STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on October 29, 2009, in Bartow, Florida, before Susan B. Harrell, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Jerry Girley, Esquire

The Girley Law Firm

125 East Marks Street Orlando, Florida 32803

For Respondent: Donald H. Wilson, Jr., Esquire

Boswell & Dunlap, LLP

245 South Central Avenue Post Office Drawer 30 Bartow, Florida 33831

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent committed an unlawful employment practice against Petitioner by

discriminating against Petitioner based on his race and national origin.

PRELIMINARY STATEMENT

On July 24, 2009, the Florida Commission on Human Relations issued a Determination: No Cause to believe that Respondent, Polk County School Board (School Board), committed an unlawful employment practice in violation of Section 760.10, Florida Statutes (2008),1 against Petitioner, Jean Chery (Mr. Chery). On August 4, 2009, Mr. Chery filed a Petition for Relief, alleging that the School Board committed an unlawful employment practice by discriminating against him based on his race and national origin. The petition was transmitted to the Division of Administrative Hearings on August 7, 2009, for assignment of an Administrative Law Judge to conduct the final hearing.

The case was originally assigned to Administrative Law Judge Lawrence P. Stevenson, but was transferred to Administrative Law Judge Susan B. Harrell to conduct the final hearing.

The parties filed a pre-hearing stipulation in which the parties stipulated to certain facts. To the extent relevant, those facts have been incorporated in this Recommended Order.

At the final hearing, Mr. Chery testified in his own behalf, called Jeffery Davis as his witness, and offered no exhibits for submission in evidence. At the final hearing,

Respondent’s Exhibits 1 through 4 and 7 through 11 were admitted in evidence. The School Board called Rob Davis, Fred Lee Murphy, and Jose Farinas as its witnesses.

The one-volume Transcript was filed on November 9, 2009. Mr. Chery filed his proposed recommended order on November 17, 2009, and the School Board filed its proposed recommended order on November 19, 2009. The parties’ proposed recommended orders have been carefully considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Mr. Chery, a black male who was born in Haiti, began working for the School Board in August 2007 as a school bus driver.

2. Beginning in August 2008, Mr. Chery’s bus schedule was 4:55 a.m. to 9:00 a.m. and 2:00 p.m. to 5:30 p.m. He was paid for eight hours of work.

3. His early morning route started at 4:55 a.m., when he picked up students to take to the fuel pump in Haines City. The early morning route ended at 6:00 a.m. His next route began at 6:10 a.m. and ended at 7:15 a.m., when he delivered students to the high school. The last portion of the morning route began at 7:30 a.m. and ended at 9:00 a.m., when he delivered students to elementary and middle schools.

4. Mr. Chery’s afternoon route began at 2:00 p.m., when he picked up high school students and took them home until

   3:00 p.m. Beginning at 3:00 p.m., Mr. Chery picked up students at Eastside Elementary School and transported them until

   4:15 p.m. At 4:15 p.m., Mr. Chery picked up students at Boone Middle School and transported them until 5:30 p.m.

5. Mr. Chery’s pay was calculated based on the time that he picked up his first student in the morning until he reached the school to drop off the students and the time that he reached the school in the afternoon until the time the last student was dropped off. One and one-half hours were added to the travel time to compensate for cleaning the bus and doing paperwork.

6. On August 26, 2008, Mr. Chery was arrested. The arrest was a case of mistaken identity and Mr. Chery was released. After he was released, Mr. Chery felt uncomfortable working his early morning route and asked his supervisor, Jeffery Davis, to relieve him of his duty to drive the early morning route from 4:55 a.m. to 6:10 a.m. Mr. Jeffery Davis thought that Mr. Chery meant that he needed a couple of weeks to get over being arrested, and he accommodated Mr. Chery by getting another driver to take the early morning route. Although Mr. Chery was not required to drive his early morning route, he continued to receive the same compensation that he received when he did drive the early morning route.

7. A couple of weeks after the early morning route was removed, Mr. Chery advised Mr. Jeffery Davis that he did not want to resume the early morning route. Mr. Jeffery Davis told Mr. Chery that a new Verification of Assigned Route Time Form, referred to as a Golden Rod, would need to be completed to show the driving times of his various routes.2 Mr. Chery submitted a Golden Rod, which still reflected his early morning route that he was no longer driving. The Golden Rod which Mr. Chery submitted showed that his morning route ended at 9:00 a.m., when it actually ended at 8:45 a.m., and showed that his afternoon route ended at 5:00 p.m., when it actually ended at 4:45 p.m. Mr. Chery was requested to submit another Golden Rod, which he did. The second submittal also contained similar inaccuracies.

8. In mid October 2008, Mr. Chery’s pay was cut to reflect the deletion of the early morning route. Mr. Jeffery Davis completed an accurate Golden Rod for Mr. Chery. The form reflected that Mr. Chery picked up his first student in the morning at 6:10 a.m. and dropped the students off at Ridge Community High School at 6:40 a.m. At 6:40 a.m., Mr. Chery picked up five students at Ridge Community High School and transported them to Haines City by 7:00 a.m. His next run began at 7:25 a.m., when he picked up students to transport to Horizon Elementary, where the students were delivered at 7:50 a.m. At 7:50 a.m, Mr. Chery started his Lake Alfred Middle School route.

   The first middle school student was picked up at 7:55 a.m., and the students were delivered to Lake Alfred Middle School by 8:45 a.m., at which time Mr. Chery went off the clock. The afternoon route began at 2:00 p.m. when Mr. Chery picked up students at Ridge Community High School. The last high school student was delivered by 2:40 p.m. The next route began at 3:00 p.m., when Mr. Chery picked up students at Horizon Elementary. The last student from Horizon Elementary was

   dropped off by 3:30 p.m. The last route for the afternoon began at Lake Alfred Middle School at 3:45 p.m., and the last student was dropped off at 4:45 p.m. An attendant rode the Lake Alfred Middle School bus, and Mr. Chery dropped the attendant off at Walgreen’s pharmacy, which is less than ten minutes away from the last student drop off. The amount of time that Mr. Chery worked was seven hours, which included the time for cleaning the bus and doing his paperwork.

9. Mr. Chery was unhappy that his pay was cut, and he requested a meeting with Mr. Jeffrey Davis’ supervisor, Rob Davis, concerning the amount of pay he was receiving.

   Mr. Chery, Mr. Chery’s wife, Mr. Rob Davis, and Mr. Jeffery Davis met on December 10, 2008, to discuss the pay issue.

   Mr. Rob Davis asked Mr. Chery to complete a time verification form for five days, showing the time that he spent each day from

   the time he picked up the first student in the morning until the time he dropped off the last student.

10. Mr. Chery and Mr. Rob Davis met again on December 18, 2008. Mr. Chery had not filled out a time verification form for five days. Mr. Rob Davis told Mr. Chery to complete a new Golden Rod, reflecting the time that he was currently driving. Mr. Chery failed to complete a new Golden Rod.

11. Mr. Chery requested a meeting with Fred Lee Murphy, who was the assistant superintendent for Support Services and Facilities and Operations for the School Board. His duties included managing the transportation system for the School Board.

12. In January 2009, Mr. Murphy met with Mr. Chery and requested that Mr. Chery complete a current and accurate Golden Rod. Mr. Chery refused to do so, and his employment was terminated for insubordination.

13. Mr. Chery claims the School Board paid white bus drivers for eight hours, when the white bus drivers were working only seven hours, and that he was being treated differently because he was black and from Haiti. He bases his claim on hearsay conversations that he had with some white bus drivers. No non-hearsay evidence was presented to show that white bus drivers were being paid for eight hours of work, when they were working seven hours.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2009).

15. Mr. Chery alleges that the School is in violation of Section 760.10, Florida Statutes, which provides:

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

       
       

       1. 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.

          
          

          Mr. Chery claims that white bus drivers received more pay than he did for the same number of hours worked.

16. The Florida Civil Rights Act of 1992, Section 760.01, et seq., Florida Statutes, is modeled after Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000, et seq.; therefore, case law interpreting Title VII is also relevant to cases brought under the Florida Civil Rights Act. Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205, 1209 (Fla. 1st DCA 1991).

17. In a discrimination case, the petitioner has the initial burden of establishing a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792,

    93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). In order to establish a prima facie case of discrimination, Mr. Chery must establish the following: (1) he is a member of a protected class; (2) he suffered an adverse employment action; (3) he is qualified for the job at issue; and (4) similarly situated employees outside the protected class were treated more favorably. Kelliher v. Veneman, 313 F.3d 1270, 1275 (11th Cir. 2002); Gossard v. JP Morgan Chase Co., 612 F. Supp. 2d. 1242 (S.D. Fla. 2009). Failure to establish a prima facie case of discrimination ends the inquiry. See Ratliff v. State, 666 So. 2d 1008, 1012 n.6 (Fla. 1st DCA 1996).

18. Mr. Chery has failed to establish a prima facie case of discrimination based on disparate treatment. He has established that he is in a protected class. He is black and was born in Haiti. He has established that he is qualified to drive a bus, but he has failed to establish that he can follow a direct order. He was fired for insubordination. Thus, he has not demonstrated that he is qualified to be employed as a bus driver for the School Board.

19. Mr. Chery has failed to establish that he suffered an adverse employment action. The evidence established that he was being paid for the amount of work that he performed. He worked seven hours and was being paid for seven hours.

20. Mr. Chery failed to establish that white bus drivers received more money for working the same amount of time that Mr. Chery worked. Mr. Chery’s only basis for his claim is that he had some conversations with white bus drivers, and, from those conversations, he adduced that the white bus drivers were being paid for eight hours, when they worked only seven hours.

21. Mr. Chery’s testimony concerning the amount of pay paid to white bus drivers and the amount of time that the white bus drivers worked is hearsay and, as such, cannot be used to support a finding that Mr. Chery was treated differently than white bus drivers in the amount of compensation that he received. See § 120.57, Fla. Stat.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing Mr. Chery’s Petition for Relief.

DONE AND ENTERED this 3rd day of December, 2009, in Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

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 3rd day of December, 2009.

ENDNOTES

1/ Unless otherwise indicated, all references to the Florida Statutes are to the 2008 version.

2/ Each bus driver had to complete a Golden Rod each year or, more often if necessary, to show the amount of time that was normally necessary for the bus driver to complete his or her routes. The drivers were paid based on the time that it took to complete the routes as shown in the Golden Rod. If an unusual circumstance occurred on the route such as a traffic accident which increased the amount of time to drive the route, the bus driver would receive overtime pay for the delay.

COPIES FURNISHED:

Donald H. Wilson, Jr., Esquire Boswell & Dunlap, LLP

245 South Central Avenue Post Office Drawer 30 Bartow, Florida 33831

Jerry Girley, Esquire The Girley Law Firm

125 East Marks Street Orlando, Florida 32803

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: 09-004233

Orders for Case No: 09-004233