vs.
Case No. 14-5114
Respondent.
This matter came before Administrative Law Judge Todd P. Resavage for final hearing on February 25, 2015, in West Palm Beach, Florida.
For Respondent: Suhaill M. Morales, Esquire
Whether Respondent committed the unlawful employment discrimination practices alleged in the Employment Complaint of Discrimination filed with the Florida Commission on Human Relations ("FCHR") and, if so, what relief should Petitioner be granted.
On April 28, 2014, Petitioner filed against Wycliffe Golf and Country Club ("Respondent") an Employment Complaint of Discrimination ("Complaint") with FCHR. The Complaint, in its entirety, is set forth below:
D. DISCRIMINATION STATEMENT:
I believe I have been discriminated against pursuant to Chapter 760 of the Florida Civil Rights Act, and/or Title VII of the Federal Civil Rights Act, and/or the Age Discrimination in Employment Act, and/or the Americans with Disabilities Act as applicable for the following reason(s):
I am an African American. I believe I was subjected to different terms and conditions and discharged because of my race and my color. I began working for Respondent on October 18, 1993. My position title was Operator. I was the only African American working at this establishment for the past twenty years. On May 3, 2013, I was discharged for a no call no show on an off day. However, a white employee committed infractions and received warning after warning and he was not terminated. I also report Stacy (White) to a former supervisor (Jeff) for doing a side job and Jeff reported this to Mr. Bullard over the radio.
Mr. Bullard's response was "tell that nigger Joe to mind his business." I believe I would still have my job if I was not African American.
On September 23, 2014, following the completion of its investigation of the Complaint, FCHR issued a Notice of Determination: No Cause.
Petitioner elected to pursue administrative remedies, filing a Petition for Relief with FCHR on October 27, 2014.
Subsequently, on October 28, 2014, FCHR referred the matter to DOAH for further proceedings.
The final hearing was initially scheduled to occur on January 5, 2015. On January 2, 2015, Respondent filed a motion for continuance. The undersigned granted the motion and the final hearing was rescheduled for February 25, 2015.
During the final hearing, Petitioner testified on his own behalf and admitted one exhibit, identified as Petitioner's Exhibit A. Respondent presented the testimony of Beth Sandham, and admitted Respondent's Exhibits 3 and 4, 6 through 14, and 17.
The final hearing Transcript was filed on March 18, 2015.
Respondent timely filed a Proposed Recommended Order and the same has been considered in drafting this Recommended Order. Unless otherwise indicated, all references to Florida Statutes are to the 2014 version.
Petitioner is an African-American male. At all times pertinent to this case, Petitioner was employed by Respondent as an equipment operator in the golf course maintenance department. Respondent has been employed by Respondent for approximately 20 years.
Respondent is a golf and country club.1/ Respondent's employment policies are contained in its "Employee Handbook."2/ The Employee Handbook provides that a "[v]iolation of any of the rules or policies set forth in this Handbook may lead to discipline, up to and including immediate discharge."
Respondent's Employee Handbook contains a section on absenteeism and tardiness, which provides in pertinent part as follows:
Excessive absenteeism or tardiness can result in discipline up to and including discharge.
If you are going to be late or absent from work for any reason, you must personally notify your Supervisor as far in advance as possible (but no later than 2 hours before your scheduled start time) so proper arrangements can be made to handle your work during your absence. Of course, some situations may arise in which prior notice cannot be given. In those cases we expect you to notify your Supervisor as soon as possible. Leaving a message, sending a text, or having someone else call on your behalf, does not qualify as notifying your Supervisor- you must personally contact your Supervisor. If you are required to leave work early, you must also personally contact your Supervisor and obtain his/her permission. Absences of more than one day should be reported daily, unless you have made other arrangements with your Supervisor or the Human Resources Office. (emphasis in original).
* * *
Although an employee may be terminated at any time for failing to report to work without contacting the Club, if an employee fails to
report for work or call in for three (3) consecutive calendar days they will be considered to have abandoned their job and will be terminated.
Respondent's Employee Handbook also contains a provision concerning workplace violence. Employees are notified that, "[v]iolations of this policy may result in disciplinary action, up to and including termination of employment." The workplace violence policy provides in pertinent part:
The Club has a zero tolerance policy regarding violent acts or threats of violence against our employees, applicants, members, vendors, or other third parties. We do not allow fighting or threatening words or conduct. We also do not allow the possession of weapons of any kind on the Club's premises, except as required by law.
No employee should commit or threaten to commit any violent act against a co-worker, applicant, member, vendor, or other third party. This includes discussions of the use of the dangerous weapons, even in a joking manner.
May 3, 2013, Incident
On May 3, 2013, Petitioner was not at work, but rather, performing work for a resident in the community. Petitioner's vehicle was apparently parked on the wrong side of the road. Mike Jones, a security guard, advised Petitioner to move his vehicle or he was going to receive a ticket.
Petitioner informed Mr. Jones that he was not going to receive a ticket, and followed Mr. Jones back to the guard gate.
Thereafter, Petitioner and Mr. Jones became engaged in "some words." According to Petitioner, after the verbal altercation he left the guard gate.
On May 4, 2013, Petitioner presented to work and performed his duties. The following day, May 5, 2013, Petitioner was arrested for the May 3, 2013, incident and charged with battery on a security officer. Petitioner testified that the arrest occurred in Mike Ballard's office.3/ Mr. Ballard was Petitioner's superintendent at some point in his employment. Beth Sandham, Respondent's Human Resources Director, was not present at the time of arrest.
Petitioner remained in custody throughout May 6, 2013.
When Petitioner did not appear for work on May 6, 2013,
Ms. Sandham credibly testified that the Human Resources department, as well as his supervisors, attempted to contact Petitioner. After several attempts to reach him by phone, Respondent sent a letter to Petitioner via Federal Express.4/
Petitioner testified that he contacted his supervisor on May 6, 2013, and was advised that he had been terminated. Petitioner contends that his termination was racial in origin because Respondent did not obtain his account of the altercation prior to his termination. On this point, Petitioner testified as follows:
That why I say this is a racist thing because they listen to what their two security guards say, but they never gave me the chance to explain myself.
On May 6, 2013, Ms. Sandham terminated Petitioner's employment on the grounds of failing to report to work and the alleged violent behavior.
As an additional basis for alleging racial discrimination, Petitioner testified that Mike Ballard was a racist. Specifically, Petitioner testified that on one occasion he overheard Mr. Ballard advise another employee, Jeff Beneclas, to "[t]ell that nigger mind his own f***en business." Petitioner explained that Mr. Ballard was referring to him. Mr. Beneclas was terminated on June 25, 2010.
Addressing this allegation, Ms. Sandham explained that, if the alleged statement had been made over Respondent's radio system, said statement would have been heard by the tennis department, the golf professionals, facilities maintenance, the superintendents, and golf course maintenance. Ms. Sandham credibly testified that neither Petitioner nor any other employee notified her of such a statement or made a complaint. Additionally, Ms. Sandham credibly testified that Petitioner never made a complaint to her regarding Mr. Ballard.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has personal and subject matter jurisdiction in this proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes.
The Florida Civil Rights Act of 1992 ("the FCRA") is codified in sections 760.01 through 760.11, Florida Statutes, and section 509.092, Florida Statutes.
"The [FCRA], as amended, was patterned after Title VII of the Civil Rights Acts of 1964 and 1991 . . . as well as the Age Discrimination in Employment Act . . . Federal case law interpreting [provisions of] Title VII and the ADEA is [therefore] applicable to cases arising under [the FCRA]." Joshua v. City of Gainesville, 768 So. 2d 432, 435 (Fla. 2000)("The [FCRA's] stated purpose and statutory construction directive are modeled after Title VII of the Civil Rights Act of 1964."); Fla. State Univ. v. Sondel, 685 So. 2d 923, 925 n.1
(Fla. 1st DCA 1996); Valenzuela v. GlobeGround N. Am., LLC, 18
So. 3d 17, 21 (Fla. 3d DCA 2009)("Because the FCRA is patterned after Title VII of the Civil Rights Act of 1964 . . . we look to federal case law.").
Among other things, the FCRA makes certain acts unlawful employment practices and gives the FCHR the authority—— if it finds, following an administrative hearing conducted pursuant to sections 120.569 and 120.57, that such an unlawful
employment practice has occurred——to issue an order "prohibiting the practice and providing affirmative relief from the effects of the practice, including back pay." §§ 760.10 & 760.11(6), Fla.
Stat.
To obtain such relief from the FCHR, a person who
claims to have been the victim of an "unlawful employment practice" must, within 365 days of the alleged violation, file a complaint containing a short and plain statement of the facts describing the violation and the relief sought with the FCHR, the EEOC, or "any unit of government of the state which is a fair- employment-practice agency under 29 C.F.R. ss. 1601.70-1601.80."
§ 760.11(1), Fla. Stat.
"[T]o prevent circumvention of [FCHR's] investigatory and conciliatory role, only those claims that are fairly encompassed within a [complaint] can be the subject of [an administrative hearing conducted pursuant to sections 120.569 and 120.57]." Chambers v. Am. Trans Air, Inc., 17 F.3d 998, 1003
(7th Cir. 1994); see also Carter v. City of Pompano, Case
No. 10-10513 (Fla. DOAH Jan. 25, 2012; Fla. FCHR Mar. 27, 2012).
The only allegations that are "fairly encompassed" within Petitioner's complaint against Respondent are (1) that Respondent terminated his employment for failing to appear at work; however, a similar employee who is not a member of a protected class was not terminated after various infractions; and
(2) that, at some time during his employment, a former supervisor used a racially charged word in describing Petitioner over the radio.
Section 760.10, Florida Statutes, provides, in relevant
part:
It is an unlawful employment practice 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.
* * *
It is an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of race, color, religion, sex, national origin, age, handicap, or marital status or to classify or refer for employment any individual on the basis of race, color, religion, sex, national origin, age, handicap, or marital status.
Petitioner bears the burden of proving that he is the victim of a discriminatorily motivated action. Dep't of Banking
& Fin. Div. of Sec. & Investor Prot. v. Osborne Stern Co., 670
So. 2d 932, 934 (Fla. 1996).
For a claimant to prove discrimination, he must show through the use of direct or circumstantial evidence that the
defendant acted with an intentional discriminatory purpose. Hill
v. Metropolitan Atlanta Rapid Transit Auth., 841 F.2d 1533, 1539 (11th Cir. 1988). Direct evidence is evidence that, if believed, would prove the existence of discriminatory intent without resort to inference or presumption. Denny v. City of Albany, 247 F.3d
1172, 1182 (11th Cir. 2001); Holifield v. Reno, 115 F.3d 1555, 1561 (11th Cir. 1997). Courts have held that "only the most blatant remarks, whose intent could be nothing other than to discriminate," satisfy this definition. See Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1358-59 (11th Cir.
1999)(internal quotations omitted).
"Direct evidence often takes the form of remarks made by employers that reveal discriminatory attitudes and that are related to the challenged employment decision." Allen v. City of
Athens, 937 F. Supp. 1531, 1538 (N.D. Ala. 1996) citing Haynes v. W.C. Caye & Co., 52 F.3d 928, 930-31 (11th Cir. 1995)(statement
by decisionmaker that women were unfit for the job plaintiff was rejected for constituted direct evidence); Miles v. M.N.C. Corp., 750 F.2d 867, 873-74 (11th Cir. 1985)(racial slur made by supervisor concerning black's work abilities constituted direct evidence). However, not every remark in the workplace is direct evidence of discrimination. Indeed, stray remarks, statements by non-decision makers or statements made by decision makers unrelated to the decision making process may not justify
requiring the employer to prove that his employment decisions were based on legitimate criteria. Allen, 937 F. Supp.
at 1358-59.
The sole item that could potentially be considered direct evidence is Petitioner's testimony that, on one occasion prior to June 25, 2010, his supervisor used the "N" word in reference to Petitioner. As noted above, said incident was not corroborated by any other witness, and Ms. Sandham expressly declined knowledge of any such incident occurring. Assuming, arguendo, that Petitioner's supervisor had made the discriminatory remark, there is no evidence to suggest the supervisor's comments were related to the challenged employment decision to terminate his employment. Indeed, the alleged incident occurred, if at all, several years prior to Petitioner's termination. "Comments by a supervisor that are temporally remote from the challenged decision can hardly be direct evidence of discrimination, since they require an inference of a general discriminatory attitude, followed by another inference that the attitude entered into the making of the challenged decision." Id. at 1543. Accordingly, the purported comment by Petitioner's supervisor does not constitute direct evidence.
Where, as here, there is an absence of direct evidence, the claimant may attempt to establish a case circumstantially. The claimant has the initial burden of establishing by a
preponderance of the evidence a prima facie case of unlawful discrimination, which requires proof that: (1) he is a member of a protected class; (2) he was qualified to do the job; (3) he was subjected to an adverse employment action; and (4) he was replaced by an employee outside of his protected class or the employer treated similarly-situated employees outside the class more favorably. McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-803 (1973); Burke-Fowler v. Orange Cnty., 447 F.3d 1319, 1323
(11th Cir. 2006); Johnson v. Great Expressions Dental Ctrs. of Fla., P.A., 132 So. 3d 1174, 1176 (Fla. 3d DCA 2014).
"Discrimination is about actual knowledge, and real intent, not constructive knowledge and assumed intent." Silvera
v. Orange Cnty. Sch. Bd., 244 F.3d 1253, 1262 (11th Cir. 2001). "Conclusory allegations of discrimination or retaliation are, without more, insufficient to carry the plaintiff's burden." Jefferson v. Burger King Corp., 505 Fed. Appx. 830, 834 (11th
Cir. 2013)(citing Mayfield v. Patterson Pump Co., 101 F.3d 1371,
1376 (11th Cir. 1996)).
"Failure to establish a prima facie case of discrimination ends the inquiry." Ratliff v. State, 666 So. 2d 1008, 1012 n.6 (Fla. 1st DCA 1996). If, however, the complainant succeeds in making a prima facie case, then the burden shifts to the accused employer to articulate one or more legitimate, non- discriminatory reasons for its action. Alvarez v. Royal Atl.
Developers, Inc., 610 F.3d 1253, 1264 (11th Cir. 2010). This
intermediate burden of production, not persuasion, is "exceedingly light." Turnes v. Amsouth Bank, N.A., 36 F.3d 1057,
1061 (11th Cir. 1994).
When such a reason is articulated, the presumption of discrimination is eliminated, and the claimant must submit evidence showing the articulated reason is pretextual. Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000);
St. Mary's Manor Ctr. v. Hicks, 509 U.S. 502, 516-518 (1993). Despite these shifts in the burden of production, the ultimate burden of persuasion remains on the claimant to show that the defendant intentionally discriminated against him. Alvarez, 610
F.3d at 1264; Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1088
(11th Cir. 2004).
Here, Petitioner satisfied the first three prongs of a prima facie case.5/ Concerning the fourth prong, Petitioner failed to present any evidence that he was replaced by an employee outside of his protected class or the employer treated similarly-situated employees outside the class more favorably. Accordingly, Petitioner failed to satisfy the fourth prong, and, therefore, the analysis need go no further as Petitioner has failed to establish a prima facie case.
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 against Wycliffe Golf and Country Club.
DONE AND ENTERED this 16th day of April, 2015, in Tallahassee, Leon County, Florida.
TODD P. RESAVAGE
Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 2015.
1/ No additional evidence was presented concerning Respondent.
2/ There is no evidence in the record addressing whether Petitioner ever received or reviewed a copy of the Employee Handbook.
3/ As the undersigned understands the evidence, Mr. Ballard was not present in the office at the time of arrest.
4/ Ostensibly, the correspondence was intended to advise Petitioner of his termination; however, no evidence was presented concerning the nature or content of the subject correspondence.
5/ The undersigned concludes that by the nature of his 20-year tenure with Respondent, Petitioner made the minimal showing that he possesses the basic skills necessary for performance of the job. See Gregory v. Daly, 243 F.3d 687, 696 (2d Cir.
2001)(holding that a plaintiff "need only make a minimal showing that she possesses the basic skills necessary for the performance of [the] job" to satisfy the requirement that the plaintiff was qualified for the position)(internal citations and quotations omitted).
Suhaill M. Morales, Esquire Fisher and Phillips, LLP
Tammy Scott Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110
Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110
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.
