vs.
Respondent.
Case No. 20-3316
Pursuant to notice, Administrative Law Judge W. David Watkins, of the Division of Administrative Hearings, conducted the final hearing in this case on December 9, 2020, via Zoom teleconference.
Whether, Respondent, the Florida Department of Transportation (“Respondent” or “Department”), engaged in unlawful employment practices as alleged by Petitioner, Dajin Liu (“Petitioner”), in violation of the Florida
Civil Rights Act (“FCRA”), as set forth in section 760.10, Florida Statutes (2020).1
Petitioner filed his Employment Charge of Discrimination (“Complaint”) with the Florida Commission on Human Relations (“FCHR”) on April 11, 2019. Petitioner alleged Respondent terminated his employment on the basis of his race, age, and disability, in violation of the FCRA; Title VII of the Civil Rights Act of 1964 (Title VII); the Age Discrimination in Employment Act (“ADEA”); and the Americans with Disabilities Act (ADA). In response to the Complaint, Respondent filed a Position Statement, with exhibits, on May 14, 2019. Thereafter, FCHR investigated Petitioner’s claims and on June 17, 2020, FCHR issued a determination finding “no reasonable cause” for Petitioner’s Complaint against Respondent.
Dissatisfied with FCHR’s determination, on July 15, 2020, Petitioner filed the Petition for Relief (“Petition”), which is the subject of this proceeding. The Petition was referred to the Division of Administrative Hearings (“DOAH”) on July 23, 2020, and assigned to the undersigned administrative law judge.
The final hearing was convened, via Zoom teleconference, on December 9, 2020, as scheduled. Petitioner appeared pro se, and testified on his own behalf. He did not offer any exhibits in evidence.
Respondent presented five witnesses: Gary Skofronick, P.E. (Skofronick), District 5 Structures Design Engineer; Mario Bizzio, P.E., District 5 District Design Engineer; George Borchik, P.E., District 5 Roadway Engineer Supervisor III; Marisol Bilbao, District 5 Human Resources Manager; and
1 Unless otherwise noted, all statutory references are to the 2020 version of the Florida Statutes.
Victoria Smith, MPA, MAAPP, CPM, Equal Opportunity Office Manager. Respondent’s Exhibits 1 through 10 were received in evidence without objection.
At the conclusion of the hearing, neither party was certain whether it would order a copy of the hearing transcript. However, on December 17, 2020, counsel for Respondent advised that Respondent would be ordering the transcript, and requested a January 14, 2021, deadline for filing proposed recommended orders. However, the official transcript was not filed at DOAH until January 19, 2021, and at the request of Respondent, the deadline for the parties to file their proposed recommended orders was extended to January 21, 2021.
Both parties timely filed Proposed Recommended Orders, which have been carefully considered in the preparation of this Recommended Order.
Based upon the credibility of the witnesses and evidence presented at the final hearing, and on the entire record of this proceeding, the following Findings of Fact are made.
The Department is a state agency in the State Personnel System, within the executive branch of the State of Florida. §§ 20.04, 20.23, 110.107(30), and 216.011(1)(qq), Fla. Stat., and Fla. Admin. Code R. 60L- 29.002(6).
Pursuant to section 20.23, Florida Statutes, the Department is charged with overseeing the construction and maintenance of transportation facilities, including roadways. Florida’s Turnpike Enterprises has additional authority
under section 338.2216, Florida Statutes, to plan, maintain, and manage the Florida Turnpike system.
Respondent adheres to rules established by the Department of Management Services (“DMS”), including Florida Administrative Code Rule 60L-33.003(2), which defines “Probationary Status” of employees in the Career Service System. The rule provides that while in probationary status the employee serves at the pleasure of the agency head and has no notice or appeal rights pursuant to section 110.227 and chapter 120, Florida Statutes.
Respondent has written policies and procedures governing the conduct of employees. New employees are required to sign and acknowledge receipt of these written policies and procedures at the time of employment. Among the forms provided to new employees are: ADA Request Accommodation 275-000- 001-c; Disciplinary Actions 250-012-011-j; EEO Affirmative Action Policy 001- 275-001-v; and Employment Discrimination Complaints 275-010-001-l.
Respondent’s written policies and procedures specifically prohibit any employee from engaging in employment discrimination, workplace harassment, or retaliation. Moreover, Respondent has established detailed written procedures for reporting and investigating all allegations of discrimination, harassment, or retaliation, consistent with Florida and Federal law.
Petitioner’s Employment with Respondent
On December 19, 2018, Respondent advertised Position Number 55007815, DMS Title Professional Engineer II, in the Office of Structures Design, which is part of the Construction section of Respondent’s District 5.
The advertisement included a statement regarding Respondent valuing and supporting the employment of “individuals with disabilities.” Further, the advertisement specifically read, “[q]ualified individuals with disabilities are encouraged to apply.” The advertisement provided notice that Respondent
complies with section 110.112, has a “Disabilities Affirmative Action Plan,”
and will provide a reasonable accommodation upon request.
With this advertisement, Respondent was seeking a qualified individual to review “moderately complex” structures plans and technical documents. The successful candidate would offer professional recommendations, resolve design issues, and work collaboratively with Review Committees working on projects in Respondent’s Construction section. The employee would perform structural analysis, design, and calculations, as well as, prepare plans for bridges and highway structures, and offer structural engineering support to both Respondent and consultant staff.
The Knowledge, Skills, and Abilities (KSAs) for the position included knowledge of Respondent and industry’s standards, specifications, and manuals, as well as software related to road and bridge construction and design. The candidate would need to be skilled in solving engineering problems, utilizing structural design/analysis software, reading and interpreting structures and roadway construction plans, preparing project scopes of services, and labor costs estimates. The candidate needed to have the ability to “effectively coordinate and communicate with others,” both verbally and in writing, adapt to the needs of various sections within whom they would collaborate, and to establish and maintain effective work relationships. The position required the selected candidate to be able to respond to emergencies, which mandated the candidate be reliable and dependable at times of urgency to restore transportation to normalcy. Finally, the new employee would need to be an effective and professional representative of Respondent, and make recommendations or decisions consistent with Respondent and industry standards.
Petitioner submitted a State of Florida application and resume. Petitioner represented his work history on his application as:
3/01/1992-03/31/1995 – Fong & Associates – left
for “other opportunity”
2/07/1997-08/31/2006 – Parsons – left for “other opportunity”
07/01/2012-12/31/2016 – TranSystems – left for
“other opportunity”
01/01/2017-11/30/2017 – Globetrotters – reason
for leaving “slow”
04/01/2018-09/302018 – David Liu (Petitioner seems to indicate he was self-employed) – reason for leaving was “slow”
Petitioner’s resume, which accompanied his application, indicated his
work history as:
04/18-09/18 – GAI Consultants
01/17-11/17 – Globetrotters (reason for leaving is slow)
07/12-12/16 – TranSystems (Reason for leaving is other opportunities)
12/97-08/06 – Parsons (Reason for leaving is other opportunities)
03/92-03/95 – Fong & Assoc.
As required by the position, Petitioner was licensed in the state of Florida as a Professional Engineer, effective November 11, 2018.
Petitioner was notified via letter dated January 25, 2019, he was selected for Position Number 55007815, DMS Title Professional Engineer II, in the Office of Structures Design, in Respondent’s District 5, effective Monday, January 28, 2019. Petitioner was advised his position was a Career Service position assigned to Broadband Code 17-2199-04, Broadband Title “Engineering.” Petitioner was also advised he would be evaluated at least once annually, and that he would be in probationary status for a period of one year. Further, Respondent’s letter explained that while on probationary
status, Petitioner was not considered permanent in the Career Service, would serve at the pleasure of the agency, and would be subject to various employment actions at the discretion of the agency, without right of appeal, in accordance with chapter 60L-33.
Petitioner signed Respondent’s Receipt Acknowledgment Form affirming notice and receipt of Respondent’s policies, rules, and procedures, which included the Equal Employment Opportunity/Affirmative Action Policy, Sexual Harassment, Equal Employment Opportunity and Affirmative Action Rule, and Employment Discrimination Complaints Procedure.
At hearing, Petitioner testified his disabilities are “diabetes” and “brain cancer,” the latter being diagnosed in January 2017. He admitted never disclosing either of these conditions to Respondent.
Petitioner’s Termination
After being in the position for just two months, Petitioner was terminated from his position with Respondent effective March 30, 2019. According to the testimony of Respondent’s witnesses, Petitioner was terminated due to his failure to successfully complete his probationary period. Specifically, Petitioner engaged in conduct which violated Respondent’s Standards of Conduct, and failed to meet performance standards during his brief employment with Respondent.
According to an internal e-mail from Marisol Bilbao, the District 5 Human Resources Manager, the following conduct led to Petitioner’s dismissal:
Does not seem to keep track of his assignments (ERC/emails);
Frequently away from his desk, wandering the halls;
Does not actively engage in his project assignments;
Badge swipe-in log shows inconsistent work schedule since joining Respondent;
Has fallen asleep during meetings with consultants in attendance;
He was disruptive during meetings, and would leave to take calls which did not appear to be work related;
High use of leave time for last-minute personal issues;
Does not engage with co-workers on learning Respondent processes (Timesheet, ITP);
Has difficulty keeping his work area clean;
Stated he did not have time to finish an assignment given to him a week prior and not due for two (2) days;
Asking female coworkers out on dates;
Asking coworkers to take care of his pets.
Gary Skofronick was Petitioner’s direct supervisor. Mr. Skofronick testified that, despite his efforts to assist Petitioner in succeeding in his new position, Petitioner did not seem “interested or engaged or wanting to learn about what we were actually doing in our unit.” Further, as Mr. Skofronck explained to Petitioner, the importance of being engaged is that it “prevents errors” in the construction of bridges and other road projects, which might otherwise lead to catastrophic events.
Mr. Skofronick testified to incidents when Petitioner would claim to have just received an email on an assignment shortly prior to the due date, when in fact Mr. Skofronick had sent the email in ample time for Petitioner to complete the assignment. In one instance, the assignment had been given weeks earlier. Mr. Skofronick felt Petitioner did not take “ownership” of his
projects. This created a safety risk and potentially impacted the longevity of the structure. According to Mr. Skofronick, Petitioner was far more focused on doing what he wanted to do, versus being accountable for producing a quality work product.
Mr. Skofronick testified he had grave concerns about Petitioner’s performance prior to a Value Engineering (“VE”) workshop where Petitioner fell asleep and was a distraction with leaving and making personal phone calls. He was told by several employees of Petitioner’s disruptive conduct and lack of participation in the workshop.
At hearing, Petitioner offered no evidence to refute the truth of any of the events or behavior described above.
Petitioner’s Charge of Discrimination
In his Petition, Petitioner alleges his dismissal from the Department was an act of discrimination based upon his age, race, and disability.
Petitioner appeared at the final hearing pro se, and so his testimony was given in narrative form, with some questions posed by the undersigned. When asked to explain “exactly what happened and why it is that you feel you have been discriminated against,” Petitioner testified as follows:
MR. LIU: Yeah. In my case, I think that before I was terminated, about, like, two weeks before I was terminated, I went to—they called a VE engineering study in a—in a conference room for a week.
So then they—well, I don’t know. It’s hard to tell whether I was sleeping during the meeting or not. It’s hard to tell because I had a disability. I was taking, like, a lot of medication at the same time, so making me very drowsy.
And then I—after the—that engineering study, while the roadway manager, who hosted the—the meeting then, he told my boss I was sleeping at the
–the study.
So I explained to him I had the disability and I was taking lots of medications. An the—so it’s hard to tell I was sleeping or not because I tried to be—I mean, I made a lot—I asked lots of questions during the study, I mean.
Then I didn’t see any pictures showing I’m sleeping. So I can tell—because I asked should I report my disability to the HR—HR. They said no. Then they terminated me.
I mean I was the department manager when I was working for another consulting firm. Before you terminate somebody you should be—have to conduct a meeting with the employee you are going to terminate. Tell them you need to improve your performance in couple weeks or in couple months.
But they—they didn’t conduct such a meet— meeting. They just terminated me right away. And also, I was in this business for 20 plus years. I never see a white person was terminated due to the disability.
* * *
ADMINISTRATIVE LAW JUDGE WATKINS:
Okay. All right. You also testified that you believe that a white employee would not have been terminated under the same circumstances that you were.
What is the basis for that belief?
MR. LIU: Well, I’m in this business—well, in US, for more than 20 years. I work for, like, a more than, like, ten different firms.
Well once I can tell in the—after I was diagnosed with brain cancer, I was terminated, like, eight times for the ten job I have for the last three, four years.
Petitioner admitted to sleeping in the meeting but testified it was out of his control; and he admitted to taking personal phone calls during the meeting. He would later attempt to refute this admission, asking to be shown proof, or making a general self-serving claim of others making personal calls. Petitioner refused to accept any responsibility for causing a disruption during the meeting, and attempted to minimize the extent of his involvement.
Petitioner could not identify any similarly situated comparator of any other race or age, or anyone with or without a disability, who was permitted to sleep in the meeting, or did in fact sleep in the meeting.
Petitioner testified he never asked for an accommodation relating to his handicap, nor did he provide documentation of any medical condition during his employment with Respondent. He then claimed he told the Respondent “verbally” about his disability, but acknowledged he did not provide information about his disability during the recruitment and selection process.
Petitioner stated that he was fired from a previous job in 2017 the day after he told his boss he had brain cancer. According to Petitioner, as a result of this experience, he learned not to tell prospective employers he had a disability.
Petitioner testified he believed his age was a factor in his termination based upon observations from his past employment, not while working for Respondent. Petitioner testified he has no evidence, other than his opinion, that age was a factor in his termination by Respondent.
Petitioner admitted he has no knowledge whether any of his supervisors had issues with his race, age, or disabilities, in general. He admitted his claims are merely his opinion or presumption; or are based upon his experiences which occurred prior to his employment with Respondent. He readily acknowledged that he had no direct evidence of discrimination, nor examples of any statement or conduct motivated by, or related to, his age, race, or disability.
In his post-hearing filing (denominated his “Facts Statement”), Petitioner focused on his assertion that he was a “very good employee,” and has an employment history to support that assertion. Attached to his Facts
Statement was Petitioner’s resume and list of his publications. There were no proposed findings of fact that in any way supported his allegations of discrimination.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to sections 120.569 and 120.57(1).
Petitioner filed a Complaint against Respondent alleging discrimination under the FCRA. Section 760.10(1)(a) provides that it is an unlawful employment practice for an employer to discharge … any individual on the basis of race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status.
Petitioner has not demonstrated any direct evidence of discrimination.2 Accordingly, discrimination claims under the FCRA are subject to the burden-shifting analysis set forth in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Head v. Cornerstone Residential Mgmt., Inc., 2010 WL 3781288 at *6 (S.D. Fla. 2010).
Under the three-part McDonnell Douglas burden-shifting analysis, a petitioner must first prove a prima facie case of discrimination by a preponderance of the evidence. Head, 2010 WL 3781288 at *6. If he can sufficiently establish a prima facie case, a rebuttable presumption of discrimination arises and the burden shifts to the respondent to articulate
2 Petitioner’s burden may be satisfied with direct evidence of discriminatory intent. See Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985)(“[T]he McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination” inasmuch as “[t]he shifting burdens of proof set for in McDonnell Douglas are designed to assure that the ‘plaintiff [has] his day in court despite the unavailability of direct evidence.’”).
some legitimate, nondiscriminatory reason for its action. Id. Finally, if the respondent articulates a legitimate, nondiscriminatory reason for its action, to avoid summary judgement (in this context, a recommended order), the petitioner must then create a genuine issue of material fact as to whether the advanced reasons are pretextual. Id.
Petitioner has failed to establish a prima facie case of employment discrimination under the FCRA. To establish a prima facie case of employment discrimination under the FCRA, Petitioner must establish four elements: 1) he is member of a protected group; 2) he was qualified for the position held or sought; 3) he suffered an adverse employment action, such as termination; and 4) his discharge occurred in circumstances that give rise to an inference of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
In any claim of age discrimination, the burden is upon the claimant to first make a prima facie case of discriminatory treatment, by proving: 1) the plaintiff is a member of a protected class; 2) the plaintiff is otherwise qualified for the positions sought; 3) the plaintiff was dismissed from the position; and 4) the position was filled by a worker who was substantially younger than the plaintiff. City of Hollywood v. Hogan, 986 So. 2d 634, 641 (Fla. 4th DCA 2008).
The burden is on Petitioner to prove his allegations of age discrimination by showing that similarly-situated individuals of a “different” age were treated more favorably than he. Petitioner’s testimony at the final hearing offered conjecture, supposition, and personal opinion, not substantive, factual evidence. Petitioner also failed to identify any individual of a different age, who was similarly situated, including having engaged in similar conduct, who was treated more favorably than he, as is required to establish a prima facie case, and meet his burden to prove age discrimination.
Petitioner has also failed to provide any evidence to support his claim of racial discrimination. Petitioner failed to identify any individual of a
different race, who was similarly situated, including having engaged in similar conduct, who was treated more favorably than he, as is required to establish a prima facie case, and meet his burden to prove racial discrimination.
To establish a prima facie case of disability discrimination, Petitioner must show that: “(1) he has a disability; (2) he is otherwise qualified for his position; and (3) he was subjected to discrimination because of his disability.” A qualified employee is one who can perform the essential functions of the position with or without reasonable accommodation. Booth v. Houston, 58 F.Supp.3d 1277, 1294 (M.D. Al. 2014).
A reasonable accommodation may be made to allow an employee to perform the essential functions of the job. However, an employer is not required to modify its business standards to meet the needs of the employee. For example, in this instance, Respondent is not obligated to allow Petitioner to sleep during meetings, or not meet deadlines, simply because Petitioner believes his behavior is related to his alleged disability.
Again, Petitioner did not proffer any evidence that a similarly situated individual was treated more favorably than he. Specifically, he has not offered evidence of any similarly situated individual engaged in the same conduct, but their actions went without consequence, or they were treated more favorably.
Petitioner failed to prove a prima facie case of discrimination on any basis. Rather, with respect to all three alleged bases of discrimination, the evidence established that Petitioner’s conduct violated Respondent’s Disciplinary Standards of Conduct and the disciplinary action was taken irrespective of his being a member of a protected class (age or race) or having an alleged disability. There was simply no evidence presented that Respondent would respond to any other employees, regardless of age, race, or disability, differently than it did to Petitioner. Respondent has policies and procedures in place which prohibit harassment and discrimination. The
assertion that Petitioner’s dismissal was discrimination based upon his age, race, or alleged disability is baseless and unsupported by the evidence.
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 Petitioner’s Petition for Relief.
DONE AND ENTERED this 8th day of February, 2021, in Tallahassee, Leon County, Florida.
W. DAVID WATKINS Administrative Law Judge 1230 Apalachee Parkway
Division of Administrative Hearings this 8th day of February, 2021.
Tammy S. Barton, Agency Clerk
Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110
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.
