vs. Case No. 14-2139
Respondent.
Administrative Law Judge Edward T. Bauer held a final hearing in this case by video teleconference between sites in Tallahassee and West Palm Beach, Florida, on July 7, 2014.
For Respondent: Amy M. DeMartino, Esquire
Wicker Smith O'Hara McCoy & Ford, P.A.
Whether Respondent committed the unlawful employment practices alleged in the Charge of Discrimination filed with the Florida Commission on Human Relations ("FCHR") and, if so, what relief should Petitioner be granted.
On August 16, 2013, Petitioner filed a Charge of Discrimination ("Complaint") with FCHR alleging that Respondent LD Mullins Lumber Company ("Respondent") terminated him from employment because of his race and/or age. Following its investigation of the Complaint, FCHR notified the parties that there was "no reasonable cause to believe that an unlawful employment practice occurred."
Petitioner elected to pursue administrative remedies, timely filing a Petition for Relief with FCHR on or about May 8, 2014. Subsequently, on May 12, 2014, FCHR referred the matter to the Division of Administrative Hearings ("DOAH") for further proceedings.
During the final hearing, Petitioner testified on his own behalf and introduced pages 2 through 5 and 9 through 13 of his exhibit package. Respondent presented the testimony of three witnesses (Wes Walker, Clarke Mullins, and Scott Mullins) and introduced 16 exhibits, numbered 6A, 6B, 6C, 6D, 6E, 7-11, 13, 15A, 15B, 15C, and 17-18.
July 21, 2014. Both parties filed proposed recommended orders, which the undersigned has considered in the preparation of this Recommended Order.1/
Unless otherwise indicated, citations to the Florida Statutes refer to the 2012 codification.
At all times relevant to this proceeding, Petitioner, an African-American male, was employed by Respondent as a truck driver.
In or around 1997, Respondent hired Petitioner as a forklift operator, a position he voluntarily abandoned (after roughly one year) to pursue other opportunities.
Some six years later, in 2004, Petitioner returned to Respondent's employ as a truck driver. This second stint of employment continued until June of 2011, at which time Petitioner resigned his position——again, voluntarily——in order to "cash out" his 401K account. Tellingly, in his resignation letter, Petitioner thanked Respondent "for the opportunities [it] had provided [him] during the years," and noted that he "really enjoyed working for Mullins Lumber."
Several months later, Respondent approached Petitioner about returning to his former truck-driver position. Petitioner agreed and resumed his employment with Respondent in August of 2011.
For all that appears, Petitioner discharged his obligations suitably until the afternoon of August 14, 2012. On
that occasion, Petitioner used a forklift to load materials onto his tractor trailer, a task he had performed numerous times.
After the loading process was complete, Petitioner drove the forklift around the back of his truck and in the direction of the forklift shed. At one point along the way, it was necessary for Petitioner to make a blind turn around a truck belonging to a colleague, Wes Walker. Needless to say, such a maneuver presents a substantial danger to any person who might be nearby; for that reason, Respondent's forklift operator workbook, whose terms Petitioner was obliged to follow,2/ provides that drivers must:
Slow down at cross isles [sic], exits, and blind corners; sound horn at once upon approaching any of these situations.
(Emphasis in original).3/
Of the mistaken assumption that no other workers were in the immediate area because of inclement weather (a light rain was falling), Petitioner neither sounded the forklift's horn nor slowed to an appropriate speed as he negotiated the blind corner.4/ As a consequence, Petitioner accidentally collided with Respondent's vice president, Scott Mullins, who was conversing with Mr. Walker at the rear of the truck.5/ The evidence is undisputed that Scott Mullins suffered a broken
tibia and fibula, injuries that required surgery and months of physical therapy to correct.
Within hours of the accident, one of Respondent's owners and officers, Clarke Mullins, suggested to Petitioner (who was noticeably distraught) that he take the rest of the week off and return to work the following Monday. Petitioner agreed and departed the worksite shortly thereafter.
Over the next several days, Clarke Mullins conducted a brief, yet adequate, investigation of the events of August 14, 2012. The investigation included an interview of Mr. Walker, an African-American, who confirmed that Petitioner's operation of the forklift was lacking.
Upon the completion of his investigation, Clarke Mullins concluded that the accident of August 14 warranted the termination of Petitioner's employment.6/ Petitioner was thereafter replaced by an African-American driver some three years and seven months his junior.7/
During the final hearing in this cause, Petitioner offered no direct evidence in support of his claim of age discrimination. Although the age disparity between Petitioner and his replacement is sufficient to raise an initial inference of impropriety, Petitioner has failed to prove that Respondent's proffered reason for the firing——the accident——is a mere pretext
for age discrimination. On the contrary, the undersigned credits Clarke Mullins' testimony that the accident was the sole basis for Petitioner's termination.8/
The charge of race discrimination fares no better.
Petitioner's conclusory assertions notwithstanding, the record is devoid of any evidence, direct or otherwise, suggesting that Petitioner's termination was motivated by racial considerations. Quite the opposite, in fact: Petitioner was replaced by a member of his own race; and, as noted above, the undersigned credited Clarke Mullins' testimony that Petitioner was fired for
the accident alone.
CONCLUSIONS OF LAW
Jurisdiction
DOAH has personal and subject matter jurisdiction in this proceeding pursuant to sections 120.569, and 120.57(1), Florida Statutes (2014).
The FCRA
The Florida Civil Rights Act of 1992 ("the FCRA"), chapter 760, Florida Statutes, prohibits discrimination in the workplace. Among other things, the FCRA makes it unlawful for an employer:
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.
§ 760.10(1)(a), Fla. Stat.
The FCRA, as amended, was patterned after Title VII of the Civil Rights Acts of 1964 and 1991 ("Title VII"), as well as the Age Discrimination in Employment Act ("the ADEA"). As such, federal decisional authority interpreting Title VII and the ADEA is applicable to cases arising under the FCRA. Valenzuela v.
GlobeGround N. Am., LLC, 18 So. 3d 17, 21 (Fla. 3d DCA 2009); Fla. State Univ. v. Sondel, 685 So. 2d 923, 925 n.1 (Fla. 1st
DCA 1996).
Complainants alleging unlawful discrimination may prove their case using direct evidence of discriminatory intent. Direct evidence is evidence that, if believed, would prove the existence of discriminatory intent without resort to inference or presumption. Denney v. City of Albany, 247 F.3d 1172, 1182 (11th Cir. 2001). "[O]nly the most blatant remarks, whose intent could be nothing other than to discriminate on the basis of some impermissible factor constitute direct evidence of discrimination." Wilson v. B/E Aerospace, Inc., 376 F.3d 1079,
1086 (11th Cir. 2004)(internal quotation marks omitted).
When no direct proof of discrimination exists, the employee may attempt to establish a prima facie case
circumstantially through the burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). Failure to establish a prima facie case of discrimination ends the inquiry. See Kidd v. Mando Am. Corp., 731 F.3d 1196, 1202 (11th Cir. 2013). If, however, the employee succeeds in making a prima facie case, the burden then shifts to the employer to articulate a legitimate, non-discriminatory reason for its complained-of conduct. Id. This intermediate
burden of production, not persuasion, is "exceedingly light." Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 769-70 (11th
Cir. 2005). Should the employer meet this burden, the employee must then establish that the proffered reason was not the true reason for the employment decision, but rather a pretext for discrimination. Kidd, 731 F.3d at 1202. Notwithstanding these
shifts in the burden of production, the ultimate burden of persuasion remains at all times with the employee. Id.
The Charges
With this framework in place, the undersigned turns to the charges of discrimination pleaded in the Complaint——namely, that Respondent terminated Petitioner because of his race and/or age. Each theory is addressed separately below, beginning with Petitioner's age discrimination claim.
A. Age Discrimination
As detailed previously, the record is devoid of any direct evidence of age discrimination. Accordingly, Petitioner's claim is analyzed pursuant to the McDonnell Douglas burden-shifting framework. In this context, Petitioner can establish a prima facie case of age discrimination upon proof of four elements: 1) that he was a member of a protected class; 2) that he was qualified for the position; 3) that he was subjected to an adverse employment action; and 4) that a "substantially younger person filled the position from which he was discharged." Kragor v. Takeda Pharms. Am., Inc., 702 F.3d 1304, 1308 (11th Cir. 2012).
Turning to the merits, Respondent properly concedes that Petitioner has established the first three elements of a prima facie case. As for the fourth element, Respondent asseverates that the age differential between Petitioner and his replacement (roughly three years and seven months) is not "substantial," and that Petitioner was therefore obliged to adduce other evidence of discrimination to round out a prima facie case. This argument faces an uphill climb, however, for the Eleventh Circuit has held——as Respondent candidly acknowledges in its Proposed Recommended Order——that an age difference of three years or more is "substantially younger" for
these purposes. Damon v. Fleming Supermarkets of Fla, Inc., 196
F.3d 1354, 1360 (11th Cir. 1999)("[W]e have held that a replacement who is only three years younger is sufficient to establish a prima facie case")(emphasis in original); Carter v. City of Miami, 870 F.2d 578, 582-83 (11th Cir. 1989); but see
Grosjean v. First Energy Corp., 349 F.3d 332, 340 (6th Cir. 2003)(holding that an age difference of six years or less is not significant). Persuaded by the Eleventh Circuit's reasoning, the undersigned concludes that, for the purposes of establishing an age discrimination claim, an age difference of three years or greater is substantial.
Pursuant to the McDonnell Douglas framework, the
burden of production now shifts to Respondent to articulate a legitimate, nondiscriminatory reason for Petitioner's termination. This hurdle is easily cleared, for Respondent has adduced evidence that it determined, following an investigation, that Petitioner's operation of the forklift was deficient, and that such misconduct warranted his discharge.
Where, as in this case, the employer produces a facially adequate explanation for the discharge, the presumption of discrimination created by the employee's prima facie case disappears from view. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43 (2000). At that juncture, the
employee must show that the reason given by the employer for the discharge is pretextual, and, moreover, that it is pretext for age discrimination. Id. at 143. In other words, the bottom-
line question of discrimination vel non comes front and center. See Kragor v. Takeda Pharms. Am., Inc., 702 F.3d 1304, 1308 n.1
(11th Cir. 2012).
As detailed in the Findings of Fact herein, Petitioner has failed to prove, by a preponderance of the evidence, that the proffered reason for his discharge was a pretext for discrimination. See Combs v. Plantation Patterns, 106 F.3d
1519, 1538 (11th Cir. 1997)(holding that an employee must show "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy of credence."). On the contrary, the credible evidence makes pellucid that Petitioner was terminated not because of his age but, rather, because of Respondent's genuine (and reasonable) conclusion that Petitioner's operation of the forklift was lacking. Petitioner's claim of age discrimination therefore fails.
B. Race Discrimination
Petitioner's claim of race discrimination is likewise unsupported by any direct evidence; as such, the McDonnell
Douglas framework applies once again. In cases of alleged race
discrimination resulting in termination, a prima facie case is established with proof that the employee: 1) is a member of a protected class; 2) was qualified for the position; 3) suffered an adverse employment action; and 4) was replaced by someone outside the protected class. See Cuddeback v. Fla. Bd. of Educ., 381 F.3d 1230, 1235 (11th Cir. 2004).
Although Petitioner obviously satisfies the first three prongs (a point Respondent concedes), the evidence demonstrates that he was replaced by an African-American employee——a member of his own class. This does not end the inquiry, however, for a number of federal courts have held that a prima facie case is not necessarily dependent upon satisfying the fourth prong of McDonnell Douglas:
A plaintiff may have a prima facie case based on the first three requirements despite the fact that the employer hired a minority to fill the vacancy left by the plaintiff. . . . Courts considering such a situation have looked at several factors including the length of time between the discharge and the replacement, whether the replacement by the hired minority occurred after the filing of an E.E.O.C. complaint, and, if the hired person had a history with the employer, whether it was a positive history.
Edwards v. Wallace Cmty. Coll., 49 F.3d 1517, 1521 (11th Cir. 1995)(internal citations omitted).
Even under this expansive formulation of McDonnell
Douglas, there is no evidence that the decision to replace Petitioner with a person of the same race "was a pretextual device specifically designed to disguise an act of discrimination." Howard v. Roadway Express, Inc., 726 F.2d
1529, 1535 (11th Cir. 1984); Gibbons v. Cnty. Bd. of Educ., 454 Fed. Appx. 720, 722 (11th Cir. 2011). As such, Petitioner has not established a prima facie case.
Even assuming arguendo that Petitioner has satisfied each element of a prima facie case, the record makes manifest that he was terminated for one reason only: his unsafe operation of the forklift in the moments preceding the accident. Accordingly, Petitioner's charge of race discrimination should be dismissed.
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 adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order.
Further, it is RECOMMENDED that the final order dismiss the Petition for Relief.
DONE AND ENTERED this 14th day of August, 2014, in Tallahassee, Leon County, Florida.
Edward T. Bauer Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 14th day of August, 2014.
1/ Respondent's motion to strike Petitioner's filing of July 9, 2014, is hereby denied.
2/ Hr'g Tr. 56:17-57:4.
3/ Resp't Ex. 17, p. 20.
4/ Hr'g Tr. 54:23-25; 72:12-13.
5/ Hr'g Tr. 69:16-23.
6/ At the time of Petitioner's firing, Respondent employed four other truck drivers: Jesse Moreno, who is Hispanic and 13 years older than Petitioner; Arthur King, an African-American four years older than Petitioner; Wes Walker, an African-American; and William Dochniak, a Caucasian. Hr'g Tr. 81-83; Resp't Ex.
6A, 6B, 6C & 6D.
7/ Hr'g Tr. 103:10-18; Resp't Ex. 6E.
8/ Hr'g Tr. 79:15-17.
Amy M. DeMartino, Esquire
Wicker Smith O'Hara McCoy & Ford, P.A.
Cheyanne Costilla, 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.
