04-003887 Clarence Cray vs. White Springs Agricultural Chemical, Inc. Status: Closed Recommended Order on Monday, April 11, 2005.

Summary: A question by management, which could be interpreted as racially biased, did not demonstrate racial animus under circumstances in which it is more reasonable that Petitioner was terminated based on his criminal record.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLARENCE CRAY, )

)

Petitioner, )

)

vs. ) Case No. 04 - 3887

)

WHITE SPRINGS AGRICULTURAL )

CHEMICAL, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, a disputed - fact hearing was conducted in

this case on January 7, 2005, in Lake City, Florida, before

Ella Jane P. Davis, a duly - assigned Administrative Law Judge of

the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Gary R . Wheeler, Esquire

McConnaughhay, Duffy, Coonrod

Pope & Weaver

Post Office Box 550770

Jacksonville, Florida 32255 - 0770

Brian S. Duffy, Esquire

McConnaughhay, Duffy, Coonrod

Pope & Weaver

Post Office Drawer 229

Tallahassee, Florida 32302 - 0229

For R espondent: David C. Braun, Esquire

934 Northeast Lake Desoto Drive

Lake City, Florida 32055

STATEMENT OF THE ISSUE

Whether Respondent is guilty of an unlawful employment

practice, to wit: racial discrimination, by its termination of

Petition er.

PRELIMINARY STATEMENT

On July 27, 2004, Petitioner filed a charge of

discrimination with the Florida Commission on Human Relations

against Respondent, White Springs Agricultural Chemical, Inc.,

a/k/a PCS Phosphate (PCS). The Commission issued a

Deter mination: No Cause on September 24, 2004. Petitioner

timely filed his Petition for Relief. The cause was referred to

the Division of Administrative Hearings on or about October 28,

2004.

At the disputed - fact hearing on January 7, 2005, Petitioner

testif ied on his own behalf and had three exhibits admitted in

evidence. Respondent presented the oral testimony of Rick L.

Kennington, George T. Sandlin, and Shirley Dilger, and had eight

exhibits admitted in evidence.

The parties' Joint Pre - hearing Stipulati on was admitted as

ALJ Exhibit A.

A Transcript was filed on January 26, 2005.

An amended page of the Transcript was filed on February 14,

2005. The parties' respective Proposed Recommended Orders,

filed on February 16, 2005, have been considered in prep aration

of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is an African - American male now 45 years

old. He was discharged from employment as a heavy equipment

operator with Respondent during his probationary term (within

the first 120 days of em ployment) on July 16, 2004.

2. Respondent qualifies as an "employer" under Chapter

760, Florida Statutes.

3. At all times material, Respondent had an equal

employment opportunity policy in place and employed Petitioner's

uncle and two cousins, who are also presumably African -

Americans. Respondent previously employed Petitioner's brother.

4. Petitioner testified that during his employment, his

brother was being prosecuted for alleged sexual relations with

the brother's "white" stepdaughter, but admitt ed that this

situation was never mentioned by any member of management.

5. By all accounts, for the brief period of time

Respondent employed Petitioner, Petitioner was a capable and

reliable worker. Petitioner was very much desired by Respondent

as an e mployee for his ability to handle heavy machinery until

he was terminated on the basis of his criminal background.

6. Petitioner's explanation under oath at the hearing of

his criminal history is as follows: In 1982, he was convicted

of the felony of co nspiracy to commit armed robbery. He served

nearly all of a five - year probation, but was "violated" for

being in bad company. He consequently served six months in the

Columbia County Jail. In 1987, he was charged with a lewd act,

but was not "convicted" of that felony until he was picked up in

1990, for not completing court - ordered counseling. In 1990,

Petitioner was sentenced to 12 years on the lewd act charge, but

he only had to serve five years in prison. The undersigned

interprets both of the foreg oing situations to be revocations of

probation under deferred prosecution programs. In 1997,

Petitioner was convicted of the misdemeanor of driving under the

influence of alcohol (DUI).

7. On his March 30, 2004, job application to Respondent,

Petitioner saw the following question:

Have you ever been convicted of any

violation of law other than a minor traffic

violation? If "yes," explain below. (A

criminal record is not an automatic bar to

employment.)

Petitioner erroneously interpreted the foregoing question to

only require disclosure of felony convictions, so he only marked

"yes" and wrote in "conspiracy & lewd act."

8. In anticipation of hiring Petitioner, Rick Kennington,

PSC's Supervisor of Labor Relations and Security, interviewed

Petitioner on April 16, 2004. Mr. Kennington is a Caucasian

male. During this interview, Mr. Kennington questioned

Petitioner about his criminal history and made notes.

9. Petitioner testified that he made Mr. Kennington aware

of the full extent of his criminal his tory during the pre -

employment interview. However, in light of Mr. Kennington's

testimony; Mr. Kennington's contemporaneous notes on the

interview ( see Finding of Fact 10); the consistency of

Shirley Dilger's and George Sandlin's testimony with that of

Mr . Kennington, concerning a near - contemporaneous oral report of

the interview to them by Mr. Kennington ( see Finding of Fact

13); and the difficulty Petitioner had at hearing in explaining

his criminal record, Mr. Kennington's testimony concerning what

occu rred during Petitioner's pre - employment interview is more

credible than Petitioner's testimony. On this basis, it is

found that Petitioner did not tell Mr. Kennington about his non -

felony DUI conviction. He did, however, tell Mr. Kennington

during the pr e - employment interview, that he had been convicted

of conspiracy to commit robbery because he was aware that his

cousins were going to rob a store, but he failed to report it;

that he had received five years' probation for the conspiracy;

that he violated probation and served one year in a county jail

as a result of being caught in bad company; and that he was

convicted of a lewd act with an underage girl when he and the

girl were both very young, but he served no jail time for the

lewd act conviction.

10. Mr. Kennington's contemporaneous notes on this

interview show that however Petitioner explained the "lewd act"

conviction, Mr. Kennington formed the opinion that the incident

involved consensual sex with a 15 - year - old girl when Petitioner

was approximate ly 21 - years - old and that Petitioner served no

jail time as a result thereof.

11. At the end of the pre - employment interview,

Mr. Kennington informed Petitioner that the employer would order

a background check on him and that any failure of Petitioner to

disclose his criminal history would result in termination of his

employment. Petitioner offered nothing more.

12. Therefore, Mr. Kennington believed that, in light of

the limited nature of what he then understood to be Petitioner's

criminal history, Pet itioner would be a good potential employee.

He thought that Petitioner's one year in a county jail for

violating the conspiracy probation was about 20 years old; that

there had been no jail time associated with Petitioner's lewd

act; and that Petitioner h ad "a relatively clean run for some

years."

13. George Sandlin is Respondent's Superintendent of Human

Resources. He is a Caucasian male. Mr. Kennington told

Mr. Sandlin immediately after Mr. Kennington's pre - employment

interview with Petitioner that P etitioner had two convictions

and had spent one year in Columbia County Jail. Mr. Sandlin did

not know about any other convictions or about any time

Petitioner had served in prison, and Mr. Kennington could not

mention what he also did not know about. Sh irley Dilger is

Respondent's Human Resources Manager. She is a Caucasian

female. According to her, Mr. Kennington told her immediately

after the pre - employment interview that Petitioner had spent a

year in a county jail. She erroneously thought this was in

connection with a "burglary" charge. She did not know about,

and Mr. Kennington did not inform her about, any prison time.

14. Mr. Kennington, Mr. Sandlin, and Ms. Dilger conferred

and decided to offer Petitioner a job because his last

conviction ap peared to be 20 years old and because the

Respondent employer had past positive experiences with

Petitioner's relatives as employees. Ms. Dilger stated that the

three managers made the decision to hire Petitioner, in part,

because Petitioner had spent no time in jail in connection with

the lewd act charge and "that obviously it wasn't anything that

was serious or . . . something would have happened with that

charge."

15. After Petitioner was hired on June 9, 2004, he

participated in 40 hours of orientati on during his first week of

employment. At one point during the orientation week,

Mr. Kennington led a session on security, during which he

informed Petitioner and other new employees that it was

important to provide complete and accurate information abou t

their criminal background history. After the session was over,

Petitioner approached Mr. Kennington. Mr. Kennington and

Petitioner have very different views of the ensuing

conversation. Petitioner testified that he told Mr. Kennington

that he did not know if it would show up on his background

check, but he had just remembered getting arrested because a

girl he quit living with told police he had burglarized her

house, but the charges were dropped. Nothing like the foregoing

was on Petitioner's job app lication, and Mr. Kennington thought

Petitioner was reminding him about Petitioner's lewd act

conviction. Both men agree that Mr. Kennington ended the

conversation by assuring Petitioner that if he had revealed

everything before, he did not have to worry.

16. At lunch that same day, Mr. Kennington told

Mr. Sandlin and Ms. Dilger that he was puzzled by Petitioner's

approaching him and suspected that Petitioner's background check

might reveal a problem.

17. When Mr. Kennington received Petitioner's backg round

check report, it was a problem for him.

18. Mr. Kennington was adamant that he received the

background check report on July 14, 2004, which was a Wednesday,

but the internet date of July 12, 2004, shows that if the

computer's clock was correct, s omeone printed the report off the

internet on July 12, 2004, which was the preceding Monday. This

discrepancy of dates is immaterial in that all witnesses agreed

that Mr. Kennington and Mr. Sandlin confronted Petitioner as

early as 7:00 a.m., on Thursday, July 15, 2004.

19. The criminal background report received on Petitioner

by Mr. Kennington would be confusing even to a lawyer.

Petitioner, Mr. Kennington, and Mr. Sandlin are not lawyers. On

its face, the report shows a finding of "guilty" for a

cons piracy/armed robbery charge on 10/10/84 resulting in two

years, six - months' confinement, with 373 days credited for time

served.

20. The report also shows that Case No. 1987 - 004757CFA,

dated 5/16/87, as a "sexual battery/slight force" felony charge

was placed in the deferred prosecution program as of 6/08/87.

That same case number shows a "lewd assault on a child" felony

charge was also placed in the deferred prosecution program as of

6/08/87. It further shows a different case number, Case No.

1988 - 003 327CFA, peculiarly dated 5/02/87, resulted in a finding

of guilty as of 11/29/90, on the felony of "lewd and lascivious

act/simulated sexual battery," with a resultant prison time of

12 years with 124 days' credit for time served.

21. The report finally shows a 1997 finding of guilty for

DUI as a traffic misdemeanor, with a fine.

22. When Mr. Kennington and Mr. Sandlin called Petitioner

in for a meeting about the background check report at 7:00 a.m.,

July 15, 2004, Mr. Kennington asked Petitioner why P etitioner

had failed to tell him about the prison time Petitioner had

served, but Petitioner had no response.

23. According to Petitioner, during their July 15, 2004,

meeting, Mr. Kennington questioned him about a perceived

disparity between a 1987 entry on the background report, when

Petitioner was initially charged in connection with a lewd act

on a child, when he was not sentenced to prison at all, and a

1990 entry, when Petitioner was convicted and sentenced to

twelve years in prison. Petitioner stat ed that Mr. Kennington,

"[k]ept asking me did I do anything else in 1987 and 1990,

another sexual act."

24. It was obvious to Petitioner at the time that

Mr. Kennington was concerned, based on the way the offenses were

listed with different case numbers and dates on the background

check report, that Petitioner might have committed three or four

sexual felonies instead of just one, for which probation was

ultimately revoked.

25. Mr. Kennington testified that during the July 15,

2004, meeting, Petitioner finally indicated to him that

Petitioner's "lewd act" conviction was a continuation of a

single "lewd act" charge.

26. In this regard, Petitioner specifically testified at

hearing that he had violated the K.I.D.D.S. Program and, as a

result of that viol ation, he was later sentenced to 12 years in

prison, of which he served five. ( See Finding of Fact 6.)

27. Mr. Kennington took notes of the July 15, 2004,

meeting and drew a star by an entry where he wrote, "5 years in

prison, Baker Corr., Panhandle, 199 0."

28. It is clear from the evidence as a whole that only on

July 15, 2004, did Mr. Kennington fully understand that

Petitioner had served time in prison, as opposed to a county

jail, and that the time Petitioner served had been for the "lewd

act" felony conviction, not the prior conspiracy to commit

robbery felony conviction.

29. Petitioner claimed that during this interview, out of

the blue, Mr. Sandlin asked him if the girl involved in the lewd

act charge was "white" or "black." However, Mr. Sandl in and

Mr. Kennington are more credible in their testimony that

Mr. Sandlin asked the foregoing question when Petitioner told

them that he had gone to trial in that case; that the underage

girl involved in the lewd act charge did not testify; that it

was h er mother who forced the issue; and that his trial on the

lewd act felony charge had been racially discriminatory.

30. Mr. Sandlin acknowledged that he had asked the

question, but testified that the reason he asked it was that he

was under the impression that Petitioner had been discriminated

against in the lewd act trial.

31. Petitioner was less credible when he denied at hearing

that he ever claimed in the July 15, 2004, meeting that

discrimination occurred in his lewd act trial. However, it is

undis puted that Petitioner answered Mr. Sandlin in that meeting

that the girl was "black," and that otherwise, race was never

discussed.

32. During the July 15, 2004, meeting, Petitioner told

Mr. Kennington and Mr. Sandlin that he could not remember how

old t he girl or he was when the lewd act occurred. Kennington

and Sandlin did the math and concluded that Petitioner was 27

and the girl was 15 at the time of the offense.

33. At the end of the July 15, 2004, meeting,

Mr. Kennington told Petitioner that this was a very serious

matter and there were going to be discussions with upper

management.

34. Mr. Kennington, Mr. Sandlin, and Ms. Dilger met after

the July 15, 2004, meeting of Mr. Kennington, Mr. Sandlin, and

Petitioner.

35. Mr. Kennington, Mr. Sandlin , and Ms. Dilger each

testified individually that he or she would not have hired

Petitioner if they had known the full extent of Petitioner's

criminal history from the beginning. All three were concerned

about the difference in age between Petitioner and the girl (a

27 - year - old man and a 15 - year - old girl) and that Petitioner had

spent five years in prison instead of a year in a county jail,

but each executive emphasized one or the other concern. All

three executives were concerned with Petitioner's prior lack of

candor. Ms. Dilger was concerned about the lewd act conviction

as she finally understood it, because of the high number of

women and low number of security persons Respondent employed in

relation to the extensive size of Respondent's premises.

Mr . Kennington was upset about Petitioner's nondisclosure of his

DUI conviction, even though it was only a traffic misdemeanor,

because Mr. Kennington did not consider any DUI to be "minor."

36. The three managers sought the advice of corporate

representati ves in Chicago in making the decision to terminate

Petitioner.

37. Race, including the race of the girl with whom

Petitioner had sex in 1987, was not discussed at any time during

any managerial deliberations.

38. The next day, July 16, 2004, a meetin g took place

including Mr. Kennington, Mr. Sandlin, Petitioner and a security

officer, Kenny Gaylord. Petitioner conceded at hearing that

Mr. Kennington informed Petitioner at that time that

Petitioner's employment was being terminated for lack of

confide nce and for Petitioner not being truthful in the hiring

process.

39. In the course of the Florida Commission on Human

Relations' investigation of Petitioner's subsequent Charge of

Discrimination, Mr. Kennington provided an affidavit which

represented, among other things, that Petitioner was terminated

because he was guilty of five felonies and failed to disclose

them. This affidavit is technically a prior statement under

oath which is inconsistent with the reason given by

Mr. Kennington to Petitioner o n July 16, 2004 ( see Finding of

Fact 38), and inconsistent with his testimony at hearing.

However, other parts of the same affidavit break down the

charges and convictions consistent with Mr. Kennington's

testimony at the hearing. Furthermore, the greate r weight of

the credible evidence at hearing shows Mr. Kennington never has

understood the number of felonies listed on the background check

report, which may be either two or three felonies, depending

upon how the case numbers are interpreted. It further shows

that Petitioner's July 15, 2004, explanation that he had only

two felony convictions. Accordingly, there is no significance

to the insubstantial inconsistency on Mr. Kennington's

affidavit. Moreover, by no interpretation does his

July 16, 2004, st atement to Petitioner, his affidavit, or his

hearing testimony establish that Mr. Kennington had a racial

reason for terminating Petitioner.

40. Petitioner admits that no one told him, prior to his

termination, that he was being terminated because he all egedly

had "five felony convictions."

41. Petitioner also attempted to show at hearing that an

affidavit by Mr. Sandlin stated as a reason for Petitioner's

termination that Petitioner had failed to disclose that

Petitioner had relatives working for Respo ndent. However, Mr.

Sandlin's affidavit as a whole cannot reasonably be read to mean

that.

42. Respondent has terminated both Caucasian and African -

American employees during their probationary 120 days for

nondisclosure, based on their background check reports.

CONCLUSIONS OF LAW

43. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to Chapter 760, and Section 120.57(1), Florida

Statutes.

44. In cases alleging racial discrimination base d on

disparate treatment, a petitioner bears the burden of proof

established in McDonnell - Douglas Corp. v. Green , 411 U.S.

(1973); Texas Department of Community Affairs v. Burdie , 450

U.S. 248 (1981). Under this model of proof, a petitioner bears

the init ial burden of establishing a prima facie case of

discrimination. If the petitioner meets this initial burden,

the burden to go forward shifts to the employer to articulate a

legitimate, non - discriminatory explanation for the employment

action. Dept. of C orrections v. Chandler , 582 So. 2d 1183 (Fla.

1st DCA 1991). If the employer meets its burden of production,

the petitioner must then persuade the court that the employer's

proffered reason is a pretext for intentional discrimination.

45. To establish a prima facie case of racial

discrimination based on disparate treatment, a petitioner must

show the following: (a) he belongs to a racial minority; (b) he

was subject to adverse employment action(s); (c) he was

qualified for his position; and (d) the empl oyer treated

similarly situated employees outside the protected class more

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

Petitioner herein asserts that because he had only two felony

"convictions," not five, and because both felony convic tions

were divulged in an abbreviated way on his job application in

compliance with the actual language of the job application, his

termination was unfair and unlawful, and that therefore, the

reason for his termination was racially motivated. That is not

the legal test to be applied.

46. To establish that his termination was the result of

discrimination on the basis of race, Petitioner must show by

direct, circumstantial, or statistical evidence that his

termination and the discrimination were connected. McDonnell

Douglas Corp., v. Green , supra . See also Longariello v. School

Board of Monroe County, Florida 987 F. Supp. 1440 (S.D. Fla.

1997); and Walker v. Nationsbank of Florida , N.A., 537 F.3d 1540

(11th Cir. 1995)

47. Petitioner has shown no similar situation in which a

person of a race different than his received better, or even

different, treatment than he did. Apparently, Petitioner puts

forth that disparate treatment need not be shown where there has

been an overt discriminatory remark demonstrat ing racial animus:

in this case, Mr. Sandlin's inquiry as to whether the underage

female involved in Petitioner's spending five years in prison

was "white" or "black."

48. However, the context of the question as related by

Mr. Sandlin, to the effect th at he was trying to assess

Petitioner's allegations of a racially discriminatory trial,

renders the inquiry insufficient to shift the burden of proof to

Respondent. Even viewing Mr. Sandlin's inquiry in the worst

possible light for Respondent, Petitioner' s answer that he and

his victim were both "black" nullifies any suggestion that Mr.

Sandlin was prejudiced against interracial sexual relations and

was thereby motivated to terminate Petitioner for that reason.

Given Mr. Sandlin's inquiry and Petitioner's answer, it is more

reasonable to accept Respondent's explanation that the disparity

in Petitioner's age and that of the girl; Petitioner's five

years in prison for his sexual exploit with a minor; and

management's belief in Petitioner's lack of candor on his job

application and in the pre - employment interview, were the real

motivators for Respondent to terminate Petitioner.

49. Evidence that only suggests discrimination or that is

subject to more than one interpretation does not constitute

direct evidence of discrimination. See Chambers v. Walt Disney

World Co. , 132 F. Supp. 2d 1356 (M.D. Fla. 2001). See also

Standard v. A.B.E.L. Services, Inc. , 161 F.3d 1318 (11th Cir.

1998), and Merritt v. Dillard Paper Co. , 120 F.3d 1181 (11th

Cir. 1997). Proof that amounts to no more than mere speculation

and self - serving belief on the part of the complainant

concerning the motives of the employer are not sufficient,

standing alone, to establish a prima facie case of intentional

discrimination. See Little v. Republi c Refining Co. Ltd. , 924

F.2d 93 (5th Cir. 1991); Elliott v. Group Medical & Surgical

Service , 714 F.2d 556 (5th Cir. 1983); and Shiflett v. G.E.

Finance Automation Corp. , 960 F. Supp. 1022 (W.D. Va. 1997).

50. Essentially, Petitioner's case amounts to th e

illogical scenario that Respondent hired Petitioner solely so

that it could fire him 35 days later on the basis of his race.

Where the facts demonstrate that the same decision - makers both

hired and fired an employee, an inference may arise that the

empl oyer's stated non - discriminatory justification for

terminating the employee is not pretextual. Williams v. Vitro

Services Corporation , 144 F.3d 1438 (llth Cir. 1998).

Respondent's management staff, including Mr. Sandlin, were aware

that Petitioner was Af rican - American when they hired him.

Petitioner was hired in part because of his African - American

relatives already employed by Respondent. If local management

had wanted to discriminate against Petitioner, they just could

have not hired him. There is no evidence the corporate

representatives whom Mr. Kennington, Mr. Sandlin, and Ms. Dilger

consulted concerning Petitioner's termination even knew his

race, nor is there any evidence that Petitioner's race was

discussed with them.

51. Regardless of whether they fully and correctly

understood Petitioner's criminal history, and regardless of how

clearly they articulated their reasons for terminating

Petitioner, it is clear that Respondent's management has

demonstrated that it terminated Petitioner because of t he

seriousness of his sexual conviction, the length of his time in

prison, and their loss of faith in his veracity. Respondent

further has demonstrated that other employees, both Caucasian

and African - American, have been terminated for substantially

simil ar reasons. Respondent bears no burden of proving that its

employment decision was correct, justified, wise, or even fair,

only that it was not illegally discriminatory. See Gilchrist v.

Bolger , 733 F.2d 1551 (11th Cir. 1984). Petitioner has not

demonst rated either disparate treatment nor a prima facie case

of overt discrimination.

52. Assuming arguendo , but not ruling, that a prima facie

case was presented by Petitioner, Petitioner still cannot

prevail. The central inquiry in all discrimination case s is the

employer's underlying motivation for its actions. Reeves v.

Sanderson Plumbing Product, Inc. 530 U.S. 133, 141 (2000). It

is not even enough to disbelieve the employer's stated motive.

The trier - of - fact must also be convinced that the employee' s

proffered reason ( i.e. , discrimination) is correct. In

determining whether an employer's stated reasons for its actions

are pretextual, courts will not second - guess an employer's

business judgment, and a plaintiff is not allowed to recast an

employer's proffered non - discriminatory reasons or substitute

its business judgment for that of the employer. Chapman v. AI

Transp. , 229 F.3d 1012, 1030 (11th Cir. 2000). Courts have

cautioned that in discrimination cases, the temptation to decide

who is "right," t he boss or the employee, should be resisted

. . . even where the employee who is unfairly treated is a

member of a protected group. Roberts v. Gadsden Memorial

Hospital , 835 F.2d 783 (11th Cir. 1988) (Hill, J., concurring);

majority opinion amended sua sponte on another issue at 850 F.2d

1549 (11th Cir. 1988).

53. The undersigned is not unmindful of the fact that the

accuracy of the background check record was never proven up, but

Respondent clearly gave Petitioner an opportunity to refute it,

and Pet itioner, in fact, confirmed the parts of the record that

most troubled Respondent's management team.

54. The record as a whole demonstrates that there was a

disparity between what the management team understood about the

extent of Petitioner's criminal history prior to hiring him

versus what they understood about Petitioner's criminal history

after receiving the criminal background check. Mr. Kennington

may never have correctly understood all the nuances of deferred

prosecution or revoked probation. Cl early, he did not think the

DUI conviction was a minor traffic offense, and that is a

debatable matter. Conceivably, the precise language of the

application form did not require Petitioner to reveal his

misdemeanor DUI conviction. ( See Finding of Fact 7. ) However,

nothing in this series of misunderstandings demonstrates that

race played any part in Petitioner's termination.

55. In Florida, an employer may terminate an employee for

a good reason, a bad reason, a reason based on erroneous facts,

or for n o reason at all, as long as its action is not for a

discriminatory reason. See Nix v. W.L.C.Y. Radio Rahall

Communications , 738 F.2d 1181 at 1187 (11th Cir. 1984). See

also Loeb v. Textron, Inc. , 1600 F.2d 1003 (1st Cir. 1979).

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED: that the Florida Commission on Human Relations

enter a final order dismissing the Petition for Relief and

Charge of Discrimination herein.

DONE AND ENTERED this 11th day of April, 2005, in

Tallahassee, Leon County, Florida.

S

___________________________________

ELLA JANE P. DAVIS

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 11th day of April, 2005.

COPIES FURNISHED:

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apa lachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Gary R. Wheeler, Esquire

McConnaughhay, Duffy, Coonrod, Pope & Weaver

Post Office Box 550770

Jacksonville, Florida 32255 - 0770

Brian S. Duffy, Esquire

McConnaughhay, Duffy, Coonrod, Pope & Weaver

Post Office Drawer 229

Tallahassee, Florida 32302 - 0229

David C. Braun, Esquire

934 Northeast Lake Desoto Drive

Lake City, Flori da 32055

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.