03-004670 Fernando J. Conde vs. Walt Disney World Company Status: Closed Recommended Order on Wednesday, April 14, 2004.

Summary: Petitioner failed to prove prima facie case of sex, national origin, or age discrimination; Petitioner`s resignation not coerced; Respondent`s assignment policies not discriminatory. Recommend dismissal.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FERNANDO J. CONDE, )

)

Petitioner, )

)

vs. ) Case No. 03 - 4670

)

WALT DISNEY WORLD COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing in the above - styled case was held before

Daniel M. Kilbride, Administrative Law Judge, Division of

Administrative Hearings, on February 19, 2004, in Orlando,

Florida.

APPEARANCES

For Petitioner: Fernando J. Conde, pro se

4732 Olive Branch Road

Apartme nt No. 1205

Orlando, Florida 32811 - 7118

For Respondent: Paul J. Scheck, Esquire

Shutts & Bowen, LLP

300 South Orange Avenue, Suite 1000

Post Office Box 4956

Orlando, Florida 32802 - 4956

STATEMENT OF THE ISSUES

Whether Respondent violated Sec tion 760.10(1), Florida

Statutes (2002), by forcing the termination of Petitioner's

employment with Respondent because of his gender (male), and/or

national origin (Venezuela), and/or his age (37); and because

Petitioner alleged that younger, female lifegu ards were given

better work assignments.

PRELIMINARY STATEMENT

These proceedings were commenced by Fernando J. Conde,

Petitioner, by filing of a Charge of Discrimination against Walt

Disney World Company, Respondent, dated July 8, 2003, with the

Florida Co mmission on Human Relations (FCHR). After an

investigation, FCHR issued a Notice of Determination dated

October 2, 2003. Petitioner filed a Petition for Relief and

requested that this matter be referred to the Division of

Administrative Hearings (DOAH) f or a formal hearing. This

matter was referred to DOAH for a formal administrative hearing

on December 8, 2003. Following pre - hearing discovery, a formal

administrative hearing was held on February 19, 2004, before the

undersigned Administrative Law Judge (ALJ). At the hearing,

Petitioner testified in his own behalf and offered three

exhibits which were accepted into evidence. Respondent

presented the testimony of four witnesses, Christie Sutherland,

Jerry Davis, Darin Bernhard, and Maria Fernanda Smith; and

offered ten exhibits into evidence.

A Transcript of the hearing was prepared and filed on

March 8, 2004. Respondent filed its Proposed Recommended Order

on March 26, 2004. Petitioner has not filed his proposals as of

the date of this Recommended O rder.

FINDINGS OF FACT

1. Petitioner was employed by Respondent from November 26,

2002, until April 17 2003, in the position of deep water

lifeguard at Respondent's facility at the Grand Floridian Hotel

(Grand Floridian) located in Lake Buena Vista, Flori da. He

worked in that position until his resignation on April 17, 2003.

Petitioner is a Hispanic male, aged 37, and a member of a

protected class.

2. Respondent is an employer as defined by the Florida

Civil Rights Act of 1992 (FCRA).

3. Petitioner was hired for a full - time position to

work 40 hours per week. He normally worked a ten - hour shift,

four days a week. Petitioner never applied for any other

position or promotions during his employment.

4. All full - time lifeguards at the Grand Floridian are

covered by a collective bargaining agreement (CBA) between

Respondent and the Services Trades Council Union. A lifeguard

working at the Grand Floridian does not have to be a member or

pay dues to the union in order to be covered by the terms of the

CBA. Petitioner is not a member of the union.

5. At the time of his hire, Petitioner was provided with a

packet of materials containing Respondent's employment policies.

Respondent had a policy regarding harassment that covered all of

its employees and prohi bited all types of harassment in the

workplace, including any such behavior based on age, national

origin, and/or gender. Respondent also has an "equal

opportunity" policy that applies to all of its employees. This

policy provides that all employees shou ld be treated equally in

terms of hours, work location, and scheduling based on

seniority.

Operations at the Grand Floridian

6. Of the class of lifeguards hired at the same time,

Petitioner was the only one assigned to the Grand Floridian. At

the time of being assigned to the Grand Floridian, there were

approximately 25 lifeguards employed there. The lifeguards at

the Grand Floridian are full - time, part - time casual, or part -

time regular employees. There are also "college program"

lifeguards who perform all of the same duties as the full - time

and part - time employees. The starting times for employees are

staggered, based on the needs of the area and the time of the

year.

7. The main duties of a lifeguard at the Grand Floridian

are to ensure safety and gu ard the pools, clean the pool and

beach areas, work the cash register, and operate the marina.

8. The head supervisor of the Grand Floridian lifeguards

during Petitioner's employment was Jerry Davis. Davis has been

employed with Respondent for nine years . He has served in his

current position as the recreation operations manager for six

years. His duties in this position include supervising the

outside recreation areas, including the pools, boats, and

lifeguards at the Grand Floridian.

9. Davis plays n o role in hiring the employees that report

to him, but rather Respondent's Employee Relations Department is

responsible for hiring these employees. Davis has the authority

to terminate lifeguards that report to him. Prior to

terminating an employee, howe ver, Davis seeks the input of the

Employee Relations Department.

10. The evidence is credible that Davis is accessible to

his direct reports and makes sure that his office is always open

to them. If a lifeguard wants to speak with Davis, he will make

hims elf available to him or her.

11. As a manager, Davis has undergone training from

Respondent regarding its equal employment policies and anti -

harassment policies. He has also been trained that employees

may raise complaints about working conditions with ei ther their

manager or the Employee Relations Department. All employees are

made aware of these policies and complaint procedures as a part

of their orientation program.

12. Under Davis, the next supervisor was Darin Bernhard.

Bernhard has been employed w ith Respondent for eight years and

is currently employed as a recreation guest service manager.

Until October 2003, Bernhard was employed at the Grand

Floridian. In that capacity, Bernhard directly supervised

lifeguards, marina employees, and activities' employees.

Bernhard had continuous interaction with lifeguards throughout

the day while at the Grand Floridian. Bernhard had an open - door

policy to all employees and made himself accessible to them.

13. Under Davis and Bernhard, there were three

coordin ators who served as the immediate supervisors of the

lifeguards.

14. The weekly work schedule for lifeguards was posted on

the wall every week. Bernhard, along with Respondent's Labor

Office, was responsible for preparing this weekly schedule. The

factor s used in preparing this schedule were a scheduling bid

submitted by each employee, scheduled vacations, and operational

needs.

15. As for operational needs, Bernhard would try to give a

combination throughout the week based on full - time, part - time,

and co llege program employees and avoid having all college

program employees on duty at one time, thereby providing more

experience on each shift.

16. The CBA contains a provision stating as follows: "The

principles of seniority shall be observed in establishin g days

off and work schedules by department, location, or scheduling

pool." As a result, the schedule bids of all employees were

considered based on the seniority of the employees.

17. At the time of his hire, Petitioner spoke with

Bernhard about special scheduling requests. Specifically,

Petitioner asked to receive early shifts and weekends off. He

wanted the weekends off due to child - care issues with his son.

Bernhard informed Petitioner that he would attempt to work with

Petitioner on this, but that he was limited in what he could do

based on the seniority requirements set forth in the CBA, as

well as the fact that most of the lifeguards preferred to have

weekends off. At that point in time, Petitioner had the least

amount of seniority of all the ful l - time lifeguards, since he

was the most recently hired employee.

18. Despite the CBA restrictions, Bernhard made every

effort to provide Petitioner with at least one day each weekend

off and tried to provide him with two, whenever possible. On a

regular basis, Petitioner was scheduled to have Saturdays off.

In addition, on numerous occasions, he was given Friday,

Saturday, and Sunday off from work, in accordance with his

special request. At no time during his employment did

Petitioner ever complain to B ernhard about not getting enough

days off on the weekend.

19. Employees would occasionally complain to Bernhard

about the weekly schedule. When he received such complaints,

Bernhard would listen to their complaints and not take any

adverse action against any employee for complaining to him about

scheduling issues.

20. On occasion, lifeguards would be sent home early due

to slow business or inclement weather. This decision would be

made either by the immediate supervisor on duty or one of the

coordinators. The lifeguards would be allowed to volunteer to

go home on a "first - come, first serve" basis. No lifeguard,

however, was forced to go home early. Similarly, Bernhard did

not receive complaints from any lifeguard about being forced to

go home early.

21. The coordinators at the Grand Floridian were

responsible for making the daily rotation schedules. There were

five primary positions that the lifeguards could be assigned to

on a daily basis, consisting of two lifeguard positions at the

pool, the slide, t he marina, and cashier.

22. The coordinators made these assignment decisions based

on the people they had available that day. The primary focus

was to make sure that all of the areas were properly covered.

Such daily rotation assignments were also based on certain needs

during particular periods of the day. In addition, certain

assignments were given to certain employees if they are more

capable of performing the task. It is also not uncommon for the

daily rotation to be changed during the day based on unexpected

factors, such as absent employees.

23. In terms of shift assignments, an effort is made to

make sure that regular employees and college program employees

are working together so that the regular employees can provide

guidance when needed. Durin g a workday, most of the employees

rotate positions every 30 minutes to an hour. The rotation of

duties for the lifeguards changed on a daily basis.

24. Petitioner enjoyed working as a lifeguard because he

considered himself a stronger lifeguard than othe rs in his

department. He also described himself as the "leader of the

lifeguards."

25. All lifeguards are trained in the cashier duties, but

very few individuals are chosen to actually work as a cashier.

These cashiers undergo special training prior to p erforming

these duties. The primary attributes for a cashier are good

guest interaction and good phone skills because a cashier is

required to interact with guests, both on the telephone and in

person. This assignment also differs from the other assignme nts

in that the employee assigned to this position normally does not

rotate throughout the day to other assignments. It is not

uncommon for the same employee to serve as a cashier for an

entire day. Petitioner was sometimes assigned to work at the

marina , but not as a cashier. Petitioner never spoke with any

of his supervisors or coordinators about working more at the

marina or as a cashier.

26. Each lifeguard at the Grand Floridian was required to

complete four hours of in - service training each month, e ither at

his home resort or at another resort. Attendance at these

training sessions were tracked on a daily sign - in sheet. If a

lifeguard failed to complete his or her in - service training for

the month, he would be reprimanded.

27. Davis prepared a repr imand for Petitioner on April 1,

2003. This reprimand was the result of Petitioner's failing to

complete his in - service training hours for the month of March

2003. As a result of failing to complete this training,

Petitioner received a two - point repriman d for poor job

performance. Petitioner did not know when Davis prepared the

Poor Job Performance Memorandum dated April 1, 2003. Davis and

Petitioner did not see each other between Petitioner's accident

on March 30, 2003, and the date Petitioner signed t he Poor Job

Performance Memorandum on April 9, 2003. At the time that Davis

prepared this memorandum, Petitioner had not made any complaints

of discrimination or harassment to Davis.

28. The attendance of the lifeguards on a daily basis was

tracked by the use of an electronic swipe card. The daily

schedule and attendance of the lifeguards was also tracked on a

daily sheet completed by the coordinators. This sheet was kept

in the managers' office and was forwarded to the Respondent's

Labor Office when it was completed. Bernhard usually reviewed

these sheets on a daily basis as well. The lifeguards did not

have access to these sheets on a daily basis.

29. Under the attendance policy in the CBA, three absences

in a 30 - day period warranted a one - point writt en reprimand. An

employee had to receive three written reprimands within a 24 -

month period before he could be terminated for attendance

issues. The reasons for an absence did not make a difference

for purposes of accruing points under the policy.

30. On March 24, 2003, Petitioner called in sick and did

not appear for work. On his way home from work on March 31,

2003, Petitioner was in a car accident in a parking lot on

Respondent's property. As a result of that accident,

Petitioner's car had to be towed because it was not drivable.

Petitioner did not, however, seek medical treatment as a result

of the accident.

31. Shortly after the accident occurred, Petitioner

contacted Bernhard. He informed Bernhard of the accident and

told him that he would not be available for work the next day

because his car had been destroyed. He did not inform Bernhard

that he had been injured in any way.

32. Petitioner was absent from work on April 1, 2003,

because he had no transportation. Petitioner called in his

personal absence on April 1, 6, 7, 8, 13, 14, 15, and 16, 2003,

and was a "no show" on April 2, 2003.

33. As a result of these numerous absences, Davis made a

decision to contact Petitioner by telephone and inquire about

the reasons for these multiple absences. Pe titioner informed

Davis that he still did not have transportation. Petitioner

expressed concern to Davis that he was afraid he was going to

accrue too many points and get himself terminated. Davis

responded to Petitioner that if he did not return to work , he

would accrue points under the attendance policy. Petitioner

asked Davis if it would be better if he terminated himself or if

he was terminated by Respondent. Davis also informed Petitioner

that if he terminated himself, at some point he might be abl e to

return to his job at Respondent, though he did not guarantee him

that he could simply return. Davis made it very clear to

Petitioner that this was a decision he had to make.

34. At the time of Davis' phone call to Petitioner, he had

accrued sufficien t points under the applicable "attendance

policy" set forth under the CBA to warrant giving him a one -

point written reprimand. Davis had not been able to give the

reprimand to Petitioner, however, because he had not returned to

work. At no time had Davis ever informed Petitioner that such a

reprimand was waiting for him. In addition, such absences would

not have provided a basis for terminating Petitioner at that

point in time.

35. Petitioner contacted Davis the following day and

informed Davis that he w as going to voluntarily resign his

employment. Upon learning of this decision, Davis informed

Petitioner that he needed to return his uniform and all other of

Respondent's property prior to receiving his last paycheck. All

employees are required to retur n their uniform and Respondent's

property at the time of resignation.

36. Davis never informed Petitioner that he was being

terminated or that he had an intention of terminating him.

Similarly, Davis never told Petitioner that he had no option but

to resi gn. Davis had no problem with Petitioner returning to

work, provided he could obtain proper transportation.

37. After Petitioner's resignation, Davis completed the

required paperwork and indicated that Petitioner should be

classified as a "restricted rehi re." Davis chose this

restriction due to Petitioner's tardiness and attendance issues,

as well as his failure to take responsibility to make it to

work. This decision to categorize him as a "restricted rehire"

was not based on Petitioner's age, national origin or his

gender.

38. Petitioner visited Respondent's casting center (human

resource department) on June 17, 2003, approximately two months

after his resignation, with the intent to reapply for his prior

position. Petitioner wanted to return to his sa me position at

the Grand Floridian, working for Davis and Bernhard, as well as

working under the same coordinators.

39. On June 17, 2003, Petitioner met with Fernanda Smith,

who has served as a recruiter for Respondent for five years.

Smith was born in Bu enos Aires, Argentina, and is Hispanic. As

a recruiter, Smith is responsible for interviewing, selecting,

and hiring the strongest candidates for positions at Respondent.

She is responsible for hiring employees for all hourly, entry -

level positions.

40. The hiring process used by Respondent is the same for

both new applicants and former employees of Respondent. That

process is set forth in the "Rehire Review" policy given to each

recruiter. Once Smith is randomly assigned an applicant, she

brings them t o her office and reviews their personal data in the

computer. She then reviews the application for accuracy and

completeness. She also confirms that they are qualified to work

in the United States and their criminal background.

41. Smith reviews the cond itions of employment with the

applicant, including compensation, appearance, ability to attend

work and transportation. If the applicant was previously

employed by Respondent, Smith also reviews the application for

the reasons the employee previously left employment and the

applicant's rehire status. The different rehire statuses are

"yes rehire," "restricted rehire," and "no rehire." If a former

employee has been categorized as a "restricted rehire," Smith

then must confirm that the person is currently employed and that

he or she has been at that employment for a period of at least

six months at the time of re - application. Assuming they can

satisfy these requirements, the applicant is required to provide

an employment verification letter from their curr ent employer

within one week of the interview. At that point, the

information is forwarded to a rehire committee for

consideration.

42. On June 17, 2003, Smith interviewed Petitioner for

potential rehire with Respondent. She recalls that when she met

him in the lobby, he was very professionally dressed. Upon

entering her office, Smith reviewed the information on

Petitioner's application with him. At that point, she noticed

that he had a recent date of termination from Respondent and

asked him the reason s for his termination. Petitioner responded

that he had left his employment because of transportation

problems and that he had missed a number of days from work.

43. In reviewing Petitioner's application, she realized

that he did not meet the requirements for consideration as a

"restricted rehire." First of all, Petitioner did not offer any

evidence of current employment at the time of the interview.

Secondly, Petitioner had only been gone from Respondent for a

period of approximately two months, and thu s, did not have the

six months of continuous employment to be considered for rehire.

44. Smith shared with Petitioner that he did not meet the

minimum requirements for a "restricted rehire." Petitioner had

no idea what that designation meant. At that poi nt, Petitioner

responded by getting very upset, yelling and screaming at Smith,

standing up and pointing his finger at her. He then informed

Smith that he was going to sue Respondent for discrimination and

left her office. Petitioner did not allow Smith to make any

other comments to him.

45. Immediately after Petitioner had left the building,

Smith prepared the standard evaluation that she prepares for all

applicants she interviews, including the incident that occurred

in the interview with Petitioner.

46 . If Petitioner had allowed Smith to explain the process

and eventually provided the appropriate documentation, he might

have been considered for rehire. Based on his behavior in the

interview, however, Smith recommended that he not be considered

for rehi re, particularly for the position of lifeguard where he

would be dealing with guests on a regular basis.

Allegations of Discrimination

47. Petitioner alleges that one of the coordinators

referred to his national origin in a derogatory manner on one

occasio n. Other than this isolated alleged comment, he stated

he never heard anyone else at Respondent make any derogatory

comments about his being Hispanic or Venezuelan. Petitioner did

not complain about this comment to anyone at Respondent and

specifically d id not complain to Davis, Bernhard, or employee

relations about it. Other than this one comment by an unnamed

coordinator, Petitioner offered no evidence that any actions or

decisions were taken against him based on his national origin.

48. In support of his age discrimination claim, Petitioner

alleges that some of his co - workers referred to him once or

twice as "old." Petitioner did not offer any evidence that any

of his supervisors or coordinators ever used any of these terms

in reference to him. Peti tioner does not know whether or not he

ever discussed his age with other workers. At the time of

Petitioner's resignation, he was not the oldest lifeguard

working at the Grand Floridian. Penny Ivey and Sherry Morris

were both older than Petitioner, and D avis was born on

February 5, 1951. At the time of Petitioner's resignation,

Davis was 52 years old. Other than these alleged isolated

comments, Petitioner offered no other evidence that any actions

or decisions were taken against him based on his age.

49 . Petitioner claims that one example of gender

discrimination was that the rotation schedule was not equal. In

particular, he alleges that the "young and beautiful girls" were

preferred in the rotation schedules because they were allowed to

work in the ma rina and at the cash register more than males.

50. Petitioner alleges that Jaimy Tully, a 23 - year - old

female lifeguard, was always late. For example, Petitioner

alleges that Tully was late on March 2, 2003, based on the fact

that she was supposed to be th ere at 10:00 a.m. The daily

schedule indicates that she arrived for work at 9:30 a.m. In

reviewing the document, however, it indicates "S/C" which means

that a schedule change was made, and Tully showed up for work

half an hour early, not late, and she s till worked her scheduled

day of ten hours.

51. A schedule change would occur for several reasons,

including the need to have certain employees come in early for

an in - service session or the personal request of an employee.

It sometimes required employees to come in for work early and

other times required them to work later.

52. Petitioner similarly alleges that Tully was late on

March 22, 2003, and should have been fired for that. In

reviewing the daily schedule for that date, however, it is

evident that a schedule change was made, and Tully was scheduled

to work from 9:30 a.m. to 8:30 p.m., a regular 10 - hour day, and

that she actually worked those hours. Petitioner admitted at

the hearing that she was actually early to work and not late.

53. Petitioner alleges that Tully was late again for work

on April 7 and April 16, 2003. A review of those daily

schedules, however, reveals that Tully had a schedule change on

each of those days and that she worked the hours that she was

assigned.

54. Of all these alle gations of Tully being late to work,

Petitioner never complained to anyone about it.

55. Petitioner then alleges that Tully arrived for work

early on February 15, 2003, and that she was allowed to work

extra hours and earn overtime. On that particular occ asion,

however, Tully was called in early because she needed to attend

an in - service training session that was occurring that day.

Petitioner conceded that Tully was not late on that day.

56. Petitioner admitted that both males and females were

called in to work additional hours as lifeguards. For instance,

Michael Whitt, a male employee, was allowed to start work

earlier based on a schedule change on March 4, 2003. Similarly,

a schedule change was made involving Whitt on February 25, 2003,

and he was re quired to report to work at 11:40 a.m., not

10:00 a.m., and as a result, was not given any breaks that day.

57. Petitioner never received any discipline as a result

of being late to work or for leaving work early.

58. Petitioner claims that he suffered dis crimination on

January 12, 2003, because Tully was allowed to start work later

than he and then was allowed to work as a cashier for the

majority of the day. He claims that she should have been on a

rotation like him and that she was given more hours than he was.

59. Tully was trained as both a lifeguard and a cashier,

but she had more cashier experience than the majority of the

other lifeguards. She also had good guest - interaction and cash -

handling skills, and thus, she was placed as a cashier more than

most of the other lifeguards. The cashier assignment also

differed from the other assignments in that the employee

assigned to this position normally did not rotate throughout the

day, and it was not uncommon for the same employee to serve as a

cahier for an entire day.

60. Petitioner never spoke with any of his supervisors or

coordinators about serving as a cashier, nor did he ever

complain to Bernhard about any of his daily assignments.

61. He alleges that the woman and the "young girls" were

always plac ed at the marina. When asked to identify "these

girls," he stated he was referring to Mindy and Matt, a male

employee. In particular, Petitioner testified that on

December 25, 2002, Matt served in the marina for three

consecutive rotations on that partic ular day. He also points

out that Matt had a longer break than he did on that particular

day.

62. There was no pay differential between employees who

were assigned to work at the marina and those who worked at the

pool. Similarly, there was no pay differ ential between

employees working as a cashier and those at the pool.

63. Petitioner never made any complaints to Davis about

his weekly schedule or his daily rotation assignments.

Similarly, Petitioner never complained to Davis about any

disparate treatme nt or harassment based on his age, national

origin, or gender.

64. Petitioner never raised any complaints about

discrimination or any other working conditions with Bernhard.

Bernhard never made any derogatory comments to him or about him.

Bernhard does n ot give any preference to any employees based on

age, national origin, or gender.

65. Petitioner was aware that there was an Employee

Relations Department located at the casting center, but never

complained to them about his working conditions or alleged

d iscrimination.

CONCLUSIONS OF LAW

66. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding pursuant to Sections 120.57(1) and 120.569, and

Chapter 760, Florida Statutes (2003).

67. The State o f Florida, under the legislative scheme

contained in Chapter 760, Florida Statutes (2002), incorporates

and adopts the legal principles and precedents established in

the federal anti - discrimination laws specifically set forth

under Title VII of the Civil R ights Act of 1964, as amended.

42 U.S.C. § 2000e, et seq . The Florida law prohibiting unlawful

employment practices is found in Section 760.10, Florida

Statutes (2002). This section prohibits discrimination against

any individual with respect to compens ation, terms, conditions,

or privileges of employment because of such individual's sex,

national origin, or age. § 760.10(1)(a), Fla. Stat. (2002).

FCHR and the Florida courts interpreting the provisions of FCRA

have determined that federal discriminatio n law should be used

as guidance when construing provisions of the Act. 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, 1209 (Fla. 1st DCA 1991); Cooper v. Lake land Regional

Medical Center , 16 FALR 567, 574 (FCHR 1993).

68. Petitioner has the ultimate burden to prove

discrimination either by direct or indirect evidence. Direct

evidence is evidence which, if believed, would prove the

existence of discrimination without inference or presumption.

Carter v. City of Miami , 870 F.2d 578, 581 - 82 (11th Cir. 1989).

Only blatant remarks, whose intent could be nothing other than

to discriminate, constitute direct evidence of discrimination.

Id. at 582; See Earley v. Cha mpion International Corporation ,

907 F.2d 1077, 1081 (11th Cir. 1990). There is no record of any

direct evidence of discrimination on the part of Respondent's

supervisors. There is only one instance offered as evidence

that a national origin - related comm ent or slur was made by a

coordinator. This appears to have been an isolated incident.

Petitioner has not presented any documentary evidence which

would constitute direct evidence of discrimination.

69. Absent any direct evidence of discrimination, the

Supreme Court established, and later clarified, the burden of

proof in disparate treatment cases in McDonnell Douglas Corp. v.

Green , 411 U.S. 792 (1973), and Texas Department of Community

Affairs v. Burdine , 450 U.S. 248 (1981), and again in the case

of S t. Mary's Honor Center v. Hicks , 509 U.S. 502, 113 S. Ct.

2742 (1993). FCHR has adopted this evidentiary model.

Kilpatrick v. Howard Johnson Co. , 7 FALR 5468, 5475 (FCHR 1985).

McDonnell Douglas places upon Petitioner the initial burden of

proving a pri ma facie case of race or color discrimination. See

also Davis v. Humana of Florida, Inc. , 15 FALR 231 (FCHR 1992);

Laroche v. Department of Labor and Employment Security , 13 FALR

4121 (FCHR 1991).

70. Judicial authorities have established the burden of

proof for establishing a prima facie case of discriminatory

treatment. Petitioner must show that:

a. The Petitioner is a member of a

protected group;

b. The Petitioner is qualified for the

position; and

c. The Petitioner was subject to an

adv erse employment decision (Petitioner was

terminated or forced to resign);

d. The position was filled by a person of

another gender, national origin or age or

that he was treated less favorably than

similarly - situated persons outside the

protected class ;

e. There must be shown by the evidence

that there is a causal connection between a.

and c.

Crapp v. City of Miami Beach , 242 F.3d 1017, 1020 (11th Cir.

2001); Canino v. EEOC , 707 F.2d 468 (11th Cir. 1983); Lee v.

Russell County Board of Education , 684 F.2d 769 (11th Cir.

1982), appeal after remand, 744 F.2d 768 (11th Cir. 1984); Smith

v. Georgia , 684 F.2d 729 (11th Cir. 1982); Samedi v. Miami - Dade

County , 134 F. Supp. 2d 1320 (S.D. Fla. 2001).

71. Proving a prima facie case serves to eliminate the

most common non - discriminatory reasons for Petitioner's

disparate treatment. See Teamsters v. U.S. , 431 U.S. 324, 358,

n. 44 (1977). It is not, however, the equivalent of a factual

finding of discrimination. It is simply proof of actions taken

by the e mployer from which discriminatory animus is inferred

because experience has proved that, in the absence of any other

explanation, it is more likely than not that those actions were

bottomed on impermissible considerations. The presumption is

that more oft en than not people do not act in a totally

arbitrary manner, without any underlying reason, in a business

setting. Furnco Construction Corp. v. Waters , 438 U.S. 567, 577

(1978).

72. Once Petitioner has succeeded in proving all the

elements necessary to e stablish a prima facie case, the employer

must then articulate some legitimate, nondiscriminatory reason

for the challenged employment decision. The employer is

required only to "produce admissible evidence which would allow

the trier of fact rationally t o conclude that the employment

decision had not been motivated by discriminatory animus ."

Texas Department of Community Affairs v. Burdine , supra , at 257.

The employer "need not persuade the court that it was actually

motivated by the proffered reasons . . . [i]t is sufficient if

the [employer's] evidence raises a genuine issue of fact as to

whether it discriminated against the plaintiff." Id. at 254.

This burden is characterized as "exceedingly light." Perryman

v. Johnson Products Co., Inc. , 698 F.2d 1138, 1142 (11th Cir.

1983).

73. Once the employer articulates a legitimate reason for

the action taken, the evidentiary burden shifts back to

Petitioner who must prove that the reason offered by the

employer for its decision is not the true reason, but is merely

a pretext. The employer need not prove that it was actually

motivated by the articulated non - discriminatory reasons or that

the replacement was more qualified than Petitioner. Texas

Department of Community Affairs v. Burdine , supra , at 257 - 8.

7 4. In Burdine , the Supreme Court emphasized that the

ultimate burden of persuading the trier of fact that Respondent

intentionally discriminated against Petitioner, remains at all

times with Petitioner. Texas Department of Community Affairs v.

Burdine , s upra , at 253. The Court confirmed this principle

again in St. Mary's Honor Center v. Hicks , supra , at 2742.

75. In the case sub judice , Petitioner has failed to

produce any direct evidence of sex, national origin, or age

discrimination. Scott v. Suncoas t Beverages , 295 F.3d 1223,

1227 (11th Cir. 2002); Damon v. Fleming Supermarkets of Florida,

Inc. , 196 F.3d 1354, 1359 (11th Cir. 1999); Pashoian v. GTE

Directories , 208 F. Supp. 2d 1293 (M.D. Fla. 2002). In

addition, in order for a statement to constitut e direct evidence

of discrimination, it must be made by the decision - maker, must

specifically relate to the challenged employment decision, and

must reveal blatant discriminatory animus . Jones v. Bessemer

Carraway Medical Center , 137 F.3d 1306, modified , 151 F.3d 1321

(11th Cir. 1998). Petitioner has not offered any statements by

any of the potential decision - makers in this case, namely Davis

or Bernhard, that made any reference to his age, national

origin, or gender. Further, Petitioner did not offer an y

statements by any of the decision - makers that relate to his

alleged forced resignation. The only remote comment that was

offered was an alleged comment by an unnamed coordinator in

reference to his national origin, but that comment clearly had

nothing t o do with the reasons for his leaving his employment

and was not made by a decision - maker. Based on the absence of

any such evidence, Petitioner cannot prove his claim of

discrimination by the use of direct evidence.

76. Applying the standards for a prim a facie case set

forth in McDonnell Douglas , Petitioner satisfies the element of

being a member of two protected classifications under Section

760.10(1)(a), Florida Statutes (2002). Specifically, he is a

male and he is Venezuelan. As for the second prong of the prima

facie case, an "adverse action" for purposes of this analysis

does not include every aspect of an employee's employment, but

rather is limited to an "ultimate" employment decision, such as

hiring, firing, granting leave, promoting and compens ating

employees. Mattern v. Eastman Kodak Company , 104 F.3d 702 (5th

Cir. 1997); Landgraf v. USI Film Products , 968 F.2d 427 (5th

Cir. 1992), aff'd , 511 U.S. 244 (1994).

77. The credible evidence establishes that Petitioner

voluntarily resigned his employ ment at Respondent. The

testimony of Davis establishes that Petitioner asked Davis

whether it would be better for him to terminate himself due to

his on - going and prolonged absenteeism issues. Davis informed

Petitioner that voluntary resignation is alway s a better option

than involuntary termination. As a result, Petitioner made the

decision on April 17, 2003, to voluntarily resign his employment

as a lifeguard at the Grand Floridian. As such, Petitioner was

not subjected to any adverse employment actio ns, and thus, he

cannot establish this second element of the prima facie case.

78. Petitioner alleged in his Petition for Relief that the

adverse employment action to which he was subjected was that he

was forced to resign his employment. Petitioner did n ot allege

in this Petition for Relief that the decision not to rehire him

was discriminatory in any way. As for that decision, Petitioner

had been designated as a "restricted rehire," in accordance with

the Respondent's established policies. As a result, he did not

satisfy the qualification of six months of continuous employment

as of June 17, 2003, the date he reapplied for employment.

Furthermore, his threatening and unprofessional behavior during

the interview disqualified him from any consideration a t that

point as well. Thus, this decision does not provide any

additional evidence to support his claims of discrimination. To

the extent that Petitioner has attempted to argue constructive

discharge, he has failed to demonstrate that Respondent

intentio nally rendered his working conditions so intolerable

that he felt compelled to quit involuntarily. Steele v.

Offshore Shipbuilding , 867 F.2d 1311, 1317 (11th Cir. 1989);

Buckley v. Hospital Corporation of America, Inc. , 758 F.2d 1525,

1530 (11th Cir. 1985 ). He has similarly failed to establish

that his working conditions were so difficult or unpleasant that

a "reasonable person in the employee's shoes would have felt

compelled to resign." Garner v. Wal - Mart Stores, Inc. , 807 F.2d

1536, 1539 (11th Cir. 19 87). See also Watkins v. Bowden , 105

F.3d 1344 (11th Cir. 1997).

79. The credible evidence submitted at the hearing

establishes that Petitioner's separation was the result of his

voluntary resignation. The unrebutted evidence is that because

of Petitione r's repeated and excessive absences from work, Davis

spoke with him and told him that his continued absences could

lead to disciplinary action. At no time, however, did Davis or

anyone else at Respondent's ever inform Petitioner that he was

terminated or that he had to resign. In addition, no working

conditions at Respondent's were so intolerable that a reasonable

person would have felt compelled to resign. Petitioner

repeatedly stated during the hearing that "I love to work in

Disney World." He also te stified that he was prepared on

June 17, 2003, to return to work at the same location, and he

had no problem working for the exact same supervisors.

Furthermore, he testified during the hearing that he never

specifically complained to Davis, Bernhard, or the Employee

Relations Department about any of these alleged working

conditions, despite the fact that each had an "open door" policy

for making such complaints. As such, it is impossible for

Petitioner to now attempt to claim that he was constructively

d ischarged from his employment at Respondent.

80. As for the third prong of the prima facie case,

Petitioner must show that he and other employees that were

"similarly situated" in all relevant respects were treated

differently and that he was treated less favorably. Holifield

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

such a determination, consideration must be given to "whether

the employees are involved in or accused of the same or similar

conduct and are disciplined in different wa ys." Id. In

addition, a claim of discriminatory discipline requires a

showing that the misconduct for which the employee was

disciplined was "nearly identical" to that engaged in by an

employee outside the protected class and that employee was

discipline d differently. Jones v. Winn - Dixie Stores, Inc. ,

75 F. Supp. 2d 1357, 1364 (S.D. Fla. 1999).

81. Petitioner has not submitted any evidence that

Respondent treated other employees differently than the way that

he was allegedly treated. He has made referen ces to a younger,

female employee, Jaimy Tully, and claims that she was allowed to

arrive at work late and was given more work hours. A review of

the time records, however, clearly establishes that Tully was

not late on the dates referenced by Petitioner, but rather

arrived for work early on each such occasion, and did so as a

result of schedule changes made by her coordinators. But even

if she had been late to work, the fact remains that Petitioner

admittedly was never disciplined for being late to work, and

thus, this evidence has no relevance to show disparate treatment

to a "similarly situated" individual.

82. As for Petitioner's allegations regarding his daily

rotation assignments, he testified during the hearing that he

preferred to serve as a lifegu ard and that he felt he was, in

fact, the best lifeguard. As for the assignments to the marina,

Petitioner testified that he never requested more assignments to

the marina and admitted that both males and females were

assigned to the marina.

83. As for th e assignment of Tully to the position of

cashier, the record evidence establishes that she had been

specifically trained for that position and that she possessed

the requisite guest - interaction and phone skills for the

position, skills which Petitioner has not demonstrated he

possessed. In addition, the person at the cashier position,

including Tully, would usually serve in that position for an

entire day because that was the customary policy to maintain

continuity in that position, a fact that Petitioner has not

refuted. Furthermore, the record evidence reveals that

Petitioner never complained to Davis, Bernhard or the Employee

Relations Department about any of these assignments and,

specifically, never requested to serve as a cashier.

84. The unrefutted testimony also reveals that weekly work

schedules were developed based primarily upon the seniority of

the employees, and Petitioner was the lifeguard with the least

amount of seniority. Despite this fact, Bernhard accommodated

Petitioner's request and ar ranged for him to have multiple days

on the weekends off, including some weekends where he did not

work at all. Rather than suffering disparate treatment,

Petitioner was actually given preferential treatment in terms of

his weekly work schedule.

85. The o nly actual discipline that Petitioner ever

received was on April 1, 2003. That discipline was the result

of Petitioner's failing to satisfy his in - service training

requirements for the previous month of March 2003. Though

claiming that he did not receive this reprimand until April 9,

2003, Petitioner does not refute that he had failed to

accumulate the appropriate training hours. Just as

significantly, however, he has not put forth any evidence that

other employees, namely any female or non - Hispanic empl oyees,

failed to satisfy these requirements and did not receive any

discipline for it. Therefore, he has again failed to put forth

"similarly situated" individuals who were treated differently

based on their gender or national origin. Consequently,

Petit ioner has failed to satisfy this prima facie element.

86. Under the modified McDonnell Douglas test, Petitioner

can establish a prima facie case of age discrimination by

showing that: (1) he is a member of a protected class; (2) he

suffered an adverse emp loyment action; (3) he received disparate

treatment from other similarly - situated individuals in a non -

protected class; and (4) there is sufficient evidence of bias to

infer a causal connection between his age and the disparate

treatment. Andrade v. Morse Operations, Inc. , 946 F. Supp. 979

(M.D. Fla. 1996). As for the first element of the prima facie

case, FCHR has expanded the scope of protection under Chapter

760, Florida Statutes (2002), for individuals subject to its

provisions, thereby providing prot ection for persons of all

ages. Sims v. Niagara Lockport Industries, Inc. , 8 FALR 3588

(FCHR 1989). Thus, Petitioner is a member of a protected class

based on his age.

87. As discussed in detail above, Petitioner has failed to

present sufficient eviden ce regarding the remaining elements

necessary to establish a prima facie case. In addition, with

the exception of one set of alleged comments by a few

unidentified co - workers, Petitioner has submitted no evidence,

whether it be direct, circumstantial or s tatistical of any

alleged age - based discrimination. This evidence raises no

inference of discriminatory intent, and thus, Petitioner has

failed to establish a prima facie case of age discrimination.

88. Assuming, arguendo , that Petitioner had satisfied hi s

burden of establishing a prima facie case, the next burden is

that of Respondent to articulate some legitimate, non -

discriminatory reason for the adverse action that it took.

Respondent need not persuade the trier of fact that it was

actually motivated by the proffered reasons, but must merely set

forth, through the introduction of admissible evidence, the

reasons for those actions. Texas Department of Community

Affairs v. Burdine , supra at 254 - 255; Pashoian , supra at 1309.

The employer bears a burden of production, but not a burden of

persuasion, and need only provide the finder of fact a specific

legitimate reason why the decision was non - discriminatory.

Alexander v. Fulton County, Georgia , 207 F.3d 1303 (11th Cir.

2000).

89. In the instant case, Res pondent offered credible

testimony that Petitioner was given his two - point warning on

April 1, 2003, based on his failure to participate in mandatory

in - service training. Other than this disciplinary action,

Petitioner was not subjected to any other actua l discipline or

adverse treatment. Though the record evidence indicates that he

was going to receive an additional reprimand upon his return to

work for having violated the absentee provisions of the

applicable CBA contract, Petitioner chose to voluntaril y resign

before any such discipline could be provided to him. Therefore,

Respondent has more than satisfied its requirement of

articulating legitimate, non - discriminatory reasons for its

actions.

90. Thereafter, Petitioner retains the burden of

persuasion and must prove by a preponderance of the evidence

that the legitimate reasons offered by Respondent were not its

true reasons, but rather were a pretext for intentional

discrimination. Burdine , at 253. Thus, the ultimate burden of

persuading the trier o f fact that Respondent intentionally

discriminated against Petitioner remains at all times with

Petitioner. Id. Indeed, even when the non - discriminatory

reason articulated by a respondent has been demonstrated by the

petitioner to be false, the petitione r must still prove that the

adverse action truly was based upon unlawful discrimination.

St. Mary's Honor Center v. Hicks , supra , at 518 - 519 (1993).

91. Petitioner cannot satisfy his burden of persuasion by

making mere conclusory allegations of discrimina tion or basing

them upon his subjective belief as to unlawful discrimination.

Samedi , 134 F. Supp. 2d at 1346. Furthermore, in the absence of

evidence of intent to discriminate, courts and administrative

agencies are "not in the business of adjudging whe ther

employment decisions are prudent or fair," but rather "whether

unlawful discriminatory animus motivates a challenged employment

decision." Pashoian , supra , at 1309; Chapman v. AI Transport ,

229 F.3d 1012, 1031 (11th Cir. 2000).

92. Petitioner has utt erly failed to show that any adverse

employment action was taken against him since he voluntarily

resigned his employment in April 2003. Furthermore, the one

written reprimand that he did receive was based on his failure

to comply with established policie s that were equally applied to

all employees. Respondent's policies clearly prohibit

discrimination and harassment against all employees based on

gender, age, or national origin, and guarantee equal employment

opportunities to all employees. As such, Pet itioner utterly

failed to raise any credible evidence to support his claim that

any actions by Respondent were pretextual.

93. Petitioner has failed to show that his decision to

resign was made due to discriminatory actions on the part of

Respondent, and t hus, there has been no showing that Respondent

violated Section 760.10(1), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final orde r which DENIES Petitioner's Petition for

Relief and dismisses his complaint.

DONE AND ENTERED this 14th day of April, 2004, in

Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

Administrative Law Judge

Division of A dministrative 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 14th da y of April, 2004.

COPIES FURNISHED :

Fernando J. Conde

4732 Olive Branch Road

Apartment No. 1205

Orlando, Florida 32811 - 7118

Paul J. Scheck, Esquire

Shutts & Bowen, LLP

300 South Orange Avenue, Suite 1000

Post Office Box 4956

Orlando, Florida 328 02 - 4956

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

Tallahassee, F lorida 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 this Recommended Order should be filed with the agency that

will issue the final order in this case.