vs.
Respondent.
Case No. 20-3320
This case came before Administrative Law Judge Darren A. Schwartz of the Division of Administrative Hearings ("DOAH") for final hearing by Zoom conference on September 22, 2020.
Whether Respondent committed the unlawful employment practice alleged in the Petition for Relief filed with the Florida Commission on Human Relations ("FCHR"); and, if so, what relief should Petitioner be granted.
On October 2, 2019, Petitioner, Maria Alvarez ("Petitioner"), filed a Charge of Discrimination ("Complaint") with FCHR alleging that Respondent, Flamingo Oil A Reladyne Company ("Respondent"), discriminated against her because of her race, national origin, and age. Following its investigation, FCHR notified the parties that "no reasonable cause exists to believe that an unlawful practice occurred."
Petitioner elected to pursue administrative remedies, timely filing a Petition for Relief with FCHR on July 21, 2020. On July 21, 2020, FCHR referred the matter to DOAH to assign an administrative law judge to conduct the final hearing. The final hearing was held on September 22, 2020, with all parties present. At the hearing, Petitioner testified on her own behalf. Petitioner’s Exhibits 1 through 5 were received into evidence.
Respondent presented the testimony of Gabrielle Moore and Adelkys Romero. Respondent’s Exhibits 1 through 21 were received into evidence.
A court reporter was present at the hearing, but no transcript was filed at DOAH. The parties timely filed proposed recommended orders, which were given consideration in the preparation of this Recommended Order. Unless otherwise indicated, all statutory references are to the 2019 version of the Florida Statutes.
Respondent distributes engine oils to customers in various industries.
Petitioner, a white female, was employed by Respondent as a customer service representative in Miami, Florida, from approximately December 2013 until her termination on August 7, 2019. According to her Complaint, Petitioner’s national origin is Cuban and she was 58 years old at the time of
her termination. At all times material hereto, Petitioner was supervised by Adelkys Romero, a customer service manager employed by Respondent.
As a customer service representative, Petitioner’s job duties included entering orders by phone and email, bulk and package invoicing, and answering the telephone.
On December 11, 2017, Petitioner received a final warning letter from Ms. Romero because of poor job performance. This letter was given to Petitioner because, among other things, she made numerous errors in her entries and missed orders. Petitioner was directed to improve her performance and advised that failure to do so will result in discharge.
In 2018, Ms. Romero had ongoing conversations with Petitioner about the accuracy of her work and the quality of her invoices.
In 2019, Petitioner’s poor job performance continued. In 2019, Petitioner received numerous emails documenting approximately 20 errors in processing orders.
On July 25, 2019, Petitioner received a second final warning letter for unexcused absences. At that time, Petitioner was specifically advised "that future incidents or violations of company policy, whether or not similar in nature, may result in disciplinary action, up to and including termination."
On July 31, 2019, Petitioner "skipped emails" in orders, which affected the accuracy of the delivery of the correct product to customers.
On August 5, 2019, Petitioner made another error with regard to order entry.
At the hearing, Petitioner acknowledged she made numerous significant errors during her employment with Respondent.
Petitioner’s errors resulted in Respondent incurring additional and unnecessary financial costs.
On numerous occasions throughout her employment, Petitioner was verbally counseled regarding her poor job performance and advised by
Ms. Romero on how to correct her employment deficiencies. However, Petitioner’s job performance did not improve.
On August 7, 2019, Petitioner was terminated for poor job performance due to her continued order entry errors, incorrect billing, and inability to complete work or correct errors in a reasonable amount of time. Ms. Romero made the decision to terminate Petitioner. Gabrielle Moore, Respondent’s human resources business partner, also participated in the decision.
Respondent has policies and procedures in place regarding complaints of discrimination and harassment. At no time prior to her termination did Petitioner complain to Respondent that she was discriminated against or harassed because of her race, national origin, or age. Nor did Ms. Romero ever make any derogatory comments in the workplace based on race, national origin, or age.
The persuasive and credible evidence adduced at hearing demonstrates that Petitioner was terminated for legitimate, nondiscriminatory reasons having nothing to do with race, national origin, or age. Petitioner’s allegations of discrimination are based on speculation and conjecture, and Petitioner failed to prove that Respondent’s reasons for her firing are a mere pretext for intentional race, national origin, or age discrimination.
CONCLUSIONS OF LAW
DOAH 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 ("FCRA"), chapter 760, Florida Statutes, prohibits discrimination in the workplace. Among other things, the FCRA makes it unlawful 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.
§ 760.10(1)(a), Fla. Stat.
The FCRA, as amended, is patterned after Title VII of the Civil Rights Act of 1964 and 1991 ("Title VII"). Thus, federal decisional authority interpreting Title VII is applicable to cases arising under the FCRA. Johnson
v. Great Expressions Dental Ctrs. of Fla., P.A., 132 So. 3d 1174, 1176 (Fla. 3d DCA 2014).
Complainants alleging unlawful race, national origin, or age discrimination may prove their case using direct evidence of discriminatory intent. Direct evidence is evidence that, if believed, would prove the existence of discriminatory intent without resort to inference or presumption. Denney v. City of Albany, 247 F. 3d 1172, 1182 (11th Cir. 2001). "[O]nly the most blatant remarks, whose intent could mean nothing other than to discriminate on the basis of some impermissible factor constitute direct evidence of discrimination." Wilson v. B/E Aerospace, Inc., 376 F. 3d 1079, 1086 (11th Cir. 2004); See e.g., E.E.O.C. v. Alton Packaging Corp., 901 F. 2d 920, 923 (11th Cir. 1990)(holding that the general manager’s statement that "if it was his company he wouldn’t hire any black people," constitutes direct evidence). In the present case, Petitioner failed to present direct evidence of discrimination.
When no direct evidence of race, national origin, or age discrimination exists, the employee may attempt to establish a case circumstantially through the burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). The McDonnell Douglas framework provides an allocation of the burden of production and an order for the presentation of proof in disparate treatment discrimination cases. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000).
First, under the McDonnell Douglas framework, Petitioner must establish a prima facie case of discrimination. Id. To establish a prima facie case of race or national origin discrimination through circumstantial evidence, Petitioner must show that: (1) she belongs to a protected class;
(2) she was qualified to do the job; (3) she was subjected to an adverse employment action; and (4) her employer treated similarly situated employees outside her class more favorably. Johnson, 132 So. 3d at 1176; Washington v. UPS, Inc., 567 Fed. Appx. 749, 751 (11th Cir. 2014); Burke- Fowler v. Orange Cty., 447 F.3d 1319, 1323 (11th Cir. 2006). A variation of the prima facie case has been recognized for age discrimination cases. In age discrimination cases, the fourth prong may be satisfied by a showing that Petitioner was replaced by a younger individual, or that the employer treated similarly situated employees outside her class more favorably. Washington, 567 Fed. Appx. at 751.
As to the fourth prong of the prima facie case, an adequate comparator must be "similarly situated" in all material respects. Johnson, 132 So. 3d at 1176; Valenzuela v. GlobeGround N. Am., LLC, 18 So. 3d 17, 23 (Fla. 3d DCA 2009); McQueen v. Ala. Dep’t of Transp., 2019 WL 1773270, at *3 (11th Cir. 2019); Washington, 567 Fed Appx. at 752. To determine whether employees are similarly situated, courts evaluate whether the employees are involved in, or accused of, the same conduct or similar conduct and are disciplined in different ways. Valenzuela, 18 So. 3d at 22-3; Johnson, 132 So. 3d at 1176; Burke-Fowler, 447 F.3d at 1323. In making this determination, courts require that "the quantity and quality of the comparator’s misconduct be nearly identical to prevent courts from second-guessing employers’ reasonable decisions and confusing apples with oranges." Valenzuela, 18 So. 3d at 23; Burke-Fowler, 447 F. 3d at 1323 (quoting Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999)).
When the charging party, i.e., Petitioner, is able to establish a prima facie case, the burden to go forward with the evidence shifts to the employer
to articulate a legitimate, nondiscriminatory explanation for the employment action. Importantly, the employer has the burden of production, not persuasion, and need only present the fact-finder with evidence that the decision was nondiscriminatory. This intermediate burden is "exceedingly light." Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 769-70 (11th Cir.
2005).
Should the employer meet this burden, the presumption of discrimination created by the employee’s prima facie case drops from the case. At this juncture, the employee must then establish that the proffered reasons were not the true reason for the employment decision, but rather a mere pretext for intentional race, national origin, and age discrimination. City of Miami v. Hervis, 65 So. 3d 1110, 1117 (Fla. 3d DCA 2011); Valenzuela, 18 So. 3d at 22.
Courts do not "sit as a super-personnel department that reexamines an entity’s business decisions." City of Miami, 65 So. 3d at 1121. Whether an employment decision was prudent or fair is irrelevant because an employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for an unlawful discriminatory reason. Sunbeam Television Corp. v. Mitzel, 83
So. 3d 865, 872 (Fla. 3d DCA 2012). Petitioner "is not allowed to recast an employer’s proffered nondiscriminatory reasons or substitute his business judgment for that of the employer." Chapman v. AI Transport, et. al., 229 F.3d 1012, 1030 (11th Cir. 2000). Provided that the proffered reasons are ones that might motivate a reasonable employer, an employee must meet those reasons head on and rebut them, and the employee cannot succeed by simply quarrelling with the wisdom of those reasons. Id. Importantly, the ultimate burden of persuading the trier of fact that an employer intentionally discriminated against the employee based on race and national origin remains at all times with the employee. Texas Dep’t of Cmty. Aff. v. Burdine,
450 U.S. 248, 253 (1981); Bush v. Barnett Bank of Pinellas Cty., 916 F. Supp.
1244, 1252 (M.D. Fla. 1996).1
Turning to the instant case, Petitioner failed to establish the fourth prong of the prima facie case--that she was replaced by a younger individual, or that the employer treated similarly situated employees outside her protected class more favorably.
Having failed to establish a prima facie case, the inquiry need not go further and the petition should be dismissed. However, even if Petitioner had met her initial burden of establishing a prima facie case, and the burden had shifted to Respondent to articulate a legitimate nondiscriminatory reason for the termination, Respondent successfully met its burden at the hearing, which Petitioner failed to prove was a mere pretext for intentional race, national origin, or age discrimination. The persuasive and credible evidence adduced at hearing demonstrates that Petitioner was terminated because of her poor job performance. Accordingly, the Petition for Relief should be dismissed.
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 dismissing the Petition for Relief.
1 To ultimately prevail in an age discrimination case, Petitioner must prove by a preponderance of the evidence (which may be direct or circumstantial) that age was the "but- for" cause of the challenged employer decision. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177-78 (2009); Greene v. Sch. Bd. of Broward Cty., 2014 U.S. Dist. LEXIS 111664, at *13-14 (S.D. Fla. 2014).
DONE AND ENTERED this 16th day of October, 2020, in Tallahassee, Leon County, Florida.
DARREN A. SCHWARTZ
Division of Administrative Hearings this 16th day of October, 2020.
Tammy S. Barton, Agency Clerk
Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, 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.
