05-003120 Lawrence Hjortsberg vs. Great Bay Distributors, Inc. Status: Closed Recommended Order on Tuesday, July 11, 2006.

Summary: Respondent`s termination of Petitioner did not violate the Florida Civil Rights Act. Respondent terminated Petitioner`s employment for a legitimate reason.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAWRENCE HJORTSBERG, )

)

Petitioner, )

)

vs. ) Case No. 05 - 3120

)

GREAT BAY DISTRIBUTORS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on November 30, 2005, in New Port Richey, Florida, before

Fred L. Buckine, Administrative Law Judge of the Division of

Administrative Hearings (DOAH) . However, Judge Buckine retired

from DOAH prior to the com pletion of the Recommended Order in

this matter. Therefore, pursuant to S ubs ection 120. 57(1)(a) ,

Florida Statutes (2005) , the undersigned A dministrative L aw

J udge was assigned to complete the Recommended Order. The

entire record has been reviewed by the undersigned in accordance

with applicable law.

APPEARANCES

For Petitioner: Angela E. Outten, Esquire

Reeser, Rodnite, Outten , and

Zdravko, P.A.

3411 Palm Harbor Boulevard,

Suite A

Palm Harbor, Florida 34683

For Respondent: Thomas Martin Gonzalez, Esquire

Thompson, Sizemore & Gonzalez

Post Office Box 639

Tampa, Florida 33601

S TATEMENT OF THE ISSUE

Whether Petitioner 's termination from employment by

Respondent on November 12, 200 4 , for Petitioner's refusal to

take a DNA test to affirmatively establish the paternity of a

child he wanted to add to his company - provided insurance

co verage was discriminatory in violation of the Florida Civil

Rights Act, Chapter 760, Florida Statutes ( 2004 ).

PRELIMINARY STATEMENT

On January 18, 2005, Petitioner, Lawrence Hjortsberg, filed

a C harge of D iscrimination against Responden t, Great Bay

Distrib utors, Inc. , with the Florida Commission on Human

Relations (FCHR). Petitioner alleged discrimination based on

his gender (male) and marital status (divorced and unmarried).

The charge alleged that Respondent discriminated against

Petitioner because "on o r about October 12, 2004, [ Petitioner ]

was told to have a DNA paternity test performed on his daughter

and on or about November 12, 2004, [ Petitioner ] was terminated

from [his] employment for not having the [DNA] paternity test

performed."

On June 8, 2005 , the Office of Employment Investigations

concluded, "[T]here is reasonable cause to believe that

Respondent [Great Bay Distributors, Inc. ] unlawfully

discriminated against Compl ain ant [La wrence Hjortsberg ] based

upon Complainant's gender [male] and marita l status."

Nonetheless, o n July 20, 2005, FCHR issued a "No Cause"

determination. 1

Because of the time lapse from January 18, 2005 , to

July 20, 2005, Petitioner filed a complaint in Circuit Court

seeking redress for his discrimination claims. Petitioner 's

claim was filed pursuant to S ubs ection 760.11(8), Florida

Statutes (200 4 ), which permits an aggrieved party to elect civil

or administrative remedies if FCHR failed to issue a cause

determination within 180 days of filing a c harge of

d iscrimination.

When Petitioner filed his civil suit , he was unaware that

FCHR ha d entered its determination. The issue of pursuing

relief in two forums , c ircuit c ourt and DOAH , was raised by

motion of Respondent. During the p re - hearing telephone

conference on all pending mo tions, the A dministrative Law J udge

concluded that FCHR's determination was timely filed , and

Petitioner could properly seek an a dministrative h earing

pursuant to S ubs ection 760.11(7), Florida Statutes (2005). The

parties agreed that Petitioner 's a dminist rative a ction would go

forward , and his civil suit would be dismissed.

On September 18, 2005, Petitioner filed his P etition for

R elief , requesting an administrative hearing with DOAH . On

September 20, 2005 , Petitioner voluntarily dismissed his civil

suit in the Sixth Judicial Circuit Court of Pasco County,

Florida.

At the final hearing on Nov ember 30, 2005, Petitioner

testified on his own behalf and presented the testimony of

Sandra Ho, D irector of Human Resources for Respondent ; and

offered 1 7 exhibits , o f which 1 6 were accepted in to evidence.

Respondent presented the testimony of two witnesses: Sandra Ho

and Mr. Scott Penland, D irector of Warehouse Operations for

Respondent and Petitioner 's immediate supervisor. Petitioner's

request for o fficial r ecogn ition of Section s 382.013 and 742.10 ,

Florida Statutes (2005) , was granted.

At the conclusion of Petitioner's case - in - chief , c ounsel

for Respondent moved for S ummary J udgment (or Summary

Recommended Order) based upon Petitioner's failure to establish

a pri ma facie case without waiving presentation of Respondent's

case - in - chief. The motion was taken under advisement until all

evidence was entered in the record. It appearing that at least

a prima facie case was established by Petitioner, the motion is

hereb y denied.

On December 20, 2005, the T ranscript of this hearing was

filed. An A greed M otion for E xtension of T ime for the P arties

to S erve Proposed Recommended Order s was filed , and , by Order of

December 27, 2005, the motion for extension of time was gran ted,

requiring the proposed recommended orders to be filed no later

than January 9, 2006. On January 9 , 2006, Petitioner and

Respondent f iled Proposed Recommended Orders that were

considered by the undersigned.

FINDINGS OF FACT

1. Petitioner was employed by Respondent from May 1998

until his termination on November 12, 2004. Petitioner had

performed his duties adequately during his employment period and

had no major disciplinary reports in his record.

2. Petitioner was at the time of his termination fr om

employment a single , divorced , white male , and he was living

with his girlfriend, Shannon Mitchell.

3. On September 28, 2004 , Petitioner received a message

while he was at work that his girlfriend had called and was in

distress, purportedly suffering from back pains. Petitioner

requested and was given permission to go home to attend to her.

4. Upon arrival at home, Petitioner discovered that his

girlfriend had in fact given birth to a child. Petitioner may

or may not have known about the birth befo re he left work; his

testimony on that issue was contradictory. Petitioner had only

learned of his girlfriend's pregnancy about one week before the

birth despite the fact they had lived together for almost a

year .

5. Petitioner notified Respondent abo ut the birth the next

day (September 29) in acc ordance with company policies. He also

requested and was granted leave from work . The child was

immediately added to Petitioner's health insurance coverage in

accordance with Respondent's normal practice .

6 . Even though Respondent added the child to Petitioner's

family insurance coverage, there were several concerns about the

unusual circumstances surrounding Petitioner's reporting of the

birth , to wit : T hat he didn't tell his employer about the birth

when he left to go home that day even though he likely knew it

had occurred; t hat he represented a lack of knowledge about the

pregnancy even though he was living with the child's mother ;

t hat the hospital records did not list Petitioner as the father .

7. Re spondent's insurance plan is self - funded and is

administered directl y by management of the company. Each

employee's cost of insurance is determined by the prior year's

costs and expenses. The company pays about 99.5 percent of the

employee's cost; the em ployee pays the remainder plus the cost

of coverage for family members. Proper administration of the

health plan is therefore important to both management and

employees alike .

8. Respondent employs over 250 people. The employee

handbook is silent on the degree or kind of proof necessary to

establish paternity of a child for insurance purposes. Neither

Respondent nor its insurance program has an established policy

requiring employees to obtain a paternity test in order to prove

relationship to their chil d. There is no prohibition against an

unmarried person adding his or her child and , in fact , the

company has provided benefits for such chi ldren.

9. It is not common for Respondent to ask a n employee to

submit to a DNA examination in order to establish paternity for

insurance coverage purposes. The only other time such a test

had been required was for an unmarried male employee who was not

able to provide a birth certificate for his ch ild showing he was

the father. That situation, like the present matt er, had

certain unusual facts associated with it.

10. While working for the company during the years of 1998

to 2003, Petitioner was married. During that time he and his

wife had two children, both of whom were added to his family

insurance coverage. He was not required to provide proof of

paternity for those children o ther than a birth certificate.

1 1 . Based upon the unusual circumstances regarding

Petitioner's reporting of his most recent child's birth,

Respondent demanded further proof of paternity. On October 12,

2004 , Respondent's human resources director , Sandra Ho, asked

Petitioner to have a DNA test performed and to provide

Respondent with the results on or before November 12, 2004.

Respondent did not offer to pay for the required test.

1 2 . Petitioner acknowledged receipt of this demand from

his employer which included an ultimatum regarding his continued

employment should he fail to comply.

1 3 . In response to the request for proof of paternity ,

Petitioner provided Respondent a Social Secur ity document for

the child and a hospital discharge notice for Shannon Mitchell.

Neither of these documents listed Petitioner as the child's

father.

1 4 . On or about November 10, 2004 (two days prior to the

DNA test deadline) , Petitioner provided Responde nt with a copy

of the child's birth certificate listing him as the father . He

had filled out "paperwork" at the hospital t o obtain the birth

certificate. There was no evidence in the record as to what the

paperwork entailed. Respondent had accepted birth certificates

as proof of paternity for other employees.

1 5 . Petitioner did not obtain or provide to Respondent a

DNA test result. In fact, he did not make any effort to obtain

such a test. He did discuss with Respondent his concerns about

the costs o f such a test.

1 6 . Based upon Petitioner's refusal to comply with his

employer's directives, he was terminated from employment on

November 15, 2004 , effective November 12, 2004.

1 7 . The basis for termination was Petitioner's

insubordination and refusal to fol low the orders of his

employer. Petitioner supervised approximately six people on a

regular basis. Respondent was concerned about Petitioner's

continued ability to properly supervise others while he was

refusing to cooperate with management.

CONC LUSIONS OF LAW

18. DOAH has jurisdiction over the subject matter of

and the parties to this proceeding in accordance with

S ubs ection 120.57(1), Florida Statutes (2005) .

19. The Florida Civil Rights Act of 1992, Chapter 760,

Florida Statutes (200 4 ) , guards against discrimination in the

workplace. The Act, among other things, forbids the

discriminatory firing of an employee.

20. Specifically, S ubs ection 760.10(1)(a), Florida

Statutes (200 4 ) , states that it is an "unlawful employment

practice for an employer ... to discharge ... any individual

because of such individual 's race, color, religion, sex,

national or i gin, age, handicap, or marital status." Respondent,

Great Bay Distributors, Inc. , is an "employer" as defined in

S ubs ection 760.02(7) , Florid a Statutes (200 4 ) . Marital status

discrimination arises under the Florida Civil Rights Act only

when the adverse employment action occurs on the basis of that

person's state of marriage, i.e. , married, single, divorced,

widowed , or separated. See Donato v. American Telephone and

Telegraph , 767 So. 2d 11 46 (Fla. 2000)

21. Florida courts have determined that federal case law

applies to claims arising under Florida's Civil Rights Act and,

as such, the United States Supreme Court's model for employment

disc rimination cases set forth in McDonnell Douglas Corporation

v. Green , 411 U.S. 792 , 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973)

applies to claims arising under Section 760.10, Florida Statutes

(200 4 ) . Chanda v. Engelhard/ICC , 234 F.3d 1219, 1221 (llth Cir.

20 00 ); Razner v. Wellington Regional Medical Center, Inc. , 837

So. 2d 437 (4th DCA 2003) ; The Florida State University v.

Sondel , 685 So. 2d 923 (Fla. 1st DCA 1997) ; Florida Department

of Community Affairs v. Bryant , 586 So. 2d 1205 (Fla. 1st DCA

1991 ) .

22 . The McDonnell shifting burden analysis is as follows:

(1) Petitioner must prove a prima facie case of discrimination

by the preponderance of the evidence; (2) if Petitioner proves a

prima facie case, the burden shifts to the defendant who must

"articula te some legitimate, nondiscriminatory reason for the

employee's rejection" to rebut Petitioner's presumption of a

prima facie case . McDonnell , 411 U.S. at 80 2 , 93 S. Ct. at

1824.

23. Petitioner retains the ultimate burden of persuasion

in an employment discrimination case. Texas Department of

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

L. Ed. 2d 207 (1981).

24. Petitioner presented neither direct evidence of

discriminatory intent nor statistical evidence demonstrating a

pattern of such intent. Thus, only circumstantial evidence, if

any, can be applied to analyze Petitioner's claim under the

McDonnell framework. Early v. Champion Int'l Corp. , 907 F.2d

1077, 1081 (11th Cir. 1990).

25. Petitioner is a member of a protected class.

26. Termination is considered adverse employment action

because it is an ultimate decision regarding employment. Gupta

v. Fla. Bd. Of Regents , 212 F.3d 571, 587 (11th Cir. 2000) ;

Mattern v . Eastman Kodak Co. , 104 F.3d 702, 707 (5th Cir. 1997) .

27. T he burden of proof in this case is on Petitioner to

prove by a preponderance of the evidence the affirmative of the

issue, i.e. , that Respondent committed an unlawful employment

practice. Fla. Dept. of Transportation v. J.W.C. Co. 396 So . 2d

778 (Fla. 1st DCA 1981) . In order to establish a prima facie

case of disparate treatment, Petitioner must show that he was a

qualified member of a protected class and was subjected to an

adverse employment action in contrast to similarly situated

employees outside the protected class. Maniccia v. Brown , 171

F.3d 1364 ( 11th Cir. 1999 ) . In th e present case , Petitioner

attempted to meet his burden by showing that no married male

employee was required to submit to a DNA test to prove paternity

of their claimed dependents . However, Petitioner's unique

circumstances cannot be absolutely compared to those of other

employees so he did not meet the "similarly situated" standard.

See Maniccia at 1368 - 1369 , citing Dartmouth Review v. Dartmouth

College , 889 F.2d 13, 19 (1st Cir . 1989).

28. Assuming this initial burden was met, t he burden then

shift ed to the employer to elucidate a legitimate,

nondiscriminatory reason for the action it took. McDonnell

Douglas Corp v. Green , 411 U.S . at 802 . It is clear from the

evidence that t he employer's motivation for terminating

Petitioner was not related to his marital status. Rather,

Respondent set forth a clearly stated basis for termination:

Petitioner failed to respond to direct orders and was

insubordinate. Recognizing that Petitio ner served as a

supervisor to other employees, Respondent had a legitimate

concern about how Petitioner would advise those employees to

respond to management. The action had nothing to do with

Petitioner's marital status or his gender.

29. Thus, the bur den shifts back to Petitioner to prove

that the reason espoused by the employer was a pretext for

illegal discrimination. McDonnell Douglas , 411 U.S. at 804 - 805

and Burdine , 450 U.S. at 256 . Petitioner did not rebut or call

into question any of his emplo yer's bases for the action taken.

He did not establish tha t any non - protected employee was allowed

to remain employed despite acting insubordinately to management.

The record contains ample evidence of Respondent's stated

requirement that Petitioner obta in a paternity test, his sworn

acknowledgement of the requirement, and his decision not to

comply . This body of evidence rebuts any presumption of

discrimination created by a prima facie case.

30. Petitioner correctly asserts that a birth certificate

doe s create a presumption of paternity for an unmarried parent.

See § 742.10, Fla. Stat. (2004) . It may be assumed by way of

circumstantial evidence in this case that Petitioner executed an

affidavit affirming his paternity in accordance with the

requiremen ts of Section 382.13, Florida Statutes (2004).

Respondent could have relied upon the birth certificate as

conclusive evidence of paternity just as it had done in other

instances (for both married and single employees). However,

this conclusion is irreleva nt due to the fact that Petitioner

was terminated for a reason not associated with paternity of the

child.

RECOMMENDATION

Based on the foregoing F indings of F act and C onclusions of

L aw, it is

RECOMMENDED t hat a final order be entered by the Florida

Commi ssion on Human Relations dismissing the Petition for Relief

in its entirety.

DONE AND ENTERED this 11 th day of July , 2006 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of Administrative Hearings

The DeSo to 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 11 th day of July , 2006 .

ENDNOTE

1/ In the No Cause determination letter, the Executive Director

apparently made a scrivener's error in the last paragraph,

wherein he stated "[I]t is my determination that reasonable

cause does exist to believe that unlawful employment practice

has occurred. " However, that sentence is contrary to the

Conclusion and to the stated Determination: No Cause finding.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32 301

Thomas Martin Gonzalez, Esquire

Thompson, Sizemore & Gonzalez

Post Office Box 639

Tampa, Florida 33601

Angela E. Outten, Esquire

Reeser, Rodnite, Outten and Zdravko, P.A.

3411 Palm Harbor Boulevard, Suite A

Palm Harbor, Florida 34683

Cecil Howard, General Counsel

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 exceptions within

15 days from the date of this Recomme nded Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.