04-001400 Craig S. Sailor vs. Sandco, Inc. Status: Closed Recommended Order on Wednesday, August 25, 2004.

Summary: Petitioner did not prove race and gender discrimination based on theories of disparate treatment, hostile work environment, or retaliation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRAIG S. SAILOR, )

)

Petitioner, )

)

vs. ) Case No. 04 - 1400

)

SANDCO, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on June 21,

2004, in Tallahassee, Florida, before Suzanne F. Hood,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Craig J. Brown, Esquire

Brown & Associates, L.L.C.

223 East Virginia Street

Tallahassee, Florida 32301

For Respondent: Gary R. Wheeler, Esquire

McConnaughhay, Duffy, Coonrod,

Pope & Weaver, P.A.

Post Office Box 550770

6816 Southpoint Parkway, No. 500

Jacksonville, Florida 32255

Brian S. Duffy, Esquire

McConnaughhay, Duffy, Coonrod,

Pope & Weaver, P.A.

Post Office Drawer 229

Tallahassee, Florida 32302 - 0229

STATEMENT OF THE ISSUES

The issues are as follows: (a) whether Respondent

committed an unlawful employment practice against Petitio ner

based on his sex and race in violation of Section 760.10(1),

Florida Statutes (2003); and (b) whether Respondent committed an

unlawful employment act by retaliating against Petitioner in

violation of Section 760.11(7), Florida Statutes (2003).

PRELIMIN ARY STATEMENT

On October 7, 2003, Petitioner Craig S. Sailor (Petitioner)

filed a Charge of Discrimination against Respondent Sandco, Inc.

(Respondent) with the Florida Commission on Human Relations

(FCHR). The charge alleged that Respondent discriminate d

against Petitioner based on his race and sex.

On February 18, 2004, Petitioner filed an Amended Charge of

Discrimination with FCHR. According to the amended charge,

Respondent retaliated against Petitioner for filing the original

charge by terminatin g his employment. The amended charge did

not allege discrimination based on sex and race.

On March 12, 2004, FCHR issued a Determination: No Cause.

On April 15, 2004, Petitioner filed a Petition for Relief with

FCHR. The case was referred to the Divis ion of Administrative

Hearings on April 21, 2004.

A Notice of Hearing dated May 3, 2004, scheduled the

hearing for June 21, 2004. During the hearing, Petitioner

testified on his own behalf and presented the testimony of two

additional witnesses. Petit ioner offered one exhibit (P1),

which was accepted into the record as evidence. Respondent

presented the testimony of three witnesses and offered 11

exhibits (R1 - R2, R4 - R8, R9A and R9B, and R10 - R11), which were

accepted as record evidence.

A transcript was filed on July 22, 2004. The parties had

the opportunity to file proposed findings of fact and

conclusions of law 10 days later.

On July 28, 2004, Respondent filed an Unopposed Motion for

Extension of Time to File Proposed Recommended Order. An Orde r

dated July 30, 2004, granted the motion and directed the parties

to file their proposed orders on August 10, 2004. Both parties

filed Proposed Recommended Orders as directed.

All references hereinafter shall be to Florida Statutes

(2003) unless otherwi se stated.

FINDINGS OF FACT

1. Petitioner is a black male. He began working as a

truck driver for Respondent on May 29, 2002.

2. Mike Helms, Petitioner's supervisor, was responsible

for hiring Respondent's truck drivers. During the year and a

half t hat Mr. Helms worked for Respondent, 80 to 90 percent of

the truck drivers hired were black.

3. During the hearing, Petitioner testified that he

repeatedly requested Respondent's mechanics to repair the leak

in his truck cab beginning in August 2002. P etitioner stated

that Respondent's mechanics did not repair the truck cab until

sometime after August 2003 when he was not working and a white

female truck driver was driving his truck. Petitioner's

allegations of disparate treatment involving the repair of the

truck have not been considered here because the record does not

reflect that they were raised in Petitioner's original or

amended complaint or during FCHR's subsequent investigation.

Because the allegations were not raised in either of

Petitioner's complaints, FCHR never considered them, which

would have allowed consideration in the contested hearing.

4. Petitioner also testified that Respondent did not

enforce the no - smoking policy in the driver's lounge until Mr.

Helms became ill with a heart c ondition. The allegations that

Mr. Helms dismissed Petitioner's complaints without explanation

prior to that time were not included in Petitioner's original or

amended complaint. There is no record evidence that Petitioner

ever raised an issue involving the no - smoking policy during

FCHR's investigation or that FCHR ever considered Respondent's

alleged failure to enforce the no - smoking policy, which would

have allowed consideration in the contested hearing.

5. Respondent provided its truck drivers with radio/

telephones so that they could communicate with each other and

with the office. Each driver had an assigned radio/telephone

that he or she used every day. Each night the drivers would

leave their telephones in an unsecured area of the truck office

that was accessible to all employees.

6. Typically, each telephone was programmed to identify

incoming calls by the number of the unit making the call. In

other words, the unit number of the person initiating the call

would appear on the recipient's sc reen. However, the

recipient's telephone could be programmed to show the name of

the incoming caller instead of his or her unit number.

7. On February 17, 2003, Petitioner was using the

telephone usually assigned to him. During the day, he noticed

tha t the word "nigger" was programmed into his internal

telephone directory. Petitioner made this discovery when he

scrolled through his internal telephone directory to place a

call to another unit. Petitioner realized that someone had

programmed his teleph one to show the racial slur when unit 12

called him.

8. Unit 12 was an extra phone, used by the drivers when

their phones were not working properly. Therefore, the person

who programmed the racial slur into Petitioner's assigned

telephone did not know necessarily which driver would be using

unit 12 on February 17, 2003. It follows that the driver who

used unit 12 on February 17, 2003, might not have known that the

derogatory name would appear on Petitioner's screen when unit 12

contacted Petitioner.

9. Petitioner first checked with a couple of drivers who

verified that their internal telephone directories were not

programmed to identify unit 12 as "nigger." Petitioner

concluded that he was the only target of the epithet.

Petitioner then called unit 12/"nigger" and discovered that

Ed Wight was using the spare telephone that day.

10. Petitioner believed that only a few drivers knew how

to program names into an internal telephone directory. He

assumed that Mr. Wight was responsible for tampering with his

telephone.

11. Petitioner waited to confront Mr. Wight at

Respondent's pit. Petitioner put the radio in Mr. Wight's face

and asked him if he had programmed the name in the telephone.

Petitioner told Mr. Wight that he did not "play that way" and

did not appreciate it. 1/

12. Next, Petitioner drove his truck into Respondent's

parking lot at a high rate of speed. Mr. Helms, who was

standing outside, feared the truck would not stop before it

struck him. After Petitioner's truck slid to a stop , he emerged

yelling and screaming. Petitioner then threw his telephone at

Mr. Helms.

13. Mr. Helms did not understand why Petitioner was so

upset until Petitioner showed Mr. Helms the racial slur in

Petitioner's internal telephone directory. Petition er then got

into his truck and sped away.

14. Mr. Helms later learned that Petitioner had confronted

Mr. Wight at the pit, accusing him of programming the racial

slur into Petitioner's telephone. In the meantime, Mr. Helms

instructed Petitioner to go h ome and not to return to work until

Mr. Helms called him.

15. When Petitioner returned to work, he met with Mr.

Helms and Mr. Wight. During the meeting, Petitioner apologized

to Mr. Wight for confronting him. Mr. Helms advised Petitioner

that he was sus pended for two days for his conduct toward Mr.

Wight and for driving into the parking lot in an unsafe manner.

16. There was no evidence that Mr. Wight was responsible

for the racial slur. Therefore, Mr. Wight was not disciplined.

17. During the hea ring, Petitioner admitted that he does

not know who programmed the racial slur into his telephone. He

acknowledged that no one at work ever called him by that name

again. Petitioner testified that he has never heard Mr. Helms

or anyone else in a position of authority at Respondent's place

of business make a racially derogatory comment in his presence.

18. Respondent took appropriate steps to ensure that

future racial slurs could not be programmed anonymously into the

telephones. Specifically, Mr. Helm s padlocked the doors that

led to the room where the telephones were stored when they were

not in use. This was inconvenient for Mr. Helms because he had

to be at the office every time a driver picked up or returned a

telephone. Nevertheless, Mr. Helms k new it was important to

secure the telephones to prevent any recurrence of the problem

experienced by Petitioner.

19. Mr. Helms did not believe that a driver would admit to

being responsible for the racial slur. Therefore, he did not

interview all of t he drivers. Instead, Mr. Helms spoke to a

couple of drivers, asking them to come forward with any

information that might reveal the identity of the guilty person.

Mr. Helms hoped the drivers he talked to would cooperate by

sharing information circulating among the employees. For these

reasons, Mr. Helms considered his investigation to be ongoing.

However, neither Mr. Helms nor any other member of Respondent's

management team ever found out who was responsible for the

racial slur.

20. Respondent did n ot conduct any special meeting to

educate the drivers about Respondent's intolerance of racial

discrimination. Respondent's employee handbook clearly

prohibits any type of racial discrimination, including but not

limited to, "racial and ethnic slurs, joke s or other derogatory

remarks about or directed toward minority groups."

21. Respondent required all employees to acknowledge that

they have received and read the employee handbook. Petitioner

signed the employee acknowledgement on January 10, 2003. T he

handbook states that failure to comply with safety rules is an

offense that may subject an employee to discipline. The

handbook also states that an employee may be discharged for

threatening another employee or showing disrespect for a

supervisor.

22 . On May 1, 2003, approximately two and a half months

after the telephone incident, Respondent promoted Petitioner to

the position of crew chief. Mr. Helms made the decision to

promote Petitioner. As crew chief, Petitioner was responsible

for leading a group of drivers and was eligible for a monthly

bonus in the amount of $250.00 if no accidents or traffic

violations occurred during the month.

23. Petitioner resigned his position as crew chief in

August 2003. He made the decision to step down as crew chief

because he did not believe the compensation was sufficient.

24. During the hearing, Petitioner testified that he

believed Mr. Helms treated four specifically - named male drivers

more favorably than Petitioner. Petitioner testified that three

of t hese drivers were black males and one was a white male.

Petitioner did not include allegations of Mr. Helm's alleged

favorable treatment of the four male drivers in his original or

amended complaint. There is no record evidence that FCHR

investigated or considered these allegations, which would have

allowed consideration in the contested hearing.

25. On October 1, 2003, Petitioner hauled a load of dirt

to Respondent's dump. The person responsible for telling

drivers where to dump and for pulling them ou t when they got

stuck in the mud was David Cochran, a white male. On this

occasion, Petitioner followed Mr. Cochran's instructions and got

stuck.

26. Because Mr. Cochran ignored Petitioner's request for

assistance in getting his truck out of the mud, Pet itioner

called Mr. Helms to report that Mr. Cochran was not providing

assistance.

27. After waiting for 40 to 45 minutes, Petitioner's crew

chief, Tommy Bennett (a black male), and another driver, Leonard

Glover (a white male) came by to speak to Petiti oner.

Petitioner explained that he was waiting for Mr. Cochran to pull

his truck out of the mud. Mr. Glover then hooked his truck to

Petitioner's truck and freed Petitioner's truck from the mud.

28. Approximately one half hour later, Petitioner return ed

to the dump. He saw a white female truck driver stuck in the

same location. Mr. Cochran immediately pulled her truck from

the mud.

29. At this point, Petitioner decided that Respondent was

discriminating against him. First, he called a television

station. Next, he called FCHR regarding the process of filing a

complaint. He then called Vicki Goodman, Respondent's director

of human resources, requesting documentation regarding the

February 17, 2003, telephone incident.

30. Petitioner did not tel l Ms. Goodman about the incident

with Mr. Cochran. When Ms. Goodman inquired why Petitioner

wanted the documents, he responded that he was dissatisfied with

Ms. Goodman's and Mr. Helms' response to the telephone incident.

31. Ms. Goodman advised Respon dent that there was no

information about the telephone incident other than as discussed

with Petitioner eight months before. She also told him he was

not entitled to a copy of the report of that incident. Ms.

Goodman then inquired whether Petitioner was concerned about

something else that was occurring in the workplace. Petitioner

responded by saying, "I really don't want to talk about it right

now. You'll find out soon enough."

32. During the hearing, Petitioner testified that he told

Ms. Goodman, " [s]omeone from FCHR would be contacting her soon."

In papers submitted to FCHR, Petitioner claimed he responded to

Ms. Goodman's inquiry by stating that "[s]omeone would be

contacting her in the near future in reference to the

information that [he] was re questing.” Petitioner's testimony

that he informed Respondent on October 1, 2003, that he was

filing a complaint with FCHR is not persuasive.

33. On October 5, 2003, Petitioner signed a written Charge

of Discrimination. He filed the charge with FCHR o n October 7,

2003.

34. In the meantime, Mr. Helms received a complaint from a

female truck driver, Tina Pincumbe, on October 6, 2003. The

complaint involved allegations of sexual harassment by

Petitioner toward Ms. Pincumbe and other female truck drive rs. 2/

35. Upon hearing Ms. Pincumbe's complaint, Mr. Helms

referred her to Ms. Goodman. He made the referral because he

felt Ms. Pincumbe would be more comfortable talking with another

female.

36. Ms. Pincumbe went to Ms. Goodman's office and made a

statement that was reduced to writing. During the interview,

Ms. Goodman told Ms. Pincumbe that it was important for other

women who were uncomfortable with the way Petitioner was

treating them to come forward.

37. Later on October 6, 2003, Janice Sim pson voluntarily

visited Ms. Goodman's office. Ms. Simpson also signed a written

statement, accusing Petitioner of sexual harassment.

38. On October 7, 2003, Sheila Nichols, a female truck

driver, was working light duty in the office. Ms. Goodman

appr oached Ms. Nichols as part of her investigation. Ms.

Nichols subsequently signed a written statement containing

allegations of unwanted advances by Petitioner.

39. On October 7, 2003, Cathie Corrie, a female truck

driver, approached Mr. Helms with alle gations about Petitioner's

unwanted advances. Mr. Helms referred Ms. Corrie to Ms.

Goodman. On October 8, 2003, Ms. Corrie signed a statement

alleging sexual harassment by Petitioner.

40. On October 8, 2003, Ms. Goodman interviewed Mr. Helms

and sever al male truck drivers. On October 9, 2003, Ms. Goodman

interviewed Petitioner, who denied all allegations of sexual

harassment in a written statement. Respondent placed Petitioner

on administrative leave pending completion of the sexual

harassment invest igation.

41. Based on her investigation, Ms. Goodman concluded that

the allegations of sexual harassment by the four females had

merit. She completed a written report and recommended that

Behzad (Steve) Ghazvini, Respondent's owner, discipline

Petition er.

42. Mr. Ghazvini and Mr. Helms met with Petitioner either

October 10, 2003, or October 13, 2003. 3/ During the meeting, Mr.

Ghazvini informed Petitioner that he was discharged from

employment for violating Respondent's policy prohibiting sexual

hara ssment. Mr. Ghazvini terminated Petitioner's employment

based on the similarity of the sexual harassment complaints by

the female truck drivers, Ms. Goodman's judgment that the women

were telling the truth, and out of concern that Respondent would

be mora lly and legally responsible if Petitioner harmed the

female employees.

43. When Mr. Ghazvini made the decision to fire

Petitioner, neither he nor anyone on Respondent's management

team were aware that Petitioner had contacted FCHR to file a

discriminati on complaint. Respondent received notice about the

discrimination complaint for the first time on October 15, 2003.

44. The next two truck drivers that Respondent hired after

terminating Petitioner were Troy Rowells, who was hired on

October 21, 2003, and Darrell Butler, who was hired on

October 22, 2003. Both men are black.

CONCLUSIONS OF LAW

45. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Sections 120.569, 120.57( 1), and 760.11,

Florida Statutes.

46. It is unlawful for an employer to discriminate against

an employee based on race and gender or to retaliate against an

employee who opposes an unlawful employment practice or files a

charge of discrimination. See §§ 760.10(1) and 760.10(7), Fla.

Stat.

47. As a general rule, an amended complaint supersedes

and replaces the original complaint unless the amendment

specifically refers to or adopts the earlier pleading. See

Varnes v. Local 91, Glass Bottle Blowers Asso ciation , 674 F.2d

1365 (11th Cir. 1982). In this case, Petitioner's amended

charge alleged only retaliation as grounds for relief. It did

not adopt or refer to the original charge based on race and

gender/sex discrimination.

48. At the inception of th e hearing, the parties agreed

that retaliation was the only issue and that the race and

gender/sex discrimination claims were only probative as to

providing background information regarding the retaliation

claim. However, the parties were given the opport unity to argue

in their proposed conclusions of law whether racial and gender

discrimination are at issue here. Respondent took advantage of

that opportunity; Petitioner did not.

49. After reviewing the entire record, it is apparent that

FCHR considere d Petitioner's original and amended charge in

making its Determination: No Cause. Therefore, all of

Petitioner's claims are analyzed here using theories of

disparate treatment, hostile work environment, and retaliation.

50. Decisions construing Title VII, United States Civil

Rights Act of 1964, as amended, 42 U.S.C.A. Section 2000E, et

seq. , are applicable in evaluating a claim brought under the

Florida Civil Rights Act of 1992, as amended, Sections 760.01

through 760.11, Florida Statutes. See Harper v. Blockbuster

Entertainment Corporation , 130 F.3d 1385, 1387 (11th Cir. 1998);

Ranger Insurance Company v. Bal Harbour Club, Inc. , 549 So. 2d

1005, 1009 (Fla. 1989).

DISPARATE TREATMENT

51. Petitioner has the ultimate burden to prove

discrimination based on disparate treatment in one of three

ways: (a) by showing direct evidence of discriminatory intent;

(b) by meeting the test for circumstantial evidence set out in

McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S.Ct. 1817

(1973); or (c) by statistic al evidence. See Carter v. City of

Miami , 870 F.2d 578, 581 - 582 (11th Cir. 1989). Petitioner did

not present any statistical evidence of discrimination.

Therefore, only the first two methods of proving discrimination

will be addressed.

Direct Evidence

5 2. "Direct evidence of discrimination would be evidence

which, if believed, would prove the existence of a fact without

inference or presumption." See Castle v. Sangamo Weston, Inc. ,

837 F.2d 1550, 1558 n. 13 (11th Cir. 1988). Confronted with

such evide nce, the employer has to prove that the same

employment decision would have been made absent any

discriminatory intent. See id . at 1558 n. 13.

53. Petitioner presented no direct evidence of sex/gender

discrimination. He did show uncontested evidence tha t someone,

on one occasion, programmed a racial slur into his telephone.

54. "[O]nly the most blatant remarks, whose intent could

be nothing other than to discriminate . . . constitute direct

evidence of discrimination." See Carter , 870 F.2d at 581 - 582 .

Stray comments by non - decision makers are not direct evidence of

discriminatory motive. See Wilde v. Florida Pneumatic Mfg.

Corp. , 941 F. Supp. 1203, 1206 - 1207 (S.D. Fla. 1996). "If an

alleged statement at best merely suggests a discriminatory

motive, then it is by definition only circumstantial evidence."

See Schoenfeld v. Babbitt , 168 F.3d 1257, 1266 (11th Cir. 1999).

55. The racial epithet in Petitioner's phone clearly was

offensive. However, there is no evidence that his supervisor or

anyone i n a position of authority was responsible for tampering

with the telephone. Without more, the isolated incident, over a

period in excess of two years of employment, is insufficient to

show direct evidence of a discriminatory intent on the part of

Responde nt.

Circumstantial Evidence

56. Absent any direct evidence, an employee has the

initial burden of proving a prima facie case of discrimination

based on disparate treatment. See McDonnell Douglas Corp. v.

Green , 411 U.S. at 802. If the employee proves a prima facie

case, the burden shifts to the employer to proffer a legitimate

non - discriminatory reason for the actions it took. See Texas

Department of Community Affairs v. Burdine , 450 U.S. 248, 101

S.Ct. 1089 (1981). The employer's burden is one of p roduction,

not persuasion, as it is always the employee's burden to

persuade the fact finder that the proffered reason is a pretext

and that the employer intentionally discriminated against the

employee. See Burdine , 450 U.S. at 252 - 256.

57. In order t o prove racial or gender/sex discrimination

based on disparate treatment, Petitioner must show the

following: (a) he is a member of a protected group; (b) he was

qualified for the job; (c) he suffered an adverse employment

action; and (d) he was treated l ess favorably than similarly

situated employees who were not members of his protected group.

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

58. Regarding the sex/gender discrimination claim,

Petitioner has not proved that he suffered an adverse employment

action when Mr. Cochran ignored Petitioner's request for

assistance in pulling the truck out of the mud but immediately

provided assistance to the female driver. An "adverse action"

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

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

hiring, firing, granting leave, promoting, and compensating

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

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

Cir. 1992).

59. Petitioner's suspension and termination were adverse

employment actions. However, as to the fourth prong of the

McDonnell Douglas test, Petitioner has not proved that he was

treated less favorably than similarly situated employees,

regardle ss of their race or gender. There is no evidence that

Respondent allowed any other employee to break safety rules by

driving a truck in a reckless manner or to remain employed after

being accused of sexual harassment by multiple members of the

opposite se x.

60. Assuming that Petitioner proved a prima facie case of

disparate treatment based on race or gender discrimination,

Respondent presented persuasive evidence of a legitimate non -

discriminatory reason for every disciplinary action it took.

First, Pe titioner was suspended after the telephone incident

because he broke Respondent's safety rules against reckless

driving. Second, Respondent terminated Petitioner because

Respondent believed that Petitioner was guilty of sexually

harassing four female driv ers.

61. Petitioner has not proved that Respondent's reasons

for suspending him and terminating his employment were a pretext

for discrimination. Under the facts of this case, Petitioner

cannot deny that he acted irresponsibly on February 17, 2003,

aft er the telephone incident. Respondent would have been

justified in firing Petitioner at that time.

62. Petitioner does deny that he sexually harassed the

female drivers, but there is no evidence that Respondent

solicited their statements or conspired w ith them to provide

false statements. To the contrary, the greater weight of the

evidence indicates that Respondent conducted a thorough

investigation and reached a reasonable conclusion based on

voluntary statements by the women. Even the timing of the

sexual harassment complaints in relation to Petitioner's filing

of his discrimination charge does not overcome the weight of the

evidence, showing Respondent's good faith belief that Petitioner

was guilty of making unwanted advances to the females.

63. In the absence of an intent to discriminate based on

Petitioner's race or gender, courts are "not in the business of

adjudging whether employment decisions are prudent or fair," but

rather "whether unlawful discriminatory animus motivates a

challenged empl oyment decision." Pashoian v. GTE Directories ,

208 F. Supp. 2d 1293 (M.D. Fla. 2002). In this case, there is

no persuasive evidence that Respondent intentionally

discriminated against Petitioner based on his race and/or

gender.

HOSTILE WORKING ENVIRONM ENT

64. Petitioner failed to present a prima facie case of

racial or gender discrimination due to a hostile work

environment, which requires proof of the following elements:

(a) the employee belongs to a protected group; (b) the employee

has been subject to unwelcome harassment; (c) the harassment was

based on a protected characteristic; (d) the workplace is

permeated with discriminatory intimidation, ridicule, and insult

sufficiently severe or pervasive to alter the terms or

conditions of employment and to create an abusive working

environment; and (e) the employer is responsible for such

environment under either a theory of vicarious or direct

liability. See Miller v. Kenworth of Dothan, Inc. , 277 F.3d

1269, 1275 (11th Cir. 2002); Lawrence v. Wal - Mart S tores, Inc. ,

236 F. Supp. 2d 1314 (M.D. Fla. 2002).

65. Regarding the first element, Petitioner has shown

unwelcome harassment due to the racial slur in his telephone,

which he immediately reported to Mr. Helms. Petitioner did not

show unwelcome harass ment based on his gender because he did not

complain to Ms. Goodman or Mr. Helms after returning to the

dumpsite and seeing Mr. Cochran assisting the female driver.

66. As to the fourth element, Petitioner was required to

prove that (a) he subjectively perceived the conduct to be

abusive; and (b) a reasonable person objectively would find the

conduct at issue hostile or abusive. See Lawrence , 236 F. Supp.

at 1323. Without a doubt, Petitioner subjectively perceived the

racial slur as abusive. The recor d is not so clear regarding

Petitioner's subjective perception regarding the incident at the

dumpsite. He complained to Mr. Helms about being delayed before

but not after he saw Mr. Cochran assisting the female driver.

67. In determining whether conduc t is objectively hostile,

one must examine the totality of the circumstances, including

the following factors: (a) the frequency of the conduct; (b)

its severity; (c) whether it was physically threatening or

humiliating or merely offensive; and (d) whethe r it unreasonably

interfered with the employee's job performance. See id. at

1324. The conduct at issue must be so extreme as to "amount to

a change in terms and conditions of employment." See Faragher

v. City of Boca Raton , 524 U.S. 775, 788 (1998).

68 . The racial slur may be considered humiliating because

it was directed specifically toward Petitioner. The same cannot

be said about Petitioner's delay at the dumpsite.

69. Additionally, Petitioner has not shown that he was the

subject of racial or g ender discrimination with sufficient

frequency to constitute harassment. The incidents involving the

telephone and the dumpsite were isolated occurrences in over two

years of employment.

70. Finally, Petitioner has not shown that the racial slur

or the incident at the dumpsite altered his working conditions.

It is understandable that the racial slur and Mr. Cochran's

alleged preference for the female driver offended Petitioner.

However, there was no tangible effect or material alteration of

Petitioner 's job performance resulting from either incident.

71. The suspension in February 2003 was due to

Petitioner's reckless driving, which was unreasonable and

unjustified under any circumstances. Petitioner apologized for

his behavior and was promoted to crew chief a few months later.

The incident at the dumpsite on October 1, 2003, lasted less

than an hour and was never repeated. The termination of

Petitioner's employment a few days later was based on

Respondent's good faith belief that Petitioner was g uilty of

sexual harassment and unrelated to Petitioner's allegations of

racial and gender discrimination.

72. Assuming arguendo that the evidence supports

Petitioner's allegations relative to a hostile work environment,

Respondent has satisfied the Fara gher - Ellerth affirmative

defense.

According to the Supreme Court, if a

plaintiff shows that the supervisor effected

a tangible employment action against

plaintiff, the corporate defendant is liable

for the harassment. Faragher , 524 U.S. at

807 - 08, 118 S .Ct. 2275; Burlington Indus.

Inc. v. Ellerth , 524 U.S. 742, 765, 118

S.Ct. 2257, 141 L. Ed. 2d 633 (1998);

Miller , 277 F.3d at 1278. Where, however,

the plaintiff does not show that the

supervisor took a tangible employment

action, the employer may raise an

affirmative defense that it: 1) exercised

reasonable care to prevent and promptly

correct the harassing behavior, and 2) that

the plaintiff unreasonably failed to take

advantage of any preventative or corrective

opportunities the employer provided or t o

avoid harm otherwise. Miller v. Kenworth of

Dothan, Inc. , 277 F.3d at 1278 (citing

Faragher , 524 U.S. at 807, 118 S.Ct. 2275;

Ellerth , 524 U.S. at 765, 118 S.Ct. 2257).

Lawrence v. Wal - Mart Stores, Inc. , 236 F. Supp. at 1327.

73. Here, Respondent ha d a policy prohibiting

discrimination of any kind in the workplace. When confronted

with the racial slur in Petitioner's telephone, Respondent

conducted an appropriate ongoing investigation and successfully

took corrective action to ensure that there woul d be no further

tampering with the driver's telephones.

74. As to the alleged gender discrimination at the

dumpsite, Petitioner did not give Respondent an opportunity to

correct Mr. Cochran's behavior because he did not complain in a

timely manner to Mr . Helms and/or Ms. Goodman as required by

Respondent's employee handbook. To the extent that Respondent

was aware of the dumpsite incident, whatever steps Respondent

may have taken or not taken to prevent recurrence, the incident

was never repeated.

RET ALIATION

75. In order for an employee to prove that his employer

retaliated against him for engaging in a statutorily protected

expression, the employee must show the following: (a) he

engaged in a statutorily protected activity; (b) he suffered an

adver se employment action; and (c) the adverse employment action

was causally related to the protected activity. See Harper v.

Blockbuster Entertainment Corp. , 139 F.3d 1385, 1388 (11th Cir.

1998); Stewart v. Happy Herman's Chesire Bridge, Inc. , 117 F.3d

1278, 1287 (11th Cir. 1997). Although the employee does not

need to prove the underlying claim of discrimination in order to

maintain a retaliation action, he does need to show that he

suffered an adverse employment action prompted by the

statutorily protected expression. See Gupta v. Florida Board of

Regents , 212 F.3d 571, 586 (11th Cir. 2000).

76. An employee's initial burden requires him to show that

the "decision - maker[s] [were] aware of the protected conduct,"

and "that the protected activity and the a dverse action were not

wholly unrelated." See Gupta , 212 F.3d at 578. Close temporal

proximity may be sufficient to show that the protected activity

and the adverse action were not wholly unrelated. See id. at

578.

77. In E.E.O.C. v. Total System Ser vices, Inc. , 221 F.3d

1171, 1176 (11th Cir. 2000), the court states as follows:

[W]e cannot agree that an employer must be

forced to prove . . . more than its good

faith belief that a false statement was

knowingly made. In the kind of

investigation in volved in this case, the

employer is not acting pursuant to the

statute or under color of law, but is

conducting the company's own business.

When an employer is told of improper

conduct at its workplace, the employer can

lawfully ask: is the accusatio n true? When

the resulting employer's investigation (not

tied to the government) produces

contradictory accounts of significant

historical events, the employer can lawfully

make a choice between the conflicting

versions -- that is, to accept one as true and

to reject one as fictitious -- at least, as

long as the choice is an honest choice.

And, at least when the circumstances give

the employer good reason to believe that the

fictitious version was the result of a

knowingly false statement by one of its

employ ees, the law will not protect the

employee's job.

* * *

. . . Therefore, an employer, in these

situations, is entitled to rely on its good

faith belief about falsity, concealment, and

so forth. Cf. Damon, 196 F.3d at 1363 n.3

("An employer who fires a n employee under

the mistaken but honest impression that the

employee violated a work rule is not liable

for discriminatory conduct."); Sempier v.

Johnson Higgins , 45 F.3d 724,731 (3d Cir.

1995)("Pretext is not demonstrated by

showing simply that the emplo yer was

mistaken.")

78. In this case, Petitioner has proved that he

participated in a protected activity by filing a claim with FCHR

on October 7, 2003. Likewise, he has shown that he suffered an

adverse employment action, i.e., termination on October 1 0,

2003, or October 13, 2003. However, he failed to present

persuasive evidence that Respondent's decision - makers were aware

of the pending discrimination charge until Respondent received

it in the mail on October 15, 2003. Accordingly, Petitioner has

no t proved a prima facie case of retaliation.

79. To the extent that Petitioner met his initial burden

to establish a claim of retaliation, Respondent has produced

persuasive evidence of legitimate reasons for Petitioner's

termination, i.e., the sexual ha rassment complaints. Petitioner

did not show that Respondent's reasons were a pretext to mask a

retaliatory action.

80. Respondent received voluntary and unsolicited

statements accusing Petitioner of unwanted sexual advances.

Respondent initiated an i nvestigation, which included taking a

statement from Petitioner, denying all charges. Respondent

found the four females to be credible and elected to believe

their version of events over Petitioner's contradictory

statement. Respondent fired Petitioner b ased on its good faith

belief that Petitioner was guilty of sexual harassment and

without knowledge that Petitioner had filed a claim with FCHR.

Accordingly, Petitioner has not shown that the reasons for his

termination were a pretext for discrimination.

RECOMMENDATION

Based on the forgoing Findings of Facts and Conclusions of

law, it is

ORDERED:

That FCHR enter a final order dismissing the Petition for

Relief.

DONE AND ENTERED this 25th day of August, 2004, in

Tallahassee, Leon County, Florida.

SUZANNE F. HOOD

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 25th day of August, 2004.

END NOTES

1/ Mr. Wight did not testify at the hearing. Testimony

that Mr. Wight denied programming the racial slur into

Petitioner's telephone i s inadmissible hearsay.

2/ Neither Ms. Pincumbe nor any of the other female truck

drivers testified at the hearing. Any reference here to their

allegations of sexual harassment is inadmissible hearsay except

to show Respondent's reaction to the complaint s.

3/ The record is not clear whether Respondent met with

Petitioner to terminate his employment on Friday, October 10,

2003, or Monday, October 13, 2003.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Ap alachee Parkway, Suite 100

Tallahassee, Florida 32301

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Vicki Goodman

Sandco, Inc.

2811 Industrial Plaza Drive

Tallahassee, F lorida 32310

Craig J. Brown, Esquire

Brown & Associates, L.L.C.

223 East Virginia Street

Tallahassee, Florida 32301

Brian S. Duffy, Esquire

McConnaughhay, Duffy, Coonrod,

Pope & Weaver, P.A.

Post Office Drawer 229

Tallahassee, Florida 32302 - 0229

Ga ry R. Wheeler, Esquire

McConnaughhay, Duffy, Coonrod

Pope & Weaver, P.A.

Post Office Box 550770

6816 Southpoint Parkway No. 500 (32216)

Jacksonville, Florida 32255 - 0770

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.