05-004136 Johnny Pena vs. American Airlines, Inc. Status: Closed Recommended Order on Monday, May 15, 2006.

Summary: Petitioners failed to prove that their terminations were the product of anti-hispanic discrimination, as they had alleged in their employment discrimination charges.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHNNY PENA, )

)

Petitioner, )

)

vs. ) Case No. 05 - 4136

)

AMERICAN AIRLINES, )

)

Respondent. )

__________________________________)

)

JOSE CASTELLANOS, )

)

Petitioner, )

)

vs. ) Case No. 05 - 4139

)

AMERICAN AIRLINES, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice , a hearing was conducted in the s e

consolidated case s pursuant to Sections 120.569 and 120.57(1),

Florida Statutes, 1 before Stuart M. Lerner, a duly - designated

administrative law j udge of the Division of Administrative

Hearings, on February 24, 2006 , by video teleconference at sites

in Miami and Tallahassee, Florida.

APPEARANCES

For Petitioner s : Lee Friedland , Esquire

Friedland & Associates, P.A.

4486 Southwest 64th Avenue

Davie, Florida 33314

For Respondent: Christopher P. Hammon , Esquire

Morgan, Lewis & Bockius LLP

5300 Wachovia Financia l Center

200 South Biscayne Boulevard

Miami, Florida 33131

STATEMENT OF THE ISSUE

Whether American Airlines committed the unlawful employment

practice s alleged in the employment discrimination charge s filed

by Petitio ner s and, if so, what relief should Petitioners be

granted by the Florida Commission on Human Relations.

PRELIMINARY STATEMENT

On July 1, 2005 , Petitioner Jose Castellanos filed an

employment discrimination charge with the Florida Commission on

Human Relat ions (FCHR), alleging that American Airlines

( American ) terminated his employment "based on [his] national

origin (Hispanic)." On October 5 , 2 005 , following the

completion of its investigation of Mr. Castellanos' charge, the

FCHR issued a Notice of Determ ination: 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." Mr. Castellanos, on or about November 4, 2005 , filed

a Petition for Relief with the FCHR . On November 14, 2005 , the

FCHR referred the matter to the Division of Administrative

Hearings ( DOAH) for the assignment of an administrative l aw

j udge to conduct a hearing on the allegations of employment

discrimination made by Mr. Castellanos against A merican . The

DOAH Clerk docketed the case as DOAH Case No. 05 - 4139.

On July 18, 2005, Petitioner Johnny Pena filed an

employment discrimination charge with the FCHR , alleging that he

was "terminated from [his] position as an Aircraft mechanic at

American Airlines based on [his] national origin (Hispanic)."

On October 5, 2005, following the completion of its

investigation of Mr. Pena's charge, the FCHR issued a Notice of

Determination: 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." Mr. Pena, on or

about November 4, 2005, filed a Petition for Relief with the

FCHR. On November 14, 2005, the FCHR referred the matter to

DOAH for the assignment of an administrative law judge to

conduct a hearing on the allegations of employment

discrimination made by Mr. Pena against American . The DOAH

Clerk docketed t he case as DOAH Case No. 05 - 4136 .

On January 9, 2006, American filed an unopposed motion

requesting t hat D OAH Case Nos. 05 - 4136 and 05 - 413 9 be

consolidated. By o rder issued that same day ( January 9, 2006 ) ,

the motion was granted.

On February 23, 2006, the parties filed a Corrected Joint

Prehearing Stipulation , which contained, among other things, the

fol lowing "[c]oncise [s]tatement of the [n]ature of the

[c]ontroversy" and "[c]oncise [s]tatement of [a]dmitted

[f]acts":

I. CONCISE STATEMENT OF THE NATURE OF THE

CONTROVERSY

Petitioners were employed as mechanics

(Aircraft Maintenance Technicians) at

Amer ican's maintenance station at the Miami

International Airport. They were discharged

from employment after they w e re found to

have spent the latter half (about 4 hours)

of their overnight work shift on Friday

night, July 30, 2004, at a nightclub and

about town, while claiming pay as if they

had worked this complete shift. Petitioners

(both union members) grieved their discharge

with American in accordance with the

procedures established in their collective

bargaining agreement, and the grievance was

ultima tely heard by a neutral arbitrator.

The arbitrator denied Petitioners'

grievances after a full evidentiary hearing

and ruled that American had terminated their

employment for good and just cause.

Petitioners each filed a charge of

discrimination against American with the

Florida Commission on Human Relations

("FCHR") claiming that they were terminated

because of their national origin, Hispanic.

After investigation, the FCHR issued a no -

cause determination and dismissed the

Petition ers' charges. These pe titions , now

consolidated, follow.

V. CONCISE STATEMENT OF ADMITTED FACTS

1. Both petitioners were aviation

maintenance technicians for American and

worked at Miami International Airport

("MIA").

2. On July 30, 2004, Pena's scheduled shift

began at 9 :00 p.m., and ended at 5:30 a.m.

the next morning.

3. On July 30, 2004, Castellan os' scheduled

shift began at 10: 30 p.m., and ended at 7:00

a.m. the next morning.

4. Both petitioners badged in at MIA at the

start of their scheduled shifts.

5. Both pe titioners left MIA at

approximately 12:45 a.m. without badging out

and without notifying their supervisor that

they were leaving.

6. Both petitioners entered a black Ford

Explorer and drove several miles to Coconut

Grove , Florida.

7. At Coconut Grove, they parked their

vehicle, changed out of their work uniforms

and into "dress" clothes.

8. Both petitioners entered the Quench

nightclub in Coconut Grove at approximately

1:20 a.m.

9. Both petitioners consumed two

intoxicating beverages each at Quench.

10. At approximately 2:2 0 a.m., the

petitioners left Qu ench, returned to their

vehicle, and drove to a 24 - hour lunchwagon

near MIA where they ate sandwiches.

11. Following their meal, they drove back

to MIA at approximately 4:40 a.m.

12. Both petiti oners were paid as if they

worked a full - shift, including those hours

spent away from MIA and at Quench nightclub.

13. Petitioners' discharge grievances were

denied by a neutral arbitrator after a full

hearing, who found that American discharged

Petition ers for just cause because they had

engaged in timecard fraud.

14. No similarly situated, non - Hispanic

aviation technician was treated more

favorably than petitioners after engaging in

similar conduct.

As noted above, the hearing in these consolidated c ase s was

held on February 24, 2006 . Four witnesses testified at the

hearing: Mr. Castellanos , Mr. Pena , George Rojas, and Anthony

DeGrazia. In addition, 39 exhibits (Petitioner s ' Exhibits 1

through 3, and Respondent's Exhibits A through JJ ) were offered

and received into evidence. At the close of the evidentiary

portion of the hearing on February 24, 2006 , the undersigned

established the deadline for filing proposed recommended orders

at 30 days from the date of the filing of the heari ng transcript

with the DOAH .

The Transcript of the final hearing (consisting of two

volume s ) was filed with the D OAH on March 31 , 2006 .

Accordingly, proposed recommended orders had to be filed no

later than Monday, May 1, 2006 .

On May 1, 2006 , American timely filed a Pro posed

Recommended Order, which has been carefully considered by the

undersigned. To date, Petitioners have not filed any post -

hearing submittal s .

FINDINGS OF FACT

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

a whole, the following findings of fact are made to supplement

and clarify the extensive factual stipulations set forth in the

parties' February 23, 2006, Corrected Joint Prehearing

Stipulation 2 :

1 . Petitioners are both Hispanic.

2. Hispanics represent a substantial portion of the

work force in American's maintenance department at Miami

International Airport (MIA) .

3. Among these Hispanic employees in the maintenance

department are those who occupy supervisory positions.

4. American’s Vice - President for Maintenance, Danny

Martinez, is Hispanic.

5. As aviation maintenance technicians for American,

Petitioners ' job duties, as set forth in the written job

d escription for the position, were as follows:

In addition to the work specified for the

Junior Aviation Maintenance Technician, an

Avi ation Maintenance Technician 's

responsibility also includes the following:

troubleshooting, individually or with Crew

Chief, management or professional direction,

disassembly, checking and cleaning,

repairing, replacing, testing, adjusting,

assembling, in stalling, servicing,

fabricating, taxing or towing airpla nes

and/or run - up engines, de - i cing aircraft,

required to maintain the airworthiness of

aircraft and all their components whil e in

service or while undergoing overhaul and/or

modific ation. Certifies for quality of own

workmanship, including signing mechanical

flight releases for all work done on field

work. In those work positions where stock

chasers are not utilized and/or available at

the time may chase own parts. May have

other Mechanic personne l assigned to assist

him/her in completing an assignment. Works

according to FAA and Company regulation s and

procedures and instructions from Crew Chief

or supervisor. Completes forms connected

with work assignments according to

established procedures an d communicates with

other Company personnel as required in a

manner designated by the Company.

Perform s the following duties as assigned:

cleaning of aircraft windshields;

connection/removing ground power and ground

start units; pushing out/towing of air craft

and related guideman functions,

fueling/defueling, de - icing of aircraft.

6. At all times material to the instant case s , Petitioners

were member s of a collective bargaining unit represented by the

Transport Workers Union of America (TWU) and covered by a

collective bargaining agreement between American and the TWU

(TWU Contract) , which contained the following provisions, among

others:

ARTICLE 28 - NO DISCRIMINATION, AND

RECOGNITION OF RIGHTS AND COMPLIANCE

(a) The Company and the Union agree to make

it a matter of record in this Agreement that

in accordance with the established policy of

the Company and the Union, the provisions of

this Agreement will apply equally to all

employees regardless of sex, color, race,

creed, age, religious preferences, st atus as

a veteran or military reservist, disability,

or national origin.

(b) The Union recognizes that the Company

will have sole jurisdiction of the

management and operation of its business,

the direction of its working force, the

right to maintain disc ipline and efficiency

in its hangars, stations, shops, or other

places of employment, and the right of the

Company to hire, discipline, and discharge

employees for just cause, subject to the

provisions of this Agreement. It is agreed

that the rights of ma nagement not enumerated

in this Article will not be deemed to

exclude other preexisting rights of

management not enumerated which do not

conflict with other provisions of the

Agreement.

* * *

(e) Copies of the Peak Performance Through

Commitment (PPC) Program will be available

to all employees upon request. Any changes

to the PPC Program will be provided and

explained to the TWU prior to

implementation.

ARTICLE 29 - REPRESENTATION

* * *

(f) The Uni on does not question the right

of the Company supervisors to manage and

supervise the work force and make reasonable

inquiries of employees, individually or

collectively, in the normal course of work.

In meetings for the purpose of investigation

of any ma tter which may eventuate in the

application of discipline or dismissal, or

when written statements may be required, or

of sufficient importance for the Company to

have witnesses present, or to necessitate

the presence of more than the Company

supervisor, o r during reasonable cause or

post accident drug/alcohol testing as

provided in Article 29(h), the Company will

inform the employee of his right to have

Union representation present. If the

employee refuses representation, the

supervisor's record will refl ect this

refusal.

(1) At the start of a meeting under the

provisions of Article 29(f), the Company

will, except in rare and unusual

circumstances, indicate the reason that

causes the meeting and then provide an

opportunity for the employee and his Union

representative to confer for a reasonable

period of time. Following that period, the

29(f) meeting will be reconvened and

continue until concluded by the supervisor.

(2) Before written notification of

discipline or dismissal is given, an

employee will b e afforded the opportunity to

discuss the matter with his supervisor. If

he desires, he will have a Union

r epresentative in the discussion. . . .

* * *

ARTICLE 30 - DISMISSAL

(a) An employee who has passed his

probationary pe riod will not be dismissed

from the service of the Company without

written notification of that action. The

notification will include the reason or

reason s for his dismissal. Appeal from

dismissal will be made, in writing, by the

employee within seven (7 ) calendar days

after receiving the notification and will be

addressed to the Chief Operating Officer,

with a copy to the appropriate Human

Resources Office. The Chief Operating

Officer will fully investigate the matter

and render a written decision as so on as

possible, but not later than twelve (12)

calendar days following his receipt of the

appeal, unless mutually agreed otherwise.

A copy of the written decision will be

provided to the Union.

* * *

(b) If the decision of t he Chief Operating

Officer is not satisfactory to the employee,

the dismissal and decision will be appealed

in accordance with Article 30(c), provided,

however, the appeal must be submitted within

twenty (20) calendar days of receipt of the

decision render ed by the Chief Operating

Officer.

(c) An appeal from the decision of the

Chief Operating Officer will be submitted to

the appropriate Area Board of Adjustment in

accordance with Article 32. . . .

* * *

ARTICLE 31 - GRIEVANCE PROCEDURE

(a) An employee who believes that he has

been unjustly dealt with, or that any

provision of this Agreement has not been

properly applied or interpreted, or against

whom the Company has issued written

disciplinary action, may submit his

grievan ce in person or through his

representatives within seven (7) calendar

days. The grievance will be presented to

his immediate supervisor, who will evaluate

the grievance or complaint and render a

written decision as soon as possible, but

not later than sev en (7) calendar days

following his receipt of the

grievance. . . .

(b) If the written decision of the

immediate supervisor is not satisfactory to

the employee whose grievance is being

considered, it may be appealed within ten

(10) calendar to the Chief Operating

Officer, with a copy to the appropriate

Human Resources Office. The Chief Operating

Officer will fully investigate the matter

and will render a written decision as soon

as possible, but not later than twelve (12)

calendar days , unless mutually agreed

otherwise, following his receipt of the

appeal. . . .

(c) If the decision of the Chief Operating

Officer is not satisfactory to the employee,

the grievance and the decision may be

appealed to the System Board of Adjustment,

as provided for in Arti cle 32.

* * *

ARTICLE 32 - BOARD OF ADJUSTMENT

* * *

(c) Area Board of Adjustment, Discipline

and Dismissal Cases

* * *

(2) Each Area Board will be composed on one

member appointed by the Company, one member

appointed by the Union, and a neutral

referee acting as Chairman. . . .

* * *

(d) Procedures Generally Applicable to the

Boards

* * *

(6) Employees and the Comp any may be

represented at Board hearing by such person

or persons as they may choose and designate.

Evidence may be presented either orally or

in writing, or both. The advocates will

exchange all documents they may enter and

the names of witnesses they m ay call in

their direct case not later than ten (10)

calendar days prior to the date set for

hearing. Nothing in this paragraph will

require either advocate to present the

documents or the witnesses provided above

during the course of the hearing. The

ad vocates will not be restricted from

entering documents or calling witnesses that

become known subsequent to the ten (10) ten

calendar day exchange, provided a minimum of

forty - eight (48) hours notice is provided to

the other party and a copies are submitte d

to the other party prior to the presentation

of the direct case. The part y receiving the

late document or witness has the option to

postpone the hearing in light of the new

document or witness.

(7) Upon the request of either party to the

dispute, or o f two (2) Board members, the

neutral referee will summon witnesses to

testify at Board hearing. The Company will

cooperate to ensure that all witnesses

summoned by the board will appear in a

timely fashion. Reasonable requests by the

Union for employee w itnesses will be

honored. The requests for witnesses will

normally not be greater than the number,

which can be spared without interference

with the service of the Company. Disputes

arising from this provision will be

immediately referred to the Director of the

Air Transport Division and the Vice

President - Employee Relations, or their

respective designees, for resolution.

(8) A majority of all members of a Board

will be sufficient to make a finding or a

decision with respect to any dispute

properly befo re it, and such finding or

decision will be final and binding upon the

parties to such dispute. . . .

* * *

ARTICLE 36 - MEAL PERIODS

(a) Meal periods will be thirty minutes,

except when a longer period is agreed upon

between the parties.

(b) Meal periods will be scheduled to begin

not earlier than three (3) hours after

commencement of work that day and not later

than five hours after commencement of work

that day. The commencement of work is from

the start of t he employee' s regular shift.

If an employee is not schedule d for a meal

period within the foregoing time span, the

meal period will be provided immediately

before or after it. I n the even t that a

meal period has not been provided in

accordance with the foregoing, th e employee

is then free, if he so desires, to take his

meal period.

7. At all times material to th e instant cases, American

had Rules of Conduct for its employees that (a s permitted by

Article 28(b) of the TWU Co ntract) were applicable to TWU -

represented bargaining unit members , including Petitioners .

These Rules of Conduct provided, in pertinent part , as follows:

As an American Airlines employee, you can

expect a safe and productive workplace that

ensures your ability to succeed and grow

with your job. The rules listed below

represent the guidelines and principles that

all employees work by at American.

Attendance

* * *

3. During you r tour of duty, remain in the

area necessary for the efficient performance

of your work.

4. Remain at work until your tour of duty

ends unless you are authorized to leave

early.

* * *

17. Work carefully. Observe posted or

published regulations.

* * *

Personal Conduct

* * *

34. Dishonesty of any kind in relations

with the company, such as theft or pilferage

of company property, the property of other

employees or property of others entrusted to

the company, or misrepresentation in

obtaining employee benefits or privileges,

will be grounds for dismissal and where the

facts warr ant , prosecution to the fullest

extent of the law. Employees charged with a

criminal offense, on or off duty, may

immediately be withheld from service. Any

action constituting a criminal o ffense,

whether committed on duty or off duty, will

be grounds for dismissal. (Revision of this

rule, April 10, 1984)

* * *

Violations of any of the Amer ican Airlines

Rules of Conduct (listed above) . . . could

be grounds for immediate termination

depending of the severity of the incident or

offense an d the employee's record. . . .

8. At all times material to the instant cases, American

had a Peak Performance Through Commitment Policy (PPC Policy) to

deal with employee perfo rmance and disciplinary problems. The

policy , which (as permitted by Article 28(b) of the TWU

Contract) was applicable to TWU - represented bargaining unit

members, including Petitioners, provided, in pertinent part, as

follows:

Peak Performance Through Com mitment (PPC) is

a program that fosters ongoing communication

between managers and employees. It

encourages manage rs . . . to regularly

recognize outstanding performance and to

work together with employees to address and

correct performance issues fairly.

For the few employees whose performance does

not respond to regular coaching and

counseling, the following steps advise them

that continued performance problems have

serious consequences, ultimately leading to

termination:

- First Advisory for employees with problem

performance or conduct who do not respond to

coaching or counseling.

- Second Advisory for e mployees whose

performance fail s to respond to initial

corrective steps.

- Career Decision Advisory for employees

whose problem performance or conduct

warrants termination. They are given a paid

Career Decision Day away from work to

consider their future and continued

employment with American Airlines.

- Final Advisory for employees whose problem

performance or conduct requires termination,

or those who have failed to honor the Letter

of Commitment signed after their Career

Decision Day.

Please not e that steps can sometimes be

skipped, in instances where the nature of

the conduct is very serious.

It is your responsibility as an employee to

know the com pany's rules of conduct and

performance standards for your job, and to

consistently meet or exceed those standards.

In the even t that you r performance does not

measure up to the company's expectations,

your manager will work with you to identify

the probl em and outline steps to correct it.

* * *

SERIOUS INCIDENTS OR OFFENSES

Some violation s of our guiding principles

and rules of conduct will result in

immediate termination. For example,

insubordination, violating our alcohol a nd

drug policy, abusing travel privileges,

aircraft damage, violations of the work

environment policy, and job actions could be

grounds for immediate termination, depending

on the severity of the incident and the

employee's record. Hate - related conduct an d

dishonesty will always result in

termination. In cases when immediate

termination may be appropriate but

additional information is needed, the

employee may be withheld from service while

an investigation is conducted.

9. At all times material to the i nstant case, Petitioners '

regular shifts were eight and a half hours , including an unpaid,

thirty minute "meal period " ( to which TWU - represented bargaining

unit members were entitled under Article 36 of the TWU

Contract ).

10. Although they were paid to perform eight hours of work

during their eight and a half hour shif ts, TWU - represented

bargaining unit members , including Petitioners, were , in

practice, allowed to take up to an hour for their meals, without

penalty.

11. TWU - represented bargaining unit members " clocked in "

at the beginning of their shift and " clocked out " at the end of

their shift. Th ey were expected to remain "on the clock" during

their "meal periods" (which , as noted above, were to be no

longer than one hour).

12. During his eight an d a half hour shift which began on

July 30, 2004, Petitioner Castellanos was assigned to perform a

"routine 'A' [safety] check" on a Boeing 757 aircraft, an

assignment it should have taken a "well qualified [ aviation

maintenance technician] working quickly but carefully"

approximately four hours to complete.

13. At the t ime he left MIA that evening t o go to the

Quench nightclub, Mr . Castellanos was two hours and 15 minutes

into his shift.

14. During his eight and a half hour shift which began on

July 30, 2004, Petitioner Pena was assigned to perform "PS

checks" on two Boeing 737 aircraft, an assignment it should have

taken a "well qualified [ aviation maintenance technician]

working quickly but carefully" at least six hours to complete.

15. At the time he left MIA that evening to go to the

Quench nightclub, Mr. Pena was three hours and 45 minutes into

his shift.

16. Walter Philbrick, an investigator in American's

corporate security department, covertly followed Petitioners

when they left MIA that evening a nd kept them under surveillance

until their return almost four hours later.

17. Petitioners did not clock out until following the end

of their shift s on July 31, 2004 . In so doing , the y effectivel y

claimed full pay for the shifts, notwithstanding that , d uring

the shifts, they had been of f the worksite , engaged in non - work -

related activity, for well in excess of the one hour they were

allowed for "meal periods."

18. Mr. Philbrick prepared and submitted a report

detailing what he had observed as to Peti ti oner s ' movements and

conduct during the time that they had been under his

surveillance.

19. Mike Smith is American's maintenance department

station manager at MIA . He is " responsible for the entire

[ American ] maintenance operation in Miami. "

20. Mr. Sm ith assigned his subordinate, Anthony DeGrazia,

a day shift production manager at MIA, the task of looking into,

and taking the appropriate action on behalf of management in

response to, the matters described in Mr. Philbrick's report.

21. Neither Mr. Sm ith nor Mr. DeGrazia is Hispanic.

22. Mr. DeGrazia met separately with both Mr. Pena and Mr.

Castellanos. The meetings were held in accordance with the

provisions of Article 29(f) of the TWU Contract .

23. Before conducting the meetings, Mr. DeGrazia had

reviewed Mr. Philbrick's report.

24. Mr. Castellanos stated , among other things, the

following in his meeting with Mr. DeGrazia: on the evening in

question , he was trying to complete his assignment as fast as

possible because he wanted to have an alcoho lic beverage; that

evening, he was "away from work" for approximately four hours ,

which he knew was wrong; and he and Mr. Pena had engaged in

similar activity on perhaps six or seven previous occasions .

25. Mr. Pena stated, among other things, the followi ng in

his meeting with Mr. DeGrazia: on the evening in question, he

was "off the field" for three to four hours, which he knew was

not "okay " ; this was something he had done "sometimes" in the

past ; and American was a "gre at company " to work for.

26. Bas ed on his review of Mr. Philbrick's report and the

information he had obtained from Petitioners, Mr. DeGrazia

concluded that Petitioners had committed "time clock fraud" in

violation of Rule 34 of American's Rules of Conduct and that

they therefore, in acc ordance with American's policy that

"dishonesty will always result in termination" (as expressed in

the PPC Policy), should be terminated.

27. Before taking such action, Mr. DeGrazia consulted with

Mr. Smith and " someone " from American's human r esources

d epartment, who both "concurred " with Mr. DeGrazia that

termination was the appropriate action to take against

Petitioners .

28. On August 12, 2004, Mr. DeGrazia issued Final

Advisories terminating Petitioner s ' employment.

29. The Final Adv isory given to M r. Castellanos read, in

pertinent part, as follows:

On Friday, July 30, 2004, your scheduled

tour of duty was 2230 - 0700. During your

scheduled shift you were assigned to

complete an A - check on a 757 aircraft.

At approximately 0045, Corporate Security

obs erved you leaving the premises and going

into a nightclub in Coconut Grove. While

there, you were observed at the bar drinking

from a plastic cup. You were observed

leaving the nightclub at 0315 and driving

towards the airport. By your own account,

you returned to the airport approximately

0400.

During a company investigation, you admitted

to leaving the premises, during your

scheduled tour of duty and going to a

restaurant/bar. Further, you admitted to

consuming alcoholic beverages.

Additionally, whe n asked how it was possible

for you to complete your assignment in such

a short amount of time you stated that you

were, "trying to complete the job as fast as

I can because I was getting the urge of

getting a drink."

Based on the above information I have

concluded that your actions fall far short

of that which may be reasonably expected of

our employees and are a direct violation of

American Airlines' Rules of Conduct, Rules

3, 4, 17, and 34 . . . .

In view of the above rule violations your

employment wi th American Airlines is hereby

terminated effective today, August 12, 2004.

* * *

30. The Final Adv isory given to Mr. Pena read, in

pertinent part, as follows:

On Friday, July 30, 2004, your scheduled

tour of duty was 2100 - 0530 . During your

scheduled shift you were assigned to

complete two PS - checks on 737 aircraft.

At approximately 0045, Corporate Security

observed you leaving the premises and going

into a nightclub in Coconut Grove. While

there, you were observed at the bar drinking

from a plastic cup. You were observed

leaving the nightclub at 0315 and driving

towards the airport. By your own account,

you returned to the airport approximately

0400.

During a company investigation, you admitted

to leaving the premises, dur ing your

scheduled tour of duty and going to a

restaurant/bar. Further, you admitted to

consuming alcoholic beverages.

Additionally, when y ou[] were asked if it is

acceptable to go to lunch for 3 - 4 hours you

stated, "no, according to Company Rules ,

it's not OK."

Based on the above information I have

concluded that your actions fall far short

of that which may be reasonably expected of

our employees and are a direct violation of

American Airlines' Rules of Conduct, Rules

3, 4, and 34 . . . .

In view of t he above rule violations your

employment with American Airlines is hereby

terminated effective today, August 12, 2004.

* * *

31. That Petitioners were Hispanic play ed no role

whatsoever in Mr. DeGrazia's decision to terminate t hem .

Mr. DeGrazia terminated Petitioners because , and only because,

he believed that they had engaged in dishonesty by committing

" time clock fraud. "

32. Mr. DeGrazia has never encountered a nother situation ,

in his capacity as a productio n manage r for A merican, where an

aviation maintenance techni ci an over whom he had disciplinary

authority engaged in conduct comparable to the conduct for which

he terminated Petitioners.

33. No one has ever reported to him , nor has he ever

observed , any aviation mainten ance technician other than

Petitioners taking "meal periods" that were longer than an hour

while remaining "on the clock . "

34. Petitioners both grieved their terminations pursuant

to Article 31 of the TWU Contract . Neither of them advance d any

allegation s of anti - Hispanic discrimination in his grievance .

35. Petitioners ' grievances were ultimately denied on

September 9, 2004, b y William Cade , American's managing director

for maintenance .

36. Petitioners appealed the denial of their grievances to

the A merican and TWU Area Board of Adjustment for Miami, Florida

(Board) , in accordance with Article 32 of the TWU Contract,

which provided for "final and binding" arbitration of disputes

arising under the contract.

37. A consolidated evidentiary hearing was h eld before the

Board on April 28, 2005. At the hearing, Petitioners were

represented by counsel. Th rough counsel, they called and cross -

examined witnesses, submitted documentary evidence, and

presented argument . Neither of them testified .

38. The Board issued a decision on June 27, 2005 , denying

Petitioners' grievances. The TWU Board member dissented . The

Discussion and Opinion portion of the decision read, in

pertinent part, as follows:

There is no dispute that the rule violations

by grievants['] act ions on July 30, 2004

constituted time card fraud and violation of

rules relating to remaining at work. This

was not some minor taking of time, such as

overstaying lunch for a shortened period.

It was a well - planned event. They had with

them a change of clothes - in effect "party

clothes" apropos to a late night - early

morning South Florida nightclub. They had

even done this several times before.

Once at this nightclub they actually drank

very little. Grievant Pena had two drinks

and grievant Castellan os appeared to have

just one. In fact, when he was later tested

after his return to work almost five hours

later, the result was negative for drugs and

alcohol. Clearly, they failed to remain at

work for their tours of duty in violation of

Rules 3 and 4. These rules, however, do not

by themselves call for immediate discharge

nor do any of the Company documents relating

to rules, such as its PPC, refer to them as

serious violations that would incur

discharge.

The seriousness here concerns the grievants '

badging out after their eight - hour tour and

being paid for eight hours, almost five of

which they did not work. There is no

question that this is time card fraud and as

such it involves dishonesty that is covered

by Rule 34's "dishonesty of any kind."

Nu merous arbitrators for the parties have

found such conduct to be violative of Rule

34 and have concluded that stealing time

from the Company is dishonesty that requires

immediate dismissal.

* * *

[T]he grievants engaged in this misconduct

on multiple occasion s that involved more

than half of their shift being spent at a

nightclub. An d they knew it was wrong as

they readily admitted when finally caught.

Mitigation based on the grievants' EAP

involvement is insufficient to overco me and

reduce in any fashion their core

responsibility to be honest employees and

abide by all Company rules and regulations.

The Company made this clear enough in its

current Drug and Alcohol policy, and, as

seen, other Board s have found it reasonable,

a s does this Board.

To all of this the Union argues that there

are other mitigating factors - seniority,

disparate treatment, failure to consider

employment records and a common practice

permitting employees to extend lunch breaks.

As to the latter, there is no evidence that

any employee has been allowed to stay away

from work for almost five hours with the

knowledge or consent of management at any

level. There is some evidence of employees

overstaying the break by 30 minutes, of

employees going for food for the crew and

arr iving back late and even some t w o - hour

absences. None of this is comparable to the

grievants' conduct.

Nor is the evidence concerning supervisor

Delgadillo enough to warrant the finding of

a practice. She was not Pena's supervisor.

She called grievant Castellanos' cell, but

that alone does not mean that she knew he

was off several hours at that point

socializing and drinking in Coconut Grove on

July 3 0 or at other times. She may have

gone out with them while she was a mechanic,

but the evidence does not show that she went

for these long journeys to drink and

socialize at a night club. Most

importantly, the grievants never claimed a

practice existed but instead readily

admitted at the 29(f)s that their conduct

was wrong and they vio lated Company rules.

As to the disparate treatment incidents,

although the dishonesty issue appears

similar, different treatment only becomes

disparate when the employees being compared

also have factual situations and records

that are similar. The compa rators her e did

not leave work on more than one occasion, or

on any occasion, for four hours or more to

drink and socialize in a nightclub. Thus,

Mora's 45 - minute late punch - in resulted from

his retrieving his drivers' license; he then

immediately informe d management of what he

did. He did not have to be put under

security surveillance for this type of

conduct occurring in the past. Although his

30 - minute extended lunch was part of the

practice referred to above, it hardly

qualifies as like conduct when compared to

the grievants' activities.

The claim by Vizcaino that he was sick when

he used his Company travel privilege is the

type of violation referred to the Travel

Abuse Committee under a rule penalizing

employees by suspending their travel

privileges . The facts of that incident and

the reasoning of this committee are not

known to make any clear and relevant

comparison. Even if accepted as a valid

comparison, it is only one employee incident

that by itself is insufficient to show that

management disp arately treated these

grievants. Nor is their any proof that Rule

34 was involved in either of these

situations.

Manager DeGrazia disclosed that he did not

consider the grievants' prior record or

their seniority. He explained that the

seriousness of the ir conduct was sufficient

for his decision. The Board fully

recognizes that the grievants cooperated

during the investigation, had no prior

discipline, and had seniority from 1989 and

1996. Each of these factors is significant

in assessing the suitabilit y of the

penalties. But it is well established by

the parties and even in arbitration cases

i nvolving outside parties, that in light of

the gravity of time card fraud, these

factors need not be evaluated. The Chairman

notes nonetheless, that seniority an d work

records cannot be entirely ignored. But

here, the grievants' propensity in the past

to engage in this same outlandish conduct,

and to do so undetected, significantly

minimized, for mitigation purposes, much of

their good record and seniority.

39. Petitioners subsequently filed employment

discrimination charge s with the FCHR, alleging for the first

time that their terminations were product s of anti - Hispanic

discrimination.

40. There has been no persuasive showing made , in support

in these allegati ons, that the decision to terminate them was

motivated by anything other than legitimate business

considerations.

CONCLUSIONS OF LAW

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

in Sections 760.01 through 760.11, Florida Statutes, and Secti on

509.092, Florida 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).

42. Among other things, the Act makes certain acts

"unlawful emp loyment practices" and gives the FCHR the

authority, if it finds following an administrative hearing

conducted pursuant to Sections 120.569 and 120.57, Fl orida

Statutes, that an "unlawful employment practice" has occurred,

to issue an order "prohibiting the practice and providing

affirmative relief from the effects of the practice, including

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

43. To obtain su ch relief from the FCHR, a person who

claims to have been the victim of an "unlawful employment

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

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

facts describing the violation an d the relief sought") 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), Fl a .

Stat . This 365 - day period is a "l imitations 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).

44. "[O]nly those claims that are fairly encompassed

within a [timely - filed complaint] can be the subject of [an

administrative hearing conducted pursuant to Sections 120.569

and 120.57, Florida Statutes]" and any subsequent FCHR award of

relief to the complainant. Chambers v. American Trans Air ,

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

45. 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 employme nt practice for an

employer:[ 3 ]

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

hire any individual, or otherwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges of employment, because of such

individual 's race, color, religion, sex,

national origin, age, handicap, or marital

status.

46. In the instant consolidated case s , Petitioner s have

alleged that American committed such "unlawful employment

practice s " when it terminated their employment based on th eir

" national origin (Hispanic)."

47. Petitioner s had the burden of proving, at the

administrative hearing held in th ese case s , that they were the

victim s of such discriminatorily motivated action. See

Department of Banking and Finance Division of Secur ities 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 an d 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 .2d 1257, 1261 (7th Cir. 1993) (" To ultimately

prevail on a disparate treatment claim under Title VII, the

plaintiff must prove that she was a victim of intentional

discrimination. "); and Mack v. County of Cook , 827 F. Supp.

1381, 1385 (N.D. Ill. 1993)("To prevail on a racially - based

discriminatory discharge claim under Title VII, Mack must prove

that she was a victim of intentional discrimination.").

48. "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

e vidence. The trier of fact should consider all the evidence,

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

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

prove the existence of discriminatory intent without resort to

inference or pre sumption." 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

[complainant] has proven discrimination." Maynard v. Board of

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

50. "[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 a lleged 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).

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

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

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

discrimination "are permitted to establish their cases through

inferential and circumstantial proof." Kline v. Tennessee

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

52. Where a complainant attempts to prove int entional

discrimination using circumstantial evidence, the "shifting

burden framework established by the [United States] Supreme

Court in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S.

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

Aff airs 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 infer ence 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.[ 4 ] If the employer successfully

articulates such a reason, the n 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 any one 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 bec ause 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 - worke rs

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 rebut

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 Schaffner

worked w ell 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

second articulate d 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 Smith 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 perception of the decision maker which

is relevant.").

53. "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 plaintiff." 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 showing legitimate , nondiscriminatory reasons for

the action taken is immaterial insofar as the ultimate burden of

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

54. "In a case alleging discriminatory discharge or

termination, [establishing a prima facie cas e] may be

accomplished by showing the following: (1) [the discharged

employee] is a member of a protected class; (2) she was

qualified for the position from which she was terminated; (3)

she was terminated; and (4) she was replaced by someone who was

not a member of her protected class or a similarly situated

employee who was not a member of her protected class engaged in

comparable conduct and was not di scharged." Boex v. OFS Fitel,

LLC , 339 F. Supp. 2d 1352, 1360 (D. Ga. 2004) ; see also Maynard ,

342 F.3 d at 1289 ("To prevail on a claim for discrimination

under Title VII based on circumstantial evidence, Maynard must

show that: (1) he is a member of a protected class; (2) he was

qualified for the position; (3) he suffered an adverse

employment action; an d (4) he was replaced by a person outside

his protected class or was treated less favorably than a

similarly - situated individual outside his protected class.").

55. "To show that employees are similarly situated, the

[complainant] must establish that th e employees are 'similarly

situated in all relevant respects.' The comparator must be

[shown to be] 'nearly identical' to the [complainant] to prevent

courts 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

s ame 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) ; see

a lso Lopez v. Micro Center Sales Corp. , 109 Fed. Appx. 114, 117

(7th Cir. 2004)("In determining whether employees are similarly

situated, courts balance a number of factors including whether

employees were disciplined by a common decisionmaker. But as

the district court noted, Lopez was terminated by Myers and

Miller, not Stiles. . . . None of the other employees whom

Lopez asserts were similarly situated were terminated by Myers

and Miller.") (citations omitted) ; and Patterson v. Avery

Dennison Corp. , 281 F.3d 676, 680 (7th Cir. 2002)("It is clear

that Meyer was not similarly situated to Patterson because they

reported to different supervisors and had different levels of

experience and job responsibilities.").

56. Where the administrative law judge does no t 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. Scho ol 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. W e 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 di smiss the action for lack of a

prima 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 cas e. . . .

Where the defendant has done 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 need s 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

be cause 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 -

discriminat ory reason -- i.e., an economically induced 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 plaintiff 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 dispar ate 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 .' " ) .

57. In the instant c ase, Petitioners produced no direct

evidence to support their claims that they had been the victims

of intentional national origin discrimination on the part of

American . They therefore had to rely on circumstantial evidence

to prove their claim s . A revi ew of the evidentiary record

reveals that Petitioners did not present sufficient

circumstantial evidence to even establish a prima facie case of

discrimination . The ir evidentiary presentation was devoid of

any persuasive evidence that either of them w as " replaced by

someone who was not a member of [their] protected class " or that

" a similarly situated employee who was not a member of [their]

protected class engaged in comparable conduct and was not

discharged. " Both Petitioners testified that they felt th at

they were terminated because they were Hispanic. Under no

circumstances, however, is proof that, in essence, amounts to no

more than mere speculation and self - serving belief on the part

of the complainant concerning the motives of the employer

sufficie nt, standing alone, to establish a prima facie case of

intentional discrimination. See Little v. Republic Refining

Co., Ltd. , 924 F.2d 93, 96 (5th Cir. 1991)(" Little points to his

own subjective belief that age motivated Boyd. An age

discrimination plain tiff's own good faith belief that his age

motivated his employer's action is of little value."); Elliott

v. Group Medical & Surgical Service , 714 F.2d 556, 567 (5th Cir.

1983 )("We are not prepared to hold that a subjective belief of

discrimination, however genuine, can be the basis of judicial

relief."); and Shiflett v. GE Fanuc Automation , 960 F. Supp.

1022, 1031 (W.D. Va. 1997 )(" [A]ll too many leaps and

unjustifiable inferences must be made before one can reasonably

conclude that any causal connection exi sts between plaintiff's

termination and his disability. Nothing in the record, apart

from plaintiff's private speculation, provides any reason to

believe there is such a connection. But '[m]ere unsupported

speculation, such as this, is not enough to defe at a summary

judgment motion.'").

58. American, for its part, not only advanced a

legitimate, non - discriminatory reason for terminating

Petitioners, to wit: Petitioners' having committed " time clock

fraud," 5 it affirmatively established that this reason was not

pretextual, but rather was the real reason that Mr. DeGrazia

decided to terminate their employment , and that Petitioners'

being Hispanic was not a factor in his decision .

59. Under such circumstances, American cannot be found to

have committed the unlawful employment practices alleged in the

employment discrimination charges filed by Petitioners, and said

charge s should therefore be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the F lorida Commission on Human Relations

issue a final order finding the American not guilty of the

unlawful employment practices alleged by Petitioner s and

dismissing their employment discrimination charge s .

DONE AND ENTERED this 15th day of May, 2006 , in

Tallahassee, Leon County, 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 15th day of May , 2006 .

ENDNOTES

1 All references to Florida Statutes in this Recommended Order

are to Florida Statutes (2005).

2 The undersigned has accepted these factual stipulations. See

Columbia Bank for Cooperatives v. Okeelanta Sugar Cooperative ,

52 So. 2d 670, 673 (Fla. 1951) ( " When a case is tried upon

stipulated facts the stipulation is conclusive upon both the

trial and appellate courts in respect to matters which may

validly be made the subject of stipulation. Indeed, on appeal

neither party will be heard to suggest that the facts were other

than as stipulated or that any material facts w[ere] omitted . ");

Schrimsher v. School Board of P alm Beach County , 694 So. 2d 856,

863 (Fla. 4th DCA 1997) ( " The hearing officer is bound by the

parties' stipulations. " ); and Palm Beach Community College v.

Department of Administration, Division of Retirement , 579 So. 2d

300, 302 (Fla. 4th DCA 1991)( " When the parties agree that a case

is to be tried upon stipulated facts, the stipulation is binding

not only upon the parties but also upon the trial and reviewing

courts. In addition, no other or different facts will be

presumed to exist.").

3 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."

4 " 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.

5 Had Petitioners' made a prima facie showing of

discrimination, t he presumption of discrimination arising from

such a showing would have been overcome by American's advancing

this legitimate, non - discriminatory reason for their

terminations.

COPIES FURNISHED:

Lee Friedland, Esquire

Friedland & Assoc iates, P.A.

4486 Southwest 64th Avenue

Davie, Florida 33314

Christopher P. Hammon, Esquire

Morgan, Lewis & Bockius LLP

5300 Wachovia Financial Center

200 South Biscayne Boulevard

Miami, Florida 33131

Terence G. Connor, Esquire

Hunton & Williams, LLP

M ellon Financial Center

1111 Brickell Avenue, Suite 2500

Miami, Florida 33131

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commissi on 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 recommended order. Any exceptions

to this recommended order should be filed with the agency that

will issue the final order in this case.