STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ERROL HAYDEN WHITE,
Petitioner,
vs.
SOLARTECH UNIVERSAL, LLC,
Respondent.
/
Case No. 20-4107
RECOMMENDED ORDER
Pursuant to notice, on October 15, 2020, Administrative Law Judge Robert L. Kilbride of the Division of Administrative Hearings ("DOAH") conducted an evidentiary hearing by Zoom conference from Tallahassee, Florida.
APPEARANCES
For Petitioner: Errol Hayden White, pro se
194 Norwich, Apartment I
West Palm Beach, Florida 33417
For Respondent: Jodilynn Brown, Human Resource Manager SolarTech Universal, LLC
1800 President Barack Obama Highway Riviera Beach, Florida 33404
STATEMENT OF THE ISSUE
The issue to be determined is whether Petitioner proved that Respondent, SolarTech Universal, LLC ("SolarTech"), discriminated against him on the basis of Petitioner's race, national origin, age, or disability in violation of section 760.10, Florida Statutes (2020).
PRELIMINARY STATEMENT
On March 22, 2019, Petitioner voluntarily resigned from his employment with Respondent.
On February 11, 2020, Petitioner filed an Employment Complaint of Discrimination with the Florida Commission on Human Relations ("FCHR") claiming discrimination based upon his race, national origin, age, and disability. On February 27, 2020, his complaint was amended to add a claim of retaliation.
On August 25, 2020, FCHR issued a determination of No Reasonable Cause, concluding there was insufficient proof to establish the charge.
Taking exception to this determination, Petitioner filed a Petition for Relief. The case was referred to DOAH for a formal hearing and the undersigned was assigned to the case. Neither party was represented by counsel and each handled their own representation at the hearing, either pro se (Petitioner), or with its in-house staff (Respondent).
Prior to the final hearing, the undersigned convened a telephonic hearing to discuss the hearing procedures with both parties. Among other things, the availability and process of discovery was explained, as well as the fact that Petitioner had the burden of proof at the hearing. Both parties were made aware of their respective evidentiary responsibilities for the final hearing.1
The hearing commenced on October 15, 2020, using Zoom conferencing technology with all parties present.
1 This was explained again to Petitioner at the beginning of the hearing on October 15, 2020.
At the hearing, Petitioner testified. He offered no exhibits, other than reminding the undersigned that he had filed certain documents with FCHR. Respondent called witnesses, Mr. Paul Roraff ("Roraff") and Mr. Jon James who testified. Respondent admitted exhibits 5-1, 5-2, and 5-3; 6-1; 7-1, 7-2,
and 7-3; and 8-1, 8-2, and 8-3 into evidence.2
At the hearing, the parties were directed to submit proposed recommended orders. Petitioner did not file a proposed recommended order, but submitted a letter essentially restating his claim. Respondent filed a proposed recommended order, which was subsequently amended upon authorization by the undersigned. These documents were reviewed and considered by the undersigned in the preparation of this Recommended Order.
References herein to statutes or rules are those that were in effect at the time of the conduct, action, or omissions.
FINDINGS OF FACT
Based on the evidence presented and the record as a whole, the undersigned makes the following findings of relevant and material fact:
Petitioner was employed by Respondent. He worked on the production line, working at different stations, assembling various components of solar panel systems or related equipment.
2 At the beginning of the hearing, Respondent represented that it would order the hearing transcript. Respondent later filed a request to dispense with ordering the transcript, due to the fact that it could not afford the transcript. A telephonic hearing was held to discuss the request. Respondent again asserted it could not afford the transcript. When asked if he wanted to order the transcript, Petitioner disclosed, essentially, that he was also unable to afford the hearing transcript. The undersigned was careful to explain to both parties that if no transcript was ordered, there would be no official hearing transcript and the undersigned would rely upon his notes, his recollection of the evidence, and the hearing exhibits. The
On March 22, 2019, Petitioner voluntarily resigned from his employment with Respondent. His exit interview was performed that same day and the exit forms he signed contained no mention of discrimination of any kind.
Significantly, Petitioner never filed any verbal or written complaints of discrimination during his employment at SolarTech.
Apparently, Petitioner had some sort of physical disability, but offered no detailed or helpful testimony to explain the nature, scope, or extent of his disability. Based on the limited evidence and the reasonable inferences from the evidence, Petitioner's disability involved some sort of unexplained vision impairment or limitation. There was no medical evidence, documentation, or certifications offered to verify or describe his disability or condition.
The narrative testimony presented by Petitioner regarding his employment problems or issues was brief, indistinct, and vague.
Petitioner's voluntary resignation--as best as could be determined by the undersigned--had something to do with a report that was filed, which involved Petitioner's alleged sexual misconduct against a female employee by the name of Danita Jackson ("Jackson"). Petitioner claimed that the report was false.
Petitioner said he quit because he was "going through all those issues."
Petitioner added that another reason he quit was because the company intended to, or did, use him, and two other black employees, as "modern slaves" for only low pay.
Petitioner offered no documents during his presentation. When asked by the undersigned if he had any documents to offer during his case-in-chief, he responded that the documents "he needed" were "not here."
Essentially, this was the sum and substance of Petitioner's brief evidentiary presentation.
undersigned reluctantly agreed not to require Respondent to order the transcript, and entered an Order to that effect. As a result, there is no existing transcript of the hearing.
The undersigned finds that Petitioner failed to establish a prima facie case of discrimination or retaliation of any sort at the hearing.
Despite the brief and unpersuasive presentation by Petitioner, Respondent called two witnesses and offered a variety of documents to explain its position in response to the disjointed and imprecise "claims" presented by Petitioner at the hearing.
Evidence Offered by Respondent
During Petitioner's tenure at SolarTech, Petitioner did not report or document any claims of discrimination for the management team or Human Resource Department ("Human Resources"). During his exit interview, Petitioner likewise made no references to any claims of discrimination or retaliation.
In response to Petitioner's claim of retaliation, in that Respondent shared or issued an allegedly false sexual harassment claim, Respondent offered Exhibits 7-1, 7-2, 7-3, and 8-1, and the testimony of Roraff.
Exhibit 7-1 is an Employee Incident Report completed by Horace Ducram (Shift Supervisor), which specifies that the complaint made against Petitioner was for "harassment" (second sentence) and not "sexual harassment" as claimed by Petitioner.
Exhibit 7-2 is an Employee Incident Report completed by Jodilynn Brown (HR Manager) that reviews the incident, as well as the action that was taken to resolve the harassment claim that was made by Jackson.
As documented in these notes, Petitioner was advised not to have any direct contact or conversation with Jackson. Petitioner said "he understood and that this will never happen again."
On September 11, 2018, both parties were advised to keep their distance from one another, that this was best for both parties involved. SolarTech's Human Resources followed up on September 28, 2018, and determined that there were no further issues reported by either party.
Exhibit 7-3 is a letter written on September 17, 2018, by Petitioner, in response to the harassment complaint. In it, Petitioner acknowledged that the claim by Jackson was general harassment misconduct, and not sexual harassment.
Petitioner provided no persuasive direct or circumstantial evidence that supported his claim that Respondent discriminated or retaliated against him by sharing any reports or claims of sexual harassment.
Respondent determined that no false or slanderous reports about Petitioner were shared with the Florida Division of the Blind Services or any other potential employer. It was SolarTech's policy only to confirm employment, dates of hire, and position or title. This evidence was credited by the undersigned.
Petitioner also unpersuasively claimed that one of the forms of discrimination was SolarTech's requiring him to operate two workstations during his shift as "slave labor."
To address this "claim," Respondent submitted Exhibits 5-1, 5-2, and 5-3, and the testimony of Roraff.
Exhibit 5-1 outlines the staffing requirements by assignment or workstation. This document was supplied by Meyer Burger, the company that designed and manufactured the solar panel manufacturing equipment used by SolarTech. Thirteen employees, per shift, were considered full capacity to operate the production line.
Exhibit 5-2 shows the staffing census by month, as supplied by Paychex, Respondent's payroll processing company. Production on the line required 13 employees to work at full production. The staffing during each of the months in question was:
November 2018: 22 employees (+8 employees over staffed)[.]
December 2018: 22 employees (+8 employees over staffed)[.]
January 2019: 19 employees (+6 employees over staffed)[.]
February 2019: 18 employees (+5 employees over staffed)[.]
March 2019: 14 employees (+1 employee over staffed)[.]
Exhibit 5-2 reflects that SolarTech had to implement a reduction in force ("RIF"). It was required to reduce its staff by three employees in February 2019. This is one month before Petitioner resigned and not three days as Petitioner claimed. The RIF was legitimate and necessary.
As outlined in Exhibit 5-2, SolarTech's staffing was overstaffed by one employee at the time Petitioner resigned. This fact belies Petitioner's claim that Respondent was understaffed, or that he was being used or forced into "slave labor."
Exhibit 5-3 illustrates the number of units produced per month versus production capacity (4200 modules per month). This exhibit also shows that monthly production, relative to production capacity, presented no strain on labor, nor would it have resulted in Petitioner being overworked.
In fact, for the months Petitioner complained he was overworked, production was:
1. November 2018: 100 out of 4200 (2.3% of capacity)[.]
2. December 2018: 16 out of 4200 (0.3% of capacity)[.]
3. January 2019: 126 out of 4200 (3% of capacity)[.]
4. February 2019: 722 out of 4200 (17% of capacity)[.]
5. March 2019: 1539 out of 4200 (37% of capacity)[.]
At no time during the five months prior to Petitioner's resignation was the facility at SolarTech understaffed, nor was he overworked. The production team was only required to work at a limited pace, that was, at peak, only 37% of the speed or output designed by the machine manufacturer.
Staffing levels at the work stations were always above that required by the machine manufacturer.
During the months that Petitioner complained about, the machines ran at a limited production capacity or speed that was, at its highest pace, only 37% of capacity.
Conversely, approximately 63% of the employee's time was not working on production. So, Petitioner and other employees had more time to take additional breaks. Petitioner had a chair at his station to sit in during these down times.
Even though production employees were required to be trained at multiple stations, as referenced by their job description, they were only required to work one station at a time.
SolarTech employees worked on a linear production line. On a linear production line, the employees can not physically work more than one station at the same time. If there was a requirement to operate two stations during a shift, the workload did not increase. The employee merely moved back and forth a few steps between two consecutive work stations in the process.
This explanation offered by SolarTech constituted persuasive and credible evidence to establish that any actions by it involving Petitioner during the five months leading up to his voluntary resignation were for legitimate business reasons, and not discriminatory.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties pursuant to sections 120.569, 120.57(1), and 760.11, Florida Statutes (2020).
Under Title VII, Civil Rights Act 1964 ("Title VII"), 42 U.S.C. § 2000e, it is unlawful for an employer "to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's
race " 42 U.S.C. § 2000e-2(a)(1).
The Florida Civil Rights Act ("FCRA"), section 760.10, likewise prohibits discrimination in the workplace. Among other things, the FCRA makes it unlawful for an employer "[t]o discharge or otherwise to
discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's
race " § 760.10(1)(a), Fla. Stat.
Claims under the FCRA are subject to the same substantive law and legal standards as claims under Title VII. 42 U.S.C. § 2000e; Johnson v. Great Expressions Dental Ctrs. of Fla., P.A., 132 So. 3d 1174, 1176 (Fla. 3d DCA 2014); and Wilbur v. Corr. Servs. Corp., 393 F.3d 1192, 1195 n.1 (11th Cir. 2004). See also, Byrd v. BT Foods, Inc., 26 So. 3d 600, 605 (Fla. 4th DCA 2009).
Methods of Proof
Racial and other discrimination prohibited by Title VII and the FCRA can be proven in one of two ways: either through (1) direct evidence that an employer intended to discriminate against an individual because of his or her race or (2) through circumstantial evidence. Hill v. Metro. Atlanta Rapid Transit Auth., 841 F.2d 1533, 1539 (11th Cir. 1988), modified by, 848 F.2d 1522 (11th Cir. 1988).
"[O]nly the most blatant remarks, whose intent could be nothing other than to discriminate or retaliate, constitute direct evidence." See Carter v. City of Miami, 870 F.2d 578, 582 (11th Cir. 1989).
In this case, Petitioner submitted no persuasive or credible direct
evidence of racial or any other type of discrimination.
Petitioner presented no persuasive direct testimony or documentary evidence to support his claim that any action or conduct by SolarTech was improperly motivated by race or for other discriminatory reasons.
For instance, there were no emails, texts, or credible statements sent or made by SolarTech or other management level supervisors to prove that SolarTech intended to discriminate against Petitioner because of his race or the other protected categories alleged by him.
As a result, his race discrimination and other claims must be analyzed under the second method--circumstantial evidence--to determine if he made out a prima facie case. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802- 03 (1973); See also, Texas Dept. of Cmty. Aff. v. Burdine, 450 U.S. 248 (1981); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133 (2000).
To prove a case of discrimination by circumstantial evidence, Petitioner must first establish a prima facie or legally sufficient case of discrimination. Sims v. MVM, Inc., 704 F.3d 1327, 1333 (11th Cir. 2013).
If Petitioner establishes a prima facie case, the burden then shifts to Respondent to produce a legitimate nondiscriminatory reason for the adverse employment action or termination. Burdine, 450 U.S. at 248, 254.
If a prima facie case has been established and the employer offers a legitimate nondiscriminatory reason for the termination, the burden then shifts back to Petitioner to show that the nondiscriminatory reason given for his firing was a pretext or made up. Petitioner may accomplish this "by showing that the employer's explanation is unworthy of credence." Reeves, 530 U.S. at 143 (citing Burdine, 450 U.S. at 256).
The Elements of Race Discrimination
The elements necessary to prove a case of race discrimination are simple and straightforward. Petitioner had the burden to establish, by a preponderance of the evidence, the following elements: (1) that he is a member of a protected class; (2) that he was subjected to an adverse employment action; (3) that he was qualified for the job at issue; and (4) that he was treated less favorably than a similarly situated individual outside his protected class. Maynard v. Bd. of Regents, 342 F.3d 1281, 1289 (11th Cir. 2003). See also Coles v. Post Master Gen. U.S. Postal Servs., 711 Fed Appx. 890 (11th Cir. 2017).
The undersigned concludes that Petitioner's race discrimination claim fails as a matter of law because he did not adequately establish the second and fourth element of a prima facie case.
As to the second and fourth element, Petitioner fell far short of the proof required. There was no proof that Petitioner was treated less favorably than a similarly situated individual outside his protected class.
A similarly situated employee or "comparator must be similarly situated in all relevant aspects." Trask v. Sec'y, Dep't of Vets' Aff.,
822 F.3d 1179, (11th Cir. 2016). "The comparator must be 'nearly identical' to [Petitioner] to prevent courts from second guessing a reasonable decision by the employer." Id. at 1192.
In short, Petitioner did not identify any non-Black employee comparators (White or Hispanic) who were treated differently than he.
Petitioner's failure to identify a single comparator who did the same and was treated more favorably is fatal to his claim. See, e.g., Peters v. HealthSouth of Dothan, Inc., 542 Fed. Appx. 782, 785 (11th Cir. 2013) (affirming district court's finding that plaintiff "had not established a prima facie case for disparate treatment based on her termination because she failed to identify a valid comparator outside her race that was treated more favorably").
Equally significant, Petitioner also failed to prove the second element. He was not fired, nor was there any adverse employment action against him. He voluntarily resigned from SolarTech.
Employee resignations are presumed to be voluntary. Hargray v. City of Hallandale, 57 F.3d 1560, 1569 (11th Cir. 1995). See also Angarita v.
St. Louis County, 981 F.2d 1537, 1544 (8th Cir. 1992); Alvarado v. Picur, 859
F.2d 448, 453 (7th Cir. 1988); and Christie v. United States, 518 F.2d 584,
587, 207 Ct. Cl. 333 (1975).
The presumption of a voluntary resignation prevails unless the employee "comes forward with sufficient evidence to establish that the resignation was involuntarily extracted." Christie, 518 F.2d at 587. There was no such proof in this case.
Additionally, there was no proof that he was "constructively discharged" by the existence of employment conditions at SolarTech that were so unbearable or intolerable that he was forced to resign. He was not constructively discharged. See generally Virgo v. Riviera Beach Assoc., Ltd., 30 F.3d 1350, 1363 (11th Cir.1994).
To be clear, under the facts presented, Petitioner did not present or make out a prima facie case of racial or any other form of discrimination, and the analysis ends there. Grimes v. Bd. of Regents of Univ. Sys. of Ga., 650 F. App'x 647, 651 (11th Cir. 2016). See also Drago v. Jenne, 453 F.3d 1301, 1308 (11th Cir. 2006).
Even if a prima facie case had been established, Respondent presented sufficient, unrebutted proof that any actions it took were for legitimate, nondiscriminatory business reasons.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss Petitioner's Petition for Relief with prejudice and find in Respondent's favor.
DONE AND ENTERED this 4th day of December, 2020, in Tallahassee, Leon County, Florida.
S
ROBERT L. KILBRIDE
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 4th day of December, 2020.
COPIES FURNISHED:
Tammy S. Barton, Agency Clerk
Florida Commission on Human Relations 4075 Esplanade Way, Room 110
Tallahassee, Florida 32399-7020 (eServed)
Jodilynn Brown SolarTech Universal, LLC
1800 President Barack Obama Highway Riviera Beach, Florida 33404
(eServed)
Errol Hayden White Apartment 1
194 Norwich
West Palm Beach, Florida 33417
Cheyenne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110
Tallahassee, Florida 32399-7020 (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.
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 25, 2021 | Agency Final Order | |
| Dec. 04, 2020 | Recommended Order | Petitioner failed to establish a prima facie case of discrimination or retaliation. He voluntarily resigned and failed to establish that any other employees of comparable qualifications were treated any better. A dismissal of the case was recommended. |
