02-002501 Alphonso Williams, Jr. vs. L. Pugh &Amp; Associates Status: Closed Recommended Order on Thursday, July 3, 2003.

Summary: Evidence insufficient to show racial discrimination--lack of corroboration of alleged attack or racial slurs. No evidence of any pay reduction or failure to pay mileage.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALPHONSO WILLIAMS, JR., )

)

Petitioner, )

)

vs. ) Case No. 02 - 2501

)

L. PUGH & ASSOCIATES, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on March 12,

2003, in Pensacola, Florida, before the Division of

Administrative Hearings by its Administrative Law Judge,

Diane Cleavinger.

APPEARANCES

For Petitioner: Frederick J. Gant, Esquire

Allbritton & Gant

322 W est Cervantes Street

Pensacola, Florida 32501

For Respondent: Michael J. Stebbins, Esquire

Michael J. Stebbins, P.L.

504 North Baylen Street

Pensacola, Florida 32501

STATEMENT OF THE ISSUE

Whether Petitioner was discriminated against by the

Respondent based on race and/or subjected to a hostile work

environment based on race in violation of Chapter 760, Florida

Statutes.

PRELIMINARY STATEMENT

On August 8, 2001, Petitioner, Alphonso Williams, Jr.,

filed a Charge of Discrimination with t he Florida Commission on

Human Relations (FCHR), alleging that Respondent, L. Pugh &

Associates, terminated him on the basis of race by creating a

hostile work environment or in retaliation for engaging in an

activity protected under Chapter 760, Florida S tatutes.

Petitioner alleged that he suffered an adverse employment action

in that he was terminated after he complained of being attacked

by Andy Pugh, subjected to racial slurs for several years, had

his pay decreased, did not receive the same mileage be nefits as

white employees, repeatedly had his company car taken away, and

was the only employee required to sign in and out. The

allegations of discrimination were investigated by FCHR, and on

May 1, 2002, FCHR issued its determination, finding "No Cause. "

On June 18, 2002, Petitioner filed his Petition for Relief.

In his petition, he reiterated the charges set forth in his

original complaint filed with FCHR. The petition was forwarded

to the Division of Administrative Hearings.

At the hearing, Petitio ner testified in his own behalf and

called three witnesses to testify. Petitioner also offered 13

exhibits into evidence. Respondent called four witnesses to

testify and offered seven exhibits into evidence. After the

hearing, Petitioner and Respondent filed Proposed Recommended

Orders on May 13, 2003, and May 9, 2003, respectively.

FINDINGS OF FACT

1. Petitioner, Alphonso Williams, Jr., is an African -

American male (Petitioner).

2. Respondent, L. Pugh & Associates (Respondent), is a

closely held comp any in the business of designing, constructing

and maintaining fire safety equipment and systems. The company

is owned by Larry Pugh and his wife Sharon Pugh. Andy Pugh, the

brother of Larry Pugh, is employed by the company as a

construction supervisor a nd spends most the day in the field

away from the company’s shop and warehouse. Soni Sully is the

company’s office manager and bookkeeper.

3. In 1997, Petitioner was hired by Larry Pugh to run

errands for him and to maintain the shop. Petitioner had lea rned

of the job opening from Johnny James, an African - American

employee of Respondent’s. Prior to being hired, the employee

warned Petitioner about Andy Pugh. The employee intended to

communicate that Andy Pugh was a hard, irascible person to work

for wh o did not tolerate mistakes, did not cut anyone any slack,

and did not speak in socially polite terms. At hearing, Andy

Pugh was described as an ex - marine sergeant. The employee did

not intend to communicate that Andy Pugh was a racist. However,

Petitio ner interpreted the employee’s remarks as such.

4. Throughout this process, Petitioner’s allegations

regarding Andy Pugh’s racial slurs towards him have grown

initially from three incidents of Mr. Pugh calling Petitioner a

"nigger" to, by the time of the hearing, daily racial

disparagement. Other than Petitioner’s testimony, there was no

evidence of such name calling or such racial disparagement being

reported by Petitioner. Contrary to Petitioner’s allegations,

there was no evidence from either Petitio ner or Respondent that

Soni Sully ever issued any racial slurs against Petitioner.

Given the lack of corroborative evidence regarding racial slurs

and their increasing frequency, Petitioner has failed to

establish that he was subjected to such racial slur s while he

was employed by Respondent.

5. Petitioner also charged that Andy Pugh would

deliberately take the company vehicle assigned to him and assign

it to someone on one of the construction crews Mr. Pugh

supervised. However, the evidence demonstrate d that none of the

company’s fleet of vehicles were assigned to any one employee.

The company’s vehicles were for use as needed by the company and

could be assigned by Andy Pugh as he needed. This policy was

explained to Petitioner many times. However, he never seemed to

understand the explanation or accept it. Indeed, Petitioner

continued to complain to Ms. Sully and Andy Pugh about "his"

vehicle being taken. Petitioner’s constant complaints on the

subject irritated Andy Pugh who did not always respon d politely

to Petitioner’s complaints.

6. Petitioner received an hourly wage and mileage for the

number of miles he drove. Initially, his hourly wage was $7.00.

Over time, his hourly wage was increased to $8.50. By his

choice, he received mileage even though he usually drove a

company vehicle because it benefited him financially to claim

mileage. No employee, including Petitioner, received both

mileage and a vehicle allowance. At some point, Respondent

instituted a company - wide policy limiting the am ount of overtime

an employee could work. Larry Pugh felt overtime billing was

out - of - control and therefore created the policy. All employees,

including Petitioner, were affected by the limitation. When

Petitioner complained of the reduction the limitati on of

overtime caused in his pay, Petitioner was treated more

beneficially than other employees and was permitted to work five

hours of overtime per week. There was no evidence that

Petitioner did not receive the mileage or the hourly pay he was

entitled to receive. Likewise, there was no evidence that

Petitioner was the only employee required to sign in and out.

7. On June 7, 2001, Petitioner again complained to Andy

Pugh about "his" vehicle being taken. At some point, words were

exchanged between And y Pugh and Petitioner. Petitioner alleged

that Andy Pugh grabbed him by throat, called him a "nigger" and

threatened to kill him. However, the details of this exchange

are unclear due to the changing story of Petitioner about those

details, the irreconci lable testimony and statements of

Petitioner and Mr. Pugh, witnesses to the altercation and the

surveillance tape of the premises during the altercation. Other

than words being exchanged, there was insufficient evidence to

show that this altercation was b ased on Petitioner’s race or

occurred in the physical manner alleged by Petitioner.

8. After talking with Sharon Pugh, Petitioner filed a

criminal complaint with the Sheriff’s Department. The details

of Petitioner's conversation with Ms. Pugh are unclea r. After

an investigation, including interviewing witnesses and reviewing

the surveillance tape, no arrest or criminal charges were filed

against Andy Pugh.

9. Petitioner was placed on paid administrative leave

until Larry Pugh, who was away, could inve stigate the incident.

Upon his return, Larry Pugh looked into the matter and decided

to terminate Petitioner mostly for filing criminal charges

against his brother, but also, in part, for other more minor

personality conflicts Petitioner had had in dealin g with others

while on company business. The evidence did not show that Larry

Pugh’s reasons for terminating Petitioner were pretextual,

retaliatory for Petitioner engaging in a protected activity or

based on race. Therefore, the Petition for Relief shou ld be

dismissed.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. Section 120.57(1), Florida Statutes.

11. Under the provisions of Section 760.10(1), Florida

Stat utes, it is unlawful employment 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, becau se of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

* * *

(7) . . . to discriminate against any

person because that person has opposed any

practice which is an unlawful employment

practice under th is section, or because that

person has made a charge, testified,

assisted, or participated in any manner in

an investigation, proceeding, or hearing

under this section.

12. FCHR and the Florida courts have determined that

federal discrimination law shoul d be used as guidance when

construing provisions of Section 760.10, Florida Statutes. See

Brand v. Florida Power Corporation , 633 So. 2d 504, 509 (Fla.

1st DCA 1994); Florida Department of Community Affairs v.

Bryant , 586 So. 2d 1205 (Fla. 1st DCA 1991).

13. The Supreme Court of the United States established in

McDonnell - Douglass Corporation v. Green , 411 U.S. 792 (1973),

and Texas Department of Community Affairs v. Burdine , 450 U.S.

248 (1981) , the analysis to be used in cases alleging

discrimination und er Title VII and which are persuasive in cases

such as the one at bar. This analysis was reiterated and

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

(1993).

14. Pursuant to this analysis, Petitioner has the burden

of establishing by a prepon derance of the evidence a prima facie

case of unlawful discrimination. If a prima facie case is

established, Respondent must articulate some legitimate,

non - discriminatory reason for the action taken against

Petitioner. Once this non - discriminatory r eason is offered by

Respondent, the burden then shifts back to Petitioner to

demonstrate that the offered reason is merely a pretext for

discrimination. As the Supreme Court stated in Hicks , before

finding discrimination, "[t]he fact finder must believe t he

plaintiff's explanation of intentional discrimination."

Hicks , 509 U.S. at 519.

15. In Hicks, the Court stressed that even if the

fact - finder does not believe the proffered reason given by the

employer, the burden remains with Petitioner to demons trate a

discriminatory motive for the adverse employment action. Id.

16. Here, Petitioner has alleged race discrimination based

on both disparate treatment, retaliation and a hostile work

environment. In order to establish a prima facie case of

disparat e treatment based upon race Petitioner must establish:

1. That he is a member of a protected

class;

2. That he was qualified for his position;

3. That he suffered an adverse employment

action; and

4. That he was treated less favorably than

similarly si tuated employees who were not

members of his protected class.

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

17. There is no dispute as to Petitioner's qualifications

or that he was a member of a protected class. Thus, the first

issue to b e analyzed is whether Petitioner suffered from adverse

employment actions. Petitioner appears to have four primary

complaints: (1) that his pay was cut; (2) that his assigned

company car was frequently taken away; (3) that he was the only

employee requir ed to sign in and out; and (4) that he did not

receive the same mileage benefits as white employees.

18. In this case, none of these allegations was shown by

the evidence to have occurred, or, if these actions occurred,

Petitioner failed to show that he w as treated less favorably

than similarly situated employees who were not members of his

protected class. Petitioner's pay was not cut. He was paid for

the number of hours he worked and at one time, unlike other

employees, received a benefit other employe es did not receive

because he was guaranteed five hours of overtime. The company’s

control on the amount of overtime an employee could work

affected all the company’s employees. Petitioner, like other

employees, always received the mileage he was entitle d to

receive. He was never entitled to receive an allowance for

driving his own vehicle on top of the mileage he received.

Petitioner never had a company car directly assigned to him.

Vehicles were used on an as needed basis. African - American, as

well as white employees, were required to sign in and out and no

one was disciplined for not doing so. Thus, a prima facie case

has not been established.

19. Moreover, even if a prima facie case had been

established, the Department articulated legitimate non -

discriminatory reasons for the alleged adverse employment

actions. Petitioner presented no evidence indicating that these

explanations were pretextual in nature.

20. Petitioner also complains of discrimination based on a

hostile work environment. A host ile work environment claim is

established upon proof that "the workplace is permeated with

discriminatory intimidation, ridicule, and insult, that is

sufficiently severe or pervasive to alter the conditions of the

victim's employment and create an abusive working environment."

Harris v. Forklift Systems, Inc. , 510 U.S. 17, 21, 114 S. Ct.

367, 126 L.Ed.2d 295 (1993). In order to establish a prima

facie case of a hostile work environment, Petitioner must show

that (1) he belongs to a protected group; (2) he has been

subject to unwelcome harassment; (3) the harassment was based on

a protected characteristic of his; (4) the harassment was

sufficiently severe or pervasive to alter the terms and

conditions of employment and create a discriminatorily abusive

work ing environment; and (5) the employer is responsible for

such environment under either a theory of vicarious or of direct

liability. Miller v. Kensworth of Dothan, Inc. , 277 F.3d 1269,

1275 (11th Cir. 2002).

21. Again, Petitioner has failed to provide ev idence that

any alleged harassment was based on race or that it permeated

the work environment.

22. Petitioner next complains of retaliation by Respondent

after he complained to Sharon Pugh. In order to establish a

prima facie case of retaliation, Peti tioner must show that

(1) he engaged in statutorily protected activity; (2) an adverse

employment action occurred; and (3) the adverse action was

causally related to his protected activities. Little v. United

Technologies , 103 F.3d 956, 959 (11th Cir. 199 7).

23. Petitioner has failed to demonstrate that he engaged

in statutorily protected activity. Section 760.10, Florida

Statutes, provides that it is unlawful to discriminate "against

any person because that person has opposed any practice which is

an un lawful employment practice under this section, or because

that person has made a charge, testified, assisted, or

participated in any manner in an investigation, proceeding, or

hearing under this section." Here, there is no evidence that

Petitioner was ret aliated against for his discussion with

Ms. Pugh. Thus, his prima facie case for retaliation

necessarily fails.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relati ons

enter a final order dismissing the Petition for Relief.

DONE AND ENTERED this 3rd day of July, 2003, in

Tallahassee, Leon County, Florida.

S

___________________________________

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearin gs

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 3rd day of July, 2003.

COPI ES FURNISHED :

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

2009 Apalachee Parkway, Suite 100

Tallahas see, Florida 32301

Frederick J. Gant, Esquire

Allbritton & Gant

322 West Cervantes Street

Pensacola, Florida 32501

Michael J. Stebbins, Esquire

Michael J. Stebbins, P.L.

504 North Baylen Street

Pensacola, Florida 32501

Alphonso Williams, Jr.

2415 Nor th "E" Street

Pensacola, Florida 32501

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 t he agency that

will issue the final order in this case.