04-003069 Ronnie L. Ricks vs. City Of Gainesville Status: Closed Recommended Order on Wednesday, December 22, 2004.

Summary: Petitioner failed to establish a prima facie case by failing to show that he was qualified for a job and failing to show tht he was disciplined while white employees were not disciplined for similar conduct.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RONNIE L. RICKS, )

)

Petitioner, )

)

vs. ) Case No. 04 - 3069

)

CITY OF GAINESVILLE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the D ivision of Administrative

Hearings, by its designated Administrative Law Judge, P. Michael

Ruff, held a final hearing in the above - styled case on

October 12, 2004, in Gainesville, Florida.

APPEARANCES

For Petitioner: Ronnie L. Ricks, pro se

3531 Southwest 30th Terrance, Unit 50 - B

Gainesville, Florida 32608

For Respondent: Daniel M. Nee, Esquire

200 East University Avenue, No. 425

Gainesville, Florida 326 01

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concerns

whether Ronnie L. Ricks, has been a victim of an unlawful

employment practice allegedly perpetrated by the employer, the

Respondent, City of Gainesville (City), because of its

termination of him, allegedly because of his race.

PRELIMINARY STATEMENT

This cause arose on or about October 14, 2003, when the

Petitioner filed a charge of discrimination against the above -

named Respondent with the Florida Commission on Human Relatio ns

(Commission). In that charging document, he alleged that he had

been discriminated against on the basis of his race (black). He

alleged that the discrimination most recently occurred on

August 6, 2003. The Commission investigated the charges and

ulti mately determined that the Respondent had not committed

discriminatory acts and issued a "No Cause" finding on July 23,

2004.

After that determination of no cause by the Commission, the

Petitioner filed a Petition for Relief seeking a formal

administrative hearing. The case was ultimately assigned to P.

Michael Ruff, Administrative Law Judge, and was scheduled for

hearing on October 12, 2004.

The cause came on for hearing as noticed. The Petitioner

testified on his own behalf during the hearing, but cal led no

other witnesses. The Petitioner submitted one exhibit which was

admitted into evidence. The Respondent presented the testimony

of two witnesses, Labor Crew Leader Edward Kersey and Supervisor

Charles E. "Ed" Sams. The Respondent submitted six ex hibits

which were admitted into evidence.

FINDINGS OF FACT

1. The Petitioner, Ronnie L. Ricks, was employed by the

City of Gainesville as a M otor E quipment O perator I from June 9,

2003 to August 6, 2003.

2. The Respondent, City of Gainesville, is a m unicipal

corporation organized under the laws of the State of Florida,

and is an employer for purposes of Chapter 760, Florida

Statutes.

3. Upon accepting employment with the City, the Petitioner

was made aware of the written job description including the job

functions and selection factors specified in the job

description. He was also provided and made aware of the written

City of Gainesville Policies and Procedures, including policy

number 6 relating to and describing the six - month probationary

period a pplicable to all new employees.

4. Upon being hired by the Respondent and commencing work

as a M otor E quipment O perator I, on June 9, 2003, the

Petitioner's continued employment was subject to the

satisfactory completion of a six - month probationary period . The

Respondent's written policy relating to the probationary period

stated that, "The probationary period shall be regarded as an

integral part of the selection process and shall be utilized for

closely observing the employee's work for securing the mos t

effective adjustment of a new or promoted employee to the

position and for rejecting any employee whose performance or

conduct is not satisfactory." Further, the policy stated,

"During the probationary period, the supervisor and Department

Head may disc harge an employee who is unable or unwilling to

perform the duties of the position satisfactorily or whose

habits and dependability do not merit continuance in the employ

of the City."

5. At all times relevant to this action, the essential job

functions of the position of M otor E quipment O perator I included

a requirement that the employee, "Attends work on a continuous

and regular basis." Additionally, among the "non - essential job

functions" was a requirement that the employee, "Makes minor

repairs and adjustments to equipment. Checks oil and tires."

6. One of the selection factors listed in the written job

description for the position of M otor E quipment O perator I was,

"Ability to work effectively with co - workers and the general

public."

7. The Pet itioner claims to have suffered discrimination

when his crew leader allegedly told other employees that the

Petitioner was a "policeman." He maintains this caused black

co - workers to shun him or refuse to speak to him. He also

contends that his superviso r allegedly made comments about his

clothes and his car. Apparently, he means that his choice of

clothing for work was criticized because he allegedly wore

"designer clothes" for a job which required more casual work

clothes. He also feels he was discrim inated against because of

his supervisor's alleged comments concerning the type or model

car he drove. The Petitioner maintains he was harassed by his

supervisor when he refused to mow a retention pond in an area he

was assigned to maintain. He claims th e retention pond had a

hole in it and he felt it was dangerous to mow it on the

tractor. When he refused to do the job, his supervisor Ed Sams

completed the job. The Petitioner also contends he was

discriminated against because he had to complete a City of

Gainesville Accident Analysis form after damaging a tractor by

bending the metal roof of the tractor when he hit an overhanging

tree limb. He maintains that white employees were not

disciplined for such conduct.

8. Aside from his contention that white employees were not

disciplined for damaging equipment and he was, the Petitioner

did not testify that any of the alleged discriminatory or

harassment acts he cited were in any way related to his race or

other protected status.

9. There was no substantia l evidence offered at hearing to

support the Petitioner's claim that his crew leader Ed Kersey,

ever referred to the Petitioner as a "policeman" or other

similar term. The Petitioner made that accusation in his

testimony based on uncorroborated hearsay, t he relator of which

was not present as a witness. His crew leader, Ed Sams,

testified that he did not make such a statement and further

testified that his father was a career law enforcement officer

and he had a great deal of respect for such a position a nd would

not have used "policeman" or a similar term in a derogatory way.

10. The Petitioner claimed that his supervisor, Ed Sams,

made derogatory comments about his clothes and car. The

Petitioner claims that those comments were inappropriate but did

not indicate that they were discriminatory on the basis of race

or in any other way. Supervisor Sams testified that he has no

recollection of making comments about the Petitioner's clothes

and did not recall him dressing inappropriately during his brief

e mployment with the City. He was never reprimanded or otherwise

disciplined concerning the clothes he wore. Supervisor Sams did

acknowledge making comments about the Petitioner's vehicle in

that he testified he had merely asked the Petitioner's opinion

co ncerning the various qualities of that vehicle because he was

considering purchasing a similar one for himself.

11. Concerning the Petitioner's testimony about being

"harassed" by being ordered to mow a retention pond he

considered to be an unsafe site, Supervisor Sams testified

regarding that incident. He showed it to be an example of the

Petitioner's unwillingness to work effectively with co - workers

and his poor attitude toward supervision. On that occasion,

Mr. Sams witnessed the Petitioner sitting near an unmowed

retention pond and inquired why he was not working. The

Petitioner responded that he was going to "let Ed do it." "Ed"

was crew leader Ed Kersey, one of the Petitioner's supervisors.

Supervisor Sams testified that he was somewhat taken a back by

the Petitioner's attitude toward both the assigned work and to

his direct supervisor. Ultimately, Mr. Sams performed the

required mowing operation and clearly demonstrated that it could

easily be safely done. The Petitioner indicated he felt

hara ssed by this incident or this direction to mow the retention

pond, but he gave no testimony whatever to indicate that it was

racially discriminatory toward him.

12. The Petitioner maintains that he felt harassed when

drove his tractor into a tree limb c ausing damage to the

tractor's aluminum canopy. He was required to complete a "City

of Gainesville Accident Analysis form," but in spite of his

testimony that he was disciplined, there is no evidence to show

he was disciplined for the incident. Despite t he clear language

on the accident analysis report completed as a result of the

accident, the Petitioner apparently failed to understand that he

was not being disciplined or "written up" for the accident. He

was not treated differently from the white emplo yees he

maintained were not disciplined for damage to equipment. The

Petitioner was merely required to complete the accident analysis

report in order to maintain a record of incidents involving City

equipment. Under the section entitled "corrective actio n," the

report merely indicated, "reinstruct employee." There was no

discipline imposed. Mr. Sams testified that he did not issue a

warning, reprimand, re - assignment, or job change as a result of

the tractor damage incident. Mr. Sams testified that the

Petitioner's obstinance regarding the completion of the accident

report form was a further example of difficulties encountered in

supervising the Petitioner.

13. Ed Kersey is a L abor C rew L eader II who reports to

Mr. Sams and who directly supervised Ric ks. In addition to the

incident where Ricks refused a directive to mow the retention

pond, Mr. Kersey also encountered the Petitioner's obstinance

and failure to follow supervision, on occasions when the

Petitioner was angry or upset and would mow over li tter or trash

on the ground rather than pick it up, or have it picked up,

before running the mowing machine over it. He also had a

tendency to show up late for equipment maintenance work. He was

verbally counseled for this, although never "written up," b ut

kept doing it even after being counseled about it.

14. During less than nine weeks in which the Petitioner

was employed in the relevant position, he was absent from work

for four days. He left early on one occasion without permission

and was late at least twice without excuse. When he left early,

he left two and one quarter hours early from work without

permission. The four days missed from work were without leave

or permission. He arrived late for job assignments on the two

occasions. His poor a ttendance in a nine - week period is more

egregious because the Petitioner was only working a four - day

work week.

15. The Petitioner frequently missed the designated

maintenance times set aside for the motor vehicle equipment

operators to work together to maintain their equipment. This is

a part of their job description. Crew leader Ed Kersey

established that this time was specifically designated in

recognition that workers could maintain their equipment if they

cooperated with each other. When the Peti tioner frequently

failed to attend the group maintenance sessions, he would

complain about the difficulty of performing maintenance tasks

alone.

16. In summary, the evidence fails to establish that the

Petitioner was discriminated against due to his rac e or any

other protected status. The preponderant evidence showed that

the Petitioner's employment was terminated during his

probationary period, because his habits and dependability did

not merit continued employment. Specifically, the preponderant

evid ence establishes that the Petitioner's poor attendance

record, sub - standard equipment maintenance, and unresponsive and

confrontational attitude towards his supervision were all

legitimate, nondiscriminatory reasons justifying the termination

of the Petiti oner's employment, especially considering that he

was in his probationary period.

17. The Petitioner offered no persuasive evidence that, as

a member of a protected class, he was treated differently or

worse in any employment decision or category as com pared to

similarly situated employees outside his protected class.

Additionally, based upon the above - found instances of deficient

performance and deficient attitude toward supervision, the

Petitioner did not offer persuasive evidence that he was

qualifie d for the position in question from which he was

terminated.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2004)

19. S ection 760.10(1)(a), Florida Statutes (2004),

provides that it is an unlawful employment practice for an

employer ". . . to discharge or to fail or refuse to hire an

individual, or otherwise to discriminate against any individual

with respect to compensati on, terms, conditions, or privileges

of employment, because of such individual's race, color,

religion, sex, national origin, age, handicap, or marital

status."

20. The Petitioner has the burden of establishing that the

Respondent's actions were motiv ated by a discriminating purpose,

through direct or circumstantial evidence. Texas Department of

Community Affairs v. Burdine , 450 U.S. 248, 101 S. Ct. 1089, 67

L. Ed. 207 (1981). St. Mary's Honor Center v. Hicks , 504 U.S.

502, 113 S. Ct. 2742, 2747, 125 L. Ed. 407, 416 (1993).

21. Pursuant to the McDonnell - Douglas standard of proof

( McDonnell - Douglas Corp. v. Green , 411 U.S. 792 (1973)) the

Petitioner has the burden of establishing a prima facie case of

racial discrimination. If a prima facie case is d emonstrated,

then the Respondent must articulate a legitimate, non -

discriminatory reason for its actions. If such a reason is

established, then the Petitioner must show that the proffered

reason is pre - textual. The ultimate burden of persuasion

remains w ith the Petitioner. Texas Department of Community

Affairs v. Burdine , supra ; St. Mary's Honor Center v. Hicks ,

supra .

22. In order to establish a prima facie case, the

Petitioner must prove, by preponderant evidence, that: (1) He

belongs to a protected c lass, (2) He was subjected to an adverse

employment action; (3) The Respondent treated similarly - situated

employees, outside the protected class, more favorably, and (4)

he was qualified to do the job. Jones v. Bessemer Carroway

Medical Center , 137 F.3rd 1306, 1310 (11th Cir. 1998).

23. The Petitioner maintains that he felt "uncomfortable"

and "harassed" while he was in his brief employment with the

Respondent concerning the incidents referenced in the above

Findings of Fact but he did not indicate any c ircumstances in

his testimony, the sole testimony for his position, which would

tend to these feelings of harassment as being based on his race

or any other protected characteristic. He presented no evidence

at hearing that his termination was due to any unlawful

discrimination. While he maintained that he was disciplined for

the damage to the tractor roof, as compared to a white employee,

in fact the preponderant, persuasive evidence shows he was not

disciplined at all and neither was the white employee for the

incident he was involved in. Further, based on the totality of

the persuasive evidence offered, the Petitioner was not

established to have been actually qualified for his employment

during this probationary period, given the deficiencies

establish ed by the Respondent's evidence. He did not establish

that any disparate treatment was meted out to him as compared to

similarly situated employees who were of different race or not

members of his protected class. Thus, while the Petitioner

established t hat he is a member of a protected class because of

his race (black), he did not establish his qualifications for

the position from which he was terminated nor did he establish

that he was subjected to disparate treatment, and thus has not

established a pri ma facie case of discrimination based upon his

race.

24. In any event, the Respondent offered ample evidence of

legitimate, nondiscriminatory reasons concerning why the

Petitioner was discharged from his probationary position. The

Petitioner demonstrated a repeated failure to perform essential

and nonessential functions of his position, of which he had

notice of through his job description, and policy directives

from his supervisors. Additional reasons for discharge were his

attendance problems and failu re to perform directive tasks on a

timely basis or at all. The Petitioner offered no evidence to

establish that these reasons for his discharge were pre - textual

and were actually couched in discriminatory motives.

25. In summary, there is no reasonable basis to conclude

that the Petitioner was discriminated against because of his

race or for any other protected characteristic.

26. The Respondent seeks attorney's fees based upon the

position that the Petitioner's claim is frivolous, unreasonable

and wit hout foundation in law or fact; citing Christianburg

Garment Co. v. E.E.O.E. , 434 U.S. 412, 421 - 422 (1978) and

Section 760.116, Florida Statutes (2004). Although the

Petitioner had ample opportunity in the investigatory stage of

this matter through the "n o cause" determination to ascertain

that he had insufficient facts and evidence to support his claim

and persisted in its prosecution anyway, the fact remains that

he had a right, created by Section 760.11, Florida Statutes, to

proceed before the Division of Administrative Hearings, even in

the face of an adverse cause determination. Because of this,

and because he has not had the benefit of counsel, the

attorney's fee claim is denied.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered dismissing the

Petition in its entirety.

DONE AND ENTERED this 22nd day of December , 2004, in

Tallahassee, Leon County, Florida.

S

P. MICHAEL RUFF

Administrative L aw 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 22nd day of December, 2004.

COPIES FURNISHED:

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission on Human Relat ions

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Ronnie L. Ricks

3531 Southwest 30th Terrance, Unit 50 - B

Gainesville, Florida 32608

Daniel M. Nee, Esquire

200 East University Avenue, No. 425

Gainesville, Florida 32601

NOTICE OF RIG HT 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.