05-001922 Marlow Williams vs. Uncle Ernie`s Status: Closed Recommended Order on Thursday, March 23, 2006.

Summary: Petitioner did not prove that Respondent discriminated against him based on his race by creating a hostile work environment or by terminating his employment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARLOW WILLIAMS, )

)

Petitioner, )

)

vs. ) Case No. 05 - 1922

)

UNCLE ERNIE’S, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was condu cted in this case on January 25,

2006, in Panama City, Florida, before Suzanne F. Hood,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Marlow Williams, pro se

6526 Lance Street

Panama City, Florida 32404

For Respondent: Gary R. Wheeler, Esquire

McConnaughhay, Duffy, Coonrod

Pope & Weaver, P.A.

Post Office Box 550770

Ja cksonville, Florida 32255 - 0770

STATEMENT OF THE ISSUES

The issues are whether Petitioner received notice of the

August 19, 2005, administrative hearing, and if not, whether

Respondent discriminated against Petitioner based on his race.

PRELIMINARY STAT EMENT

On January 11, 2005, Petitioner Marlow Williams

(Petitioner) filed an Employment Complaint of Discrimination

with the Florida Commission on Human Relations (FCHR). The

complaint, which listed Petitioner's address as 6526 Lance

Street, Panama City, Florida, alleged that Respondent Uncle

Ernie's (Respondent) had violated Section 760.10(1), Florida

Statutes (2004), by subjecting him to harassment and by

terminating his employment based upon his race.

On April 18, 2005, FCHR issued a Determinatio n: No Cause.

FCHR also issued a Notice of Determination: No Cause, which

advised Petitioner of his right to file a Petition for Relief.

Both of these pleadings listed Petitioner's address as 6501

Pridgen Street, Panama City, Florida.

On May 25, 20 05, Petitioner filed a Petition for Relief

with FCHR. The petition listed Petitioner's address as 6526

Lance St., Panama City, Florida.

On May 25, 2005, FCHR referred the petition to the Division

of Administrative Hearings (DOAH). FCHR's Transmitt al of

Petition indicated that Petitioner's address of record was 6501

Pridgen Street, Panama City, Florida.

DOAH issued an Initial Order on May 25, 2005. Thereafter,

the undersigned conducted a telephone conference with the

parties to establish mut ually convenient dates to schedule the

hearing.

On June 9, 2005, the undersigned issued a Notice of

Hearing, scheduling the hearing for July 18, 2005. The notice

was sent to Petitioner's address of record as stated in FCHR's

Transmittal of Petition at 6501 Pridgen Street, Panama City,

Florida. The United States Post Office did not return the

notice to DOAH as undeliverable.

On July 8, 2005, Respondent filed a Motion to Reschedule

Hearing of July 18, 2005. On July 12, 2005, the undersigned

i ssued an Order Granting Continuance and Re - scheduling Hearing

for August 19, 2005. The order was sent to Petitioner's address

of record at 6501 Pridgen Street, Panama City, Florida. The

United States Post Office did not return the order to DOAH as

undeli verable.

On August 11, 2005, Respondent filed a unilateral Pre -

hearing Statement. Petitioner did not make such a filing.

Petitioner did not make an appearance at the hearing on

August 19, 2005, or make a request for a continuance.

Respondent was present and prepared to proceed as scheduled.

After waiting an appropriate period of time, the undersigned

adjourned the hearing. On August 22, 2005, the undersigned

issued an Order Closing File, which was sent to Petitioner at

his address of record at 6501 Pridgen Street, Panama City,

Florida.

On November 7, 2005, FCHR issued an Order Remanding

Petition for Relief from an Unlawful Employment Practice. The

order directed the undersigned to make further findings whether

Petitioner received noti ce of the August 19, 2005,

administrative hearing, and if not, for further proceedings on

the Petition for Relief.

On November 9, 2005, the undersigned issued an Order

Reopening File After Remand , which was sent to Petitioner at

6526 Lance Street, P anama City, Florida, and at 6501 Pridgen

Street, Panama City, Florida. On November 21, 2005, the United

States Post Office returned the O rder sent to Petitioner at 6501

Pridgen Street, Panama City, Florida, as undeliverable.

On November 29, 2005, R espondent filed a Unilateral

Response to Order Reopening File After Remand. Petitioner did

not make such a filing.

On November 30, 2005, the undersigned conducted a telephone

conference with the parties. During the conference, the parties

agreed t o reschedule the hearing for January 25, 2006.

On December 1, 2005, the undersigned issued a Notice of

Hearing, scheduling the hearing for January 25, 2006. The

undersigned also issued an Order of Pre - hearing Instructions.

On January 10, 200 6, Respondent filed a Pre - hearing

Statement. Petitioner did not make such a filing.

On January 20, 2006, Respondent filed a Motion to Dismiss

or in the Alternative to Postpone Hearing Pending Petitioner's

Response to Proposed Show Cause Order. The motion was denied on

the record during the hearing.

During the January 25, 2006, hearing, Petitioner testified

on his own behalf. He did not present any other witnesses or

offer any exhibits for admission into evidence.

Respondent presented the testimony of four witnesses.

Respondent offered four exhibits, which were accepted as

evidence.

A transcript of the proceeding was filed on March 3, 2006.

On March 9, 2006, Respondent filed a Motion for Extension

of Time to File Proposed Recommended Order. An Order dated

March 15, 2006, granted the motion.

Respondent filed a Proposed Recommended Order on March 17,

2006. As of the dated that this Recommended Order was issued,

Petitioner had not filed proposed findings of fact and

conclusions of law.

All citations shall hereinafter refer to Florida Statutes

(2004) unless otherwise indicated.

FINDINGS OF FACT

1. Petitioner is an African - American male. In the fall of

2004, Petitioner's cousin, Barry Walker, worked for Respondent

as a cook. Mr. Walker recommended that Respondent hire

Petitioner as a dishwasher.

2. James Pigneri, Respondent's owner, interviewed

Petitioner and decided to hire him as a dishwasher on a trial

basis. Petitioner began washing dishes f or Respondent in

September 2004. In October 2004, Petitioner began a 90 - day

probationary period as Respondent's dishwasher. At that time,

PMI Employee Leasing (PMI) became Petitioner's co - employer.

3. PMI has a contractual relationship with Respo ndent.

Through this contract, PMI assumes responsibility for

Respondent's human resource issues, payroll needs, employee

benefits, and worker s’ compensation coverage.

4. On October 10, 2004, Petitioner signed an

acknowledgement that he had receive d a copy of PMI's employee

handbook, which included PMI's policies on discrimination,

harassment, or other civil rights violations. The handbook

states that employees must immediately notify PMI for certain

workplace claims, including but not limited to, claims involving

release from work, labor relation problems, and discrimination.

The handbook requires employees to inform PMI within 48 hours if

employment ceases for any reason.

5. PMI's discrimination and harassment policies provide

employees w ith a toll - free telephone number. When an employee

makes a complaint or files a grievance, PMI performs an

investigation and takes any corrective action that is required.

6. The cook - line in Respondent's kitchen consist of work

stations for all sa uté and grill cooks. The cook - line runs

parallel to a row of glass windows between the kitchen and the

dining room and around the corner between the kitchen and the

outside deck. Customers in the dining room and on the deck can

see all of the cooks prepa ring food at the work stations along

the cook - line. On the evening of December 18, 2004,

Respondent's business was crowded with customers in the dining

room and on the deck.

7. On December 18, 2004, Petitioner was working in

Respondent's kitchen. S ometime during the dinner shift,

Petitioner was standing on the cook - line near the windows,

talking to a cook named Bob. Petitioner was discussing a scar

on his body. During the discussion, Petitioner raised his

shirt, exposing his chest, arm, and armpit . The cook named Bob

told Petitioner to put his shirt down.

8. Erin Pigneri, a white male, is the son of Respondent's

owner, James Pignari. As one of Respondent's certified food

managers, Erin Pigneri must be vigilant about compliance with

health c ode regulations when he works as Respondent's shift

manager. Erin Pigneri has authority to recommend that employees

be fired, but his father, James Pigneri, makes the final

employment decision.

9. On December 18, 2004, Erin Pigneri, was working as

Respondent's manager and was in charge of the restaurant because

his father was not working that night. When Erin Pigneri saw

Petitioner with his shirt raised up, he yelled out for

Petitioner put his shirt back on and to get off the cook - line.

Erin Pign eri was alarmed to see Petitioner with his shirt off on

the cook - line because customers could see Petitioner and because

Petitioner's action violated the health code.

10. Petitioner's reaction was immediately insubordinate.

Petitioner told Erin Pi gneri that he could not speak to

Petitioner in that tone of voice. Erin Pigneri had to tell

Petitioner several times to put his shirt on, explaining that

Petitioner was committing a major health - code violation.

11. When Petitioner walked up to Eri n Pigneri, the two men

began to confront each other using profanity but no racial

slurs. Erin Pigneri finally told Petitioner that, "I'm a 35 -

year - old man and no 19 - year - old punk is going to talk to me in

that manner and if you don't like it, you can leav e." Erin

Pigneri did not use a racial slur or tell Petitioner to "paint

yourself white."

12. After the confrontation, Erin Pigneri left the

kitchen. Petitioner went back to work, completing his shift

without further incident.

13. Petition er did not have further conversation with Erin

Pigneri on the evening of December 18, 2004. Erin Pigneri did

not discuss Petitioner or the shirt incident with any of the

waiters or any other staff members that night.

14. On Monday evening, Decembe r 20, 2004, Erin Pigneri was

in the restaurant when Petitioner and his cousin, Mr. Walker,

came to work. Petitioner was dressed in nicer clothes than he

usually wore to work. Mr. Walker approached Erin and James

Pigneri, telling them that they needed to have a meeting. Erin

and James Pigneri followed Petitioner and Mr. Walker into the

kitchen.

15. The conversation began with Mr. Walker complaining

that he understood some racist things were going on at the

restaurant. Mr. Walker wanted talk about Erin Pigneri's alleged

use of the "N" word. Erin Pigneri did not understand

Mr. Walker's concern because Mr. Walker had been at work on the

cook - line during the December 18, 2004, shirt incident.

16. According to Petitioner's testimony at the hea ring,

Mr. Walker had talked to a waiter over the weekend. The waiter

was Mr. Walker's girlfriend. Petitioner testified that the

waiter/girlfriend told Mr. Walker that she heard Erin Pigneri

use the "N" word in reference to Petitioner after Erin Pigneri

l eft the kitchen after the shirt incident on December 18, 2004.

Petitioner testified that neither he nor Mr. Walker had first -

hand knowledge of Erin Pigneri's alleged use the "N" word in the

dining room. Neither Mr. Walker nor the waiter provided

testimon y at the hearing. Accordingly, this hearsay evidence is

not competent evidence that Erin Pigneri used a racial slur in

the dining room after the "shirt incident."

17. During the meeting on December 20, 2004, Erin Pigneri

explained to Petitioner an d Mr. Walker that the incident on

December 18, 2004, involved Petitioner's insubordination and not

racism. Mr. Walker wanted to know why Erin Pigneri had not

fired Petitioner on Saturday night if he had been insubordinate.

Erin Pigneri told Mr. Walker th at he would have fired Petitioner

but he did not want Respondent to lose Mr. Walker as an

employee. Apparently, it is relatively easy to replace a

dishwasher but not easy to replace a cook like Mr. Walker.

18. Erin Pigneri asked Mr. Walker and ano ther African -

American who worked in the kitchen whether they had ever heard

him make derogatory racial slurs. There is no persuasive

evidence that Erin Pigneri ever made such comments even though

Petitioner occasionally, and in a joking manner, called Eri n

Pigneri slang names like Cracker, Dago, and Guinea.

19. Petitioner was present when Mr. Walker and Erin

Pigneri discussed the alleged racial slurs. Petitioner's only

contribution to the conversation was to repeatedly ask whether

he was fired. E rin Pigneri never told Petitioner he was fired.

20. After hearing Mr. Walker's concern and Erin Pigneri's

explanation, James Pigneri specifically told Petitioner that he

was not fired. James Pigneri told Petitioner that he needed to

talk to Erin P igneri and that they needed to work things out,

man - to - man.

21. After the meeting, Mr. Walker began his work for the

evening shift on December 20, 2004. Petitioner walked around

talking on his cell phone, telling his mother that he had been

fired and she needed to pick him up. James Pigneri told

Petitioner again that he was not fired, that Petitioner should

go talk to Erin Pigneri, and that Erin Pigneri was waiting to

talk to Petitioner.

22. Erin Pigneri waited in his office for Petitioner to

come in to see him. Petitioner never took advantage of that

opportunity.

23. During the hearing, Petitioner testified that James

Pigneri made an alleged racial slur in reference to Petitioner

at some unidentified point in time. According to P etitioner, he

learned about the alleged racial slur second - hand from a cook

named Bob. Bob did not testify at the hearing; therefore, there

is no competent evidence that James Pigneri ever made a racial

slur in reference to Petitioner or any other employe e.

24. Contrary to PMI's reporting procedures, Petitioner

never called or informed PMI that he had been harassed,

discriminated against, fired, terminated, or ceased working for

Respondent for any reason. On December 22, 2004, PMI correctly

conclude d that Petitioner had voluntarily terminated or

abandoned his employment.

25. When Petitioner filed his Employment Complaint of

Discrimination on January 11, 2005, Petitioner listed his

address as 6526 Lance Street, Panama City, Florida, which is h is

mother's residence. On April 18, 2005, FCHR sent the

Determination: No Cause to Petitioner at 6501 Pridgen Street,

Panama City, Florida, which is the address of one of

Petitioner's friends. When Petitioner filed his Petition for

Relief on May 25, 2005 , Petitioner listed his address the same

as his mother's home. FCHR transmitted the petition to the

Division of Administrative Hearings, indicating that

Petitioner's address of record was the same as his friend's

home. Therefore, the June 9, 2005, Notice of Hearing, and the

July 12, 2005, Order Granting Continuance and Re - scheduling

Hearing were sent to Petitioner at his friend's address.

26. During the hearing, Petitioner admitted that between

January 2005 and August 2005, he lived back and forth between

his mother's and his friend's residences. When he lived with

his friend, Petitioner did not check his mail at his mother's

home every day. However, Petitioner admitted that he received

the June 9, 2005, Notice of Hearing, scheduling the hearing for

July 18, 2005, and the July 12, 2005, Order Granting Continuance

and Re - scheduling Hearing for August 19, 2005.

27. Petitioner testified that he knew the first hearing

was rescheduled to take place on August 19, 2005. According to

Petitioner, he misplaced the "papers" identifying the location

of the hearing at the Office of the Judges of Compensation

Claims in Panama City, Florida. Petitioner asserts that he went

to the county courthouse on August 19, 2005, based on his

erroneous belief that t he hearing was to take place at that

location. After determining that there was no administrative

hearing scheduled at the county courthouse on August 19, 2005,

Petitioner did not attempt to call FCHR or the Division of

Administrative Hearings.

28. On December 1, 2005, the undersigned sent Petitioner a

Notice of Hearing, scheduling the hearing after remand for

January 25, 2005. The December 1, 2005, Notice of Hearing was

sent to Petitioner at his mother's and his friend's addresses.

The copy of t he notice sent to his friend's home was returned as

undeliverable.

29. During the hearing on January 25, 2005, Petitioner

testified that he used one of the earlier notices (dated June 9,

2005, and/or July 12, 2005) to locate the hearing site for th at

day. This was necessary because Petitioner had misplaced the

December 1, 2005, Notice of Hearing. All three notices have

listed the hearing site as the Office of the Judges of

Compensation Claims, 2401 State Avenue, Panama City, Florida.

CONCLUSIONS OF LAW

30. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Sections 120.569, 120.57(1), and 760.11,

Florida Statutes (2005).

Notice

31. FCHR remanded this case for a de termination whether

Petitioner received notice of the August 19 , 2005,

administrative hearing. During the hearing after remand,

Petitioner admitted that he received notice of the hearing as it

was originally scheduled on July 18, 2005, and rescheduled on

August 19, 2005.

32. Petitioner failed to attend the August 19, 2005,

hearing because he "misplaced" the original Notice of Hearing

and the Order Granting Continuance and Rescheduling Hearing and

went to the wrong hearing site. After learning that he w as not

at the designated location, Petitioner did not bother to call

FCHR or the Division of Administrative Hearings.

33. In the event that there is any residual question

whether Petitioner received proper notice of the August 19,

2005, hearing, th e merits of Petitioner's Petition for Relief

are considered below.

Discrimination

34. Petitioner has the burden of proving by the

preponderance of the evidence that Respondent committed an

unlawful employment practice. See Florida Department of

Tr ansportation v. J. W. C. Company, Inc. , 396 So. 2d 778 (Fla.

1st DCA 1981).

35. It is an unlawful employment practice for an employer

to discharge or otherwise to discriminate against any individual

with respect to compensation, terms, conditions, or priv ileges

of employment, because of such individual's race. See §

760.10(1)(a), Fla. Stat.

36. The provisions of Chapter 760, Florida Statutes, are

analogous to those of Title VII of the Civil Rights Act of 1964,

42 U.S.C. Sections 2000e, et seq . Cases int erpreting Title VII

are, therefore, applicable to Chapter 760, Florida Statutes.

See School Board of Leon County v. Hargis , 400 So. 2d 103 (Fla.

1st DCA 1981).

Hostile Work Environment

37. Petitioner alleges that Respondent harassed him by

using a racial slur on December 18, 2004, during the shirt

incident. Petitioner's testimony in this regard is not

persuasive. However, even if Erin Pigneri had used a racial

slur during the shirt incident, Petitioner still has not

presented a prima facie case of racial discrimination due to a

hostile work environment.

38. A prima facie case of hostile work environment

requires evidence that (a) the claimant belongs to a protected

group; (b) the claimant has been subject to unwelcome

harassment; (c) the hara ssment was based on a protected

characteristic; (d) the workplace is permeated with

discriminatory intimidation, ridicule, and insult sufficiently

severe or pervasive to alter the terms or conditions of

employment and to create an abusive working environme nt; and (e)

the employer is responsible for such environment under either a

theory of vicarious or of direct liability. See Miller v.

Kenworth of Dothan, Inc. , 277 F.3d 1269, 1275 (11th Cir. 2002);

Lawrence v. Wal - Mart Stores, Inc. , 236 F. Supp. 2d 1314 ( M.D.

Fla. 2002).

39. Here, Petitioner as an African - American is a member of

a protected group. Petitioner testified that the alleged racial

slur was unwelcome, race - related harassment. Even so, there is

no evidence that Petitioner's workplace was perm eated with

discriminatory intimidation, ridicule, and insult sufficiently

severe or pervasive to alter the terms or conditions of

employment and to create an abusive working environment.

40. In order to prove the fourth element of his prima

facie case, Petitioner must show that: (a) he subjectively

perceived the alleged conduct to be abusive, and (b) a

reasonable person objectively would find the alleged conduct to

be hostile or abusive. See Lawrence v. Wal - Mart Stores, Inc. ,

236 F. Supp. at 1323. "Me re utterance of a racial epithet that

engenders offensive feelings in an employee but does not alter

the conditions of employment, does not present an actionable

situation." See Meritor S avings Bank, FSB v. Vinson , 477 U.S.

57 (1986).

41. In this case, Petitioner presented evidence that he

subjectively perceived Erin Pigneri's conduct on December 18,

2005, to be offensive. The question remains whether Petitioner

has satisfied the objective inquiry.

42. A court should determine whether conduct is

obj ectively hostile or abusive by looking at the totality of the

circumstances, using several factors including: (a) the

frequency of the conduct; (b) its severity; (c) whether it was

physically threatening or humiliating or whether it was merely

offensive; and (d) whether it unreasonably interfered with the

employee's job performance. Id. at 1324. The conduct at issue

must be so extreme as to "amount to a change in terms and

conditions of employment." See Faragher v. City of Boca Raton ,

524 U.S. 775, 788 (1998).

43. In the instant case, there is no persuasive evidence

that Erin Pigneri or James Pigneri used derogatory racial slurs

at work. The kitchen staff may have joked around with each

other and joked with Erin Pigneri about his Italian heritage,

bu t Erin Pigneri did not respond in like manner. Offensive and

humiliating racial slurs did not permeate the work environment

in Respondent's kitchen.

44. Finally, Petitioner has not shown that Erin Pigneri's

allegedly inappropriate comments altered Petiti oner's working

conditions. Petitioner went right back to work on December 18,

2004, after the shirt incident and completed his shift. He

claims that he reported for work on December 20, 2004, prepared

to work, although he was dressed in his street clothe s and not

his usual work clothes. Respondent did not fire him for

violating the health code or being insubordinate. Petitioner

made the decision to alter the conditions of his employment by

walking off the job without being fired or making an effort to

" work things out" with Erin Pigneri.

45. Assuming arguendo that the evidence supports

Petitioner's allegations relative to a hostile work environment,

Respondent has satisfied the Faragher - Ellerth affirmative

defense which states as follows in relevant p art:

According to the Supreme Court, if a

plaintiff shows that the supervisor effected

a tangible employment action against

plaintiff, then the corporate defendant is

liable for the harassment. Faragher , 524

U.S. at 807 - 08, 118 S. Ct. 2275; Burlington

I ndus., Inc. v. Ellerth , 524 U.S. 742, 765,

118 S. Ct. 2257, 141 L.Ed.2d 633 (1998);

Miller , 277 F.3d at 1278. Where, however,

the plaintiff does not show that the

supervisor took a tangible employment

action, the employer may raise an

affirmative defense that it: 1) exercised

reasonable care to prevent and promptly

correct the harassing behavior, and 2) that

the plaintiff unreasonably failed to take

advantage of any preventative or corrective

opportunities the employer provided or to

avoid harm otherwise. Miller v. Kenworth of

Dothan, Inc. , 277 F.3d at 1278 (citing,

Faragher , 524 U.S. at 807, 118 S. Ct. 2275;

Ellerth , 524 U.S. at 765, 118 S. Ct. 2257.

See Lawrence v. Wal - Mart Stores, Inc. , 236 F. Supp. at 1327.

46. Here, Respondent and its co - employ er, PMI, never took

a tangible employment action against Petitioner. Petitioner was

not fired. Instead, James Pigneri tried to encourage Erin

Pigneria and Petitioner to work out their differences. Erin

Pigneri was willing to talk to Petitioner but Petit ioner was not

willing to talk to Erin Pigneri.

47. Furthermore, Respondent and PMI exercised reasonable

care to prevent harassment by having a policy in place to

prevent discrimination. Petitioner failed to follow the policy

by making a complaint, filing a grievance, and failing to inform

PMI that he was no longer working for Respondent for whatever

reason.

Unlawful Discharge

48. As stated above, Petitioner has the initial burden of

proving a prima facie case of unlawful discrimination. See

Texas Depa rtment of Community Affairs v. Burdine , 450 U.S. 248

(1981); McDonnell Douglas v. Green , 411 U.S. 792 (1973).

49. Petitioner may prove discrimination either directly or

through circumstantial evidence. See Arrington v. Cobb County ,

139 F.3d 865, 873 (1 1th Cir. 1998).

Direct Evidence of Unlawful Discharge

50. Under Hinson v. Clinch County Bd. of Educ. , "direct

evidence is not inferential; it is 'evidence which if believed,

proves existence of fact in issue without inference or

presumption.'" See I d. , citing Burrell v. Board of Trustees of

Ga. Military College , 125 F.3d 1390, 1393 (11th Cir. 1997).

Temporal proximity between the remark and the challenged

decision is also required. See Grant v. Delco Oil, Inc. , 259

B.R. 742, 750 (M.D. Fla. 2000).

51 . "Racially derogatory statements can be direct evidence

of discrimination if the comments were (1) made by the decision

maker responsible for the alleged discriminatory act and (2)

made in the context of the challenged decision." See Vickers v.

Federal Express Corp. , 132 F. Supp. 2d 1371 (S.D. Fla. 2000).

52. "If the Plaintiff makes a showing of direct evidence

of discrimination, the burden shifts to the defendant where it

must prove that it would have made the same decision anyway

absent the discrimi natory motive." See Harrington v. The

Children's Psychiatric Center, Inc. , 17 Fla. L. Weekly Fed. D

353 (S.D. Fla. 2003)(citing Wright v. Southland , 187 F.3d 1287

(11th Cir. 1999).

53. In this case, Petitioner has not made a showing of

racial discrimin ation by direct evidence. There is no

persuasive evidence that Erin Pigneri made a racial slur in

reference to Petitioner on December 18, 2004. However, even if

Erin Pigneri had used a racial slur, James Pigneri and not Erin

Pigneri, made the decision no t to fire Petitioner on

December 20, 2004. Respondent did not involuntarily terminate

Petitioner's employment.

54. "Employee resignations are presumed to be voluntary."

See Slatterly v. Neumann , 200 F. Supp. 2d 1367 (S.D. Fla. 2002).

Resignations are n ot involuntary simply because the only

perceived alternative is an unpleasant one. See I d. , at 1373.

In this case, Petitioner decided to voluntarily abandon his job

rather than talk with Erin Pigneri about their problems at work.

55. The greater weigh t of the evidence indicates that

James Pigneri wanted Petitioner and Erin Pigneri to work out

their problems. James Pigneri's decision in this regard was

warranted in light of Petitioner's health code violation and

insubordination on December 18, 2004, an d the resulting heated

confrontation with Erin Pigneri. James Pigneri had a legitimate

non - discriminatory reason to make that decision absent any

discriminatory motive. Petitioner elected not to take advantage

of the opportunity to talk to Erin Pigneri.

Circumstantial Evidence of Unlawful Discharge

56. In order to show a prima facie case of unlawful

discharge by circumstantial evidence, Petitioner must establish

the following: (a) he is a member of a protected class; (b) he

is qualified for the job; ( c) he was terminated from employment;

and (d) Respondent treated similarly situated non - black

employees more favorably. See Holified v. Reno , 115 F.3d 1555,

1562 (11th Cir. 1997).

57. If Petitioner presents a prima facie case of

discrimination, Responden t must articulate a legitimate,

nondiscriminatory reason for the challenged employment action.

See Combs v. Plantation Patterns , 106 F.3d 1519, 1528 (11th Cir.

1997).

58. If Respondent presents one or more such reasons, the

presumption of discrimination is eliminated and Petitioner must

prove beyond a preponderance of the evidence that Respondent's

reasons for the adverse action were a pretext for intentional

discrimination. See Id.

59. During the hearing, Petitioner admitted that

Respondent did not ter minate his employment. According to

Petitioner, James Pigneri specifically told him that he was not

being fired and that he needed to work things out with Erin

Pigneri.

60. Petitioner also failed to present any evidence that

Respondent treated whi te employees more favorably. Petitioner

did not show that Respondent's management allowed any employee,

regardless of race, to violate health code regulations and then

to respond insubordinately when corrected about that violation.

61. Petitioner has not presented a prima facie case of

unlawful discharge by circumstantial evidence. On the other

hand, James Pigneri was justified in requiring Petitioner to

talk to Erin Pigneri so the two of them could work out their

problems. Petitioner's health cod e violation and his

insubordination were not pretexts for discrimination.

Petitioner has presented no evidence to the contrary.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That FCHR enter a final ord er dismissing the Petition for

Relief.

DONE AND ENTERED this 2 3rd day of March, 2006, in

Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Build ing

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 2 3rd day of March, 2006.

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 Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 3 2301

Gary R. Wheeler, Esquire

McConnaughhay, Duffy, Coonrod

Pope & Weaver, P.A.

Post Office Box 550770

Jacksonville, Florida 32255 - 0770

Marlow Williams

6526 Lance Street

Panama City, Florida 32404

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 wi th the agency that

will issue th e final order in this cas e .