04-002337 Perrin S. Davis vs. North Florida Lubes, Inc., D/B/A Texaco Xpress Lube Status: Closed Recommended Order on Friday, January 14, 2005.

Summary: Petitioner did not meet his burden of proof regarding his charges of unlawful demotion, failure to promote, and unlawful discharge. Recommend dismissal of petition for relief.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PERRIN S. DAVIS, )

)

Petitioner, )

)

vs. ) Case No. 04 - 2337

)

NORTH FLORIDA LUBES, INC, )

d/b/a TEXACO XPRESS LUBE, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice, on September 22,

2004, in Ocala, Florida, before the Division of Administrative

Hearings by its designated Administrative Law Judge, Barbara J.

Staros.

APPEARANCES

For Petitioner: Leonard H. Klatt, Esqu ire

Klatt& Sivic, P.A.

7753 Southwest State Road 200

Ocala, Florida 34476 - 7049

For Respondent: John F. Dickinson, Esquire

F. Damon Kitchen, Esquire

Costangy, Brooks & Smith, LLC

Post Office Box 41099

Jacksonville, Florida 32203 - 1099

STATEMENT OF THE ISSUE

Whether Respondent violated the Florida Civil Rights Act of

1992, as alleged in the Charge of Discrimination filed by

Petitioner on December 8, 2003.

PRELIMINARY STATEMENT

On December 8, 2003, Petitioner, Perrin S. Davis, filed a

Charge of Discrimination with the Florida Commission on Human

Relations (FCHR), which alleged that North Florida Lubes, Inc.,

d/b/a Texaco Xpress Lube, violated Section 760.10, Florida

Statutes (2003), 1/ by discriminating against him on the basis of

race. The Charge of Discrimination alleged wrongful demotion,

failure to pro mote, and wrongful termination.

The allegations were investigated, and on May 26, 2004,

FCHR issued its determination of "No Cause" and Notice of

Determination: No Cause.

A Petition for Relief was filed by Petitioner on June 30,

2004. FCHR transmitted t he case to the Division of

Administrative Hearings (Division) on or about July 6, 2004. A

Notice of Hearing was issued setting the case for formal hearing

on September 22, 2004.

At hearing, Petitioner testified on his own behalf and

presented the testim ony of Jason Yates. Petitioner offered

Exhibits numbered 1 and 2, which were admitted into evidence.

Respondent presented the testimony of Richard Grant, Lawrence

Campbell, James Bailey, Michael Ghent, Marvin Freeman, Brian

Fowler and Perrin Davis. Resp ondent offered into evidence

Exhibits numbered 1 through 3, which were admitted into

evidence.

A Transcript, consisting of two volumes, was filed on

October 14, 2004. On October 20, 2004, the parties filed a

Joint Motion for Extension of Deadline f or Filing Post - Hearing

Submittals. The motion was granted. The parties timely filed

Proposed Recommended Orders which have been considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is an African - American man who was em ployed

by Respondent from July 16, 2003, until his termination on

October 28, 2003.

2. Respondent, North Florida Lubes, Inc., d/b/a/ Texaco

Xpress Lube, is an employer within the meaning of the Florida

Civil Rights Act of 1992. Respondent operates more than 25

Texaco Xpress Lube stores in Florida and is headquartered in

Jacksonville, Florida. Brian Fowler is Respondent’s owner and

president.

3. In the summer of 2003, Respondent acquired two lube

stores and a car wash in Ocala, Florida. Prior to their

acquisition by Respondent, these Ocala stores were owned and

operated by John Costa.

4. One location included both the car wash and lube store

and is located at 3680 East Silver Springs Boulevard. It was

purchased in June 2003 and once acquired, Respo ndent designated

it as Store No. 1018 (1018 Store). The other location, which is

located at 1708 East Silver Springs Boulevard, was acquired by

Respondent in July 2003, is a lube store and has been designated

by Respondent as Store No. 1020 (1020 Store). Respondent leases

the 1020 store from John Costa under a lease purchase agreement.

5. At the time of their acquisition, both stores were in

very poor condition, and Respondent made major repairs and

improvements. The 1020 Store was in worse condition th an the

1018 Store. Due to extensive renovations, the 1020 Store did

not open for business until the beginning of August 2003.

6. At the time Respondent acquired these two Ocala stores,

neither store was earning a profit. The 1018 Store was barely

breaki ng even and had monthly sales revenues dating back to June

of 2002 of between $11,000 and $14,000 per month. These sales

figures were based on a volume of about 350 cars per month and

equated to a monthly ticket average of $28 per car. Prior to

the acqui sition by Respondent, the 1020 Store was doing even

worse with a monthly sales revenue of between only $9,000 and

$11,000.

7. Since Respondent has taken over these stores, they have

virtually doubled their total sales. Currently, Respondent's

1018 Store averages between $32,000 and $34,000 in monthly

sales; whereas the 1020 Store has increased its monthly sales

revenues by 30 percent. Respondent's normal and expected ticket

average company - wide is between $47 and $50 per car.

8. Immediately prior to R espondent’s acquisition of the

two Ocala lube stores, Petitioner worked for Mr. Costa as the

manager of what is now the 1020 Store. He was the manager of

the store for three years and had several years of oil - changing

experience. Another employee of Mr. Costa’s was a white male,

Jason Yates, who managed what is now the 1018 Store.

9. About the time of Respondent’s acquisition of the two

stores, Petitioner went on vacation. When he returned, the 1020

Store was closed, so he went to the 1018 Store. As th ere had

been a change in ownership, Petitioner applied to work for

Respondent. He was offered and accepted a job as an oil changer

and lube technician with Respondent and began work at the 1018

Store. Mr. Yates also was offered and accepted a position as an

oil changer and lube technician with Respondent.

10. Mr. Yates began employment with Respondent in June

2003 at the 1018 Store, several weeks before Petitioner began

his employment with Respondent. Both Petitioner and Mr. Yates

believed they were in t raining for a management position.

However, there is not an official job title of "manager - in -

training" within Respondent’s company. Hourly employees can

receive on - the - job managerial training. In any event, there is

no dispute that both Petitioner and Mr. Yates performed oil

changing duties and that Respondent provided Petitioner with

some managerial training during his employment.

11. When Petitioner began working at the 1018 Store, Mark

Shepherd was store manager and was responsible for training new

s taff with Respondent’s business practices and rules.

Mr. Shepherd showed Petitioner how to run Respondent’s computer

software programs, how to calculate money received, and how to

open and close the store.

12. Then Respondent transferred Richard Grant, a n

experienced store manager from Respondent’s Daytona Beach area,

to manage the 1018 Store. Mr. Grant supervised Petitioner for a

couple of months before Mr. Grant voluntarily resigned due to

what he described as the pressure associated with running the

1 018 Store.

13. Petitioner was given on - the – job training with respect

to making sales and greeting customers. According to Mr. Grant,

Petitioner was not good at greeting customers or making sales

because he was slow, quiet, and not out - going. Mr. Grant

described Petitioner as having a poor attitude and always

complained about the way Respondent did things and the

operational changes since Respondent’s acquisition of the store.

Respondent emphasized to Mr. Grant that it wanted its employees

to be energet ic, enthusiastic, and upbeat, and Mr. Grant felt

that Petitioner did not have those characteristics.

14. Mr. Grant repeatedly counseled Petitioner about

wearing his safety glasses while at work, which was part of

Respondent’s safety policy. Further, Mr. Grant counseled

Petitioner on the importance Respondent placed on maintaining

clean work areas. He described Petitioner’s work area as not

clean and the worst "basement" (i.e., oil changing area) that he

had ever seen.

15. Larry Campbell is a regional or district manager for

Respondent. This position is directly under the president of

the company in the chain - of - command. Mr. Campbell oversees

approximately a dozen lube stores and the car wash. He spent a

great deal of time in the 1018 Store during Peti tioner’s

employment there. At one point, Mr. Campbell was asked by

Mr. Grant if he should fire Petitioner. However, Mr. Campbell

wanted to give Petitioner a chance to come around to

Respondent’s way of doing business. Specifically, on a daily

basis, he gave Petitioner the opportunity to greet customers,

ring out tickets, work on the computer, work the clipboards, and

conduct sales.

16. However, Mr. Campbell also expressed similar concerns

regarding Petitioner, to those of Mr. Grant. According to

Mr. C ampbell, Petitioner was quiet, slow, lacked energy and

enthusiasm, was resistant to Respondent's ways of doing things,

and would not smile or make eye contact with the customers.

Although Petitioner received training on Respondent's

procedures, he did not follow those procedures, even after being

counseled by Mr. Campbell to do so. Petitioner also would not

promote sales or specials that Respondent was offering to the

customers despite being counseled to do so by Mr. Campbell.

17. Mr. Campbell also descr ibed Petitioner as consistently

displaying a bad attitude at work that got worse as the day

progressed. As a regional manager, Mr. Campbell, along with

Respondent's president and owner, Mr. Fowler, participates in

the hiring of store managers. Respondent looks for positive,

motivated, and enthusiastic individuals with leadership

qualities; however, Mr. Campbell did not observe these qualities

in Petitioner.

18. Mr. Fowler also had occasion to observe Petitioner's

attitude and work ethic at the 1018 Store . Like both Messrs.

Grant and Campbell, Mr. Fowler found Petitioner to be quiet,

stand - offish, and resistant to Respondent's way of doing things.

Respondent's Business Philosophy and Practices

19. Although both Mr. Costa and Respondent successively

opera ted oil change businesses in the same two locations, the

manner in which these two businesses were run was very

different. Respondent has uniform standards to which all

employees are required to adhere, regardless of whether they are

responsible for sales , changing oil, greeting the customers, or

ringing the customers out. Respondent has policies and

procedures for how every position is to be performed.

Respondent also has policies addressing how its employees will

act, communicate, conduct themselves, a nd dress in the

workplace.

20. For example, employees are required to be well - groomed

and wear clean uniforms with their shirt tails tucked in.

Further, employees are specifically required to use certain

commands and perform services in a certain order.

2 1. By contrast, Mr. Costa's lube stores had no procedures

or controls, no communications, no "echo system," and no

standard methodology for servicing cars.

22. In Respondent's business, efficiency is considered to

be critical. As a result, Respondent st rives to service each

car in under ten minutes and places an emphasis upon its

employees to "hustle" while on the job. In particular,

Respondent has a "five second" rule, which mandates that its

employees must greet a customer within five seconds of the

c ustomer's arrival. Respondent specifically trains its

employees concerning not only how to work quickly, but also how

to appear knowledgeable, friendly, and helpful to its customers.

23. Unlike Respondent, the previous owner placed no such

pressures on h is employees. Similarly, Respondent has

established a ticket average quota, which the previous owner

did not.

24. Respondent also has strict safety policies. These

policies are reduced to writing and are reviewed with all of

Respondent's employees. Thes e safety policies have been

approved by OSHA and all employees are expected to follow them.

One such safety policy is the requirement that employees wear

safety goggles or glasses at work.

25. In Respondent's very competitive business, all

employees, no matter what position they hold, are expected to

exhibit an upbeat and enthusiastic attitude. Respondent’s

philosophy is that a negative attitude can drain the efficiency

of the work team at a store. Also, a positive attitude is

considered important beca use each day, every employee of

Respondent's has some customer interaction. Respondent believes

that a positive attitude is so critical for its employees to

have that it states on the first page of its Employee Handbook

that:

North Florida Lube s is committed to service

excellence, quality control and employee

personality. North Florida Lubes demands

the highest standards from its employees, as

the quick lube and car wash industries

become more and more competitive every year.

Over the years, N orth Florida Lubes has

improved training methods, computer systems,

equipment and service procedures to insure

the highest level of employee and customer

satisfaction. It is the philosophy of North

Florida Lubes that well trained employees,

with positive attitudes, will enjoy a long,

fulfilling career with any company they

choose to work for.

At North Florida Lubes, we hope that you

will enjoy your employment experience and

that you will be involved with the growth of

America's fastest growing Texaco Xpre ss Lube

operator. Remember, a consistent positive

attitude, dependability and personality will

be your greatest assets in growing with

North Florida Lubes.

Respondent's Promotion of Other Employees to the Position

of Store Manager.

26. Respondent did no t promise Petitioner that he would be

promoted to a store manager position. Notably, Petitioner

acknowledges that at the time he was hired by Respondent, that

he had not yet learned Respondent's methods of operation.

Pe titioner also acknowledges at the t ime he was hired, the 1018

Store had both a store manager, Mark Shephard, and an area

manager, Mike Dogherty, based there. Petitioner further

concedes that Respondent never told him that he was not being

considered for a managerial position because he was African -

American.

27. The determination of who is or is not qualified to be

promoted to the position of manager of one of Respondent's lube

stores is made by Messrs. Fowler and Campbell. Respondent's

promotion policy states that if there are two or more employees

whose qualifications are similar, seniority will be part of the

selection decision, but the decision will not be made on that

basis alone. It also clearly states that an employee must be

qualified in order to receive a promotion and that if there are

no qualified applicants within the company, the best qualified

candidate will be chosen.

28. In early August of 2003, Mr. Campbell transferred

Mr. Yates to be the manager of the newly - opened 1020 Store. At

the time, Mr. Yates had more seni ority and experience working

for Respondent than Petitioner did, as he had been working at

the 1018 Store about a month - and - a - half longer than Petitioner.

Mr. Campbell decided to place Mr. Yates in charge of the 1020

Store because he had achieved all of t he goals Respondent was

looking for. Specifically, Mr. Yates met Respondent's ticket

average, he could operate the computer, and he followed

Respondent's procedures. Mr. Campbell also described Mr. Yates

as energetic and trying to apply himself.

29. By contrast, Mr. Campbell found that Petitioner did

not perform these same functions, despite being given numerous

opportunities to do so and despite being given instruction as to

what he was doing wrong. Mr. Campbell specifically counseled

Petitioner w hile he was receiving on - the - job managerial training

that he was not getting the job done. Ultimately, because of

his poor attitude, lack of leadership skills, inability to meet

Respondent's ticket average, and promote Respondent's products

and services, Mr. Campbell, and ultimately Mr. Fowler,

determined that Petitioner was not appropriately suited to be

one of Respondent's store managers.

30. Under Respondent's promotion policy, if there are no

qualified applicants within the company to fill a vacancy,

Respondent may look outside of the company to hire the best

qualified applicant. This is what Respondent did with James

Bailey when it determined Petitioner to be not qualified.

After Mr. Grant resigned as manager of the 1018 Store in early

October of 2003, Respondent hired James Bailey, a white male, to

manage that facility. At the time Mr. Bailey was applying for

this position, Messrs. Campbell and Fowler had already

determined that Petitioner did not have the necessary

qualifications to be one of Re spondent's store managers. Upon

making this determination, Mr. Campbell informed Petitioner that

he was not suited to be one of Respondent's store managers.

31. Mr. Bailey was interviewed by Mr. Campbell and then

hired by Messrs. Campbell and Dougherty, with Mr. Fowler's

approval. Prior to working for Respondent, Mr. Bailey had spent

approximately eight years working for Denro Service Center as an

automotive mechanic's helper. In that capacity, he performed

oil changes, lube jobs, tune - ups and brake job s in New York.

Over the course of his employment with Denro Service Center,

Mr. Bailey performed hundreds, if not thousands, of oil changes.

Mr. Bailey also possessed approximately 15 years of managerial

experience before coming to work for Respondent. In particular,

he had managed a Subway Restaurant and a Kwik King Convenience

Store, as well as the Denro Service Center. During the time he

managed a Subway Shop, he doubled that store's sales and credits

himself with driving the Miami Sub Shop across th e street out of

business.

32. Since Mr. Bailey became the manager of the 1018 Store,

the sales at that location have drastically increased. By

following Respondent's system to the letter, the 1018 Store went

from monthly sales of $13,000 in January of 20 03 (i.e., when

Costa owned it) to $35,000 in January of 2004.

33. In addition to Messrs. Grant, Campbell, and Fowler,

Mr. Bailey also had an opportunity to observe Petitioner while

he worked at the 1018 Store. Mr. Bailey described Petitioner as

being unm otivated, lackadaisical, stand - offish, unprofessional,

and surly. According to Mr. Bailey, Petitioner spent more time

at work on his personal cell phone than he did working on cars.

34. Mr. Campbell insists that Petitioner's race played no

role in the de cision not to promote Petitioner. Mr. Campbell

has promoted several African - American employees, including

Michael Ghent and Marvin Freeman, to managerial positions in

Respondent's operations. Mr. Campbell has also recommended

another African - American for such a promotion, but that employee

declined.

35. Mr. Ghent has managed a store for Respondent for

approximately nine years and asserts that he has never

experienced anything which he considered to be racial

discrimination from Mr. Campbell. Similarly, Mr. Freeman

currently serves as a store manager for Respondent and has

managed a total of four of Respondent's stores. Mr. Freeman is

familiar with Messrs. Fowler, Campbell, and Dogherty and asserts

that he has never been subjected to racial discriminati on by any

of these individuals. Further, Mr. Campbell recommended

Mr. Freeman for a promotion which he received, and Mr. Freeman

was hired back after he voluntarily left employment to work for

another company.

Respondent's Termination of Petitioner

36. According to Mr. Campbell, Petitioner's attitude and

work ethic declined further after Respondent hired Mr. Bailey.

In particular, Mr. Campbell described Petitioner as always

having a negative attitude and showed no interest in doing

things the way Respo ndent wanted them done. Although

Mr. Campbell spoke to Petitioner about his deteriorating

attitude before he was terminated in an effort to allow him to

change, Mr. Campbell did not observe improvement in Petitioner's

work habits.

37. On October 28, 2 003, Respondent terminated

Petitioner's employment. Although Messrs. Campbell, Dogherty,

and Fowler were involved in the decision to terminate

Petitioner, Mr. Fowler made the ultimate decision. The decision

to terminate Petitioner was made because of Pet itioner's:

(a) negative attitude, which was impacting Respondent's other

staff; (b) unwillingness to learn Respondent's way of doing

things; and (c) constant resistance to the changes Respondent

implemented in the workplace. At the time of his terminatio n,

Petitioner had been given almost four months to turn his

attitude and performance problems around, yet he had not done so

to the satisfaction of Respondent.

Petitioner's Allegations of Discrimination

38. Petitioner initially claimed that three employe es of

Respondent, Messrs. Campbell and Dogherty, and Kathy Dogherty,

are the individuals who discriminated against him on the basis

of his race. Ms. Dogherty was the manager of the car wash

facility which was also located at the 1018 Store. Petitioner

al leges she made racially offensive comments to him. Petitioner

acknowledges that store managers, Messrs. Shepherd and Grant,

did not discriminate against him and now concedes that

Mr. Dogherty did not make any racially derogatory remarks

against him and d id not articulate any other form of

discrimination regarding Mr. Dogherty.

39. Ms. Dogherty did not testify at the hearing.

Accordingly, any alleged statements by her are hearsay and are

not sufficient in itself to support a finding of fact as

contemplat ed by Subsection 120.57(1)(c), Florida Statutes.

40. Petitioner asserts that Mr. Campbell made two racially

discriminatory remarks about him. On one occasion, Petitioner

alleges that Mr. Campbell stated that he (Petitioner) made more

money on his cell ph one than he did working for Respondent.

Petitioner never heard Mr. Campbell make this statement nor did

he ever confront Mr. Campbell about the statement, after

learning of it, to ascertain what Mr. Campbell may have meant by

it, because he "didn't want to rock the boat." Instead, this

statement was overheard by Mr. Yates, who perceived Mr. Campbell

to mean that because Petitioner was African - American, he must be

selling drugs on his cell phone. Mr. Yates admitted, however,

that Mr. Campbell did not say a nything about Petitioner's race

when making this statement and that he did not know what

Mr. Campbell's intent was in making this statement. Mr. Yates

further conceded that he witnessed Petitioner on his cell phone

at the time Mr. Campbell made this state ment and that

Petitioner, who was being paid an hourly wage, was talking on

his personal cell phone while on company time. Mr. Yates also

acknowledged that Respondent had a policy in its Employee

Handbook restricting the receipt of personal calls while at

work.

41. Mr. Campbell acknowledges making the statement that

Petitioner made more money on his cell phone than he did working

for Respondent, but denies that he intended any racially

derogatory connotation or that he was implying Petitioner was

dealing drugs. According to Mr. Campbell, Petitioner spent an

inordinate amount of time on his cell phone attending to

personal business while on company time, instead of performing

work; thus, what he meant to convey was that Petitioner was

being paid by Respond ent to be on the phone instead of

performing his job. Petitioner's cell phone usage while at work

was frustrating to Mr. Campbell because it was not productive,

it caused a distraction in the workplace, and it was contrary to

Respondent's personal phone c all policy.

42. Mr. Campbell was not the only one of Petitioner's

supervisors to remark about Petitioner's excessive cell phone

usage at work. Mr. Bailey asserted that Petitioner spent more

time talking on his cell phone than he did working on cars and

that Petitioner was on his cell phone while draining oil from

the customer's cars. Similarly, Mr. Grant noted that Petitioner

used his cell phone while on company time "quite a lot."

43. Respondent's Quarterback Rating System is a

percentage - based rating system for Respondent's managers similar

to the system used in the National Football League (NFL) for

rating quarterbacks and consists of four rating categories:

(1) meeting the monthly sales quota; (2) meeting the agreed - upon

ticket average; (3) servici ng a certain number of cars per

month; and (4) not exceeding the labor cap. Petitioner alleges

that once while explaining Respondent's Quarterback Rating

System, Mr. Campbell instead talked to him about a basketball

analogy so that Petitioner could unders tand it. Mr. Campbell,

while acknowledging talking about basketball and other sports to

Petitioner, denies ever making such a comment and further states

that he cannot envision how to explain Respondent's Quarterback

Rating System via a basketball analogy , because it is distinctly

based upon the game of NFL football (which has a quarterback)

and is not comparable to the game of basketball (which does not

have a quarterback and does not use a similar rating system).

44. After weighing the credibility of th e witnesses, the

undersigned finds Mr. Campbell's explanation of any basketball

reference to be credible and such explanation is accepted.

45. Petitioner acknowledges that he never complained to

Mr. Fowler about any racial remarks or discrimination at any

time during his employment.

CONCLUSIONS OF LAW

46. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this case.

§§ 120.569 and 120.57, Fla. Stat.

47. Petitioner is a person and Respondent is an employe r

as defined within the Florida Civil Rights Act of 1992. See

§ 760.02(6) and (7), Fla. Stat.

48. Section 760.10(1), Florida Statutes, states that it is

an unlawful employment practice for an employer to discharge or

otherwise discriminate against an ind ividual on the basis of

race.

49. In discrimination cases alleging disparate treatment,

Petitioner bears the burden of proof which can be established

either through direct or circumstantial evidence. See , e.g. ,

Bass v. Board of County Commissioners , 265 F .3d 1095, 1103 (11th

Cir. 2001); Carter v. Three Springs Residential Treatment , 132

F.3d 635, 641 (11th Cir. 1998).

50. Direct evidence is "evidence, which if believed,

proves the existence of fact in issue without inference or

presumption." Carter , 132 F .3d at 641; accord Merritt v.

Dillard Paper Corp. , 120 F.3d 1181, 1189 (11th Cir. 1997).

Specifically, "direct evidence relates to actions or statements

of an employer reflecting a discriminatory or retaliatory

attitude correlating to the discrimination o r retaliation

complained of by the employee." Carter , 132 F.3d at 641.

"'[O]nly the most blatant remarks, whose intent could be nothing

other than to discriminate on the basis of [race] . . .

constitute direct evidence of discrimination.'" Bass , 256 F.3 d

at 1105; quoting Damon v. Fleming Supermarkets of Florida, Inc. ,

196 F.3d 1354, 1358 (11th Cir. 1999) (brackets in original).

Moreover, for statements of discriminatory intent to constitute

direct evidence, they must be made by the person involved in th e

challenged decision. See , e.g. , Bass , 256 F.3d at 1105; and

Trotter v. Board of Trustees of the University of Alabama , 91

F.3d 1449, 1453 - 1454 (11th Cir. 1996).

51. In the present case, none of the alleged racially

derogatory statements attributable to Mr. Campbell rise to the

level of direct evidence of discrimination.

52. The statement attributable to Mr. Campbell concerning

Petitioner earning more money on his cell phone than he did

working for Respondent, although made by a decision - maker,

clearly do es not constitute the most blatant remark that proves

the existence of fact without inference or presumption.

Similarly, Mr. Campbell's alleged use of a basketball analogy to

explain Respondent's percentage - based rating system for its

managers because Pet itioner was African - American, even if true,

does not constitute direct evidence of discrimination, as it is

not tied to any adverse employment action and does not relate

directly to the decisions not to promote and to terminate

Petitioner .

53. In discrimi nation cases alleging disparate treatment,

P etitioner generally bears the burden of proof established by

the United States Supreme Court in McDonnell Douglas v. Green ,

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

v. Burdine , 450 U.S. 248 (1981). 2/ Under this well - established

model of proof, the complainant bears the initial burden of

establishing a prima facie case of discrimination. When the

charging party, i.e. , the Petitioner, is able to make out a

prima facie case, the burden to go fo rward shifts to the

employer to articulate a legitimate, non - discriminatory

explanation for the employment action. See Department of

Corrections v. Chandler , 582 So. 2d 1183 (Fla. 1st DCA 1991)

(court discusses shifting burdens of proof in discrimination

cases). The employer has the burden of production, not

persuasion, and need only persuade the finder of fact that the

decision was non - discriminatory. Id. Alexander v. Fulton

County, Georgia , 207 F.3d 1303 (11th Cir. 2000). "The employee

must satisfy t his burden by showing directly that a

discriminatory reason more likely than not motivated the

decision, or indirectly by showing that the proffered reason for

the employment decision is not worthy of belief." Department of

Corrections v. Chandler , supra , at 1186; Alexander v. Fulton

County, Georgia , supra . Petitioner has not met this burden.

54. With respect to Petitioner's claims of demotion,

Petitioner must establish the following prima facie case:

(a) that he was a member of a protected minority; (b ) that he

was qualified for the position he held; (c) that he was demoted

from the position he held; and (d) that the position was filled

by a non - minority. See St. Mary's Honor Center v. Hicks , 509

U.S. 502, 506 (1993). Petitioner, however, failed to me et this

threshold burden. The term "demotion" is defined as "[a]

reduction to a lower rank or grade, or to a lower type

position." See Black's Law Dictionary , 225 (Abridged 5th Ed.

1983). Petitioner clearly did not experience a reduction to a

lower rank , grade, or type of position. His managerial position

was with the previous owner and did not carry forward to

Respondent. He was hired as an oil changer and lube technician

and remained in that position until his termination.

55. In order to establish a prima facie case of racial

discrimination concerning his "failure to promote" claim,

Petitioner must establish that: (a) He was a member of a

protected minority; (b) He was qualified and applied for the

promotion; (c) He was rejected despite his qualific ations; and

(d) Equally or less qualified employees who are not members of

the protected minority were promoted. See Alexander v. Fulton

County , supra at 1339; citing Taylor v. Runyon , 175 F.3d 861,

866 (11th Cir. 1999); and Wu v. Thomas , 847 F.2d 1480, 1 483

(11th Cir. 1988).

56. Petitioner has arguably met his burden of proving a

prima facie case regarding the issue of promotion. First, he is

a member of a protected class. As to his qualifications,

Petitioner presented evidence that he had several yea rs of oil

changing experience and had managed Mr. Costa's store for three

years. No objective job qualifications or evaluations (e.g., a

job vacancy announcement) are in evidence. Thus, regarding

Petitioner's prima facie burden, it is difficult to object ively

quantify the difference in Petitioner's and Mr. Bailey's

qualifications. See Carter v. Three Springs Residential

Treatment , 132 F.3d at 644 (Requirement such as ability to

relate to people in a manner to win confidence is incapable of

objective eval uation and employer cannot rely upon such

requirements to defeat plaintiff's prima facie case by showing

that the plaintiff is less qualified than the person chosen for

the promotion.)

57. However, Respondent has met its burden of production

by articulat ing a legitimate, non - discriminatory explanation of

the employment action taken. Respondent presented ample

evidence that its motivations in not promoting Petitioner were

reasonable and were not racially motivated. Although Respondent

did promote both Me ssrs. Yates and Bailey to the positions of

store managers, Petitioner failed to demonstrate that he

possessed greater qualifications than these individuals. It is

undisputed that at the time of his promotion to store manager,

Mr. Yates had greater seniori ty with Respondent than did

Petitioner (who had only been working for Respondent for

approximately two weeks). Petitioner also failed to refute

Mr. Campbell's testimony that Mr. Yates was energetic, was

applying himself, had mastered Respondent's computer system, and

met Respondent's ticket average, whereas Petitioner did not.

Mr. Bailey possessed significant mechanical experience and

possessed approximately 15 years of managerial experience

compared to Petitioner's three years of managerial experience

wi th Mr. Costa's business.

58. Further, the testimonies of Messrs. Campbell, Grant,

Fowler, and Bailey were consistent that Petitioner was

unenthusiastic and did not have an upbeat attitude, was slow and

lacked initiative, was unable to maintain the store's ticket

average, was unable to effectively greet customers and/or

promote sales, and continuously refused to comply with

Respondent's policies, procedures, and service requirements.

W here an employer proffers reasonable motivations for its

promotional deci sions, it is not up to the court to question the

wisdom of the employer's reasons. See , e.g. , Combs , 106 F.3d

1543; and Damon , 196 F.3d at 1361 ("we are not in the business

of adjudging whether employment decisions are prudent or fair.

Instead, our sole concern is whether unlawful discriminatory

animus motivates a challenged employment decision.")

59. Subjective evaluations of a job candidate are

appropriate to be considered as part of an employer's decision -

making process in the context of an employer's burden of

production of legitimate, non - discriminatory reasons for an

employment decision. Personal qualities, such as "common sense,

good judgment, originality, ambition, loyalty, and tact" factor

heavily into employment decisions concerning supervisory

positions. See Denney v. City of Albany , 247 F.3d 1172, 1186

(11th Cir. 2001); quoting Watson v. Fort Worth Bank & Trust , 487

U.S. 997, 991 (1988). "Subjective reasons are not the red -

headed stepchildren of proffered nondiscriminatory explanations

for e mployment decisions . . . A subjective reason is a legally

sufficient, legitimate non - discriminatory reason if the

defendant articulates a clear and reasonably specific factual

basis upon which it based its subjective opinion." Chapman v.

A.Iansport , 229 F.3d 1012, 1033 - 1034 (11th Cir. 2000) (en

banc).

60. "In a failure to promote case, [Petitioner] cannot

prove pretext by simply showing that [he] was better qualified

than the individual[s] who received the position[s] that [he]

wanted . . . '[D]isp arities in qualifications are not enough in

themselves to demonstrate discriminatory intent unless those

disparities are so apparent as to virtually jump up and leap off

the page and slap you in the face.'" Denney , 247 F.3d at 1187,

quoting Lee v. GTE Flo rida, Inc. , 226 F.3d 1249, 1253, 1254

(11th Cir. 2000). No such disparities exist with respect to

Petitioner's qualifications and those of Messrs. Yates or

Bailey. Consequently, Petitioner did not meet his burden of

showing that a discriminatory reason, more likely than not,

motivated Respondent's decision - making, or of showing that

Respondent's proffered reasons are not worthy of belief.

Consequently, Petitioner has failed to prove pretext.

61. As to Petitioner's discriminatory discharge claim, to

estab lish a prima facie case, he must show he is a member of a

protected class, he was qualified for the job from which he was

fired, and that employees who are not members of the protected

class performed their duties in a similar fashion, but were not

termina ted. See McDonald , supra .

62. In determining whether the third prong of this prima

facie test is met, the court must consider whether similarly -

situated non - minority employees have been involved in, or

accused of, the same or similar conduct, but have be en

disciplined in a different way than Petitioner. Holifield v.

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

Ford Motor Co. , 14 F.3d 1305, 1309 (8th Cir. 1994). If

Petitioner fails to show the existence of a similarly - situated

employee who has been treated more favorably than him, he cannot

establish a prima facie case. Holifield , 115 F.3d at 1562. In

the present case, Petitioner has not provided any proof that

Respondent had similarly - situated Caucasian employees who

exhibited the sam e or similar attitude and performance problems

that it did not terminate. Thus, he has not established his

prima facie burden.

63. However, even if Petitioner had established his prima

facie burden, Respondent has articulated legitimate non -

discriminatory reasons for its termination decision. The

testimonies of Messrs. Campbell, Grant, Bailey, and Fowler were

consistent regarding Petitioner's poor attitude, unsatisfactory

work ethic, and substandard performance. These individuals also

agreed regarding th e qualities and characteristics required of

the staff who work for Respondent and how Petitioner either

failed or refused to exhibit those qualities and

characteristics. Further, Respondent's president and owner,

Mr. Fowler noted, that after approximately four months of

attempting to rehabilitate Petitioner's poor attitude and

performance, Respondent made the decision to terminate him. As

set forth above, Respondent's subjective, non - discriminatory

reasons for terminating Petitioner are legally sufficient .

Petitioner has not come forward with any evidence to demonstrate

that more likely than not, Respondent's reasons are a pretext

for unlawful discrimination or that these reasons are unworthy

of belief.

64. In summary, Petitioner has failed to carry his b urden

of proof that Respondent has engaged in unlawful racial

discrimination by demoting him, denying him a promotion, or

terminating his employment. At most, Petitioner has produced

nothing more than some stray remarks and his own speculation

concerning the motives for Respondent's actions. This is

insufficient. See Lizaro v. Denny's, Inc. , 270 F.3d 94, 104 (2d

Cir. 2001) ("Plaintiffs have done little more than cite to their

mistreatment and ask the court to conclude it must have been

related to their r ace. This is not sufficient.")

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law set forth herein, it is

RECOMMENDED:

That the Florida Commission on Human Relations enter a

final order dismissing the Petition for Relie f.

DONE AND ENTERED this 14th day of January, 2005, in

Tallahassee, Leon County, Florida.

S

___________________________________

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Par kway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of January, 2005.

ENDNOTES

1/ All references to Florida Statutes is to 2003, unless

otherwise indicated.

2/ FCHR and Florida courts have determined that federal

discrimination law should be used as guidance when construing

provisions of Section 760.10, Florida Statutes. See Brand v.

Florida Power Corporatio n , 633 So. 2d 504, 509 (Fla. 1st DCA

1994).

COPIES FURNISHED :

Leonard H. Klatt, Esquire

Klatt & Sivic, P.A.

7753 Southwest State Road 200

Ocala, Florida 34476 - 7049

John F. Dickinson, Esquire

F. Damon Kitchen, Esquire

Costangy, Brooks & Smith, LLC

Pos t Office Box 41099

Jacksonville, Florida 32203 - 1099

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Cecil Howard, General Counsel

Florida Commission on Human Relations

20 09 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order sh ould be filed with the agency that

will issue the final order in this case.