06-003880 Larry Mccrary vs. Reichold, Inc. Status: Closed Recommended Order on Thursday, August 2, 2007.

Summary: The evidence did not show that Respondent discriminated against Petitioner on the basis of his race or age.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LARRY MCCRARY , )

)

Petitioner , )

)

vs. ) Case No. 06 - 3880

)

REICHOLD, INC. , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to Notice, a forma l hearing was conducted in this

case before Diane Cleavinger, a duly - designated Administrative

Law Judge with the Division of Administrative Hearings (DOAH) on

April 5, 2007, in Pensacola, Florida .

APPEARANCES

For Petitioner: R. John Westberry, Esqu ire

1308 Dunmire Street, Suite B

Pensacola, Florida 32504

For Respondent: Phillip J. Strach, Esquire

Ogletree, Deakins, Nash, Smoak

and Stewart, P.C.

2301 Sugar Bush Road, Suite 600

Raleigh, North Carolina 27612

STATEMENT OF THE ISSUE

Whether the Respondent, Reichhold, Inc., has committed an

unlawful employment practice contrary to Section 760.11, Florida

Stat ute s .

PRELIMINARY STATEMENT

On Ma y 4, 2006, Petitioner, Larry McC ra r y filed a charge of

discrimination with the Florida Commission on Human Relations

(FCHR) . The charge alleged that Reichhold discharged Petitioner

based on his race, African - American , and age. FCHR investigated

the charge. O n September 13, 2006, FCHR issued a determination

that no reasonable cause exists to believe that an unlawful

employment practice occurred. Thereafter, Petitioner filed a

Petition for Relief based upon the same allegations as contained

in the original Charge of Discrimination and request ed a formal

administrative hearing. The case was forwarded to the Division

of Administrative Hearings.

At the hearing , Petitioner testified on his own behalf .

Respondent pr esented the testimony of three witnesses and

offered 81 exhibits into evidence .

After the hearing, Petitioner filed a Proposed Recommended

Order on June 1, 200 7 . Likewise, Respondent filed a Proposed

Recommended Order on June 1, 2007.

FINDINGS OF FAC T

1. Respondent owns a chemical plant that produces resins,

copolymers, polymers, alkyds, amines and hardeners, for various

applications in paints and coatings. It is an equal opportunity

employer. Its policy prohibiting discrimination is posted on

the c ompany’s intranet site , to which all employees have access.

2. In order to produce its products, Respondent uses a

variety of chemicals in its production process. The chemicals

used in the plant are volatile substances which, if dealt with

imp roperly, can cause explosions, flashes, or fires, endangering

plant employees and the surrounding community. These chemicals

are expensive, dangerous , and are subject to tight safety and

environmental regulation. In addition, m any of the products are

cre ated under heat an d pressure conditions inside a closed

mixing and/or distilling chamber known as a reactor or kettle .

The reactors are connected in a production line by a system of

pipes. Each reactor has a set of con trols which allow the

reactor to be opened and closed for the addition of chemicals to

th e reactor. Failure to close other reactors in the line can

cause a chemical to be added to the wrong reactor.

3. Respondent has developed a num ber of written procedures

that o perators must follow when mixing chemicals or performing

certain tasks, such as cleaning the reactors products. Written

procedures for operating a reactor are known as Standard

O perating Procedures and are available at all times for

o perators to consult in performing their d uties.

4 . Operators must also follow a recipe for a product known

as a b atch t icket. The batch ticket provides the formula for a

given product, including quantities of specific materials, plus

instructions on when and how to add chemicals to the mix to

produce the desired product.

5. If the responsibl e o perator follows the batch ticket

for a given product, the resulting batch of chemicals should

meet all applicable quality standards for that product . If the

o perator does not follow the batch ticket , then the product will

not meet qua lity standards. A non - conforming product can

sometimes be salvaged by adding additional raw materials to

bring it within product specifications . Such corrections

increase the price of the batch. H owever, it is not always

possible to salvage a non - conforming product. This results in a

loss of raw materials and sometimes causes disruption in product

delivery schedules and significan t clean - up costs for the

Respondent . Therefore, it i s very important for operator s to

follow o perating and batch t icket p rocedures precisely and to

communicate immediately with their supervisors if they notice

any problems with the batches they are working.

6. The production system at the plant is continuously

monitored by a comp uter system that logs actions taken by an

operator for a line of reactors . The system also monitors the

internal environment of the kettle such as temperature and

pressure and sets off alarms when certain processes are not met.

Inventory logs are also ma intained by computer via operator

input. Individual reactors are also monitored by the assigned

operators.

7 . The United Steel Workers Union represents the operators

at the Pensacola plant. The collective bargaining agreement

between the u nion and Reichhold contains a non - discrimination

clause. A ll employees in the unit, including Petitioner, have

the right to file a grievance whenever they believe that the

c ompany has violated a provision of the collective bargaining

agreement. Petitioner has not filed any grievance regarding any

alleged discriminatory action discussed in this order.

8 . The u nion collective bargaining agreement also provides

for the discipline of employees through a p rogressive

d isciplin ary system. The progressive disciplin ary system was

instituted at the Pensacola facility in 2004 after consult ations

with the President of the United S teel W orkers U nion and

eventually placed in the union contract.

9 . The p olicy defines four categories of misconduct:

minor, major, seve re , and termination. The category of “major

misconduct includes “violation of product quality standards,”

“violation of safety procedures,” and “activities that create

product delivery problems.” The category of “severe” misconduct

includes a “ mischarge or mispump” and a “misadjustment.” A

“ mischarge ” occurs when the wrong material is added to a batch.

10 . After imp lementation of the progressive discipline

p olicy, discipline began to be administered more frequently in

the Pensacola plant. The in creased level of discipline affected

everyone regardless of race. The record contains 36 exhibits

reflecting disciplinary actions issued to both white and black

employees during and after 2004.

11 . Petitioner is a black male. Petitioner was hired by

the Respondent at its Pensacola plant, on September 7, 1993.

Petitioner was terminated from his job on April 3, 2006. At the

time of his termination, he was 54 years old.

12 . Petitioner bega n his employment with Respondent as a

laborer. He wor ked as a laborer until January 1994.

13 . In January 1994, Petitioner was promoted to a material

handler position , also known as a “ C ” o perator. The primary

responsibility of a material handler i s to load chemicals into

the reactors. Petitioner held this position for approximately

one year. Eventually, Petitioner was promoted to the posit ion

of an “A” operator and was an “A” operator at the time of his

discharge .

1 4 . “A” o perators are the highest level operators in the

plant. The principa l responsibility of an “ A ” o perator is to

monitor the re actors to which he has been assigned at the

beginning of his shift.

15 . On October 22, 2004, Petitioner was working the night

shift with two other o perator s , Ernest Anderson (African -

American ) and John Monti (White) . Petitioner was assigned to

monitor two reactors during his shift on October 22, 2004.

Monitoring a reactor requires the operator to monitor the

Johnson Yokagawa Control (JYC) system for any alarms or adverse

conditions it detect s in the reactors . All three of the

operators on the night shift were responsible for monitoring the

JYC system.

16 . During Petitioner’s shift on October 22, 2004, the

temperature in one of the tanks tripped the alarm. The alarm

was shut - off withou t any action being taken to address the issue

of the elevated temperature in the tank. Over the next ten

hours, the alarm continued to sound every ten minutes and was

continuously manually silenced without any steps being taken to

resolve the underlying p roblem that was causing the elevated

temperature . When the day shift arrived, an “ A ” o perator

noticed the problem, immediately stopped the reaction and called

an outside contractor to come in and re pair a chiller that had

broken and had caus ed the elevate d temperature in the reactor

tank. Had the overheating tank not been caught by the day shift

employees, it could have exploded, causing major damage to the

plant and the surrounding community.

1 7 . During most of the shift, but not all, Petitioner ha d

been cleaning a filter on one o f his reactors and was away fro m

the room where the JYC system is housed. He, therefore , did not

see or hear the alarm. Petitioner admits that h e d id not

monitor the JYC system for both of his reactors throughout his

shif t as procedures require him to do .

18 . The company investigated the incident. None of the

operators admit ted to hearing or silencing the alarm. Because

all three operators failed to respond to the alarm and because

of the very serious potential con sequences of their failure,

Respondent issued a suspensi on for negligence to all three

o perators on duty during the ni ght shift on October 22, 2004.

19 . There was no evidence that any other employee who

f ailed to report a JYC alarm were not discipli ned. The evidence

did not demonstrate that Respondent’s disciplinary action was

unreasonable or discriminatory.

20 . On March 17, 2005, Petitioner was responsible for

adding VMP solvent to help cool product 16901 - 00, lot #217946 ,

for the second stage reflux distillation . During this process,

t he disc in the reactor ruptured because of a build - up of

pressure and temperature due to moisture entering the reactor.

The JYC log showed that the pressure in the reactor had reached

25.24 psi and the column t emperature had reached 125 C. As a

consequence of the rupture, t he sight glass gasket on the column

was damaged and had to be replaced.

21. As a result, Respondent incurred significant costs in

repairing the blown disc and sight glass. These costs included

the actual cost of the disc and the sight glass gasket. In

addition, the reactor could not be operated during the repairs,

which cost the company production time.

2 2. Respondent also conducted an investigation of this

incident . The investi gation revealed that the decanter was

found to be over half full of resin.

23 . Based upon the investigation , the JYC information and

the nature of the chemical distillation process, Respondent

concluded that Petitioner either: (1) did not control the

cooling solvent f or the second stage of cooling and caus ed a

violent reaction that trigger ed an overflow and pressure build -

up that resu lted in the blown disc; or (2) failed to properly

drain all of the water from the decanter before adding the VMP,

wh ich caused an overflow back into the reactor and the blown

disc. Petitioner thought the water may have been in the solvent

pipes used to pump the chemicals into the reactor.

24 . Under any scenario, Petitioner failed to follow the

o perating p rocedure s for his reactor and he failed to take

appropriate action to prevent the failure of a pressure relief

device.

2 5 . On April 5, 2005, due to the progressive disciplinary

policy and the serious nature of uncontrolled temperature and

pressure build - ups in a reactor, Respondent placed Petitioner on

a three - day suspension for negligence. T he w ritten notification

given the Petitioner stated: “Any recurrence of this or any

other poor work performance will result in termination from

Reichhold, Inc.”

26 . At the hearing, Petitioner wa s unable to specifically

identify any other white or younger employee who blew a rupture

disc and was not disciplined. Although Petitioner claims that

other employees blew rupture discs, his knowledge is based on

hearsay or speculation. The one instance that Petitioner was

aware of occurred a fter Petitioner’s discharge, but prior to the

hearing in this matter . In that instance a rupture disc blew on

a reactor being operated by a white employee. However, the di sc

blew be cause the disc was faulty, not because of operator error.

The disc was not supposed to rupture until ten pounds or more of

pressure occurred in the reactor. According to the computer

log , the disc ruptured prematurely at only 6.7 pounds of

pressure. Bec ause there was clearly no operator error no

discipline was imposed. The incident is not comparable to

Petitioner’s situation and there was no evidence that showed

Respondent’s disciplinary action was unreasonable or

discriminatory.

27 . On July 23, 2 005, Petitioner was working with two “ D ”

o perators, Robert Atkins (African - American) and Ralph Davis

(African - American), all of whom were responsible for a batch of

16827 - 00, lot 215786, a type of chemical that Respondent mixed

for sale to a customer. Dur ing the process, Petitioner added

too much Pentaerythritol Pure Mono to the batch causing a

mischarge of the product.

28. Later, Petitioner sampled the product and found that

it was running high in acid value and was out - of - specification .

He added g lycerin to the reactor to try to bring the product

back into specification. Petitioner’s action, however, was not

sufficient to correct the problem and the product remained out -

of - specificatio n. In the end, the product could not be salvaged

and two shipm ents to the customer were missed.

29 . Respondent conducted an investigation into this

incident and concluded that Petitioner was responsible for the

mischarge and had failed to follow the batch ticket recipe.

30. Petitioner admitted that he was responsible for this

mistake.

3 1 . Even though Petitioner could have been discharged

under the progressive disciplinary policy, he was not. By

disciplinary action issued on August 3, 2005, the c ompany issued

Petitioner a three - day suspension for neg ligence. The written

notification received by Petitioner again stated: “any

recurrence of this or any other poor work performance will

result in termination from Reichhold, Inc.”

32. The two “ D ” Operators , who were substantially younger

than Peti tioner, received final written warnings for th e same

incident. Final written warnings are lower levels of discipline

under the progressive disciplinary policy. They received less

discipline because it is ultimately the " A " operator’s duty to

ensure the c orrect material is charged into the reactor.

33 . There was no evidence of any other employees wh o

committed mischarge s and who were not disciplined. On the other

hand, there was evidence that Respondent has disciplined white

operators for similar mi stakes. For example, o n January 25,

2006, Doyle Caudell was responsible fo r a mischarge to r eactor

number two . Like P etitioner, h e was issued a three - day

suspension for the mischarge. There was no competent evidence

that the discipline imposed on Petiti oner was unreasonable ,

discriminatory or pretextual.

34 . On June 25, 2005, Petitioner was responsible for batch

16070 - 00, lot 239480. During his shift, Petitioner mistakenly

entered 1,919 pounds of c astor o il, code 4016 to the c ompany’s

inventory tr acking system known as " SAP . " The amount that

should have been entered was 2,919 pounds of c astor o il that he

actually u sed in the production process. One of the

responsibilities of an “A” operator is to accurately enter all

raw materials into the c ompan y’s computer system to ensure other

Reichhold employees order the necessary supplies for upcoming

production needs. B ecause of Petitioner’s error, the c ompany’s

inventory showed that it had 1,000 more pounds of c astor o il

than it actually possessed.

35 . Petitioner’s error was not discovered until August 8,

2005, when Respondent planned to mix another batch of 16070 - 00 .

The company did not have enough c astor o il on hand to mix th e

batch. As a result, Respondent was forced to delay production

of 1607 0 - 00, until enough c astor o il could be delivered to the

plant .

36 . On August 18, 2005, Petitioner was not discharged, but

issued a final written warning for negligence. The disciplinary

notice again stated: “any recurrence of this or any other poor

work performance will result in termination from Reichhold,

Inc.”

37 . The evidence showed that Respondent has disciplined a

white o perator for the same type of mistake. Jimmy Dickens

received a one - day suspension for transposing numbers on a

calcul ation which shorted inventory and created an off

specification batch. There was no evidence that Respondent’s

disciplinary action was unreasonable, discriminatory or

pretextual.

38 . On March 17, 2006, Petitioner was responsible for the

production of batch 16827 - 00, lot 309864 in Reactor 7(R7 ).

During the processing and sampling of the product, Petitioner

found that it was running high in acid value. He added two 700

pound hits of glycerin to the reactor to try to bring the

product into specificatio n. The product, however, could not be

saved and was placed into st orage until the c ompany could

prepare a plan to try to salvage the materials.

39 . While Petitioner was working on his batch of 16827 - 00

in R7, a batch of 16406, lot 3097 85 was process ing in Reactor 1

(R1), a different reactor on the same line as R7 . During the

sampling of R1 batch, it was observed to be running low on

viscosity and acid value. As a result, 2,421 pounds of Phthalic

Anhydride was added to R1 to bring batch 16406 back i nto

specification.

40 . Respondent investigated the problem. The computer log

showed that Petitioner had logged that he adde d 2,393 pounds of

glycerin to R7 . However, Respondent tested the Hydroxyl value s

of both batches (16827 - 00 and 16406) which d id not corroborate

the addition of the glycerin to R7 . T he p rocess i nformation

(PI) data showed a drop of 17 degrees in R1 during th e time the

glycerin was supposed to be cooling R7, showing that the

glycerin had been charged or fed into the wrong reactor on the

line .

41 . The only way the glycerin was able to enter R1 was

because Petitioner failed to close the glycerin valve on R1

prior to attempting to pump the glycerin into R7. Thus the

glycerin flowed into R1 instead of R7.

42. Within the 1 8 - month period prior to his discharge,

Petitioner had engaged in conduct prompting three suspensions

and a final written warning. Based upon Petitioner’s mischarge

on March 17, 2006, and his prior record of negligence in

performing his duties, Re spondent terminated Petitioner o n

March 30, 2006 . Ther e was no evidence of any other employees

with five similar disciplinary actions with in an 18 - month period

that were not discharged .

43. Petitioner was replaced by Phillip Nared ( B lack).

Mr. Nared volunta rily resigned after 120 days and was replaced

by Jason McGruder, also B lack.

44 . Petitioner testified that Terry King caused a spill

from a monomer tank and was not disciplined. Terry King is a

W hite A o perator at the Pensacola plant.

45 . Howe ver, Petitioner does not know when the alleged

spill occurred, and did not witness Terry King engage in any

conduct that caused the spill. Rather, Petitioner walked up on

the spill after it had already occurred. All of Petitioner’s

knowledge regarding th is incident is based on either speculation

or hearsay. Petitioner did not present any other evidence

corroborating his allegations regarding Terry King. Therefore,

this evidence is inadmissible and insufficient as comparator

evidence.

46 . Moreover , Petitioner introduced no other competent

evidence about Mr. King’s disciplinary history or other alleged

incidents he was involved in for which he received no

discipline. Therefore, no meaningful comparison of the

disciplinary histo ries of Mr. King and P etitioner can be made.

47 . Petitioner also testified about David Blair. David

Blair is a white A o perator at the Pensacola plant. Petitioner

contends that Mr. Blair also caused a spill from the monomer

tank. However, the spill was caused by faulty equipment.

48 . As with Mr. King, Petitioner did not see Mr. Blair

engage in any conduct that caused the spill . Rather, he saw the

spill after it had already happened and was unaware of its

cause . Therefore, Petitioner’s evidence of Mr. Blair’s all eged

involvement in the spill is not based on his own personal

knowledge but rather is speculation.

49 . Again , Petitioner introduced no evidence about

Mr. Blair’s disciplinary history or other alleged incidents he

was involved in for which he receive d no discipline. Therefore,

no meaningful comparison of the disciplinary histories of

Mr. Blair and Petitioner can be made .

50 . Doyle Caudell is a nother white A o perator at the

Pensacola plant that Petitioner felt received more favorable

disciplinar y treatment than he did . Petitioner contends that

Mr. Caudell was not disciplined for (1) and alleged mischarge to

the monomer tank; and (2) a flash fire incident in May 2005.

51 . Petitioner learned abou t the alleged mischarge to the

monomer tank ba sed on a statement from Carl Martion who was

repeating an alleged statement from Doyle Caudell. Petitioner

introduced no other evidence regarding this alleged mischarge.

Consequently, it is based on uncorrobor ated hearsay and is not

as comparator evidenc e.

52 . Similarly, Petitioner was not working when the flash

fire incident occurred , and again, his knowledge of the incident

is based on uncorroborated hearsay.

53 . Re spondent investigated the flash fire incident. The

incident occurred when a reaction inside a reactor caused the

reactor to “flash” while two operators , one of whom was Doyle

Caudell, were in the process of charging (loading) the reactor.

The force of the flash knocked one of the operators backwards,

causing injury to the operato r.

54 . Respondent concluded that the flash fire was not

caused by o perator error but rather by a faulty nitrogen valve

and faulty procedures regarding when to apply hea t to the

reactor. The company changed its procedures after the incident

to specif y that heat should not be applied to the reactor during

the charging proces s. As a result of the investigation, the

o perator s w ere not disciplined for the incident. Respondent

concluded that Mr. Caudell did not violate any op erating

procedures and was no t responsible for the flash fire.

55 . Petitioner introduced no competent evidence to rebut

the Company’s conclusion that the flash fire was caused by

faulty equipment and procedures. Petitioner testified that he

was trained by Respondent that heat s hould never be applied to a

reactor while loading chemicals because the pressure created by

the added heat could cause the chemical being added to “blow

back” out of the reactor. However, the evidence showed that

this “Procedure” was not consistent or in place for all types of

batches made by the Pensacola plant . Such procedures varied

depending on the product being made. Therefore Petitioner’s

testimony is insufficient to overcome the data records

maintained by the Respondent for the batch that caused t he flash

fire.

56 . Moreover , Mr. Caudell’s disciplinary history was not

comparable to Petitioner’s record. In the same 18 - month period,

Mr. Caudell only received two disciplinary actions. Thus, even

if Mr. Caudell had been disciplined for the flash fire incident,

his disciplinary record still would not have been as extensive

as Petitioner’s record.

57 . Petitioner also testified that i n June 2006, Jimmy

Dickens (white) falsified c ompany records. Again Petitioner was

not present during the time of the alleged falsification.

58 . The evidence showed that Mike Weaver , Mr. Dickens

supervisor, suspected Jimmy Dickens of falsifying company

records. The records did not affect safety or production

issues. Mr. Weaver investigated but did not fi nd sufficient

evidence of falsification and did not feel comfortable with

drawing a formal conclusion that Mr. Dickens had, i n fact,

falsified records. Therefore, Mr. W eaver verbally counseled

Mr. Dickens and documented the incident in Mr. Weaver’s own

fi les.

59. There was no evidence that Mr. Weaver’s actions were

unreasonable or that Mr. Dickens alleged falsification w as

similar to Petitioner’s actions . Likewise, this one incident

does not support a finding of preferential treatment for white

empl oyees over black employees.

60 . Lastly, i n 2006, Re spondent terminated Jimmy Dortch, a

white manager who was over 40 for poor performance. Petitioner

offered no competent evidence on the issue of age discrimination

and the evidence does not demonstr ate that Petitioner was

discriminated against or that Respondent’s disciplinary actions

were a pretext to cover up discrimination. Therefore the

Petition For relief should be dismissed.

CONCLUSIONS OF LAW

61 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 , 120.57(1) , and 760.11, Fla. Stat.

62 . R espondent is an employer as defined by Section

760.02(7), Florida Statutes.

63 . It is an unlawful employment pra ctice for an employer

to discharge or otherwise to discriminate against any individual

with respect to compensation, terms, conditions, or privileges

of employment, because of such individual’s race.

§ 760.10(1)(a), Fla. Stat.

6 4 . In cases of discr imination, Petitioner h as the burden

of proving by a preponderance of the evidence that Respondent

committed an unlawful employment practice. Fla. Dept . of

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

1991).

65 . The provisions of Chapter 760, Florida Statutes, are

analogous to those of Title VII of the Civil Rights Act of 1964,

42 U.S.C. Section 2000e, et . s eq . Cases interpreting Title VII

are, therefore, applicable to Chapter 760, Florida Statutes.

See School Bd. v. Hargis , 400 So. 2d 103, 108 and n.2 (Fla. 1st

DCA 1981) ; and Bryant 586 So. 2d at 1209; Scelta v. Delicatessen

Support Servs. , 146 F. Supp. 2d 1255, 1261 and n.5 (M.D. Fla .

2001) .

66 . In Texas Department of Community Affairs v. Burdine ,

450 U.S. 248 (1981), an d McDonnell Douglas Corp. v. Green , 411

U.S. 792 (1973), the United States Supreme Court set for th the

requirements for proving a prima facie case of discrimination,

which can vary depending on the type of discrimination case.

McDonnell Douglas Corp. v. G reen , 411 U.S. at 802 n. 13;

Schwartz v. State of Florida , 494 F. Supp. 574, 583 (N.D. Fla.

1980). McDonnell Douglas supra provides:

That a Title VII plaintiff carries the

initial burden of showing actions taken by

the employer from which one can infer, i f

such actions remain unexplained, that it is

more likely than not that such actions were

“based on a discriminatory criterion illegal

under the (Civil Rights) Act (of 1964.”

Teamsters v. United States , 431 U.S. 324,

358 (1977).

67 . If the p laintiff proves a prima facie case of

discrimination, the burden shifts to the employer “to articulate

some legitimate nondiscriminatory reason” for the adverse

employment action. McDonnell Douglas Corp. v. Green , 411 U.S.

at 802.

68 . In St. Mary’s Honor Center v. Hicks , 509 U.S. 502, 113

S. Ct. 2742,2747 (1993), the Court held that once the employer

succeeds in carrying his burden of producing a nondiscriminatory

reason for the challenged action, the employee must sho w that

the employer’s reason is pre textual. The final and ultimate

burden of persuading the trier of fact, by a preponderance of

the evidence, remains at all times , with the employee.

St. Mary’s Honor Center v. Hicks , 113 S. Ct. at 2747.

69 . The employee’s ultimate burden of per suasion may be

satisfied by direct evidence showing that a discriminatory

reason, more likely than not, motivated the decision involved,

or by indirect evidence showing that the proffered reasons of

the employer are not worthy o f belief. Department of

Cor rections v. Chandler , 528 So. 2d 1183, 1186 (Fla. 1st DCA

1991). In Reeves v. Sanderson Plumbing Products, Inc. , 530 U.S.

133 (2000), the U.S. Supreme Court resolved a conflict among the

c ircuits about the standard for establishing pretext fueled by

the c ourt’s earlier decision in St. Mary’s Honor Center v.

Hicks , 509 U. S. 133 (1993), and made it clear that “pre - text

plus” was not the standard to be used. Reeves established the

pretextual standard as a permissive, case - by - case approach in “a

plaintiff’s prima facie case, combined with sufficient evidence

to find that the employer’s asserted justification is false and

. . . permit the trier of fact to conclude that the emp loyer

unlawfully discriminated.” Id. at 148. Justice O’Connor’s

opinion for a unani mous court carefully explained why evidence

of pretext with the prima facie case may be sufficient to find

discrimination:

In appropriate circumstances, the trier of

fact can reasonably infer from the falsity

of the explanation that the employer is

dissemb ling to cover up a discriminatory

purpose. . . Moreover, once the employer’s

justification has been eliminated,

discrimination may well be the most likely

explanation, especially since the employer

is in the best position to put forth the

actual reasons fo r the decision . . .

Reeves , 530 U. S. at 147. See also Dept . of Corrections v.

Chandler , 582 So. 2d 1186 (Fla. 1st D CA 1991) and C hapman ,

s upra .

70. On the other hand , “[a] plaintiff is not allowed to

recast an employer’s proffered nondiscrimina tory reason or

substitute [his] business judgment for that of the employer.”

Chapman , 229 F.3d at 1030. Rather, “an employee must meet that

reason head on and rebut it, and the employee cannot succeed by

si mply quarreling with the wisdom of that reason.” Id.

71 . To establish a prima facie case of discrimination

based on disparate treatment, a complainant m ust show the

following: (a) c omplainant belon gs to a protected class; (b)

c omplainant was subjected to an ad verse employment action; (c)

c ompl ainant was qualified for the position; and (d) the employer

treated similarly situated employees outside the protected class

more favorably. Holifield v. Reno , 115 F.3d 1555, 1562 (11th

Cir. 1997); Jones v. Gerwens , 874 F.2d 1534, 1539 - 42 (11th Cir.

1989) .

7 2. In this case , Petitioner has satisfied the first three

elements of the prima facie case. Petitioner is black and over

40 - years - of - age, was terminated from his posit ion, and was

qualified for his position.

73 . Petitioner , however , has not satisfied the fourth

element of the prima facie case.

74 . It is established law under Title VII that “to make a

comparison of the plaintiff’s treatment to that of non - minority

employees, the plaintiff must show that he and the employees are

similarl y situated in all relevant respects.” Holifield , 115

F.3d at 1562. In this case , Petitioner has not identified any

non - minority or younger employee who is similarly situated in

all relevant respects. The evidence showed both white and black

employees we re subject to discipline. Undoubtedly, Petitioner

truly believes that black employees, including himself, were

reported to the management more often for discipline by the

shift supervisors. Such beliefs , even though sincere, can not

form the basis for a f inding of discrimination. Such findings

must be based on competent evidence. Here , there was no

evidence that such non - reporting was occurring. The instances

that were testified about were either based on hearsay and not

corroborated by any evidence, so lacking in facts so as to not

be identifiable or were properly reported to management.

75 . Moreover, t he other employees identified by Petitioner

as receiving more favorable treatment were not similarly

situated employees who can be compared to the Petitioner. See

Jian - Jian Ren v. Univ. of Cent. Flas. , 390 F. Supp. 2d 1223,

1230 - 31 (M.D. Fla. 2005), aff’d, 179 Fed. Appx. 680, 2006 U.S.

App. LEXIS 11451 (11th Cir. 2006). None of the individual’s

referenced in this order had disciplinary record s as extensive

as Petitioner’s record of five incidents in an 18 - month period.

76 . Petitioner has failed to establish a prima facie case

of race or age discrimination because he has failed to prove by

a preponderance of the evidence that similarly situ ated, non -

minority or younger employees were treated more favorably after

engaging in similar conduct.

77 . Even assuming, arguendo , Petit ioner establish ed a

prima facie c ase of discrimination, Respondent has articulated a

legitimate, non - pretextual r eason for his termination. The

string of errors and mistakes made by Petitioner while operating

his assigned reactors were generally serious. The discipline

imposed by Respondent was legitimate and reasonable. Petitioner

cannot prevail simply by showing that Respondent incorrectly

concluded that he violated operating p rocedures. So long as

Respondent honestly believed that Petitioner caused these

incidents, no pretext is shown. Forrester v. Rawland - Bog Corp. ,

453 F.3d 416, 418 (7th Cir. 2006) (the ques tion is never whether

the employer was mistaken, cruel, unethical, out of his head, or

downright irrational in taking the action for the stated reason,

but simply whether the stated reason was his reason: not a good

reason, but the true reason); Jones , 87 4 F.2d 1534, 1540 (11th

Cir. 1989) (“[t]he law is clear that, even, if a Title VII

claimant did not commit the violation with which he is charged,

an employer successfully rebuts any prima facie case of

disparate treatment by showing that it honestly belie ved the

employee committed the violation); Damon v. Fleming

Supermarkets, Inc. , 196 F.3d 1354, 1363 n.3 (11th Cir. 1999)

(“[a]n employer who fires an employee under the

mistaken but honest impression that the employee violated a work

rule is not liable fo r discriminatory conduct”) (citation and

quotation omitted), cert. denied , 529 U.S. 1109, 120 S. Ct.

1962, 146 L. Ed. 2d 793 (2000); Herron v. DaimlerChrysler Corp.,

388 F.3d 293, 299 (7th Cir. 2004) (the pretext inquiry focuses

on whether employer’s expla nation was a “a lie rather than an

oddity or an error”).

78. Finally, the people who sequentially replaced

Petitioner were both black, indicating that racial

discrimination was not the motive for terminating Petitioner.

79 . In sum mary , Petition er offered no competent evidence

on the issue of age discrimination . T he evidence does not

demonstrate that Petitioner was discriminated against on the

basis of his race or that Respondent’s disciplinary actions were

a pretext to cover up such discriminat ion. Therefore the

Petition For R elief should 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 enter a

final order dismissing the Petition for Relief in its entirety.

DONE AND ENTERED this 2nd day of August , 2007 , in

Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Buildin g

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 2nd day of August , 2007 .

COPIES FURNISHED :

R. John Westberry, Esquire

1308 Dunmire Street, Suite B

Pensacola, Florida 32504

Gretchen W. Ewalt, Esquire

Ogletre, Deakins, Nash, Smoke

and Stewart, P.C.

2301 Sugar Bush Road, Suite 600

Raleigh, North Carolina 27612

Cecil Howard, General Counsel

Flor ida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT E XCEPTIONS

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.