STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALEXANDER WOLFE,

Petitioner,

vs.

FRITO-LAY,

Respondent.

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) Case No. 10-0638

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RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the final hearing of this case for the Division of Administrative Hearings (DOAH) on May 11, 2010. The ALJ conducted the hearing by video teleconference in Tallahassee and Fort Myers, Florida.

APPEARANCES

For Petitioner: Alexander Wolfe, pro se

1501 Graduate Court

Lehigh Acres, Florida 33971

For Respondent: Mark E. Levitt, Esquire

Allen, Norton & Blue, P.A.

1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789

STATEMENT OF THE ISSUE

The issue is whether Respondent discriminated against Petitioner on the basis of Petitioner's race in violation of the Florida Civil Rights Act, Chapter 760, Florida Statutes (2008).1

PRELIMINARY STATEMENT

On September 4, 2009, Petitioner filed an Employment Complaint of Discrimination (the Complaint) with the Florida Commission on Human Relations (the Commission). The Complaint alleges that Respondent terminated Petitioner's employment on the basis of Petitioner's race.

The Commission investigated the allegations in the Complaint and determined on January 5, 2010, that no reasonable cause exists to believe that an unlawful employment practice occurred (the No Cause Determination). The Commission dismissed the Complaint. Petitioner filed a Petition for Administrative Hearing on February 8, 2010, and the Commission referred the matter to DOAH to conduct a final hearing.

At the hearing, Petitioner testified in his own behalf and submitted one exhibit for admission into evidence. Respondent presented the testimony of one witness and submitted 12 exhibits for admission into evidence.

The identity of the witnesses and exhibits, and any associated rulings, are reported in the Transcript of the hearing filed with DOAH on February 14, 2010. Respondent timely filed its Proposed Recommended Order (PRO) on June 24, 2010.

Petitioner did not file a PRO.

FINDINGS OF FACT

1. Petitioner is an "aggrieved person" within the meaning of Subsections 760.02(6) and (10). Petitioner is a 41-year-old African-American male, who was terminated from his employment with Respondent on September 9, 2008.

2. Respondent is an "employer" within the meaning of Subsection 760.02(7). Respondent is a company engaged in the business, in relevant part, of distributing food from a warehouse in Fort Myers, Florida.

3. Respondent employed Petitioner as a warehouse worker from some time in the fall of 2006 through September 9, 2008. On September 9, 2008, Respondent terminated Petitioner's employment.

4. A preponderance of the evidence does not show that Respondent terminated Petitioner's employment because of Petitioner's race. Rather, a preponderance of the evidence shows that Respondent terminated Petitioner's employment for non-discriminatory reasons.

5. Petitioner worked the evening shift from 3:00 p.m. until some time between 10:00 p.m. and 1:00 a.m., depending on the requirements for unloading trucks each day and manpower availability. Mr. Courtney Ward supervised the evening shift. All other supervisors left the warehouse by 6:00 p.m. each workday.

   
   

6. In the fall of 2008, product shortages began to appear at the warehouse. Management investigated the shortages and focused the investigation on the evening shift because that shift was relatively under-supervised.

7. During the investigation, corporate security officers interviewed all employees in the evening shift, including Petitioner; Mr. Ward; and warehouse workers, Mr. Don Kane and Mr. Mike Petersen. All of the named workers except Petitioner are Caucasian.

8. On September 4, 2008, each warehouse worker submitted a written statement regarding the worker's knowledge or participation in product shortages. Petitioner admitted in his statement to taking product from the floor regularly and trading it once or twice for marijuana. Petitioner also admitted to drinking beer on the job.

9. It is undisputed that Petitioner knew that taking product and drinking beer were offenses for which Petitioner could be terminated from his employment. The practice had been tolerated by a previous supervisor of Mr. Ward. However, the new supervisor had issued a memorandum advising employees to terminate the practice, but Petitioner continued the practice.

10. On the same day that Respondent terminated Petitioner's employment, Respondent terminated the employment of Mr. Ward. Mr. Ward admitted in his statement to drinking beer

    
    

    on the job and to knowing that Petitioner consumed alcohol and used marijuana on the job. Even though Mr. Ward did not admit to taking product or using marijuana, Respondent held Mr. Ward to a "higher standard" because Mr. Ward was a supervisor.

11. Respondent did not terminate either Mr. Kane or Mr. Petersen from employment. However, Respondent had valid, non-racial reasons for its action.

12. Mr. Kane did not admit in his statement to taking product off the floor, and Respondent had no independent proof to dispute the denial. While Mr. Kane did admit to consuming alcohol on the job, there was no independent proof that Mr. Kane used marijuana on the job.

13. Respondent placed Mr. Kane on "final warning" for one year. The final warning required Mr. Kane to submit to mandatory counseling in the company's Employee Assistance Program and to submit to random drug and alcohol testing.

14. Mr. Petersen was "cleared from any involvement" in the product shortages during the investigation. He was also "cleared" of any allegations of drinking on the job.

    CONCLUSIONS OF LAW

    
    

15. DOAH has jurisdiction over the parties and the subject matter of this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2009). DOAH provided the parties with adequate notice of the final hearing.

    
    

16. Petitioner has the burden of proof in this proceeding.

    
    

    Petitioner must show by a preponderance of the evidence that Respondent discriminated against him on the basis of his race. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817

    (1973).

    
    

17. Petitioner must first establish a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802; Munoz v. Oceanside Resorts, Inc., 223 F.3d 1340, 1345 (11th Cir. 2000). Petitioner can meet his burden of proof with either direct or circumstantial evidence. Damon v. Fleming Supermarkets of Florida, Inc., 196 F.3d 1354, 1358 (11th Cir. 1999), cert. denied, 529 U.S. 1109 (2000).

18. Direct evidence must evince discrimination without the need for inference or presumption. Beaver v. Rayonier Inc., 200 F.3d 723, 726 (11th Cir. 1999); Standard v. A.B.E.L. Services., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998). In other words, direct evidence is so blatant that its intent could be nothing other than to discriminate. Earley v. Champion Int'l Corp., 907 F.2d 1077, 1081 (11th Cir. 1990).

19. There is no direct evidence of discrimination or retaliation in this case. In the absence of direct evidence, Petitioner must meet his burden of proof by circumstantial evidence.

    
    

20. Circumstantial evidence of discrimination is subject to the burden-shifting framework of proof established in McDonnell Douglas, 411 U.S. at 792. Petitioner must first establish a prima facie case of discrimination. McDonnell

    Douglas, 411 U.S. at 802; Munoz v. Oceanside Resorts, Inc., 223 F.3d 1340, 1345 (11th Cir. 2000). Petitioner's failure to establish a prima facie showing of discrimination ends the inquiry. See Ratliff v. State, 666 So. 2d 1008, 1013 n.6 (Fla. 1st DCA 1996), aff'd, 679 So. 2d 1183 (1996) (citing Arnold v. Burger Queen Sys., 509 So. 2d 958 (Fla. 2d DCA 1987)).

21. If Petitioner were to establish a prima facie case, the burden would shift to Respondent to articulate a legitimate, non-discriminatory, non-retaliatory reason for the challenged action. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 257, 101 S. Ct. 1089, 1096 (1981); Munoz, 223 F.3d at 1345; Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1432 (11th Cir. 1998), cert. denied, 119 S. Ct. 405 (1998). Petitioner would then be required to prove by a preponderance of the evidence that the reasons offered by Respondent for its actions are mere pretexts. Id.

22. In order to establish a prima facie case of race discrimination, a preponderance of the evidence must show that Petitioner is a member of a protected class, that he suffered an adverse employment action, that he received disparate treatment

compared to similarly-situated individuals in a non-protected class, and that there is sufficient evidence of bias to infer a causal connection between his race and the disparate treatment. Rosenbaum v. Southern Manatee Fire and Rescue Dist., 980 F. Supp. 1469 (M.D. Fla. 1997); Andrade v. Morse Operations, Inc., 946 F. Supp. 979, 984 (M.D. Fla. 1996). A preponderance of the evidence does not show that Petitioner received disparate treatment compared to similarly-situated individuals or that the alleged disparate treatment is causally connected to Petitioner's race. Failure to establish the last prong of the conjunctive test for a prima facie showing of discrimination is fatal to Petitioner's claim. Mayfield v. Patterson Pump Co.,

101 F.3d 1371 (11th Cir. 1996); Earley, supra. See also Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997).

RECOMMENDATION

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

RECOMMENDED that the Florida Commission on Human Relations enter a final order finding Respondent not guilty of the allegations against Respondent and dismissing the Charge of Discrimination and Petition for Relief.

DONE AND ENTERED this 13th day of July, 2010, in Tallahassee, Leon County, Florida.

S

DANIEL MANRY

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 13th day of July, 2010.

ENDNOTE

1/ References to chapters, sections, and subsections are to Florida Statutes (2008), unless stated otherwise.

COPIES FURNISHED:

Mark E. Levitt, Esquire Allen, Norton & Blue, P.A.

1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789

Alexander Wolfe 1501 Graduate Court

Lehigh Acres, Florida 33971

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: 10-000638

Orders for Case No: 10-000638