04-002854 Dennis Blacknell vs. Freight Management Services, Inc. Status: Closed Recommended Order on Wednesday, October 27, 2004.

Summary: Petitioner failed to prove that Respondent committed discriminatory employment practices against him, and even if proved, Petitioner would only be entitled to nominal damages because of his failure to prove any actual damages.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DENNIS BLACKNELL, )

)

Petitioner, )

)

vs. ) Case No. 04 - 2854

)

FREIGHT MANAGEMENT SERVICES, )

INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant t o notice, a final hearing was held in this case

on October 6, 2004, in St. Petersburg, Florida, before T. Kent

Wetherell, II, the designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Dennis Blacknell , pro se

4609 Eighteen Avenue, South

St. Petersburg, Florida 33711

For Respondent: No appearance

STATEMENT OF THE ISSUES

The issues are whether Respondent committed discriminatory

employment practices against Petitioner in violation of Ch apter

70 of the Pinellas County Code as alleged in the Complaint, and

if so, what is the appropriate remedy.

PRELIMINARY STATEMENT

Petitioner filed a charge of discrimination against

Respondent, Freight Management Services, Inc. (FMS), with the

City of S t. Petersburg’s Human Relations Division. The charge

was investigated by the Human Relations Officer, who found

reasonable cause to believe that FMS committed discriminatory

employment practices against Petitioner in violation of Chapter

70 of the Pinella s County Code (Pinellas Code).

Through a three - count Complaint dated July 13, 2004, the

Human Relations Officer formally alleged that FMS committed

discriminatory employment practices against Petitioner based

upon his race. Thereafter, on August 13, 2004, this matter was

referred to the Division of Administrative Hearings (Division)

for the assignment of an administrative law judge to conduct a

hearing on the Complaint.

The final hearing was scheduled for and held on October 6,

2004. At the hearing, Petit ioner testified in his own behalf

and offered Exhibits P1 through P4, all of which were received

into evidence. FMS did not appear at the hearing and, as a

result, no witnesses or exhibits were presented on its behalf.

No Transcript of the hearing was fil ed. The parties were

given 10 days from the date of the hearing to file proposed

recommended orders (PROs). Neither party filed a PRO.

FINDINGS OF FACT

A. Parties

1. Petitioner is a 44 - year - old African - American male.

2. FMS is a package delivery co mpany that does business in

Pinellas County. According to Petitioner, FMS has more than 100

employees.

3. FMS was provided due notice of the date, time, and

location of the final hearing in this case, but no appearance

was made on its behalf.

B. Petitio ner’s Job Duties and Salary at FMS

4. Petitioner started working for FMS in late 1999 or

early 2000 as a “driver.”

5. Petitioner’s primary job responsibility was to drive a

delivery truck along a designated route to deliver and pick up

packages. Petiti oner was also responsible for loading the to -

be - delivered packages on his truck in the morning and then

unloading any picked - up packages from his truck in the evening.

6. Petitioner worked Monday through Friday. His shift

started at 7:00 a.m. each day.

7. Petitioner’s gross pay was initially $650 every two

weeks, but at some point Petitioner's salary was increased to

$750 every two weeks. 1

8. Petitioner did not receive health or dental insurance

or other benefits.

C. Failure to Switch Trucks as Dire cted

(Complaint, Count III)

9. Chronologically, the first event alleged in the

Complaint as a basis of Petitioner’s discrimination claim

started on the morning of Friday, February 8, 2002, when

Petitioner’s boss, Tom Aliotti, directed Petitioner to switc h

trucks with another driver named Eddie.

10. Later that day, Mr. Aliotti told Petitioner that he

would switch the trucks over the weekend. As a result,

Petitioner and Eddie did not switch the trucks on Friday.

11. The trucks were not switched over the weekend, and on

the morning of Monday, February 11, 2002, Mr. Aliotti again

directed Petitioner to switch trucks with Eddie.

12. Petitioner did not switch the trucks on Monday morning

as directed by Mr. Aliotti because he was too busy preparing to

run his delivery route.

13. Petitioner testified that Eddie was equally

responsible for the trucks not getting switched because he could

not switch trucks with Eddie without Eddie’s participation;

however, it is unclear from Petitioner’s testimony what

specif ically Eddie did or did not do in regard to switching the

trucks.

14. After Petitioner failed to switch the trucks on Monday

as directed, he was given a written reprimand for

insubordination by Mr. Aliotti.

15. The written reprimand, which is referred t o as a

Counseling Sheet ( see Exhibit P4), stated: “[Petitioner] will

switch trucks tonite [sic] 2/11/02 or [he] will not be working

2/12/02. Day off without pay.”

16. Petitioner testified that he did not switch the trucks

even after the directive on th e Counseling Sheet.

17. It is unclear from Petitioner’s testimony whether he

was suspended without pay on February 12, 2002.

18. According to Petitioner, Eddie was not reprimanded for

the incident.

19. It is unclear from Petitioner’s testimony whether a

reprimand was appropriate for Eddie because it is unknown

whether Mr. Aliotti also told Eddie to switch the trucks and, as

stated above, it is unclear from Petitioner’s testimony what

specifically Eddie did or did not do to frustrate the truck

switching.

20. Eddie, like Petitioner, is an African - American male.

D. Attendance Issues in March 2002

(Complaint, Counts I and II)

21. The other allegations of discrimination in the

Complaint relate to discipline imposed on Petitioner for his

unexcused absence s from work on several occasions in March 2002.

22. Petitioner submitted a written request for a half - day

of leave on Friday, March 1, 2002, in which he stated that he

needed to “go out of town to attend a funeral” because of a

“death in [his] family.” S ee Exhibit P1, at page 3.

23. That request was approved, and Petitioner was expected

to be back at work on Monday, March 4, 2002.

24. Petitioner attended the funeral of his brother in

Largo, Florida, on Saturday, March 2, 2002. Later that same

day, he traveled to Madison, Florida, to attend funeral services

for his uncle. See Exhibits P2 and P3.

25. For reasons that are unclear in the record, Petitioner

did not return to work on Monday, March 4, 2002, as he was

expected to do.

26. If a driver was going to be unexpectedly absent from

work, he or she was required to let the boss know before 7:00

a.m. so that a substitute or “on - call” driver could be contacted

to take over the absent driver’s route. Getting another driver

to take over the absent driv er's route was important to FMS

because some of the packages that the company delivers have to

get to the customer by 10:30 a.m.

27. Petitioner understood the importance of this

requirement.

28. According to Petitioner, he tried to call his boss

before 7 :00 a.m. on Monday to let him know that he would not be

coming into work, but he was not able to reach his boss until

several hours after 7:00 a.m.

29. Petitioner did not produce any credible evidence to

corroborate his testimony that he attempted to call his boss

prior to 7:00 a.m. on Monday, and the documents introduced by

Petitioner include conflicting statements as to whether

Petitioner ever called on that date. 2 Nevertheless, Petitioner’s

testimony on this issue is accepted.

30. When Petitioner retu rned to work on Tuesday, March 5,

2002, he was suspended for the day and, according to Petitioner,

his delivery route was taken away. The Warning Letter that was

received into evidence (Exhibit P1, at page 1) references the

suspension, but not Petitioner’ s route being taken away.

31. According to Petitioner, his delivery route was given

to a white female, whose identity Petitioner did not know.

32. Thereafter, Petitioner was given menial tasks such as

sweeping the floor and taking out the trash, although he also

helped load packages onto the delivery trucks in the morning.

33. Petitioner submitted a written request for leave on

March 19 and 20, 2002, because he planned to be in Kentucky on

those dates. Petitioner stated in the request that “I will be

ba ck to work on the [sic] 3 - 21.” See Exhibit P1, at page 2.

34. The leave requested by Petitioner was approved, and he

was expected to be back at work on March 21, 2002.

35. Petitioner got a “late start” on his drive back from

Kentucky, which caused h im to miss work on March 21, 2002.

36. According to Petitioner, he used his cellular phone to

call his boss before 7:00 a.m. on March 21, 2002, to let him

know that he would not be coming into work, but he was not able

to reach his boss until 7:30 a.m.

37 . Petitioner did not present any credible evidence, such

as his cellular phone records, to corroborate his claim that he

attempted to call prior to 7:00 a.m. Petitioner’s testimony on

this issue was not persuasive.

38. The record does not reflect what, if any, discipline

Petitioner received for not calling prior to the start of his

shift to report that he would not be coming into work on

March 21, 2002.

39. Petitioner’s pay was not reduced at any point during

his employment with FMS even though, accordi ng to Petitioner,

his primary job duties were changed from driving a delivery

truck to sweeping the floors and taking out the trash.

40. Petitioner continued to work at FMS until April or May

2002 when he was injured on the job while lifting a box.

E. Pe titioner’s Post - FMS Activities and Employment

41. After his injury, Petitioner could not and did not

work for approximately one year. During that period, Petitioner

collected workers' compensation at the rate of $500 every two

weeks. 3

42. Approximatel y one year after his injury, Petitioner’s

doctor allowed him to return to work on “light duty.”

43. Thereafter, in April or May 2003, Petitioner tried to

return to work with FMS but, according to Petitioner, he was

told that there were no available “light duty” positions. That

effectively ended Petitioner’s employment relationship with FMS.

44. The Complaint does not allege that FMS’s failure to

re - hire Petitioner was a discriminatory employment practice, nor

is there any credible evidence in the record that would support

such a claim.

45. From April/May 2003 to approximately March 2004,

Petitioner held only one job. He worked for approximately one

week cleaning floors at a nursing home, but he left that

position because of his back problems.

46. After leaving the floor cleaning job, Petitioner did

not actively look for other employment. He briefly attended a

training class to become a security guard, but he did not

complete the class after learning that he would not be able to

be licensed as a securit y guard “because of his prior record.”

47. In approximately March 2004, Petitioner was hired by a

former acquaintance to work as a driver for a mortgage company.

In that position, Petitioner is paid $11 per hour and he

typically works 40 hours per week, which equates to gross pay of

$880 every two weeks.

48. As of the date of the hearing, Petitioner was still

employed by the mortgage company.

F. Lack of Evidence Regarding

Similarly Situated Employees

49. Petitioner presented no credible evidence regar ding

any “similarly situated” employees, i.e. , employees who engaged

in conduct that was the same as or similar to that for which

Petitioner was disciplined. 4

50. Although Petitioner testified that he “had heard” of

situations where other employees had “p ut a manager off,” rather

than immediately doing what the manager told them to do, he was

not able to offer any specific examples of such insubordination.

51. Petitioner also presented no credible evidence

regarding how other employees (of any race) were disciplined for

conduct that was the same as or similar to that for which

Petitioner was disciplined. 5

CONCLUSIONS OF LAW

52. The Division has jurisdiction over the parties to and

subject matter of this proceeding pursuant to Chapter 70 of the

Pinellas Code, Chapter 15 of the City of St. Petersburg Code

(St. Pete Code), and Section 120.65(7), Florida Statutes (2004).

53. Even though the Complaint alleges violations of the

Pinellas Code, the St. Pete Code governs the procedural aspects

of this case bec ause Petitioner’s charge of discrimination was

filed with the City of St. Petersburg’s Human Relations

Division, that office issued the Complaint that gave rise to

this proceeding, and that office referred the case to the

Division for a hearing. 6

54. The Pinellas Code contains the substantive law that

governs this case because the Complaint alleges that FMS

violated Chapter 70 of the Pinellas Code, and not any provision

of the St. Pete Code.

55. Section 70 - 53(a)(1) of the Pinellas Code provides that

it is a discriminatory employment practice for any employer to:

a. Fail or refuse to hire, discharge, or

otherwise discriminate against an individual

with respect to compensation or the terms,

conditions, or privileges of employment

because of race, color, r eligion, national

origin, sex, age, marital status, or

disability; or

b. Limit, segregate, or classify an

employee in a way which would deprive or

tend to deprive an individual of employment

opportunities or otherwise adversely affect

the status of an employee because of race,

color, religion, national origin, sex, age,

marital status, or disability.

56. Section 70 - 51 of the Pinellas Code defines “employer”

as “a person who employs five or more employees for each working

day in each of 13 or more cal endar weeks in the current or

preceding calendar year . . . .” FMS qualifies as an employer

under this definition based on Petitioner's testimony that FMS

has more than 100 employees.

57. The prohibitions against employment discrimination in

Section 70 - 5 3 of the Pinellas Code are virtually identical to

the prohibitions in state and federal law. See , e.g. ,

§§ 760.01 - 760.11, Fla. Stat. (2004) (Florida Civil Rights Act of

1992); 42 U.S.C. § 2000e - 2, et seq. (Title VII of the Civil

Rights Act of 1964); 29 U .S.C. § 621, et seq. (Age

Discrimination in Employment Act). And cf. Pinellas Code § 70 -

52(a)(1) (stating that a purpose of Chapter 70 of the Pinellas

Code is to “[p]rovide for execution within the county of the

policies embodied in the Federal Civil Righ ts Act of 1964, as

amended”). A s a result, Section 70 - 53 of the Pinellas Code

should be construed in a manner that is consistent with those

laws. See , e.g. , Conway v. Vacation Break , Case No. 01 - 3384

(DOAH Nov. 16, 2001) (construing Chapter 70 of the Pin ellas Code

in accordance with the comparable state and federal laws).

58. Under Title VII, an unlawful employment practice claim

can be established by direct or circumstantial evidence. See ,

e.g. , Bass v. Board of County Commissioners , 256 F.3d 1095, 110 4

(11th Cir. 2001).

59. Petitioner did not present any direct evidence of

discrimination 7 ; his claim was based upon circumstantial

evidence. Accordingly, Petitioner’s claim must be analyzed

under the framework established in McDonnell Douglas Corporation

v. Green , 411 U.S. 792 (1973), and refined in Texas Department

of Community Affairs v. Burdine , 450 U.S. 248 (1981), and St.

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

60. Under that framework, Petitioner has the initial

burden of establishing a prima facie case of unlawful

discrimination. See Hicks , 509 U.S. at 506.

61. In order to establish a prima facie case of disparate

treatment, Petitioner must establish that (1) he is a member of

a protected class; (2) he was subjected to adverse employme nt

action; (3) FMS treated similarly situated employees outside of

his protected class more favorably; and (4) he was qualified to

do the job. See , e.g. , Maniccia v.Brown , 171 F.3d 1364, 1368

(11th Cir. 1999).

62. If Petitioner establishes a prima facie case, the

burden shifts to FMS to produce evidence that the adverse

employment action was taken for legitimate non - discriminatory

reasons. Hicks , 509 U.S. at 506 - 07. If Petitioner fails to

establish a prima facie case, the burden never shifts to FMS.

63. Once a non - discriminatory reason is offered by FMS,

the burden then shifts back to Petitioner to demonstrate that

the proffered reason is merely a pretext for discrimination, or

stated another way, that the proffered reason is false and that

the real rea son for FMS's decision to terminate Petitioner was

his race. Id. at 507 - 08, 515 - 17. In this regard, the ultimate

burden of persuasion remains with Petitioner throughout the case

to demonstrate a discriminatory motive for the adverse

employment action. I d. at 508, 510 - 11.

64. Petitioner established the first, second, and fourth

elements of his prima facie case; however, he failed to

establish the third element because he presented no credible

evidence of any “similarly situated” employees who received l ess

severe discipline for the same or similar conduct.

65. On this issue, the case law requires:

In determining whether employees are

similarly situated for purposes of

establishing a prima facie case, it is

necessary to consider whether the employees

ar e involved in or accused of the same or

similar conduct and are disciplined in

different ways. The most important factors

in the disciplinary context are the nature

of the offenses committed and the nature of

the punishments imposed. We require that

the quantity and quality of the comparator's

misconduct be nearly identical to prevent

courts from second - guessing employers'

reasonable decisions and confusing apples

with oranges.

Maniccia , 171 F.3d at 1368 (quoting Jones v. Bessemer Carraway

Medical Ctr. , 137 F.3d 1306, 1311 (11th Cir. 1998)). See also

Silvera v. Orange County School Board , 244 F.3d 1253, 1259 (11th

Cir. 2001) (“In order to meet the comparability requirement a

plaintiff is required to show that he is similarly situated in

all relevant res pects to the non - minority employee.”); Anderson

v. WBMG - 42 , 253 F.3d 561, 565 (11th Cir. 2001) (“[T]he law does

not require that a 'similarly situated' individual be one who

has 'engaged in the same or nearly identical conduct' as the

disciplined plaintiff . Instead, the law only requires 'similar'

misconduct from the similarly situated comparator.”).

66. Petitioner’s testimony regarding the two other drivers

who missed a number of days of work but did not lose their

delivery routes ( see Endnote 4) is ins ufficient as a matter of

fact and law to meet this standard because it is unknown whether

those employees returned to work when they were scheduled to do

so or whether they called in prior to the start of their shift

on the days that they were not at work, which Petitioner failed

to do and which was the misconduct that resulted in Petitioner’s

route being taken away. Without more detail regarding those

employees, it cannot be determined whether they are similarly

situated to Petitioner. See , e.g. , Knight v. Baptist Hospital ,

330 F.3d 313 (11th Cir. 2003) (discussing in detail the

similarities and differences between the plaintiff and the

allegedly similarly situated employees); Silvera , supra (same).

67. Furthermore, Petitioner’s testimony regarding Eddi e's

being equally responsible for the failure to switch the trucks

(and, hence, equally insubordinate) was not persuasive, and in

any event, that testimony would not help Petitioner establish

his prima facie case because he and Eddie are in the same

protec ted class, African - American.

68. Even if Petitioner had established his prima facie

case, the record includes sufficient evidence of a non -

discriminatory reason for the discipline imposed on Petitioner

in order to satisfy FMS’s burden of production under Hicks .

Indeed, Petitioner confirmed in his testimony that (1) he did

not reach his boss prior to the start of his shifts on March 4

and March 21, 2002, to inform him that he would not be coming

into work, and (2) that he did not switch trucks with Eddie

d espite having been told to do so by his boss, which provide a

legitimate basis for FMS to discipline Petitioner. Accordingly,

the burden shifted back to Petitioner to demonstrate that the

grounds for the discipline set forth in the Warning Letter and

Coun seling Sheet were merely a pretext for discrimination.

69. Petitioner presented no credible evidence that the

explanations provided in the Warning Letter and Counseling Sheet

for his discipline were pretextual. Indeed, it is not

unreasonable for FMS to h ave taken Petitioner off his delivery

route based upon his failure to return to work after approved

leave and/or his failure to call prior to the start of his shift

to inform his boss that he would be not be returning to work on

the day that he was schedul ed to return, and it is also not

unreasonable for FMS to give Petitioner a written reprimand for

his failure to switch the trucks as expressly directed by his

boss.

70. Because Petitioner failed to prove that FMS committed

discriminatory employment practi ces against him, he is not

entitled to any monetary or other relief in this proceeding and

it is not necessary to address that issue. Nevertheless, the

issue will be addressed in an abundance of caution in the event

that the St. Petersburg Human Relations Review Board (Board)

rejects the conclusion that Petitioner did not prove his claim.

And cf. St. Pete Code §§ 15 - 42(b)(5), 15 - 45(f)(4) (requiring the

Recommended Order to include “analysis, findings of fact,

conclusions of law and appropriate remedies”).

71. Section 70 - 78(a) of the Pinellas Code authorizes the

award of “actual damages and reasonable costs and attorney's

fees” against an employer who is found to have committed a

prohibited discriminatory employment practice, but the Pinellas

Code does not include any further guidance regarding the precise

scope of relief that can be ordered as “actual damages.”

Compare St. Pete Code § 15 - 46(a) (listing specific remedial

actions that the Board may impose for violations of the St. Pete

Code).

72. Petitione r failed to prove any actual damages

resulting from the disciplinary action imposed on him because he

continued to receive the same amount of pay after his delivery

route was taken away. Thus, at most Petitioner would be

entitled to an award of nominal da mages for having to perform

menial tasks such as sweeping the floors and taking out the

trash, which other drivers were apparently not required to do.

73. Petitioner is not entitled to reinstatement or back

pay because the termination of Petitioner's empl oyment

relationship with FMS was wholly unrelated to the disciplinary

actions that formed the basis of the Complaint. Indeed, the

Complaint did not allege that Petitioner's discharge from FMS

was a discriminatory employment practice in violation of Chapte r

70 of the Pinellas Code.

74. Moreover, Petitioner failed to establish that he

actively looked for suitable employment after his workers'

compensation benefits expired and he was unable to get a “light

duty” position with FMS. He testified that he onl y applied for

one job – - the floor cleaning job that was clearly not suitable

for him in light of his back injury – - between the time that his

workers' compensation benefits expired and he obtained his

current job. Petitioner’s failure to actively look fo r suitable

employment would preclude an award of back pay even if that

remedy was otherwise appropriate. See , e.g. , Ford Motor Company

v. E.E.O.C. , 458 U.S. 219, 231 - 32 (1982) (plaintiff in an

employment discrimination case is required to mitigate her

dam ages by attempting to obtain other suitable employment, and

her failure to do so results in forfeiture of the right to back

pay); Weaver v. Casa Gallardo, Inc. , 922 F.2d 1515, 1526 (11th

Cir. 1991) (although employer has the burden to prove that

plaintiff failed to obtain comparable employment, employer does

not have to establish the availability of comparable employment

if the evidence shows that plaintiff has not made reasonable

efforts to obtain work); Miller v. Marsh , 766 F.2d 490, 492 - 93

(11th Cir. 198 5) (back pay not appropriate where plaintiff

voluntarily removed herself from the job market by attending law

school rather than seeking comparable employment); Champion

Intern. Corp. v. Wideman , 733 So. 2d 559, 561 (Fla. 1st DCA

1999) (applying Ford Motor Company , supra , to a discrimination

claim brought under the Florida Civil Rights Act).

75. In sum, Petitioner failed to prove that FMS committed

discriminatory employment practices against him, and even if

Petitioner had met his burden of proof on that i ssue, he would

only be entitled to an award of nominal damages because he

failed to prove any actual damages.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions

of law, it is

RECOMMENDED that the Board issue a final order dismissing

Petitioner’s Complaint against FMS.

DONE AND ENTERED this 27th day of October, 2004, in

Tallahassee, Leon County, Florida.

S

T. KENT WETHERELL, II

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 27th day of October, 2004.

ENDNOTES

1/ Petitioner did not produce any pay stubs or other

documentation showing the amount he was paid, and Petitioner’s

testimony regarding his salary lacked the specificity and

certitude that would be expected for something as significant as

his salary. Never theless, Petitioner’s testimony regarding his

salary is accepted for the reasons described in Endnote 3.

2/ Page 3 of Exhibit P1 includes a notation made by Mr. Aliotti

that “[Driver] also missed 3/4/02. No call .” (emphasis

supplied), but page 1 of Exhi bit P1, which is the Warning Letter

issued to Petitioner states that Petitioner “ didn’t call or

called hours late on Monday stating that he would not be to

work" (emphasis supplied).

3/ Petitioner did not produce any documentation showing the

amount of his worker’s compensation benefit, but his testimony

as to the amount of the benefit was specific and certain. The

amount of Petitioner’s workers' compensation benefit bolsters

Petitioner’s testimony regarding the amount of his salary

because workers' co mpensation benefits for temporary total

injuries such as Petitioner’ back injury are typically two -

thirds of the employee’s salary. See § 440.15(2)(a), Fla. Stat.

(2001).

4/ In making this finding, the undersigned did not overlook

Petitioner’s testimony that a driver named Holly (a white

female) also missed a number of days of work and that a driver

named Wayne Luecke (a white male) took off seven days because of

a death in his family, but neither of them lost their delivery

routes. Petitioner’s testimo ny regarding those employees was

unconvincing. Moreover, Petitioner acknowledged in his

testimony that he did not know any of the specific circumstances

surrounding those employees’ leave, such as whether the leave

taken by those employees was approved or whether those employees

came back to work when they were supposed to do so.

5/ In making this finding, the undersigned has not overlooked

Petitioner’s testimony that he was called into his boss’ office

and verbally reprimanded for cursing over the inter com system

(which he acknowledged doing), but several white employees were

not reprimanded for doing the same thing. These events are

beyond the scope of the Complaint, and in any event,

Petitioner’s testimony regarding the events was unconvincing.

6/ T he most significant procedural difference between the two

codes is that under the Pinellas Code, the undersigned issues a

final order subject to judicial review whereas under the St.

Pete Code, the undersigned issues a recommended order subject to

review b y the St. Petersburg Human Relations Review Board.

Compare Pinellas Code § 70 - 77(g)(13) - (14) with St. Pete Code

§ 15 - 45(f)(4) - (5) and (g). See also City of Pinnellas Park v.

Henault , Case No. 02 - 9757 - CI - 88A (Fla. 6th Cir. Ct. Apr. 1.,

2004), cert. denied , Case No. 2D04 - 1914 (Fla. 2d DCA Sept. 17,

2004) (reviewing the Board's rejection of the administrative law

judge's Recommended Order in DOAH Case No. 01 - 3838, and filed in

that case as an attachment to the Board's letter of remand).

7/ As explained i n Bass , 256 F.3d at 1105:

Direct evidence of discrimination is

evidence which, if believed, would prove the

existence of a fact in issue without

inference or presumption. Only the most

blatant remarks, whose intent could be

nothing other than to discrimin ate . . .

constitute direct evidence of

discrimination. For statements of

discriminatory intent to constitute direct

evidence of discrimination, they must be

made by a person involved in the challenged

decision. Remarks by non - decisionmakers or

remarks u nrelated to the decisionmaking

process itself are not direct evidence of

discrimination.

(citations and internal brackets and quotations omitted).

COPIES FURNISHED :

Theresa D. Jones, Human Relations Officer

City of St. Petersburg

Post Office Box 2842

St. Petersburg, Florida 33731 - 2842

Stephanie N. Rugg

City of St. Petersburg

Post Office Box 2842

St. Petersburg, Florida 33731 - 2842

Dennis Blacknell

4609 Eighteen Avenue, South

St. Petersburg, Florida 33711

Larry D. McKinney, President

Freight Manage ment Services, Inc.

1971 West Lumsden Road, PMB 362

Brandon, Florida 33511

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recom mended Order should be filed with Human Relations

Officer in accordance with Section 15 - 45(f)(5) and (g) of the

St. Petersburg Code.