BOBBY L. MCCRAE,
vs.
Case No. 17-2946
Respondent.
Pursuant to notice, a formal administrative hearing was conducted before Administrative Law Judge Mary Li Creasy of the Division of Administrative Hearings (DOAH) by video teleconference with locations in Lauderdale Lakes and Tallahassee, Florida, on August 14, 2017.
For Petitioner: Bobby L. McCrae, pro se
For Respondent: Rose L. Brittain, pro se
Advanced Roofing, Inc. 1950 Northwest 22nd Street
Whether Petitioner was unlawfully terminated from his employment with Respondent based upon his age and in retaliation
remedy.
On November 4, 2016, Petitioner, Bobby L. McCrae, filed an Employment Charge of Discrimination (Charge) with the Florida Commission on Human Relations (FCHR) alleging that Respondent, Advanced Roofing, Inc. (Respondent or Advanced Roofing), violated section 760.10, Florida Statutes (the Florida Civil Rights Act or FCRA), by discriminating against him on the basis of his age and in retaliation for engaging in protected activity. The Charge alleges that Petitioner was notified on October 3, 2016, that he should not return to work after he complained about a wage disparity with younger workers and safety concerns.
On May 3, 2017, the FCHR issued a Determination: No Cause, and a Notice of Determination: No Cause, by which the FCHR determined that reasonable cause did not exist to believe that an unlawful employment practice occurred. On May 15, 2017, Petitioner filed a Petition for Relief with the FCHR. The Petition was transmitted to DOAH on May 18, 2017, to conduct a final hearing.
The final hearing was set for August 14, 2017, and commenced as scheduled. At the final hearing, Petitioner testified on his own behalf, and Petitioner's Exhibits A through C were admitted in evidence. Respondent presented the testimony of the
following: Paul Burns, former Advanced Roofing construction site supervisor; Bryan Cardona, safety director; and Calvin Palmer, laborer. Respondent's Exhibits 1 through 4 were admitted in evidence.
The parties chose not to order a transcript. Both parties timely filed post-hearing letters summarizing their positions. These submissions were taken into consideration in the drafting of this Recommended Order. Unless otherwise indicated, citations to the Florida Statutes or rules of the Florida Administrative Code refer to the versions in effect at the time of the alleged
discrimination.
In June 2016, Petitioner, a 58-year-old man, responded to an advertisement for laborers posted by Aerotek, an employee leasing company.
Petitioner was hired and told he would be placed as a general laborer with Advanced Roofing for a solar panel installation job at the Lake Worth landfill. Petitioner attended a safety orientation presented by Advanced Roofing in June but was not actually placed at the job site until August 1, 2016.
Advanced Roofing is a roofing company that employs approximately 380 workers for commercial roofing jobs, HVAC, and solar panel installation throughout Florida. It also contracts
with Aerotek and CLP, employee leasing companies, to supply laborers to specific job sites on an as needed basis.
Advanced Roofing has an agreement with Aerotek to pay designated hourly wage rates to Aerotek based upon job classification. It is up to the discretion of Aerotek to determine what wages are paid to individual laborers. Petitioner's Employment at Advanced Roofing's Job Site
Based upon Petitioner's prior experience, he was classified by Aerotek as a general laborer and assigned by Advanced Roofing to supervise a crew for the pouring of concrete pillars. He reported to, and received direction from, Advanced Roofing's site supervisor, Paul Burns. Petitioner received an hourly wage from Aerotek in the amount of $13.00 per hour.
Shortly after beginning work with Advanced Roofing, Petitioner complained repeatedly to Mr. Burns that he should be paid more based upon his experience and the fact that he was asked to supervise others. Mr. Burns explained that Advanced Roofing does not control what Aerotek pays its workers but that he would speak to Aerotek about a possible raise.
Petitioner discussed his pay concerns with co-worker Allen Andrews, who was approximately 30 years old. Mr. Andrews told Petitioner he thought he (Mr. Andrews) too should be paid more based upon his skill set. In fact, Mr. Andrews apparently addressed this issue with Aerotek and received a pay raise from
Aerotek to $15.00 per hour. After Mr. Andrews showed Petitioner his pay stub, Petitioner asked Mr. Burns whether Mr. Andrews was being paid more because he was younger.
Petitioner believes Mr. Andrews received the requested raise despite being less qualified than Petitioner and holding no license or certification. However, Respondent's Exhibit 1 shows that Mr. Andrews was classified as an "electrical helper" by Aerotek and had prior electrical conduit experience that Petitioner did not have.
On October 3, 2016, Petitioner sent a text message to his immediate supervisor, Ray Mason, at 4:13 a.m., advising he was coming back to town from Orlando and would be arriving late for work that day. Petitioner explained that the laborers were instructed to call in as soon as they knew they would be late or absent.
At 5:50 a.m., Mr. Mason replied, "Do you see what time it is man? You just cut my sleep. Don't come back."
Over the course of Petitioner's assignment to Advanced Roofing from Aerotek, Petitioner, by his own admission, missed at least three days of work. According to Advanced Roofing, Petitioner missed five days of work during that time and was repeatedly late. Although Petitioner testified that other younger workers routinely missed work or came in late without calling in and without consequence, he offered no corroborating
evidence. Prior to his termination, Petitioner received no counseling or written discipline regarding performance or attendance.
On September 28, 2016, Advanced Roofing contacted Aerotek to supply four more workers to the Lake Worth site due to concerns regarding slowing productivity. Advanced Roofing dismissed several workers in addition to Petitioner on October 3, 2016, based on absenteeism and decreased productivity.
After being dismissed by Advanced Roofing, Aerotek offered to place Petitioner elsewhere. Because it would be approximately eight weeks before Aerotek would have another assignment for Petitioner, he declined reassignment and accepted a settlement package.
Allegations of Drug Use and Safety Hazards
After he was told not to return to Advanced Roofing, Petitioner contacted the City of Lake Worth by email to complain about drug use, intoxication, and fighting among employees. Petitioner also wrote Rob Kornahrens, Advanced Roofing's president, making similar allegations and detailing how workers were instructed by supervisors how to pass drug tests by pinning a condom with clean urine from another person to the inside of their pants to keep it at body temperature and using it to fill the urine drug test container.
Petitioner contends he also raised safety concerns prior to his termination about co-workers fighting and using drugs on the job. Petitioner believes he was terminated in part due to these "whistle-blowing" activities.
Advanced Roofing undertook an investigation into Petitioner's post-termination allegations, including drug testing at the worksite of 23 workers. Two workers refused to test and six others failed. However, the investigation did not confirm the widespread drug use or on-the-job intoxication alleged by Petitioner. Advanced Roofing denies that its supervisors instructed employees how to fool the test. Further, no significant incidents of fighting at the Lake Worth project were brought to the attention of management before or after Petitioner's termination.
Aerotek's Employment of Other Older Workers
Petitioner claims he was the oldest worker of the crew at Advanced Roofing. However, Petitioner admitted that Calvin Palmer, age 63, also worked as an electrical helper/laborer for Advanced Roofing at the Lake Worth site while Petitioner was employed. Mr. Palmer, who was hired as a laborer with electrical experience through another temporary service, has become a regular employee of Advanced Roofing and currently earns $23.00 per hour.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case.
§§ 120.569 and 120.57, Fla. Stat. (2017).
Section 760.10(1) states that it is an unlawful employment practice for an employer to fail or refuse to hire or otherwise discriminate against an individual on the basis of age.
Section 760.10(7) prohibits retaliation against those who oppose unlawful discriminatory employment practices.
FCHR and Florida courts have determined that federal discrimination laws should be used as guidance when construing provisions of section 760.10. See Valenzuela v. GlobeGround
N. Am., LLC, 18 So. 3d 17 (Fla. 3d DCA 2009); Brand v. Fla. Power Corp., 633 So. 2d 504, 509 (Fla. 1st DCA 1994).
In the instant case, Petitioner alleges that he was paid less than younger workers for the same work and that he was terminated by Advanced Roofing in retaliation for opposing the alleged wage disparity and complaining about safety concerns. Advanced Roofing is a Joint Employer Subject to Liability
As a threshold matter, the issue of whether Advanced Roofing was Petitioner's "employer" must be addressed. Advanced Roofing asserts that it can have no liability because Petitioner was an employee of Aerotek, not Advanced Roofing. In support of this argument, Advanced Roofing points out that Petitioner was
recruited and hired by Aerotek, paid by Aerotek, worked on Advanced Roofing's job site only pursuant to a contract between the two entities, and was offered the opportunity by Aerotek to work elsewhere after his termination by Advanced Roofing.
However, the evidence presented clearly demonstrates that Petitioner's schedule was set by Advanced Roofing; his job duties were assigned by Advanced Roofing; his day-to-day activities were coordinated, controlled, and supervised by Advanced Roofing; and ultimately, he was terminated from the Lake Worth landfill project by Advanced Roofing.
When two entities contract with each other for the performance of some task, and one company retains sufficient control over the terms and conditions of employment of the other company's employees, the entities are considered "joint employers," and both may have liability for unlawful employment discrimination or retaliation. See Virgo v. Riviera Beach
Assoc., 30 F.3d 1350, 1359-60 (11th Cir. 1994).
"Joint employer" status assumes that companies are independent legal entities but share the control of employment matters including whether both entities influence such matters as hiring and firing of employees, work rules, assignments, conditions of employment, day-to-day supervision and discipline, and control of employee records. Zarnoski v. Hearst Bus.
Commc's, 69 FEP Cases 1514 (E.D. Pa. 1996). That is exactly the
situation in this case. Advanced Roofing was a joint employer with Aertoek of Petitioner and is subject to potential liability for unlawful employment discrimination.
Establishing Discrimination
Discriminatory intent can be established through direct or circumstantial evidence. Schoenfeld v. Babbitt, 168 F.3d 1257, 1266 (11th Cir. 1999). Direct evidence of discrimination is evidence that, if believed, establishes the existence of discriminatory intent behind an employment decision without inference or presumption. Maynard v. Bd. of Regents, 342 F.3d
1281, 1289 (11th Cir. 2003).
"Direct evidence is composed of 'only the most blatant remarks, whose intent could be nothing other than to discriminate' on the basis of some impermissible factor." Schoenfeld v. Babbitt, 168 F.3d at 1257, 1266. Petitioner presented no direct evidence of age discrimination or retaliation.
"[D]irect evidence of intent is often unavailable." Shealy v. City of Albany, Ga., 89 F.3d 804, 806 (11th Cir. 1996).
For this reason, those who claim to be victims of intentional discrimination "are permitted to establish their cases through inferential and circumstantial proof." Kline v. Tenn. Valley Auth., 128 F.3d 337, 348 (6th Cir. 1997).
Where a complainant attempts to prove intentional discrimination using circumstantial evidence, the shifting burden analysis established by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981),
is applied. Under this well-established model of proof, the complainant bears the initial burden of establishing a prima facie case of discrimination.
When the charging party is able to make out a prima facie case, the burden to go forward shifts to the employer to articulate a legitimate, non-discriminatory explanation for the employment action. See Dep't of Corr. v. Chandler, 582 So. 2d
1183 (Fla. 1st DCA 1991)(court discusses shifting burdens of proof in discrimination cases). The employer has the burden of production, not persuasion, and need only persuade the finder of fact that the decision was non-discriminatory. Id.; Alexander v.
Fulton Cnty., Ga., 207 F.3d 1303 (11th Cir. 2000).
The employee must then come forward with specific evidence demonstrating that the reasons given by the employer are a pretext for discrimination. Schoenfeld v. Babbitt, 168 F.3d at 1267. The employee must satisfy this burden by showing directly that a discriminatory reason more likely than not motivated the decision, or indirectly by showing that the proffered reason
for the employment decision is not worthy of belief. Dep't of
Corr. v. Chandler, 582 So. 2d at 1186; Alexander v. Fulton Cnty.,
Ga., 207 F.3d at 1303. Petitioner has not met this burden.
"Although the intermediate burdens of production
shift back and forth, the ultimate burden of persuading the trier of fact that the employer intentionally discriminated against the [Petitioner] remains at all times with the [Petitioner]." EEOC v. Joe's Stone Crabs, Inc., 296 F.3d 1265 (11th Cir. 2002);
see also Byrd v. RT Foods, Inc., 948 So. 2d 921, 927 (Fla. 4th
DCA 2007)("The ultimate burden of proving intentional discrimination against the plaintiff remains with the plaintiff at all times.").
Proving Age Discrimination
To establish a prima facie case of age discrimination under the federal Age Discrimination in Employment Act (ADEA), the complainant must show that he is a member of a protected age group (i.e., over 40); he was qualified for the job; he suffered adverse action; and he was treated less favorably than a similarly situated younger person. Benson v. Tocco, Inc.,
113 F.3d 1203, 1207 (11th Cir. 1997)(citing McDonnell Douglas,
411 U.S. at 792)(the 11th Circuit has adopted a variation of the McDonnell test in ADEA violation claims). Petitioner must also
prove that "but for" his age, he would have enjoyed the same benefit as his younger counterpart. Gross v. FBC Fin., 129 S.
Ct. 2343 (2009).
In cases alleging age discrimination under section 760.10(1)(a), FCHR has concluded that unlike cases brought under ADEA, the age of 40 has no significance in the
interpretation of the Florida Civil Rights Act of 1992. FCHR has determined that to demonstrate the last element of a prima facie case of age discrimination under Florida law, it is sufficient for Petitioner to show that he was treated less favorably than similarly situated individuals of a "different" age as opposed to a "younger" age. See Marchinko v. The Wittemann Co., Case
No. 05-2062 (Fla. DOAH Nov. 1, 2005), rejected in part, Case
No. 2005-00251 (FCHR Jan. 6, 2006), and cases cited therein.
Petitioner is a member of a protected class, and he suffered adverse action (termination). However, Petitioner failed to demonstrate two prongs of the prima facie case-–that he was qualified for the job and that he was treated differently than a younger, similarly situated employee.
While Petitioner was not criticized for job performance, his record of absenteeism shows he was not "qualified." Three to five absences in the first 45 days of employment is rarely acceptable to any employer.
Further, although Petitioner testified that his younger co-worker was paid more for the same job, there was no compelling evidence that this individual was "similarly situated." To the contrary, the evidence presented showed that the co-worker was
designated as an electrical helper based on prior experience justifying the higher rate of pay assigned by Aerotek. The evidence also showed that Advanced Roofing did not control the rates of pay for individual workers. Rather, Advanced Roofing paid a designated flat rate by job classification per worker to Aerotek, and it was Aerotek which decided the rates of pay for the laborers it supplied.
Even assuming arguendo that Petitioner demonstrated all elements of the prima facie case, Advanced Roofing offered a legitimate, non-discriminatory reason for Petitioner's discharge. Five days prior to Petitioner's termination, Advanced Roofing contacted Aerotek to supply an additional four workers due to concerns regarding reduced productivity. Petitioner's record of absenteeism over a short period of time was unacceptable and became intolerable when he notified his supervisor in the middle of the night of his intention to be late.
Petitioner claims this is a pretext for discrimination because younger workers who missed work frequently were not terminated. However, Petitioner offered no persuasive evidence of this and no specific information about the identity of these alleged workers, their ages, or their employment records.1/ Petitioner's speculation and personal belief concerning the motives of Respondent are not sufficient to establish intentional discrimination. See Lizardo v. Denny's, Inc., 270 F.3d 94, 104
(2d Cir. 2001)("[P]laintiffs have done little more than to cite to their mistreatment and ask the court to conclude it must have been related to their race. This is not sufficient.").
Petitioner failed to demonstrate that he was discriminated on the basis of his age with regard to his rate of pay or his termination. Similarly, Petitioner has not met his burden of proving that "but for" his age, he would have been paid more or he would not have been fired. See Gross v. FBC Fin., 129
S. Ct. at 2343.
Proving Retaliation
Section 760.10(7) prohibits retaliation in employment as follows:
(7) It is an unlawful employment practice for an employer . . . 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. (emphasis added).
The burden of proving retaliation follows the general rules enunciated for proving discrimination. Reed v. A.W.
Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir. 1996). As discussed above, Petitioner can meet his burden of proof with either direct or circumstantial evidence.
Petitioner did not introduce direct evidence of retaliation in this case. Thus, Petitioner must prove his
allegation of retaliation by circumstantial evidence. Circumstantial evidence of retaliation is subject to the burden- shifting framework established in McDonnell Douglas.
To establish a prima facie case of retaliation, Petitioner must show: (1) that he was engaged in statutorily- protected expression or conduct; (2) that he suffered an adverse employment action; and (3) that there is some causal relationship between the two events. Holifield v. Reno, 115 F.3d 1555, 1566
(11th Cir. 1997).
Petitioner did not engage in protected activity.
Although he claims he asked Mr. Burns if he was paid less than a co-worker due to his age, there is no evidence he complained to anyone that he was subjected to unlawful discrimination.
Although Mr. Burns did not remember this conversation in the context of age, he recalled multiple questions from Petitioner about his rate of pay to which Mr. Burns told Petitioner that the rate of pay was controlled by Aerotek, not Advanced Roofing.
Interestingly, in his communications with the City of Lake Worth and other government officials after his termination, Petitioner states that he was fired because he was a "whistle- blower" who complained about drug testing and safety violations. He never mentioned complaining about unlawful age discrimination.
While both federal and state statutes prohibit employers from engaging in retaliation against those who "blow
the whistle" on safety violations, this type of "whistle-blowing" is not protected by the FCRA nor does it fall within the jurisdiction of the FCHR. Although Petitioner may have a private right of action for unlawful whistle-blower retaliation (if he in fact complained prior to his termination), his alleged reporting
safety concerns is not protected activity for purposes of supporting a retaliation claim for opposing unlawful age discrimination.
Conclusion
Based upon the evidence and testimony offered at hearing, Petitioner failed to establish a prima facie case against Respondent for either age discrimination or in retaliation for opposing an unlawful employment practice. Therefore, the employment discrimination charge should be dismissed, and none of the damages claimed by Petitioner should be awarded to him.
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 dismissing FCHR Petition 201700134.
DONE AND ENTERED this 5th day of October, 2017, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 2017.
1/ During the final hearing, Petitioner mentioned several times that he wanted some of his former Advanced Roofing co-workers to appear and to have access to personnel records of either Advanced Roofing or Aerotek. Unfortunately, Petitioner did not request a subpoena, file any discovery requests with DOAH, or submit a motion to compel prior to the final hearing resulting in Advanced Roofing having no obligation to provide witnesses or documents to aid Petitioner.
Tammy S. Barton, Agency Clerk
Bobby L. McCrae
Rose L. Brittain Advanced Roofing, Inc.
Cheyanne M. 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.
