03-004711 Henry L. Roberts vs. Argenbright Security, Inc. Status: Closed Recommended Order on Tuesday, December 21, 2004.

Summary: Petitioner failed to prove age or race discrimination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HENRY L. ROBERTS, )

)

Petitioner, )

)

vs. ) Case No. 03 - 4711

)

ARGENBRIGHT SECURITY, INC., )

)

Respondent. )

)

RECOMMENDED ORDER AF TER REMAND

Purs uant to notice, the Division of Administrative

Hearings, by its duly - designated Administrative Law Judge,

Daniel M. Kilbride, conducted a formal hearing on April 22,

2004, in Orlando, Florida. Following transmittal of the

Recommended Order on June 25, 200 4, to the Florida Commission on

Human Relations (FCHR) and the filing of exceptions, the FCHR

issued an Order Remanding Petition for Relief from an Unlawful

Employment Practice dated November 4, 2004, directing this

Administrative Law Judge to consider Pet itioner’s Proposed

Recommended Order and, upon review, issue a new Recommended

Order.

APPEARANCES

For Petitioner: Wayne Johnson, Esquire

DeCiccio, Johnson, Herzfeld & Rubin

652 West Morse Boulevard

Winter Park, Florida 32789

For Res pondent: John S. Snelling, Esquire

James P. Ferguson, Jr., Esquire

Duane Morris, LLP

1180 West Peachtree Street, Suite 700

Atlanta, Georgia 30309

STATEMENT OF THE ISSUES

Whether Respondent unlawfully terminated the employment o f

Petitioner on July 31, 2000, because of his race and/or age in

violation of the Florida Civil Rights Act of 1992, Subsection

760.10(1), Florida Statutes (2000).

PRELIMINARY STATEMENT

On June 11, 2001, Petitioner, Henry L. Roberts, commenced

these proc eedings by filing a Charge of Discrimination against

Respondent, Argenbright Security, Inc., with the FCHR. After

conducting an investigation, the FCHR issued a Notice of

Determination dated September 23, 2003, in which it found "no

reasonable cause" to s upport Petitioner's allegations of

discrimination. On or about October 28, 2003, Petitioner timely

filed a Petition for Relief and requested that this matter be

referred to the Division of Administrative Hearings (DOAH) for a

formal hearing. This matter was referred to DOAH on December 1,

2003, and discovery ensued.

Following pre - hearing discovery, a formal administrative

hearing was held on April 22, 2004, before the undersigned

Administrative Law Judge. At the final hearing, Petitioner

testified on hi s own behalf and offered 19 exhibits, which were

accepted into evidence. Petitioner's Exhibit 4 was admitted

into evidence subject to hearsay objection. Petitioner's

Exhibit 4 is determined to be hearsay. Respondent offered the

deposition testimony of P etitioner's supervisor, Jerry

Buckwalter (Buckwalter), and a total of 14 exhibits

were accepted into evidence. Respondent's Exhibits 9, 13,

and 14 were admitted into evidence subject to a hearsay

objection. Respondent's Exhibit 9 is admissible for the li mited

purpose that Petitioner's supervisor received a complaint in

regard to Petitioner's handling of the account. Petitioner's

objection to Respondent's Exhibits 13 and 14 is overruled. The

parties requested that proposed findings of fact and conclusion s

of law be submitted 20 days after the filing of the transcript.

Said request was granted. A Transcript of the final hearing was

prepared and filed with DOAH on May 7, 2004. Petitioner filed

his Proposed Recommended Order on May 27, 2004, and Responden t

filed its Proposed Recommended Order on May 27, 2004, as well.

On June 25, 2004, a Recommended Order was transmitted to

FCHR. Both Petitioner and Respondent filed exceptions. On

November 4, 2004, the FCHR issued an Order Remanding Petition.

Following the issuance of the above Order, the undersigned

issued an Order Reopening File dated November 15, 2004. On

November 12, 2000, Petitioner filed a Motion for

Disqualification/Recusal and Respondent filed a response

thereto. The undersigned Administrative Law Judge issued an

Order Denying Petitioner’s motion on November 18, 2004.

Following the reopening of this case file, the undersigned

reviewed the entire file in this matter and Petitioner’s and

Respondent’s previously - filed Proposed Recommended Orders .

Careful consideration has been given to each party’s proposal.

FINDINGS OF FACT

1. Respondent, Argenbright Security, Inc., now known as

Cognisa Security, Inc., is an Atlanta, Georgia - based corporation

that provides commercial security services to cust omers on a

nationwide basis. Respondent employs security officers who are

placed on assignments at customers' premises. Relevant to this

action, Respondent maintains an office in Orlando, Florida, to

support its commercial security services in Central Fl orida.

2. Respondent is an employer as defined by the Florida

Civil Rights Act of 1992 (FCRA).

3. Petitioner was employed with Respondent from May 1998

to July 31, 2000. Petitioner is an African - American male, born

on December 23, 1948, who was 50 yea rs of age upon hiring and

52 years of age upon his discharge from Respondent's employ.

During his employment with Respondent, Petitioner was provided

with Respondent's employment policies, including the equal

employment opportunity policy which prohibits all types of

unlawful discrimination in the workplace.

4. Prior to working for Respondent, Petitioner served in

the United States Army, where he was a sergeant in the military

police. Petitioner worked for JC Penny for 13 years in

operations and personn el and was involved in security with this

company. Petitioner was then recruited by General Motors, where

he served in a minority dealer development program. Petitioner

did not become an automobile dealer, however, because this was

during a period of dec lining market share for American

automobile manufacturers. Petitioner next worked for Burns

Security, which was owned by Borg - Warner. Petitioner held the

position of special projects manager and, later, became vice -

president of Human Resources. During t his tenure with Borg -

Warner, Petitioner was a district manager and a general manager.

Petitioner’s job functions with Borg - Warner as a district

manager were similar to those he did with Respondent, including

client relations. In addition, Petitioner had a similar

coverage area which was from Jacksonville to Orlando.

5. Petitioner had 23 years of experience in the security

field before beginning work for Respondent. Petitioner held

management positions with the prior employers and had never been

termina ted before beginning work with Respondent.

6. Throughout his employment with Respondent, Petitioner

worked as a district manager and was supervised by Buckwalter,

who was Respondent's vice president and general manager of the

Southeast region.

7. After a series of interviews, Buckwalter made the

decision to hire Petitioner. He also made the decision to

discharge him. Based on a decline in business and a lack of

work, Buckwalter himself was discharged by Respondent in

January 2002.

8. Petitioner's job duties as a district manager included

supervising Respondent's account managers who managed security

officer accounts and ensured overall customer satisfaction.

Petitioner was responsible for supervising the management of

approximately 60 customer accoun ts in Orlando, Jacksonville,

Tampa, and St. Petersburg. Petitioner supervised a staff of

approximately 33 employees, excluding Respondent's security

officers.

9. The list of Respondent's customers in Petitioner's

region included, but was not limited to, the following entities:

the City of Orlando, U.S. Airways, Delta Airlines, Northwest

Airlines, Orange County, C&L Bank, Citrus Center (also known as

Tricony Management), Florida Power Corporation, Solivita (also

known as Avitar), and Ocwen.

10. Followin g his hire, Petitioner developed a plan for

improving profitability. The first step involved mentoring his

staff and improving the quality of service provided the clients.

After that, Petitioner would then seek rate increases from the

client. Petitioner was successful in increasing profitability.

11. Petitioner had a performance review on June 11, 1999,

with Jerry Buckwalter. The performance evaluation is a four -

page document. On the evaluation, Petitioner is noted to be

doing an excellent job in oper ational delivery of service,

education of staff, and training ability. Petitioner received a

3.5 percent raise following the evaluation. The evaluation

contains a June 12, 1999, note from Jerry Buckwalter. The note

states that Petitioner acknowledged hi s shortcomings on the job.

The note was not made in Petitioner’s presence and Petitioner

disputed the substance of the note.

12. This was the only written performance review

Petitioner received while employed by Respondent.

13. Respondent alleges that P etitioner's performance

deteriorated during the last six months of his employment, and

as a result, Petitioner was discharged on July 31, 2000.

Buckwalter testified that he made the decision to terminate

Petitioner's employment based on his receipt of num erous

customer complaints regarding Petitioner's management of

accounts and failure to resolve problems, numerous complaints

from Petitioner's subordinates regarding Petitioner's management

style and lack of guidance, and Petitioner's failure to properly

p erform his administrative duties. Buckwalter received eight to

ten complaints from Respondent's customers about Petitioner's

management of their accounts. Several of Respondent's customers

repeatedly complained about Petitioner's management skills.

14. Buckwalter received complaints from Respondent's

customers regarding Petitioner's lack of attentiveness towards

their accounts, failure to conduct client meetings, and

inability and unwillingness to resolve client problems. When

Buckwalter discussed the c ustomer complaints with Petitioner,

Petitioner sometimes acknowledged the seriousness of the

concerns and sometimes became defensive and dismissed the

complaints as unreasonable client demands. Two of Respondent's

customers, Tricony Management and C&L Ban k, specifically

demanded that Petitioner be removed from the management of their

accounts based on his lack of service and "cavalier" attitude

toward their requests.

15. Linda Mansfield, who was the client contact at Tricony

Management, sent an e - mail com plaint to Respondent's business

development manager, Warren Bovich, in regard to Petitioner and

Robert Stevenson on February 8, icony Management did

not cancel its account with Respondent. However, they insisted

that Robert Stevenson and Petition er be removed from the

account.

16. Petitioner admitted that the following customers

complained regarding his servicing of or management of their

accounts: Ocwen, Citrus Center/Tricony Management, City of

Orlando, Avitar/Solivita, C&L Bank, and Florida P ower

Corporation. Petitioner disagreed with the substance of those

complaints and described them as ordinary client issues that he

discussed with Buckwalter. Petitioner also admitted that he had

a personality conflict with a Citrus Center employee. Rega rding

the City of Orlando account under Petitioner's supervision,

Petitioner admitted that employee turnover was a problem, that

the account was not meeting the budgeted goals, and that

Respondent's employees routinely missed their scheduled work

shifts. Petitioner further admitted that Avitar/Solivita was

upset with him about his unauthorized recruiting efforts.

However, Petitioner demonstrated that many other clients highly

rated the service provided in his district.

17. In addition to the customer com plaints, Buckwalter

received approximately 30 to 35 complaints from Petitioner's

subordinates regarding Petitioner's management style.

Petitioner's subordinates complained that Petitioner was not

concerned with their career development, failed to provide them

with timely performance evaluations, failed to conduct staff

meetings on a routine basis, failed to attend staff meetings

which he had scheduled, did not provide proper support and

mentoring for customer accounts, and was generally unavailable

to them based on his lack of time in the office.

18. Petitioner admitted that a subordinate complained to

Buckwalter regarding Petitioner's failure to provide him with a

performance evaluation in a timely manner. Petitioner also

acknowledged that Buckwalter rec eived a complaint from

Respondent's employee regarding his failure to properly process

administrative paperwork. Petitioner admitted that he does not

know whether Buckwalter received additional complaints from his

subordinates regarding his management. A ccordingly,

Buckwalter's testimony that he received 30 to 35 complaints from

Petitioner's subordinates regarding Petitioner's management is

credible.

19. Buckwalter's decision to discharge Petitioner was also

based, in part, on Petitioner's failure to pro perly process

administrative paperwork. Buckwalter informed Petitioner, in

writing, that his neglect of his administrative duties was

unacceptable. Buckwalter also determined that on several

occasions, Petitioner provided misleading information about his

whereabouts by falsely reporting that he was out of the office

conducting client appointments.

20. In addition to Petitioner, Buckwalter supervised

several other district managers, including Blake Beach (Beach)

and Scott Poe (Poe) -- both of whom were form erly employed as

district managers in South Florida.

21. While serving as Beach's supervisor, Buckwalter

received a single complaint from Respondent's customer, United

Airlines (United), regarding Beach's sending an inappropriate

e - mail. United's complai nt did not concern Beach's servicing or

management of United's account. Other than United's single

complaint, none of Respondent's other customers submitted

complaints regarding Beach. Based on United's complaint

regarding Beach's inappropriate e - mail, R espondent transferred

Beach from South Florida to the Baltimore/Washington, D.C.,

area.

22. While serving as Poe's supervisor, Buckwalter received

complaints from two of Respondent's customers (in the South

Florida region) regarding Poe's management of th eir accounts.

Because Poe had been successful with other accounts, Buckwalter

believed that the two complaints might have been based on a

personality conflict. Buckwalter decided to transfer Poe from

the district manager position in South Florida to the district

manager position in Central Florida. Buckwalter never received

complaints from Poe's subordinates regarding Poe's management or

supervision. After Poe became the district manager in Central

Florida, Respondent received additional complaints from several

customers regarding Poe's handling of their accounts. Based on

these complaints, Buckwalter made the decision to terminate

Poe's employment with Respondent.

23. Buckwalter made the decision to discharge Poe and

Petitioner based on a similar numb er of complaints received from

customers in their respective regions; but unlike Poe,

Petitioner was discharged for additional reasons: the numerous

complaints from his subordinates and the neglect of his

administrative duties.

24. Robert Matecki, who wa s 55 years old when he was

hired, replaced Petitioner as Respondent's district manager in

Orlando.

25. Petitioner does not allege that Respondent

discriminated against him at any time prior to Petitioner's

termination on July 31, 2000. Petitioner does no t contend that

Buckwalter (the decision - maker in this case) ever made any

discriminatory comments to him. Petitioner admits that he does

not know what factors Respondent considered in making the

decision to terminate his employment.

26. Buckwalter testif ied that he did not consider

Petitioner's age and race in making the decision to discharge

Petitioner. Instead, he based the decision on customer and

subordinate complaints about Petitioner's management style and

Petitioner's failure to perform his admini strative duties.

27. Because Petitioner admits that he does not know upon

what factors Buckwalter based his decision, Buckwalter's

testimony is undisputed. Petitioner bases his allegations on

his own personal beliefs about his performance and his

disagre ement with the substance of the complaints made by

Respondent's customers and his subordinates.

28. Upon his termination, Buckwalter did not attempt to

provide out - placement services for Petitioner. Petitioner was

unemployed for a period of time followin g his termination.

Petitioner offered into evidence a document regarding his

calculations on back pay. Petitioner deducted out any sums

received for unemployment compensation and monies received for

subsequent employment. Petitioner also entered into ev idence

job search documentation regarding his attempt to find

employment.

CONCLUSIONS OF LAW

29. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding pursuant to Section 120.569 and Subsection 120.57(1),

Florida Statutes (2004).

30. The State of Florida, under the legislative scheme

contained in Chapter 760, Florida Statutes (2000), incorporates

and adopts the legal principles and precedents established in

the federal anti - discrimination laws specifically set forth

under Title VII of the Civil Rights Act of 1964 (the Act), as

amended, 42 U.S.C. Section 2000e, et seq. The Florida law

prohibiting unlawful employment practices is found in Section

760.10, Florida Statutes (2000). This section pro hibits

discrimination 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. See

§ 760.10(1)(a), Fla. S tat. (2000) . The FCHR and Florida courts

interpreting the provisions of FCRA have determined that federal

discrimination laws should be used as guidance when construing

provisions of the Act. See Brand v. Florida Power Corp. ,

633 So. 2d 504, 509 (Fla. 1s t DCA 1994); Florida Department of

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

1991).

31. Petitioner has the ultimate burden to prove

discrimination either by direct or indirect evidence. Direct

evidence is evidence which, if believe d, would prove the

existence of discrimination without inference or presumption.

See 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 evidenc e of

discrimination. Id. at 582; see also Early v. Champion

International Corp. , 907 F.2d 1077, 1081 (11th Cir. 1990).

32. In the instant action, Petitioner has failed to offer

any direct evidence of discrimination on the part of

Respondent's supervisors . Petitioner admits that his

supervisor, Buckwalter, never made any discriminatory comments

to him. In support of his age discrimination claim, Petitioner

relies solely on a letter from Lee Larkin, one of Petitioner's

former co - workers and who had no sup ervisory authority over

Petitioner, to the FCHR as direct evidence. According to

Larkin's unsworn letter, Buckwalter allegedly made two age -

biased comments about Petitioner.

33. Larkin's letter is pure hearsay evidence, not direct

evidence, which is insu fficient to establish Petitioner's age

discrimination claim. Petitioner did not produce Larkin as a

witness at the final hearing to authenticate his letter.

Moreover, Petitioner has not offered Larkin's letter to

"supplement or explain other evidence" of alleged

discrimination. In fact, Petitioner failed to offer any

testimony whatsoever regarding Larkin's letter at the final

hearing. He simply offered the letter at the outset and never

mentioned it again. The letter was never authenticated, and no

fou ndation was set for its admission. On the other hand,

Buckwalter specifically denies making the purported comments.

"Hearsay evidence . . . may be used to supplement or explain

other evidence, but shall not be sufficient in itself to support

a finding un less the evidence falls within an exception to the

hearsay rule. . . ." § 120.57(1)(c), Fla. Stat. (2003) .

Department of Environmental Protection v. Department of

Management Services, Division of Administrative Hearings , 667

So. 2d 369, 370 (Fla. 1st DCA 1995). Contrary to Petitioner's

assertion, the law is clear that "courts cannot base direct -

evidence analysis on hearsay testimony." Williams v. Housing

Authority of City of Sanford, Florida , 709 F. Supp. 1554, 1562

(M.D. Fla. 1988) (refusing to classif y unsworn hearsay statement

as direct evidence.) See also State v. Kleinfield , 587 So. 2d

592, 593 (Fla. 4th DCA 1991) (such statements do not have an

"indicia of reliability.) Based on the absence of any such

evidence, Petitioner cannot prove his claims of discrimination

by the use of direct evidence.

34. 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 (197 3); and Texas Department of Community

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

of St. Mary's Honor Center v. Hicks , 509 U.S. 502 (1993). The

FCHR has adopted this evidentiary model. See Kilpatrick v.

Howard Johnson Co. , 7 F.A.L.R. 5 468, 5475 (FCHR 1985).

McDonnell Douglas places upon a petitioner the initial burden of

providing a prima facie case of race and age discrimination.

See Davis v. Humana of Florida, Inc. , 15 F.A.L.R. 231 (FCHR

1992); Laroche v. Department of Labor and Emp loyment Security ,

13 F.A.L.R. 4121 (FCHR 1991). To establish a prima facie case

of discriminatory treatment, a petitioner must show that:

(1) he is a member of a protected class; (2) he was qualified

for the position held; (3) he was subjected to an adve rse

employment decision; and (4) his former position was filled by a

person who was not a member of his protected classifications or

that he was treated less favorably than similarly - situated

persons outside his protected classes. See Crapp v. City of

Mia mi Beach , 242 F.3d 1017, 1020 (11th Cir. 2001); Coutu v.

Martin County Board of County Commissioners , 47 F.3d 1068, 1073

(11th Cir. 1995); Canino v. EEOC , 707 F.2d 468 (11th Cir. 1983);

Samedi v. Miami - Dade County , 134 F. Supp. 2d 1320 (S.D. Fla.

2001).

3 5. Applying the standards for a prima facie case set

forth in McDonnell Douglas , Petitioner satisfies the element of

being a member of two protected classifications under Subsection

760.10(1)(a), Florida Statutes (2003). Specifically, he is

African - Americ an and is above the age of 40. Petitioner has

also satisfied the second and third prong of the prima facie

case, given Petitioner established that he was qualified for the

district manager position which he held and that Respondent

terminated his employme nt on July 31, 2000.

36. As for the fourth prong of the prima facie case,

Petitioner must show that he was treated less favorably than

other employees who were "similarly situated" in all relevant

respects. See Holifield v. Reno , 115 F.3d 1555, 1562 (11t h Cir.

1997). 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

ways." Id. A claim of discriminatory discipline requires a

showi ng that the misconduct for which the petitioner was

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

employee outside the petitioner's protected class and that the

petitioner was treated in a less favorable manner. Jones v.

Winn - Dixie Stores, I nc. , 75 F. Supp. 2d 1357, 1364 (S.D. Fla.

1999).

37. At the final hearing, Petitioner claimed that

Respondent treated two younger, Caucasian employees (Beach and

Poe -- both former district managers) more favorably than he.

Petitioner, however, has not dem onstrated that Beach and Poe are

proper comparators. Petitioner was discharged based on

Buckwalter's receipt of customer complaints regarding

Petitioner's management of accounts, complaints from

Petitioner's subordinates regarding Petitioner's management

style, and Petitioner's failure to properly perform his

administrative duties. Buckwalter received eight to ten

complaints from Respondent's customers about Petitioner's

management, and two of Respondent's customers demanded that

Petitioner be removed fro m the management of their accounts. In

comparison, and as acknowledged by Petitioner and Buckwalter,

Respondent received only one complaint from Respondent's

customer regarding Beach. Specifically, United complained about

an inappropriate e - mail sent by Beach. In contrast to the

complaints Buckwalter received from customers under Petitioner's

supervision, United's complaint did not concern Beach's

servicing or management of United's account. The eight - to - ten

customer complaints Respondent received about Petitioner (as

well as the complaints from Petitioner's subordinates) are not

comparable to the lone complaint about Beach's e - mail. Because

of the differences in the number and nature of such complaints,

Petitioner and Beach cannot be classified as "sim ilarly

situated" and their "misconduct" was not "identical." See

Jones v. Winn - Dixie Store, Inc. , supra , at 1364 - 65 (dismissing

discrimination claim because the plaintiff failed to demonstrate

that similarly situated employees received more favorable

trea tment than he); Jones v. Gerwens , 874 F.2d 1534, 1541 (11th

Cir. 1989) (affirming dismissal of discrimination claim because

the plaintiff could not prove that employees outside of his

protected class were treated more favorably.)

38. Similarly, Petitione r cannot show that his

"misconduct" (in the form of customer and subordinate complaints

and neglect of his administrative duties) was similar to Poe's

"misconduct." While serving as Poe's supervisor, Buckwalter

initially received complaints from two of Re spondent's customers

regarding Poe's management of their accounts. Based on these

complaints, Respondent decided to transfer Poe from the district

manager position in South Florida to the district manager

position in Central Florida. Notably, Buckwalter never received

complaints from Poe's subordinates regarding Poe's management or

supervision. After Poe became the district manager in Central

Florida, Respondent received complaints from several more

customers regarding Poe's handling of their accounts. Based on

these complaints, Buckwalter made the decision to terminate

Poe's employment with Respondent. Buckwalter made the decisions

to discharge Poe and Petitioner based on a similar number of

complaints received from customers in their respective region s.

However, Poe did not have the subordinate complaints or

administrative failures that Petitioner had. Thus, the record

evidence reflects that when customer complaints accumulated,

Buckwalter treated Poe and Petitioner in an identical manner.

If anythi ng, Petitioner was allowed to accumulate many more

overall complaints than Poe before he was discharged. Given

these facts, Petitioner cannot demonstrate that Poe was a

"similarly situated" individual who received more favorable

treatment. Consequently, Petitioner has failed to satisfy the

fourth prong of his prima facie case, and his discrimination

claims fail as a matter of law. See Jones v. Winn - Dixie Stores,

Inc. , supra , at 1364 - 65 (dismissing discrimination claim because

the plaintiff failed to sati sfy "similarly situated" prong of

prima facie case.

39. As noted above, the Eleventh Circuit Court of Appeals

has also applied a modified standard whereby a petitioner

establishes the fourth prima facie prong by proving that "he was

replaced by a person o utside the protected class." Coutu ,

supra , at 1073. Applying this standard, Petitioner cannot

establish a prima facie case for his age discrimination claim

because he was replaced by a person within his protected class.

Specifically, Matecki, who was 55 years old when he was hired,

replaced Petitioner as Respondent's district manager in Orlando.

Thus, Petitioner cannot establish the fourth element of his

prima facie case for his age discrimination claim. See Hawkins

v. Ceco Corp. , 883 F.2d 977, 983 - 84 (11th Cir. 1989) (holding

that the plaintiff failed to establish a prima facie case

because he was replaced by a member of his own protected class.)

40. As to his claim of race discrimination, Petitioner has

succeeded in proving each of the elements neces sary to establish

a prima facie case. Respondent must then articulate some

legitimate, non - discriminatory reason for the challenged

employment decision. Respondent has done so. Respondent's

employer is required only to "produce admissible evidence which

would allow the trier of fact rationally to conclude that the

employment decision had not been motivated by discriminatory

animus ." Texas Department of Community Affairs , supra , at 257.

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. See Texas Department of Community

Affairs , supra , at 254 - 255; see also Pashoian v. GTE

Directories , 208 F. Supp . 2d 1293, 1308 - 09 (M.D. Fla. 2002)

(noting that the employer bears a burden of production, but not

a burden of persuasion and need only provide a specific

legitimate reason which would support a finding that

discrimination was not the cause of the employm ent decision.)

This burden is characterized as "exceedingly light." Perryman

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

1983).

41. The next burden is that of Respondent to articulate

some legitimate, non - discriminatory reasons for the adverse

employment action that it took. The record evidence indicates

that Buckwalter made the decision to terminate Petitioner's

employment based on his receipt of customer complaints regarding

Petitioner's management of accounts, complaints from

Petiti oner's subordinates regarding Petitioner's management

style, and Petitioner's failure to properly perform his

administrative duties. Buckwalter believed that Petitioner

displayed unacceptable leadership qualities and maintained poor

relationships with his customers and staff. Based on

Buckwalter's undisputed testimony, Respondent has more than

satisfied its requirement of articulating a legitimate, non -

discriminatory reason for its actions. See LeBlanc v. The TJX

Cos., Inc. , 214 F. Supp. 2d 1319, 1328 (S .D. Fla. 2002)

(defendant - employer's discharge of plaintiff based, in part, on

receipt of customer complaints about plaintiff constituted

legitimate, non - discriminatory reason for adverse action).

42. Once the respondent articulates a legitimate reason

fo r the action taken, the evidentiary burden shifts back to the

petitioner who must prove that the reason offered by the

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

a pretext. Texas Department of Community Affairs , supra , at

255 - 256. Th e Supreme Court has emphasized the ultimate burden

of persuading the trier of fact that the respondent

intentionally discriminated against the petitioner, remains at

all times with the petitioner. See Texas Department of

Community Affairs , supra , at 253. Importantly, even when the

non - discriminatory reasons articulated by a respondent have been

demonstrated by the petitioner to be false, the petitioner must

still prove that the adverse action truly was based upon

unlawful discrimination. See St. Mary's H onor Center , supra ,

at 518 - 519.

43. In the instant matter, because Respondent has

articulated legitimate, non - discriminatory reasons to support

the termination of Petitioner's employment, Petitioner retains

the burden of persuasion and must prove by a pre ponderance of

the evidence that the legitimate reasons offered by Respondent

were not its true reasons but, rather, were a pretext for

intentional discrimination. See Texas Department of Community

Affairs , supra , at 253. Petitioner has not produced any

e vidence to show that Respondent's legitimate reasons for his

termination are actually a pretext for discrimination. To the

extent Petitioner argues that the letter submitted by Larkin to

the FCHR constitutes evidence of pretext (in support of his age

disc rimination claim), such an argument fails for several

reasons. First, Larkin's purported letter is not a sworn

statement but, instead, is a letter that has not been

authenticated. At the final hearing, Petitioner did not produce

Larkin (or any other witn ess) to authenticate the letter.

Second, the letter constitutes hearsay evidence which is

insufficient to establish pretext under the Florida

Administrative Code "hearsay evidence . . . shall not be

sufficient in itself to support a finding of fact unless the

evidence falls within an exception to the hearsay rule. . . ."

Fla. Admin. Code R. 28 - 106.213. Petitioner cannot and has not

contended that the letter falls within an exception to the

hearsay rule. Moreover, Petitioner has not offered Larkin's

lett er to "supplement or explain other evidence" of alleged

discrimination. Indeed, at the final hearing, Petitioner failed

to offer any testimony regarding Larkin's letter. In contrast,

Buckwalter specifically denies making the purported comments to

Larkin. Given these facts, any attempt by Petitioner "to

support a finding" of discrimination based solely on Larkin's

letter is impermissible. See Fla. Admin. Code R. 28 - 106.213.

44. To the extent Petitioner attempts to prove

discrimination by presenting evid ence that he (personally)

thought he was a good employee, Petitioner's own evaluation of

his abilities is not sufficient to rebut the articulated reasons

for Respondent's employment decision. The law is clear that

"[t]he inquiry into pretext centers upon the employer's beliefs,

and not the employee's own perception of his performance."

LeBlanc , supra , at 1331 (dismissing discrimination claim because

plaintiff failed to prove pretext); Vickers , supra , at 1381

(dismissing discrimination claim and noting tha t the employee's

perception of himself is not relevant; it is the perception of

the decision - maker that is relevant); Webb v. R & B Holding Co.,

Inc. , 992 F. Supp. 1382, 1387 (S.D. Fla. 1998) ("The fact that

an employee disagrees with an employer's evaluat ion of him does

not prove pretext.")

45. In addition, Petitioner admits that numerous customers

of Respondent, including Ocwen, Citrus Center/Tricony

Management, City of Orlando, Avitar/Solivita, C&L Bank and

Florida Power Corporation complained regarding his servicing or

management of their accounts. Petitioner also admits that a

subordinate complained to Buckwalter regarding his failure to

provide the subordinate with a timely performance evaluation and

that Buckwalter received a complaint from an emplo yee of

Respondent's regarding Petitioner's failure to properly process

administrative paperwork. It is, thus, undisputed that

Respondent received complaints from customers and Petitioner's

subordinates regarding Petitioner's management. Petitioner

offers only his various explanations for the problems complained

about and his disagreement with the substance of those

complaints. He never disputes that Respondent received the

complaints or that Respondent based its decision on those

complaints.

46. Petitio ner further admits that he does not know what

factors Respondent considered in making the decision to

terminate his employment. Therefore, any additional argument

Petitioner could make regarding pretext would be based solely on

his speculation. Fatal to his claims, however, Petitioner

cannot satisfy his burden of persuasion simply by making

conclusory allegations of discrimination or basing them upon his

subjective belief as to unlawful discrimination. See Elrod v.

Sears, Roebuck & Co. , 939 F.2d 1466, 14 71 (11th Cir. 1991)

(holding that "[c]onclusory allegations of discrimination,

without more, are not sufficient to raise an inference of

pretext or intentional discrimination where [the defendant -

employer] has offered . . . extensive evidence of legitimate ,

non - discriminatory reasons for its action"). Further in the

absence of evidence of intent to discriminate, courts have

repeatedly recognized that it is not their role to second guess

or scrutinize an employer's legitimate business decisions. See

Lee v. GTE Fla., Inc. , 226 F.3d 1249, 1253 (11th Cir. 2000);

Elrod , supra , at 1470 (noting that courts "do not sit as a

super - personnel department that re - examines an entity's business

decisions"). Courts and administrative agencies are "not in the

business of adjudging whether employment decisions are prudent

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

229 F.3d 1012, 1031 (11th Cir. 2000). Instead, courts are to be

concerned only with the question whether discriminatory animus

motivated a cha llenged employment decision. Damon v. Fleming

Supermarkets of Florida, Inc. , 196 F.3d 1354, 1361 (11th Cir.

1999).

47. The undisputed facts also show that Respondent had a

good faith belief that Petitioner's performance was unacceptable

and warranted ter mination. See E.E.O.C. v. Total System

Services, Inc. , 221 F.3d 1171, 1176 (11th Cir. 2000) (in an

employment context, a decision - maker's good faith belief is the

relevant inquiry); Damon , supra , at 1363 n. 3 (holding that an

employee cannot be held liabl e for discharging an employee

"under the mistaken but honest impression that the employee

violated a work rule.")

48. Therefore, Petitioner is left to argue that Respondent

was wrong when it concluded that his performance was deficient.

It is well - settle d, however, that even if an employer wrongly

believes that an employee's performance was unacceptable, acting

upon that belief does not give rise to a discriminatory motive.

See Jones v. Gerwens , 874 F.2d at 1540 (11th Cir. 1989) ("[t]he

law is clear that , even if a Title VII claimant did not in fact

commit the violation with which he is charged, an employer

successfully rebuts any prima facie case of disparate treatment

by showing that it honestly believed the employee committed the

violation.") Followin g this legal authority, Respondent was

entitled to conclude that Petitioner's unacceptable handling of

customers' and subordinates' needs and concerns (as well as

neglect of his administrative duties) was ground for termination

of employment, as long as th is practice is enforced in a

non - discriminatory manner.

49. Even if Petitioner could cast doubt on the reasons for

his discharge, his claim fails because he has offered no proof

that his race and/or his age were the reasons for his discharge.

See Reeve s v. Sanderson Plumbing Products, Inc. , 530 U.S. 133,

146 - 47 (2000) (noting that a plaintiff must do more than simply

prove that the employer's proffered reason for discharge is

false by presenting evidence of intentional discrimination.) It

is well - settl ed that "[t]he employer may fire an employee for a

good reason, a bad reason, a reason based on erroneous facts, or

no reason at all, as long as its action is not for a

discriminatory reason." Kossow v. St. Thomas University, Inc. ,

42 F. Supp. 2d 1312, 13 17 (S.D. Fla. 1999). Petitioner's

assertions that Respondent discriminated against him reflect

merely a strained attempt to second - guess Respondent's decision

about managing Petitioner and its business -- a result not

permitted by law. See Elrod , supra , at 1470.

50. Also, because Petitioner was hired and fired by the

same individual (Buckwalter), Petitioner cannot demonstrate that

his race and age were factors in Respondent's decision to

discharge him. See also Williams v. Vitro Services Corp. , 144

F.3d 1 438, 1443 (11th Cir. 1998) (noting where the hirer and the

firer are the same individual a "permissible inference" arises

that discrimination was not a determining factor for the adverse

action taken by the employer); and Kossow , supra , at 1316.

Petitione r's allegations are further belied by the fact that

Petitioner has failed to demonstrate that any "similarly

situated" individuals received more favorable treatment than he.

Beach and Petitioner were not "similarly situated." Similarly,

Petitioner and Po e were not "similarly situated," as Respondent

never received any complaints from Poe's subordinates regarding

Poe's management. Upon receipt of complaints from several

customers regarding Poe's handling of their accounts, Respondent

terminated Poe's empl oyment also. Thus, the record evidence

reflects that when customer complaints mounted, Respondent

treated Poe and Petitioner exactly the same by discharging them.

See Jones v. Gerwens , supra , at 1541 (affirming dismissal of

discrimination claim because t he plaintiff could not prove that

employees outside of his protected class were treated more

favorably.) Based on Respondent even - handed discipline of its

employees, it is wholly immaterial that Petitioner may have felt

that he was discriminated against. See Webb , supra , at 1388

(noting that a plaintiff's subjective beliefs are "wholly

insufficient evidence to establish a claim of discrimination as

a matter of law.")

51. Petitioner has failed to show that the adverse

employment action taken against him w as done in a discriminatory

manner. Respondent's employment policies clearly prohibit

discrimination against all employees based on race or age and

guarantee equal employment opportunities to all employees. As

such, Petitioner failed to raise any credibl e evidence to

support his claim that any actions by Respondent were

pretextual.

52. Petitioner has failed to show that Respondent's

termination of his employment was done in a discriminatory

manner, and thus, Petitioner's discrimination claims under

Subse ction 760.10(1), Florida Statutes (2000), fail as a matter

of law.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby:

RECOMMENDED that the Florida Commission on Human Relations

enter a final order which denies Petitioner's Petition for

Relief and dismisses his complaint with prejudice.

DONE AND ENTERED this 21st day of December, 2004, in

Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

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 21s t day of December, 2004.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Wayne Johnson, Esquire

DeCiccio, Johnson, Herzfeld & Rubin

652 West Morse Boulev ard

Winter Park, Florida 32789

John S. Snelling, Esquire

James P. Ferguson, Jr., Esquire

Duane Morris, LLP

1180 West Peachtree Street, Suite 700

Atlanta, Georgia 30309

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee P arkway, 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 this Recommended Order should be filed with the agency that

will issue the final order in this case.