01-003338 Hugh F. Brockington, Ii vs. Department Of Corrections Status: Closed Recommended Order on Friday, January 18, 2002.

Summary: Petitioner failed to present sufficient evidence to present a prima facie case of discrimination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

HUGH F. BROCKINGTON, II, )

)

Petitioner, )

)

vs. ) Case No. 01 - 3338

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

RECOMMENDED ORDER

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

Judge for the Division of Administrative Hearings, held a formal

hearing in this matter on November 8, 2001, in Viera, Florida.

APPEARANCES

For Petitioner: Hugh F. Brockington, II, pro se

19715 Eagles View Circle

Umatilla, Florida 32784

For Respondent: Gary L. Grant, Esquire

Department of Corrections

2601 Blair Stone Road

Tallahassee, Flo rida 32399

STATEMENT OF THE ISSUE

Did Petitioner suffer an adverse employment action as a

result of an unlawful discrimination by the Department of

Corrections (Department) in violation of Subsection

760.10(1)(a), Florida Statutes?

PRELIMINARY STATEMENT

Petitioner filed a Charge of Discrimination with the

Florida Commission on Human Relations (Commission) dated

April 24, 1995, which was received by the Commission on

April 24, 1995. In the Charge of Discrimination, Petitioner

alleges that the Departmen t discriminated against him because of

his race (Black) and his gender (male), in violation of the

Florida Civil Rights Act of 1992, and Title VII of the U.S.

Civil Rights Act of 1964. As grounds for his Charge of

Discrimination, Petitioner alleges that o n October 24, 1994, he

was given a written reprimand for allegedly abusing the

Department's sick leave policy on October 21, 1994.

Additionally, Petitioner alleged that he had been racially

harassed, given different terms and conditions of employment,

and retaliated against for having reported violations within the

Department. The Charge of Discrimination was assigned FCHR

Number 95 - G343. The record does not indicate if any action was

taken by the Commission on FCHR Number G343 prior to

Petitioner's fili ng a second Charge of Discrimination with the

Commission dated June 10, 1997, which was received by the

Commission on August 19, 1997, and assigned FCHR Number 97 - 2558.

In the second Charge of Discrimination, Petitioner alleges

additional charges of discr imination and states that this Charge

of Discrimination is a continuation of the Charge of

Discrimination FCHR Number 95 - G343. On March 28, 2001, the

Commission issued its Determination: No Cause. On that same

date, the Clerk for the Commission (Clerk) issued a Notice

Determination: No Cause (Notice), wherein Petitioner was

advised that he had 35 days from the date of the Notice to

request an administrative hearing by filing a Petition for

Relief with the Commission. Apparently, the Clerk mailed a copy

of the Determination: No Cause and a copy of the Notice to the

wrong address. As a result, Petitioner failed to timely file

his Petition for Relief with the Commission, which resulted in

the Commission's issuing a Notice of Dismissal on May 18, 2001.

H owever, the Commission, upon being advised that Petitioner had

not received a copy of its Determination: No Cause or a copy of

the Notice, issued a Rescission of Notice of Dismissal on July

27, 2001. Subsequently, Petitioner filed his Petition for

Relief with the Commission. Thereafter, on August 21, 2001, the

Commission issued a Notice to Respondent of Filing of Petition

for Relief from an Unlawful Employment Practice. By Letter of

Transmittal dated August 21, 2001, the Commission referred the

matter t o the Division of Administrative Hearings (Division) for

the assignment of an Administrative Law Judge and for the

conduct of a hearing.

At the hearing, Petitioner testified in his own behalf and

presented the testimony of Bruce A. Quick, Ron Kyle, an d Antonio

Worlds. Petitioner's Exhibits 1 and 2 were admitted in

evidence. The Department did not call any witnesses or offer

any documentary evidence. Prior to the hearing, Petitioner had

made a timely request of the Division for the issuance of

subpoe nas. However, the Division failed to furnish the

requested subpoenas to Petitioner, which resulted in Petitioner

being unable to secure the presence of DeLano McCullough at the

hearing. Because of the Division's error in not furnishing the

subpoena, Peti tioner was granted additional time to obtain a

subpoena and take McCullough's deposition, which he was too late

file. Petitioner failed to have the subpoena served on

McCullough and also failed to take McCullough's deposition.

Subsequently, since there w as no transcript to be filed with the

Division, an order was entered setting the time for proposed

findings of fact and conclusions of law to be filed. The

Department timely filed its Proposed Findings of Fact and

Conclusions of Law. Petitioner elected n ot to file proposed

findings of fact and conclusions of law.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence

adduced at the hearing, the following relevant findings of fact

are made.

1. At times pertinent to this proceeding, Petit ioner was

employed at Brevard Correctional Institution and was considered

by the Department to be qualified for the position for which he

was employed.

2 . Petitioner is a male, African - American.

3. On October 24 1994, Petitioner received a Written

Reprim and for the abuse of the Department's sick leave policy,

which had occurred on October 21, 1994, in that Petitioner,

while on authorized sick leave on October 21, 1994, attended the

Dorothy Lewis trial, without authorization from the Department.

4. Petiti oner presented no evidence to show that the

Written Reprimand issued on October 24, 1994, was issued because

of Petitioner's race or gender; rather it was issued based on a

reasonable belief that Petitioner had abused the Department's

sick leave policy by attending the Dorothy Lewis trial while out

on official sick leave.

5. Petitioner presented no evidence to support the

remaining allegations contained in the Petition for Relief filed

by Petitioner in this matter.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Subsection 120.57(1), Florida Statutes.

7. Subsection 760.10(1)(a), Florida Statutes,

provides as follows:

(1) It is an unlawful employ ment practice

for an employer:

(a) 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.

8. The Commission and the Florida courts have determined

that federal discrimination law should be used as guidance when

construing provisions of Section 760.10, Flori da Statutes. 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).

9. The United States Supreme Court established in

McDonnell - Douglass Cor poration v. Green , 411 U.S. 792, 93 S. Ct.

1817, 36 L. Ed. 2d 668 (1973), and Texas Department of Community

Affairs v. Burdine , 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed 2d

207 (1981), the analysis to be used in cases alleging

discrimination under Title VII of the U.S. Civil Rights Act of

1964, and which are persuasive in cases such as this one. This

analysis was reiterated and refined in St. Mary's Honor Center

v. Hicks , 509 U.S. 502, 113 S. Ct. 2742, 125 L. Ed. 2d 407

(1993).

10. Pursuant to this ana lysis, Petitioner has the burden

of establishing by a preponderance of the evidence a prima facie

case of unlawful discrimination. If a prima facie case is

established, the Department must articulate some legitimate non -

discriminatory reason for the actio n taken against Petitioner.

Once this non - discriminatory reason is offered by the

Department, the burden then shifts back to Petitioner to

demonstrate that the offered reason is merely a pretext for

discrimination. As stated in Hicks , before finding

disc rimination, "[t]he fact finder must believe the plaintiff's

explanation of intentional discrimination." 509 U.S. at 519.

11. In Hicks , the Court stressed that even if the fact

finder does not believe the proffered reason given by the

employer, the b urden remains with Petitioner to demonstrate a

discriminatory motive for the adverse employment action.

12. In order to establish a prima facie case, Petitioner

must establish that:

(a) He is a member of a protected group;

(b) He is qualified for the position;

(c) He was subject to an adverse

employment decision; and

(d) He was treated less favorably than

similarly - situated persons outside the

protected class.

Holifield v. Reno , 115 F.3d 1555, 1562 (11th Cir. 1997)

13. There is no dispute that Petitioner: (a) was qualified

for the position in which he served; (b) was a member of a

protected group (African - American male); and (c) was subjected to

an adverse employment action (received a written reprimand for

abuse of sick leave poli cy). However, Petitioner has failed to

produce any evidence to show that similarly situated persons

outside his class were treated more favorably. For this reason,

Petitioner has failed to establish a prima facie case.

14. However, had Petitioner e stablished a prima facie

case, the Department offered a legitimate nondiscriminatory

reason for the written reprimand, namely that the reprimand was

issued based on a reasonable belief that Petitioner abused the

Department's sick leave policy. There was n o evidence that this

explanation was pretextual.

15. Petitioner's allegations that he suffered adverse

employment actions as a result of discrimination are not

supported by a preponderance of the evidence.

RECOMMENDATION

Based on the foregoing Findi ngs of Fact and Conclusions of

Law, it is recommended that the Commission enter a final order

dismissing Petitioner's Petition for Relief.

DONE AND ENTERED this 18th day of January, 2002, 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 (850) 921 - 6847

www.doah. state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of January, 2002.

COPIES FURNISHED :

Hugh F. Brockington, II

19715 Eagles View Circle

Umatilla, Florida 32784

Violet Denise Crawford, Agency Clerk

Florida Commis sion on Human Relations

325 John Knox Road

Building F, Suite 240

Tallahassee, Florida 32303 - 4149

Gary L. Grant, Esquire

Department of Corrections

2601 Blair Stone Road

Tallahassee, Florida 32399

Louis A. Vargas, General Counsel

Department of Correction s

2601 Blair Stone Road

Tallahassee, Florida 32399 - 6563

Cecil Howard, General Counsel

Florida Commission on Human Relations

325 John Knox Road

Building F, Suite 240

Tallahassee, Florida 32303 - 4149

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 must be filed with the agency that

will issue the Final Order in this case.