05-001778 Donald J. Brown vs. The Hertz Corporation Status: Closed Recommended Order on Wednesday, October 5, 2005.

Summary: The evidence was insufficient to prove that Respondent committed an unfair employment practice.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONALD J. BROWN, )

)

Petitioner, )

)

vs. ) Case No. 05 - 1778

)

THE HERTZ CORPORATION, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on July 14, 2005, in West Palm Beach, Florida, before

Administrative Law Judge Michael M. Parrish of the Divi sion of

Administrative Hearings .

APPEARANCES

For Petitioner: Donald J. Brown, pro se

Post Office Box 210651

Royal Palm Beach, Florida 33421

For Respondent: John W. Campbell, Esquire

Constangy, Brooks & Smith, LLC

100 West Kennedy Boulevard, Suite 500

Post Office Box 1840

Tampa, Florida 33601 - 1840

STATEMENT OF THE ISSUE

Whether The Hertz Corporation (Hertz) committed the

unlawful employment practices alleged in the employment

discrimination charge filed by Petitioner and, if so, what

relief should h e be granted by the Florida Commission on Human

Relations (FCHR).

PRELIMINARY STATEMENT

On or about May 25, 2004, Petitioner filed with the Palm

Beach County Office of Equal Opportunity (PBCOEO) an employment

discrimination charge against his former employ er, Hertz,

alleging that he had been discriminated against on the basis of

his race and had been retaliated against "because I reported

discriminatory practices." He gave the following "particulars"

in the charge:

On April 29, 2004, I was terminated fro m

my position as a Bus Driver after almost

five (5) years of employment.

The employer did not give a reason for the

disparate treatment.

I believe that I have been discriminated

against in violation of Article VI, Sections

2 - 216 through 2 - 313, Palm B each County Code

(the Palm Beach County Equal Opportunity

Ordinance), Title VII of the Civil Rights

Act of 1964, the Florida Civil Rights Act of

1992, as amended and retaliation under

Section 704(a), Title VII Civil Rights Act

and Chapter 760.10(7), Florid a Civil Rights

Act for the following reasons:

1. On April 16, 2004, I was placed on

progressive discipline after a minor offense

which happened six (6) months prior. I

believe this action was taken in retaliation

because as shop steward, I had to brin g to

the company's attention its discriminatory

practices toward Black employees.

2. White employees have committed more

serious offenses but they were not put on

progressive discipline. In fact, one White

employee had three (3) accidents where

damage s were over a hundred dollars each

time. He only received a verbal warning

after the third offense. I was put on

progressive discipline for a minor offense

and terminated. The White employee

continues to work.

3. I believe that I have been

discrimin ated against because of my

race/Black and retaliated against because I

reported discriminatory practices.

The charge was also filed with the FCHR (in FCHR Case

No. 2005 - 01364). On January 5, 2005, the PBCOEO issued a

Determination of No Reasonable Groun ds, indicating that its file

in the matter "is hereby closed with this agency" because,

"[b]ased upon the information and evidence gathered during the

investigation conducted by the Office of Equal Opportunity it is

concluded that there are no reasonable g rounds to believe that

there has been a violation of either the ordinance or the

federal statute as alleged." [E mphasis in original.] On

April 13, 2005, the FCHR issued a Right to Sue in FCHR Case

No. 2005 - 01364, advising that Petitioner could "pursue th is case

in the Division of Administrative Hearings by filing a Petition

for Relief with the FCHR within 35 days from the date of this

Right to Sue letter, or the Complainant may file a lawsuit in a

circuit court of the State of Florida anytime within one y ear

from the date of this Right to Sue letter, provided such time

period is not more than four years from the date the alleged

violation occurred." Petitioner, on May 13, 2005, filed with

the FCHR a Petition for Relief in connection with the charge he

had filed in FCHR Case No. 2005 - 01364. On May 18, 2005, the

FCHR referred the matter to the Division of Administrative

Hearings for the assignment of a DOAH Administrative Law Judge .

At th e final hearing in this case Petitioner testified on

his own behalf, b ut did not call any other witnesses.

Petitioner also submitted as Petitioner's Exhibit No. 1, a

composite exhibit consisting of numerous documents related to

his employment with Hertz.

Respondent presented the testimony of two witnesses,

Michael Thebn er a nd Michael Badders. Respondent also submitted

as Respondent's Exhibit No. 1, a composite exhibit consisting of

numerous add itional documents related to Petitioner's employment

with Hertz.

At the close of the hearing, the parties agreed that the

deadline f or filing proposed recommended orders would be seven

days from the date of the final hearing. Neither party ordered

a transc ript of the final hearing. Respondent filed a timely

proposed recommended order containing proposed findings of fact

and conclusio ns of law. As of the dat e of this Recommended

Order, Petitioner has not filed a proposed recommended order or

any similar document.

FINDINGS OF FACT

1. Petitioner is a Black male who was employed by Hertz

from 20 01 until April 29, 2004, when his employme nt was

terminated.

2. At all times material to the instant case, Petitioner

worked as a courtesy bus driver. His basic job duties included

picking up Hertz rental car customers at the West Palm Beach

airport and driving them to the Hertz station where th ey could

pick up their rental cars, as well as driving Hertz customers

from the Hertz station back to the airport after they turned in

their rental cars.

3. The events which precipitated Petitioner's termination

of employment occurred during the night shi ft t hat began at

6:00 p.m. on April 16, 2004, a nd was scheduled to end at

4:00 a. m. on April 17, 2004. Events proceeded normally on that

shift until about 2:00 a.m. on April 17, 2004. At that hour of

the morning, Petitioner was the only courtesy bus driv er on

duty. At that hour the manager for the Hertz station at the

West Palm Beach airport was Michael Thebner. At approximately

2:00 a.m. Petitioner dropped off some passengers at check - in who

had just arrived on Jet Blue. After dropping off those

passe ngers, Petitioner looked around to see if there were any

passengers waiting to be taken back to the airport. Seeing no

such passengers and believing that there were no other

passengers at the airport waiting to be picked up by a Hertz

courtesy bus, Petiti oner parked the bus and decided to take a

break.

4. Petitioner left the outside lights of the bus turned on

and left the bus motor on. He turned off the lights ins ide the

bus, turned off the air - conditioning inside the bus, closed the

bus doors, and walk ed to the back of the bus to take a break.

While taking a break in the back of the bus, Petitioner fell

asleep and remained asleep for several minutes.

5. In the meantime, a few minutes after Petitioner parked

the bus and began his break, the station man ager, Thebner,

received two telephone calls from Hertz customers who were

waiting at the airport for the Hertz courtesy bus. Thebner

immediately tried to contact Petitioner on the Nextel radio on

the bus channel, but Petitioner did not respond. Thebner t hen

paged Petitioner on the public address system, again with no

response. Thebner next walked over to the bus Petitioner was

operating that night and knocked first on the bus window and

then on a bus door. There was no response to those knocks.

Thebner tried unsuccessfully to page Petitioner on the intercom

and searched for Petitioner in various places on the station

premises, including the mens' room, the employee break room, and

the security hut. When the search for Petitioner was

unsuccessful, Thebn er went back to the bus and pounded louder on

the bus. This time he observed Petitioner waking up from

sleeping in one of the passenger seats in the bus. Thebner told

Petitioner that Petitioner was not supposed to be sleeping and

Petitioner denied sleepi ng. Thebner then told Petitioner to

drive to the airport and pick up the two waiting Hertz

customers. Petitioner promptly complied and went to pick up the

waiting Hertz customers.

6. Before the end of the shift, Thebner wrote a report

about the incident in which customers had to wait because

Petitioner was asleep and could not be found. Thebner wrote the

report because of Petitioner's conduct, which was contrary to

company work rules. Thebner's decision to write the report had

nothing to do with Petiti oner's race.

7. At all times material to this case, Michael Badders was

the City Manager for the Hertz station at the West Palm Beach

airport. Badders was the person to whom Thebner reported. On

April 19, 2005, Badders received Thebner's report about th e

incident in which customers had to wait because Petitioner was

asleep and could not be found. On April 20, 2005, Badders held

a meeting with Petitioner and with a shop steward from

Petitioner's union. During that meeting Petitioner denied being

asleep during the incident described above. Petitioner also

denied hearing the radio calls telling him there were customers

waiting to be picked up.

8. On April 20, 2004, Badders delivered a memorandum to

Petitioner advising Petitioner that he was being suspend ed

pending investigation. The substance of the memorandum read as

follows: "You are hear [sic] by suspended pending investigation

of violation of Company Rules and Regulations. Understand that

based on the results of the investigation a determination wi ll

be made as to the status of your employment. Disciplinary

action up to and including termination may result."

9. By letter dated April 23, 2004, Badders advised

Petitioner as follows: "Your employment with the Hertz

Corporation has been terminated ef fective immediately for

violation of rules and regulations. Please return your uniforms

when you pick up your last check."

10. Prior to the events in the early morning hours of

April 17, 2004, Petitioner had already been through several

steps of the Hert z progressive discipline policy as a result of

several instances of prior breaches of Hertz work rules and

policies. The termination of Petitioner's employment was

consistent with established Hertz disciplinary policies

applicable to all employees. Hertz has previously terminated

the employment of another courtesy bus driver at its West Palm

Beach facility who was discovered sleeping while he was supposed

to be on duty. 1

11. On one or more occasions Petitioner, in his capacity

as Alternate Shop Steward of Teamsters Local Union #390, engaged

in activity that was probably protected activity under the

National Labor Relations Act, but there is no persuasive

evidence that Petitioner engaged in any activity protected by

Chapter 760, Florida Statutes. 2 Specif ically, there is no

persuasive evidence that, as asserted in his original charge,

Petitioner "had to bring to the company's attention its

discriminatory practices toward Black employees."

CONCLUSIONS OF LAW

12. The Florida Civil Rights Act of 1992 (Act) is codified

in Sections 760.01 through 760.11, Florida Statutes. "Because

th[e] [A]ct is patterned after Title VII of the Civil Rights Act

of 1964, 42 U.S.C. § 2000e - 2, federal case law dealing with Title

VII is applicable." Florida Department of Communit y Affairs v.

Bryant , 586 So. 2d 1205, 1209 (Fla. 1st DCA 1991).

13. Among other things, the Act makes certain acts

"unlawful employment practices" and gives the FCHR the

authority, if it finds, following an administrative hearing

conducted pursuant to Sec tions 120.569 and 120.57, Florida

Statutes, that such an "unlawful employment practice" has

occurred, to issue an order "prohibiting the practice and

providing affirmative relief from the effects of the practice,

including back pay." §§ 760.10 and 760.11( 6), Fla . Stat.

14. To obtain such relief from the FCHR, a person who

claims to have been the victim of an "unlawful employment

practice" must, "within 365 days of the alleged violation," file

a complaint ("contain[ing] a short and plain statement of the

facts describing the violation and the relief sought") with the

FCHR, the EEOC, or "any unit of government of the state which is

a fair - employment - practice agency under 29 C.F.R. ss. 1601.70 -

1601.80." § 760.11(1), Fla . Stat. "[O]nly those claims that

are fairly encompassed within a [timely - filed complaint] can be

the subject of [an administrative hearing conducted pursuant to

Sections 120.569 and 120.57, Florida Statutes]" and any

subsequent FCHR award of relief to the complainant. Chambers v.

American T rans Air , Inc. , 17 F.3d 998, 1003 (7th Cir. 1994).

15. The "unlawful employment practices" prohibited by the

Act include those described in Section 760.10(1)(a) and (7),

Florida Statutes, which provide as follows:

It is an unlawful employment practice for an

employer:

(1)(a) To discharge or to fail or refuse

to hire any individual, or otherwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges of employment, because of such

individual's race, color, r eligion, sex,

national origin, age, handicap, or marital

status.

* * *

(7) It is an unlawful employment practice

for an employer, an employment agency, a

joint labor - management committee, or a labor

organization to discrimina te against any

person because that person has opposed any

practice which is an unlawful employment

practice under this section, or because that

person has made a charge, testified,

assisted, or participated in any manner in

an investigation, proceeding, or hearing

under this section.

16. As noted above, Section 760.10(7), Florida Statutes,

makes it an "unlawful employment practice" for an employer to

retaliate against an employee " because that person has opposed

any practice which is an unlawful employmen t practice under this

section, or because that person has made a charge, testified,

assisted, or participated in any manner in an investigation,

proceeding, or hearing under this section." "To establish a

prima facie case of [such] retaliation, a plaintif f must show

that (1) he engaged in a statutorily protected expression; (2)

he suffered an adverse employment action; and (3) there is some

causal relationship between the two events." Johnson v. Booker

T. Washington Broadcasting Service, Inc. , 234 F.3d at 507. In

this case, there is no persuasive evidence that Petitioner

engaged in any expression protected by Chapter 760, Florida

Statutes. Absent proof of such expression, it is impossible to

prove that the employer retaliated against an employee for

enga ging in activities protected by Chapter 760, Florida

Statutes. Therefore, so much of the charge as is based on

allegations of retaliation should be dismissed for failure of

proof.

17. A complainant, like Petitioner, alleging that he was

the victim of int entional employment discrimination in violation

of the Act, has the burden of proving, at the administrative

hearing held on his allegations, that such discrimination

occurred. See Department of Banking and Finance Division of

Securities and Investor Prot ection v. Osborne Stern and Company ,

670 So. 2d 932, 934 (Fla. 1996)("'The general rule is that a

party asserting the affirmative of an issue has the burden of

presenting evidence as to that issue."'); Florida Department of

Health and Rehabilitative Servic es v. Career Service Commission ,

289 So. 2d 412, 414 (Fla. 4th DCA 1974)("[T]he burden of proof

is 'on the party asserting the affirmative of an issue before an

administrative tribunal.'"); and Hong v. Children's Memorial

Hospital , 993 F.2d 1257 , 1261 (7th Cir. 1993)(" To ultimately

prevail on a disparate treatment claim under Title VII, the

plaintiff must prove that she was a victim of intentional

discrimination.").

18. "Discriminatory intent may be established through

direct or indirect circumstantial ev idence." Johnson v.

Hamrick , 155 F. Supp. 2d 1355, 1377 ( N.D. Ga. 2001). " Direct

evidence is evidence that, if believed, would prove the

existence of discriminatory intent without resort to inference

or presumption." King v. La Playa - De Varadero Restaur ant , No.

02 - 2502, 2003 WL 435084 *3 n.9 (Fla. DOAH 2003)(Recommended

Order). "[D]irect evidence is composed of 'only the most

blatant remarks, whose intent could be nothing other than to

discriminate' on the basis of some impermissible factor. . . .

If a n alleged statement at best merely suggests a discriminatory

motive, then it is by definition only circumstantial evidence."

Schoenfeld v. Babbitt , 168 F.3d 1257, 1266 (11th Cir. 1999).

Likewise, a statement "that is subject to more than one

interpretati on . . . does not constitute direct evidence."

Merritt v. Dillard Paper Co. , 120 F.3d 1181, 1189 (11th Cir.

1997).

19. "[D]irect evidence of intent is often unavailable."

Shealy v. City of Albany, Ga. , 89 F.3d 804, 806 (11th Cir.

1996). For this reason , those who claim to be victims of

discrimination "are permitted to establish their cases through

inferential and circumstantial proof." Kline v. Tennessee

Valley Authority , 128 F.3d 337, 348 (6th Cir. 1997).

20. Where a complainant attempts to prove in tentional

discrimination using circumstantial evidence, the "shifting

burden framework established by the [United States] Supreme

Court in McDonnell Douglas Corp. v. Green , 411 U.S. 792,

93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973) and Texas Dep't of

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

L. Ed. 2d 207 (1981)" is applied. "Under this framework, the

[complainant] has the initial burden of establishing a prima

facie case of discrimination. If [the complainant] meets that

burden, then an inference arises that the challenged action was

motivated by a discriminatory intent. The burden then shifts to

the [employer] to 'articulate' a legitimate, non - discriminatory

reason for its action. 3 If the [employer] successfully

articulates such a rea son, then the burden shifts back to the

[complainant] to show that the proffered reason is really

pretext for unlawful discrimination." Schoenfeld v. Babbitt ,

168 F.3d at 1267 (citations omitted.).

21. Under no circumstances is proof that, in essence,

am ounts to no more than mere speculation and self - serving belief

on the part of the complainant concerning the motives of the

employer sufficient, standing alone, to establish a prima facie

case of intentional discrimination. See Lizardo v. Denny's,

Inc. , 2 70 F.3d 94, 104 (2d Cir. 2001) ("The record is barren of

any direct evidence of racial animus. Of course, direct

evidence of discrimination is not necessary. . . . However, a

jury cannot infer discrimination from thin air. Plaintiffs have

done little mor e than cite to their mistreatment and ask the

court to conclude that it must have been related to their race.

This is not sufficient.")( citations omitted.); Reyes v. Pacific

Bell , 21 F.3d 1115 (Table), 1994 WL 107994 **4 n.1 (9th Cir.

1994)("The only such evidence [of discrimination] in the record

is Reyes's own testimony that it is his belief that he was fired

for discriminatory reasons. This subjective belief is

insufficient to establish a prima facie case."); Little v.

Republic Refining Co., Ltd. , 924 F.2d 93, 96 (5th Cir.

1991)(" Little points to his own subjective belief that age

motivated Boyd. An age discrimination plaintiff's own good

faith belief that his age motivated his employer's action is of

little value."); Elliott v. Group Medical & Surgica l Service ,

714 F.2d 556, 567 (5th Cir. 1983)("We are not prepared to hold

that a subjective belief of discrimination, however genuine, can

be the basis of judicial relief."); Rouillard v. Potter , 2003 WL

21026814*9 (D. Minn. 2003) (" A plaintiff's subjective belief or

speculation that statements are discriminatory does not

establish a claim of hostile work environment."); Coleman v.

Exxon Chemical Corp. , 162 F. Supp. 2d 593, 622 ( S.D. Tex.

2001)(" Plaintiff's conclusory, subjective belief that he has

suffered discrimination by Cardinal is not probative of unlawful

racial animus."); Cleveland - Goins v. City of New York , 1999 WL

673343 *2 ( S.D. N.Y. 1999)(" Plaintiff has failed to proffer any

relevant evidence that her race was a factor in defendants'

decision to t erminate her. Plaintiff alleges nothing more than

that she 'was the only African - American man [sic] to hold the

position of administrative assistant/secretary at Manhattan

Construction.' (Compl.¶ 9.) The Court finds that this single

allegation, accompani ed by unsupported and speculative

statements as to defendants' discriminatory animus, is entirely

insufficient to make out a prima facie case or to state a claim

under Title VII."); Umansky v. Masterpiece International Ltd. ,

1998 WL 433779 *4 ( S.D. N.Y. 19 98)(" Plaintiff proffers no

support for her allegations of race and gender discrimination

other than her own speculations and assumptions. The Court

finds that plaintiff cannot demonstrate that she was discharged

in circumstances giving rise to an inferenc e of discrimination,

and therefore has failed to make out a prima facie case of race

or gender discrimination."); and Lo v. F.D.I.C. , 846 F. Supp.

557, 563 ( S.D. Tex. 1994)(" Lo's subjective belief of race and

national origin discrimination is legally insuf ficient to

support his claims under Title VII.").

22. In the instant case, Petitioner failed to meet his

burden of proving, at the administrative hearing, that Hertz

committed the "unlawful employment practices" alleged in the

employment discrimination ch arges that are the subject of this

case.

23. To prove that he was discriminated against by Hertz

managers, Petitioner did not present any testimony other than

his own. Petitioner, however, was not a credible witness.

Hertz presented convincing evidence, in the form of testimony

from Mr. Thebner and Mr. Badders, that not only established that

there were legitimate no ndiscriminatory reasons for Petitioner's

termination, but that also cast serious doubt on the credibility

of Petitioner's entire testimony (e ven those portions that were

not directly contradicted by Hertz' evidentiary presentation). 4

See Walker v. Florida Department of Business and Professional

Regulation , 705 So. 2d 652, 655 (Fla. 5th DCA 1998)(Dauksch, J.,

specially concurring) ( " [T]he trier of fact is never bound to

believe any witness, even a witness who is uncontradicted.");

Maurer v. State , 668 So. 2d 1077, 1079 ( Fla. 5th DCA 1996)(" A

judge acting as fact - finder is not required to believe the

testimony of police officers in a suppression h earing, even when

that is the only evidence presented; just as a jury may

disbelieve evidence presented by the state even if it is

uncontradicted, so too the judge may disbelieve the only

evidence offered in a suppression hearing."); and Bellman v.

Yarmark Enterprises, Inc. , 180 So. 2d 663, 664 ( Fla. 3d DCA

1965)(" The two principal witnesses relied upon by appellant for

the proof of usury were substantially impeached and we cannot

say that the trial court was bound to accept their testimony. A

chancellor a s the 'finder of fact' may find a witness who has

been impeached completely unworthy of belief, and in such

circumstances it is within his province to reject such

testimony.").

24. The record in this case is bereft of any credible

evidence that Petitioner was subjected to any adverse employment

action by his supervisors that was based on any Section 760.10 -

protected status he enjoyed at the time or any Section 760.10 -

protected activity in which he had engaged. While Petitioner

may sincerely and genuinely believe that he was so victimized,

such a good faith belief, unaccompanied by any persuasive

supporting proof, is simply insufficient to establish that such

intentional discrimination occurred.

25. In view of the foregoing, no "unlawful employment

practic e" should be found to have occurred, and the employment

discrimination charges that are the subject of this case should

therefore be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the FCHR issue a final order in this case

finding that Hertz is not guilty of any of the "unlawful

emplo yment practices" alleged by Petitioner and dismissing the

Petition for Relief.

DONE AND ENTERED this 5th day of October, 2005, in

Tallahassee, Leon County, Flor ida.

S

___________________________________

MICHAEL M. PARRISH

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 5th day of October, 2005.

ENDNOTES

1/ The evidence in this case does not indicate the race or

gender of the other bus dr iver who se employment was terminated

for sleeping.

2/ All citations to the Florida Statutes are to the current

version of the statutes. At the time of the events from which

this case arises, all material portions of Chapter 760, Florida

Statutes, were t he same as the current version of the statutes.

3/ " To 'articulate' does not mean 'to express in argument.'"

Rodriguez v. General Motors Corporation , 904 F.2d 531, 533 (9th

Cir. 1990). "It means to produce evidence." Id .

4/ Of specific significance in this regard is the fact that at

several different times Petitioner gave several different

versions of what he was doing in the bus while Thebner was

looking for him.

COPIES FURNISHED:

Donald J. Brown

Post Office Box 210651

Royal Palm Beach, Florida 33421

David B. Friedman, Senior Staff Counsel

The Hertz Corporation

225 Brae Boulevard

Park Ridge, New Jersey 07656

John W. Campbell, Esquire

Constangy, Brooks & Smith, LLC

100 West Kennedy Boulevard, Suite 500

Post Office Box 1840

Tampa, Flori da 33601 - 1840

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 323301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Talla hassee, Florida 323301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this reco mmended order. Any exceptions

to this recommended order should be filed with the agency that

w ill issue the final order in this case.