05-002171 Ramuriel A. Orlino vs. Jupiter Medical Center Status: Closed Recommended Order on Monday, August 14, 2006.

Summary: Petitioner, who was terminated from his position by Respondent, failed to prove that he was discriminated against because of his race.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RAMURIEL A. ORLINO , )

)

Petitioner, )

)

vs. ) Case No. 05 - 2171

)

JUPITER MEDICAL CENTER , )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in th is case

pursuant to Sections 120.569 and 120.57(1), Florida Statutes, 1

before Stuart M. Lerner, a duly - designated administrative law

judge of the Division of Administrative Hearings, on May 1 and

16, 2006, by video teleconference at sites in West Palm Beach

and Ta llahassee, Florida.

APPEARANCES

For Petitioner : Ramuriel A. Orlino, pro se

134 Northwest Willow Grove Avenue

Port St. Lucie, Florida 34986

For Respondent: Gregory D. Cook, Esquire

FitzGerald, Hawkins, Mayans & Cook, P.A.

515 North Flagler Drive, Suite 900

West Palm Beach, Florida 33401

STATEMENT OF THE ISSUE

Whether Jupiter Medical Center committed the unlawful

employment practices alleged in the e mployment discrimination

charge filed by Petitioner and, i f so , what relief should the

Florida Commission on Human Relations grant Petitioner .

PRELIMINARY STATEMENT

On May 24, 2004 , Petitioner , whose employment with Jupiter

Medical Center (JMC) was terminated on June 6, 2003, filed an

employment discrimination ch arge with the Florida Commission on

Human Relations (FCHR), alleging that JMC had discriminated

against him "b ecause of his race (Asian)." On May 18, 2005 ,

following the completion of its investigation of Petitioner's

charge, the FCHR issued a Notice of D etermination: No Cause,

advising that a determination had been made that "there [was] no

reasonable cause to believe that an unlawful employment practice

ha[d] occurred." Petitioner , on or about June 11 , 2005, filed a

Petition for Relief with the FCHR. On June 16 , 2005, the FCHR

referred the matter to the Division of Administrative Hearings

(DOAH) for the assignment of an administrative law judge to

conduct a hearing on the allegations of employment

discrimination made by Petitioner against JMC .

On D ec ember 7, 2005, the originally - assigned administrative

law judge issued an Order Granting Motion to Dismiss,

Relinquishing Jurisdiction, and Closing File, in which he

returned the instant matter to the FCHR "inasmuch as there

[were , in his view, ] no longer any disputed issues of material

fact in this case."

On February 24, 2006, the FCHR entered an Order Remanding

Petition for Relief f rom an Unlawful Employment Practice , in

which it referred the matter back to DOAH because, in its

opinion, there were "disput ed issues of material

fact . . . requir [ing] a formal administrative hearing to

resolve." The remand was accepted, and the DOAH file in this

case was reopened. Thereafter, the undersigned was reassigned

the case.

As noted above, the undersigned conduct ed the final hearing

in this case on May 1 and 16 , 2006. Seven witnesses testified

at the hearing: Jeanne Wiley, Kathleen Rogers, William Myers,

Bertha Valdez, Petitioner, Sherry Miller, an d Gail O’Dea . In

addition, the following e xhibits (Petitioner ' s Exhibits 1 A

through Q and 2, and Respondent's Exhibits 1 through 5 and 7

through 27 ) were offered and received into evidence. At the

close of the evidentiary portion of the hearing on May 16 , 2006,

the undersigned established the deadline for filing propo sed

recommended orders 45 days from the date of the filing of the

complete hearing transcript with DOAH.

The Transcript of the final hearing consist s of two

volumes . The first volume was filed with DOAH on May 26 , 2006.

The second volume was filed with D OAH on June 9, 2006.

Accordingly, proposed recommended orders had to be filed no

later than July 24 , 2006.

Petitioner and JMC timely filed their Proposed Recommended

Orders on July 20, 2006, and July 24, 2006, respectively. On

August 1, 2006, Petitione r filed a Supplemental Proposed

Recommended Order.

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as

a whole, the following findings of fact are made:

1. Petitioner is from the Philippines and is a Filipino

citizen. He is now , and has been since approximately February

2000, a legal resident of the United States.

2. JMC operates a 156 - bed hospital (Hospital) located in

Jupiter, Florida , which has a medical laboratory (Laboratory)

that is "open twenty - four hours a day, seven days a week . "

3. At all times material to the instant case , Kathleen

Rogers was the director of the L aboratory and Sherry Miller was

the assistant director of the Laboratory .

4 . Petitioner was hired by JMC in October 2000 , as a

medical t echnologist to wor k in the L aboratory.

5. He worked in the Laboratory as a medical t echnologist,

under Ms. Rogers' supervision, from October 2000, until his

employment was terminated on June 6, 2003 (Employment Period).

6. During the Employment Period, Jeanne Wiley also worked

as a medical technologist in the Laboratory under Ms. Rogers'

supervision. Ms. Wiley did not exercise any supervisory

authority over Petitioner, nor was she part of the JMC

management team.

7 . Ms. Rogers was responsible for Petitioner's hiring.

She "hired him at the maximum [salary] that anybody coming in at

th [at] level could be paid" under JMC's race/religion/gender -

blind pay scale .

8. Petitioner received pay raises during the time that he

worked for JMC .

9. There were other Laboratory e mployees who were paid

less than Petitioner. None of these employees was Asian.

10 . John Lambiase was hired by JMC as a medical

technologist to work in the Laboratory in 2003 , shortly before

Petitioner's termination . At the time of his hiring,

Mr. Lambi ase had less education and experience than did

Petitioner. Nonetheless , Mr. Lambiase's starting salary of

$17.80 per hour was $0 .38 per hour more than Petitioner was

making. 2 This disparity in pay was the product of market

conditions and had nothing to d o with either Mr. Lambiase's or

Petitioner's race. The position that Mr. Lambiase filled had

been vacant for approximately eight months despite JMC's

recruiting efforts . "[D]esperate" to fill the vacancy ,

Ms. Rogers requested and obtained from JMC's huma n resources

department "special permission" to hire Mr. Lambiase at the

going market rate.

11. During the Employment P eriod, JMC had a human

resources administrative policy and procedure m anual (Manual),

which was made available to all employees, includ ing Petitioner.

The Manual contained, among other things, an anti - discrimination

and anti - harassment policy , a grievance procedure, a "Time and

Attendance" policy, and a progressive discipline policy.

12. The progressive discipline policy stated , in pe rtinent

part, substantially the following with respect to "Verbal

Warning[s] ," "Written Conference Records , " and terminations :

Verbal Warning :

"Informal counseling" will be regarded as a

daily on - going process through which

management may communicate nece ssary

information to his/her staff. Such

information may include both positive

comments and/or areas in need of

improvement. In either case, management may

wish to utilize " Employee Action Assessment"

for the following purposes:

a. To justify pay for p erformance

adjustment decisions and to confirm

performance appraisal accuracy.

b. To document excellence for promotional

opportunities.

c. To document "reoccurring"

performance/behavior/work habit problems

that individually do[] not yet require

formal do cumentation, (i.e.) "Written

Conference Record."

Employee Action Assessment entries will be

shared with the employee within a reasonable

time of management's observation or date of

discovery. Employee Action Assessments need

not be shared with Human Reso urces but

rather maintained by the appropriate manager

to be used as outlined above.

Written Conference Records :

1 . Unless immediate suspension pending

investigation or termination is necessary,

an employee will receive a documented

"Written Conference Record" which will

delineate steps toward correction of the

problem.

The completed Written Conference Record

process should take place within (3) three

business days of the date of discovery,

unless the employee has been temporarily

suspended pending inve stigation or if

interrupted by a Medical Center holiday. In

the case of the latter, the process should

be completed by the next business day.

2. The Chief Human Resource Officer or

Assistant Director of Human Resources will

review and approve all "Writt en Conference

Records" prior to management meeting with

the employee.

3. All employee "Written Conference

Records" shall be documented on a Jupiter

Medical Center "Conference Record" form and

ultimately filed in the Human Resource s

Department. The emplo yee is encouraged to

review and record personal comments and sign

the form. While employees are encouraged to

respond [to] and sign the form, responding

to, or signing the form merely indicates

that the action was discussed with the

employee, not that the employee agrees or

disagrees with the corrective action.

4. All completed "Written Conference

Record" forms should be received by the

Human Resources Department with in (3)

business days. A completed "Written

Conference Record" form will be

appropriatel y signed and dated by the

manager, employee, if agreeable, and a

managerial witness from the same department.

A witness's signature will acknowledge that

the information was thoroughly discussed

with the employee in an appropriate manner.

5. Any combin ation of three appropriately

documented "Written Conference Records"

within an eighteen - month (18) period will

constitute grounds for termination unless

otherwise noted on the "Written Conference

Record." In such instance s , fewer than (3)

repetitions of s ome violations may [warrant]

termination. . . .

6. No department, other than the Human

Resources Department will maintain formal

"Written Conference Records" in their files.

Informal document ation such as "e mployee

action assessments" and/or employee

at tendance record m a y be kept within

individual department files.

7. A "Written Conference Record" should be

available to support any performance

appraisal standard scored as "needs

improvement."

Suspension and Termination :

* * *

5. Terminations reviewed and approved by

the Senior Manger will be forwarded to the

Chief Human Resource Officer or the

Assistant Director of Human Resources for

review and final approval. A letter of

termination must be coordinated through the

Asst. D ir. o f Human Resource[s] outlining

all documentation used to justify the

termination and to act as a notice to the

terminated employee regarding [his or her]

grievance rights and need to return certain

Medical Center property.

* * *

13. Petitioner's employment with JMC was terminated,

consistent with the above - referenced progressive discipline

policy, because , in less than 18 months, he had accumulated

three "Written Conference Records " ( all of which were given to

him by Ms. Roge rs and , before becoming a part of Petitioner's

permanent record, were reviewed and approved by JMC's human

resources department ) . Petitioner's race played no role

whatsoever in his receiving these three "Written Conference

Records" 3 or in his being termin ated. There has been no showing

that any other employee at the Hospital received three "Written

Conference Records" within an 18 - month period and remained

employed.

14. Petitioner received the first of these three "Written

Conference Records" in Septembe r 2002. It read as follows:

REASON FOR CONFERENCE: . . . .

On August 23, 2002, Ramuriel reported out a

7.3mmol/L potassium result. [ 4 ] Ramuriel did

not meet laboratory competency standards

because he did not follow the attached

laboratory procedure: NOT IFICATION OF

LABORATORY VALUES. Procedures specifically

not followed are:

- 2.1.1 "Verify the quality of the specimen"

and "Recollect specimens immediately if

specimen is suspect"

2.1.3 "Notify the physician/patient care

personnel when patient is outsid e the

hospital."

Ramuriel failed to meet Human Resources

6.7a, a Class II violation, "Performance of

duties below standard that continue after a

reasonable period of appraisal and

training."

ACTION PLAN FOR IMPROVEMENT: . . .

Ramuriel will immediately improve his

technical skills and follow all laboratory

policies, especially G.4 .2 "Notification of

Laboratory V alues." Failure to meet JMC

standards of competency will lead to further

disciplinary action, up to and including

termination.

Ms. Rogers learn ed of th e violation cited in this "Written

Conference Record" as a r esult of a "physician complaint " (and

not from Ms. Wiley). 5 In giving Petitioner this "Written

Conference Record," she did not treat him any differently than

she treated other medical tec hnologists who committed similar

violations. Petitioner did not grieve his receipt of this

" Written Conference Record," nor did he write anything on this

"Written Conference Record" in the space prov ided for

"[e]mployee [c]omments. "

15. The next "Written Conference Record" Petitioner

received concerned an on - duty verbal altercation Petitioner had

in January 2003, with another medical technologist working in

the Laboratory, Susan Goldstein. Ms. Goldstein also received a

"Written Conference Record" from Ms . Rogers for her

participation in the altercation. Petitioner's "Written

Conference Record" read as follows:

REASON FOR CONFERENCE: . . . .

On January 17, 2003, Ariel requested another

employee to work in the coagulation section.

The fellow employee st ated she was busy

helping a new employee with chemistry. The

workload did not justify his request (see

attached report). The coworker stated Ariel

called her lazy when she refused to leave

chemistry. Coworkers a nd supervisors do not

feel Ariel is a pati ent focused team player

and are unable to discuss workflow and

cooperation with him. It is the policy of

the Laboratory and Jupiter Medical Center to

complete all tasks and work as a team to the

benefit of our patients. Ariel violated

Personnel Policy 6. 7 group II.y "Other

actions determined by management to not be

in the best interest of the Medical Center."

ACTION PLAN FOR IMPROVEMENT: . . .

A r iel will immediately put the patient

first, and remain focused on patient

testing. The evening shift must w ork

together as a team, and Ari e l needs to be a

member o f t h is team.

Petitioner grieved his receipt of this "Written Con ference

Record. " Petitioner's grievance was ultimately presented to

JMC's Chief Operating Officer , who reached the following

"conclus ion , " which she reduced to writing on March 25, 2003 :

This investigation has revealed substantial

agreement about the facts of the incident

itself by all parties. The facts regarding

the incident do merit a Written Record of

Conference in accordance with Jupiter

Medical Center Policy. The Record should be

amended to show that the lack of teamwork

referenced was agreed by the Department

Man[a]ger to be primarily limited to the one

employee involved in this incident and does

not extend to the entire Departm ent. With

the amendment, the Written Record of

Conference should be a permanent part of the

employment file of Mr. Orlino.

Following his receipt of the Chief Operating Officer's written

"conclusion," Petitioner took no action to "continue with [his]

grie vance . " As a result, p ursuant to the grievance procedure

set forth in the Manual, the Chief Operating Officer's written

"conclusion" became the final resolution of Petitioner's

grievance .

16. The last of the "Written Conference Records"

Petitioner recei ved was for repeatedly violating , after being

warned on "multiple occasions " to stop, 6 that portion of JMC's

"Time and Attendance" policy , which provided that " employees

will not badge in more than seven minutes prior to the start of

their shift ." This "W ritten Conference Record , " which was given

to Petitioner on June 6, 2003, read as follows:

REASON FOR CONFERENCE: . . . .

See attached list of dates and times of

Ramuriel's timeclock punches. Beginning on

March 17, 2003 through May 24, 2003,

Ramuriel has failed to badge in at the

correct time. Ramuriel is establishing an

unacceptable pattern of badging in for work

early and leaving early. Ramuriel has

violated Human Resources Policy 6.7.a,

"Insubordination - refusal or failure to

follow instruction or es tablished practices

of the Medical Center," a Class I violation.

Ramuriel was informed of the correct badging

practice verbally on March 3, 2003 and by

mailbox on March 17, 2003. Again the policy

was reviewed at the April 2, 2003 general

laboratory meeti ng, which Ramuriel attended,

and [he] reviewed and initialed the minutes

which included the time clock policy.

ACTION PLAN FOR IMPROVEMENT: . . .

See associated letter.

There has been no showing that any other Laboratory employee

engaged in similar ins ubordinate conduct and did not receive a

"Written Conference Record . " Petitioner did not grieve his

receipt of this "Written Conference Record " because he knew that

he was in the wrong; nor did he write anything on this "Written

Conference Record" in the space provided for "[e]mployee

[c]omments."

17. The "associated letter" in the "Written Conference

Record" was a June 6, 2003, letter to Petitioner from

Ms. Rogers, advising Petitioner of his termination. It read as

follows:

On August 23, 2002, you fa iled to meet

laboratory competency standards or follow

laboratory procedure. This is a Class II

violat ion of Human Resources Policy 6.7 -

Discipline (a) "Performance of duties below

standard that continue [s] after a reasonable

period of appraisal and traini ng."

On October 23, 2002, you failed to meet

laboratory competency standards or follow

laboratory procedure. This is a Class II

violat ion of Human Resources Policy 6. 7 -

Discipline (a) "Performance of duties below

standard that continue [s] after a reasona ble

period of appraisal and training." [ 7 ]

On January 17, 2003, you failed to work as

part of a team . This is a Class II

violat ion of Human Resources Policy 6. 7 -

Discipline (y) "Other actions determined by

management to not be in the best interest of

the Medical Center."

Beginning on March 17, 2003 through May 24,

2003, you failed to badge in at your

scheduled time, which is a violat ion of

Human Resources Policy 6. 7 - Discipline,

"Insubordination - refusal or failure to

follow instructions or established p ractices

of the Medical Center."

Mr. Orlino, as a result of your actions, as

denoted above, Jupiter Medical Center is

terminating your employment effective

immediately.

You have the prerogative to utilize Jupiter

Medical Center's grievance procedure; hum an

resource policy 4.1, if you feel your

termination is unjust. If you decide to

grieve such a decision should be made within

five (5) business days of June 6, 2003. In

your absence, Jupiter Medical Center has

elected to hand deliver this correspondence

to ensure you r complete understanding of the

above events.

Any compensation that you are eligible to

receive will be paid to you on the

hospital's next regularly scheduled payday.

Please be aware that any hospital property,

such as you r ID badge, employe e handbook,

keys, uniform, etc. should be returned to

the Human Resources Department.

The final decision to terminate Petitioner was made, in

accordance with JMC policy, by JMC's human resources department.

Ms. Wiley did not provide any input in the maki ng of this

decision.

18. Petitioner did not grieve his termination.

19. At no time during the Employment Period did Petitioner

ever utilize the procedures available to him under the Manual to

complain that he was being discriminated against or ha rassed on

the basis of his race; and the re is no indication in the

evidentiary record that, as a JMC employee, he was ever the

victim of race - based discrimination or harassment . 8

20. On May 24, 2005, almost a year after his termination,

Petitioner filed an e m ployment discrimination charge with the

FCHR, alleging for the first time that he was the victim of

anti - Asian discrimination.

21. There are currently three or four Asian employees

working in the Laboratory. They were all hired by Ms. Rogers

following Pe titioner's termination. None of these employees has

received a "Written Conference Record."

CONCLUSIONS OF LAW

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

in Sections 760.01 through 760.11, Florida Statutes, and Section

509.092, Flori da Statutes. It "is patterned after Title VII of

the [federal] Civil Rights Act of 1964, 42 U.S.C. § 2000e - 2" and

therefore "federal case law dealing with Title VII is

applicable." Florida Department of Community Affairs v. Bryant ,

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

23. 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 Sections 120.569 and 120.57, Florida

Statutes, t hat 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." 9 §§ 760.10 and 760.11(6), Fla. Stat.

24. To obtain such relief from t he 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 sou ght") with the

FCHR, the Equal Employment Opportunity Commission, 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. This 365 - day period within which a complain t must be

filed is a "limitations period" that can be " be equitably

tolled, but . . . only [based on the] acts or

circumstances . . . enumerated in section 95.051," Florida

Statutes. Greene v. Seminole Electric Co - op., Inc. , 701 So. 2d

646, 648 (Fla. 5th DCA 1997).

25. "[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

reli ef to the complainant. Chambers v. American Trans Air ,

Inc. , 17 F.3d 998, 1003 (7th Cir. 1994).

26. The "unlawful employment practices" prohibited by the

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

Statutes, which provides as follows:

It is an unlawful employment practice for an

employer:[ 10 ]

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, religion, sex,

national origin, age, handicap, or marital

status.

27. In the instant case, Petitioner has alleged in his

employment discrimination charge that JMC committed such

"unlawful employment practice s " inasmuch as, "during [his]

employment at Jupiter Medical Center as a [m]edi cal

[t]echnologist, [he] was exposed to harassment, unfair wages,

and unfairly disciplined because of [his] race (Asian)."

28. Intentional r ace - based discrimination, in the form of

"unfair[] discipline," "unfair wages , " and harassment "so severe

or perv asive that it adversely affect [s] the terms or conditions

of the employee's employment ," 11 constitute "unlawful employment

practices" in violation of Section 760.10(1)(a), Florida

Statutes . Spe edway SuperAmerica , 2006 Fla. App. LEXIS 8251 * 19 .

Pet itioner had the burden of proving, at the administra tive

hearing held in this case , that he was the victim of such

intentional discrimination . See Department of Banking and

Finance Division of Securit ies and Investor Protection 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

Services 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.'"); Hong v. Children's Memorial Hospital , 993 F.2 d

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."); and Mack v.

County of Cook , 827 F. Supp. 1381, 1385 (N.D. Ill. 1993)("To

pr evail on a racially - based discriminatory discharge claim under

Title VII, Mack must prove that she was a victim of intentional

discrimination.").

29. "Discriminatory intent may be established through

direct or indirect circumstantial evidence." Johnson v .

Hamrick , 155 F. Supp. 2d 1355, 1377 ( N.D. Ga. 2001 ); see also

United States Postal Service Board of Governors v. Aikens , 460

U.S. 711, 714 ( 1983)("As in any lawsuit, the plaintiff [in a

Title VII action] may prove his case by direct or circumstantial

evi dence. The trier of fact should consider all the evidence,

giving it whatever weight and credence it deserves.").

30. " Direct evidence is evidence that, if believed, would

prove the existence of discriminatory intent without resort to

inference or presu mption." King v. La Playa - De Varadero

Restaurant , No. 02 - 2502 (Fla. DOAH February 19,

2003)(Recommended Order). "If the [complainant] offers direct

evidence and the trier of fact accepts that evidence, then the

[complainan t] has proven discrimination." Maynard v. Board of

Regents , 342 F.3d 1281, 1289 (11th Cir. 2003) .

31. "[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 an alle ged 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

interpretation . . . does not constitute direct evidence."

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

1997).

32. "[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, th ose who claim to be victims of

intentional 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).

33. Where a complainant attempts to prove intentional

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 Co mmunity

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.[ 12 ] If the employer successfully

articulates such a reason, then the burden shifts back to the

[complainant] to show that the proffered reason is really

pretext for unlawful discrimination." Schoenfeld , 168 F.3d at

1267 (citations omitted). "The analysis of pretext focuses only

on what the decisionmaker , and not anyone else, sincerely

believed." Little v. Illinois Department of Revenue , 369 F.3d

1007, 1015 (7th Cir. 2004) ; see also Schaffner v. Glencoe Park

District , 256 F.3d 616, 622 (7th Cir. 2001)( " [T]the Park

District stated that it did not promote Schaffner because it

believed she was unable to work well with others. Schaffner

argues that there is a genuine issue of material fact regarding

whether she could work well with others. The district court

agreed with her, based on the affidavit of one of her co - workers

and the affidavits of several parents whose children had

participated in the Kids' Club. However, the issue is not

whether Schaffner worked well with others, but whether the Park

District honestly believed that she did not. In order to re but

the Park District's articulated reason, Schaffner must present

evidence that it did not believe its own assessment. . . . The

affidavits of parents and of Schaffner's coworkers simply do not

contradict whether the Park District honestly believed Schaf fner

worked well with others. . . . Because Schaffner did not

present any evidence to contradict the Park District's honest,

albeit possibly mistaken belief (as opposed to the underlying

truth of that belief), she may not overcome the Park District's

seco nd articulated reason for not promoting her. "); Komel v.

Jewel Cos. , 874 F.2d 472, 475 (7th Cir. 1989)("[T]he fact that

the employee takes issue in general terms with the employer's

overall evaluation is not sufficient to create a triable issue

on pretext. As we have recently stated, the employee's 'own

self - interested assertions [even where accompanied by the

conclusory statements of a co - worker] concerning her abilities

are not in themselves sufficient to raise a genuine issue of

material fact.'") ; and S mith v. Flax , 618 F.2d 1062, 1067 (4th

Cir. 1980)("Smith, of course, testified that he had versatility,

and that his competence as an analyst was not confined to the

field of logistics. Smith's perception of himself, however, is

not relevant. It is the p erception of the decision maker which

is relevant.").

34. "Although the intermediate burdens of production shift

back and forth, the ultimate burden of persuading the trier of

fact that the employer intentionally discriminated against the

employee remains at all times with the [complainant] ." EEOC v.

Joe's Stone Crabs, Inc. , 296 F.3d 1265, 1273 (11th Cir. 2002 );

see also Brand v. Florida Power Corp. , 633 So. 2d 504, 507 (Fla.

1st DCA 1994)("Whether or not the defendant satisfies its burden

of production s howing legitimate, nondiscriminatory reasons for

the action taken is immaterial insofar as the ultimate burden of

persuasion is concerned, which remains with the plaintiff.").

35. "A prima facie case of [race - based] discipline may be

established if the [c omplainant] proves by a preponderance of

the evidence that (1) the [complainant] is a [member of a

racially - defined class] , (2) the [complainant] was disciplined

by the employer, and (3) the employer imposed the discipline

under circumstances giving rise t o an inference of racial

discrimination. . . . One of the ways this third prong may be

met . . . is by attempting to show that the employer treated

similarly situated employees differently." Jones v. Denver Post

Corp. , 203 F.3d 748, 753 (10th Cir. 2000)( citations omitted).

"To show that employees are similarly situated, the

[complainant] must establish that the employees are 'similarly

situated in all relevant respects.' The comparator must be

[shown to be] 'nearly identical' to the [complainant] to pre vent

[tribunals] from second - guessing a reaso nable decision by the

employer." Hammons v. George C. Wallace State Community

College , No. 05 - 14962, 2006 U.S. App. LEXIS 6396 *10 (11th Cir.

March 16, 2006)(citation omitted). "This normally entails a

showing that the two employees [the complainant and the

comparator] dealt with the same supervisor, were subject to the

same standards, and had engaged in similar conduct without such

differentiating or mitigating circumstances as would distinguish

their conduct or the employer's treatment of them." Radue v.

Kimberly - Clark Corp. , 219 F.3d 612, 617 - 618 (7th Cir. 2000) .

36. "In order to make out a prima facie case of [raced -

based ] unequal pay for equal work , [a complainant ] must show:

(1) [he is a] member[] of a [ racially - defined] class; (2) [he

was] paid less than non - members of the [] class for work

requiring substantially the same responsibility; and (3)

evidence of discriminatory animus. A showing of disparate

treatment -- that is, a showing that the employer t reated [the

complainant] less favorably than a simila rly situated employee

outside [the complainant's ] group - is a recognized method of

raising an inference of discrimination for purposes of making

out a prima facie case . "). Kazmierczak v. Hopevale , No. 0 2 - CV -

0003A(Sr), 2006 U.S. Dist. LEXIS 36723 *44 ( W. D. N.Y. June 6,

2006) (citation and internal quotations omitted) .

37. "To make o ut a prima facie case of . . . racial

harassment . . . , [a complainant] must show (1) that he belongs

to a [racially - defined ] group, (2) that he was subjected to

unwelcome racial harassment, (3) that the harassment was based

on his race, (4) that the harassment was sufficiently severe or

pervasive to alter the terms and conditions of employment and

create a discriminatoril y abu sive working environment [that t he

complainant perceived as such] , and (5) a basis for holding [the

employer] liable. To dete rmine whether harassment objectively

alters an employee's terms or conditions of employment, the

followin g four factors are consid ered: (1) the frequency of the

conduct; (2) the severity of the conduct; (3) whether the

conduct is physically threatening or humiliating, or a mere

offensive utterance; and (4) whether the conduct unreasonably

interferes with the employee's job performanc e. Jefferson v.

Casual Restaurant Concepts, Inc. , No. 8:05 - cv - 809 - T - 30MSS, 2006

U.S. Dist. LEXIS 54178 ( M. D. Fla. August 4, 2006 ) (citation and

internal quotations omitted).

38. Where the administrative law judge does not halt the

proceedings "for lack of a prima facie case and the action has

been fully tried, it is no longer relevant whether the

[complainant] actually established a prima facie case. At that

point, the only relevant inquiry is the ultimate, factual issue

of intentional discrimination. . . . [W]hether or not [the

complainant] actually established a prima facie case is relevant

only in the sense that a prima facie case constitutes some

circumstantial evidence of intentional discrimination." Green

v. School Board of Hillsborough County , 25 F.3d 974, 978 (11th

Cir. 1994) (citation omitted); see also Aikens , 460 U.S. at 713 -

715 ("Because this case w as fully tried on the merits, it is

surprising to find the parties and the Court of Appeals still

addressing the question whether Aikens made out a prima facie

case. We think that by framing the issue in these terms, they

have unnecessarily evaded the ultimate question of

discrimination vel non . . . . [W] hen the defendant fails to

persuade the district court to dismiss the action for lack of a

prim a facie case, and responds to the plaintiff's proof by

offering evidence of the reason for the plaintiff's rejection

[as a candidate for promotion] , the factfinder must then decide

whether the rejection was discriminatory within the meaning of

Title VII. At this stage, the McDonnell - Burdine presumption

'drops from the case,' and 'the factual inquiry proceeds to a

new level of specificity.' After Aikens presented his evidence

to the District Court in this case, the Postal Service's

witnesses testified that he was not promoted because he had

turned down several lateral transfers that would have broadened

his Postal Service experience. The District Court was then in a

position to decide the ultimate factual issue in the case. . . .

Where the defendant has d one everything that would be required

of him if the plaintiff had properly made out a prima facie

case, whether the plaintiff really did so is no longer relevant.

The district court has before it all the evidence it needs to

decide whether 'the defendant intentionally discriminated

against the plaintiff.'") (citation omitted) ; Beaver v. Rayonier,

Inc. , 200 F.3d 723, 727 (11th Cir. 1999)("As an initial matter,

Rayonier argues it is entitled to judgment as a matter of law

because Beaver failed to establish a prima facie case. That

argument, however, comes too late. Because Rayonier failed to

persuade the district court to dismiss the action for lack of a

prima facie case and proceeded to put on evidence of a non -

discriminatory reason -- i.e., an economically i nduced RIF -- for

terminating Beaver, Rayonier's attempt to persuade us to revisit

whether Beaver established a prima facie case is foreclosed by

binding precedent. "); and Carmichael v. Birmingham Saw Works ,

738 F.2d 1126, 1129 (11th Cir. 1984) (" The plaintif f has framed

his attack on the trial court's findings largely in terms of

whether the plaintiff made out a prima facie case of

discrimination. We are mindful, however, of the Sup reme Court's

admonition that when a disparate treatment case is fully tried,

as this one was, both the trial and the appellate courts should

proc eed directly to the 'ultimate question' in the case:

' whether the defendant intentionally discriminated against the

plaintiff .' " ) .

39. The instant case was " fully tried ." Following

Peti tioner's evidentiary presentation, JMC presented persuasive

evidence that legitimate business considerations were the sole

motivating force s behind Petitioner 's being "written up" and

ultimately terminated (the allegedly "unfair[] discipline[]"

complained about in Petitioner's employment discrimination

charge) and behind Mr. Lambiase 's being hired at a higher hourly

wag e than Petitioner was receiving at the time (the allegedly

"unfair wages " complained about in Petitioner's employment

discrimination charge) . The evidence Petitioner offered was

insufficient to overcome this persuasive evidence and to

establish that these actions were rather the product of anti -

Asian animus , as he had alleged in his employment discrimination

charge . Petitioner's evidence als o fell short of establishing

that he was the victim of any race - based harassment anytime

during the Employment Period , 13 much less race - based harassment

of the type that is remediable under the Act. 14

40. Under the foregoing circumstances, JMC cannot be fo und

to have committed the unlawful employment practices alleged in

the employment discrimination charge filed by Petitioner , and

said charge should therefore be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it i s

RECOMMENDED that the FCHR issue a final order finding JMC

not guilty of the unlawful employment practices alleged by

Petitioner and dismissing his e mployment discrimination charge .

DONE AND ENTERED this 14 th day of August , 2006, in

Tallahassee, Leon Coun ty, Florida.

S

___________________________________

STUART M. LERNER

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 1 4 th day of August , 2006.

ENDNOTES

1 All references to Florida St atutes in this Recommended Order

are to Florida Statutes (2005).

2 It was also more than some non - Asian Laboratory employees

were being paid.

3 Only the last of these three "Written Conference Records" was

received by Petitioner within 365 days of the date that he filed

his employment discrimination charge with the FCHR.

4 This was a "critical value," "highly incompatible with life."

5 Ms. Wiley did "report" other "mistakes" Petitioner made in

the Laboratory (but not all such "mistakes" of which sh e was

aware). She also reported "mistakes" made by others in the

Laboratory who were not Asian (but, again, not all such

"mistakes" of which she was aware). Whether she reported a

"mistake," be it one of Petitioner's or that of another

Laboratory employe e, was based on her perception of the

"clinical significance" of the "mistake."

6 For instance, on March 17, 2003, Ms. Rogers sent Petitioner

an e - mail, which read as follows:

Ariel, please use the time clock correctly.

You are to punch in no sooner t han 2:23.

When you punch in early, it creates

unnecessary overtime.

Thank you for your cooperation.

Also, at a meeting of Laboratory employees held on April 2,

2003, at which Petitioner was present, Ms. Rogers said (as the

minutes of that meeting reflec t) the following:

Please review the time and attendance

badging policy. You cannot badge in any

earlier than 7 minutes prior to your

scheduled time to begin your shift. Badging

in early causes unnecessary overtime.

In addition, Ms. Rogers gave Petition er "at least three verbal

[warnings]" to cease his practice of "badging in" earlier than

seven minutes prior to the time his shift was scheduled to

start.

7 This violation (which resulted in Petitioner receiving, not a

"Written Conference Record," but a verbal warning) was

mistakenly referenced in the letter.

8 By Petitioner's own admission, no one at the Hospital, in his

presence, ever "refer[ed] to the fact, either directly or

indirectly, that [he was] of either Asian heritage or

nationality." Petit ioner did elicit testimony from William

Myers, a former JMC employee, that Ms. Wiley once, on an

unspecified date during the Employment Period, derisively

referred to Petitioner as an "Oriental bastard"; however, this

name - calling did not occur in Petition er's presence.

9 The FCHR, however, has no authority to award monetary relief

for non - quantifiable damages. See Simmons v. Inverness Inn , No.

93 - 2349, 1993 Fla. Div. Adm. Hear. LEXIS 5716 *4 - 5 (Fla. DOAH

October 27, 1993)("In this case, petitioner does not claim that

she suffered quantifiable damages, that is, damages arising from

being terminated from employment, or from being denied a

promotion or higher compensation because of her race. Rather,

through argument of counsel she contends that she suffe red pain,

embarrassment, humiliation, and the like (non - quantifiable

damages) because of racial slurs and epit [he] ts made by

respondents. Assuming such conduct occurred, however, it is

well - settled in Florida law that an administrative agency (as

opposed to a court) has no authority to award money damages.

See , e. g. , Southern Bell Telephone & Telegraph Co. v. Mobile

America Corporation, Inc. , 291 So.2d 199 (Fla. 1974); State,

Dept. of General Services v. Biltmore Construction Co. , 413

So.2d 803 (Fla. 1st DCA 1982); Laborers International Union of

N.A., Local 478 v. Burroughs , 541 So.2d 1160 (Fla. 1989). This

being so, it is concluded that the Commission cannot grant the

requested relief, compensatory damages.").

10 An "employer," as that term is used in the Act, is defined

in Section 760.02(7), Florida Statutes, as "any person employing

15 or more employees for each working day in each of 20 or more

calendar weeks in the current or preceding calendar year, and

any agent of such a person."

11 The "harassm ent [must] be more than merely insulting or rude

and boorish behavior. . . . [Furthermore,] [t]he adverse effect

on the employee must be subjective, as well as objective. Not

only must the employee suffer from the harassment, but it is

also required that a reasonable person in the shoes of the

employee would likely have suffered from such conduct."

Speedway SuperAmerica, LLC v. Dupont , No. 5D04 - 14, 2006 Fla.

App. LEXIS 8251 *19 - 20 (Fla. 5th DCA May 26, 2006). In

addition, there must be "a basis for hold ing the employer

liable." Accordingly, "[i]n the case of [alleged] co - worker

harassment, the employee must establish that the employer knew

or should have known about the harassment and took no (or

insufficient) remedial action." Speedway SuperAmerica , 2 006

Fla. App. LEXIS 8251 *8 - 9 n.5.

12 " 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.

13 It was Petitioner's burden to establish that at least one

incident of actionable harassment occurred within 365 days of

the May 24, 2004, filing of Petitioner's employment

discrimination charge. See Mahgoub v. Miami Dade Community

College , No. 05 - 11520, 2006 U.S. App. LEXIS 9291 *2 - 3 (11th Cir.

April 13, 2006 ).

14 There was evidence of a stray disparaging comment having

been made (on an unspecified date during the Employment Period)

about Petitioner being an "Oriental bastard." The comment was

made by one of Petitioner's co - workers, Ms. Wiley, to another

co - worker, Mr. Myers, outside the presence of Petitioner, and

there is no evidence that Petitioner was made aware of the

comment or complained about it to management at any time during

the Employment Period.

COPIES FURNISHED:

Ramuriel A. Orlino

134 Northwest Willow Grove Avenue

Port St. Lucie, Florida 34986

Gregory D. Cook, Esquire

FitzGerald, Hawkins, Mayans & Cook, P.A.

515 North Flagler Drive, Suite 900

West Palm Beach, Florida 33401

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Su ite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exce ptions 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.