97-005058 Terrance D. Davenport vs. Village On The Green Status: Closed Recommended Order on Wednesday, June 3, 1998.

Summary: Petitioner failed to prove that his transfer and termination were race based; employer's reasons for termination not pretextual.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TERRANCE D. DAVENPORT, )

)

Petitioner, )

)

vs. ) Case No. 97-5058

)

VILLAGE ON THE GREEN, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

A formal hearing was held before the Division of

Administrative Hearings by Daniel M. Kilbride, Administrative Law

Judge, on March 11, 1998, by video conference to Orlando,

Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Terrance D. Davenport, pro se

861 Carver Street

Winter Park, Florid a 32789

For Respondent: John Griffin, Qualified Representative

Director of Human Resources

Life Care Retirement Communities, Inc.

d/b/a Village on the Green

200 East Grand, Suite 390

Des Moines, Iowa 50309

STATEMENT OF THE ISSUE

Whether Petitioner was demoted from his position as a

security officer, and later terminated from his position with the

Respondent as a groundskeeper on or about May 22, 1995, on the

basis of his race (Black) or sex (male), in violation of

Section 760.10(1)(a), Florida Statutes (1995).

PRELIMINARY STATEMENT

The Petitioner filed a Charge of Discrimination with the

Orlando Human Relations Department and the Florida Commission on

Human Relations (FCHR), on June 22, 1995, charging the Respondent

with employment discrimination. FCHR began an investigation;

however, it was not completed within 180 days. On a form dated

March 18, 1997, the Petitioner elected to withdraw his charge and

requested the right to file a Petition for Relief and proceed

with an administrative hearing. This matter was subsequently

referred by FCHR to the Division of Administrative Hearings for

formal hearing de novo on October 31, 1997. Following discovery,

a formal hearing was held on March 11, 1998.

At the hearing, Petitioner appeared pro se . Petitioner

testified in his own behalf; no exhibits were offered or received

in evidence. The Respondent presented the testimony of three

witnesses, and five exhibits were received in evidence. A

transcript was ordered and was filed on April 7, 1998. The

parties were allowed ten days from the hearing in which to file

proposed findings of fact and conclusions of law. Neither party

has filed proposed findings as of the date of this order.

Based upon all of the evidence, the following findings of

fact are determined:

FINDINGS OF FACT

1. The Respondent is an employer as that term is defined

under the Florida Civil Rights Act of 1992.

2. Petitioner is an African-Ame rican male, and is licensed

as a Class D security officer by the State of Florida.

3. Respondent, Life Care Retirement Communities, Inc., is a

not-for-profit corporation, based in Iowa, which owns Village on

the Green, a community with 241 independent living units and 60

skilled health center beds in Longwood, Florida.

4. Petitioner was hired by Respondent, on April 27, 1998,

as a security guard at Village on the Green in Longwood, Florida.

He worked in that capacity until May 12, 1995.

5. In accord ance with the company's standard procedure, all

employees who have keys or access to resident's private property

are required to have a criminal background check completed.

Petitioner's position as a security guard required such a check.

Petitioner signed a consent form and the background check was

completed.

6. The background check revealed that, in 1993, Petitioner

was arrested for the felony of grand theft auto. The charge was

later reduced from the misdemeanor charge of Trespass to a

Conveyance. On May 17, 1994, Petitioner pled nolo contendere to

the charge. Adjudication was withheld by the Court and

Petitioner was placed on six months probation. Petitioner

successfully completed probation.

7. It is the policy of Respondent that an employee with a

prior criminal record which involves theft may not be placed in a

safety-sensitive position which permits employee access to a

resident's living quarters or personal property. A security

officer has such access.

8. Petitioner was then informed that he would be removed

from his position as a security guard.

9. Petitioner was then offered a position in groundskeeping

and Petitioner accepted. He was transferred to groundskeeping,

at the same salary, and was employed from May 15, 1995, until

May 22, 1995, at which time he was terminated.

10. Between May 15 and May 22, 1995, Petitioner performed

his job satisfactorily.

11. On May 15, 1995, a severe electrical storm knocked out

electricity to Petitioner's residence. As a result, Petitioner

overslept and did not report to work at 7:00 a.m., the scheduled

beginning of his shift. At approximately 8:00 a.m., Petitioner

called the security guard on duty and advised her of the reason

he was late and that he would not be in that day because the

storm had caused damage to his automobile.

12. The fact that Petitioner reported in on May 15th was

not conveyed by the unidentified security guard to Petitioner's

supervisor.

13. Respondent's policy, as stated in the Employee

Handbook, called "No show/no call," requires an employee to

notify his supervisor if he is going to absent, or if he is

unable to contact the supervisor, then he is to report his

absence or tardiness to the switchboard operator.

14. The Employee Manual, at page 45, states in pertinent

part: ". . . Failure to report for duty without notification,

failure to call in prior to shift change and tardiness will

result in disciplinary action."

15. After an internal investigation, which included an

interview with Petitioner, Respondent was unable to determine

that Petitioner had called in on May 15, 1995. Petitioner was

terminated.

16. Petitioner has failed to demonstrate that Respondent's

reason for termination was pretextural, or that the employer

engaged in unlawful hiring, firing, pay or promotion practices.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding, and the

parties thereto, pursuant to Sections 120.569 and 120.57(1),

Florida Statutes, and Rule 60Y-4.016(1), Florida Administrative

Code.

18. The State of Florida, under the legislative scheme

contained in Chapter 760, Florida Statutes, incorporates and

adopts the legal principles and precedents established in the

federal anti-discrimination laws specifically set forth under

Title VII of the Civil Rights Act of 1964, as amended, 42 USC

Section 2000e et seq . The Florida law prohibiting unlawful

employment practices is found in Section 760.10, Florida

Statutes. This section prohibits discharge or otherwise to

discriminate against any individual with respect to compensation,

terms, conditions, or privileges of employment because of such

individual's race. (Sec. 760.10(1)(a), Florida Statutes). The

Florida Commission on Human Relations and the Florida courts

interpreting the provisions of the Florida Civil Rights Act of

1992 have determined that federal discrimination law should be

used as guidance when construing provisions of the Act. See

Brand v. Florida Power Corp. 633 So. 2d 504,509 (Fla. 1st DCA

1994); Florida Department of Community Affairs v. Bryant , 586 So.

2d 1205 (Fla. 1st DCA 1991); Cooper v. Lakeland Regional Medical

Center , 16 FALR 567, 574 (FCHR 1993).

19. The Supreme Court established, and later clarified, the

burden of proof in disparate treatment cases in McDonnell Douglas

Corp. v. Green , 411 U.S. 792 (1973) and Texas Department of

Community Affairs v. Burdine , 450 U.S. 248 (1981) and again in

the recent case of St. Mary's Honor Center v. Hicks , 509 U.S.

502, 113 S.Ct. 2742 (1993). The FCHR has adopted this

evidentiary model. Kilpatrick v. Howard Johnson Co. , 7 FALR

5468,5475 (FCHR 1985). McDonnell Douglas places upon the

Petitioner the initial burden of proving a prima facie case of

racial discrimination. See also Laroche v. Department of Labor

and Employment Security , 13 FALR 4121 (FCHR 1991); Davis v.

Humana of Florida, Inc. , 15 FALR 231 (FCHR 1992).

20. Judicial authorities have established the burden of

proof for establishing a prima facie case of discriminatory

treatment. Petitioner must show that:

a. The Petitioner is a member of a

protected group;

b. The employee is qualified for the

position; and

c. The employee was subject to an

adverse employment decision (Petitioner was

demoted, then terminated);

d. The position was filled by a person

of another race or that she was treated less

favorably than similarly-situated persons

outside the protected class:

e. There must be shown by the evidence

that there is a causal connection between a

and c. Canino vs. EEOC, 707 F.2d 468, 32 FEP

Cases 139 (11th Cir. 1983); Smith vs.

Georgia , 684 F.2d 729, 29 FEP Cases 1134

(11th Cir. 1982); Lee vs. Russell County

Board of Education , 684 F.2d 769, 29 FEP

Cases 1508 (11th Cir. 1982), appeal after

remand, 744 F.2d 768, 36 FEP Cases 22 (11th

Cir. 1984).

21. Proving a prima facie case serves to eliminate the most

common nondiscriminatory reasons for the Plaintiff's disparate

treatment. See Teamsters v. U.S. , 431 U.S. 324, 358 and n. 44

(1977). It is not, however, the equivalent of a factual finding

of discrimination. It is simply proof of actions taken by the

employer from which discriminatory animus is inferred because

experience has proven that, in the absence of any other

explanation, it is more likely than not that those actions were

bottomed on impermissible considerations. The presumption is

that more often than not people do not act in a totally arbitrary

manner, without any underlying reason, in a business setting.

Furnco Construction Corp. v. Waters , 438 U.S. 567, 576 (1978).

22. Once the Plaintiff has succeeded in proving all the

elements necessary to establish a prima facie case, the employer

must then articulate some legitimate, nondiscriminatory reason

for the challenged employment decision. The employer is required

only "to produce admissible evidence which would allow the trier

of fact to conclude that the employment decision had not been

motivated by discriminatory animus ." Texas Department of

Community Affairs v. Burdine , at 257. The employer "need not

persuade the court that it was actually motivated by the

proffered reasons . . . it is sufficient if the [employer's]

evidence raises a genuine issue of fact as to whether it

discriminated against the Plaintiff." Id . at 254-255. This

burden is characterized as "exceedingly light." Perryman v.

Johnson Products Co., Inc. , 698 F.2d 1138 (11th Cir. 1983).

23. Once the employer articulates a legitimate reason for

the action taken, the evidentiary burden shifts back to the

Petitioner who must prove that the reason offered by the employer

for its decision is not the true reason, but is merely a pretext.

The employer need not prove that it was actually motivated by the

articulated nondiscriminatory reasons or that the replacement was

more qualified than the Petitioner. Texas Department of

Community Affairs v. Burdine , at 257-8.

24. In Burdine , the Supreme Court emphasized that the

ultimate burden of persuading the trier of fact that the

Respondent intentionally discriminated against the Petitioner

remains at all times with the Petitioner. Texas Department of

Community Affairs v. Burdine , at 253. The Court confirmed this

principle again in St. Mary's Honor Center v. Hicks , 509 U.S 502,

113 S.Ct. 2742 (1993).

25. In the case sub judice , the Petitioner has established

that he is a member of a protected class, and that he was

qualified for the position, at the time he was hired. The

Petitioner has also established that he was subjected to an

adverse employment decision when he was first transferred to

another position and later terminated from the new position.

However, Petitioner has failed to come forward with persuasive

evidence that there is a causal connected between his race and

his transfer or termination.

26. Although Petitioner's prior criminal record was not

serious enough to prevent Petitioner from being licensed by the

state as a Class D Security Officer, Respondent is not prevented

from instituting a stricter policy as it applies to the security

guards that it hires, as long as that policy is applied

uniformly. Petitioner has failed to show that similarly-situated

non-minority persons received more favorable treatment under

similar circumstances.

27. Respondent was not required to offer Petitioner a

position as a groundkeeper, however, once offered and accepted

Petitioner must be treated fairly. Petitioner was hired and

fired, while still on probation. The "no show/no call" rule is

not arbitrary or unreasonable and there has been no showing that

it was applied discriminatorily. Therefore, there can be no

inference of discrimination. Pound v. Stone , 945 F.2d 796 (4th

Cir.1991). "Whatever the employer's decision-making process, a

disparate treatment claim cannot succeed unless the employee's

protected trait actually played a role in that process and had a

determinative influence on the outcome." Hazen Paper Co. v.

Biggins , 505 U.S. 604, 113 S.Ct. 1701, 1706 (1993). This

standard requires Petitioner to establish that "but for" his

protected class and the employer's intent to discriminate, he

would not have been terminated. Therefore, the Petitioner has

failed to came forward with sufficient evidence to meet his

initial burden of proof on the issue of racial discrimination.

28. Assuming arguendo that the Petitioner had met his

initial burden, the sequence of presentation of evidence then

required the Respondent to come forward and articulate valid,

nondiscriminatory reasons for the resulting termination decision.

The Respondent has done so. It established by credible evidence

that its policy in regard to employment of security guards is

reasonable and that the transfer of Petitioner was consistent

with its policies. In addition, even though Petitioner called in

on May 15, 1995, to report his reason for failure to report to

work, he did not report to his supervisor nor the switchboard

operator. Therefore, Respondent could find no record of his

call, and, even if mistaken, Respondent could terminate

Petitioner, since the termination was not based on a

discriminatory reason.

29. Petitioner has failed to produce any evidence to

demonstrate that the Respondent's articulated reasons for its

actions in May 1995, were "pretextual."

30. From the testimony and the exhibits, the Petitioner has

failed to carry the burden required by law to establish

discriminatory conduct. There was no credible testimony by any

of the witnesses that the reason for Petitioner's termination was

because of his race, black. Petitioner may not rely on a mere

refutal of the employer's stated reason to establish pretence.

Petitioner must establish that (i) that reason was false and (ii)

discrimination was the motivating factor for the employment

action taken. St Mary's Honor Center v. Hicks , supra .

RECOMMENDATION

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 which DENIES the Petition for Relief.

DONE AND ENTERED this 3rd day of June, 1998, in Tallahassee,

Leon County, Florida.

___________________________________

DANIEL M . KILBRIDE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of June, 1998.

COPIES FURNISHED:

John V. Griffin

Director of Human Resources

Life Care Retirement Communities, Inc.

d/b/a Village on the Green

200 East Grand, Suite 390

Des Moines, Iowa 50309

Terrance Davenport

861 Carver Street

Winter Park, Florida 32789

Sharon Moultry, Clerk

Commission on Human Relations

325 John Knox Road

Building F, Suite 249

Tallahassee, Florida 32303-4149

Dana Baird, General Counsel

Commission on Human Relations

325 John Knox Road

Building F, Suite 249

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days 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.