07-001527 Daryl Royster vs. Pate Stevedore Co, Inc. Status: Closed Recommended Order on Wednesday, March 19, 2008.

Summary: Petitioner did not prove disability and did not prove a prima facie case for disability discrimination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DARYL ROYSTER, )

)

Petitioner, )

)

vs. ) Case No. 07-1527

)

PATE STEVEDORE CO., INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice this cause came on for formal hearing

before P. Michael Ruff duly-designated Administrative Law Judge

of the Division of Administrative Hearings in Pensacola, Florida,

on November 8, 2007. The appearances were as follows:

APPEARANCES

For Petitioner: Darryl Royster, pro se

4406 Chantilley Way

Pensacola, Florida 32505

For Respondent: Amy M. Klotz, Esquire

Moore, Hill & Westmoreland, P.A.

SunTrust Tower, Ninth Floor

220 West Garden Street

Pensacola, Florida 32502-5702

STATEMENT OF THE ISSUES :

The issues to be resolved in this proceeding concern whether

the Petitioner, Darryl Royster, was subjected to employment

discrimination, by allegedly being terminated on the basis of his

race or disability/handicap, by denial of a promotion and

training, being subjected to discriminatory terms and conditions

of employment, and by retaliation.

P RELIMINARY STATEMENT

This cause arose when the Petitioner, Darryl Royster, filed

a charge concerning employment discrimination with the Florida

Commission on Human Relations (Commission) on August 31, 2006.

The Commission entered a Determination of Reasonable Cause on the

issue raised concerning retaliation and "No Cause" on the issues

of race discrimination and disability discrimination. The

Petitioner filed a Petition for Relief which was duly transmitted

to the Division of Administrative Hearings and ultimately to the

undersigned Administrative Law Judge.

The case was noticed for hearing and the hearing was

conducted on the above date. The Petitioner presented the

testimony of three witnesses, including his own testimony.

Additionally, the Petitioner's Exhibits A through G were admitted

into evidence. The Respondent presented the testimony of three

witnesses and six exhibits, all of which were admitted into

evidence.

Upon concluding the proceeding, the parties were given the

opportunity to submit proposed recommended orders after the

filing of a transcript. The Proposed Recommended Orders have

been considered in the rendition of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner was employed by Pate Steveodore Company,

Inc., (Pate) at times pertinent hereto. The Petitioner is an

African-American male.

2. Pate is a licensed Stevodore Company operating at the

Port of Pensacola. Pate typically handles loading or unloading

of various types of cargo, including soy beans, frozen food

products, and other materials from railroad cars located in the

port or onto ships berthed at the port. Pate has a staff of six

permanent employees, including a president, vice-president,

office manager, accounting clerk, and pier superintendent, as

well as a part-time payroll clerk. Depending on the amount of

work available at any particular time, Pate employs from 0 to 60

longshoremen, the majority of whom are African-American.

3. The Petitioner was first employed by Pate in September

2005, as a longshoreman, responsible for loading and unloading

box cars. Scott Miller is the former supervisor of the

Petitioner. In his testimony he established that, typically, two

teams of three longshoremen each would be assigned to load or

unload each box car. The members of such teams work together to

load or unload cargo from pallets, typically completing the

unloading of two cars in a morning and two cars in the afternoon.

The employees typically take breaks from the work in between

pallets or box cars, but are allowed to take breaks whenever they

feel the need. They arrange the schedule for taking breaks among

themselves and without direction from supervisors.

4. The Petitioner was working on August 2, 2006. On that

date he contends that he suffered a back injury while lifting a

110 pound sack of beans. He states that he attempted to inform

his supervisor, Mr. Miller, of the alleged injury, but was

instructed to either return to work that day, or to leave if he

was unable to do so. Mr. Miller was apparently frustrated with

the Petitioner on that day because the Petitioner had left the

work area on two occasions that morning for prolonged periods of

time. The first time was when he went to the main office of Pate

to discuss the fact that his child support payments were being

withheld from his checks and to demand that the money be returned

to him. The Petitioner wanted Pate to reimburse him for the

withheld amounts and Pate explained to the Petitioner that they

were legally required to make the deductions from his payroll.

The second time that day he went to the main office to inform Mr.

Pate that he had a job interview with an insurance company and

would not be returning to work that afternoon after lunch. The

Petitioner told Mr. Pate that he had already informed Mr. Miller

that he would not be working that afternoon. Actually, he had

never told Mr. Miller he was going to be absent in the afternoon.

Because Mr. Miller did not have a replacement for the unexpected

absence of the Petitioner, Mr. Miller had to perform the

Petitioner's job loading and unloading cargo, during both the

morning and afternoon absences. Mr. Miller told Mr. Pate of his

dissatisfaction with the unexcused absences and having to perform

the Petitioner's work himself.

5. Pate did not hear from the Petitioner again until August

8, 2006, when Michael Pate, the company president, and Rosalee

Garrett, the office manager, received a fax from the Petitioner

requesting that they pass along certain information to the

company's workers' compensation carrier, so that the Petitioner

could be paid for the time he had been off work. The Petitioner

informed Pate that he would be retuning to work the following

week and attached a note from a medical clinic asking that he be

excused from work until August 14, 2006.

6. Ms. Garrett responded to the request and forwarded the

requested information to the company's workers' compensation

carrier. She also requested that the Petitioner report to the

office so that he could complete an accident report form so that

his workers' compensation claim could be properly processed.

Pate's workers' compensation carrier's coverage policy and the

workers' compensation law requires that an accident report be

submitted by the claimant. 1/

7. On August 11, 2006, the Petitioner wrote to Mr. Pate and

Ms. Garrett informing them that he would not be able to return to

work until October 20, 2006, because he was still experiencing

back pain and rectal bleeding. The Petitioner wanted to wait

until he could be seen by a doctor so that he could determine the

source of those two problems. The Petitioner informed Mr. Pate

and Ms. Garrett that he could perform light-duty work that did

not involve bending or heavy lifting, such as running errands for

the company, supervising other employees, and that he could also

do work on the computer.

8. Thereafter, on August 28, 2006, the Petitioner came to

Pate's main office, again requesting light-duty work. There was

no such work available, however, and Mr. Pate so informed the

Petitioner. At that point the Petitioner became very upset and

belligerent and began cursing Mr. Pate. Mr. Pate regarded that

as threatening behavior and insubordination and was unwilling to

tolerate such conduct. Mr. Pate escorted the Petitioner out of

the office to converse with him outside, away from the other

employees, because of his behavior, but was unsuccessful and

thereupon terminated him. He told him to leave the premises, but

ultimately had to call the port security office to have the port

security personnel escort the Petitioner off the premises and

outside the secure area of the Port of Pensacola. The testimony

of Ms. Garrett corroborates that of Mr. Pate in establishing

that the Petitioner was terminated because he became threatening,

argumentative, and insubordinate toward Mr. Pate.

9. In terms of his claim regarding racial discrimination,

based upon allegedly different terms and conditions of employment

imposed upon him, the Petitioner claims that he and other

African-American employees were not allowed to take breaks or to

train for and become forklift operators. The testimony of three

witnesses, however, established that African-American employees

are granted the same breaks as white employees and are otherwise

treated the same with respect to the terms and conditions of

their employment. The Petitioner was allowed to, and did take

breaks during his employment with Pate. Moreover, contrary to

the Petitioner's position, it was established, by persuasive,

credible testimony, that in terms of the alleged issue concerning

African-American employees not being allowed to become forklift

drivers, that Pate conducted training so that such employees

could become forklift drivers. Some employees took advantage of

that training and became forklift drivers. In fact, the majority

of Pate's forklift drivers are African-American.

10. The Petitioner also contended that he was discriminated

against in terms of his race for failure of Pate to promote or

train him or other African-American employees. According to the

preponderant, persuasive testimony and evidence presented at the

hearing, however, there was no open position available at Pate,

during the Petitioner's employment time there, to which he could

have been promoted, nor had he ever applied for a promotion

position. There was no denial of training opportunities because

there was no training offered to any employee during the period

of time of the Petitioner's employment with Pate and there was no

evidence to show that the Petitioner ever requested training for

any position at Pate. As found above, before the Petitioner

became employed there, Pate did offer training for forklift

drivers and trained some employees as forklift drivers, the

majority of whom were African-American.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2007).

12. In discrimination cases predicated on circumstantial

evidence, as this one is, since no evidence was offered of

direct discrimination by the employer, the standard of proof

established by the United States Supreme Court in the decision

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

applies. This standard requires that a Petitioner initially

establish a prima facie case of discrimination. If a prima

facie case is established, then the burden of going forward with

evidence to meet that prima facie case shifts to the Respondent

employer to articulate some evidence of a legitimate, non-

discriminatory reason for the employment action taken.

McDonnell-Douglas Corp. , supra at 802-803; Combs v. Plantation

Patterns , 106 F.3d 1519, 1528 (11th Cir. 1997). The burden on

an employer or Respondent is "exceedingly light" in this regard.

The Respondent's burden would be satisfied if it produced

evidence which, if taken as true, would permit a conclusion that

there was a non-discriminatory reason for the adverse action.

See Meeks v. Computer Associates International , 15 F.3d 1013,

1019 (11th Cir. 1994); St. Mary's Honor Center v. Hicks , 509

U.S. 502 (1993). The Respondent need not persuade the court

that it was actually motivated by the proffered reasons for the

employment action taken, it is sufficient if the evidence raises

a genuine issue of fact as to whether the action was based upon

discriminatory motives. See Chapman v. Aasport , 229 F.3d

1012, 1024 (11th Cir. 2000); Combs supra at 1528. If a

Respondent satisfies its burden of going forward with evidence

of a non-discriminatory reason for the termination, it then

becomes incumbent upon the Petitioner to prove by preponderant

evidence that the reasons offered by the Respondent were

pretextual in nature. Silvera v. Orange County School Board ,

244 F.3d 1253, 1258 (11th Cir. 2001).

13. In order to establish a prima facie case of racial

discrimination the Petitioner must establish (1) that he is a

member of a protected class (African-American); (2) that he

suffered an adverse employment action; (3) that his employer

treated similarly situated employees of other races more

favorably than the Petitioner; and (4) that he was qualified to

do his job. See Hollifield v. Reno , 115 F.3d 1555, 1562 (11th

Cir. 1997).

14. In terms of establishing a prima facie case of racial

discrimination, the Petitioner established that he belonged to a

protected class and that he was subjected to an adverse

employment action. He did not, however, establish that the

employer treated similarly situated employees of other races

more favorably than it did the Petitioner. This is because

there were no employees, for instance white employees, who were

shown to be similarly situated. There was no evidence that any

other employee had engaged in the belligerent, threatening, and

insubordinate conduct, much less one who had done so and who was

subjected to a lesser discipline or no discipline. The

Petitioner's evidence only showed that the Petitioner had

engaged in such conduct which resulted in his termination.

15. Arguably, the Petitioner may have shown that he was

qualified to do his job because he was performing as a

longshoreman, except for the fact that he had left his job on

several occasions on the date referenced in Mr. Miller's

testimony. This was unsatisfactory performance to the extent

that Mr. Miller, the supervisor, had to perform the Petitioner's

work for him when he was absent on at least two occasions that

date, without authorization from his supervisor.

16. In any event, the prima facie case of racial

discrimination was not established in terms of the termination,

or in terms of the alleged imposition of different terms and

conditions of employment applicable to African-Americans and the

alleged failure to provide training and promotion. In fact, as

found above, there were no training opportunities available for

any employees during the period the Petitioner was working for

Pate. Pate, however, had provided training for forklift drivers

in the past, and a number of its employees had taken advantage of

that training and secured positions as forklift drivers. Most of

those workers were African-American, and the majority of Pate's

forklift drivers at the time of the hearing were African-

American.

17. Moreover, the unrefuted, persuasive evidence shows that

all employees, African-American and otherwise, are permitted to

take breaks when needed throughout the day, and are encouraged to

do so. The Petitioner was allowed to and did in fact take breaks

during his employment with Pate as well. Thus the Petitioner's

claim that he was subjected to different terms and conditions of

employment because of his race or was terminated because of his

race must fail for lack of establishing a prima facie case.

18. Assuming arguendo that a prima facie case was

established on the question of racial discrimination, the

Respondent employer must rebut the presumption of discrimination

by articulating a legitimate, non-discriminatory reason for the

employment action, as concluded above. In this regard, it is

well-settled that "an employer may fire an employee for a good

reason, a bad reason, a reason based on erroneous facts, or for

not reason at all, as long as its action is not for a

discriminatory reason." See Truss v. Harvey , 179 F. App. 583,

587 (11th Cir. 2006). Nix v. W.L.C.Y. Radio/Rahall

Communications , 738 F.2d 1181, 1187 (11th Cir. 1984). "In other

words, '[i]f the proffered reason is one that might motivate a

reasonable employer, a plaintiff cannot recast the reason but

must meet it head on and rebut it[;] . . . [q]uarrelling with

that reason is not sufficient.'" Truss supra . (Quoting Wilson

v. B/E Aerospace, Inc. , 376 F.3d 1079, 1088 (11th Cir. 2004)).

19. The Petitioner testified that he was terminated because

the Respondent did not want to place him on light duty work with

regard to his workers' compensation claim and offered no other

evidence concerning any reason for his termination. He never

testified or adduced evidence that he was terminated because of

his race. He in other words failed to establish a prima facie

case of discharge based upon racial discrimination. Even had he

done so, the claim would fail because Mr. Pate, in his testimony,

which is deemed persuasive and credible, established that he

terminated the Petitioner because he became arugmentative and

belligerent towards him. This testimony was corroborated by Ms.

Garrett's testimony concerning the reason for termination. The

Respondent thus articulated a legitimate, non-discriminatory

reason for the Petitioner's termination. The Petitioner failed

to offer testimony to show that articulated, evidential reason

was pretextual and was really based upon discriminatory motives.

Whether one might agree with the reason or not, it was not shown

that the proffered reason by Pate for the termination was not

one that might motivate a reasonable employer in that situation,

under the above-cited decisional authority. It does not matter

that the Petitioner might quarrel with that reason and have a

different opinion, such is not sufficient and will not rebut the

reason shown by the employer. Thus the Petitioner's claim for

discriminatory discharge based upon his race has not been

proven.

20. The Petitioner's discrimination claim based upon

alleged different terms and conditions of employment applicable

to him must fail also, for the reasons concluded above. The

Petitioner offered no evidence at hearing to establish such

discriminatory terms and conditions of employment. The

Respondent established that all employees were granted the same

opportunity for breaks from work, whether they were white or

black, and were otherwise treated the same with respect to the

terms and conditions of employment. Pate established that it

had trained a number of its longshoreman/laborer employees to

become forklift drivers in the past and a fair number had done

so. The majority of those forklift drivers are African-

American. There were simply no such training or promotion

opportunities available at the time the Petitioner was employed

at Pate for any employees, not just the Petitioner and not just

the Petitioner's fellow protected-class members. There has

simply been no persuasive evidence to show that the Petitioner

was subjected to different terms and conditions of employment

because of his race and that claim must therefore be dismissed.

21. In order to prevail on a claim for failure to promote

or train, the Petitioner must prove that he is a member of a

protected class; that he was qualified for and applied for a

promotion position; that he was rejected from that position and

that other less qualified or equally qualified employees who

were not members of his protected class were promoted or

received the training. See Joseph v. Publix Supermarket, Inc. ,

151 F. App. 760, 765-66 (11th Cir. 2005); Celestine v. Petroleos

De Venezuella Sa , 266 F.3d 343, 354-55 (5th Cir. 2001) (noting

that the elements of a failure to promote and failure to train

claim are the same). The Petitioner proved in this regard that

he is a member of the protected class, as found above. He did

not, however, prove any of the remaining elements of a claim for

failure to promote or train. According to the persuasive,

preponderant evidence presented there was no position available

at Pate during the Petitioner's employment to which anyone,

regardless of race, could have been promoted, much less for

which the Petitioner actually applied. Likewise, there was no

training being offered to any employees, regardless of race,

during his employment period at Pate and no evidence that he had

requested any training for any position at Pate. Therefore, his

claims for failure to promote and train must be dismissed for

lack of proof as well.

22. Concerning the retaliation claim, the Petitioner must

show that he was engaged in a statutorily protected activity or

expression; that the Respondent employer took an adverse

employment action against him; and that a causal connection or

link exists between the protected activity or expression and the

adverse employment action taken. See Maniccia v. Brown , 171

F.3d 1364, 1369 (11th Cir. 1999); Little v. United Technologies ,

103 F.3d 956, 959 (11th Cir. 1997); Goldsmith v. City of Atmore ,

996 F.2d 1155, 1163 (11th Cir. 1993). After a prima facie case

concerning retaliation is shown, the burden will shift to the

employer to proffer a legitimate, non-discriminatory reason for

the adverse employment action. If the employer offers such a

reason the Petitioner must then demonstrate that the proffered

non-discriminatory reason is pretextual and a ruse designed to

mask retaliation. ( Farley v. Nationwide Mutual Insurance

Company , 197 F.3d 1322, 1336 (11th Cir. 1999).

23. In the evidence offered by the Petitioner, he only

implied that he felt he was retaliated against for filing his

workers' compensation claim. He made no mention in his

testimony, and offered no evidence, that he had been retaliated

against because of his race or the filing of any claim

concerning his race or any disability. There was no testimony

or evidence offered in support of his retaliation claim other

than his stated belief that it was because he filed and was

prosecuting a workers' compensation claim. There is no

evidence, however, that he was terminated for any reason related

to his workers' compensation claim. To the contrary, the un-

rebutted testimony and evidence offered by the Respondent,

through the testimony of both Mr. Pate and Ms. Garrett,

indicated that the Petitioner was terminated because of his

conduct in the company's office on the day of termination, after

Mr. Pate informed him that he had no light duty work available.

The Petitioner therefore failed to establish any causal link

between any protected activity or expression he engaged in and

the adverse employment action. Therefore, a prima facie case of

retaliation was not proven, and, if it had been, the Respondent

established a legitimate, non-discriminatory business reason for

the employment action taken. There was no showing, by any

credible, persuasive evidence, that it was pretextual for what

really amounted to retaliation. It cannot be concluded that the

Respondent unlawfully retaliated against the Petitioner.

24. The Petitioner has also claimed to have been

discriminated against based upon an alleged disability. In order

to prevail on such a claim he must show (1) that he has a

disability; (2) that he is a qualified individual who can perform

the essential functions of his job either with or without a

reasonable accommodation; (3) that his employer had actual or

constructive knowledge of his disability or considered him to be

disabled; (4) that there was a reasonable accommodation that

would allow him to perform his job duties and he identified that

accommodation to his employer; and (5) that he actually suffered

discrimination because of his disability. See Sheets v. Florida

Each Coast Railway Company , 132 F.2d 1031, 1034 (So. Dist. of

Fla. 2001).

25. The Petitioner's disability claim must fail because he

did not establish a prima facie case of disability

discrimination. He failed to establish that he is disabled. See

Willis v. Conopco, Inc. , 108 F.3d 282, 284-85 (11th Cir. 1997).

"Merely proving the existence of a physical impairment, without

addressing any limitation on major life activities, is not

sufficient to prove disability." See also Standard v. Abel

Services, Inc. , 161 F.3d 1318, 1327 (11th Cir. 1998). "A

physical impairment does not substantially limit the major life

activity of working merely because it precludes the performance

of one particular job." Id. (Citing 29 C.F.R. §

1630.2(j)(3)(i)). "'Instead, the impairment must significantly

restrict the ability to perform either a class of jobs or a broad

range of jobs in various classes, as compared to the average

person having comparable training, skills and abilities.'" Id.

26. The Petitioner proved that he was placed on a light

duty work restriction for some two weeks by his physician, but

failed to prove that he was substantially limited in the major

life activity of working. He presented no evidence that he was

substantially limited in any other major life activity other than

working. As the court noted in Butler v Greif Brothers Services

Corp. , 231 F. App. 854, 856-57 (11th Cir. 2007), "'[t]he

inability to perform a single, particular job does not constitute

a substantial limitation in the major life activity of working.'"

States Supreme Court, "'[t]o be substantially limited in the

major life activity of working, . . . one must be precluded from

more than one type of job, a specialized job, or a particular job

of choice. If jobs utilizing an individual's skills (but perhaps

not his or her unique talents) are available, one is not

precluded from a substantial class of jobs. Similarly, if a host

of different types of jobs are available, one is not precluded

from a broad range of jobs.'" Id. (Quoting Sutton v. United

Airlines, Inc. , 527 U.S. 471, 492 (1999)).

27. The Petitioner has five years of college education and

was capable at all times of performing work that did not require

heavy lifting. Following his alleged injury, he sought light

duty work from both an insurance company and from Pate. The

Petitioner currently works as a janitor. As in the Butler case,

the Petitioner's "ability to perform such jobs indicates that he

was not substantially limited from a class of jobs or a broad

range of jobs as compared to the average person having comparable

training, skills, and abilities." 231 F. App. at 857. Thus, the

Petitioner has not established that whatever physical impairment

he might have constituted or imposed a disability, as that has

been defined in Chapter 760 Florida Statutes, and the above

decisional authority. Because he did not prove disability, he

did not prove a prima facie case for disability discrimination.

Even if he had done so, the Respondent proved a legitimate, non-

discriminatory business reason for his termination, to which he

responded with no evidence which might indicate any pretextual

motive.

RECOMMENDATION

Having considered the foregoing Findings of Fact,

Conclusions of Law, the evidence of record, the candor and

demeanor of the witnesses, and the pleadings and the arguments of

the parties, it is, therefore,

RECOMMENDED that a final order be entered by the Florida

Commission on Human Relations dismissing the Petition in its

entirety.

DONE AND ENTERED this 19th day of March, 2008, in

Tallahassee, Leon County, Florida.

S

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of March, 2008.

ENDNOTE

1/ Section 440.185(1) and (2), Florida Statutes (2006).

COPIES FURNISHED :

Darryl Royster

4406 Chantilley Way

Pensacola, Florida 32505

Amy M. Klotz, Esquire

Moore, Hill & Westmoreland, P.A.

SunTrust Tower, Ninth Floor

220 West Garden Street

Pensacola, Florida 32502-5702

Cecil Howard, General Counsel

Florida 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 EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.