02-003471 Rosemond Saint Fleur vs. Superior Protection Status: Closed Recommended Order on Friday, February 21, 2003.

Summary: Petitioner failed to establish that Respondent, his employer, had unlawfully discriminated against him on the basis of national origin.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROSEMOND SAINT FLEUR, )

)

Petitioner, )

)

vs. ) Case No. 02 - 3471

)

SUPERIOR PROTECTION, )

)

Respondent. )

)

RECOMMENDED ORDER

This case came be fore Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

December 10, 2002, at sites in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioner: Erwin Rosenberg, Esquire

Post Office Box 416433

Miami Bea ch, Florida 33141

For Respondent: Sameul A. Terilli, Esquire

Ford & Harrison LLP

100 Southeast 2nd Street, Suite 4500

Miami, Florida 33131

STATEMENT OF THE ISSUE

The issue in this case is whether, in conne ction with

Respondent’s employment of Petitioner, Respondent unlawfully

discriminated against Petitioner on the basis of his national

origin.

PRELIMINARY STATEMENT

In a Charge of Discrimination dually filed with the U.S.

Equal Employment Opportunity Comm ission (“EEOC”) on November 13,

2001, and with the Florida Commission on Human Relations

(“FCHR”) on December 5, 2001, Petitioner Rosemond Saint Fleur,

who is a black man of Haitian descent, alleged that Respondent

Superior Protection, which employs Petiti oner as a security

guard, had unlawfully discriminated against him by cutting his

hours in favor of non - Haitians. The EEOC investigated

Petitioner’s claim and, on July 24, 2002, issued a notice

stating that it was unable to conclude whether an unlawful

em ployment practice had occurred. Thereafter, Petitioner filed

a Request for Administrative Hearing with the FCHR.

On September 3, 2002, the FCHR transferred the matter to

the Division of Administrative Hearings for further proceedings,

and an administrat ive law judge (“ALJ”) was assigned to the

case. The ALJ scheduled a final hearing for October 18, 2002.

On Petitioner’s motion, the final hearing was later continued

until December 10, 2002.

At the final hearing, Petitioner testified on his own

behalf an d called four additional witness: Mona Meus, Albert

Roper, Stanley Pigniat, and Reddy Narendrakumar. Petitioner

moved eight exhibits, identified as Petitioner’s Exhibits 1A,

1B, and 2 though 7, into evidence. During its case, Respondent

presented the te stimony of Mark Elias, Peterson Acluche, David

Joseph, and George Busot. Respondent also introduced seven

exhibits, numbered 1 through 7, into evidence.

The final hearing transcript was filed on January 3, 2002.

Each party timely submitted a proposed rec ommended order, which

the undersigned considered in preparing this Recommended Order.

FINDINGS OF FACT

1. Petitioner Rosemond Saint Fleur (“Saint Fleur”), a

black man of Haitian descent, was at all times material an

employee of Respondent Superior Prote ction (“Superior”), for

whom he continued to work as a security guard at the time of the

final hearing.

2. Superior is in the business of providing security

services to federal facilities in South Florida pursuant to a

contract with an agency of the fe deral government. Superior

employs approximately 230 security guards in the Miami area.

These security guards are stationed at posts located around

Miami - Dade County in some 27 sites for whose protection Security

is responsible. It is not uncommon for s ecurity guards to be

reassigned from one post to another.

3. At the time of the 9/11 terrorist attacks, Saint Fleur

was stationed, most often, at the Brickell Plaza Federal

Building (“Brickell Plaza”). He was working a full - time

schedule, approximately 40 hours per week, as he had since

starting to work for Superior in June 2000. Saint Fleur was

well regarded by his employer and was performing his duties to

Superior’s satisfaction.

4. After 9/11, security in and around federal buildings

was stepped up in response to the resulting heightened state of

alert. Employees working in Brickell Plaza became more security

conscious, and before long some complained that the guards were,

at least in some respects, too lax. On or about September 27,

2001, a feder al official complained in writing to Superior that

unnamed security guards were not requiring employees to send

their lunch bags through the “x - ray” machine, and he requested

that corrective action be taken.

5. Coincidentally perhaps, 1 Saint Fleur’s supe rvisor

happened to observe on or about September 27, 2001, that Saint

Fleur was not thoroughly inspecting persons who triggered the

alarm in the metal detector upon entering Brickell Plaza, as

required by Superior’s security procedures. Saint Fleur was

gi ven both a verbal warning and a written reprimand for this.

6. On or about October 3, 2001, Superior received another

written complaint from its client, this one requesting that

action be taken to correct the problem of security guards

allowing persons w ho had set off the metal detector to enter the

building without further inspection. On or about this same

date, Saint Fleur’s supervisor observed Saint Fleur committing

the very infraction about which the federal agency had just

complained. Saint Fleur w as again reprimanded, orally and in

writing.

7. Within a short time, Saint Fleur was removed from his

post at Brickell Plaza; however, he was neither fired nor

immediately reassigned to another worksite. His replacement at

Brickell Plaza was a female em ployee who, as far as the record

shows, was qualified for the position. After Saint Fleur’s

removal, Security did not receive any additional complaints

about the security guards on duty in the lobby of Brickell

Plaza, where Saint Fleur had worked.

8. Fo r a period of time after being removed from Brickell

Plaza, Saint Fleur’s work hours dropped, to about 20 hours per

week. Although the record is not entirely clear, it is

reasonable to infer that this period of essentially part - time

employment lasted some 10 weeks, until late December 2001, at

which time Saint Fleur accepted a post that brought his hours

back up to 40 per week. From that point forward, Saint Fleur’s

workload remained constant. 2

Ultimate Factual Determinations

9. Superior removed Saint F leur from Brickell Plaza , not

because of his national origin or race, but because Saint Fleur

violated Superior’s security procedures at least twice within

one week, requiring that disciplinary actions be taken against

him, and also because these infractio ns occurred

contemporaneously with client complaints that security guards at

Brickell Plaza were failing to perform adequate inspections.

10. There is no credible, competent evidence that Superior

tolerated similar security breaches by non - Haitian (or other

minority or non - minority) employees. Nor does the evidence

support a finding that Superior either disciplined or reassigned

Saint Fleur as a pretext for discrimination.

11. In short, Superior did not discriminate unlawfully

against Saint Fleur.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

Sections 120.569 and 120.57(1), Florida Statutes. See also

Woodham v. Blue Cross and Blue Shield of Florida, Inc. , 829 So.

2d 891, 897 (Fla. 2002).

13. It is unlawful for an employer to discharge or

otherwise discriminate against an employee with respect to

compensation, terms, conditions, or privileges of employment,

based on the employee’s race, gender, or national origin.

Section 760.10(1)(a), Florida Statutes.

14. Federal discrimination law may properly be used for

guidance in evaluating the merits of claims arising under

Section 760.10, Florida Statutes. See Brand v. Florida Power

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

Community Affairs v. Bryant , 586 So. 2d 1205, 1209 (Fla. 1st DCA

1991).

15. In McDonnell Douglas Corp. v. Green , 4ll U.S. 792,

802 - 03 (1973), the Supreme Court of the United States

articulated a burden of proof sche me for cases involving

allegations of discrimination under Title VII, where, as here,

the plaintiff relies upon circumstantial evidence of

discriminatory intent. The McDonnell Douglas decision is

persuasive in this case, as is St. Mary’s Honor Center v. H icks ,

509 U.S. 502, 506 - 07 (1993), in which the Court reiterated and

refined the McDonnell Douglas analysis.

16. Pursuant to this analysis, the plaintiff (Petitioner

here) has the initial burden of establishing by a preponderance

of the evidence a prima f acie case of unlawful discrimination.

Failure to establish a prima facie case of discrimination ends

the inquiry. See Ratliff v. State , 666 So. 2d 1008, 1012 n.6

(Fla. 1st DCA), aff’d , 679 So. 2d 1183 (1996)( citing Arnold v.

Burger Queen Systems , 509 So. 2d 958 (Fla. 2d DCA 1987)).

17. If, however, the plaintiff succeeds in making a prima

facie case, then the burden shifts to the defendant (Respondent

here) to articulate some legitimate, nondiscriminatory reason

for its complained - of conduct. If the d efendant carries this

burden of rebutting the plaintiff's prima facie case, then the

plaintiff must demonstrate that the proffered reason was not the

true reason but merely a pretext for discrimination. McDonnell

Douglas , 411 U.S. at 802 - 03; Hicks , 509 U. S. at 506 - 07.

18. In Hicks , the Court stressed that even if the trier of

fact were to reject as incredible the reason put forward by the

defendant in justification for its actions, the burden

nevertheless would remain with the plaintiff to prove the

ultim ate question whether the defendant intentionally had

discriminated against him. Hicks , 509 U.S. at 511. “It is not

enough, in other words, to dis believe the employer; the

factfinder must believe the plaintiff's explanation of

intentional discrimination. ” Id. at 519.

19. Saint Fleur complains that his removal from Brickell

Plaza was motivated by his national origin. This is a disparate

treatment claim. To present a prima facie case of disparate

treatment using the indirect, burden - shifting method just

described, Saint Fleur needed to prove, by a preponderance of

the evidence, that “(1) he belongs to a racial minority; (2) he

was subjected to adverse job action; (3) his employer treated

similarly situated employees outside his classification more

favora bly; and (4) he was qualified to do the job.” Holifield

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

20. Saint Fleur failed to establish a prima facie case of

unlawful discrimination using circumstantial evidence. Although

he proved elements 1, 2, a nd 4, Saint Fleur produced no credible

evidence that similarly situated employees of a different

classification (either non - Haitians, other minorities, or non -

minorities) were treated more favorably than he, as was his

burden under McDonnell Douglas . See Campbell v. Dominick's

Finer Foods, Inc. , 85 F. Supp. 2d 866, 872 (N.D. Ill. 2000)( “To

establish this element, [the claimant] must point to similarly

situated non - [minority] employees who engaged in similar

conduct, but were neither disciplined nor termina ted.”). 3 For

this reason alone, Saint Fleur’s claim cannot succeed.

21. Saint Fleur likewise offered no persuasive direct

evidence sufficient to demonstrate that Superior removed him

from his post at Brickell Plaza with a discriminatory intent.

See Denn ey v. The City of Albany , 247 F.3d 1172, 1182 (11th Cir.

2001); Holifield , 115 F.3d at 1563.

22. Although Saint Fleur’s failure to meet his initial

burden obviates the need for further analysis, Superior, as

found above, proved a legitimate, nondiscrimina tory reason for

its action, and Saint Fleur failed to demonstrate that the

stated ground for his removal —— the back - to - back commission of

two disciplinable offenses in the presence of his supervisor

coupled with contemporaneous client complaints concerning the

same or similar violations by unnamed security guards at the

site —— was merely a pretext for discrimination. These

circumstances provide an independent basis for the undersigned’s

recommendation.

23. The bottom line is, Superior did not discriminate i n

this instance: Saint Fleur, the record shows, was removed from

his post at Brickell Plaza for legitimate, nondiscriminatory

reasons.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the FCHR enter a final order

dismissing Saint Fleur’s Petition for Relief.

DONE AND ENTERED this 21st day of February, 2003, in

Tallahassee, Leon County, Florida.

___________________________________

JOHN G. VAN LANINGHAM

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 21st day of February, 2003.

ENDNOTES

1 / There is little or no direct evidence that Saint Fleur was

the subject of the federal official’s contemporaneous complaint.

2 / The upshot is that, if Saint Fleur’s reduced workload were

attributable to unlawful discrimination, his actual damages

would be (in round numbers) the equivalent of 200 hours’ pay at

his 2001 rate. This figure cannot be determined, however,

because Saint Fleur did not offer any evidence concerning his

compensation.

3 / Saint Fl eur makes much of the fact that his replacement at

Brickell Plaza was, apparently, an Hispanic woman with less

seniority than Saint Fleur. There is no evidence, however, that

this woman, like Saint Fleur, had ever been disciplined for

improper performance , much less twice in one recent week. What

Saint Fleur needed to show —— but did not —— was that similarly

situated security guards outside the protected class (Haitian),

i.e. those having received two reprimands in a week’s time for

failing to follow proper inspection procedures, were not

consequently assigned to a new post, as he had been.

COPIES FURNISHED :

Erwin Rosenberg, Esquire

Post Office Box 416433

Miami Beach, Florida 33141

Sameul A. Terilli, Esquire

Ford & Harrison LLP

100 Southeast 2nd Street, Suite 4500

Miami, Florida 33131

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 Parkw ay, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this R ecommended O rder. Any exceptions

to this R ecommended O rder should be filed with the agency that

will issue the F inal O rder in this case.