06-001988 Michael L. Perry vs. Embry-Riddle Aeronautical University Status: Closed Recommended Order on Friday, June 15, 2007.

Summary: Repondent provided legitimate, non-discriminatory reasons for Petitioner`s termination from his employment. Therefore, the Florida Commission on Human Relations should enter a final order dismissing the Petition for Relief.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL L. PERRY , )

)

Petitioner , )

)

vs. ) Case No. 06 - 1988

)

EMBRY - RIDDLE AERONAUTICAL )

UNIVERSITY , )

)

Respondent . )

)

RECOMMENDED ORDER

This c ause came on for formal hearing before Robert S.

Cohen, Administrative Law Judge with the Division of

Administrative Hearings, on March 12 and 13, 2007, in

Tallahassee, Florida, and on March 26 and 27, 2007 , in Daytona

Beach, Florida.

APPEARANCES

For Pet itioner: Bill Reeves, Esquire

H. Richard Bisbee, P.A.

1882 Capital Circle Northeast , Suite 206

Tallahassee, Florida 3230 9

For Respondent: Thomas J. Leek, Esquire

Cobb & Cole

Post Office Box 2491

Daytona Beach, Florida 32115 - 2491

STATEMENT OF THE ISSUE

The issue is whether Respondent engaged in an unlawful

employment practice by discriminating against Petitioner on the

basis of race in violation of the Florida Civil Rights Act of

1992, as amended.

PRELIMINARY STATEMENT

Petitioner, Michael L. Perry, filed a charge of

discrimination with the Florida Commission on Human Relations

("FCHR") alleging that Respondent, Embry - Riddle Aeronautical

Univers ity ("Embry - Riddle") , discriminated against him on the

basis of race. Specifically, Petitioner asserts that Respondent

discriminated against him: 1) because he was forced to

immediately resign from his position and was accused of fraud in

connection with a cellular telephone contract entered into with

Nextel; 2) because he believes he was the only African - American

male serving as a "satellite campus manager" and "one of very

few other African - Americans serving in high - level management

positions"; and 3) b ecause he was "not afforded the opportunity

of a valid investigation of [complaints of sexual harassment]

consistent with proper Embry - Riddle policies and procedures."

At the f inal h earing, Petitioner asserted that "he was, in fact,

discriminated against in connection with the sexual harassment

investigation, and also his termination because of an alleged

cellular telephone contract and the employer's conclusion that

he defrauded Embry - Riddle University."

After investigating Petitioner's charges, FCHR iss ued a

Determination: No Cause on April 28, 2006, in which it found

there was no reasonable cause to believe that an unlawful

employment practice had occurred. Petitioner filed a petition

for relief on June 2, 2006, requesting that a formal

administrative hearing be conducted, and the case was referred

by FCHR to the Division of Administrative Hearings on June 6,

2006. On February 6, 2006, an Order Granting Hearing and Re -

scheduling Hearing was issued , and a he aring took place over

four days, March 12 and 13 in Tallahassee, Florida, and March 26

and 27 in Daytona Beach, Florida.

At the hearing, Petitioner testified on his own behalf and

presented the testimony of Albert Borovich, Linda Mobley, and

Deric Mordica, and offered Exhibits 1 through 22 and 24 , al l of

which were received into evidence . Respondent presented the

testimony of Katrina Alexander and Rick Snodgrass and offered

Exhibits 1 through 16 , all of which were received into evidence ,

with the exception of a portion of Exhibit 1 .

A Transcript wa s filed on April 11, 2007 . After the

transcript was filed , Petitioner and Respondent filed their

Proposed Findings of Fact and Conclusions of Law on May 4, 2007 .

References to statutes are to Florida Statutes (200 6 )

unless otherwise noted.

FINDINGS O F FACT

Facts Stipulated t o B y the Parties

1. Embry - Riddle is an independent, nonsectarian, not - for -

profit, co - educational university. Embry - Riddle serves

culturally diverse students seeking careers in aviation,

aerospace, engineering, and related fields , with residential

campuses in Daytona Beach, Florida, and Prescott, Arizona, and

an e xtended c ampus (a/k/a Worldwide Campuses) consisting of 156

t eaching s ites in the United States and Europe.

2. Michael Perry began his employment with Embry - Riddle on

N ovember 30, 2001, as a part - time a ssociate c enter d irector at

Embry - Riddle's Tallahassee t eaching s ite. His job

responsibilities were to market Embry - Riddle's programs, enroll

students and provide some student services, the timely

completion of registrati on forms and matriculation applications,

and basic administrative duties.

3. Petitioner did not have authority to enter into a

contract for cellular phone service on behalf of Embry - Riddle

that Embry - Riddle would be obligated to pay.

4. Embry - Riddle' s Tallahassee t eaching s ite is on the

campus of Tallahassee Community College ("TCC"), along with the

extended campuses of other higher - education institutions ,

including Flagler College - Tallahassee and Barry University.

5. In February 2003, Petitioner be gan to work full - time

with the same job title and responsibilities.

6. In February 2004, Petitioner was promoted from

a ssistant c enter d irector to a ssociate c enter d irector. He

received a pay increase, and was given the additional

responsibility of supe rvising an assistant and a Veterans'

Affairs ("VA") student employee.

7. At all times, Petitioner's assistant was Katrina

Alexander, an African - American female.

8. At all times relevant to this claim, Petitioner's VA

student employee was Kiesha Moodie , an African - American female.

9. The Tallahassee t eaching s ite was overseen by Center

Director Albert Borovich from a remote site in the panhandle of

Florida.

10. On or about May 18, 2005, Ms. Alexander reported that

Ms. Moodie advised her that she was uncomfortable about some

interaction she had with Petitioner in his office. The precise

nature of the interaction is in dispute.

11. At some point after May 23, 2005, Mr. Borovich was

given certain memoranda by Dr. Barbara Sloan , advising h im of

the co mplaints of sexual harassment by certain unnamed employees

of TCC.

12. On June 6, 2005, Mr. Borovich received a copy of a

memorandum from Maura Freeberg Wilson to Joketra Hall advising

of complaints by female employees of Flagler College - Tallahassee

abou t Petitioner.

13. On June 10, 2005, Debbie Wiggins, the Southeast

Regional Director of Operations for Embry - Riddle, and the direct

supervisor of Mr. Borovich, provided copies of the alleged

victim's statements to Petitioner for response.

14. Petitioner responded to the charge by a report , dated

June 15, 2005, denying the claims of sexual harassment and

inappropriate behavior.

15. Respondent has a human resources department housed in

its headquarters in Daytona Beach, Florida. The human resources

depa rtment is responsible for investigating complaint s of sexual

harassment and inappropriate behavior by an employee. The human

resources department had not started its investigation of the

complaints against Petitioner at the time Ms. Wiggins gave the

alleg ed victim's statements to Petitioner.

16. Rick Snodgrass was appointed by Linda Mobley to

investigate the claims of sexual harassment and inappropriate

behavior on behalf of Respondent's human resources department .

17. Ms. Mobley was a human resource p rofessional in

Respondent's human resource depar tment in Daytona Beach,

Florida.

18. Mr. Snodgrass was a human resource professional in

Respondent's human resources department in Daytona Beach,

Florida.

19. On June 20, 2005, a telephone call was receiv ed at the

Tallahassee t eaching s ite from Nextel Partners Recovery

concerning a delinquent account ("the Nextel Account").

20. On June 20, 2005, Mr. Borovich called Respondent's

payroll department and asked whether Petitioner's paycheck could

be held, but was advised that it was too late.

21. At this time, Petitioner had made two payments to

Nextel Partners on the Nextel Account at issue. The funds used

to make this payment came directly from Petitioner and were not

Embry - Riddle funds.

22. On June 21, 2005, Mr. Borovich called Petitioner about

the Nextel Account.

23. On June 21, 2005, Petitioner was placed on

administrative leave without pay.

24. Petitioner told Mr. Borovich that he had opened the

account at issue, that it was in his name, and that he had been

paying the bills.

25. The Nextel Subscriber Agreement lists "Embry - Riddle"

in the section labeled "Full Customer Name."

26. The Nextel Subscriber Agreement lists the address of

the Tallahassee t eaching s ite of Embry - Riddle in the section

labeled "Mailing Address."

27. The Nextel Subscriber Agreement lists Petitioner's

home address in the section labeled "Shipping Address."

28. The Nextel Subscriber Agreement has Petitioner's

signature in the section labeled "Customer Signature."

29. The Nextel Subscriber Agreement has "Assist. Dir.

Oper." i n the section labeled "Title."

30. The Nextel New Customer Checklist lists "Embry -

Riddle/TCC" in the section labeled "Customer/Company Name."

31. The Nextel New Customer Checklist lists "Michael " in

the section labeled "Contact."

32. The Nextel New Customer Checklist has Petitioner's

signature in the section labeled "NEXTEL Customer Signature."

33. Petitioner provided his driver's license to Nextel

Partners in conjunction with opening the Nex tel Account.

34. Petitioner provided his Embry - Riddle identification

card to Nextel Partners in conjunction with opening the Nextel

Account.

35. Petitioner provided his Embry - Riddle business card to

Nextel Partners in conjunction with opening the Nexte l Account.

36. Petitioner provided the address of Embry - Riddle's main

campus in Daytona Beach to Nextel Partners in conjunction with

opening the Nextel Account.

37. Petitioner provided the address of Embry - Riddle's

Tallahassee t eaching s ite for billing purposes in conjunction

with opening the Nextel Account.

38. Petitioner directed that the bills be sent to

Respondent's Tallahassee t eaching s ite , "Attn: Michael L.

Perry," in conjunction with opening the Nextel Account.

39. Petitioner provided Respo ndent's Consumer Certificate

of Exemption (Embry - Riddle's certificate of tax exemption) to

Nextel Partners in conjunction with opening the Nextel Account.

40. On June 20, 2005, Nextel Partners asserted that

$936.55 was past due and owing on the Nextel Ac count.

41. The alleged past due balance was sent to collection by

Nextel Partners.

42. The debt collection firm of Lamon, Hanley & Assoc.,

Inc., sought payment of the alleged past due amount from Embry -

Riddle.

43. The debt collection firm of J.J. Mac Intyre Co., Inc.,

sought payment of the alleged past due amount from Embry - Riddle.

44. Mr. Snodgrass was charged with investigating the

events surrounding the Nextel Account by Ms. Mobley. The

investigations of the claims of sexual harassment and the Ne xtel

Account occurred simultaneously.

45. Mr. Snodgrass traveled to Tallahassee on June 23,

2005, during which he met with several individuals regarding the

claims of sexual harassment.

46. The complainants from TCC, Flagler College -

Tallahassee, and Ba rry University declined to participate in the

investigation on the advice of their legal counsel.

47. Ms. Moodie indicated to Mr. Snodgrass that she had

addressed her concerns directly with Petitioner, and she

withdrew her complaint.

48. Mr. Snodgrass interviewed Petitioner last, in the

presence of Mr. Borovich. Mr. Borovich was not present during

the interviews of the female witnesses.

49. At that time, Mr. Borovich found that there was

insufficient evidence to make a finding on the claims of sexual

harassment, and he recommended no direct discipline of Perry on

the claims of sexual harassment.

50. Mr. Snodgrass also discussed the Nextel Account with

Petitioner during the meeting of June 23, 2005.

51. Petitioner again asserted that the Nextel Sub scriber

Agreement was an agreement personal to him, and not an agreement

between Nextel Partners and Embry - Riddle.

52. Petitioner was advised that his employment was being

terminated because of the actions surrounding the Nextel

Account, but he was offer ed the opportunity to resign instead.

53. Petitioner chose to resign his employment with Embry -

Riddle.

54. Petitioner's termination was involuntary.

55. Respondent employs African - Americans in its e xtended

c ampuses across the United States, including faculty, c enter

d irectors, and a ssociate c enter d irectors.

Additional Findings of Fact Not Stipulated t o B y the Parties

56. Petitioner is a 49 - year - old African - American male , who

has always lived in the southern United States.

57. Petitioner was qual ified for his position and had not

been the subject of discipline in connection with his employment

until January 2005 , when he received a letter of reprimand from

his supervisor, Mr. Borovich.

58. In addition to his employment at Embry - Riddle,

Petitione r has served as a minister, and has had experience

counseling others who have been the victims of racial

discrimination.

59. Petitioner testified to his belief that Respondent

discriminated against him by automatically concluding that he

was guilty of co mmitting fraud by obtaining the Nextel cellular

phone because he was an African - American male.

60. Petitioner testified to his experience, and as a

minister counseling other victims of discrimination, that

African - American males are considered guilty reg ardless of

proof, and may still be considered guilty if they stand up for

their rights.

61. Petitioner believes that society generally feels that

African - American males cannot tell the truth.

62. Petitioner also testified that he was hurt the most by

b eing accused by Respondent of being a thief without the

opportunity to provide documents to rebut Respondent's

accusation.

63. Petitioner testified to his experience and belief that

African - Americans , who have been the victims of racism in the

South , hav e often been put in the position of having no chance

to present evidence disproving the charges levied against them.

64. Petitioner testified that he received a telephone call

from Mr. Borovich, on May 23, 2005, ordering him to immediately

apologize to the three alleged victims of sexual harassment or

inappropriate conduct. He believed he was not given an

opportunity to dispel Mr. Borovich of any notion that he had

acted inappropriately towards the three women, nor had any

investigation been performed a t that point.

65. Petitioner complied with the order to apologize to the

three alleged victims of the sexual harassment, and testified he

felt humiliated as a result of the experience. He believes he

was "taken back" to a time in our society when he wou ld have

been guilty just because a white man said he was guilty.

66. Mr. Borovich testified at the hearing that he did not

recall ever speaking with Petitioner on May 23, 2005, nor did he

recall "ordering" Petitioner to apologize to the alleged

victims.

67 . Petitioner testified that he complained about the fact

that he was forced to apologize to the three alleged victims of

sexual harassment, and that his complaints were ignored by his

superiors.

68 . Respondent is an equal opportunity employer that

re gularly trains its employees in seminars about equal

opportunity employment, sexual harassment, and disability.

69 . Respondent maintains extensive employment policies in

a policy manual referred to as both a POM and an APPS. These

policies are reviewed with Embry - Riddle personnel at

orientation, and made available to all personnel electronically

through an intranet site at any time from any computer.

Respondent has policies prohibiting sexual harassment and racial

discrimination.

70 . Respondent's poli cies and procedures provide that

individuals reporting sexual harassment should contact h uman

r esources , which would then conduct an investigation. This

investigation is then conducted according to Respondent's

policies and procedures.

71 . At all times relevant to this matter, Respondent had

three employees physically located in the administrative offices

of the Tallahassee t eaching s ite: Petitioner , Ms. Alexander,

and Ms. Moodie.

72 . According to Mr. Borovich, Petitioner was a good

marketer, but had some difficulty in meeting deadlines.

73 . Ms. Alexander determined that her interaction with

Petitioner on May 18, 2005, fit within Respondent's definition

of sexual harassment.

74 . Respondent's policy requires that a supervisor who is

made aware of sexual harassment must report the incident.

Ms. Alexander attempted to contact Mr. Borovich on May 18, 2005,

but he was not in his office. She , thereafter , consulted the

policy and procedures manual and determined she was to contact

the faculty chair whe n the center director was unavailable,

which she did.

75 . Once he received the complaint from Ms. Alexander,

Mr. Borovich began gathering information from the people

involved , and then he reported the alleged sexual harassment to

Respondent's human resou rces department pursuant to Embry - Riddle

policy.

76 . Ms. Moodie told Ms. Alexander that she did not believe

she was sexually harassed, but that she felt uncomfortable

standing on top of a table and writing on a white board while

Petitioner and Mr. Deric Mordica, a student, watched her from

behind.

77 . Petitioner believes that Ms. Moodie's complaint to

Ms. Alexander "started this whole thing." Both Ms. Moodie and

Ms. Alexander are African - American.

78 . Maura Freeberg Williams, during the relevant time

period, was employed in a supervisor capacity by Flagler

College , whose offices were located in the same building as

Embry - Riddle's Tallahassee t eaching s ite.

79 . Joketra Hall , during the relevant time period, was

employed in a supervisor capacity by TC C on whose campus

Respondent is located.

80 . Debbie Wiggins, during the relevant time period, was

the Southeast Regional Director of Operations for Respondent,

and Mr. Borovich's direct supervisor. Her office was not

located on the Tallahassee t eaching s ite.

81 . When Ms. Wiggins provided Petitioner with copies of

the alleged victims' statements on June 10, 2005, she was told

by Ms. Mobley that she had breached investigative protocol which

dictated that the h uman r esources department was to interview

Pe titioner prior to him seeing the statements. This is done in

order to maintain the anonymity of the victim until h uman

r esources has had the opportunity to investigate.

82 . Ms. Mobley directed Ms. Wiggins to refrain from

involving herself in the investi gation , which was to be

conducted by the h uman r esources department . These discussions

were memorialized in electronic mail between Ms. Mobley and

Ms. Wiggins.

83 . Mr. Snodgrass testified that this breach in protocol

nearly compromised the investigation , but it was caught in time

to conduct a proper investigation.

84 . Mr. Snodgrass determined how the investigation would

be handled, decided whom Respondent would interview, and decided

which statements from individuals would be taken. Mr. Snodgrass

also determined the outcome of the investigation.

85 . Mr. Snodgrass made a trip to Tallahassee on June 23,

2005, during which he met with and questioned several

individuals regarding the claims of sexual harassment.

86 . Since Ms. Moodie refused to discuss the alleged

incident because she had already discussed it with Petitioner

and withdrawn her complaint, and since the employees of TCC,

Flagler College - Tallahassee, and Barry University declined to

speak with Mr. Snodgrass, he concluded the sexual harassmen t

complaints could not be sustained.

87 . Mr. Snodgrass met with Petitioner during his June 23

trip to Tallahassee and requested that Mr. Borovich attend the

meeting as a witness. Mr. Snodgrass performed the questioning

without comment by Mr. Borovich.

88 . The first part of the meeting dealt with the sexual

harassment claims. Following the questioning, Mr. Snodgrass

determined that the evidence was insufficient to make a finding

of sexual harassment. He put aside his folder concerning this

claim.

89 . The second part of the meeting concerned the Nextel

cellular phone contract. Mr. Snodgrass asked Petitioner how he

came to have two phones in Embry - Riddle's name. Petitioner

repeated the information he had given to Mr. Borovich.

90 . Mr. Snodgrass pre sented the documents concerning the

Nextel Account to Petitioner. Mr. Snodgrass believed that the

Nextel documents were more credible than Petitioner's answers to

his questions concerning the Nextel Account.

91 . Petitioner testified that he contracted w ith Nextel to

obtain personal cellular telephones for himself and his wife.

92. Petitioner entered into the Nextel contract to receive

a discount being offered to public employees and people working

for universities which he learned about through a docum ent that

was faxed to the machine he shared with others at TCC.

93. Petitioner met with the Nextel representative at his

office to complete the paperwork.

94. Petitioner agreed to have his monthly bills sent to

his office where he also received other p ersonal bills.

95. Petitioner paid for his cellular telephone usage with

his own funds.

96. Petitioner received the benefit of using Respondent's

tax exempt certificate on his contract with Nextel.

97 . Petitioner entered into a dispute with Nextel ov er the

quality of his telephone service , which led to the matter being

turned over by Nextel to its collection agents.

98 . Petitioner never resolved the matter of his dispute

with Nextel over the quality of his telephone service.

99 . After Petitioner's termination from employment,

Respondent paid the past due amount for Petitioner's phone to

Nextel out of funds owed to P etitioner for unused leave time

during his employment .

100 . Mr. Snodgrass advised Petitioner at the time of

termination of his employ ment that he had violated school policy

by entering into the cellular phone contract. Petitioner was

informed that his "employment was being terminated due to the

fact that he opened [the Nextel] account without proper

permission. "

101 . Petitioner did n ot have contracting authority to bind

Respondent.

102. Respondent provides cellular tele phone allowances for

some of its employees who travel a great deal. None of

Respondent's employees have cellular tele phones that are owned

or contracted for by Respo ndent.

103 . The decision to terminate Petitioner was made by

Ms. Mobley. Mr. Borovich was not involved in the decision to

terminate Petitioner.

104 . Ms. Mobley was not aware of Petitioner's race until

she reviewed the documents regarding the Nextel Ac count , which

included a photocopy of Petitioner's identification card.

105 . Ms. Mobley testified that the investigative protocols

used concerning Petitioner were the same she would use

regardless of the employee's race or gender.

106 . Following Petitio ner's resignation, Ms. Alexander

performed Petitioner's prior duties, and was the only person

designated to the Tallahassee t eaching s ite for the next 18

months. At that time, the position formerly held by Petitioner

was given to a white female.

107 . Pe titioner sought unemployment benefits, giving as

his reason for his termination a "permanent layoff" due to

"reduction in force due to lack of student enrollment. "

108 . Ms. Alexander testified that she worked closely with

Petitioner and Mr. Borovich, and that she socialized outside of

work with Mr. Borovich. Ms. Alexander never witnessed

Mr. Borovich act in a racially discriminatory manner towards her

or Petitioner.

109 . Petitioner was not aware of any African - American

males employed at his level or hi gher in the organizational

structure of Embry - Riddle.

110 . Embry - Riddle employs 190 African - Amer icans out of

1,500 total employees in its w orldwide c ampuses , including

faculty, c enter d irectors, and a ssociate c enter d irectors.

Ninety percent of those Af rican - American individuals were in

positions equal to or higher than that held by Petitioner.

CONCLUSIONS OF LAW

111 . The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. § § 120.569, 120 .57(1), and 760.11 Fla. Stat.

112 . Pursuant to S ubs ection 760.10(1), Florida Statutes,

it is unlawful for an employer to discharge , refuse to hire, or

otherwise discriminate against an employee with respect to

compensation, terms, conditions, or privil eges of employment,

based on the employee ' s race, gender, or national origin.

113 . Federal discrimination law may properly be used for

guidance in evaluating the merits of claims arising under

Section 760.10, Florida Statutes. See Brand v. Florida Pow er

Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA 1994); Florida Dept. of

Community Affairs v. Bryant , 586 So. 2d 1205, 1209 (Fla. 1st DCA

1991).

114 . In McDonnell Douglas Corp. v. Green , 411 U.S. 792,

802 - 03 (1973), the Supreme Court articulated a burden of p roof

scheme for cases involving allegations of discrimination under

Title VII, where the plaintiff relies upon circumstantial

evidence. The McDonnell Douglas decision is persuasive in this

case, as is St. Mary’s Honor Center v. Hicks , 509 U.S. 502,

506 - 0 7 (1993), in which the Court reiterated and refined the

McDonnell Douglas analysis.

115 . Pursuant to this analysis, the plaintiff (Petitioner

herein) has the initial burden of establishing by a

preponderance of the evidence a prima facie case of unlawful

discrimination. Failure to establish a prima facie case of

discrimination ends the inquiry. See Ratliff v. State , 666 So.

2d 1008, 1012 n. 6 (Fla. 1st DCA), aff ' d , 679 So. 2d 1183 (1996)

(citing Arnold v. Burger Queen Systems , 509 So. 2d 958 (Fla. 2d

DC A 1987)).

116 . If, however, the plaintiff succeeds in making a prima

facie case, then the burden shifts to the defendant (Respondent

herein) to articulate some legitimate, nondiscriminatory reason

for its complained - of conduct. If the defendant carries this

burden of rebutting the plaintiff ' s prima facie case, then the

plaintiff must demonstrate that the proffered reason was not the

true reason , but merely a pretext for discrimination. McDonnell

Douglas , 411 U.S. at 802 - 03; Hicks , 509 U.S. at 506 - 07.

1 17 . In Hicks , the Court stressed that even if the trier -

of - fact were to reject as incredible the reason put forward by

the defendant in justification for its actions, the burden

nevertheless would remain with the plaintiff to prove the

ultimate question o f whether the defendant intentionally had

discriminated against him. Hicks , 509 U.S. at 511. " It is not

enough, in other words, to disbelieve the employer; the fact

finder must believe the plaintiff ' s explanation of intentional

discrimination. " Id. at 5 19.

118. In cases involving alleged racial bias in the

application of discipline for violation of work rules, the

plaintiff, who must be a member of the protected class, must

demonstrate: 1) that he did not violate the work rule, or 2)

that he engaged in misconduct similar to that of a person

outside of the protected class, and that the disciplinary

measures enforced against him were more severe than those

enforced against other persons who engaged in similar conduct.

McCalister v. Hillsborough County Sheriff , 211 Fed. Appx. 883,

2006 U.S. App. LEXIS 31617 (11th Cir. Dec. 20, 2006) ; Jones v.

Gerwens , 874 F.2d 1534, 1540 (11th Cir. 1989) . This is, more

generally stated, "to present a prima facie case of racial

discrimination, an employee must show that: 1) he is a member

of a protected class; 2) he was subjected to an adverse

employment action; 3) his employer treated similarly situated

employees outside of the protected class more favorably than he

was treated; and 4) he was qualified to do the job." A

plaintiff is similarly situated to another employee only if "the

quantity and quality of the comparator's misconduct [are] nearly

identical." Burke - Fowler v. Orange County, Fla. , 447 F.3d 1319,

1323 (11th Cir. 2006).

119. In order to prove intention al discrimination,

Petitioner must prove that Respondent intentionally

discriminated against him. It is not the role of this tribunal

(or any court, for that matter) to second - guess Respondent's

business judgment. As stated by the court in Chapman v. AI

Transport , 229 F.3d 1012, 1031 (11th Cir. 2000), "courts do not

sit as a super - personnel department that reexamines an entity's

business decisions. No matter how mistaken the firm's managers,

the [Civil Rights Act] does not interfere. Rather, our inquiry

is limited to whether the employer gave an honest explanation of

its behavior ( citations omitted ) . An employer may fire an

employee for a good reason, a bad reason, a reason based on

erroneous facts, or for no reason at all, as long as its action

is not for a discriminatory reason."

120. Petitioner claims to have been the only African -

American male serving as either an a ssistant c enter d irector or

an a ssociate c enter d irector. This would appear to be a

disparate treatment claim, but cannot be since t he evidence

clearly established that Respondent has numerous employees

holding the same or higher position as Petitioner. The fact

that most of the 190 employees of Respondent who are African -

American hold Petitioner's position or a higher one defeats thi s

claim. Petitioner has failed to prove that his claims with

respect to his position with Respondent somehow led to the

termination of his employment on the basis of his race.

121. Petitioner asserted he was not afforded the

opportunity of a "valid" inv estigation of the complaints of

sexual harassment against him that were "consistent with Embry -

Riddle policies and procedures." Respondent conducted its

investigation based upon statements, which were made orally or

via e - mail, from employees of Embry - Rid dle and other

institutions co - located on the TCC campus. While Petitioner

takes issue with the mechanics of the investigation, including

the interference in the investigation by Ms. Wiggins, his

concerns should have been allayed by the results of the inqu iry.

The amply proven fact that the claims of sexual harassment were

not substantiated, and that no action was taken against

Petitioner on the basis of these claims , defeats his assertion

of racial discrimination. Simply stated, Petitioner failed to

prov e that his termination was based in any fashion upon the

allegations of sexual harassment made against him.

122. Additionally, Petitioner has failed to demonstrate

that the investigation conducted by Respondent would have been

handled differently had he been white or a female. Ms. Mobley

testified that the investigative protocol would have been the

same, and no evidence was produced to the contrary. The reason

given by Ms. Mobley for not sharing the alleged victims'

statements with Petitioner prior to h is being interviewed was to

guard against the alleged perpetrator 's fabricating his story

and to protect the anonymity of the alleged victims. This is a

legitimate, non - discriminatory reason for Respondent's actions

in the investigation, and Petitioner's claims that this

demonstrates discrimination against him are no more than his

subjective beliefs.

123. Petitioner asserts that he was humiliated by being

"ordered" by Mr. Borovich to apologize to three of the alleged

victims of the sexual harassment. At the hearing, Mr. Borovich

could not recall ever ordering or even requesting Petitioner to

make these apologies. The evidence is not sufficient to make a

finding on either side of this issue, but since I have concluded

that the alleged sexual harassment w as not the basis for

Petitioner's termination f ro m employment, this point is

insignificant to the ultimate ruling here.

124. Petitioner believes that his entering into the

cellular telephone contract in the name of Respondent should not

have been grounds for his termination. In his words, he may

have erred in judgment, but did not intend to create an

obligation for Embry - Riddle since he was merely signing up for a

promotional offer with Nextel for government employees and

employees of colleges and unive rsities, which he interpreted to

mean public as well as private universities . Petitioner was

well aware that Respondent is a private university, and he

understood the difference between public and private employees.

125. Petitioner's motives in terms of not taking advantage

of the university's name in receiving a promotional deal appear

to be sincere. He sought to take advantage of a promotional

offer made to him by a representative of Nextel. He never

misled the Nextel representative since he allowed her to copy

his identification card from Embry - Riddle, as well as the

university's tax exempt certificate. The fact that he meant no

harm, however, does not allow Petitioner to regain his position

with Respondent. As stated previously, pursuant to Chapma n v.

AI Transport , 229 F.3d at 1031, "[n]o matter how medieval a

firm's practices, no matter how high - handed its decisional

process, no matter how mistaken the firm's managers, the Civil

Rights Act does not interfere. Rather, our inquiry is limited

to whe ther the employer gave an honest explanation of its

behavior." Here, Respondent reviewed the information it

possessed concerning t he Nextel Account and concluded that

Petitioner violated university policy in obtaining the cellular

phone account. Given th e information available to Respondent's

personnel, including the use of the tax exempt certificate, this

was a reasonable conclusion.

126. Petitioner contends that Respondent's decision to

terminate him for entering into the Nextel Account was not

reason able because he did not intend to obligate the university

on the account. Even if Respondent w as mistaken in its

conclusion, this fact does not establish that Petitioner was

discriminated against on the basis of his race. Petitioner

asserts that, had the investigation been performed differently,

a different conclusion might have been reached. To quote

Chapman v. AI Transport again, Respondent "may fire an employee

for a good reason, a bad reason, a reason based on erroneous

facts, or for no reason at all , as long as its action is not for

a discriminatory reason." 229 F.3d at 1031. See also Elrod v

Sears, Roebuck & Co. , 939 F.2d 1466, 1470 (11th Cir. 1991); Nix

v. WLCY Radio - Rahall Communications , 738 F.2d 1181, 1187 (11th

Cir. 1984).

127. Petitioner i s sincere in his belief that Respondent's

actions evidenced discrimination against him because he is an

African - American male. The evidence produced at hearing,

however, failed to support his claims. Respondent provided

legitimate, non - discriminatory rea sons for Petitioner's

termination from his employment. The greater weight of the

evidence indicates that Respondent did not commit an unlawful

employment practice.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOM MENDED that FCHR enter a final order dismissing the

Petition for Relief.

DONE AND ENTER ED this 1 5 th day of June , 2007 , in

Tallahassee, Leon County, Florida.

S

ROBERT S. COHEN

Administrative Law Judge

Division of Administr ative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 5 th day of Jun e , 2007 .

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Michael O. Murray, Esquire

Embry Riddle Aeronautical University

600 South Clyde Morris Boulevar d

Daytona Beach, Florida 32114

Bill Reeves, Esquire

H. Richard Bisbee, P.A.

1882 Capital Circle Northeast, Suite 206

Tallahassee, Florida 32309

Thomas J. Leek, Esquire

Cobb & Cole

Post Office Box 2491

Daytona Beach, Florida 32115 - 2491

Cecil Howard, G eneral Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommen ded Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.