00-005083 Allen Locklear, Jr. vs. Orange County Of Florida, Inc. Status: Closed Recommended Order on Monday, August 20, 2001.

Summary: Petitioner presented a prima facie case of retaliation based on race; Respondent failed to meet its burden to show that its action was based on a legitimate non-discriminatory reason.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALLEN LOCKLEAR, JR., )

)

Petitioner, )

)

vs. ) Case No. 00-5083

)

ORANGE COUNTY OF FLORIDA, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, William R. Cave, an Administrative Law

Judge for the Division of Administrative Hearings (Division),

held a formal hearing in this matter on April 26, 2001, in

Lakeland, Florida.

APPEARANCE

For Petitioner : Merette L. Oweis, Esquire

DiCeasure, Davidson & Barker, P.A.

Post Office Box 7160

Lakeland, Florida 33897

For Respondent : David J. Stefany, Esquire

Allen, Norton & Blue, P.A.

324 South Hyde Park Avenue

Suite 350

Tampa, Florida 33606

STATEMENT OF THE ISSUE

Has Petitioner been the subject of an unlawful employment

practice because of his race, American Indian, and if so, what

relief is appropriate?

PRELIMINARY STATEMENT

On October 17, 1998, Petitioner filed a charge of

Discrimination against Respondent based on his race, American

Indian, alleging discrimination by Respondent because of

Petitioner’s race, in violation of the Florida Civil Rights Act

of 1992.

On August 23, 2000, the Florida Commission on Human

Relation (Commission) issued a Notice of Determination:

No Cause and a Determination : No Cause. On October 20, 2000,

the Commission issued a Notice of Dismissal, initially

determining that Petitioner had failed to request an evidentiary

hearing within 35 days from the date of service of its prior

Notice of Determination : No Cause. On December 13, 2000, the

Commission issued a Rescission of Notice Of Dismissal dated

October 20, 2000, concluding that Petitioner had timely

requested a review and a hearing on August 31, 2000, and re-

opened Petitioner’s Complaint of Discrimination. By a

Transmittal of Petition dated December 14, 2000, the Commission

referred this matter to the Division for the assignment of an

Administrative Law Judge and for the conduct of a formal

hearing.

At the hearing, Petitioner testified on his own behalf and

presented the testimony of William Waples and Charles Palmer.

Petitioner did not offer any documentary evidence. At the

conclusion of Petitioner’s case-in-chief, Respondent argued an

ore tenus motion for a Recommended Order of Dismissal in that

Petitioner had failed to prove that he had been treated

differently or that Petitioner had otherwise established a prima

facie case of discrimination based on race. The undersigned

deferred ruling on that motion and advised Respondent that it

should present any relevant evidence that it may have for

purposes of completing the record and for consideration in

rendering a recommended order in this proceeding. Respondent

presented the testimony of Bobby Branch and Gary Guard.

Respondent did not offer any documentary evidence.

There was no transcript of this proceeding filed with the

Division. Post-hearing, Petitioner filed an Unopposed Motion

for Extension of Time to File Proposed Recommended Order, which

was granted with the understanding that any time constraint

imposed under Rule 28-106.216(1), Florida Administrative Code,

was waived in accordance with Rule 28-106.2316(2), Florida

Administrative Code. Petitioner timely filed its Proposed

Recommended Order under the extended time frame. Respondent

timely filed under the extended time frame a document that was

titled “Respondent’s Recommended Order of Dismissal” which shall

be treated as Respondent’s Proposed Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral evidence adduced at the

hearing, the following relevant findings of fact are made:

1. At all times relevant to this proceeding, Respondent

operated a citrus processing facility in Bartow, Florida, and

employed in excess 15 employees.

2. Petitioner is a full-blooded American Indian who

resides in Lakeland, Polk County, Florida.

3. Bobby Branch, Respondent’s Maintenance

Supervisor, hired Petitioner as a Maintenance Mechanic.

Petitioner commenced employment with Respondent on August 18,

1997. Petitioner was employed at an hourly rate of $10.50.

Petitioner was assigned by Bobby Branch to work under the direct

supervision of Garry R. Guard, Lead Plant Mechanic. Petitioner

had 37 plus years' experience as a mechanic and 15 years'

experience with the citrus industry as a mechanic.

4. Petitioner understood at the time he was hired that he

would be on probation for a period of 90 days.

5. Shortly after Petitioner began work, Garry Guard told

Petitioner “I don’t want to work with an Indian” and “I’m

prejudiced and I don’t give a damn who knows it” or words to

that effect. Additionally, Guard let it be known that he would

prefer working with a Mexican.

6. Approximately one week after this incident, Petitioner

complained to Bobby Branch, Maintenance Supervisor, about

Guard’s comment to Petitioner. This is supported by the

testimony of Charles Palmer, a former employee of Respondent,

that he was aware that Petitioner reported Guard's comment to

Bobby Branch. There was no remedial action taken by either

Branch or any other management personnel concerning Guard’s

comment to Petitioner.

7. Subsequently, Petitioner noticed his work being undone

and Guard complaining that Petitioner’s work was not done or

that his work was done improperly.

8. Petitioner and William Waples, a former employee of

Respondent, worked together on one of those projects, rebuilding

and installing a pump. Waples considered Petitioner a good

mechanic. Later, after Waples and Petitioner were finished with

the pump, Guard was observed taking the pump apart.

Subsequently, Guard complained that Petitioner failed to install

a specific part in the pump. Waples specifically recalls that

particular part being installed by himself and Petitioner.

9. Subsequent to that event, Guard, when questioned by

another worker about the pump and the problem with it, was over

heard by Waples saying words to the effect that the “Damn Indian

did it.”

10. On October 22, 1997, Petitioner filed a complaint with

Branch that Guard was purposefully sabotaging his work because

of his race. Again, there was no remedial action taken by

Branch or any other management personnel.

11. Branch neither personally observed deficient work

performance by Petitioner nor personally communicated to

Petitioner the need for Petitioner to improve his performance if

he were to successfully complete his probationary period with

Respondent, notwithstanding Branch’s testimony to the contrary,

which I find lacks credibility in this regard. Petitioner was

never reprimanded or counseled prior to being terminated.

12. Petitioner was not terminated because of his deficient

work performance during his probationary period, but was

terminated because of his complaints to Bobby Branch of being

discriminated against due to his race, notwithstanding Branch’s

testimony to the contrary, which I find lacks credibility in

this regard.

13. Petitioner was terminated by Respondent on

November 14, 1997.

14. Petitioner claims lost wages at an hourly rate of

$10.50 for 40 hours per week for the period from November 15,

1997 to April 24, 1998. There does not appear to be any

evidence of a set-off against the claim for lost wages.

15. Although Petitioner was represented by an attorney,

there was no evidence presented as to the amount of Petitioner's

attorney's fees.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Sections 120.57(1), and 760.11, Florida

Statutes.

17. Section 760.10(1)(a), Florida Statutes, provides that

it is an unlawful employment practice for an employer to

discharge or otherwise discriminate against an individual with

respect to terms or conditions of employment because of a

complaint of discrimination.

18. Petitioner has the initial burden of proving

retaliation by showing that : 1) Petitioner engaged in

statutorily protected activity; 2) Respondent took adverse

action against Petitioner; and 3) there is a casual connection

between the protected speech and the adverse action alleged.

Berman v. Orkin Exterminating , 160 F.3d 697 (11th Cir. 1998).

It is not necessary that the activities complained of were in

fact legally discriminatory, just that the Petitioner at the

time the complaint was made had a good faith belief the

activities complained of were made illegal by the Florida Civil

Rights Act of 1992. Wideman v. Wal-Mart , 141 F.3d 1453 (11th

Cir. 1998).

19. Petitioner has presented sufficient evidence to

establish the three elements of a retaliation claim, and has

therefore, presented a prima facie case of retaliation. The

Petitioner having established a prima facie case of retaliation,

the inference is that discriminatory intent motivated the

adverse employment action, and the burden shifts to Respondent

to "clearly articulate in a reasonably specific manner a

legitimate non-discriminatory reason" for the adverse action

with credible evidence. Berman v. Orkin Exterminating , 160

F.3d. 697 (11th Cir. 1998). Respondent has failed to meet its

burden in this regard.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is recommended that Petitioner's Petition for Relief be

granted, and as further relief, award Petitioner back wages for

the period of November 15, 1997 until April 24, 1998, based on a

40 hour week at an hourly rate of $10.50, and upon motion to the

Commission, award reasonable attorney's, in accordance with

Section 760.11(7), Florida Statutes.

DONE AND ENTERED this 20th day of August, 2001, in

Tallahassee, Leon County, Florida.

___________

WILLIAM R. CAVE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of August, 2001.

COPIES FURNISHED:

Merette L. Oweis, Esquire

DiCeasure, Davidson & Barker, P.A.

Post Office Box 7160

Lakeland, Florida 33897

David J. Stefany, Esquire

Allen, Norton & Blue, P.A.

324 South Hyde Park Avenue

Suite 350

Tampa, Florida 33606

Dana A. Baird, General Counsel

Florida Commission on Human Relations

325 John Knox Road, Building F, Suite 240

Tallahassee, Florida 32303-4149

Azizi M Dixon, Agency Clerk

Florida Commission on Human Relations

325 John Knox Rd, Bldg. F, Suite 240

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit 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.