware that PMI adheres to a grievance policy and it is the employee's right to file a grievance if he/she feels they have been unfairly treated. I understand that if I do not utilize the grievance procedures, my unemployment benefits may be denied me.
PMI's employment application package also includes the following employee's certifications/acknowledgements:
I CERTIFY and ACKNOWLEDGE that the following is true and correct:
I have read, have been read, or will read IMMEDIATELY upon hire, the Employee's Post-Hire Handbook ("Handbook"). Further, I understand and agree to the provision as stated in the Handbook and within the Post- Hire Handbook, Post-Hire Packet, policy manual and safety manual.
* * *
I hereby acknowledge that I have received a copy of the PMI Post-Hire Handbook . . . .
Petitioner signed the certification/acknowledgement on February 2, 2008.
PMI's Post-Hire Handbook contains the company's harassment policy. The policy provides as follows in pertinent part:
3. Any employee who feels victimized by harassment should IMMEDIATELY report it to PMI's Human Resource Department . . . PMI will undertake a careful investigation, which may include interviewing other employees who have knowledge of the alleged incident or similar situations. Your complaint, along with the investigative steps and findings, will be documented in accordance with our dispute resolution procedures.
PMI routinely trained Respondent's managers and supervisors about the non-discrimination policy. The instruction included an admonition to make decisions about employees based on their work performance and not because of their ethnicity or any other reason.
Respondent and PMI knew that Spanish was Petitioner's first language when he was hired. They also knew Petitioner was originally from Cuba.
At times, Petitioner had difficulty communicating with his direct supervisor, Penny Atkins. On those occasions,
Ms. Atkins found another Spanish-speaking employee, such as Mr. Otano, to act as a translator and/or interpreter.
It was not unusual for Respondent to employ people who spoke very little English. For example, Respondent once hired a Russian who spoke limited English.
There were no problems with Petitioner's work performance when he was on a route. However, Petitioner was sent home when he was not dressed properly, such as wearing shorts instead of long pants or not having on work boots.
Petitioner lived about two miles from the work site.
When he was sent home, Ms. Atkins expected him to come right back to work. Decisions to send Petitioner home due to improper clothing were not based on Petitioner's national origin.
Residential slingers usually worked Monday, Tuesday, Thursday, and Friday. Sometimes, Petitioner was sent home when there were too many slingers and not enough routes to run. If possible, such time off would be made up on a Wednesday. Occasionally, instead of sending a slinger home, Ms. Atkins would allow two slingers to ride on the back of one residential truck.
At other times, Petitioner was given more work or extra routes to ride when there were not enough slingers. There is no persuasive evidence that Ms. Atkins' scheduling decisions were related to the national origin of any employee.
Mr. Otano testified that Ms. Atkins wanted him to fire Petitioner because Petitioner did not speak English.
Mr. Otano's testimony in this regard is contrary to more persuasive evidence.
In April 2008, Mr. Otano's job description changed.
Instead of being operations manager, he became a supervisor on an equal footing with Ms. Atkins. Mr. Otano considered the change a demotion.
Even though Mr. Otano was no longer in Petitioner's chain of command, he continually complained to Ms. Atkins that she was not treating Petitioner fairly. Because Mr. Otano and Ms. Atkins argued about Petitioner, Respondent's general manager told Mr. Otano to worry about his own responsibilities, roll- offs and front loads, and to let Ms. Atkins worry about residential.
In April 2008, Petitioner's wife had a car accident.
Petitioner called Ms. Atkins to inform her that he would not be at work the morning after the accident. Ms. Atkins sent a driver in a truck to pick up Petitioner.
Sometime in July 2008, Petitioner complained to Respondent's general manager that Ms. Atkins was discriminating against him. Petitioner understood that his complaint would be investigated.
On August 28, 2008, Petitioner suffered an injury to his arm and shoulder while working as a slinger. He was transported to a local emergency room/walk-in medical facility. Respondent immediately reported the accident to PMI who was responsible for handling the workers’ compensation claim.
After receiving medical treatment and physical therapy for a period of time, Petitioner returned to work with light- duty work restrictions imposed by his physician. Ms. Atkins told Respondent there was no such work available at the work site and sent him home.
A second doctor's note dated September 29, 2008, stated that Petitioner could do no work for three weeks.
On or about September 29, 2008, Respondent decided that it would be able to accommodate Petitioner's need for light-duty work with restrictions as required by a doctor's note. Once that decision was made, Chris Traughber, Respondent's safety manager, called PMI. PMI then contacted Petitioner's physician to let him know that Respondent would
accommodate any restrictions if Petitioner was released to work.
On or about October 2, 2008, PMI received a note from Petitioner's physician. According to the note, Petitioner was released to work with restrictions of no lifting, pushing, or pulling, effective that same day.
Petitioner reported to work on October 3, 2008. At that time, Petitioner was taking a prescription drug for pain, Lortab. For light-duty work, Ms. Atkins instructed Petitioner to sit in a chair under a shed in the yard and note the truck numbers and times that each truck entered and left the yard.
The job could not have been performed anywhere but outside in the yard near the gate.
The trucks usually left in the early morning around 4:30 a.m. Some trucks would return around 8:00 or 9:00 a.m. Others would return at 6:00 p.m. Trucks might come and go from the yard anytime there was a mechanical problem with a truck on a route.
The shed provided Petitioner shade and some protection from rain. Respondent created this job for Petitioner in order to return him to work.
Ms. Atkins did not tell Petitioner that he could not take breaks or go to the bathroom. The most credible evidence indicates that Petitioner sometimes visited with Natalie Richardson, Respondent's dispatcher, in the air-conditioned dispatch office on his breaks.
There are restrooms in the dispatch office and in the mechanic's shop area. There also was a portable toilet close to the shed where Petitioner was stationed. Petitioner's testimony that he urinated in his clothes on September 7, 2008, because it was raining and he was not allowed to go to the bathroom is not credible.
Petitioner also took lunch breaks while he was working light duty. On one occasion, Petitioner left for lunch and did not come back to work.
On or about October 8, 2008, Petitioner was sitting under the shed at work when he had a seizure or fainting spell that caused him to fall down on the ground and foam at the mouth. An ambulance transported Petitioner to the emergency room of a local hospital. There is no competent medical evidence regarding the incident.
A doctor's note dated October 10, 2008, stated that Petitioner could return to light-duty work on October 18, 2008, with restrictions against swimming, driving, or climbing.
On or about October 14, 2008, PMI sent a memorandum to Respondent, advising that Petitioner could return to light-duty work on October 18, 2008, with restrictions of no swimming, driving, or climbing.
Petitioner returned to work light duty as restricted by his physician. Once again Respondent directed Petitioner to sit under the shed and count trucks. He was able to go to lunch and take breaks as needed.
On or about October 13, 2008, Petitioner spoke to Respondent's general manager at the work site. During the conversation, Petitioner complained that Ms. Atkins was harassing him and treating him unfairly. Petitioner was told to go ahead and file a complaint with PMI.
Petitioner subsequently filed a complaint with PMI, alleging that Respondent was harassing him and treating him
unfairly. That same day, PMI learned that Petitioner had filed an employment discrimination claim with FCHR. Because FCHR was investigating the grievance, PMI did not investigate Petitioner's allegations.
In the fall of 2008, Respondent began a reduction-in- force (RIF) process for economic reasons at multiple work sites. On or about November 21, 2008, Petitioner was reassigned to PMI along with over 30 other employees, several of which worked at Petitioner's work site.
Respondent's Chief Financial Officer, Bruce Roy, decided which employees would be reassigned to PMI during the RIF. Mr. Roy worked at Respondent's corporate office and did not directly supervise the employees on the list.
Petitioner's testimony that he was not aware that he had been reassigned until months later is not persuasive. The record is not clear as to the last day that Petitioner actually worked at the work site.
Between October 2, 2008, and June 10, 2009, Respondent terminated/reassigned 99 employees at multiple work site locations. The RIF included men and women of Caucasian,
African-American, Hispanic, and Asian ethnicities. There is no persuasive evidence that Respondent targeted Hispanics in deciding which employees to include in the RIF.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Sections 120.569, 120.57(1), and 760.11, Florida Statutes (2009).
It is unlawful for an employer to discriminate against any individual based on such individual's national origin. See
§ 760.10(1)(a), Fla. Stat.
The Florida Civil Rights Act (FCRA), Sections 760.01 through 760.11, Florida Statutes, as amended, was patterned after Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., and 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).
Petitioner has the burden of proving by a preponderance of the evidence that Respondent discriminated against him. See Florida Dep't of Transportation v. J.W.C. Company, Inc. 396 So. 2d 778 (Fla. 1st DCA 1991).
During the hearing, both parties presented evidence regarding Petitioner's termination from employment. Both parties addressed Petitioner's termination in their proposed findings of fact and conclusions of law. However, a review of the record indicates that neither Petitioner's Employment
Complaint of Discrimination nor his Petition for Relief raised a termination issue. Therefore, the question of Petitioner's termination is not addressed in these Conclusions of Law.
Likewise, Petitioner raises an issue related to retaliation for the first time in his Proposed Recommended Order. Because it was not properly plead, a question of retaliation is not at issue here.
Disparate Treatment
Petitioner can establish a case of discrimination alleging disparate treatment through direct evidence, statistical evidence, or circumstantial evidence. See Holifield v. Reno, 115 F.3d 1555, 1561-1562 (11th Cir. 1997).
In this case, Petitioner attempted to use exhibits offered by Respondent to show statistical evidence of discrimination based on national origin. Those exhibits show that Petitioner has employed more Caucasians than African- Americans, Asians, or Hispanics since 2006. Even so, the exhibits do not present persuasive evidence that Respondent has harassed or subjected Hispanics or any minority employees to different terms and conditions when the employees spoke little or no English.
Petitioner also failed to produce any direct evidence of discrimination based on national origin. Direct evidence of discrimination is evidence that, if believed, establishes the
existence of discriminatory intent behind an employment decision without any inference or presumption. See Maynard v. Board of Regents of the Division of Universities of the Florida Department of Education, 342 F.3d 1281, 1289 (11th Cir. 2003); Merritt v. Dillard Paper Co., 120 F.3d 1181, 1189 (11th Cir.
1997); Chambers v. Walt Disney World Co., 132 F. Supp. 2d 1356 (M.D. Fla. 2001). Evidence that only suggests discrimination, or that is subject to more than one interpretation, does not constitute direct evidence of discrimination. Id.
Additionally, in order for a statement to constitute direct evidence of discrimination, it must be made by the employer or its agents, must specifically relate to the challenged employment decision, and must reveal blatant discriminatory animus. See Jones v. Bessemer Carraway Medical Center, 151 F.3d 132 (11th Cir. 1998).
Here, Mr. Otano's testimony that Ms. Atkins wanted him to fire Petitioner because he could not speak English was not credible. Moreover, Mr. Otano's testimony in that regard was contrary to evidence showing Respondent's willingness to use an interpreter/translator when Petitioner indicated that he was having problems communicating with Ms. Atkins.
In a case lacking direct evidence of discrimination, the burden of proof is allocated as set forth in McDonnell Douglas Corp. v. Green, 441 U.S. 792, 802-805 (1973). In that
case, an employment discrimination case based on circumstantial evidence involved the following 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.
Id.
To show disparate treatment based on national origin, Petitioner must establish the following: (a) he belongs to a protected group such as being born in a foreign country and speaking a foreign language; (b) he was qualified for the job;
(c) he was subjected to an adverse employment action; and (d) a similarly-situated employee, who did not belong to the protected group, received more favorable treatment than Petitioner. See Tomczyk v. Jocks and Jills Restaurants, 198 Fed. Appx. 804, 809 (11th Cir. 2006).
To determine whether employees are similarly situated, one must consider whether "the employees are involved in or accused of the same or similar conduct and are disciplined in different ways." See Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999). The employee must show that he and the employees outside his protected class are similarly situated "in
all relevant respects." Knight v. Baptist Hosp. of Miami, Inc., 330 F.3d 1313, 1316 (11th Cir. 2003).
In order to make that determination, courts "require that the quantity and quality of the comparator's misconduct be nearly identical to prevent . . . second-guessing employers' reasonable decisions and confusing apples with oranges.” See Maniccia, 171 F.3d at 1368.
Similarly-situated employees, "must have reported to the same supervisor as the plaintiff, must have been subjected to the same standards governing performance evaluation and discipline, and must have engaged in conduct similar to the plaintiff's, without such differentiating conduct that would distinguish their conduct or the appropriate discipline for it. Gaston v. Home Depot USA, Inc., 129 F. Supp. 2d 1355, 1368 (S.D. Fla. 2001)(quoting Mazzella v. RCA Global Communications, Inc., 642 F. Supp. 1531, 1547 (S.D. N.Y. 1986)).
Petitioner established that he was from a foreign country and spoke very little English. He was qualified for the job of slinger. However, Petitioner did not show that he was subjected to an adverse employment action or that other non- Hispanic employees were similarly-situated employees who received more favorable treatment.
Petitioner's claim that Respondent sometimes did not give him enough hours at work conflicts with his claim that
Respondent occasionally gave him too many hours to work. Such conflicting testimony, together with very general non-specific allegations about other employees who were either allowed to work longer or shorter hours, does not establish persuasive evidence that Petitioner suffered an adverse employment action or that similarly-situated employees were given more favorable treatment.
Additionally, Petitioner claims that Respondent sent him home to put on long pants and his work boots because he was not dressed properly for work. Petitioner's testimony about other improperly dressed employees is insufficient to determine whether they, like Petitioner, actually worked as slingers without long pants and/or their work boots. In other words, Petitioner did not show that he suffered an adverse employment action or that similarly-situated employees were given more favorable treatment.
Petitioner argues that other employees who were injured at work did not have to return to light-duty work. According to Petitioner, those employees were allowed to stay at home until they were released to work without restrictions.
Once again, Petitioner presented insufficient evidence to show that providing him with light-duty work as required by his physician was an adverse employment action or that similarly- situated employees were given more favorable treatment.
Assuming that Petitioner established a prima facie case of disparate treatment, Respondent had legitimate non- discriminatory reasons for the actions it took and Petitioner has not shown that Respondent’s reasons were a pretext for intentional discrimination.
First, Ms. Atkins attempted to schedule the residential slingers so that they were able to work an equal number of hours. This meant that an employee might be scheduled to work on Wednesday if his work hours were cut short on another day. It also meant that slingers might have to work longer on some days in order to get in their hours. Petitioner presented no evidence that over a period of time, Ms. Atkins did not fairly schedule his work hours.
Second, Respondent required its slingers to dress properly for safety reasons. Sending Petitioner home to get his work pants/boots was an appropriate action to take and in accordance with Respondent's safety procedures. Petitioner did not show otherwise.
Third, Respondent appropriately accommodated Petitioner's need for light-duty work so that he could continue to receive his paycheck instead of workers’ compensation benefits. Petitioner obviously did not like the job and may have preferred to stay home or sit in an air-conditioned
building. However, there is no evidence that Respondent created the job to harm Petitioner in any way.
Hostile Work Environment
To prove a case of hostile work environment, Petitioner must establish the following: (a) he belongs to a protected group; (b) he was subjected to unwelcome harassment;
(c) the harassment was based on the protected characteristic of national origin; (d) the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and thus, create a discriminatorily abusive work environment; and
(e) the employer is responsible for that environment under a theory of either direct or vicarious liability. See Miller v.
Kenworth of Dothan, 277 F.3d (11th Cir. 2002).
In this case, Petitioner has not shown that any of Respondent's decisions were based on Petitioner's national origin. Furthermore, Respondent's actions in requiring proper attire, in scheduling work hours, and in accommodating Petitioner's work restrictions were so severe or pervasive as to create an objectively hostile or abusive work environment. See Watkins v. Bowden, 105 F.3d 1344, 1355 (11th Cir. 1997).
In determining whether harassment objectively alters an employee's terms or conditions of employment, the following factors must be considered: (a) the frequency of the conduct;
(b) the severity of the conduct; (c) whether the conduct is
physically threatening or humiliating, or a mere offensive utterance; and (d) whether the conduct unreasonably interferes with the employee's job performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).
Here, Petitioner was sent home once or twice because he was improperly dressed. His work hours may have been cut short one time. He may have had to work longer than he wanted to on another occasion. He did not like the light-duty work he was given. However, these events occurred infrequently over almost eight months of employment. They do not qualify as physically threatening or humiliating; and they did not interfere with Petitioner's ability to do his job. It cannot be said under these circumstances that Respondent intentionally discriminated against Petitioner by harassing him.
More importantly, Petitioner was supposed to report any harassment to PMI. PMI did not receive Petitioner's complaint until he had already filed his complaint with FCHR.
RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief.
DONE AND ENTERED this 8th day of March, 2010, in Tallahassee, Leon County, Florida.
SUZANNE F. HOOD
Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 2010.
John S. Mead, Esquire Michael WM Mead, P.A. Post Office Drawer 1329
Law Office of Jeffery D. Toney, Sr.
Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
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.
