02-002787 Oscar Jones vs. Coastal Maritimes Services Status: Closed Recommended Order on Monday, December 16, 2002.

Summary: Evidence did not show Respondent was terminated or not re-hired due to his race. Alleged adverse action time barred.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OSCAR JONES, )

)

Petitioner, )

)

vs. ) Case No. 02 - 2787

)

COASTAL MARITIMES SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, th is cause came on for hearing before

Diane Cleavinger, Administrative Law Judge for the Division of

Administrative Hearings, on October 2, 2002, in Jacksonville,

Florida.

APPEARANCES

For Petitioner: Oscar Jones, pro se

1817 East 27th Street

Jacksonvil le, Florida 32206

For Respondent: Peter Reed Corbin, Esquire

Richard L. Ruth, Jr., Esquire

Ford & Harrison, LLP

121 West Forsyth Street, Suite 1000

Post Office Box 41566

Jacksonville, Florida 32203

STATEMENT OF THE ISSUE

Whether Respondent discriminated against Petitioner in its

employment decisions in violation of Section 760.10, Florida

Statutes (2001).

PRELIMINARY STATEMENT

On August 18, 1999, Petitioner filed a complaint of race

discrimination against Respondent with the Florida Comm ission on

Human Relations (FCHR) pursuant to the Florida Civil Rights Act

of 1992, Section 760.01, Florida Statutes. On June 4, 2002,

FCHR, after an investigation, issued a "Notice of Determination:

No Cause" in this matter. The Determination found that there

was no reasonable cause to believe that any unlawful employment

practices had occurred in Petitioner's case. Petitioner,

thereafter, submitted a Petition for Relief pursuant to Section

760.11(8), Florida Statutes (2001). The Petition was forwarded

to the Division of Administrative Hearings.

At the hearing, Petitioner testified in his own behalf and

offered three exhibits into evidence. Respondent presented the

testimony of two witnesses and offered 12 exhibits into

evidence.

After the hearing, R espondent filed a Proposed Recommended

Order on October 25, 2002. Petitioner did not file a proposed

recommended order.

FINDINGS OF FACT

1. Petitioner, Oscar Jones (Petitioner), is a black male.

He began working for Respondent in July 1997, as a longsho reman

working on "chicken boats." In that position, Petitioner loaded

boxes of frozen chicken into the holds of refrigerated ships.

2. Respondent, Coastal Maritime Services, LLC

(Respondent), is engaged in the business of stevedoring and

seaport terminal operations, including loading and unloading

ships, and receiving cargo.

3. On May 28, 1998, Respondent injured himself when a very

heavy box of frozen chicken fell on his ankle. Other than first

aid at the worksite, Petitioner declined further medical

t reatment that day. He was given a medical form authorizing

treatment at the medical clinic which provided medical services

to injured employees who might be covered under Respondent's

workers' compensation insurance.

4. The next day, on May 29, 1998, Pet itioner sought

medical treatment for his injury at the medical facility which

handled Respondent's workers' compensation injuries. As part of

that treatment, Petitioner was asked to take a drug test and

Petitioner consented. Although no formal written dr ug test

policy was in effect by Respondent at the time of Petitioner's

injury, the general policy and practice was that a work - related

injury would subject an employee to a voluntary drug test.

5. Petitioner's drug test came back positive for

marijuana. As a result of the positive drug test result,

Respondent's insurance carrier controverted Petitioner's

workers' compensation claim. There was no evidence that

Respondent's management had any responsibility or involvement in

the carrier's decision to contr overt Petitioner's entitlement to

workers' compensation benefits.

6. During the 12 - month time period of January 1998 through

December 1998, Petitioner was not the only employee of

Respondent required to take a drug test after a work place

injury. In fact , in June 1998 (the same time period as

Petitioner's test) seven white employees were required to take a

drug test and three black employees were required to take a drug

test. For the entire 1998 calendar year, 51 total drug tests

were administered, with 31 of those tests administered to non -

black employees (for example, white or Hispanic) and only 21 of

those tests administered to black employees. Similarly, for the

entire 1998 calendar year, a total of 18 employees were not

administered drug tests, eith er because medical attention was

refused or because of the severity of the injury. Of those 18

employees, 11 were non - black employees and seven were black

employees.

7. Employees who were not required to take a drug test

either were those who refused med ical attention or who were

severely injured and had to seek treatment from hospital

emergency rooms where drug tests were not given. Clearly, race

played no factor in who was required to take a drug test or who

received a drug test.

8. Petitioner did cit e the names of two white employees,

Jay Chavers and Andy Wiley, who allegedly were treated more

favorably than Petitioner, in that those two employees did not

take a drug test. However, those two employees were not

"similarly situated" to Petitioner. Fir st, the injuries of both

Mr. Chavers and Mr. Wiley were much more serious in nature than

the contusion (bruise) that Petitioner had suffered and both

were taken to emergency rooms for their injuries where drug

tests were not routinely administered. Specif ically,

Mr. Chavers had fallen from a high distance and suffered

numerous broken bones, thus, rendering him incapable of giving

consent to a drug test at the hospital. As to Mr. Wiley, his

injuries were not subject to workers' compensation coverag e,

unlike Petitioner's. Thus, given the nature of the injuries of

Mr. Chavers and Mr. Wiley, those two individuals were not

sufficiently "similarly situated" to Petitioner to enable him to

establish a prima facie case of racial discrimination.

9. Petitio ner's positive drug test result had no other

impact on his employment with Respondent, apart from the

controversion of his workers' compensation benefits. Indeed,

Respondent attempted to get Petitioner to return to work.

10. Shortly thereafter, in early J une 1998, Petitioner

contacted the chief financial officer of Respondent, Kathleen

Wiley, who in 1998 was Respondent's office manager. Petitioner

expressed concern to Ms. Wiley about his workers' compensation

benefits and his employment status with Respon dent. Ms. Wiley

informed Petitioner that he was still considered to be employed

with Respondent and that he needed to contact Ben Brown for a

light duty assignment. Petitioner was expressly informed that

light duty work was available that would meet his medical

restrictions imposed after his injury.

11. Petitioner never followed - up with Mr. Brown about

light duty work.

12. Almost immediately thereafter in June 1998, Respondent

hired Bud Underwood as its new safety manager. Mr. Underwood's

responsibilitie s were to oversee workers' compensation cases and

follow up on accidents and injured employees. Ms. Wiley

informed Mr. Underwood to follow up on the situation of

Petitioner to get him to return for a light duty assignment.

13. In late June or early July 1 998, Mr. Underwood

contacted Petitioner as directed and offered him light duty work

within his medical restrictions. Petitioner informed

Mr. Underwood in very obscene terms that he was not going to

accept any light duty assignments. Petitioner n ever appeared

for any light duty assignments after that conversation.

14. Based upon Petitioner's response to that telephonic

offer of light duty employment, Respondent sent Petitioner a

letter around July 9, 1998, informing him that based upon his

refusal of light duty work, he had been deemed to have abandoned

his employment, and thus was no longer employed by Respondent

due to self - termination.

15. Thereafter, in September 1998, Petitioner contacted

Respondent by telephone seeking employment. However, b y that

time, opportunities for longshoremen, such as Mr. Jones were

extremely limited, as the "chicken boat" operation had all but

shut down for financial reasons, and no positions were available

at the time. Thus, Respondent sent Petitioner a letter date d

September 2, 1998, informing him that no positions were

available, but encouraging him to reapply. Despite the

invitation to Petitioner that he should reapply, Petitioner

never submitted any subsequent inquiry for employment.

16. Respondent's "chicken b oat" operation had shut down

completely by February 1999.

17. Petitioner later applied for unemployment compensation

benefits, but those benefits were denied on the ground that

Petitioner had abandoned his employment by refusing the light

duty work that wa s offered to him. In fact, in an evidentiary

hearing held in his unemployment compensation matter, the

Unemployment Appeals Referee found as a fact that Petitioner

admitted that he had refused the light duty work offered to him.

Petitioner's appeal of th at adverse decision was, likewise,

denied by the Unemployment Appeals Commission.

18. Petitioner's race played no role in Respondent's

determination that Petitioner had abandoned his employment or in

Respondent's determination that no position existed for

Petitioner in September 1998. Similarly, race played no role in

the insurance carrier's decisions regarding Petitioner's

workers' compensation benefits.

19. In fact, Petitioner voluntarily settled his workers'

compensation claim disputes in a settlement a greement signed by

him and his attorney dated March 22, 1999. Petitioner had a

family to support and needed the money. Pursuant to that

settlement agreement, Petitioner agreed to accept $4,500 in

full, final and complete settlement, release and discharge of

any and all claims against the employer arising out of

Petitioner's alleged accident, injury, and disability in issue,

including, but not limited to claims for temporary total,

temporary partial, permanent total, and/or permanent partial

disability com pensation, and past and future medical benefits.

Petitioner verified that the settlement was adequate and was not

entered into under duress. Rather, Petitioner of his own accord

thought that the settlement was in his best interest. The

Department of Lab or approved the settlement.

20. Petitioner has made no credible showing that there was

any relationship between his race and the adverse employment

actions of which he has complained.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

juri sdiction over the parties to and the subject matter of this

proceeding. Section 120.57(1), Florida Statutes (2001).

22. Petitioner is a "person" and Respondent is an

"employer" as defined within Chapter 760, Florida Statutes

(2001).

23. In discriminatio n cases alleging disparate treatment

(as opposed to disparate impact), Petitioner bears the burden of

proof established by the United States Supreme Court in

McDonnell Douglas v. Green , 411 U.S. 792, 93 S. Ct. 1817 (1973),

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

248, 101 S. Ct. 1089 (1981). Under this well - established model

of proof, Petitioner bears the initial burden of establishing a

prima facie case of discrimination. McDonnell Douglas , 411 U.S.

at 802, 93 S. Ct. at 1824; Burdin e , 450 U.S. at 252 - 253, 101

S. Ct. at 1093. Once Petitioner has done so by a preponderance

of the evidence, the "burden of production" shifts to Respondent

to "articulate some legitimate, non - discriminatory reasons" for

Respondent's action. McDonnell D ouglas , 411 U.S. at 802, 93

S. Ct at 1824; Burdine 450 U.S. at 253, 1010 S. Ct. at 1093. It

is not necessary for Respondent to actually convince the trier

of fact of its motive; rather, Respondent must only articulate

its proffered reason through "admis sible evidence." Burdine ,

450 U.S. at 253, 101 S. Ct. at 1093. If Respondent meets this

burden, Petitioner must prove by a preponderance of the evidence

that Respondent's articulated reason was not the true reason,

but was a pretext for discrimination. McDonnell Douglas , 411

U.S. at 804, 93 S. Ct. at 1825.

24. The above federal standards under Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C. Section 2000e,

et seq. , have been adopted by FCHR and the Florida courts and

are applicable to ca ses arising under Chapter 760, Florida

Statutes (2001). Florida Department of Community Affairs v.

Bryant , 586 So. 2d 1205, 1209 (Fla. 1st DCA 1991); School Board

of Leon County v. Hargis , 400 So. 2d 103, 108 (Fla. 1st DCA

1981); Jo Nees v. Delchamps, Inc . , 8 FALR 4389 (1986);

Kilpatrick V. Howard Johnson Company , 7 FALR 4368, 5477 (1985).

25. In the first step under McDonnell Douglas and Burdine ,

Petitioner must prove the existence of facts that establish a

prima facie case of unlawful discrimination. P etitioner must

generally show that: (a) he/she is a member of a protected

class (for example, black); (b) he/she was qualified and able to

perform his/her duties and did perform such duties

satisfactorily; and, (c) he/she was treated differently than

othe r similarly situated individuals not within his/her

protected group.

26. As to this last element, Petitioner's burden is to

establish that the employer treated similarly situated employees

outside Petitioner's protected class more favorably than

Petitione r. See Anderson v. WBMG - 42 , 253 F.3d 561, 564 (11th

Cir. 2001); and Holified v. Reno , 115 F.3d 1555, 1562 (11th Cir.

1997).

27. Petitioner has not met his burden of establishing a

prima facie case by a preponderance of the evidence. The

evidence present ed in this matter demonstrates that Respondent

was just as likely to test a white, injured employee for drugs

as it might test a black, injured employee. Indeed, Respondent

did conduct a balanced number of drug tests across racial lines.

Likewise, Petiti oner presented no competent evidence whatsoever

that white employees' workers' compensation claims were not

controverted, unlike Petitioner's claims on the ground of

intoxication. Furthermore, Respondent offered light duty work

to Petitioner as it did oth er employees, yet Petitioner refused

such work and abandoned his position. Thus, as to his

employment status, Petitioner suffered no "adverse action," but

instead self - terminated his employment. Finally, Petitioner

failed to demonstrate that any white em ployees were hired in

September for "chicken boat" operations, when Respondent denied

a position to Petitioner on the grounds that no available

positions were available. In sum, Petitioner has failed to

establish any nexus between his race and Respondent' s employment

actions.

28. Even if it is assumed that Petitioner had met his

prima facie burden, Respondent clearly has articulated

legitimate non - discriminatory reasons for its employment

decisions. Respondent articulated its non - discriminatory policy

fo r drug testing, and its testing data demonstrates that white

employees were just as likely to be tested as black employees.

Respondent articulated a non - discriminatory basis for its

determination that Petitioner abandoned his employment (that is,

Petition er's own representations to Respondent that he was not

going to accept light duty work and his failure to appear for

any light duty assignments even though such were available).

Respondent also articulated a non - discriminatory reasons for the

denial of em ployment to Petitioner in September 1998; namely,

financial issues forcing the shutdown of the "chicken boat"

operations in which Petitioner had worked. Finally, Respondent

articulated that all workers' compensation decisions regarding

controversion of Pe titioner's benefits on the ground of

intoxication were made by the insurance carrier and not by

Respondent's management. To that end, Petitioner's drug test

result did confirm a positive result for marijuana, providing

some credence to the asserted intoxi cation defense.

29. Petitioner also has presented no credible evidence

that Respondent's articulated reasons for its employment

decisions against Petitioner were a pretext for discrimination.

The basis for the employment decisions taken in this matter we re

well articulated, and Petitioner has made no showing that

Respondent's reasons are unworthy of credence.

30. Furthermore, with the exception of Respondent's denial

of employment to Petitioner on or about September 2, 1998,

Petitioner's other claims of alleged discrimination, as cited in

his Charge of Discrimination dated August 18, 1999, and his

Petition for Relief, have not been timely asserted. Section

760.11, Florida Statutes (2001), states that a complaint of

discrimination must be filed with the F CHR no later than 365

days of the "alleged violation." Courts interpreting this

365 - day filing limit have clearly established that this time

period is not a period of convenience, but rather, an absolute

statute of limitations which acts to bar the purs uit of claims

and allegations that are not timely asserted. Greene v.

Seminole Electric Cooperative, Inc. , 701 So. 2d 646 (Fla. 5th

DCA 1997); Digiro v. Pall Aeropower Corporation , 19 F.Supp.2d

1304 (M.D. Fla. 1998). While evidence of Respondent's drug

t esting policies and the circumstances surrounding the

termination of Petitioner's employment in July 1998 were

considered in the context of background information,

Petitioner's claims of discrimination arising out of his drug

test administered on May 29, 1 998, and his self - termination of

employment in July 1998 were not timely asserted within the

strict 365 - day time limit.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED that the Petition be dismissed.

DO NE AND ENTERED this 16th day of December, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

DIANE CLEAVINGER

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 16th day of December, 2002.

COPIES FURNISHED :

Peter Reed Corbin, Esquire

Richard L. Ruth, Jr., Esquire

Ford & Harrison LLP

121 West Forsyth Street Suite 1000

Post Office Box 41566

Jacksonville, Florida 32203

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 323 01

Oscar Jones

1817 East 27th Street

Jacksonville, Florida 32206

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have t he 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 order in this case.