05-001455 Willie Foster, Jr. vs. Pepsi-Cola Bottling Company Status: Closed Recommended Order on Friday, October 7, 2005.

Summary: Petitioner failed the written test given to all applicants and failed to establish a prima facie case of age, sex, or race discrimination. The test was not discriminatory, and minority members who had passed the test were hired.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIE FOSTER, JR., )

)

Petitioner, )

)

vs. ) Case No. 05 - 1455

)

PEPSI - COLA BOTTLING COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearin g was conducted before Daniel M. Kilbride,

Administrative Law Judge of the Division of Administrative

Hearings, on July 20, 2005, in Orlando, Florida.

APPEARANCES

For Petitioner: Willie Foster, Jr. , pro se

5542 South Rio Grande Avenue

Orlando , Florida 32839

For Respondent: Susan K. McKenna, Esquire

Jackson Lewis LLP

390 North Orange Avenue, Suite 1285

Post Office Box 3389

Orlando, Florida 32802 - 3389

STATEMENT OF THE ISSUE

Whether Petitioner , Willie Foster, Jr., was discriminated

against because of his race, age, and sex by Respondent,

Pepsi - Cola Bottling Company, when Respondent failed to hire him ,

in violation of Subsection 760.10(1)(a), Florida Statutes

(2004).

PRELIMINARY STATEMENT

Petitioner filed a Charge of Discrimination with the

Florida Commission on Human Relations (FCHR ) charging Respondent

with employment discrimination on or about July 1 2 , 200 4 ,

alleging age, sex, and race discrimination . On or about

March 1 1 , 200 5 , a "N o C ause " determination was is sued by FCHR.

Petitioner timely filed a Petition for Relief with FCHR,

alleging that he had not been hired on the basis of his age,

sex, and race and requested a final hearing. This matter was

subsequently referred by FCHR to the Division of Administrati ve

Hearings for a final hearing de novo on April 1 5 , 200 5 , and this

matter was set for hearing. Following discovery and denial of

Petitioner's Motion for Continuance , a final hearing commenced

on July 20, 2005.

At the hearing, Petitioner appeared pro se and testified in

his own behalf. Petitioner presented the testimony of one

witness , Jennifer Daniels . Respondent presented the testimony

of t wo witnesses , Doreen Richards and Christopher Buhl . Twenty

exhibits ( marked for identification as R - 1 through R - 20 ) were

admitted in to evidence as joint exhibits . A Transcript was

filed on August 15, 2005. The parties were allowed ten days

from the filing of the Transcript in which to file proposed

findings of fact and conclusions of law. Petitioner filed his

pro pos als on August 8, 2005. Respondent filed its proposed

findings on September 2, 2005. The parties' proposals have been

carefully considered in preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findin gs of

fact are determined:

1. Responding to an advertisement, Petitioner and Jennifer

Daniels traveled together to Respondent's Orlando location and

applied for employment as merchandisers on August 1, 2003.

Petitioner is a black male , who was 45 years old at the time of

his application. Daniels is a white female , who was 25 years

old during that same time .

2 . After Petitioner and Daniels completed their

application forms and filled out other pre - hire paperwork,

Petitioner and Daniels left Respondent' s premises. Respondent

later contacted each of them and asked them to appear to take a

written employment test. Petitioner and Daniels took the same

test on August 7, 2003.

3 . In August 2003, Respondent utilized a pre - employment

written test devised by an independent company, Saville and

Holdsworth, Ltd. This independent company was solely

responsible for scoring the tests and compiling the test

results. Respondent played no role in either of these tasks.

Respondent's Human Resources Department merel y administered the

test, but did not possess the answer key to the test.

4 . Merchandiser applicants, such as Petitioner , t ake a

two - part written test. The first portion of the test entitled ,

"Working with Words ," was a timed reading comprehension test.

The second portion was entitled , "Work Styles Questionnaire , "

and was a tool designed to determine whether the applicant was

suitable to the position.

5 . Respondent uses a standard procedure in its hiring

process, including the administration of the pre - employment

test. First, only those applicants who satisfy established

criteria, such as a stable work history , are offered the

opportunity to take the written test. Second, only those

applicants who pass the written test are allowed to progress to

the n ext step of the hiring process, which is participating in

an interview.

6 . No applicant who has failed the written test has ever

been allowed to progress to the interview phase , n or has been

hired by Respondent despite failing the test. However,

applica nts who fail the test are allowed to reapply and take the

test again after six months. Respondent has hired individuals

who, after failing the initial written test, reapplied after six

months and then passed the test.

7 . Petitioner failed the written te st he took on August 7,

2003. On that same date, Respondent notified Petitioner by

letter that he failed the selection test, but could reapply and

take the test again after six months. Petitioner never

reapplied for employment at Respondent.

8 . The tes t administration, scoring , and notification

process used by Respondent with respect to Petitioner's

application was consistent with its standard procedures.

Petitioner's answer sheets were faxed to Saville and Holdsworth ,

Ltd., on the day he took the test , August 7, 2003. Respondent

received the test results from the independent company by fax on

that same day. Also, on that same date Respondent forwarded a

form letter to Petitioner notifying him that he failed the test.

This sequence of events is not u nusual in that Seville and

Holdsworth , Ltd., sometimes scored the tests and provided the

results to Respondent as quickly as five minutes after receiving

the faxed answer sheets from Respondent.

9 . Daniels passed the written test. On the same day she

to ok the test, Respondent notified Daniels by telephone that she

had passed and scheduled her for an interview. The fact that

Respondent 's Human Resources coordinator apprised Daniels of her

test results by telephone on the very day she took the test is

not unusual.

1 0 . Respondent's testing procedures were audited by the

Office of Federal Contract Compliance Programs, which found no

discrimination with respect to the company's merchandiser group.

At least 50 percent of Respondent's merchandisers are

minori ties.

1 1 . Of those applicants who applied for merchandiser

positions in August 2003, the individuals who m Respondent

screened - out initially and who were not allowed to take the

written test included three blacks, three whites, one Hispanic ,

and one applic ant whose minority status was unknown. The

individuals hired as merchandisers from August 2003 to January

2005 included 20 whites, 11 blacks, and 13 Hispanics or other

minority classification s . From June 1, 2003, through

November 30, 2003, Respondent hir ed six whites, four blacks,

four Hispanics , and one other employee.

1 2 . It is rare for a female to apply for a merchandiser

position with Respondent. Similarly, merchandiser applicants

typically are younger, rather than older individuals. From

August 20 03 to January 2005, Respondent hired one female and

five age - protected (over the age of 40) individuals.

1 3 . Every merchandiser hired by Respondent during the

relevant time period passed the written test; no applicant who

failed the test has been hired.

1 4 . In addition, o n his application form, Petitioner

indicated the reason he left the employment of the Orange County

Library was a "labor dispute." He also indicated his reason for

leaving Universal Studios' employment was that his "contract

ended." It was later determined that, in fact, both the Orange

County Library and Universal Studios terminated Petitioner for

insubordination.

1 5 . The employment application Petitioner signed included

the language, "I understand that the information I provide in

t his application must be complete and accurate to the best of my

knowledge. I realize that falsification and/or incomplete

information may result in my employment being terminated now or

at any time in the future."

1 6 . At the time of the hearing, Respond ent considered

Petitioner's statements of why he left his previous jobs as

falsifications of the application. Respondent did not discover

Petitioner's falsifications during the hiring process.

Consistent with its policy, had Respondent discovered that

Pe titioner falsified his employment application during the

hiring process, the application would not have been considered

further. Similarly, if Respondent had hired Petitioner and

discovered the falsification later, Respondent would have

terminated Petitio ner.

1 7 . Petitioner failed to prove that Respondent engaged in

discriminatory hiring practices when Respondent failed to hire

him in August 2003.

CONCLUSIONS OF LAW

1 8 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to Florida Administrative Code Rule

60Y - 4.016(1) and Section 120.569 and Subsection 120.57(1),

Florida Statutes (2005).

19 . The State of Florida, under the legislative scheme

contained in Chapter 760, Florida Statutes (2004), incorporates

and adopts the legal principles and precedents established in

the federal anti - discrimination laws specifically set forth

under Title VII of the Civil Rights Act of 1964, as amended.

42 U.S.C. § 2000e, et seq. The Florida l aw prohibiting unlawful

employment practices is found in Section 760.10, Florida

Statutes (2004). This section prohibits discrimination against

any individual with respect to compensation, terms, conditions,

or privileges of employment because of such ind ividual's age,

race, or sex. § 760.10(1)(a), Fla. Stat. (2004). FCHR and the

Florida courts interpreting the provisions of the Florida Civil

Rights Act of 19 64 have determin ed that federal discrimination

law s should be u sed as guidance when construing pr ovisions of

the Act. See Brand v. Florida Power Corp. , 633 So. 2d 504, 509

(Fla. 1st DCA 1994); Florida Department of Community Affairs v.

Bryant , 586 So. 2d 1205 (Fla. 1st DCA 1991); Cooper v. Lakeland

Regional Medical Center , 16 FALR 567, 574 (FCHR 1993 ).

2 0. Petitioner has the ultimate burden to prove

discrimination either by direct or indirect evidence. Direct

evidence is evidence which, if believed, would prove the

existence of discrimination without inference or presumption.

Carter v. City of Miam i , 870 F.2d 578, 581 - 82 (11th Cir. 1989).

Blatant remarks, wh ose intent could be nothing other than to

discriminate, constitute direct evidence of discrimination. See

Earley v. Champion International Corporation , 907 F.2d 1077,

1081 (11th Cir. 1990). Pe titioner has not presented any

evidence which would constitute direct evidence of

discrimination.

2 1 . Absent any direct evidence of discrimination, the

Supreme Court established, and later clarified, the burden of

proof in disparate treatment cases in McD onnell Douglas Corp. v.

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

Affairs v. Burdine , 450 U.S. 248 (1981) , and again in the case

of St. Mary's Honor Center v. Hicks , 509 U.S. 502, 113 S. Ct.

2742 (1993). FCHR has adopted this evidentia ry model.

Kilpatrick v. Howard Johnson Co. , 7 FALR 5468, 5475 (FCHR 1985).

McDonnell Douglas places upon p etitioner the initial burden of

proving a prima facie case of racial or sex discrimination. See

also Davis v. Humana of Florida, Inc. , 15 FALR 231 (FCHR 1992);

Laroche v. Department of Labor and Employment Security , 13 FALR

4121 (FCHR 1991).

2 2 . Judicial authorities have established the burden of

proof for establishing a prima facie case of discriminatory

treatment. Petitioner must show that:

a. Petitioner is a member of a protected

group;

b. The employee is qualified for the

position;

c. The employee was subject to an adverse

employment decision (Petitioner was not

hired ) ; and

d . The position was filled by a person of

another race or that Petitioner was treated

less favorably than similarly - situated

persons outside the protected class.

2 3 . Proving a prima facie case serves to eliminate the

most common nondiscriminatory reasons for Petitioner's disparate

treatment. See International Brotherhood of Teamsters v. U.S. ,

431 U.S. 324, 358, n. 44 (1977). It is not, however, the

equivalent of a factual finding of discrimination. It is simply

proof of actions taken by the employer from which discriminatory

animus is inferred because experi ence has prove n that, in the

absence of any other explanation, it is more likely than not

that those actions were bottomed on impermissible

considerations. The presumption is that more often than not ,

people do not act in a totally arbitrary manner, witho ut any

underlying reason, in a business setting. Furnco Construction

Corp. v. Waters , 438 U.S. 567, 577 (1978).

2 4 . Once Petitioner has succeeded in proving all the

elements necessary to establish a prima facie case, the employer

must then articulate som e legitimate, nondiscriminatory reason

for the challenged employment decision. The employer is

required only to "produce admissible evidence which would allow

the trier of fact rationally to con clude that the employment

decision had not been motivated by discriminatory animus ."

Texas Department of Community Affairs v. Burdine , 450 U.S.

at 257. The employer "n e ed not persuade the court that it was

actually motivated by the proffered reasons . . . [i]t is

sufficient if the [employer's] evidence raises a ge nuine issue

of fact as to whether it discriminated against the plaintiff."

Id. at 254. This burden is characterized as "exceedingly

light." Perryman v. Johnson Products Co., Inc. , 698 F.2d 1138

(11th Cir. 1983).

2 5 . Once the employer articulates a legi timate reason for

the action taken, the evidentiary burden shifts back to

Petitioner who must prove that the reason offered by the

employer for its decision is not the true reason, but is merely

a pretext. The employer need not prove that it was actually

motivated by the articulated nondiscriminatory reasons or that

the person hired was more qualified than Petitioner. Texas

Department of Community Affairs v. Burdine , 450 U.S. at 257 - 8.

2 6 . In Burdine , the Supreme Court emphasized that the

ultimate burden of persuading the trier of fact , that Respondent

intentionally discriminated against Petitioner , remains at all

times with Petitioner. Texas Department of Community Affairs v.

Burdine , 450 U.S. at 253. The court confirmed this principle

again in St. Mar y's Honor Center v. Hicks , 509 U.S. at 502.

I. Petitioner Failed to Establish a Prima Facie Case of

Discrimination

2 7 . In the case sub judice , Petitioner has established

that he is a member of a protected class. However, h e has

failed to establish that he was qualified for the position at

the time he applied. In addition, Petitioner has failed to come

forward with credible evidence that there is a causal connection

between his age, race, or gender and his failure to be hired.

Petitioner has also faile d to show that similarly - situated

persons outside the protected class received more favorable

treatment under similar circumstances. Therefore, there can be

no inference of discrimination. P r oud v. Stone , 945 F.2d 796

(4th Cir. 1991). "Whatever the empl oyer's decisionmaking

process, a disparate treatment claim cannot succeed unless the

employee's protected trait actually played a role in that

process and had a determinative influence on the outcome."

Hazen Paper Co. v. Biggins , 507 U.S. 604, 610, 113 S. Ct. 1701,

1706 (1993). This standard requires Petitioner to establish

that "but for" his protected class and the employer's intent to

discriminate, he would have been hired.

2 8 . Petitioner has failed to come forward with sufficient

evidence to meet hi s initial burden of proof on the issue of

age, sex, or racial discrimination. It is undisputed that in

order to be qualified for employment as a merchandiser with

Respondent, an applicant must pass the written test. F ailing to

pass the written test disqu alified an applicant from further

consideration. The r e was no evidence that Respondent has ever

made an exception to this pre - hire requirement . Respondent's

evidence is credible. In addition , Petitioner offered no

evidence to rebut Respondent's assertio n .

29 . Petitioner did not dispute that he, in fact, failed

the written test. Respondent played no role whatsoever in

scoring the test to determine whether Petitioner passed or

failed. Indeed, Respondent did not even have the answer key in

its possession . Rather, an independent company with whom

Respondent contracted was responsible for developing, scoring

and reporting the results of the written test to Respondent.

Because passing the written test was an essential requirement of

gaining employment as a merchandiser, the fact that Petitioner

failed the test meant he was not qualified for the position.

Therefore, Petitioner failed to prove an essential element of

his prima facie case, namely, that he was qualified for the

position for which he applied.

3 0 . To establish a prima facie case, Petitioner also must

establish that similarly - situated employees outside the

protected categories in question were treated more favorably.

An employee is "similarly situated" if he or she is similarly

situated to a pla intiff in all relevant respects and is treated

more favorably. For example, in a discharge for misconduct

case, a plaintiff must point to an individual outside the

protected category who was involved in or accused of the same o r

similar conduct, but was d isciplined differently. Holifie l d v.

Reno , 115 F.3d 1555, 1562 (11th Cir. 1997 ) . In Petitioner's

case, an individual "similarly situated" to him would be a

merchandiser applicant who: (1) passed the initial screening

process and hence was allowed to tak e the written test;

(2) failed the written test; and (3) was allowed to advance to

the interview phase despite failing the test. No such

comparator exists, however. Daniels passed the written test, so

she is not similarly situated to Petitioner. For thi s reason,

Petitioner cannot satisfy this essential element of his prima

facie case.

II. Respondent's Reason for Not Hiring Petitioner W as a

Legitimate, Nondiscriminatory Reason W hich W as N ot Proven to be

Pretextual

3 1 . Assuming, arguendo , that Petit ioner had met his

initial burden, the sequence of presentation of evidence then

required Respondent to come forward and articulate valid,

nondiscriminatory reasons for the resulting decision not to hire

Petitioner. Respondent has done so. The burden to a rticulate a

legitimate business reason for the action is one of production,

not of persuasion. The credibility of the nondiscriminatory

reasons need not be weighed at this stage of the burden - shifting

analysis. Reeves v. Sanderson Plumbing Products, Inc. , 530 U.S.

133, 142, 120 S. Ct. 2097, 2105 (2000); St. Mary's Honor Center

v. Hicks , 509 U.S. at 509.

3 2 . Even if it is assumed that Petitioner was able to

establish a prima facie case of discrimination, he cannot carry

his ultimate burden of proof. Resp ondent articulated a

legitimate, nondiscriminatory reason for its decision not to

hire Petitioner, namely, because he failed the written test.

There was no evidence that the test was discriminatory in

nature , the test has never been administered in a disc riminatory

fashion , large numbers of A frican - American males and other

minority employees of various ages have been hired for

merchandiser positions after successfully passing the test , and

Petitioner was free (but chose not) to retake the test after six

mo nths, an opportunity other applicants who initially failed the

test took advantage of and were hired as a result.

3 3 . In the face of this unrebutted evidence, Petitioner

offered nothing more than speculation and skepticism.

Petitioner's skepticism appear s to stem from the recollection he

and Daniels share that when administering the written test,

Richardson stated the test results would not be back for two or

three days. Richardson denied this alleged statement, noting

that she sometimes received test re sults from Saville and

Holdsworth , Ltd., as quickly as five minutes after she faxed the

answer sheet to them. However, even if Petitioner's

recollection is accurate, the utterance of the alleged statement

proves nothing, other than that Richardson did not want

applicants who failed the test to be calling h er office for test

results until they received written notification. Petitioner's

own subjective feelings, without evidence of age, sex, or racial

bias are insufficient to support a claim of discriminati on.

Wright v. Wyandotte County Sheriff's Department , 963 F. Supp.

1029 (D. Kan. 1997). The law is clear that "the inquiry into

pretext centers upon the employer's beliefs , and not the

employee's own perception of his performance." LeBlanc v. TJX

Compani es , Inc. , 214 F. Supp. 2d 1319, 1331 (S.D. Fla. 2002);

see also Webb v. R&B Holding Co., Inc. , 992 F. Supp. 1382, 1387

(S.D. Fla. 1998) ("The fact that an employee disagrees with an

employer's evaluation of him does not prove pretext.")

3 4 . Petitioner has the continuing burden of persuading the

trier of fact that Respondent intentionally discriminated

against h im . Texas Department of Community Affairs v. Burdine ,

450 U.S. at 253 - 254 . When a p etitioner alleges disparate

treatment, "liability depends on wh ether the protected trait

actually motivated the employer's decision." Hazen Paper Co. v.

Briggins , 507 U.S. at 610. Petitioner 's age, race , or gender

must have actually played a role in the employer's decision -

making process and had a determinative infl uence on the outcome.

Petitioner simply cannot prevail on his claim of disparate

treatment , unless he can demonstrate that Respondent

intentionally discriminated against him. Cason Enterprises,

Inc. v. Metropolitan Dade County , 20 F. Supp. 2d 1331, 1337

(S.D. Fla. 1998). There is no evidence to demonstrate that his

failure to be hired was a result of his age, gender, or race.

Petitioner failed to introduce any evidence to establish a prima

facie case or to prove that Respondent ' s legitimate,

nondiscrimi natory basis for his failure to be hired was a

pretext for discrimination. Thus, there has been no showing

that Respondent violated Subsection 760.10(1), Florida Statutes

(2004).

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions o f

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order which denies the Petition for Relief.

DONE AND ENT ERED this 7 th day of October , 2005 , in

Tallahassee, Leon County, Florida.

S

DA NIEL M. KILBRIDE

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 7 th day of October , 2005 .

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human

Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Willie Foster, Jr.

5542 Sout h Rio Grande Avenue

Orlando, Florida 32839

Susan K. McKenna, Esquire

Jackson Lewis LLP

390 North Orange Avenue, Suite 1285

Post Office Box 3389

Orlando, Florida 32802 - 3389

Cecil Howard, General Counsel

Florida Commission on Human

Relations

2009 Apa lachee 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 should b e filed with the agency that

will issue the final order in this case.