BILLY A. LEE,
vs.
Case No. 18-2763
Respondent.
On November 15, 2018, Administrative Law Judge Robert J. Telfer III, of the Florida Division of Administrative Hearings (Division) conducted a duly-noticed hearing by video teleconference in Tallahassee and Pensacola, Florida.
Whether Respondent engaged in discriminatory employment practices, or subjected Petitioner to harassment based on his race, in violation of the Florida Civil Rights Act (FCRA), when,
as alleged in the Petition, Petitioner’s supervisor committed a battery against Petitioner with unwanted touching.
On June 6, 2017, Petitioner Billy Ray Lee filed a Complaint with the Florida Commission on Human Relations (FCHR), alleging the following:
I am a Black Male who began working for the Respondent in January 2012, as an Environmental Services Technician. On May 16, 2017 an incident occurred that
included Melinda Bowers and me. During the incident, I was grabbed inappropriately by Ms. Bowers (white female) several times as I attempted to walk away from what had become a disagreement and hostile environment. I wanted to go back to her office for a meeting, only this time, with others to join me as witnesses. I attempted to set up a meeting with her Scheduler, Les [Wicker], but was unable to do so. Following the incident I filed a battery charge against Ms. Bowers with the UWF campus police. The next morning when I reported to work, I was met by Brenda Rivers [the Complainant’s supervisor]. She told me to come to her office; and I wasn’t allowed to get my keys. I asked Corine and Monica to go with me as witnesses. While in Ms. Rivers’s office, she gave me the letter from Steve Cunningham Vice President. The letter informed me that I was being placed on leave with pay pending investigation. I am prohibited from being on campus without written permission from Mr. Cunningham, including all areas related to the Facilities and Operations Department. This was a total shock to me because I was the victim.
Ms. Bowers is allowed to be at work on campus every day. The difference is that
Ms. Bowers, Mr. Cunningham, and Ms. Carlson are all white. I really don’t stand a chance to be treated fairly in this situation with
the present culture at UWF and especially in the services department. There exists a system of systemic racism at UWF directed against the employees in the service department. There is a lot of nepotism and favoritism by management directed towards privileged people in the department while others are treated unfairly. I realize my job is on the line. Every other time a black male has found himself in this position they have lost their job.
The FCHR investigated Mr. Lee’s claims, and, on April 30, 2018, issued a Determination stating that no reasonable cause existed to believe that an unlawful practice had occurred.
Thereafter, on May 29, 2018, Mr. Lee filed a Petition for Relief, alleging as follows:
I hereby firmly but respectfully take exceptions to the determination that the unwanted touching, grabbing and pulling of my persons (the persons of a subordinate employee) is acceptable behavior in the workplace; masking it under the cover and heading of a means to effective communications and problem solving. Further, spinning subject incident into a form of insubordination, threatening or abusive language and conduct unbecoming a University empl[o]yee on my part. I was attempting to leave a bad situation, when on three (3) separate attempts, my efforts to depart were physically blocked and obstructed by my superior. Subordinate employee or not, at some point, basic civil rights as a human being must prevail over such wanton aggressive, hostile, disorderly, s[t]ress producing, provoking and intimidating behavior on the part of management.
The FCHR transmitted the Petition for Relief to the Division on May 29, 2018.
Initially, the original Administrative Law Judge (ALJ) assigned set this matter for final hearing on July 18, 2018. After this matter was transferred to the undersigned, the parties sought numerous continuances of the final hearing. Ultimately, the undersigned conducted the final hearing on November 15, 2018.
Mr. Lee testified and called seven witnesses: Dr. Melinda Bowers; Anthony Fisher; Corine Ruffin; Frankie Carlson; Walter Davis; Randy Whiting; and Bobby Glover. Petitioner’s Exhibits 1 through 15 were received into evidence without objection.
Respondent University of West Florida (UWF) called Mr. Lee as its lone witness. Respondent’s Exhibits 1 through 3 were received into evidence without objection. At the end of the hearing, UWF requested that the undersigned receive Exhibit 8, an exhibit to Mr. Lee’s deposition, into evidence. Although UWF provided to the undersigned Mr. Lee’s deposition transcript as a proposed exhibit, Exhibit 8 was not attached to the deposition transcript. Accordingly, the undersigned allowed UWF seven days from the date of the final hearing to submit Exhibit 8. On November 21, 2018, UWF, through its Third Notice of Filing of Proposed Exhibits, timely submitted Exhibit 8. On November 26, 2018, the undersigned entered an Order Closing Hearing, which accepted Respondent’s Exhibit 8, and closed the record hearing.
The parties did not order a transcript of the final hearing.
in the Order Closing Hearing, the parties were provided 10 days from the date of the Order Closing Hearing to submit their proposed recommended orders. On December 6, 2018, UWF timely submitted its Proposed Recommended Order, which the undersigned has considered in the preparation of this Recommended Order.
Mr. Lee did not submit a proposed recommended order.
All references are to the 2018 codification of the Florida Statutes unless otherwise indicated.
UWF is a public university within the Florida State University System. See § 1000.21(6)(f), Fla. Stat.
Since January 2012, UWF has employed Mr. Lee, an
African-American male, as an environmental services technician in the Building Services Department. His employment duties consist of custodial-type work.
The Building Services Department is one of UWF’s departments that fall under the supervision of the Facilities Operations Department.
5
Associate Vice President, Administration and Facilities Operations
Dr. Melinda Bowers (White Female)
Vice President and CFO
Dr. Steve Cunningham (White Male)
At the time of Mr. Lee’s complaint, his supervisory chain of command, in descending order, was as follows:
Director, Materials and Grounds
Mr. Myles Sampson (African-American Male)
Coordinator, Building Services Ms. Frankie Carlson (White Female)
Environmental Services Supervisor Ms. Brenda Rivers (African-American Female)
Environmental Services Technician
Mr. Billy Ray Lee (African-American Male)
The American Federation of State, County, and Municipal Employees (AFSCME) union at UWF represents the environmental service technicians and other employees in the facilities area.
Mr. Lee became the president of the AFSCME union at UWF in the fall semester of 2014.
Mr. Lee’s Petition focuses on an incident that occurred on May 16, 2017. On that date, Dr. Melinda Bowers conducted, as she did every quarter, a meeting for the environmental services technicians and others in the Building Services Department. When Dr. Bowers mentioned an update concerning an issue with the AFSCME union during this meeting, Mr. Lee interrupted and argued with Dr. Bowers.1/ Dr. Bowers asked Mr. Lee to meet with her
after the meeting, or to set up a meeting to discuss his concerns at a different time.
Mr. Lee left the meeting room, but returned shortly after the meeting concluded to speak with Dr. Bowers about the AFSCME union issue, or to schedule a meeting to discuss this issue. Dr. Bowers testified that when he returned, Mr. Lee was irate, raised his voice, and was spitting as he spoke.
In an effort to calm Mr. Lee, Dr. Bowers briefly touched Mr. Lee on the arm with an “open hand.” Dr. Bowers wanted to understand what Mr. Lee was frustrated about and how she could help.
Based on the testimony and evidence presented, Dr. Bowers did not impede or otherwise prevent Mr. Lee from leaving the meeting room.
Dr. Bowers and others testified that she was a “touchy person.” The totality of this testimony demonstrated that
Dr. Bowers routinely touched other employees in a benign manner, regardless of race or sex.
That same day, Mr. Lee filed a report with the UWF Police Department, in which he contended that Dr. Bowers committed a battery against him.2/ Mr. Lee’s report did not indicate that he believed that the Dr. Bowers committed the alleged battery because of Mr. Lee’s race. Rather, it stated, “Dr. Bowers grabbed my arm to get me to continue to talk to her.”
UWF Police Sergeant Walter Davis immediately investigated Mr. Lee’s report. As part of his investigation, Sergeant Davis met with all identified witnesses and took statements from each witness. After conducting his investigation, Sergeant Davis found there was a lack of probable cause that a battery occurred. Sergeant Davis’s report also stated:
The alleged touching by Dr. Bowers was a form of a communicative gesture that was witnessed by Witnesses. Witnesses also stated Dr. Bowers touching of Lee consisted of an open hand, fingertip touch on his arm. When Dr. Bowers was told by Billy Lee not to touch him, Dr. Bowers ceased touching Lee.
On May 16, 2017--and after the incident that formed the basis of Mr. Lee’s police report--Dr. Bowers met with her superior, Dr. Steve Cunningham, and Jamie Sprague of Human Resources, to discuss her concerns with Mr. Lee’s behavior and demeanor that day. During this meeting, the parties discussed that there were other incidents concerning Mr. Lee specifically
related to his demeanor or temper that had occurred in the period of approximately one month previously. Those incidents included:
April 10-21, 2017: Subcontracted painters that UWF hired complained that Mr. Lee harassed them while working;
April 19, 2017: Mr. Lee confronted UWF employee Tiffany Nisenwonger off campus and, with an aggressive tone, told her that he believed there was unfairness at UWF; and
May 8-15, 2017: On May 8, 2017, Mr. Lee interrupted a
meeting between employees and their supervisors that he was not entitled to attend. On May 9, 2017, Mr. Lee interrupted a meeting between Frankie Carlson and Myles Sampson, and accused Ms. Carlson of illegally recording conversations with employees with her headphones. On May 9 and 15, 2017, Dr. Bowers received letters from UWF employees concerning Mr. Lee’s unprofessional behavior.
Based on these incidents, on May 17, 2017,
Dr. Cunningham decided to place Mr. Lee on administrative leave, with pay, pursuant to UWF Policy HR 18.02-06/16(5)(i), to allow time for an investigation. During this leave period, UWF prohibited Mr. Lee from entering UWF property without written permission from Dr. Cunningham.3/
Ms. Sprague conducted the investigation, which included a meeting with Mr. Lee to review each of these incidents.
On June 8, 2017, Dr. Cunningham informed Mr. Lee, in writing, that Ms. Sprague had completed the investigation, and that Mr. Lee was permitted to return to work on June 12, 2017.
Ms. Sprague’s investigation concluded that Mr. Lee violated several aspects of UWF Policy HR-22.00-2004/07 because of his behavior and demeanor.
On June 29, 2017, Dr. Cunningham and Dr. Bowers submitted a memorandum to Ms. Sprague, after reviewing
Ms. Sprague’s investigative report. Dr. Cunningham and
Dr. Bowers found that Mr. Lee repeatedly violated UWF Standards of Conduct in HR-22.00, including: use of poor judgment; insubordination; lying/misleading; threatening or abusive language; and conduct unbecoming a university employee.
Dr. Cunningham and Dr. Bowers recommended that UWF suspend Mr. Lee without pay for five working days, and require him to take and complete an anger management course.
On June 30, 2017, UWF informed Mr. Lee that it intended to suspend him for five working days without pay, and provided him the right to a predetermination conference. Thereafter, UWF suspended Mr. Lee for five working days without pay. UWF made this decision after Mr. Lee filed his June 7, 2017, charge of discrimination with FCHR.
Mr. Lee has not experienced any change in position or title since May 16, 2017. UWF presented evidence that it has awarded Mr. Lee with pay increases on several occasions.
Mr. Lee presented no persuasive evidence that UWF’s decision concerning, or actions affecting, him, directly or indirectly, were motivated in any way by race-based discriminatory animus. There is no competent, persuasive evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful race discrimination.
Mr. Lee presented no persuasive evidence that UWF’s actions subjected him to harassment based on his race, and that such actions were sufficiently severe or persuasive to alter the terms and conditions of his employment to create a hostile or abusive work environment. There is no competent, persuasive evidence in the record upon which the undersigned could make a finding of unlawful race harassment.
CONCLUSIONS OF LAW
The Division has jurisdiction over the subject matter and the parties to this proceeding in accordance with sections 120.569, 120.57(1), and 760.11(7), Florida Statutes. See also Fla. Admin. Code R. 60Y-4.016 (providing that upon a
petition for relief from an unlawful employment practice, a hearing shall be conducted by an administrative law judge).
The FCRA protects individuals from discrimination in the workplace. See §§ 760.10 and 760.11, Fla. Stat.
Section 760.10 states, in pertinent 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, pregnancy, national origin, age, handicap, or marital status.
Because the FCRA is patterned after federal anti- discrimination laws, such as Title VII of the Civil Rights Act of 1964 (Title VII), courts rely on federal Title VII cases when analyzing race discrimination claims brought pursuant to the
FCRA. See Ponce v. City of Naples, 2017 U.S. Dist. LEXIS 169635,
at *11 (M.D. Fla. Oct. 13, 2017); Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385, 1387 (11th Cir. 1998)(finding that the
complaint fails for the same reasons under Title VII and the FCRA); Valenzuela v. GlobeGround N. Am., LLC, 18 So. 3d 17, 21 (Fla. 3d DCA 2009).
The burden of proof in an administrative proceeding is on Mr. Lee as the complainant. See Dep’t of Banking & Fin., Div.
of Sec. & Inv. Prot. v. Osborne Stern & Co., 670 So. 2d 932, 935 (Fla. 1996)(“The general rule is that a party asserting the affirmative of an issue has the burden of presenting evidence as to that issue.”). To show a violation of the FCRA, Mr. Lee must establish, by a preponderance of the evidence, a prima facie case of discrimination. See St. Louis v. Fla. Int’l Univ., 60 So. 3d 455, 458-59 (Fla. 3d DCA 2011)(reversing jury verdict awarding damages on FCRA racial discrimination and retaliation claims where employee failed to show similarly situated employees outside his protected class were treated more favorably). A “prima facie” case means it is legally sufficient to establish a fact or that a violation happened unless disproved.
The “preponderance of the evidence” is the “greater weight” of the evidence, or evidence that “more likely than not” tends to prove the fact at issue. This means that if the undersigned found the parties presented equally competent substantial evidence, Mr. Lee would not have proved his claims by the “greater weight” of the evidence, and would not prevail in this proceeding. See Gross v. Lyons, 763 So. 2d 276, 289 n.1
(Fla. 2000).
Race Discrimination/Disparate Treatment
A Title VII plaintiff may establish a claim of unlawful race discrimination or disparate treatment through either direct evidence or circumstantial evidence. See Robertson v.
Interactive Coll. of Tech./Interactive Learning Sys., 2018 U.S. App. LEXIS 19474, at *11 (11th Cir. July 16, 2018). The Eleventh Circuit has defined direct evidence of discrimination as “evidence which, if believed, would prove the existence of discrimination without inference or presumption.” Holifeld v.
Reno, 115 F.3d 1555, 1561 (11th Cir. 1997).
Mr. Lee presented no direct evidence of discrimination based on race.
When reviewing race discrimination claims supported by circumstantial evidence, courts follow the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S. Ct.
1817, 37 L. Ed. 2d 668 (1973). This framework involves a three-
step process. Mr. Lee must first establish a prima facie case of discrimination. If Mr. Lee does so, a presumption of discrimination arises against UWF. Then, UWF has the burden to articulate a legitimate, non-discriminatory reason for its action. If UWF can articulate such a reason, Mr. Lee’s presumption of discrimination evaporates. Finally, Mr. Lee has the burden of proving that UWF’s legitimate reason was a pretext for discrimination. A “pretext” is a reason given in justification for conduct that is not the real reason. See McDonnell Douglas Corp., 411 U.S. at 802; Scholz v. RDV Sports,
Inc., 710 So. 2d 618, 624 (Fla. 5th DCA 1998).
In order to establish a prima facie case of discrimination or disparate treatment, Mr. Lee must show that:
(a) he belongs to a protected class; (b) he was subject to an adverse employment action; (c) his employer treated similarly situated employees outside of his protected class more favorably; and (d) he was qualified to do the job. See McDonnell Douglas
Corp., 411 U.S. at 802-04; Burke-Fowler v. Orange Cnty., 447 F.3d 1319, 1323 (11th Cir. 2006).
It is undisputed that Mr. Lee belongs to a protected class: African-American male. Additionally, UWF concedes that, at least until the incident on May 16, 2017, Mr. Lee was qualified to do his job.
Establishing whether an “adverse employment action” occurred is a crucial component in any discrimination claim under the FCRA, because without it, there is no relief. See Davis v.
Town of Lake Park, Fla., 245 F.3d 1232, 1235 (11th Cir. 2001) (holding that an adverse employment action is required to obtain relief under Title VII’s anti-discrimination clause). To show he suffered an “adverse employment action,” Mr. Lee must “show a serious and material change in the terms, conditions, or privileges of employment.” Id. at 1239.
The alleged “adverse employment action” that forms the basis of Mr. Lee’s petition is that UWF placed him on administrative leave, with pay, while it conducted an
investigation of Mr. Lee after the May 16, 2017 incident. After this administrative leave period, UWF returned Mr. Lee to his prior position. This period of administrative leave, in which Mr. Lee received full pay, lasted for less than a month.
Numerous courts have specifically held that a suspension with pay for a short period of time is not adverse employment action. See Moore v. Miami-Dade Cnty, 2005 U.S. Dist. LEXIS 27245, at *30-31
(S.D. Fla. Sept. 30, 2005)(holding that plaintiffs who were placed on administrative leave with pay for a little over one month did not suffer adverse employment action); Breaux v. City of Garland, 205 F.3d 150, 157-58 (5th Cir.)(holding that police
officer who was placed on administrative leave with pay for less
than three months pending an investigation and then returned to work did not suffer an adverse employment action), cert. denied, 531 U.S. 816, 121 S. Ct. 52, 148 L. Ed. 2d 21 (2000); Jackson v.
City of Columbus, 194 F.3d 737, 749 (6th Cir. 1999)(holding that police chief who was suspended with pay for one month but did not lose any pay or benefits did not suffer an adverse employment action). Mr. Lee has thus failed to establish that he suffered an “adverse employment action” with respect to UWF, placing him on leave.
With regard to UWF’s decision to suspend him, Mr. Lee failed to establish that UWF treated any similarly-situated employees outside of his protected class more favorably. If a petitioner fails to identify similarly-situated employees outside of his protected class who the employer treats more favorably, his “case must fail because the burden is on him to establish his prima facie case.” Jones v. Bessemer Carraway Med. Ctr., 137
F.3d 1306, 1311 (11th Cir.), modified on other grounds, 151 F.3d
1321 (11th Cir. 1998). Mr. Lee failed to identify a comparator outside of his protected class that UWF treated more favorably, and has thus failed to establish a prima facie case for unlawful racial discrimination or disparate treatment.
Mr. Lee’s failure to establish a prima facie case of unlawful racial discrimination or disparate treatment ends the
undersigned’s analysis under the McDonnell Douglas Corp.
framework.
Harassment
Mr. Lee also alleges that UWF subjected him to racial harassment in the workplace. Race harassment is commonly known as a hostile work environment. See Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002).
To establish a prima facie case of race harassment under Title VII, Mr. Lee must show that: (a) he belongs to a protected group; (b) he was subject to unwelcome harassment;
(c) the harassment was based on his membership in the protected group; (d) it was severe or pervasive enough to alter the terms and conditions of employment and create a hostile or abusive work environment; and (e) UWF is responsible for that environment under a theory of either vicarious or direct liability. See Jones v. UPS Ground Freight, 683 F.3d 1283, 1292 (11th Cir.
2012).
It is undisputed that Mr. Lee, an African-American male, belongs to a protected group.
Mr. Lee contends that at the May 16, 2017, meeting, Dr. Bowers “grabbed” him inappropriately, which he alleges constituted a battery and a hostile environment. Mr. Lee stated that he did not give Dr. Bowers permission to touch him, which he expressed to Dr. Bowers. Dr. Bowers testified that once she
heard Mr. Lee state not to touch him, she stopped touching him. This single incident forms the basis for Mr. Lee’s race harassment claim.
“Only conduct ‘based on’ a protected category, such as race, may be considered in a hostile work environment analysis.” Shockley v. Barbee, 2018 U.S. App. LEXIS 24574, at *4 (11th Cir. Aug. 27, 2018). Mr. Lee has the burden to establish that the harassing conduct was based on his race.
Mr. Lee alleged in his petition that as to the May 16, 2017, incident “at some point, basic civil rights as a human being must prevail over such wanton aggressive, hostile, disorderly, s[t]ress producing, provoking and intimidating behavior on the part of management.” Mr. Lee does not describe a racial motive in the unwanted touching by Dr. Bowers. Additionally, Dr. Bowers and other witnesses testified that she was a “touchy person,” who routinely touched other employees in a benign manner, regardless of race or sex. The undersigned concludes that Mr. Lee failed to establish that the May 16, 2017, incident, in which Dr. Bowers touched Mr. Lee, was based on
Mr. Lee’s race.
Mr. Lee has also failed to establish that the harassment was severe or pervasive enough to alter the terms and conditions of employment and create a hostile or abusive work environment. “The determination of whether race-based harassment
was so severe or pervasive to alter the conditions of employment includes both subjective and objective components.” Jones v. UPS Ground Freight, 683 F.3d at 1299. The burden is on Mr. Lee to
demonstrate that he perceived, and that a reasonable person would perceive, the working environment to be hostile or abusive. See
Id.
Subjectively, Mr. Lee believes that incident on May 16,
2017, was sufficiently severe or pervasive to alter the terms and conditions of his employment, creating a hostile or abusive work environment. Objectively, however, and despite Dr. Bowers touching Mr. Lee in a manner at that meeting that Mr. Lee did not want, the evidence presented demonstrates that this incident was not sufficiently severe or pervasive, did not alter the terms of Mr. Lee’s employment, and did not create a hostile or abusive work environment to constitute race harassment.
Mr. Lee’s failure to establish that the alleged harassment was based on his race, and that the alleged harassment was sufficiently severe or pervasive to alter the terms and conditions of his employment, creating a hostile or abusive work environment, ends the undersigned’s analysis of his race harassment claim. The undersigned concludes that Mr. Lee has failed to establish a prima facie case of unlawful race harassment.
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 Petitioner, Billy Ray Lee, did not prove that Respondent, University of West Florida, committed unlawful employment practices against him by engaging in discriminatory employment practices or subjecting Petition to harassment based on his race, and dismissing his Petition for Relief from unlawful employment practices.
DONE AND ENTERED this 18th day of December, 2018, in Tallahassee, Leon County, Florida.
ROBERT J. TELFER III
Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 2018.
1/ Dr. Bowers testified at the final hearing that she sought and received approval from UWF’s general counsel to provide the update on this issue with the AFSCME union.
3/ Mr. Lee filed his charge of discrimination with FCHR on June 7, 2017.
Tammy S. Barton, Agency Clerk
Cheyanne Costilla, General Counsel Florida Commission on Human Relations 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.
