06-001052 Lester L. Hall vs. Greenville Hills Academy/Disc Village Status: Closed Recommended Order on Thursday, July 20, 2006.

Summary: Petitioner did not prove that Respondent discriminated against him based on race.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LESTER L. HALL , )

)

Petitioner , )

)

vs. ) Case No. 06 - 1052

)

GREENVILLE HILLS ACADEMY/DISC )

VILLAGE , )

)

Respondent . )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on May 18,

2006, in Tallahassee, Florida, before Suzanne F. Hood,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Lester Levon Hall, pro se

3871 Gaffney Loop

Tallahassee, Florida 32303

For Respondent: Amy R. Harrison, Esquire

Lindsay A. Connor , Esquire

Ford and Harrison, LLP

225 Water Street, Suite 71 0

Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

The issue is whether Respondent committed an unlawful

employment action by discriminating against Petitioner based on

his race, contrary to Section 760.10, Florida Statutes (200 5).

PRELIMINARY STATEMENT

On August 15, 2005, Petitioner Lester Hall (Petitioner)

filed an Employment Charge of Discrimination with the Florida

Commission on Human Relations (FCHR). The charge alleged that

Respondent Greenville Hills Academy/Disc Village (Respondent)

had discriminated against Petitioner based on his race and

disability.

On February 2, 2006, FCHR issued a Determination: No Cause.

On March 20, 2006, Petitioner filed a Petition for Relief

involving his claim of racial discrimination. On M arch 24,

2006, FCHR referred the petition to the Division of

Administrative Hearings.

A Notice of Hearing dated April 3, 2006, scheduled the

hearing for May 18 - 19, 2006.

During the hearing, Petitioner did not testify on his own

behalf, but presented the testimony of six witnesses.

Petitioner offered four exhibits that were accepted as evidence.

Respondent presented the testimony of three witnesses.

Respondent did not offer any exhibits as evidence.

The court reporte r filed the Transcript on June 9, 2006.

On June 15, 2006, Petitioner filed a Proposed Recommended Order.

On June 19, 2006, Respondent filed a Proposed Recommended Order.

All citations hereinafter shall refer to Florida Statutes

(2005) unless otherwise indicated.

FINDINGS OF FACT

1. Respondent is a n employer as defined in Section

760.027, Florida Statutes (2005). Prior to July 1, 2005,

Respondent operated the following rehabilitation programs: (a)

Tallahassee - Leon County Human Services (TLC) serving outpatient

adults in downto wn Tallahassee, Florida; (b) a residential

program for women and their children known as Sisters in

Sobriety (SIS), which is located on Respondent's campus in

Woodville, Florida; (c) a foster care program for teenage girls

that Respondent houses in the St. Mark's Cottage, which is

located on Respondent's campus in Woodville, Florida; (d) a

foster care program for teenage boys that Respondent houses in

the St. Mark's Lodge, which is located on Respondent's campus in

Woodville, Florida; and (e) residential re habilitation programs,

which were located on Respondent's campus in Greenville,

Florida. Sometime in July 2005, Respondent sold its Greenville

Campus to another corporation.

2. Petitioner is an African - American male. At all times

relevant here, Petit ioner worked full - time as the Director of

Operations at Respondent's Woodville Campus.

3. On August 19, 2002, Petitioner acknowledged receipt of

Respondent's Equal Employment Opportunity/Anti - harassment Policy

Statement, which states as follows in rele vant part:

Any employee who believes that she/her

has been harassed or discriminated against

in violation of this policy should report

the problem immediately to the Director of

Human Resources.

4. Respondent's Human Resources Policies and Procedur es

manual states as follows in relevant part:

E. Statement of Affirmative Action

It is the policy of DISC Village, Inc., to

provide equal opportunity for employment,

training, promotion, compensation and all

conditions of employment for individuals

witho ut regard to race, color, religion,

sex, national origin, age except as provided

by law, prior history of emotional, mental,

drug or alcohol disability or physical

disability. DISC Village will maintain a

specific program to maintain and promote

non - discr imination in accordance with the

Civil Rights Act of 1964, Section 504 of the

Rehabilitation Act of 1973, and the

Americans with Disabilities Act of 1990.

Any perceived act of discrimination should

be reported to the site director and the

Human Resources Director . . . immediately.

F. Anti - Harassment Policy

DISC Village, Inc. is committed to

maintaining a work environment that is free

of unlawful harassment and will not tolerate

any form of harassment or unlawful

discrimination against our employees by

anyone. Employees must report any form of

harassment, especially sexual, to their

direct supervisor and the Human Resources

Director . . . as soon as possible. Upon

hire, all new employees will receive a copy

of the agency Anti - Harassment Policy &

Proced ure with signoff.

5. At all times relevant here, Qua' Keita Anderson, an

African - American female, was a counselor at Respondent's

Woodville Campus. Ms. Qua' Keita Anderson worked in the SIS

program. Ms. Qua' Keita Anderson's direct supervisor was Jon i

Morris - Anderson, Respondent's Director of Women's Residential

Services on the Woodville Campus.

6. At all times relevant here, Lisa Bergeron worked for

Respondent as Program Supervisor of DISC Adolescent Treatment

Center on the Woodville Campus.

7 . Prior to July 1, 2005, Harry Rohr, a white male, was

the Director of Residential Services at Respondent's Greenville

Campus and Woodville Campus. Mr. Rohr was Petitioner's direct

supervisor , even though Mr. Rohr spent most of his time at the

Greenville Campus prior to July 2005. Petitioner was in charge

of the Woodville Campus when Mr. Rohr was not available.

8. After July 1, 2005, Mr. Rohr spent most of his time at

Respondent's Woodville Campus. Mr. Rohr made this change

because Respondent no lon ger operated programs on the Greenville

Campus. The sale of the Greenville Campus did not cause a

change in title or job responsibilities for Petitioner or Mr.

Rohr.

9. At all times relevant here, Tom Olk, a white male, was

Respondent's Chief Executiv e Officer. Mr. Olk's office is

located in Respondent's administrative facility in Tallahassee,

Florida. However, Mr. Olk frequently makes on - site visits to

Respondent's Woodville Campus.

10. At all times material here, Lou Logan was Respondent's

Depu ty Director and head of Respondent's Human Resource

Department. Mr. Logan is a white male. Mr. Logan's office is

located in Respondent's administrative facility in Tallahassee,

Florida.

11. In March 2004, Respondent was in the process of

opening the foster care program on the Woodville Campus.

Several staff members, including Petitioner, participated in

refurbishing an old home as a residence for the foster children.

12. Respondent's staff was hanging curtains when Mr. Logan

paid an impromptu vis it to the old home. The curtains were

printed with African animals, including monkeys. When Mr. Logan

stated how nice the curtains looked, a staff member made some

comment about the monkeys in the curtains. Another staff member

commented about Petitione r having a big role in the decorating

project. Mr. Logan then stated, "Oh, Lester is always monkeying

around." Mr. Logan made the statement in the spirit of the

moment to show how happy he was that the staff was doing such a

good job.

13. Petitioner complained to Mr. Olk that Mr. Logan had

called him a monkey. Mr. Olk discussed the incident with

Mr. Logan and Petitioner, concluding that Mr. Logan had not

called Petitioner a monkey. Mr. Olk properly determined that

Mr. Logan never intended to make a racially derogatory comment

about Petitioner and that Petitioner had taken Mr. Logan's

statement out of context.

14. In early June 2005, Petitioner called Ms. Qua' Keita

Anderson at home on her day off to discuss some performance

issues she was having a t work. The conversation took an

inappropriate turn when Petitioner asked Ms. Qua' Keita Anderson

if she had a "sexual stress reliever."

15. On August 3, 2005, Petitioner picked up a female

teenage resident of St. Mark's Cottage from Respondent's office s

in Tallahassee, Florida. Petitioner transported the female

youth, alone and unsupervised, in his personal vehicle to look

for a job. In so doing, Petitioner violated Respondent's policy

relative to the transportation of residents and/or patients of

the opposite gender.

16. On August 3, 2005, Harry Rohr and Lisa Bergeron

observed the same young female client leaning over Petitioner's

shoulder at his computer desk in very close proximity to

Petitioner's body. Petitioner did not maintain appropriate

p hysical boundaries with the young girl.

17. On August 3, 2005, Mr. Rohr spoke to Petitioner about

his violation of the transportation rules and his failure to

maintain appropriate physical boundaries with the female client.

Mr. Rohr then wrote a memor andum to memorialize the

conversation. In the memorandum, Mr. Rohr advised Petitioner to

refrain from being alone with any of the teenagers and to

concentrate his efforts on the boys of St. Mark's Lodge.

18. Shortly thereafter, Respondent approved Ms. Qua' Keita

Anderson's request for a transfer from the Woodville Campus to

the TLC Campus. Ms. Qua' Keita Anderson wanted to work in

downtown Tallahassee, Florida, because she was beginning

graduate school and needed a smaller, less stressful caseload.

1 9. On one occasion, Petitioner and Ms. Qua' Keita

Anderson had lunch together at a picnic table on the Woodville

Campus. On another occasion, Petitioner ordered take - out meals

for Ms. Qua' Keita Anderson and himself. Ms. Qua' Keita

Anderson paid Petitio ner for her meal when she picked it up in

Petitioner's office. There is no persuasive evidence that

Petitioner ever paid for Ms. Qua' Keita Anderson's lunch, on or

off the Woodville Campus.

20. Upon realizing that Ms. Qua' Keita Anderson's last day

at the Woodville Campus was approaching, Petitioner telephoned

her at home. During the conversation, Petitioner told Ms. Qua'

Keita Anderson that she "owed him something" before she

transferred.

21. Ms. Qua' Keita Anderson replied that she did not owe

Pe titioner anything. Petitioner then asked Ms. Qua' Keita

Anderson to have lunch with him before her last day at work on

the Woodville Campus. Ms. Qua' Keita Anderson did not agree to

have lunch with Petitioner.

22. Petitioner telephoned Ms. Qua' Keita Anderson one

additional time at work. During the call, Petitioner again

asked when Ms. Qua' Keita Anderson was going to have lunch with

him. Ms. Qua' Keita Anderson advised Petitioner that she was

uncomfortable having a personal lunch outside of the off ice.

Once again she refused Petitioner's invitation.

23. On August 8, 2005, Ms. Qua' Keita Anderson complained

to her supervisor, Ms. Joni Morris - Anderson. Ms. Qua' Keita

Anderson and Ms. Joni Morris - Anderson are unrelated.

24. Ms. Qua' Keita Ander son complained about Petitioner's

inappropriate sexual remark, his telephone calls to her home,

his insinuation that she "owed him something" before she

transferred, and his insistence that she have lunch with him.

Ms. Qua' Keita Anderson repeated her com plaint in the presence

of Ms. Bergeron, who advised Ms Morris - Anderson to report the

incidents to Mr. Rohr.

25. Ms. Qua' Keita Anderson prepared a written statement

and submitted it to Mr. Rohr. The statement reflected her

"concern" about Petitioner's behavior, which made her feel

uncomfortable and harassed.

26. On August 8, 2005, Mr. Olk visited the Woodville

Campus. During that visit, Mr. Olk and Mr. Rohr met with

Petitioner to discuss Ms. Qua' Keita Anderson's sexual

harassment complaint. The meeting also included a discussion

involving Petitioner's unsupervised transportation of a female

resident and his failure to maintain appropriate physical

boundaries with the same female resident.

27. Mr. Olk explained to Petitioner that Ms. Qua' Keit a

Anderson's complaint raised serious issues, which required an

investigation. Mr. Olk advised Petitioner that if he did not

participate in the investigation, he could resign or be

terminated.

28. In regard to Ms. Qua' Keita Anderson's allegations,

Pe titioner stated that "it didn't happen that way." He did not

make any other statement except to say that “ he needed time to

think."

29. Mr. Olk had another scheduled meeting on the Woodville

Campus. Mr. Olk asked Petitioner to read Ms. Qua' Keita

Ander son's complaint and to discuss it with Mr. Olk upon his

return from the other meeting.

30. Petitioner then asked Mr. Rohr if he could have the

rest of the day off. Mr. Rohr denied this request because

Mr. Olk wanted to continue his discussion with Pet itioner and

because Mr. Rohr wanted Petitioner to begin the cross - training

of Jonetta Chukes.

31. Ms. Chukes is a white female. Prior to July 1, 2005,

Ms. Chukes worked in Respondent's office in Tallahassee,

Florida, as a Medicaid specialist. Until t he Greenville Campus

was sold, Ms. Chukes also provided some paperwork services for

the programs on the Greenville Campus.

32. Sometime in July 2005, Respondent decided to let

Ms. Chukes work part - time in the administrative office in

Tallahassee, Florida , and part - time to o a s a secretary on the

Woodville Campus. Additionally, Respondent wanted Ms. Chukes to

cross - train in the following areas: (a) the client intake

process, formerly exclusively performed by Petitioner; (b) the

billing process, formerly e xclusively performed by another

secretary on the Woodville Campus; and (c) the workforce

application process. Cross - training is important to Respondent

to ensure that its programs function smoothly when any

particular person is not at work.

33. Ms. Ch ukes did not immediately begin working part - time

on the Woodville Campus after Respondent made the decision about

her new responsibilities. Ms. Chukes happened to begin that

transition on August 8, 2005.

34. When Mr. Olk and Mr. Rohr returned from the o ther

meeting, they intended to finish their conversation with

Petitioner. However, they could not locate Petitioner. They

soon learned that Petitioner had turned in his keys and

employer - provided cell phone, submitted a written letter of

resignation, and left the campus. Petitioner never informed

anyone that he believed Mr. Rohr was discriminating against him.

35. Mr. Olk was very disappointed that Petitioner did not

stay on the premises to complete their discussion. Mr. Olk

believed Petitioner was a valuable employee with potential for

career advancement. Mr. Olk encouraged Petitioner to pursue his

undergraduate degree, which is a requirement for upper

management.

36. Respondent reimbursed Petitioner for his tuition at

Tallahassee Community Coll ege. Respondent does not normally pay

for its employees to attend college. In this respect,

Petitioner was treated more favorably than his Caucasian

counterparts.

CONCLUSIONS OF LAW

37. The Division of Administrative Hearings has

jurisdiction over th e parties and the subject matter of this

case pursuant to Section 760.11(4)(b), Florida Statutes.

38. Section 760.10(1)(a), Florida Statutes (2005),

prohibits discrimination against any individual with respect to

compensation, terms, conditions, or pri vileges of employment

because of an individual's race.

39. The Florida Civil Rights Act of 1992 (FCRA), Sections

760.01 through 760.11, Florida Statutes (2005), is patterned

after Title VII of the Civil Rights Act of 1964, 42 U.S.C.

Section 2000e et seq . Florida courts have held that decisions

construing Title VII are applicable when considering claims

under FCRA. See Florida Department of Community Affairs v.

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

40. The employee has the ultimate burden to prove

discrimination by direct or indirect evidence. Texas Department

of Community Affairs v. Burdine , 450 U.S. 248, 253 (1981).

There is no direct evidence of discrimination in this case.

41. The only statement that could possibly be considered

dir ect evidence of race discrimination is the allegation that

Mr. Logan called Petitioner a "monkey" during a visit to the

foster care home. The most persuasive evidence indicates that

Mr. Logan's comment related to Petitioner "monkeying aroun d ."

Mr. Logan' s remark about Petitioner's jovial character and

outlook on life does not rise to the level of race

discrimination.

42. Even if Mr. Logan's statement had been racially

motivated, the "mere utterance of an ethnic or racial epithet

which engenders offens ive feelings in an employee does not

affect the condition of employment to a sufficiently significant

degree so as to violate Title VII." See Paris v. ARC/Davidson

County, Inc. , 307 F. Supp. 2d 743 (M.D. N.C. 2004).

43. Moreover, Mr. Logan was not inv olved in the August 8,

2005, meeting regarding the complaint of sexual harassment

against Petitioner. Mr. Logan was not a decision - maker as to

any issue in this case. See Holifield v. Reno , 115 F.3d 1555,

1563 - 1564 (11th Cir. 1996)("[A] plaintiff cannot rely on remarks

as direct evidence of discrimination unless they were uttered by

the decision - maker in the challenged action, or at the very

least, by someone involved or having an influence on the

decisional process.")

44. In order to prove a claim of i ndirect discrimination,

an employee must establish a prima facie case by creating an

inference of discrimination through circumstantial evidence.

See Early v. Champion International Corporation 907 F.2d 1077,

1081 (11th Cir. 1990).

45. Generally, a pr ima facie case of discrimination based

on circumstantial evidence requires an employee to show the

following: (a) the employee is a member of a protected group;

(b) the employee was subjected to an adverse employment action;

and (c) the employee was treat ed differently that employees who

are not members of the protected class with respect to the

adverse action. See MaDonnell Douglas Corp. v. Green , 411 U.S.

792 (1973); Weaver v. Tech. Data Corp. , 66 F. Supp. 1258, 1259

(M.D. Fla. 1999).

46. If an empl oyee proves a prima facie case, the employer

must then articulate a legitimate, nondiscriminatory reason for

the challenged employment decision. See Burdine , 450 U.S. at

254. The employer is required only to "produce admissible

evidence, which would allo w the trier of fact rationally to

conclude that the employment decision had not been motivated by

discriminatory animus." See Burdine , 450 U.S. at 257.

47. If the employer produces evidence of a non -

discriminatory reason for the adverse employment act ion, the

burden shifts back to the employee to prove that the employer's

reason was a prete x t for discrimination. See St. Mary's Honor

Center v. Hicks , 509 U.S. 502, 503 (1993).

48. In his attempt to establish race discrimination,

Petitioner points to the August 8, 2005, meeting between

himself, Mr. Olk, and Mr. Rohr. Petitioner claims the meeting

was an instance of race discrimination because he was asked to

participate in an internal investigation of Ms. Qua' Keita

Anderson's complaint. Applying th e McDonnell analysis to this

case indicates that Petitioner did not establish a prima facie

case of disparate treatment.

49. Regarding the August 8, 2005, meeting, there is no

authority to support the proposition that requiring an employee

to participa te in an investigation of employee misconduct

constitutes an adverse employment action. An adverse employment

action equates to a "significant change in employment status,

such a hiring, firing, failing to promote, reassignment with

significantly differen t responsibilities, or a decision causing

a signification change in circumstances." See Burlington Indus.

Inc. v. Ellerth , 524 U.S. 742, 761 (1981). Participating in

Respondent's investigation of Ms. Anderson's complaint caused no

change to Petitioner's employment status. Moreover, other

provisions of Title VII imposed on Respondent an affirmative

duty to investigate complaints such as Ms. Qua' Keita Anderson's

in order to take immediate remedial action in response to the

complaint. See Faragher v. City of Boac Raton , 524 U.S. 775,

807 (1998). Furthermore, courts have explicitly concluded that

requiring an employee to participate in the investigation of a

sexual harassment complaint against that employee does not

constitute an adverse employment action. See Mitchell v.

Carrier Corp. , 954 F. Supp. 1568, 1576 (M.D. Ga. 1995).

50. Even if the August 8, 2005, meeting could somehow be

construed as an adverse employment action, Petitioner has not

demonstrated that he was treated less favorabl y than his

Ca ucasian counterparts. He did not present evidence that a

Caucasian employee had been accused of sexual harassment, but

had not been required to participate in an investigation of the

complaint. See Abel v. Dubberly , 210 F.3d 1334 (11th Cir .

2000)("[A]bse nt some other similarly situated but differently

[treated] worker, there can be no disparate treatment.")

51. In this case, Petitioner did not stick around long

enough to even complete the exploratory conversation on

August 8, 2005. Therefore, it is im possible to determined

whether Mr. Olk treated Mr. Logan more favorably in March 2004

than he treated Petitioner in August 2005.

52. Finally, Petitioner cannot prove that he was subjected

to the adverse employment action of constructive discharge.

Petit ioner failed to prove that the circumstances surrounding

the investigation of the sexual harassment complaint and the

violations of policies related to clients of the opposite gender

made his working conditions so intolerable that a reasonable

person would have felt compelled to resign from his employment.

See Martin v. Citibank, N.A. 762 F.2d 212, 221 (2nd Cir. 1985);

McLaughlin v. State of Florida , 526 So. 2d 934, 937 - 938 (Fla.

1st DCA 1988).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That FCHR enter a final order dismissing the Petition for

Relief.

DONE AND ENTERED this July day of 20 th , 2006 , in

Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

Administrat ive 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 Administr ative Hearings

this 20 th day of July , 2006 .

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Cecil Howard, General Counsel

Florida Commission on Human Re lations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Lester L evon Hall

3871 Gaffney Loop

Tallahassee, Florida 32305

Amy Reisinger Harrison, Esquire

Lindsay A. Connor, Esquire

Ford and Harrison LLP

225 Water Street, Suite 710

Jacksonvill e, Florida 32202

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 i ssue the final order in this case.