07-002417 Wade Hamilton vs. The Talking Phone Book Status: Closed Recommended Order on Wednesday, October 17, 2007.

Summary: Petitioner did not establish a prima facie case of race or national origin discrimination. Recommend dismissal of the petition for relief.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WADE HAMILTON, )

)

Petitioner, )

)

vs. ) Case No. 07-2417

)

THE TALKING PHONE BOOK, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice, on August 8, 2007,

in Gainesville, Florida, before the Division of Administrative

Hearings by its designated Administrative Law Judge, Barbara J.

Staros.

APPEARANCES

For Petitioner: Wade Hamilton, pro se

3800 Southwest 20th Avenue

Apartment 406

Gainesville, Florida 32607

For Respondent: Jeffrey B. Jones, Esquire

Littler Mendelson, P.C.

4767 New Broad Street

Orlando, Florida 32814

STATEMENT OF THE ISSUE

Whether Respondent violated the Florida Civil Rights Act of

1992, as alleged in the Employment Charge of Discrimination

filed by Petitioner on November 16, 2005.

PRELIMINARY STATEMENT

On September 28, 2005, Petitioner, Wade Hamilton, filed an

employment Charge of Discrimination with the Florida Commission

on Human Relations (FCHR) which alleged that Respondent, The

Talking Phone Book (TPB) violated Section 760.10, Florida

Statutes, by discriminating against him on the basis of race and

national origin, which resulted in his termination.

The allegations were investigated and on April 19, 2007,

FCHR issued its Determination: No Cause and Notice of

Determination: No cause. A Petition for Relief was filed by

Petitioner on May 23, 2007.

FCHR transmitted the case to the Division of Administrative

Hearings on or about May 30, 2007. A Notice of Hearing was

issued setting the case for formal hearing on August 8, 2007.

The hearing proceeded as scheduled. The parties filed a Joint

Pre-Final Hearing Statement on August 6, 2007.

At hearing, Petitioner testified on his own behalf.

Petitioner’s Exhibit numbered 1 was admitted into evidence.

Petitioner’s Exhibits numbered 2 and 3 were rejected.

Respondent presented the testimony of Terry Strickland and Susan

Ruhland. Respondent’s Exhibits numbered 1 through 37 were

admitted into evidence.

A one-volume transcript was filed on August 22, 2007.

Respondent filed a Proposed Recommended Order, which has been

considered in the preparation of this Recommended Order.

Petitioner did not file a post-hearing submission.

FINDINGS OF FACT

Stipulated Facts

1. Petitioner was hired by TPB as a premise sales

representative for TPB's office in Gainesville, Florida on or

about April 3, 2006.

2. Petitioner and other new hires attended TBP's new hire

sales training course in Jacksonville, Florida, on or about

April 3, 2006.

3. Petitioner and the other newly hired employees were

required to establish employment eligibility in accordance with

the Employment Eligibility Verification Form, Form I-9.

4. For Form I-9 purposes, Petitioner produced a driver’s

license and social security card. The social security card had

the following notation: “For Social Security and Tax Purposes:

Not for identification.”

5. TPB informed Petitioner that it could not accept the

social security card he produced for purposes of fulfilling his

Form I-9 requirements.

6. TPB asked Petitioner to provide it with any other

document(s) to satisfy his Form I-9 requirements.

7. TPB informed Petitioner that he could go to the local

social security office in Jacksonville to request a new social

security card and/or obtain a letter from the social security

office that indicated he had applied for same.

8. No other new hire in Petitioner’s training class

provided TPB with a social security card with the same notation

that appeared on Petitioner’s card.

9. TPB requested Petitioner to provide an acceptable

document from List A, B, or C found on the back of Form I-9.

Petitioner provided TBP with a copy of a Birth Registration

Form.

10. The Birth Registration Form was not a document listed

in List A, B, or C referenced on Form I-9.

11. At the time Petitioner was hired by Respondent, TPB

had policies that prohibited, among other things, discrimination

on the basis of race and national origin. Petitioner was aware

that TPB had anti-discrimination policies in place.

12. Petitioner’s employment with TBP ended on or about

April 6, 2006. TPB informed Petitioner that his employment was

terminated because he was unable to provide sufficient proof of

employment eligibility with regard to Form I-9.

13. Petitioner cannot identify any similarly situated TPB

employees outside of his protected class who were treated more

favorably.

Facts Based Upon the Evidence of Record

14. Petitioner is a black male who was born in Jamaica.

He became a citizen of the United States sometime after arriving

in this country in 1978. 1/

15. Respondent, TPB, is an employer within the meaning of

the Florida Civil Rights Act. TPB is the brand name or logo for

White Directory Publishers, which publishes telephone

directories.

16. At the time Petitioner was hired, Terry Strickland was

a regional sales trainer for TPB. He conducted the training

course in Jacksonville for the group of new hires which included

Petitioner. At the time of the training session, Mr. Strickland

was not aware of Petitioner’s national origin.

17. During the training course in Jacksonville, all new

hires, including Petitioner, were required to complete a human

resources packet and review PowerPoint presentations regarding

TPB policies, including its anti-discrimination policy. The

human resources packet included Form I-9.

18. When Mr. Strickland received Petitioner’s social

security card and observed the notation on the bottom, he

informed Petitioner that TPB would not be able to accept the

card for Form I-9 purposes. He then informed Petitioner that he

could go to the local social security office during lunch to

apply for a new card.

19. While Petitioner went to the local social security

office, he was unable to obtain a new card or a letter from that

office as he did not have proper documentation with him to

secure a new card.

20. Mr. Strickland handled this matter with other new

hires in other training sessions in the same manner. That is,

any time he was presented with a social security card with the

notation “not for identification purposes,” he has informed the

person that the card is not an acceptable document for Form I-9

purposes and that other acceptable documents would have to be

provided.

21. Mr. Strickland also informed Petitioner that a birth

certificate would be acceptable. However, when presented with

Petitioner’s Birth Registration Form, he noted that it did not

have a seal. Therefore, he faxed it to Susan Ruhland at TPB’s

corporate headquarters in Buffalo, New York.

22. Susan Ruhland is the human resources manager for

Respondent. Ms. Ruhland was contacted by Mr. Strickland

regarding Petitioner’s social security card. Ms. Ruhland spoke

to Petitioner by phone and explained to him that his social

security card was not acceptable based on requirements of the

Department of Homeland Security. She also informed Petitioner

that there are other means of identification or documentation

that can be provided to satisfy Form I-9 requirements.

Ms. Ruhland was not aware of Petitioner’s national origin when

she spoke to him by telephone.

23. Ms. Ruhland contacted the Department of Homeland

Security to verify her understanding that Petitioner’s social

security card was unacceptable for Form I-9 purposes. She

received confirmation that her understanding was correct.

24. Other than the Birth Registration Form supplied by

Petitioner, Petitioner was not able to provide any other

document to satisfy the Form I-9 requirements. He had recently

applied for a passport and had sent original documents with his

passport application.

25. Ms. Ruhland could not accept the Birth Registration

Form provided by Petitioner because it was not issued by a

state, county, municipal authority or outlying possession of the

United States, and it lacked an official seal. She informed

Petitioner that if he could not provide the acceptable

documentation within three days, that he would have to be

dismissed.

26. Employees of TPB in previous training courses of

different races and national origins who submitted social

security cards with the same notation that appears on

Petitioner’s were treated in the same manner as Petitioner.

Specifically, during the period of 2004 to August 2007, 17 new

employees of TPB were asked to submit another document that

fulfilled the Form I-9 requirements or go to the social security

office to apply for a new card. Of those 17 employees, 12 were

Caucasian, three were African-American, one Hispanic, and one

American Indian/Alaskan Native.

27. Mr. Strickland informed Petitioner on or about

April 6, 2007, that TPB had to terminate his employment because

he was unable to provide sufficient proof of employment

eligibility with regard to Form I-9.

28. There was no competent evidence presented that

establishes that Petitioner’s termination was based on race or

national origin.

CONCLUSIONS OF LAW

29. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this case.

§§ 120.569 and 120.57, Fla. Stat.

30. Section 760.10(1), Florida Statutes, states that it is

an unlawful employment practice for an employer to discharge or

otherwise discriminate against an individual on the basis of

race or national origin.

31. In discrimination cases alleging disparate treatment,

the Petitioner generally bears the burden of proof established

by the United States Supreme Court in McDonnell Douglas v.

Green , 411 U.S. 792 (1973), and Texas Department of Community

Affairs v. Burdine , 450 U.S. 248 (1981). 2/ Under this well

established model of proof, the complainant bears the initial

burden of establishing a prima facie case of discrimination.

When the charging party, i.e. , Petitioner, is able to make out a

prima facie case, the burden to go forward shifts to the

employer to articulate a legitimate, non-discriminatory

explanation for the employment action. See Department of

Corrections v. Chandler , 582 So. 2d 1183 (Fla. 1st DCA 1991)

(court discusses shifting burdens of proof in discrimination

cases). The employer has the burden of production, not

persuasion, and need only persuade the finder of fact that the

decision was non-discriminatory. Id. Alexander v. Fulton

County, Georgia , 207 F.3d 1303 (11th Cir. 2000). The employee

must then come forward with specific evidence demonstrating that

the reasons given by the employer are a pretext for

discrimination. "The employee must satisfy this burden by

showing directly that a discriminatory reason more likely than

not motivated the decision, or indirectly by showing that the

proffered reason for the employment decision is not worthy of

belief." Department of Corrections v. Chandler , supra at 1186;

Alexander v. Fulton County, Georgia , supra . Petitioner has not

met this burden.

32. To establish a prima facie case, Petitioner must prove

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

to an adverse employment action; (3) his employer treated

similarly situated employees, who are not members of the

protected class, more favorably; and (4) he was qualified for

the job or benefit at issue. See McDonnell , supra ; Gillis v.

Georgia Department of Corrections, 400 F.3d 883 (11th Cir.

2005) .

33. Petitioner has met the first and second elements to

establish a prima facie case of discrimination in that he is a

member of two protected classes and was subject to an adverse

employment action.

34. However, he has not proven the third element, that his

employer treated similarly situated employees who are not

members of the protected class more favorably. The

preponderance of the evidence established that he was treated

the same way that other employees were treated regarding the

Homeland Security requirements in regard to Form I-9, regardless

of race or national origin. There is no evidence that

establishes that race or national origin played any part in his

termination, nor whether anyone of another race or national

origin replaced him. Petitioner has not provided any evidence

that any non-minority employees with whom he compares his

treatment were similarly situated yet treated more favorably.

See Holifield v. Reno , 115 F.3d 1555 (11th Cir. 1997).

35. Moreover, Petitioner did not present competent

evidence to prove the fourth component of establishing a prima

facie case regarding his being qualified for the job, except

that he was hired for the job.

36. Applying the McDonnell analysis, Petitioner did not

meet his burden of establishing a prima facie case of

discriminatory treatment. Even assuming that Petitioner had

demonstrated a prima facie case of discriminatory conduct,

Respondent demonstrated a legitimate, non-discriminatory reason

for Petitioner’s termination, that is, Respondent’s actions were

based on federal requirements applicable to all employers and

applied identically to all employees of Respondent.

37. Even if it were necessary to go to the next level of

the McDonnell analysis, Petitioner did not produce any evidence

that Respondent’s legitimate reasons were pretext for

discrimination. Therefore, Petitioner has not met his burden of

showing that a discriminatory reason more likely than not

motivated the actions of Respondent toward Petitioner or by

showing that the proffered reason for the employment decision is

not worthy of belief. Consequently, Petitioner has not met his

burden of showing pretext.

38. In summary, Petitioner has failed to carry his burden

of proof that Respondent engaged in racial or national origin

discrimination toward Petitioner when it terminated him.

39. Respondent seeks an award of attorney’s fees pursuant

to Section 760.11(6), Florida Statutes, which reads in pertinent

part as follows:

(6) Any administrative hearing brought

pursuant to paragraph (4)(b) shall be

conducted under ss. 120.569 and 120.57

. . . . In any action or proceeding under

this subsection, the commission, in its

discretion, may allow the prevailing party a

reasonable attorney’s fee as part of the

costs. It is the intent of the Legislature

that this provision for attorney’s fees be

interpreted in a manner consistent with

federal law involving a Title VII action.

40. In this proceeding, the final order will be issued by

FCHR. The prevailing party cannot be determined until the final

order is issued. Further, in reading the above-quoted statutory

language, it appears to the undersigned that it is FCHR, not the

undersigned, that has the jurisdiction to consider any such

award of attorney’s fees.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law set forth herein, it is

RECOMMENDED:

That the Florida Commission on Human Relations enter a

final order dismissing the Petition for Relief.

DONE AND ENTERED this 17th day of October, 2007, in

Tallahassee, Leon County, Florida.

S

___________________________________

BARBARA J. STAROS

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 17th day of October, 2007.

ENDNOTES

1/ Petitioner’s Certificate of Citizenship is barely legible.

It contains the dates of September 5, 1978, and February 17,

1982. It cannot be determined from the face of the certificate

which is the actual date of Untied States citizenship. In any

event, he was a United States citizen at all times material to

this proceeding.

2/ FCHR and Florida courts have determined that federal

discrimination law should be used as guidance when construing

provisions of Section 760.10, Florida Statutes. See Brand v.

Florida Power Corporation , 633 So. 2d 504, 509 (Fla. 1st DCA

1994).

COPIES FURNISHED :

Wade Hamilton

3800 Southwest 20th Avenue

Apartment 406

Ocala, Florida 34474

Jeffrey B. Jones, Esquire

Littler Mendelson, P.C.

4767 New Broad Street

Orlando, Florida 32814

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.

CECIL HOWARD GEN CO

FL COMM ON HUMAN RELATIONS

2009 APALACHEE PKWY STE 100

TALLAHASSEE FL 32301