02-000957 Perry A. Foster vs. Department Of Corrections Status: Closed Recommended Order on Friday, August 2, 2002.

Summary: Petitioner failed to show prima facie case of racial discrimination in his job termination; not treated disparately and did not show was qualified; still a probationary employee.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PERRY A. FOSTER, )

)

Petitioner, )

)

vs. ) Case No. 02 - 0957

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, t his cause came on for formal hearing

before P. Michael Ruff, duly - designated Administrative Law Judge

of the Division of Administrative Hearings on May 2, 2002, in

Pensacola, Florida. The appearances were as follows:

APPEARANCES

For Petitioner: P erry A. Foster, pro se

1882 Gary Circle

Pensacola, Florida 32761

For Respondent: Mark J. Henderson, Esquire

Department of Corrections

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2500

STATEMENT OF THE ISSUE

Wheth er the Petitioner' termination from employment was in

violation of Section 760.10, Florida Statutes.

PRELIMINARY STATEMENT

This cause arose on March 9, 1998, when the Petitioner was

dismissed from his position as a probationary employee of the

Florida De partment of Corrections, pursuant to Rule 60K -

4.003(4), Florida Administrative Code. The Petitioner filed a

Charge of Discrimination based upon alleged "Racial Profiling"

and the charges were investigated by the Florida Commission on

Human Relations (Comm ission). The Commission entered a

determination of "No Cause" and the Petitioner requested a

hearing in order to pursue the dispute in a formal proceeding.

The cause was ultimately assigned to the undersigned

Administrative Law Judge.

The cause came on for hearing as noticed at which the

Petitioner presented his own testimony and that of

Superintendent (Warden) Ardro Johnson, of the Department of

Corrections. The Petitioner presented six exhibits.

Petitioner's Exhibits 1, 2, 4, 5, and 6, were admitted into

evidence. Petitioner's Exhibit 6 was admitted as corroborative

hearsay only and Petitioner's Exhibit 3 was not admitted, being

excluded on grounds of irrelevance. The Respondent presented

the testimony of Warden Ardro Johnson in its case as well, an d

presented two exhibits which were admitted into evidence. Upon

concluding the hearing the parties elected to avail themselves

of the right to file Proposed Recommended Orders which were

timely filed and have been considered in the rendition of this

Reco mmended Order.

FINDINGS OF FACT

1. On March 9, 1999, the Petitioner was an employee of the

State of Florida, Department of Corrections (Department) working

as a correctional officer at the Santa Rosa County Correctional

Institution in Milton, Florida. The Petitioner was employed as

a Correctional Officer, on probationary status.

2. On February 25, 1999, the Petitioner was arrested for a

purported traffic violation by a law enforcement officer in

Escambia county. An officer of the Escambia County She riff's

Department, at approximately 1:08 a.m., on that day, observed

the Petitioner's blue Toyota Tercel run a stop sign. The

officer pulled in behind the vehicle and the vehicle made a

quick turn off the road behind a closed business establishment

and tu rned off its lights. The officer stopped near the vehicle

and approached the driver's side and asked the driver for

identification. The driver was later identified as the

Petitioner, Perry Foster. Mr. Foster told the officer that his

one - year - old son ha d torn up his driver's license. While the

officer was talking with the Petitioner the officer detected a

strong odor of marijuana emanating from inside the vehicle.

Believing a narcotic violation was taking place the officer

summoned another officer with a drug - detecting dog. The dog

detected marijuana in the vehicle. Both the Petitioner and his

passenger, Eric Adams, were placed outside the vehicle while the

investigation was continuing. Officer Price, who brought the

dog to the scene, detected the od or of marijuana on the person

of Eric Adams. Ultimately, Eric Adams allowed a search and

Officer Price retrieved a small package of marijuana from Mr.

Adams shirt pocket. Mr. Adams was arrested for "possession of

marijuana under 20 grams." The officer f ound no marijuana or

drugs inside the vehicle although the dog strongly alerted on

the driver's seat where the Petitioner had been sitting. There

was the odor of marijuana along with signs of blunt cigar usage.

Blunt cigars are typically used, hollowed o ut and packed with

marijuana to smoke marijuana, without revealing its presence and

use.

3. In any event, the Petitioner was not arrested for

possession or use of marijuana, none was found on his person,

and he was given a traffic citation and released. The friend or

family member who was his passenger was arrested for possession

of marijuana. The evidence is unrefuted that the Petitioner was

driving the vehicle with a passenger, knowing that that

passenger possessed and was using marijuana in his pres ence.

4. The Petitioner's employer, specifically Warden Ardro

Johnson, was made aware of the Escambia County Sheriff's Office

offense report that detailed the above facts and circumstances

concerning the Petitioner's arrest and the arrest of his

companion on the night in question. While the Petitioner

remonstrated that he only was charged with running a stop sign

and had not been using drugs and that he later passed a drug -

related urinalysis, that position misses the point that his

termination was not be cause of drug use. Rather, the Petitioner

was dismissed by Warden Johnson from his position as a

probationary employee pursuant to Rule 60K - 4.003(4), Florida

Administrative Code, because his employer believes that he

committed conduct unbecoming a correct ional officer.

5. The true reason the Petitioner was terminated was

because, as delineated by Warden Johnson in his letter to the

Petitioner of March 23, 1999 (in evidence as Petitioner's

Exhibit 1), the Petitioner made a personal choice to overlook,

i gnore, or fail to report a criminal violation occurring in his

immediate presence. Warden Johnson thus explained that this

leaves a clear question as to whether the Petitioner had, or

would in the future, perform his correctional officer duties in

the sam e manner by ignoring, overlooking or failing to report

infractions. Because of this and because he was a probationary

employee and thus had not yet established his full job

qualifications, the Petitioner was terminated. There is no

evidence that he was t erminated based upon any considerations of

his race. There is also no evidence that he was replaced in his

position. Moreover, there is no evidence that if he was

replaced he was replaced by a new employee who is not a member

of the Petitioner's protecte d class. The evidence that the

Petitioner was in the car at approximately 1:00 a.m., on the

morning in question with a passenger who was possessed of and

using marijuana is unrefuted and is accepted as credible.

CONCLUSIONS OF LAW

6. The Division of Ad ministrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. Sections 120.569 and 120.57(1), Florida Statutes

(2001).

7. It is an unlawful employment practice to discharge an

employee on the basis of his race. Sect ion 760.10, Florida

Statutes. In this regard, Florida law is guided by federal law

under Title VII in construing the provisions of the State's

civil rights laws, because Chapter 760, Florida Statutes, was

patterned on the federal model. See Brand v. Flor ida Power

Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA 1994); and Florida

Department of Community Affairs v. Bryant , 586 So. 2d 1205 (1st

DCA 1991).

8. In employment discrimination cases a court reviews

allegations of discrimination in accordance with the b urden

shifting standard of McDonald Douglas Corporation v. Green , 411

U.S. 792 (1973); Texas Department of Community Affairs v.

Burdine , 450 U.S. 248 (1981); and related cases.

9. Pursuant to the McDonald Douglas case, a plaintiff or

petitioner bears th e initial burden of establishing a prima

facie case of racially discriminatory conduct. If this is done,

the defendant, in this case the Respondent, must articulate some

legitimate, non - discriminatory reason for the adverse employment

action taken. If th e Respondent carries this burden to go

forward with evidence of some non - discriminatory reason, then

the Petitioner must show that the proffered reason was merely a

pretext for the Respondent's actions which were truly

discriminatory. In this regard, the Petitioner must produce

sufficient evidence to support an inference that the Respondent

employer based its decision on discriminatory criteria. The

ultimate burden of persuasion to convince a trier of fact that

there was intentional discrimination remains with the

Petitioner, however. See McDonald Douglas , supra , at 802 - 804;

Burdine , supra , at 253. See also Jones v. Bessemer Carraway

Medical Center , 137 F.3d 1306, 1310 (11th Cir. 1998).

10. In order to establish a prima facie case of

discrimination b ased upon race, the Petitioner must prove by a

preponderance of evidence that he (1) belongs to a racial

minority; (2) was subjected to an adverse employment action;

(3) that he was qualified to perform the job he held; and (4)

that his employer treated s imilarly situated employees of other

races more favorably in his employment decisions concerning

discipline or that upon the Petitioner's termination he was

replaced by an employee of another race.

11. The Petitioner herein has not established a prima

fac ie case. He has shown that he belongs to a racial minority

and that he was subjected to an adverse employment action, his

termination. He has not demonstrated, however, that similarly

situated employees of other races were treated differently and

more fa vorably under similar factual circumstances surrounding

the event of his termination. He also did not show that upon

his termination he was replaced by another employee of a non -

protected status or different race. Moreover, the record

demonstrates that h e was not qualified for his job.

Correctional officers, like other law enforcement officers, are

held to a higher standard of conduct because of their positions

serving the public trust, much as school teachers and other

professional employees occupying a position of public trust are

held, in terms of the conduct and ethical standards they must

adhere to, when compared to other employees not occupying

positions of public trust. Consequently, for a law enforcement

officer to allow, condone, ignore, or fail to report a clear

criminal violation occurring in his immediate presence, in his

vehicle, is a clear violation of the public trust and the higher

ethical standard imposed upon law enforcement officers including

correctional officers. This factual circums tance shows that he

is not qualified to be a correctional officer. Moreover, he is

not qualified as well because he was still on probationary

status and under the Department's rules, codified in

Chapter 60K - 4, Florida Administrative Code, he cannot be de emed

to be a qualified correctional officer until he has completed

his probationary status and has been accepted as a full - fledged,

career service correctional employee. Accordingly, for these

reasons the Petitioner has not proven a prima facie case and

t herefore his claim must fail for this reason.

12. Assuming arguendo that he had established a prima

facie case, the Respondent Department articulated a legitimate,

non - discriminatory reason for the termination action. The

evidence showed that indeed the Petitioner had engaged in

conduct which is not becoming a law enforcement officer,

including a correctional officer by his condoning, ignoring, and

failing to report the criminal activity referenced in the above

Findings of Fact. He allowed it to occur in his presence and

did nothing about it. It is within the Department's province

and discretion, particularly with a probationary employee, to

deem such conduct as conduct unbecoming a correctional officer,

which justifies dismissal under the above - cited ru les. In fact,

under the provisions of Rule 60K - 4.003, Florida Administrative

Code, in the case of a probationary status employee, his

termination can be without cause. Here in fact, the

preponderant evidence proves that the Department had good cause

just ifying the Petitioner's termination, given the above -

described facts.

13. The Petitioner adduced no evidence sufficient to

establish that the employer's purported non - discriminatory

reason for the termination was pretextual and in fact was done

for dis criminatory reasons. The fact that an employee disagrees

with an employer's judgment or evaluation of him does not prove

pretext. Webb v. R & B Holding Company , 992 F.Supp 1382 (SD

Fla. 1998). Indeed a Petitioner's subjective opinion that the

Respondent /Employer's action was discriminatory, without

supporting evidence is insufficient to establish pretext or

create an inference of discrimination. See St. Hilaire v. Pep

Boys , 73 F.Supp 2nd 1366 (SD Fla. 1999). There is absolutely no

evidence to show that any ill will or racial animus toward the

Petitioner was harbored by the employer, especially in the

person of Warden Johnson, nor that any other employees of

different races were given more favorable treatment than the

Petitioner. Therefore, there is no evidence to show that the

proffered reason for the termination, established by the

Respondent's evidence, was merely a pretext for a discriminatory

termination.

14. In summary, the ultimate question in such an

employment discrimination case concerns whet her the complaining

party has carried his ultimate burden of persuasion that he is a

victim of intentional discrimination. Mr. Foster produced no

evidence or testimony to establish that intentional

discrimination occurred. The Petitioner has not establis hed a

prima facie case, in terms of showing that he was treated in a

disparate way or for any of the other reasons delineated above.

Moreover, he has not advanced any persuasive evidence that the

Respondent's articulated reason for the job termination was a

pretext for discrimination. In fact, no persuasive evidence has

been presented to show that there was any intentional or

invidious discrimination on the part of the Respondent and the

Petition must therefore fail.

RECOMMENDATION

Having considered the foregoing Findings of Fact,

Conclusions of Law, the evidence of record, the candor and

demeanor of the witnesses, and the pleadings and arguments of

the parties, it is, therefore,

RECOMMENDED that a final order be entered by the Florida

Commission on Huma n Relations dismissing the subject Petition in

its entirety.

DONE AND ENTERED this 2nd day of August, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

P. MICHAEL RUFF

Administrative Law Judge

Division of Admi nistrative 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 Clerk of the

Division of Administrative Hearings

this 2nd day of August, 2002.

COPIES FURNISHED :

Mark J. Henderson

Department of Corrections

2601 Blairstone Road

Tallahassee, Florida 32399 - 2500

Perry A. Foster

1882 Gary Circle

Pensacola, Florida 32505

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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 should be filed with the agency that

will issue the Final Or der in this case.