STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SELVIE BAILEY,

Petitioner,

vs.

WADE RAULERSON PONTIAC,

Respondent.

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) Case No. 10-1855

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RECOMMENDED ORDER

A formal hearing was conducted in this case on June 18, 2010, via video teleconference from sites in Tallahassee and Gainesville, Florida, before Lawrence P. Stevenson, a duly- designated Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Selvie Bailey, pro se

713 Northeast 15th Street Gainesville, Florida 32641

For Respondent: Douglas J. LaPointe, Esquire

Cameron, Hodges, Coleman, LaPointe, & Wright, P.A.

15 West Church Street Orlando, Florida 32801-3351

STATEMENT OF THE ISSUE

The issue is whether Respondent, Wade Raulerson Pontiac,1/ committed unlawful employment practices contrary to Section 760.10, Florida Statutes (2009),2/ by discriminating against

Petitioner based on his race by subjecting him to different terms and conditions than similarly situated employees outside of his protected classification, or by reducing Petitioner’s wages and ultimately discharging Petitioner from his employment in retaliation for engaging in protected conduct.

PRELIMINARY STATEMENT

On or about September 1, 2009, Petitioner Selvie Bailey ("Petitioner") filed with the Florida Commission on Human Relations ("FCHR") an Employment Complaint of Discrimination against Wade Raulerson Honda and Wade Raulerson Pontiac.

Petitioner alleged that he had been discriminated against pursuant to Chapter 760, Florida Statutes and Title VII of the Federal Civil Rights Act as follows:

I am a black male. I believe I was subjected to different terms and conditions and denied wages and retaliated against because of my race. I began working for Wade Raulerson Honda on March 7, 2008 as a Detail Manager. On June 11, 2009, Tom Yonkers (Operations Manager) told me he was closing the Detail Department because of budget issues. After conversation with

Mr. Yonkers and the General Manager (Dan Schmidt) about the situation, they offered to pay me for hours I work and let me transfer to the Pontiac store. The same day I spoke with Chuck Jones (Fix Operations Manager) at the Pontiac store and he offered me a job as a Detail Technician with a flat pay rate of $16.00 and a guarantee of 60 hours per week. I asked for $18.00 per hour and he told me he would meet me half way and offer me $17.00 dollars [sic] per hour. I accepted the offer and I told him I would

see him on June 12, 2009. I also noticed that the department was not closed because the other employees were coming to work.

I asked for the owner’s phone number (Mr. Morgan) and Tom told me if I talked

with Mr. Morgan my name would be scrutinized over town and I would not be able to get a job in this town. After I told him I spoke with EEOC about the mistreatment. He told me to go to the Pontiac store and give it a try and call him back in two weeks if things didn’t work out. On June 17, 2009, I went to the Pontiac store to work and Mr. Jones told me to go home for the day because prior to my starting they changed my pay plan from the guaranteed $17.00 per hour to $13.00 per hour and no guarantee. I returned to work the following day and Mr. Jones called me in his office to sign a different agreement. I spoke with the Human Resource Manager (Jason Hillman) and I was told the original agreement I signed was not worth the paper it was written on and if I did not accept the new agreement I might as well go down the road. I was not allowed to work and I was told that he did not want me with the other crew members because I had a bad attitude. I asked for a separation notice but they refused to give me one. Two weeks later a white employee (Joe) was hired making $15.00 per hour.

The FCHR investigated Petitioner's Complaint. FCHR investigative specialist Terence Davis issued an investigative memorandum on February 24, 2010. The memorandum recited Petitioner's allegations, detailed the findings of Mr. Davis’ investigation, then concluded that there was not reasonable cause to believe that Petitioner was subjected to different terms and conditions, denied wages or retaliated against based on his race.

In a letter dated March 3, 2010, the FCHR issued its determination that there was no reasonable cause to believe that an unlawful employment practice occurred.

On April 6, 2010, Petitioner timely filed a Petition for Relief with the FCHR. On April 9, 2010, the FCHR referred the case to the Division of Administrative Hearings (“DOAH”). The case was scheduled for hearing on June 18, 2010, on which date the hearing was convened and completed.

At the hearing, Petitioner testified on his own behalf.

Petitioner’s Exhibits 1 through 9 were admitted into evidence. Respondent presented the testimony of Dan Schmidt, the General Manager of Wade Raulerson Honda during the period of Petitioner’s employment; Charles M. Jones, the Fixed Operations Director of Wade Raulerson Pontiac during the period relevant to this proceeding; and Jason Hillman, the Human Resources (“HR”) Manager for Morgan Auto Group, the parent company of Wade Raulerson Honda and Wade Raulerson Pontiac. Respondent’s Exhibits 10 through 17 were admitted into evidence.

Petitioner testified in rebuttal.

The one-volume transcript was filed at the Division of Administrative Hearings on July 23, 2010. Petitioner filed a Proposed Recommended Order on August 6, 2010. Respondent filed a Proposed Recommended Order on August 11, 2010. Though both Proposed Recommended Orders were filed outside of the time

prescribed by Florida Administrative Code Rule 28-106.216, neither party objected to the late filing. The Proposed Recommended Orders have been considered in the writing of this Recommended Order.

FINDINGS OF FACT

1. Wade Raulerson Honda and Wade Raulerson Pontiac are each an employer as that term is defined in Subsection 760.02(7), Florida Statutes. They are subsidiary companies of Morgan Auto Group, a Tampa-based company that owns eight car dealerships in Gainesville, Ocala, and the Tampa Bay area.

2. On March 7, 2008, Petitioner, a black male, commenced employment at Wade Raulerson Honda as a detailer. In April 2008, Petitioner was promoted to detail manager. As Detail Manager, Petitioner earned a salary of $950 per week, or $49,400 per year.

3. At the time he was hired, Petitioner received from Morgan Auto Group an “Associate Manual,” essentially an employee handbook setting forth, among other things, the parent company’s policy promoting equal employment opportunity and prohibiting discrimination or harassment based on age, sex, disability, race, color, national origin, sexual orientation, marital status, or “any other non-merit factor.”

4. The Associate Manual also set forth a conflict resolution process for any employee complaints or grievances,

   
   

   including those of harassment, discrimination, or denial of equal employment opportunity. The employee was to first discuss the problem with his supervisor or department manager. If the response at the first step was not timely or satisfactory, the employee could then submit his complaint to the general manager of the dealership, or to the HR manager for the parent company.

5. There were three employees in the Detail Department of Wade Raulerson Honda. As detail manager, Petitioner supervised the other two employees, Berton Curtis, who was black, and Matthew Luchenburg, who was white. Mr. Curtis worked for $8.50 per hour, and Mr. Luchenburg was paid $8.00 per hour.

6. The work performed by Petitioner was termed “detailing” and was performed to prepare used cars for the showroom and sales lot. Petitioner pressure washed the engine, buffed and waxed the car, and shampooed the interior. He examined every detail of the interior and exterior of the used car to ensure that it was clean and ready to show on the lot.

7. The bulk of the work performed by the other two employees was termed “cleaning” or “washing” and was performed on new cars and used cars already on the showroom floor. They vacuumed and dusted the interior, then ran the car through the car wash. Their work was much less exacting and time consuming than the detailing work performed by Petitioner.

   
   

8. The evidence presented at hearing established that Mr. Curtis performed some “detailing” work, but that the great majority of the detailing performed on the premises of Wade Raulerson Honda was performed by Petitioner.

9. In addition to paying Petitioner for detailing work, Wade Raulerson Honda also paid an outside vendor $125 per car to perform detailing on used cars. Wade Raulerson Honda also sent some of its used cars to be detailed at Wade Raulerson Pontiac for a fee. These outside sources were used because the volume of used cars was more than Petitioner could handle alone, not due to any dissatisfaction with Petitioner’s job performance. Respondent stipulated that Petitioner’s job performance was very good throughout his employment.

10. In late 2008 and into 2009, the poor economy was especially hard on retail automobile sales. By June 2009, business was off by 40 percent at Wade Raulerson Honda, and management looked for any way possible to cut costs.

11. Wade Raulerson Honda was organized under the headings of “fixed operations” and “variable operations.” Fixed operations comprised the Parts Department and the Service Department, which included the Detail Department. Variable operations included the Sales and the Finance and Insurance Departments. Dan Schmidt, then the general manager of Wade Raulerson Honda, explained that fixed operations are easier to

    
    

    control, and that when business turns down, they are the most obvious place to cut expenses.

12. In June 2009, Mr. Schmidt, in consultation with Tom Yonkers, his Fixed Operations Director, decided to close the Detail Department and to send his used cars to Wade Raulerson Pontiac’s larger detailing facility. Petitioner’s Detail Manager position was eliminated altogether. Mr. Curtis and Mr. Luchenburg were reassigned to new positions in which they performed their washing duties as well as lot cleanup, mowing and edging, and sundry other duties that allowed Mr. Schmidt to make further cuts in maintenance and janitorial expenses.

    Mr. Schmidt also laid off service advisors and two lube technicians.

13. Mr. Schmidt testified that Petitioner was a good employee, and “good employees are very hard to come by.”

    Mr. Schmidt sought ways to retain Petitioner’s services. He offered Petitioner a non-management position that would have essentially involved performing the type of work being done by Mr. Curtis and Mr. Luchenburg, but at a rate of $600 per week, significantly more than the other two men were paid. Petitioner declined the offer, saying he could not take such a large cut in salary.

14. Mr. Yonkers contacted his fixed operations director counterpart at Wade Raulerson Pontiac, Charles Jones, to inquire

    
    

    whether Mr. Jones had any openings appropriate for Petitioner. Mr. Jones already had three detailers and was paying them $13 an hour. Two of these employees, including the detail manager, were black. Mr. Jones agreed to meet with Petitioner and to try and make a space for him.

15. Mr. Jones testified that he was interested in grooming Petitioner for the detail manager position. He understood that Petitioner had been making around $900 per week at Wade Raulerson Honda, and believed that a productive Detail Manager would be worth that much money.

16. On or about June 12, 2009, Petitioner met with Mr. Jones at Wade Raulerson Pontiac. They discussed the

    position that Mr. Jones had in mind for Petitioner and talked about money. Mr. Jones made a tentative offer to Petitioner of

    $17 per hour with a guarantee of 55 hours per week. He gave Petitioner a “Morgan Auto Group Pay Plan” form filled in with those terms. The form contained signature spaces to be completed by the employee, the employee’s manager, and the general manager of the dealership. Mr. Jones told Petitioner that the offer was not considered binding until all three parties had signed the pay plan. This form was never signed by management of Wade Raulerson Pontiac.

17. Mr. Jones testified that he reported the $17 per hour offer to Mr. Dalessio, who would not agree to pay Petitioner any

    
    

    more money than his current detailers were receiving.

    
    

    Mr. Dalessio believed it was unfair to his current employees to bring in a new man at a significantly higher wage than they were making. A second Morgan Auto Group Pay Plan was prepared for Petitioner, with a pay rate of $13 per hour and no guarantee as to the number of hours per week. Petitioner initially declined this offer.

18. On June 16, 2009, Petitioner was given a transfer notice by Wade Raulerson Honda, stating that he was transferring to Wade Raulerson Pontiac due to the closure of the Honda’s dealership’s Detail Department, “with time served and benefits not lost.” The notice also stated that Petitioner’s future wages were to be negotiated at Wade Raulerson Pontiac, not at Wade Raulerson Honda.

19. On June 16, 2009, Petitioner happened to meet Morgan Auto Group’s HR manager, Jason Hillman, in the parking lot of the Honda dealership. Petitioner showed Mr. Hillman the $17 offer sheet and asked to discuss the matter with him.

    Mr. Hillman agreed to meet with Petitioner at the Pontiac dealership. They went separately to Wade Raulerson Pontiac and met with Mr. Dalessio to discuss the situation.

20. Mr. Hillman explained that the $17 offer was not binding and that the $13 offer was the only offer on the table for Petitioner. Mr. Hillman stated, not very diplomatically,

    
    

    that the $17 offer sheet was “not worth the paper it was written on.” Petitioner became upset and asked Mr. Hillman to fire him so that he could collect unemployment. Mr. Hillman explained that he could not fire Petitioner because he had not yet accepted the offer from Wade Raulerson Pontiac. He further explained that if Petitioner declined the offer, he would be considered to have been laid off from Wade Raulerson Honda and that the company would not oppose his claim for unemployment benefits.

21. Petitioner eventually accepted the $13 per hour offer from Wade Raulerson Pontiac. He worked and was paid for 12 hours over the course of two days, at the rate of $13 per hour. On June 19, 2009, Mr. Jones met with Petitioner to have him formally sign the $13 per hour pay plan. At that time, Petitioner told Mr. Jones that he could not work for those wages. He left the dealership and did not return to work. Petitioner was not fired from his position.

22. Petitioner alleged that, subsequent to his leaving Wade Raulerson Pontiac, the dealership hired a white detailer named “Joe” at a rate of $15 per hour. However, evidence presented at the hearing established that Wade Raulerson Pontiac hired a detail technician named Joe Halliday on July 13, 2009, at a rate of $13 per hour, the same rate offered to Petitioner.

    
    

23. Petitioner offered no evidence to establish that the terms and conditions of his employment were different than those of similarly situated persons outside of his protected classification, or that his wages were reduced or he was terminated in retaliation for engaging in protected conduct.

24. There was no credible evidence that Petitioner ever complained or even mentioned harassment or discrimination on the basis of race to any member of management at Wade Raulerson Honda or Wade Raulerson Pontiac.3/

25. Petitioner offered no credible evidence that Wade Raulerson Honda or Wade Raulerson Pontiac discriminated against him because of his race, subjected him to harassment because of his race, or retaliated against him in violation of Chapter 760, Florida Statutes.

26. Petitioner offered no credible evidence disputing the legitimate, non-discriminatory reasons given by Wade Raulerson Honda for closing its Detail Department, or by Wade Raulerson Pontiac for declining to hire Petitioner at a salary nearly equal to the amount he made as detail manager at Wade Raulerson Honda. Petitioner disputed the company’s claim that the Detail Department at Wade Raulerson Honda was itself losing money, but failed to establish that the company’s decision to make large cuts in fixed operations expenses was anything other than a

    
    

    rational business decision necessitated by a severe decline in sales revenue.

27. The evidence established that Petitioner was considered a good employee and that the Wade Raulerson dealerships made every good faith effort, consistent with the economic realities of the retail automobile sales business as of June 2009, to retain Petitioner’s services during the economic downturn. The discussions between the parties turned on money, not race. Petitioner simply decided that he could not work for the amount that Wade Raulerson Pontiac offered.

    CONCLUSIONS OF LAW

    
    

28. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

29. The Florida Civil Rights Act of 1992 (the “Florida Civil Rights Act” or the “Act”), Chapter 760, Florida Statutes, prohibits discrimination in the workplace, and prohibits retaliation against an employee for engaging in protected activity such as filing a charge of discrimination with the FCHR.

30. Subsection 760.10, Florida Statutes, states the following, in relevant part:

    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.

          
          

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          (7) It is an unlawful employment practice for an employer, an employment agency, a joint labor-management committee, or a labor organization to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section.

          
          

31. Wade Raulerson Honda and Wade Raulerson Pontiac are each an "employer" as defined in Subsection 760.02(7), Florida Statutes, which provides the following:

    (7) "Employer" means any person employing

    15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such a person.

    
    

32. Florida courts have determined that federal case law applies to claims arising under the Florida's Civil Rights Act, and as such, the United States Supreme Court's model for employment discrimination cases set forth in McDonnell Douglas

    Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668

    
    

    (1973), applies to claims arising under Section 760.10, Florida

    
    

    Statutes. See Paraohao v. Bankers Club, Inc., 225 F. Supp. 2d 1353, 1361 (S.D. Fla. 2002); Florida State University v. Sondel, 685 So. 2d 923, 925 n.1 (Fla. 1st DCA 1996); Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991).

33. Under the McDonnell analysis, in employment discrimination cases, Petitioner has the burden of establishing by a preponderance of evidence a prima facie case of unlawful discrimination. If the prima facie case is established, the burden shifts to the employer to rebut this preliminary showing by producing evidence that the adverse action was taken for some legitimate, non-discriminatory reason. If the employer rebuts the prima facie case, the burden shifts back to Petitioner to show by a preponderance of evidence that the employer's offered reasons for its adverse employment decision were pretextual.

    See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981).

34. In order to prove a prima facie case of unlawful employment discrimination under Chapter 760, Florida Statutes, Petitioner must establish that: (1) he is a member of the protected group; (2) he was subject to adverse employment action; (3) Wade Raulerson Honda and/or Wade Raulerson Pontiac treated similarly situated employees outside of his protected classifications more favorably; and (4) Petitioner was qualified

    
    

    to do the job and/or was performing his job at a level that met the employer’s legitimate expectations. See, e.g., Jiles v.

    United Parcel Service, Inc., 360 Fed. Appx. 61, 64 (11th Cir. 2010); Knight v. Baptist Hospital of Miami, Inc., 330 F.3d 1313, 1316 (11th Cir. 2003); Williams v. Vitro Services Corporation,

    144 F.3d 1438, 1441 (11th Cir. 1998); McKenzie v. EAP Management

    
    

    Corp., 40 F. Supp. 2d 1369, 1374-75 (S.D. Fla. 1999).

    
    

35. Petitioner has failed to prove a prima facie case of unlawful employment discrimination.

36. Petitioner established that he is a member of a protected group, in that he is a black man. Petitioner was subject to an adverse employment action insofar as his position as Detail Manager was eliminated and he was offered a similar job at a lower wage. Petitioner was qualified to perform the job of detailer and of detail manager, and had done so with superior job performance for more than one year.

37. Petitioner presented insufficient credible evidence that his race played any role in the business decisions made by Wade Raulerson Honda or Wade Raulerson Pontiac. He presented no evidence that any similarly situated employee was treated any better than was Petitioner. In fact, when Petitioner’s Detail Manager position was eliminated, Wade Raulerson Honda offered to pay Petitioner significantly more than it was paying either

    Mr. Curtis or Mr. Luchenburg to perform the same work. After

    
    

    Petitioner walked away from Wade Raulerson Pontiac, that dealership hired a white man to do the same job at the same pay offered to Petitioner. Having failed to establish this element, Petitioner has not established a prima facie case of employment discrimination.

38. Even if Petitioner had met the burden, Wade Raulerson Honda and Wade Raulerson Pontiac presented evidence of legitimate, non-discriminatory reasons for its business decisions. Given the economic downturn experienced by the country as a whole and the automobile sales business in particular during the time period in question, it was necessary for Wade Raulerson Honda to cut its costs and expenses, and fixed cost operations such as detailing were the most obvious places to make such cuts. The decision to lay off Petitioner had nothing to do with his race or even with the quality of his work. He was simply in the wrong place at the wrong time. The company did what it could to retain his services, consistent with what management believed to be fair treatment of all employees. Petitioner made a business decision of his own not to work for $13 per hour. The question of his race was never an issue until he made his allegations of racial discrimination and retaliation after the fact.

RECOMMENDATION

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

RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Wade Raulerson Honda and Wade Raulerson Pontiac did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case.

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

S

LAWRENCE P. STEVENSON

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 13th day of September, 2010.

ENDNOTES

1/ Petitioner actually worked for both Wade Raulerson Honda and Wade Raulerson Pontiac, two of eight auto dealerships owned by Morgan Auto Group of Tampa. The original Employment Complaint of Discrimination and the text of the Petition for Relief mention both Wade Raulerson Honda and Wade Raulerson Pontiac.

However, the line of the form Petition for Relief titled “Respondent’s Name” includes only Wade Raulerson Pontiac, which

therefore became the Respondent’s name in the style of this case at the Division of Administrative Hearings. The bulk of Petitioner’s employment was actually spent at Wade Raulerson Honda, a fact brought out by Respondent in its Motion to Dismiss Petition for Relief filed on May 5, 2010. On May 25, 2010, the undersigned entered an Order denying the motion, finding that the pro se Petitioner should not be denied a hearing due only to his inartful pleading, when the substance of his claim was plainly directed at both the Honda and the Pontiac dealerships.

2/ Citations shall be to Florida Statutes (2009) unless otherwise specified. Section 760.10, Florida Statutes, has been unchanged since 1992.

3/ Petitioner testified that Mr. Luchenburg’s father, a service advisor at Wade Raulerson Honda, came into the service department more than once and jokingly told Petitioner not to work his son so hard, because he was a white guy and could not work as hard as a black person. Petitioner testified that he complained to Mr. Yonkers about these statements but that to his knowledge nothing was ever done about them. Petitioner never raised this allegation until the final hearing, thus depriving Respondent of any opportunity to secure the testimony of

Mr. Yonkers (who no longer works for Morgan Auto Group) or of the elder Mr. Luchenburg. The elder Mr. Luchenburg was a co- worker with no authority over Petitioner. This tribunal did not have the opportunity to learn whether Mr. Yonkers recalled conversations with Petitioner about this issue, or whether

Mr. Yonkers counseled the elder Mr. Luchenburg about his retrograde sense of humor. Even if Petitioner’s testimony were credited on this point, the evidence would not establish that the described incidents had any effect on his employment. The fact that Petitioner raised this issue more or less as an afterthought during his testimony at the final hearing supports a finding that the elder Mr. Luchenburg’s “jokes” were merely an annoyance to Petitioner, not something that had a real impact on the terms and conditions of his employment or that amounted to racial harassment within the meaning of Chapter 760, Florida Statutes.

COPIES FURNISHED:

Douglas J. LaPointe, Esquire Cameron, Hodges, Coleman,

LaPointe, & Wright, P.A.

15 West Church Street Orlando, Florida 32801-3351

Selvie Bailey

713 Northeast 15th Street Gainesville, Florida 32641

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

Derick Daniel, Executive Director 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: 10-001855

Orders for Case No: 10-001855