04-001376 Lester J. Knott vs. Nationsrent, Inc. Status: Closed Recommended Order on Friday, December 10, 2004.

Summary: Respondent showed a non-discriminatory reason for Petitioner`s discharge and Petitioner was unable to show that it was pretextual.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LESTER KNOTT, )

)

Petitioner, )

)

vs. ) Case No. 04 - 1376

)

NATIONSRENT, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by and through its duly - designated Administrative Law

Judge, Stephen F. Dean, held a formal hearing in the above -

styled case on November 3 - 4, 2004, in Pensacola, Florida.

APPEARANCES

For Petitioner: Lester J. Knott, pro se

6312 Mockingbird Lane

Pensacola, Florida 32503

For Respondent: Steven A. Siegel, Esquire

Fisher & Phillips LLP

450 East Las Olas Boulevard, Suite 800

Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUE

Whether the Petitioner was terminated because of his race,

black, in violation of the Florida Civil Rights Act of 1992,

Sections 760.01 - 760.11, Florida Statutes (2001) (hereinafter

FCRA).

PRE LIMINARY STATEMENT

On August 19, 2003, the Petitioner filed a charge of

discrimination (Charge) with the Florida Commission on Human

Relations (FCHR), alleging that he was discriminated against

because of his race. The Charge was admitted in evidence at t he

hearing as Respondent’s Exhibit 17. The FCHR issued a

determination of no cause on April 8, 2004, a copy of which was

admitted in evidence at the hearing as Respondent’s Exhibit 18.

At the hearing on November 3 and 4, 2004, the Petitioner

presented hi s own testimony, and also called Larry Sutton as a

witness. Two witnesses, whom the Petitioner unsuccessfully

attempted to subpoena, Christopher Smith and Albert Frye, were

called by the Respondent and cross - examined by the Petitioner.

The Petitioner als o submitted two exhibits, labeled the

Petitioner’s Exhibits 1 and 2, both of which were admitted into

evidence.

At the hearing on November 3 and 4, 2004, the Respondent

presented the testimony of (1) Larry Cook, Knott’s store manager

at the time of termina tion; (2) Thomas Rhoades, the field

service technician; (3) Christopher Smith, the assistant store

manager and safety coordinator during Knott’s employment; (4)

Albert Frye, a co - worker of Mr. Knott’s; and (5) Sean

O’Halloran, the Respondent’s Regional Hum an Resources Manager.

The Respondent also submitted thirty exhibits, labeled

Respondent’s Exhibits 1 through 30. Respondent’s Exhibits 1

through 19 and 21 - 30 were admitted into evidence.

FINDINGS OF FACT

1. The Petitioner, a black male, began his employm ent with

Respondent in August 1999 as a truck driver. He was discharged

on or about July 25, 2003.

2. The Petitioner's personnel file reflects that he had an

accident on January 20, 2000, during which he hit the front gate

at the store. The gate was dam aged, as reflected in the

picture.

3. The Petitioner's personnel file reflects an accident on

May 22, 2001, in which he drove a forklift into power lines at a

customer’s jobsite and damaged the lines and the customer’s

satellite dish.

4. The Petitione r was warned on numerous occasions by the

safety coordinator and store manager about his failures to

follow company safety procedures and policies. The Petitioner

received a written warning on June 21, 2002, for his failure to

wear his safety harness.

5. All of the Respondent’s employees are required to wear

a safety harness when working on aerial work platforms because

of fatalities suffered by employees working on aerial work

platforms without wearing their safety harness. The Petitioner

had been verb ally warned on numerous previous occasions to wear

his safety harness, and it had been a topic at the safety

meeting held on June 5, 2002.

6. The Respondent enforces its safety policies to protect

its employees and the public.

7. The Petitioner continued to disregard company safety

policies despite warnings. Larry Sutton, the Petitioner's

supervisor, testified on cross - examination that he told the

Petitioner several times that the Petitioner needed to start

complying with the safety policies or his job w ould be in

jeopardy.

8. On December 9, 2002, the Petitioner drove a truck into

and ripped the side of the metal warehouse at the store. An

incident report was placed contemporaneously in the Petitioner’s

personnel file.

9. On January 16, 2003, the P etitioner drove over a

scissor lift cover that was resting on the concrete pad next to

the shop building. This pad was not supposed to be driven over.

This accident was the result of the Petitioner’s failure to obey

rules regarding vehicle operation on t he premises.

10. The Petitioner was not denied any raises because of

his race. The Petitioner was hired at a rate of $10.00/hour and

was earning $12.50/hour by September 2000. The Petitioner

presented no evidence of any similarly situated people being

t reated or paid differently than he.

11. On March 17, 2003, while attempting to pick up

equipment from a customer’s worksite, the Petitioner got the

equipment stuck in the mud and proceeded to try to winch it out

of the mud by himself. His efforts cause d the equipment to turn

over, damaging the customer’s property, shearing a temporary

power pole, spilling hydraulic fluid and fuel on the customer’s

property and damaging the equipment. The store manager received

a phone call from the customer complaining about what the

Petitioner had done.

12. The Respondent's store manager sent Thomas Rhoades, a

field service mechanic, to the customer’s property to repair the

damage caused by the Petitioner and to deliver a generator to

the customer free of charge. S ee Respondent’s Exhibit 24.

Pictures of the scene taken by Rhoades were placed in the

Petitioner’s personnel file. See Respondent’s Exhibit 22. A

written statement of his findings was provided by Rhoades and

placed in the Petitioner’s personnel file. S ee Respondent’s

Exhibit 23.

13. During 2003, the Petitioner was entitled to three sick

days, two personal days and 10 vacation days. The Petitioner

had used up all of his sick, personal and vacation days by May

9, 2003, and yet missed an additional five days of work prior to

his termination. See Respondent’s Exhibit 3.

14. The Petitioner rarely provided advance notice of his

absences, which caused severe staffing problems at the store.

The Petitioner told Mr. Frye that he intended to take off

Mondays, the busiest day of the week, to inconvenience the store

manager and dispatcher.

15. In addition to his attendance problems, the Petitioner

also violated the Respondent’s Absenteeism or Tardiness Policy.

The Petitioner admitted that he had received and understood that

policy. See Respondent’s Exhibit 5 and 6. The Petitioner

received a written warning for violation of the policy on

June 18, 2003, which documented that the Petitioner had received

verbal warnings in the past for violating this policy. Se e

Respondent’s Exhibit 4.

16. The Petitioner received a second written warning for

safety violations on June 4, 2003. He was observed entering the

store yard with equipment improperly tied to the bed of his

truck and wearing his safety harness upside dow n. See

Respondent’s Exhibit 14. The Petitioner had been warned about

this on numerous occasions, including a verbal warning from the

safety coordinator on June 2, 2003.

17. The Petitioner frequently drove too fast through the

yard and took poor care o f the Company’s equipment. The

Petitioner’s poor care of the equipment created additional work

for the mechanics.

18. Despite repeated verbal and written warnings about

failure to follow store safety procedures and guidelines, the

Petitioner continued to refuse to take such safety maintenance

seriously.

19. On Friday July 25, 2003, the Petitioner returned to

the store at the end of the day with a load of equipment that he

left on his truck. He did not report for work on Monday

July 28, 2003, even thou gh he was scheduled to work that day.

When a service technician was sent to unload the Petitioner’s

truck, he discovered that the load had been improperly tied down

in such a way that, not only did it pose a safety risk, but it

also damaged the equipment. This was called to the attention of

the store manager and safety coordinator. Pictures were taken

of the way the equipment was tied down and the damage to the

equipment. See Respondent’s Exhibit 25. An Incident Report was

prepared and placed in the Pe titioner’s personnel file. See

Exhibit 16.

20. Following the incident on July 25, 2003, the store

manager decided to terminate the Petitioner’s employment because

of his attendance problems, safety problems, numerous accidents

to include the incident on July 25, 2003. Prior to making that

decision, the store manager consulted with the Respondent’s

Regional Human Resources Manager, Sean O’Halloran. Mr. Cook and

Mr. O’Halloran reviewed the Petitioner’s personnel file and the

reasons for termination. Mr. O’Halloran approved of the

termination decision. Mr. Cook also consulted with his

assistant manager and safety coordinator, Chris Smith, who also

approved the decision to terminate the Petitioner’s employment.

21. Mr. Cook, the individual who terminated the

Petitioner, had been the Petitioner's store manager since May

2002.

22. The Respondent demonstrated that it had a legitimate,

non - discriminatory reason to discharge Knott.

23. The Petitioner did not establish that he was treated

differentl y than other similarly situated non - black employees.

Although the Petitioner testified that he was not given a gate

key, both he and Mr. Sutton identified Mr. Frye, a black male,

as someone who had received a gate key.

24. The Petitioner presented no ev idence that the non -

discriminatory reason for his discharge was pretextual.

CONCLUSIONS OF LAW

25. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

case. § 120.57(1) Fla. Stat. and § 760.01 et se q. , Fla. Stat.

26. The Petitioner brought this charge against the

Respondent, pursuant to the Florida Civil Rights Act of 1992,

Section 760.01 et seq. (FCRA), Florida Statutes.

27. Because the FCRA is modeled after the federal anti -

discrimination sta tutes, federal caselaw is used to analyze

claims under the FCRA. Florida Dep’t of Community Affairs v.

Bryant , 586 So. 2d 1205, 1209 (Fla. 1991).

28. Discrimination cases are analyzed under the standard

established by the Supreme Court in McDonnell Dougl as Corp. v.

Green , 411 U.S. 792 (1973). Under this standard, the Petitioner

must first establish a prima facie case of discrimination.

29. A prima facie case of racial discrimination exists

only if the Petitioner is able to show that: (1) he belongs to

a racial minority; (2) he was subjected to an adverse employment

action; Holifield v. Reno , 115 F.3d 1555, 1562 (11th Cir.

1997)); see also McDonnell Douglas Corp. , 411 U.S. at 802.

30. The Petitioner established a prima facie case of

discrimination becau se he establish that he was a member of a

minority and he was terminated.

31. Although the Petitioner established a prima facie case

of discrimination, the inquiry does not end there. The burden

of proof shifted to the Respondent to articulate a legit imate,

non - discriminatory reason for the employment action. McDonnell

Douglas Corp. , 411 U.S. at 802 - 03; Combs v. Plantation Patterns ,

106 F.3d 1519, 1528 (11th Cir. 1997); Brown v. Sybase, Inc. , 287

F. Supp. 2d 1330, 1339 (S.D. Fla. 2001). This intermed iate

burden is “exceedingly light.” Meeks v. Computer Assocs.

Int'l. , 15 F.3d 1013, 1019 (11th Cir. 1994). The Respondent’s

burden would be satisfied by producing evidence, which, “taken

as true, would permit the conclusion that there was a

nondiscrimina tory reason for the adverse action.” St. Mary’s

Honor Ctr. v. Hicks , 509 U.S. 502, 509 (1993); Combs , 106 F.3d

at 1528 (quoting Texas Dept. of Community Affairs v. Burdine ,

450 U.S. 248, 254 - 55 (1981)) (the defendant “need not persuade

the court that it w as actually motivated by the proffered

reasons. It is sufficient if the defendant’s evidence raises a

genuine issue of fact as to whether it discriminated against the

plaintiff.”); see also Chapman v. AI Transport , 229 F.3d 1012,

1024 (11th Cir. 2000).

32 . The Respondent produced evidence of safety issues

going back several years leading up to the Petitioner's

discharge. The Respondent met its burden of producing credible

evidence that the Petitioner was terminated for a legitimate,

non - discriminatory bu siness reason.

33. Because the Respondent satisfied this burden, it was

necessary for the Petitioner to prove by a preponderance of the

evidence that the reason proffered by the Respondent was

pretextual. Silvera v. Orange County School Bd. , 244 F.3d 125 3,

1258 (11th Cir. 2001); Holifield v. Reno , 115 F.3d 1555, 1565

(11th Cir. 1997) (citing Roberts v. Gadsden Memorial Hosp. ,

835 F.2d 793, 796 (11th Cir. 1988)); see also Brown , 287 F.

Supp. 2d at 1340 (quoting Silvera , 244 F.3d at 1261) (“Pretext

means more than inconsistency; pretext is 'a lie, specifically a

phony reason for some action.'”); Wolf v. Buss (America) Inc. ,

77 F.3d 914, 919 (7th Cir. 1996) (“Pretext means more than a

mistake on the part of the employer; pretext means a lie,

specifically a phony reason for some action.”).

34. The Petitioner failed to produce any evidence to

demonstrate that the reasons given by the Respondent for his

termination were pretextual. The Petitioner failed to carry his

ultimate burden of proof of discriminati on.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That the Florida Commission on Human Relations enter its

final order dismissing the Petitioner’s charge of

discrimination.

DONE AND ENTERED t his 10th day of December, 2004, in

Tallahassee, Leon County, Florida.

S

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 2 78 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of December, 2004.

COPIES FURNISHED :

Lester J . Knott

6312 Mockingbird Lane

Pensacola, Florida 32503

Steven A. Siegel, Esquire

Fisher & Phillips LLP

450 East Las Olas Boulevard, Suite 800

Fort Lauderdale, Florida 33301

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalac hee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to s ubmit 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.