15-001177 Christopher Orr vs. Ameriscapes Landscape Mgmt., Inc. Status: Closed Recommended Order on Thursday, October 15, 2015.

Summary: Petitioner failed to prove that he was dismissed from employment because of his race.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHRISTOPHER ORR ,

Petitioner,

vs. Case No. 1 5 - 1177

AMERI - SCAPES LANDSCAPE

M ANAGEMENT , INC. , 1/

Respondent.

/

RECOMMENDED ORDER

A formal hearing was conducted in this case on June 29,

2015 , in Daytona Beach , Florida, before Lawrence P. Stevenson, a

duly - designated Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: David W. Glasser, Esquire

Law Office of David W. Glasser

116 Orange Avenue

Daytona Beach , Florida 32 114

For Respondent: Dean R. Fuchs, Qualified Representative

Schulten Ward & Turner, LLP

Suite 2700

260 Peachtree Street, N orthwest

Atlanta, Georgia 3 0303

STATEMENT OF THE ISSUE

The issue is wheth er Respondent, Ameri - Scapes Landscape

M anagement , Inc. (" Ameri - Scapes ") , committed unlawful employment

practices contrary to s ection 760.10, Florida Statutes (2013), 2 /

by discriminating against Petitioner based on his race .

PRELIMINARY STATEMENT

On or ab out August 15, 2014, Petitioner Christopher Orr

("Petitioner") filed with the Florida Commission on Human

Relations ("FCHR") an Employ ment Charge of Discrimination

against Ameri - Scapes . Petitioner alleged that he had been

dis criminated against pursuant to c hapter 760, and Title VII of

the Florida Civil Rights Act , based upon race, as follows:

I began employment on or about July, 2013.

My position was a landscaper. I was

performing my duties without problems.

During the time that I was employed, I was

wo rking at an apartment complex. My boss

told me that the manager of the complex

stated that I had been looking at someone.

I was told that I was not allowed to look at

anyone. I spoke to the manager of the

complex. The manager indicated that I was

not a llowed to look at anyone while working

at the complex. I questioned her about

this. She then told me that I was not

allowed to work at the complex. I later

contacted my boss. They told me I was

terminated from my position.

I am an African - American mal e. It was

alleged that this began when I was looking

at a Caucasian female and making hand

gestures. I believe most of the individuals

in the complex are Caucasian.

I believe I was terminated based on my race

in violation of the Florida Civil Rights Act

of 1992.

The FCHR investigated Petitioner's c omplaint. In a letter

dated January 27, 2015 , the FCHR issued its determination that

there was no reasonable cause to believe that an unlawful

employment practice occurred.

On March 3, 2015 , Petitioner timely filed a Petition for

Relief with the FCHR. On March 5, 2015 , the FCHR referred the

case to the Division of Administrative Hearings ("DOAH"). The

case was originally scheduled for hearing on April 14, 2015 .

Two continuance s were granted. The hearing wa s ultimately held

on June 29, 2015 .

At the hearing, Petitioner testified on his own behalf and

presented the testimony of Chad Stroh, a fellow Ameri - Scapes

employee at the time of the incidents in question . Petitioner

offered no exhibits. Respondent pres ented the testimony of Dana

Speer, the property manager of Osprey Landings Apartments

(ÐOsprey LandingsÑ), the apartment complex that was the site of

the incidents in question; Katherine Br u gh, office manager for

Ameri - Scapes ; and Gerardo Mora, PetitionerÓ s direct supervisor

at Ameri - Scapes . RespondentÓs Exhibit 1 was admitted into

evidence. Petitioner testified in rebuttal and called Ms. Speer

as a rebuttal witness.

The one - volume T ranscript of the hearing was filed at DOAH

on July 28 , 2015. On July 13, 2015, prior to the filing of the

Transcript, Respondent filed a motion requesting an extension of

the time for filing proposed recommended order s due to a pending

two - week jury trial that its counsel was about to begin. The

motion was granted by Order da ted July 15, 2015, granting the

parties until August 17, 2015, to file their proposed

recommended o rders. Both parties timely filed their Proposed

Recommended Orders.

FINDINGS OF FACT

1. Ameri - Scapes is an employer as that term is defined in

s ection 760. 02(7). Ameri - Scapes is a landscape management

company based in Norcross, Georgia , that is authorized to

transact business in the State of Florida .

2. Petitioner, a black male, was hired by Ameri - Scapes in

July 2013 as a commercial landscaper . The job consisted of

everything involved with landscaping commercial properties:

mowing, edging, weed - eating, and planting trees and flowers.

Petitioner was qualified for the position that he held and had

been subject to no adverse disc iplinary action prior to

Au gust 23, 2013.

3. PetitionerÓs direct supervisor was Gerardo Mora, who

was in charge of the crew that worked at Osprey Landings in

Daytona Beach on August 23, 2013.

4. Petitioner was part of the Ameri - Scapes crew working at

Osprey Landings on August 2 3, 2013. Petitioner and a Hispanic

worker , Augustine Augusto, were planting trees in front of the

main office, near the mailboxes.

5. Dana Speer, the property manager at Osprey Landings,

testified that two white female residents came to her office and

were very upset. One of them was shaking. They told her that

one of the Ameri - Scapes workers had stared at one of them for an

uncomfortably long ti me as they walked to the mailboxes , and

then had made hourglass hand gestures to indicate that she had

Ða b ig butt.Ñ The residents stated that this made them feel

very uncomfortable. When Ms. Speer inquired as to which of the

two workers near the mailboxes was the culprit, they stated that

it was the black man. Ms. Speer was concerned that PetitionerÓs

behav ior was a reflection on Osprey Landings because the

residents perceived that he was an employee of the apartment

complex.

6. Ms. Speer testified that she had had her own run - in

with Petitioner earlier that day. As she was walking toward the

office afte r being out on the property, she passed the area

where Petitioner was working. She said, ÐHey, how are you?Ñ

Petitioner replied, ÐHey, momma.Ñ Ms. Speer did not believe

this was an appropriate way to address her or any of her

residents. She had never s een Petitioner and thought he must be

new. She made a mental note to mention the incident to Mr. Mora

so that he could educate Petitioner as to the manner in which he

was expected to conduct himself while at Osprey Landings.

7. After the residents left h er office, Ms. Speer went

directly to Mr. Mora and told him that he needed to talk to

Petitioner because such behavior was not acceptable. Mr. Mora

needed to make sure that Petitioner was working, not checking

out the ladies and making them uncomfortable. Mr. Mora said

that he would handle the situation. Not long after that,

Petitioner came into Ms. SpeerÓs office. Ms. Speer testified

Petitioner immediately denied having ÐdisrespectedÑ anyone , and

admonished her for going to his boss and saying that he had.

Petitioner denied making a gesture at the resident. He said

that he was making the gesture to his co - worker to indicate that

the resident had a big butt.

8. Ms. Speer testified that she became upset at this

point, because Petitioner was essentially telling her that what

he just did was okay. She stood up from her desk and told

Petitioner that he should leave her office because his behavior

was unacceptable. Ms. Speer stated that Petitioner became more

agitated. He asked whether she was forbidding him to look at or

talk to anyone while he was working. Ms. Speer told him that of

course he could look at people, but could not make gestures or

otherwise make the residents feel uncomfortable.

9. Ms. Speer testified that Petitioner had become so loud

a nd obnoxious that she feared for her safety. She would have

asked him to sit down and talk about what happened, but his

aggressive demeanor made a reasonable conversation impossible.

He left her office and went out to speak to Mr. Mora. Ms. Speer

felt t hreatened enough that she went to her cabinet and pulled

out a container of wasp spray for self - defense.

10. Ms. Speer phoned Katherine Brugh, Ameri - ScapesÓ office

manager, and told her that she did not feel comfortable with how

Petitioner treated the s ituation. She told Ms. Brugh that she

did not want Petitioner on the Osprey Landings property because

he had been disrespectful to her and made her residents feel

uncomfortable. Ms. Speer made it clear that Osprey Landings

would terminate Ameri - Scapes se rvices if they kept Petitioner on

the property. Ms. Brugh told Ms. Speer that she would take care

of it.

11. Soon thereafter, Petitioner walked into Ms. SpeerÓs

office again. He loudly told her that he had just been fired,

that it was Ms. SpeerÓs fault, and that he was getting a lawyer

to sue Osprey Landings . She told Petitioner to leave or she

would call the police. Ms. Speer testified that Petitioner left

the office and Ðkind of walked aroundÑ the parking lot, making

her nervous enough that she calle d two of her maintenance men

over to keep an eye on him. Petitioner left after ten minutes

or so .

12. Ms. Speer testified that about two hours later,

Petitioner returned to her office. He asked for her business

card. She directed him to the cards on he r desk and told him to

take one and leave the premises , because he was now trespassing.

Petitioner left the office. Ms. Speer did not see him again.

13. Petitioner admitted that when he was working near the

mailboxes, a lady walked up and he stopped cut ting the grass and

Ðlooked at her for a long time.Ñ However, Petitioner denied

that he ÐdisrespectedÑ her by making gestures or saying anything

to her.

14. Petitioner testified that the first he knew about the

accusations was when Mr. Mora told him that he needed to go to

the office and talk to Ms. Speer. Mr. Mora told him that he had

made inappropriate hand gestures to someone. Petitioner assumed

that the accusation had come from a resident of the complex .

15. Petitioner testified that he went to Ms. SpeerÓs

office to explain that he had not made inappropriate gestures,

spoken out of turn , or taken any disrespectful actions toward

anyone at Osprey Landings. However, Ms. Speer cut him off and

stated that residents had complained to her about Petitioner Ós

staring at them , and making gestures about their body shapes.

Ms. Speer stated that Petitioner had made hand gestures to

someone and was talking about a residentÓs Ðbutt.Ñ Petitioner

denied the accusation and stated he would never do such a thing .

1 6. Petitioner testified that at this point Ms. Speer told

him that he was not allowed to look at anyone while working at

Osprey Landings. Petitioner said, ÐExcuse me?Ñ Ms. Speer

stated that he was not to look at , or speak to anyone.

Petitioner asked he r how she expected him to comply with such an

instruction. Ms. Speer told him that if he wanted to remain

employed by Ameri - Scapes, he was not to look at anybody. If

someone walked past him, Petitioner was to turn his head away.

Ms. Speer asked for his name and told him that he was not to

work on her premises anymore. Petitioner stated that he had no

problem leaving her office, but that she could not fire him for

looking at someone.

17. Petitioner testified that he left Ms. SpeerÓs office

and went stra ight to Mr. Mora. He asked Mr. Mora if he was

going to fire him for looking at someone. Mr. Mora stated that

he had to let Petitioner go. Mr. Mora told Petitioner that the

decision was not his to make, and that someone above him in the

company had made the decision to terminate PetitionerÓs

employment.

18. Petitioner testified that the Osprey Landings work

crew was ordinarily picked up from a central location and

transported to the work site. Therefore, Petitioner was

stranded at Osprey Landings after his firing. Mr. Mora at first

told Petitioner that he would not give him a ride , but relented

when Petitioner told him that Ms. Speer was threatening to have

him arrested if he remained on the property. Mr. Mora gave

Petitioner a ride to his godmotherÓs house.

19. Petitioner testified that his wife later drove him

back to Osprey Landings for the purpose of obtaining Ms. SpeerÓs

business card , and to tell her that she had cost him his job .

Petitioner stated that Ms. Speer became very angry and tossed

her business card at him. Petitioner left when Ms. Speer told

him that she was calling the police.

20. Petitioner called his Ameri - Scapes co - worker, Chad

Stroh, to testify on his behalf. Mr. Stroh testified that he

worked in close proximity to Petitioner o n August 23, 2013, and

did not notice any inappropriate behavior. Mr. Stroh had no

first - hand knowledge of any of the events regarding PetitionerÓs

dismissal. He testified that Mr. Mora told him that Petitioner

had been fired because of an incident in th e office at Osprey

Landings. Mr. Mora did not provide any details of the incident

to Mr. Stroh.

21. Katherine Brugh, the office manager for Ameri - Scapes,

testified and confirmed that she received a call from Ms. Speer

on the morning of August 23, 2013. Ms. Speer called to say that

a resident had complained that an Ameri - Scapes employee was

making unacceptable comments or gestures about her figure.

Ms. Brugh told Ms. Speer that she would take care of the matter.

22. Ms. Brugh called M r. Mora, who knew o nly what

Ms. Speer had told him. Ms. Brugh instructed Mr. Mora to tell

Petitioner that he was no longe r an employee of Ameri - Scapes.

23. Ms. Brugh later took a second call from Ms. Speer, who

stated that Petitioner had come to her office and was loud and

disrespectful. Ms. Brugh called Mr. Mora again and told him to

get Petitioner off the Osprey Landings property.

24. Ms. Brugh testified that Petitioner phoned her, saying

that he was very upset and did not understand what had happened.

He had looked a t a resident because she was pretty. He denied

making any gestures or comments toward the resident.

25. Ms. Brugh stated that she received a written statement

recounting the dayÓs event from Ms. Speer , but she made no

effort to speak with the offended r esidents to confirm their

stories. Ms. Brugh testified that Ameri - Scapes will not keep an

employee who makes a customer feel uncomfortable. Ms. Speer had

made it clear that Ameri - Scapes would be dismissed by Osprey

Landings unless it ensured that Petitio ner never came back onto

its property. Ms. Brugh stated that Ameri - Scapes at that time

had four commercial landscaping customers , and that the business

could not afford to retain an employee who was unable to work at

all of the properties Ameri - Scapes ser viced . She credibly

denied that PetitionerÓs race had any bearing on his dismissal.

26 . Mr. Mora testified that he was supervising the crew at

Osprey Landings on August 23, 2013. Work was proceeding

normally until h e received a call from Paul Schlossma n, the

president and owner of Ameri - Scapes, who instructed Mr. Mora to

fire Petitioner. Mr. Mora asked Mr. Schlossman for a reason.

Mr. Schlossman only stated that something happened on the

property and that Petitioner must be dismissed right away.

27 . Mr. Mora went to the Osprey Landings office to talk

with Ms. Speer. He asked Ms. Speer what happened. Mr. Mora

recalled Ms. Speer telling him that a female resident had come

in to complain that Petitioner Ðwas doing signals with the hands

that she had bi g titties.Ñ

28. Mr. Mora testified that no one said anything to him

about PetitionerÓs race being a factor in his dismissal . It was

a termination for improper conduct on the Osprey Landings

property. Mr. Mora stated that Petitioner later told him that

he was going to sue Ameri - Scapes for firing him because of his

race , and asked Mr. Mora to testify in support of that

contention. Mr. Mora told Petitioner that if he had to testify,

he would tell the truth and the truth was that Ameri - Scapes

dismissed Pet itioner for the gestures he made to the resident.

29. Given the speed with which phone calls and meetings

were occurring on August 23, 2013, it is not surprising that

testimony given nearly two years later is somewhat inconsistent

as to details. Ms. Br ugh stated that she gave the order to

dismiss Petitioner, but Mr . Mora recalled that it was

Mr. Schlossman. Whether PetitionerÓs gestures related to the

residentÓs buttocks or breasts was a matter of differing

recollection. However, the gist of the testi mony is

sufficiently of a piece to permit the overall finding that

PetitionerÓs race was not a factor in his dismissal.

30. Petitioner complained that he was fired on the basis

of hearsay voiced by Ms. Speer as to his actions toward the

residents. Howeve r, Ms. Speer credibly testified that

PetitionerÓs behavior toward her in the office was a factor in

her insistence that Ameri - Scapes remove Petitioner from the

Osprey Landings premises , which in turn was a factor in Ameri -

ScapesÓ decision to dismiss Petiti oner . Thus, there was direct

testimony as to some of the behavior that led to PetitionerÓs

termination. Further, PetitionerÓs testimony regarding his

conversations with Ms. Speer was not credible. As Ms. Speer

noted, Petitioner , in his rage and confusio n , might have

believed she told him not to look at the residents, but in fact ,

she never made such a statement to him.

31. Petitioner adamantly denied making any gestures or

doing anything else that might have made the resident

uncomfortable, save for st aring at her. Petitioner criticized

Ameri - Scapes for summarily firing him without giving him a fair

hearing or an opportunity to question his accusers. Petitioner

contended that Ameri - Scapes should have had a formal

investigatory process in place for sit uations such as that in

which he found himself. The company took the word of Ms. Speer,

who was not herself a witness to anything other than

PetitionerÓs impertinent greeting, and terminated PetitionerÓs

employment on the spot.

32. Whether PetitionerÓs d ismissal was fair is not at

issue in this proceeding. The issue is whether Ameri - Scapes has

shown a legitimate, non - discriminatory reason for terminating

PetitionerÓs employment. Ameri - ScapesÓ s decision to dismiss

Petitioner was not subject to the hearsa y rule . The company

reasonably took the word of its customer as to the misbehavior

of its employee and made a business decision to sever relations

with that employee in the interest of keeping the customerÓs

business , and forestalling any future incidents of a similar

nature . No evidence was presented that race played any factor

in PetitionerÓ s dismissa l .

33 . Petitioner offered no credible evidence disputing the

legitimate, non - discriminatory reasons given by Ameri - Scapes for

his termination.

34 . Petitioner offered no credible evidence that Ameri -

Scapes 's stated reasons for his termination were a pretext for

discrimination based on PetitionerÓs race .

35 . Petitioner offered no credible evidence that Ameri -

Scapes discriminated against him because of his race in

violation of s ection 760.10.

CONCLUSIONS OF LAW

36 . The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2015 ).

37 . The Florida Civil Rights Act of 1992 (the "Florida

Ci vil Rights Act" or the "Act"), c hapter 760, prohibits

discrimination in the workplace.

38 . Section 760.10 states the following, in relevant part:

(1) It is an unlawful employment practice

for an employer:

(a) To dis charge 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.

39 . Ameri - Scapes is an "employer" as defined in s ection

760.02(7), which provides the following:

(7) "Employer" means any 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.

40 . Florida courts have determined that federal case law

applies to cl aims arising under the Florida Civil Rights Act,

and as such, the United States Supreme Court's model for

emplo yment discrimination cases set forth in McDonnell Douglas

Corp. v. Green , 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668

(1973), a pplies to claims arising under s ection 760.10, absent

direct evidence of discrimination . 3 / See Harper v. Blockbuster

EntmÓt C orp. , 139 F.3d 1385, 1387 (11th Cir. 1998); Paraohao v.

Bankers Club, Inc. , 225 F. Supp. 2d 1353, 1361 (S.D. Fla. 2002);

Fla. State Univ. v. Sondel , 685 So. 2d 923, 925 n.1 (Fla. 1st

DCA 1996); Fla. DepÓt of C mty . Aff. v. Bryant , 586 So. 2d 1205

(Fla. 1st DCA 1991).

41 . Under the McDonnell analysis, in employment

discrimination cases, Petitioner has the burden of establishing ,

by a preponderance of evidence , a prima facie case of unlawful

discrimination. If the prima facie case is established, the

burden shifts to the employer to rebut this preliminary showing

by producing evidence that the adverse action was taken for some

legitimate, non - discriminatory reason. If the employer rebuts

the prima facie case, the burden shifts back to Petitioner to

show by a preponderance of evidence that the employer's offered

reasons for its adverse employment decision were pretextual.

See Texas DepÓt of Cm ty . Aff. v. Burdine , 450 U.S. 248,

101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981).

42 . In order to prove a prima facie cas e of unlawful

e mployment discrimination under c hapter 760, Petitioner must

establish that: (1) he is a member of the protected group;

(2) he was subject to adverse employment action; (3) Ameri -

Scapes treated similarly s ituated employees outside of his

pro tected classifications more favorably; and (4) Petitioner was

qualified to do t he job and/or was performing his job at a level

that met the employerÓs legitimate expectations. See , e.g. ,

Jiles v. United Parcel Serv., Inc. , 360 Fed. Appx. 61, 64 (11th

Cir. 2010); Burke - Fowler v. Orange City , 447 F.3d 1319, 1323

(11th Cir. 2006); Knight v. Baptist Hosp. of Miami, Inc. , 330

F.3d 1313, 1316 (11th Cir. 2003); Williams v. Vitro Serv. Corp. ,

144 F.3d 1438, 1441 (11th Cir. 1998); McKenzie v. EAP Mgmt.

Corp. , 40 F. Supp. 2d 1369, 1374 - 75 (S.D. Fla. 1999).

43 . Petitioner has failed to prove a prima facie case of

unlawful employment discrimination.

44 . As a black male, Petitioner is a member of a protected

class as it rel ates to race discrimination. Pet itioner was

subject to an adverse employment action in that he was

terminated from his position as a commercial landscaper with

Ameri - Scapes . Petitioner was qualified to perform the job of

commercial landscaper . The evidence established that

Petitioner' s job perform ance was adequate and that he had not

been subject to adverse disciplinary action prior to August 23,

2013 .

45 . As to the question of disparate treatment, the

applicable standard was set forth in Maniccia v. Brown , 171 F.3d

1364, 1368 - 1369 (11th Cir. 199 9):

" In determining whether employees are

similarly situated for purposes of

establishing a prima facie case, it is

necessary to consider whether the employees

are involved in , or accused of , the same

or similar conduct and are disciplined in

different way s." Jones v. Bessemer Carraway

Med. Ctr . , 137 F.3d 1306, 1311 (11th

Cir.), opinion modified by 151 F.3d 1321

(1998) ( quoting Holifield v. Reno , 115 F.3d

1555, 1562 (11th Cir. 1997)) . "The most

important factors in the disciplinary

context are the nature of the offenses

committed and the nature of the punishments

imposed." Id . (internal quotations and

citations omitted). We require that the

quantity and quality of the comparator's

misconduct be nearly identical to prevent

courts from second - guessing empl oyers'

reasonable decisions and confusing apples

with oranges. See Dartmouth Review

v. Dartmouth College , 889 F.2d 13, 19 (1st

Cir.1989) ("Exact correlation is neither

likely nor necessary, but the cases must be

fair congeners. In other words, apples

sho uld be compared to apples.") . (Emphasis

added ) . [ 4 /]

46 . Petitioner presented no credible evidence that h is

race played any role in the business decisions made by Ameri -

Scapes . H e presented no evidence that any similarly situated

employee was treated any better or differently than was

Petitioner. PetitionerÓs testimony regarding his meetings with

Ms. Speer was not credible, which cast doubt upon the

credibility of his denials of the misbehavior that caused his

termination . Having failed to establish th e disparate treatment

element, Petitioner has not established a prima facie case of

employment discrimination.

47 . Even if Petitioner had met the burden, Ameri - Scapes

presented evidence of legitimate, non - discriminatory reasons for

Petitioner's terminat ion. Ms. Speer, representing Osprey

Landings, complained to Ameri - Scapes management about

PetitionerÓs behavior as relayed to her by tw o residents.

Ms. Speer herself had been subject to a crass greeting from

Petitioner , and later directly witnessed Petit ionerÓs meltdown

in her office. She feared for her safety and the reputation of

her employer. Ameri - Scapes was threatened with the loss of a

significant customer if it did not take immediate action to

rectify the situation. Ms. Brugh credibly testified that the

company could not afford to carry an employee who was unable to

work at all the properties serviced by Ameri - Scapes. The

companyÓs decision to terminate PetitionerÓs employment was

abrupt , but had nothing to do with PetitionerÓs race .

RECOMMENDAT ION

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 Ameri - Scapes Landscape

Management, Inc. did not commit any unlawful employment

practices and dismissing the Petition for Relief filed in this

case.

DONE AND ENT ERED this 15th day of October , 201 5 , in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrativ e Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

t his 15th day of October , 201 5 .

ENDNOTES

1/ The style of the case has been amended to correct the spelling

of RespondentÓs name.

2 / Citations shall be to Florida Statutes (20 13 ) , unless

otherwise specified. Section 760.10, Florida Statutes, has been

unchanged since 19 92, save for a 2015 amendment adding pregnancy

to the list of classifications protected from discriminatory

employment practices. Ch. 2015 - 68, § 6, Laws of Fla.

3 / Ð Direct evidence is Òevidence, which if believed, proves

existence of fact in issue witho ut inference or presumption.Ó"

Rollins v. TechSouth, Inc. , 833 F.2d 1525, 1528 n.6 (11th Cir.

1987) ( quoting BlackÓs Law Dictionary 413 (5th ed. 1979)). In

Carter v. City of Miami , 870 F.2d 578, 582 (11th Cir. 1989), the

court stated:

This Court has h eld that not every comment

concerning a person's age presents direct

evidence of discrimination . [ Young v. Gen.

Foods Corp. 840 F.2d 825, 829 (11th Cir.

. The Young Court made clear that

remarks merely referring to characteristics

associated with i ncreasing age, or facially

neutral comments from which a plaintiff has

inferred discriminatory intent, are not

directly probative of discrimination. Id .

Rather, courts have found only the most

blatant remarks, whose intent could be

nothing other than to discriminate on the

basis of age, to constitute direct evidence

of discrimination.

Petitioner offered no evidence that would satisfy the stringent

standard of direct evidence of discrimination.

4 / The Eleventh Circuit has questioned the "nearly identica l"

standard enunciated in Maniccia , but has , in recent years ,

reaffirmed its adherence to it. See , e.g. , Brown v. Jacobs

EngÓg, Inc. , 572 Fed. Appx. 750, 751 (11th Cir. 2014); Escarra

v. Regions Bank , 353 Fed. Appx. 401, 404 (11th Cir. 2009);

Burke - Fowler , 447 F. 3d at 1323 n.2.

COPIES FURNISHED :

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

(eServed)

David W. Glasser, Esquire

Law Office of David W. Glasser

116 Orange Avenu e

Daytona Beach, Florida 32114

(eS erved)

Dean R. Fuchs, Esquire

Schulten Ward & Turner, LLP

Attorneys at Law

Suite 2700

260 Peachtree Street, N orthwest

Atlanta, Georgia 30303

(eS erved)

Cheyanne Costilla, General Counsel

Florida Commission on Human Rela tions

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 Recomme nded Order should be filed with the agency that

will issue the Final Order in this case.