CHE K. JOHNSON,

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

vs.

Petitioner,

Case No. 17-5294

ROLL-A-GUARD,

Respondent.

/

RECOMMENDED ORDER

A final hearing was held in this matter before Robert S. Cohen, Administrative Law Judge with the Division of Administrative Hearings (“DOAH”), on November 28, 2017, in Clearwater, Florida.

APPEARANCES

For Petitioner: Che Johnson, pro se

2428 Fairbanks Drive

Clearwater, Florida 33764

For Respondent: Andrew J. Ayers, pro se

Roll-A-Guard Suite 206

12722 62nd Street

Largo, Florida 33773 STATEMENT OF THE ISSUE

The issue is whether Respondent discriminated against Petitioner based on Petitioner’s race.

PRELIMINARY STATEMENT

Respondent operates a company that installs hurricane shutters. Petitioner was an employee of Respondent, working as a helper, not a “full-fledged” installer at its location in Largo, Florida. Petitioner’s employment was terminated on January 20, 2017, after he left the worksite without permission and after being told by more than one person that he could not leave.

On April 6, 2017, Petitioner filed an Employment Complaint of Discrimination with the Florida Commission on Human Relations (“FCHR”), alleging he was discriminated against based upon his race. After completing its investigation, FCHR issued a “no reasonable cause” determination. Petitioner filed a Petition for Relief on September 22, 2017, electing an administrative hearing to contest disputed issues of material fact, and the petition was transmitted to DOAH the same day. The final hearing was scheduled and took place on November 28, 2017, in Clearwater, Florida.

At the hearing, Petitioner testified on his own behalf and offered Petitioner’s Composite Exhibit 1, which was admitted into evidence. Respondent presented the testimony of Andrew Ayers, president; Logan Hunter, claims adjuster; Michael Lloyd, shop manager; and Sandra Ayers, vice president, and offered Respondent’s Exhibits 1 through 4 and 6 through 11, which were admitted into evidence.

Neither party requested a transcript. After the hearing, neither Petitioner nor Respondent filed proposed recommended orders.

References to statutes are to Florida Statutes (2017), unless otherwise noted.

FINDINGS OF FACT

1. Petitioner, Che Johnson, worked as a helper to full-time installers of hurricane shutters with Respondent. He was training to become a full-fledged installer.

2. Respondent, AABC, d/b/a Roll-A-Guard (“Roll-A-Guard” or “Respondent”), is a company that installs hurricane shutters from its offices and warehouse in Largo, Florida.

3. Petitioner filed an Employment Complaint of Discrimination with the Florida Commission on Human Relations against Respondent, stating, under penalty of perjury, that Respondent had 15+ employees. When asked by Respondent’s president why he believed 15 people were employed by Respondent, he was unable to give an answer. Petitioner admitted he never saw 15 people at the warehouse when he was working there.

4. Roll-A-Guard, between October 21, 2016, and January 20, 2017, which covers the entire time Petitioner was employed with the company, never had more than seven employees on the payroll. This was substantiated by a payroll report from Respondent’s Professional Employer Organization and by testimony of

   
   

   Respondent’s president. This number of employees is substantially below the statutorily required number of employees (15) for Roll-A-Guard to be deemed an “employer” for purposes of the Florida Civil Rights Act of 1992.

5. Petitioner, an African-American male, claimed that he was discriminated against on the job by his boss and president of Roll-A-Guard, Andrew J. Ayers, referring to him in a racially discriminatory way when calling on customers on several occasions.

6. Petitioner claims that Mr. Ayers asked customers on three to four occasions whether they thought Mr. Johnson “was as cute as a puppy dog.” This offended Mr. Johnson, and he believed the statement to be discriminatory against him on the basis of his race. Mr. Johnson offered no additional testimony, nor any additional evidence, other than his own testimony that these remarks were made by Mr. Ayers.

7. Mr. Ayers denied, under oath, that he had ever referred to Mr. Johnson as a “puppy dog,” and was especially offended not only that Mr. Johnson never raised the issue with him, but that Mr. Johnson went to the company’s Facebook page after his employment was terminated, and posted comments about Roll-A-Guard being a racist company that discriminated against African- Americans. The other employees of Roll-A-Guard, who testified at hearing, also never heard the “puppy dog” remarks allegedly made,

   
   

   nor did they believe Mr. Ayers was prejudiced in any way against Mr. Johnson.

8. Although the lack of 15 employees by Respondent fails to invoke the jurisdiction of the Civil Rights Act of 1992, the evidence at hearing demonstrates Mr. Johnson’s termination from employment was unrelated to his claim of having been called a “puppy dog” by Mr. Ayers.

9. On the day Mr. Johnson was terminated from employment, January 20, 2017, Mr. Ayers informed the workers that no one should leave the warehouse for lunch due to a rush job on a substantial order of hurricane shutters.

10. Despite Mr. Ayers’ warning, Mr. Johnson left for lunch in the afternoon and was unreachable by Mr. Ayers, who attempted to text him to order him to return to work. Mr. Johnson did not immediately respond to the texts.

11. Although Mr. Johnson eventually responded to the texts from Mr. Ayers after 45 minutes to an hour, Mr. Ayers was perturbed by that point, and actually hired a new worker to replace Mr. Johnson, and told Mr. Johnson not to return to work since he was fired.

12. Mr. Ayers fired Mr. Johnson, in part, because he believed Mr. Johnson was not only leaving for lunch, but for the weekend. Other witnesses working that day confirmed this by testifying they heard words to the effect of “See you Monday.”

    
    

    Mr. Johnson admitted he left for lunch, but testified that he intended to return that afternoon after he had eaten.

    CONCLUSIONS OF LAW

    
    

13. The Division of administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to sections 120.569, 120.57(1), and 760.11(4)(b), Florida Statutes.

14. Section 760.10(1)(a) states, as follows:

    
    

    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.

15. An “employer” is defined in section 760.02(7) as: [A]ny 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.

16. A “person,” as defined in section 760.02(6), includes: [A]n individual, association, corporation,

    joint apprenticeship committee, joint-stock

    company, labor union, legal representative, mutual company, partnership, receiver, trust, trustee in bankruptcy, or unincorporated organization; any other legal or commercial entity; the state; or any governmental entity or agency.

    
    

17. Since Roll-A-Guard is a “person” who employs fewer than

    
    

    15 employees, it is not an “employer” for purposes of the Civil Rights Act of 1992, and is, therefore, not subject to section

    760.10 for having engaged in an “unlawful employment practice.” Based upon this fact alone, Petitioner’s claim that he was subject to an unlawful employment practice must be dismissed.

18. Additionally, based upon the evidence produced at hearing, even if Respondent was an “employer” pursuant to the Civil Rights Act of 1992, no credible evidence was offered by Mr. Johnson that he was the subject of a discriminatory action by Roll-A-Guard. Accordingly, his claim of discrimination cannot stand.

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 that Respondent,

Roll-A-Guard, is not an “employer” and, therefore, not subject to section 760.10, Florida Statutes, or any of the provisions of the Civil Rights Act of 1992, and dismissing Petitioner’s charge of discrimination against Respondent.

DONE AND ENTERED this 3rd day of January, 2018, in Tallahassee, Leon County, Florida.

S

ROBERT S. COHEN

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 3rd day of January, 2018.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations 4075 Esplanade Way, Room 110

Tallahassee, Florida 32399 (eServed)

Che Johnson

2428 Fairbanks Drive

Clearwater, Florida 33764 (eServed)

Andrew J. Ayers Roll-A-Guard Suite 206

12722 62nd Street

Largo, Florida 33773 (eServed)

Cheyanne Michelle Costilla, General Counsel Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399 (eServed)

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: 17-005294

Orders for Case No: 17-005294