02-004812 Fabian L. Dixon vs. Department Of Children And Family Services Status: Closed Recommended Order on Wednesday, July 23, 2003.

Summary: The Petitioner failed to introduce evidence to show that the employer`s reason for discharge was pretextual.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FABIAN L. DIXON, )

)

Petitioner, )

)

vs. ) Case No. 02 - 4812

)

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held pursuant to notice in the above -

styled case by Stephen F. Dean, assigned Administrative Law

Judge of the Division of Administrative Hearings, on

June 30, 2003, in Chattahoochee, Florida.

APPEARANCES

For Petitioner: Fabian L. Dixon, pro se

4364 Century Road

Greenwood, Florida 32443

For Respondent: Kathi Lee Kilpatrick, Esquire

Florida State Hospital

Department of Children

and Family Ser vices

Post Office Box 1000

Chattahoochee, Florida 32324 - 1000

STATEMENT OF THE ISSUE

Whether Petitioner was discriminated against based on his

race in violation of Chapter 760.10, Florida Statutes.

PRELIMINARY STATEMENT

On May 20, 2002, Petitio ner filed a charge of

discrimination claiming that he was discharged because of his

race. On November 5, 2002, the Florida Commission on Human

Relations issued a "Notice of Determination: No Cause" in this

case. The Notice held that there was no reasona ble cause to

believe that an unlawful employment practice had occurred in

Petitioner's case. Petitioner disagreed with the Commission's

determination and requested a formal administrative hearing on

December 10, 2002, and Petitioner's request for hearing was

forwarded to the Division of Administrative Hearings on

December 16, 2002.

At the hearing, Petitioner testified in his own behalf and

presented one witness, but did not present any exhibits.

Respondent offered one testimonial witness and introduced tw o

exhibits into evidence.

The parties submitted Proposed Recommended Orders which

have been read and considered in preparation of this Recommended

Order.

FINDINGS OF FACT

1. Petitioner, Fabian L. Dixon, is an African - American

male.

2. At all times rele vant to this Petition, Petitioner was

employed by the Florida Department of Children and Families as a

Unit Treatment and Rehabilitation Specialist – Forensic

Corrections at Florida State Hospital, Chattahoochee, Florida.

3. Petitioner was aware of Florid a State Hospital’s strict

policies regarding Falsification of Records or Statements;

Willful Violation of Rules, Regulations or Policies and Conduct

Unbecoming a Public Employee. Petitioner was also aware that

violations of such policies could result in d ismissal of the

employee. Violations of these policies had resulted in

dismissal of both non - minority and minority employees in the

past.

4. On June 22, 2001, at 8:32 a.m. and 8:33 a.m., Unit 21

received two faxed copies of Inter Agency Leave Transfer forms

from Petitioner, each donating twenty - four hours of sick leave

for a total of forty - eight hours and both purportedly signed by

Norman Torres. Mr. Torres subsequently discovered that over

twenty - four hours had been deducted from his sick leave balan ce,

and discovered that forty - seven hours had been used by Fabian L.

Dixon. Mr. Torres then informed his timekeeper that he only

donated twenty - four hours of sick leave to Petitioner. In

reviewing the sick leave donation forms it appeared the date was

ch anged on one of the forms, then the two forms were faxed to

Unit 21. Written statements from Mr. Torres indicated that he

only donated twenty - four hours of sick leave to Petitioner.

5. Because of the serious nature of the violation, and

given Petitione r's past history of discipline, Respondent

terminated Petitioner on September 21, 2001. The employment

decision was not based on Petitioner's race and was consistent

with Respondent’s disciplinary policy.

6. On October 1, 2001, AFSCME elected to file a g rievance

on behalf of Petitioner under the provisions of the Master

Contract between the State and the American Federation of State,

County and Municipal Employees. The grievance was initially

reviewed by the Department of Children and Family Services and

it was determined that there was cause for Petitioner’s

dismissal. The grievance was then appealed to Step 3 of the

grievance procedure, which provided for review of agency action

by the Department of Management Services. The issue determined

at Step 3 was whether the Department had just cause to

discipline Petitioner. Review of the Department’s actions

revealed that the Department had just cause to discipline

Petitioner and that the penalty imposed was within the range for

each charged violation. The grievance and relief requested was

denied. On December 4, 2001, a “Request for Arbitration” was

filed by AFSCME on behalf of Petitioner and a hearing was

scheduled for June 2, 2003. On May 20, 2003, AFSCME filed a

Notice of Withdrawal of Arbitration. In response to the notice,

the hearing was cancelled and an Order Closing the File of the

Department of Management Services was issued on May 20, 2003.

7. At hearing, Petitioner admitted that he altered the

Inter Agency Leave Transfer Form, but contended that the

hospital did not terminate other white employees for similar

offenses. However, Petitioner failed to present any independent

testimony to corroborate this claim and made absolutely no

showing that there was any relationship between his race and h is

termination.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has

jurisdiction over the subject matter and parties in this case.

9. Under the provisions of Section 760.10, Florida

Statutes, it is an unlawful employment p ractice for an employer:

(1)(a) [T]o discharge or to fail to 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.

10. Florida Commission on Human Relations and the Florida

courts have determined that federal discrimination law should be

used as guidance when construing provisions of Section 76 0.10.

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).

11. The Supreme Court of the United States established in

McDonnell - Douglass Corp oration 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 under Title VII and which are persuasive in cases

such as the one at bar. This analy sis was reiterated and

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

(1993).

12. Pursuant to this analysis, 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, Respondent must articulate some legitimate,

non - discriminatory reason for the action taken against

Petitioner. Once this non - discriminatory reason 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 the

plaintiff's explanation of intentional discrimination." 509

U.S. at 519.

13. 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 demonstrate a

discriminatory motive for the adverse employment action. Id.

14. Here, P etitioner has alleged race discrimination based

on disparate treatment. In order to establish a prima facie

case of disparate treatment based upon race, Petitioner must

establish: (1) That he is a member of a protected class;

(2) That he was qualifie d for his position; (3) That he suffered

an adverse employment action; and (4) That he was treated less

favorably than similarly situated employees who were not members

of his protected class. Holifield v. Reno , 115 F.3d 1555, 1562

(11th Cir. 1997).

15. Section 760.10, Florida Statutes, provides that race

is a protected class. There is no dispute as to Petitioner's

being African - American or being qualified for the position he

held, or that his discharge was an adverse employment action.

16. In this case, Respondent showed a legitimate reason

for discharging Petitioner. Petitioner failed to show disparate

treatment based upon race. There was absolutely no evidence of

a nexus between Respondent's discharge and Petitioner's race.

Petitioner failed to establish that he was treated less

favorably than similarly situated employees who were not members

of his protected class and Petitioner did not establish a

prima facie case, Petitioner's charge of discrimination should

be dismissed.

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 b e entered by the Florida Commission on

Human Relations dismissing the Petition for Relief in its

entirety.

DONE AND ENTERED this 23rd day of July, 2003, in

Tallahassee, Leon County, Florida.

S

___________________________________

STEPHEN F. DEAN

Admi nistrative 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 23rd day of July, 2003.

COPIES FURNISHED:

Fabian L. Dixon

4634 Century Road

Greenwood, Florida 32443

Kathi Lee Kilpatrick, Esquire

Florida State Hospital

Department of Children

and Family Services

Post Office Box 1000

Chattahoochee, Florida 32324 - 1000

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalach ee Parkway, 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 Recommended Order. Any exceptions

to thi s Recommended Order should be filed with the agency that

will issue the final order in this case.