05-004055 Billy J. Ford vs. Hanson Pipe And Products Status: Closed Recommended Order on Wednesday, June 14, 2006.

Summary: Respondent did not discriminate based on race by demoting Petitioner, who was demoted because he did not pass a required test; nor did Respondent retaliate against Petitioner.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BILLY J. FORD , )

)

Petitioner , )

)

vs. ) Case No. 05 - 4055

)

HANSON PIPE AND PRODUCTS , )

)

Respondent . )

)

RECOMMENDED ORDER

This cause came on for formal hearing before Harry L.

Hooper, Administrative Law Judge with the Division of

Administrative Hearings, on May 5 , 2006, in Panama City ,

Florida.

APPEARANCES

For Petitioner: Jerry Girley

Qualified Representative

1350 Vickers Lake Drive

Ocoee, Florida 34761

For Respondent: Ganesh Chatani, Esquire

Fowler White Boggs Banker P.A.

101 North Monroe Street, Suite 1090

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue is whether Respondent engaged in an unlawful

employment action with regard to Petitioner Billy J. Ford .

PRELIMINARY STATEMENT

Petitioner Billy J. Ford (Mr. Ford) filed an Employment

Complaint of Discrimination with the Florida Commission on Human

Relations (the Commission), on March 30, 2 005. He complained of

discrimination based o n race by Respondent, Hanson Pipe and

Products (Hanson Pipe). On May 25, 2005, he filed an Amended

Complaint of Discrimination which alleged retaliation . The

Commission, on September 26, 2005, issued its " Noti ce of

Determination: No Cause. " Mr. Ford timely filed a Petition for

Relief that was forwarded to the Division of Administrative

Hearings and filed on November 3, 2005.

The matter was set for hearing on February 3, 2006, in

Panama City, Florida. Mr. Fo rd requested a continuance and the

case was re - scheduled for March 3, 2006. Thereafter, Hanson

Pipe requested a continuance and the case was set for May 5,

2006, and was heard as scheduled.

At the hearing, Mr. Ford testified in his own behalf and

present ed the testimony of one witness . Hanson Pipe presented

the testimony of f our witnesses . The parties stipulated to the

admission of Joint Exhibit Nos. 1 through 23 and they were

admitted into evidence.

A Transcript was filed on May 30, 2006 . After the he aring,

Respondent and Petitioner filed their Proposed Findings of Fact

and Conclusions of Law on June 8 and 9, 2006, respectively .

References to statutes are to Florida Statutes (200 4 )

unless otherwise noted.

FINDINGS OF FACT

1. Mr. Ford is an Africa n - American living in Panama City,

Florida. He was born on December 22, 1967.

2. Hanson Pipe is a company that manufactures pre - cast

concrete pipe and other structures. It has its headquarters in

Charlotte, North Carolina. Some of these pipes and struc tures

manufactured by Hanson Pipes are fabricated for purchase by the

Florida Department of Transportation (DOT) . Hanson Pipe's

Panama City Plant is in the company's eastern region. Hanson

Pipe has a total of 61 plants and has 3 , 500 employees in its

east ern region.

3. The plant in Panama City at which Mr. Ford worked

during times pertinent , which eventually became a Hanson Pipe

facility , was acquired from WPC of Florida, Inc. (WPC) by Hanson

Pipe , on July 17, 2004 . The principal of WPC was George Wrigh t

(Mr. Wright). The plant manager, during times pertinent, was

Michael Bascetta , a white person. His assistant was Renwick

Chisolm, an African - American.

4. Mr. Ford 's first job with WPC was operating a forklift .

He would receive printed directions a nd would load products onto

trucks in accordance with those directions.

5. Mr. Wright eventually promoted Mr. Ford to yard

foreman. As such, h e supervised four people and checked newly

manufactured structures and turned in paperwork at the end of

the wor k day .

6. Subsequently he was promoted to Quality Control

Technician . As Quality Control Technician (QC Technician) ,

Mr. Ford would ensure that designated standards were met ,

including standards required by DOT . However, the stamp

denoting acceptabil ity would have to be applied by Gracie Dowdy

or Terry Pittinger because they were certified quality control

technicians, and Mr. Ford was not .

7 . When Hanson Pipe took over the WPC's Panama City plant ,

procedures remained largely unchanged , although some employees

noticed th at Hanson Pipe was more "strict . " One procedure that

was changed was the quality control procedure.

8. Hanson Pipe recognized that only American Concrete

Institute certified persons could sign off on product quality

when the product was destined for DOT use and believed that the

method used by WPC did not conform to DOT requirements . Hanson

Pipe understood that the failure to comply with state - mandated

procedures could result in DOT's District Materials Office

withdrawing the plant f rom the list of qualified plants. This

would result in the refusal of DOT to purchase their product.

9. DOT publishes a Materials Manual that sets forth

requirements for contractors selling materials to it. Section

6.3.7.2(D) of the DOT Materials Manu al requires plants such as

the Hanson Pipe plant in Panama City to have enough quality

control t echnicians to "maintain adequate inspection and testing

during the production of structures for Department projects . "

DOT requires that these technicians be ce rtified as American

Concrete Institute (ACI) Field Testing Technician, Grade I. DOT

requires that all product bought by them have an approval stamp

affixed by the ACI - certified technician who inspects the

product .

10 . In order to adequately comply with this r equirement ,

Hanson Pipe, through plant manager Bascetta , informed Mr. Ford

that he would have to pass the ACI examination so that he could

become certified. Although Mr. Bascetta was the person who

informed Mr. Ford of this, the decision was made by Dana

Butterfield, the Quality Control Manager for 20 Hanson Pipe

facilities. Mr. Butterfield's office is in G reen Cove Springs,

Florida. There was no evidence adduced that indicated

Mr. Butterfield was aware of Mr. Ford's race.

11 . Mr. Ford was given books to help him prepare for the

exam ination and time to study them . Hanson Pipe paid for

Mr. Ford's travel to Orlando to take the test, his testing fees,

and his hotel expenses. He took the test September 11 , 2004,

but did not pass it. Hanson pipe pa id Mr. Ford's expenses to

take the test a second time on November 6 , 2004, but he failed

it again.

12 . When Mr. Butterfield learned on December 6, 2004, that

Mr. Ford had failed the test yet again, he told Mr. Bascetta

that Mr. Ford was no longer qualifie d to be quality control

t echnician . Mr. Bascetta , not wishing to discharge Mr. Ford,

offered him a position as a forklift driver at a salary of

$10.56 per hour. Mr. Ford accepted this reduction from his

former $13 per hour .

13. Mr. Bascetta designated Montie Foster, a white

employee, as quality control t echnician. He was informed that

he would have to take and pass the ACI certification examination

as a condition of holding that position. Mr. Foster took the

examination twice, failed it twice, and re signed. Justin Perky

was thereafter hired. He took the examination and passed it.

He therefore was able to continue in the position of quality

control t echnician.

14. Mr. Ford believed his demotion represented a form of

discrimination and harassment , a nd his attitude began to

deteriorate as is demonstrated by the events related

hereinafter.

15. On December 8, 2005, Mr. Ford called Webber Ferguson,

Hanson Pipes's Employee Relations Manager, on the telephone.

Mr. Ferguson works in Hanson Pipe's Charlott e, North Carolina

office. Mr. Ferguson provides employee relation support for 61

Hanson Pipe plants in the eastern United States. Mr. Ford

complained about his demotion and asserted that Mr. Bascetta was

mistreating him. He also alleged that he was a vi ctim of

discrimination.

1 6 . In response, Mr. Ferguson went to the plant and

conducted an investigation. He interview ed Mr. Hanson,

Mr. Bascetta, and some of the minority employees. He found no

evidence of discrimination. He did not generate a written

report because there was insufficient evidence adduced

indicating discrimination or mistreatment of employees.

1 7 . Mr. Ford had some unexcused absences and on

January 10, 2005, was "written up" for failure to appear for

work on a Saturday as he had agre ed to do. He responded to this

by threatening to call Hanson Pipe's Human Resources Department.

18 . On March 21, 2005, Roy Myers was terminated from his

job with Hanson Pipe. Mr. Myers bore the working title , "yard

foreman," but he was paid the same as Mr. Ford. There was no

job description for "yard foreman," and in fact, no job

description for any position in Hanson Pipe. Mr. Ford wanted to

be the "yard foreman," but Mr. Bascetta did not need a position

like that and therefore did not move Mr. Ford into what was a

nonexistent position. Mr. Ford believes this was a

manifestation of prejudice.

19 . On April 27, 2005, Mr. Ford requested a training topic

outline he had signed earlier in the day. By the time

Mr. Bascetta took the time to obtain it, he was informed that

Mr. Ford had departed the plant.

20 . On April 29, 2005, Mr. Bascetta was informed by

several employees that Mr. Ford had turned in his uniforms. He

did not inform management that he was terminating his employment

and indicated to some one that he would return Monday, May 2,

2005 . In fact, he never returned. On May 2, 2005, he called

the plant office to announce that he had quit.

21 . No evidence was adduced that would indicate that

Mr. Bascetta is prejudiced toward African - Americans . To the

contrary, Mr. Ford said, "I couldn't really say" that

Mr. Bascetta was prejudiced. Mr. Ford and other employees would

have breakfast with Mr. Bascetta from time to time. Mr. Ford

was invited to Mr. Bascetta 's home for a barbeque on one

occasi on.

22 . In the f all of 2005, Mr. Bascetta left Hanson Pipe and

opened his own pre - cast concrete operation in Freeport, Florida .

He employed Mr. Chisolm as his plant manager. It is unlikely

that Mr. Bascetta would seek out and hire an African - American as

his plant manager , if he w ere prejudiced.

CONCLUSIONS OF LAW

2 3 . The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. § § 120.57(1) and 760.11 (7) , Fla. Stat.

2 4 . The Florida Civil Ri ghts Act (the Act), Section

760.01, et seq. , is patterned after Title VII of the Federal

Civil Rights Act, 42 U.S.C. S ection 2000e, et seq. Federal case

law interpreting Title VII and similar federal legislation is

applicable to cases arising under the Florida Act. See Florida

Department of Community Affairs v. Bryant , 586 So. 2d 1205 (Fla.

1st DCA 1991) and School Board of Leon County v. Weaver , 556 So.

2d 443 (Fl a. 1st DCA 1990).

25 . Mr. Ford is an “aggrieved person” and Hanson Pipe is

an "employer" within the meaning of Section 760.02(10) and (7),

Florida Statutes, respectively. Section 760.10(1)(a), Florida

Statutes, makes it unlawful for Hanson Pipe to refu se to hire

any individual based on that individual's race, handicap, or

age.

Discrimination based on race

26 . No direct or statistical evidence of race

discrimination exists in this case. Therefore a finding of

discrimination, if any, must be based on ci rcumstantial

evidence.

27 . Because there is no credible direct evidence of

discrimination, Mr. Ford's claim must be analyzed under the

framework established by the United States Supreme Court in

McDonnell Douglas Corporation v. Green , 411 U.S. 792 (1973) and

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

(1981) . That framework was reaffirmed and refined by the Court

in St. Mary's Honor Center v. Hicks , 509 U.S. 502 (1993)

28 . Under that framework, Mr. Ford must establish a prima

facie c ase of race discrimination. If he accomplishes this, the

burden shifts to Hanson Pipe to articulate a legitimate,

nondiscriminatory reason for its actions. If Hanson Pipe

satisfies its burden, the burden then shifts back to Mr. Ford to

prove by a prepond erance of the evidence that the proffered

reason was merely a pretext for race discrimination. The

ultimate burden in this case remains with Mr. Ford.

29 . Mr. Ford first has the burden of establishing by a

preponderance of the evidence a prima facie case of unlawful

discrimination. See Hicks , 509 U.S. at 506. In order to

establish a prima facie case, Mr. Ford must establish that:

(1) he is a member of a protected group; (2) he was qualified

for the position; (3) he was subject to an adverse employment

decision; and (4) after his demotion , the position was filled by

a person outside Mr. Ford 's protected group. See Combs v.

Plantation Patterns, Meadowcraft, Inc. , 106 F.3d 1519 (11th Cir.

1997) and School B oard of Leon County v. Hargis , 400 So. 2d 103

(Fl a. 1st DCA 1981).

30 . Mr. Ford failed to establish a prima facie case of

discrimination. He did prove that he was a member of a

protected group, African - American; and that he was subject to an

adverse employment decision, a demotion; and that after his

demotion a person outside of Mr. Ford's protected group was

hired.

31 . However, he did not prove that he was qualified for

the position. The position required tha t the incumbent be a

qualified quality control t echnician. The incumbent in that

position was required to be certified as American Concrete

Institute (ACI) Field Testing Technician, Grade I. Mr. Ford did

not pass the ACI test , which was a prerequisite for

certification, so he could not be certified.

32 . Assuming arguendo that Mr. Ford proved a prima facie

case, Hanson Pipe produced and articulated legitimate,

nondiscriminatory reasons for demoting Mr. Ford. These reasons

were convincing reasons. Mr. Ford did not demonstrate that

these reasons were merely pretextual reasons for discrimination .

Retaliation

33 . Retaliation based on a complaint of an unlawful

employment practice is addressed by Section 760.10(7), Florida

Statutes, which provides that, "It is an unlawful employment

practice for an employer to discriminate against any person

becau se that person has opposed any practice which is an

unlawful employment practice under this section. . . ."

34 . Mr. Ford 's retaliation claim is based on his claim

that he was treated badly by Mr. Bascetta and Hanson Pipe and

was denied promotion to an a sserted position of "yard foreman"

because he complained to Webber Ferguson, Hanson Pipes's

Employee Relations Manager , about being demoted.

35 . The McDonnell Douglas Corp. v. Green analysis is also

the test used to demonstrate that retaliation has occurr ed.

Mr. Ford must first establish a prima facie case of retaliation.

Thereafter, the Hanson Pipe may offer legitimate, non -

retaliatory reasons for its failure to hire him. If the

employer succeeds, Mr. Ford must establish that Hanson Pipe 's

articulated legitimate reasons were a pretext to mask unlawful

retaliation. Harper v. Blockbuster Entertainment Corp. , 139

F.3d 1385, 1388 (11th Cir. 1998).

3 6 . To prove a prima facie case of retaliation, Mr. Ford

must show the following: that (1) he engaged in st atutorily

protected expression; that (2) he suffered an adverse employment

action, such as not being hired; and that (3) the adverse

employment action was causally related to the protected

activity. See Harper v. Blockbuster Entertainment Corp. , 139

F.3d 1385, 1388 (11th Cir. 1998) and EEOC v. Navy Federal Credit

Union , 424 F.3d 397 (4th Cir. 2005).

37 . Mr. Ford proved that he engaged in statutorily

protected expression in that he complained to Mr. Ferguson about

alleged discrimination. He did not, howev er, suffer an adverse

employment action because of his report. His allegation that

Mr. Bascetta's motivation in failing to hire him as "yard

foreman " because of his report, fails because there was no

extant job at Hanson Pipe as "yard foreman ."

38 . By e xtension, because there was no adverse employment

action as a result of the report, it could not be causally

related to the report.

39 . Assuming arguendo that a prima facie case has been

established, Hanson Pipe has articulated legitimate reasons why

it d id not put Mr. Ford in a position entitled, "yard foreman ."

The reason for refusing to do so was grounded in the fact that

the position did not exist. No one was put into what at one

time was a position , but had subsequently been abolished as a

position . Mr. Bascetta simply accomplished those duties

himself. Mr. Ford did not prove that the reason for Hanson's

Pipe 's refusal was pretextual.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is

RECOMMENDED that Mr. Billy J. Ford' s Employment Complaint

of Discrimination and Amended Employment Complaint of

Discrimination be dismissed.

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

Tallahassee, Leon County, Florida.

S

HARRY L. HOOPER

Administrative Law Judge

Division of Adminis trative 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 14th day of J une , 2006 .

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Billy J. Ford

4028 Charles Circle

Pace, Florida 32571

Ganesh Chatani , Esquire

Fowler White Boggs Banker P.A.

101 North Monroe Street, Suite 1090

Tallahassee, Florida 32301

Jerry Girley

Qualified Representative

1350 Vickers Lake Drive

Ocoee, Florida 34761

Kevin D. Zwetsch, Esquire

Fowler White Boggs Banker P.A.

Post Office Box 1438

Tampa, Fl orida 33602

Heather N. Jarrell, Esquire

Fowler White Boggs Banker, P.A.

501 East Kennedy Boulevard,

Suite 1700

Tampa, Florida 33602

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Flori da 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.