07-004022 Ernest West, Jr. vs. Solid Wall Systems, Inc. Status: Closed Recommended Order on Thursday, January 31, 2008.

Summary: Petitioners claimed and failed to prove racial discrimination was the basis of their termination from employment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RALPH ALEXANDER , )

)

Petitioner , )

)

vs. ) Case No. 07 - 4020

)

SOLID WALL SYSTEMS, INC. , )

)

Respondent . )

)

STEVIE DANIELS, )

)

Petitioner, )

)

vs. ) Case No. 07 - 4021

)

SOLID WALL SYSTEMS, INC., )

)

Respondent. )

)

ERNEST WEST, JR., )

)

Petitioner, )

)

vs. ) Case No. 07 - 4022

)

SOLID WALL SYSTEMS, INC., )

)

Respondent. )

)

CARLOS COLE, )

)

Petitioner, )

)

vs. ) Case No. 07 - 4385

)

SOLID WALL SYSTEMS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the D ivision of Administrative

Hearings, by its duly - designated Administrative Law Judge,

Jeff B. Clark, held a final administrative hearing in th ese

case s on November 27 and 28, 2007, in Viera, Florida.

APPEARANCES

For Petitioners: Adrienne Eent, Esquire

Enrique, Smith & Trent, P . L .

836 Executive Lane, Suite 120

Rockledge, Florida 32955

For Respondent: Chelsie J. Roberts, Esquire

Ford & Harrison, LLP

300 South Orange Avenue, Suite 1300

Orlando, Florida 32801

STATEMENT OF THE ISSUE

Whether Respondent discriminated against Petitioners based

on their race in violation of Chapter 760, Florida

Statutes (2006) ( " Florida Civil Rights Act " ).

PRELIMINARY STATEME NT

On February 2, 2007, Petitioners Ralph Alexander, Stevie

Daniels, and Ernest West, Jr., each filed a claim with the

Florida Commission on Human Relations ( " Commission " ) alleging

that Respondent, Solid Wall Systems, Inc., had unlawfully

discharged each of them based on their race. On March 7, 2007,

Petitioner Carlos Cole, filed a claim with the Commission

alleging that Respondent had unlawfully discharged him based on

his race. Each Petitioner received a Notice o f Determination:

No Cause , from the Com mission and timely filed a Petition f or

Relief.

On September 6, 2007, the Commission forwarded the

Petitions f or Relief of Petitioners Ralph Alexander, Stevie

Daniels, and Ernest West, Jr. , to the Division of Administrative

Hearings; on September 21, 2007 , Petitioner Carlos Cole ' s,

Petition f or Relief was forwarded to the Division of

Administrative Hearings. Initial Orders were sent to all

parties. Each Initial Order was forwarded on the same day the

Division of Administrative Hearings received the Petit ions f or

Relief from the Commission.

On September 14, 2007, the cases of Ralph Alexander, Stevie

Daniels, and Ernest West, Jr. , were consolidated. On October 4,

2007, Petitioner Cole ' s case was consolidated with the other

three cases. On th at same day, O ctober 4, 2007, the case was

scheduled for final hearing on November 27 and 28 , 2007 .

The cases were presented as scheduled. Petitioners

presented 12 witnesses: Ralph Alexander ; Stevie Daniels ; Ernest

West, Jr. ; Carlos Cole ; Ernest Mitchell, Jr. ; Ronald Christmas ;

Kenneth Sloane ; Harry Walker ; Robert Kalina ; Roy Brock ; Vince

Hauser ; and Kyle Cross. Petitioner had 13 exhibits admitted

into evidence , which were marked Petitioner ' s Exhibits 1

through 13. Respondent presented one witness, Anthony Daniels,

a nd had five exhibits admitted into evidence , which were marked

Respondent ' s Exhibits 1 through 5.

The three - volume T ranscript was filed with the Clerk of the

Division of Administrative Hearings on January 16, 2008. Both

parties timely filed Proposed Rec ommended Orders.

All references are to 2006 Florida Statutes, unless

otherwise indicated.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing, the following Findings of Fact are made:

1. All Petitioners are African - American males; all were

employed by Respondent. Petitioners Alexander, Daniels and West

were discharged on September 20, 2006. Petitioner Cole was laid

off on August 25, 2006.

2. Respondent, Solid Wall Systems, Inc., is an employer as

defined by the Fl orida Civil Rights Act; it constructs cast - in -

place solid concrete wall structures for the production home

industry. This construction methodology is typically employed

in large residential developments , and the construction

" critical path " requires timel y completion of each construction

progression. For example, if walls are not timely completed,

roof truss installation will be delayed, erection equipment will

be idle, follow - up subcontractors are delayed, and money is

lost.

3. Petitioner, Ralph Alexand er, was employed by Respondent

in July 2004, as a laborer , being paid $9.00 per hour. He

received pay raises and a promotion to leadman during the next

several years. At his discharge, he was a leadman being paid

$14.00 per hour.

4. Petitioner, Stevie Daniels, was employed by Respondent

in March 2004, as a laborer , being paid $9.00 per hour. He

received pay raises and a promotion to leadman during the next

several years. At his discharge, he was a leadman being paid

$13.00 per hour.

5. Petitioner, Er nest West, Jr., was employed by

Respondent in October 2004, as a laborer and paid $9.00 per

hour. He received pay raises during the next several years. At

his discharge, he was being paid $11.00 per hour.

6 . Petitioner, Carlos Cole, was hired in Septemb er 2003,

as a yard helper with Space Coast Truss, a subsidiary of

Respondent ' s corporate owner , being paid $6.50 per hour. In

October 2003, he was transferred to Respondent and received

$9.00 per hour. He received pay raises and a promotion to

leadman du ring the next several years. At his discharge, on

August 25, 2006, he had been promoted to leadman and was being

paid $15.00 per hour, but was working as a laborer.

7 . On September 11, 15 and 19, 2006, Petitioners

Alexander, Daniels and West were " writte n - up. " That is, they

were disciplined for failing to follow the specific instructions

of supervisors.

8 . On September 11, 2006, Petitioners Alexander, Daniels

and West were on a " stripping " crew working at Wedgefield in

East Orange County. Alexander was advised that the job had to

be completed that day , because trusses were scheduled to be

installed the following day. Notwithstanding direction to the

contrary, the crew left the job without completing the

stripping.

9. The time cards of Petitioners Alex ander, Daniels and

West indicate that these Petitioners " clocked - out " at between

5:24 p.m. and 5:30 p.m. It is between 30 and 45 minutes from

the job site and Respondent 's yard. Petitioners would have

spent several additional minutes cleaning up before " clocking -

out. " Not only did Petitioners fail to complete the job, they

left the job site early.

1 0. Petitioner Ernest West, Jr. , had a part - time job

working for Space Coast Cleaning, a janitorial service, from

6 :00 p.m. to 9 :00 p.m. , Monday, Wednesday a nd Friday. The job

was located in Viera approximately 15 to 20 minutes from

Respondent ' s yard. September 11, 2006, was a Monday and a work

day for West ' s part - time job. Petitioner West told Respondent ' s

o perations m anager that they left the job site so that he could

get to his part - time job on time.

1 1. On September 15, 2006, Petitioners Alexander, Daniels

and West were assigned to strip a multi - unit job site in

Titusville. The crew was told to complete the stripping before

they left the job site. Time cards indicate that Petitioners

" clocked - out " between 3:30 p.m. and 4:00 p.m. Petitioners left

the job unfinished , because they thought they would be unable to

complete the job that day.

1 2. O n September 19, 2006, Petitioners Alexander, Daniels

and West were assigned to strip a building at Viera High School.

After a building is stripped, crews have standing orders not to

leave any " cap " forms on the job site. This is a particular

type of form that crews are specifically instructed to return to

the main yard immediately after use and re - stock in bins for use

on subsequent projects. On this day, Petitioner Alexander

called Roy Brock, a field manager, and inquired regarding the

" cap " forms. He was instructed to bring all forms to the yard.

1 3. Brock visit ed the Viera High School job site after the

stripping crew had returned to the yard and found several caps

that had been left at the site. He loaded them on his truck and

returned them to the yard.

1 4. As a result of these three incidents, which were

deem ed acts of insubordination, Petitioners Alexander, Daniels

and West were terminated on September 20, 2006.

1 5. I n May, June , and July 2006, the housing construction

market suffered a significant decline. This was reflected by

Respondent having a profit of $10,000 in May, a profit of $2 ,000

to $ 3,000 in June, and a $60,000 loss in July. In August, there

was literally " no work. " Respondent ' s employees were being sent

home every day because there was no work.

1 6. As a result of the decline in construction, Vince

Heuser, Respondent ' s o perations m anager, was directed to lay off

employees. Petitioner Cole was among five employees laid off on

August 25, 2006. Of the five , three were African - American, one

was Caucasian, and one was Hispanic.

1 7. Seven Hispanic laborers were hired on July 5 and 6,

2006. Respondent had taken over the cast - in - place wall

c onstruction portion of two large projects from a subcontractor

named " JR. " The general contractor/developer, Welch

Construction, requested that these seven Hisp anic individuals,

who had been " JR " employees, and had done all the stripping on

these two Welch Construction jobs, be hired to complete the

jobs. Hiring these seven individuals to continue to work on the

jobs was part of the take - over agreement.

1 8. In S eptember 2006, three Hispanic laborers were hired.

Two were hired to work on " amenity walls " which require a

totally different forming process than does the standard solid -

wall construction. The third was hired to work on the Welch

jobs as he had worked with the " JR " crew previously.

CONCLUSIONS OF LAW

19. The Division Of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding pursuant to Section s 120.569 and 760.11 and

Subsection 120.57(1), Florida Statutes (2007) .

2 0. T he Florida Civil Rights Act of 1992, as amended

(Chapter 760, Florida Statutes) , was patterned after Title VII

of the Civil Rights Act of 1964 and Federal case law

interpreting Title VII is applicable to cases arising under the

Florida Act. Green v . Burger King Corp ., 728 So. 2d 369 (Fla.

3d DCA 1999); Laborers ' Int ' l Union of N. Am., Local 478 v.

Burroughs , 522 So. 2d 852 (Fla. 3d DCA 1987); School Board of

Leon County v. Hargis , 400 So. 2d 103 (Fla. 1st DCA 1981).

2 1. Petitioners have the burden o f proving by the

preponderance of the evidence that Respondent committed an

unlawful employment practice(s) as alleged in their Petitions

f or Relief. Florida Department of Transportation v. J.W.C.

Company, Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981).

2 2. It is an unlawful employment practice for an employer

to discharge or otherwise discriminate against any individual

with respect to compensation, terms, conditions, or privileges

of employment, because of such individual ' s race or color.

§ 760.10(1)(a), Fla . Stat.

2 3. A prima facie case of discrimination based upon race

may be established in one of three ways: F irst, through direct

evidence of discriminatory intent by the employer; second,

through statistical proof that a neutral policy has an adverse

impact on a protected group; or third, by meeting the familiar

disparate treatment test set forth in McDonnell Douglas Corp. v.

Green , 411 U.S. 792 (1973); Holifield v. Reno , 115 F.3d 1555,

1561 - 62 (11th Cir. 1997); Carter v. City of Miami , 870 F.2d 578,

581 (11t h Cir. 1989).

2 4. Under the McDonnell Douglas model of proof, the

p etitioner bears the initial burden of establishing a prima

facie case of discrimination. Proof of a prima facie case under

McDonnell Douglas raises a presumption that the employer ' s

decisi on was motivated by discrimination. S t . Mary ' s Honor

Center v. Hicks , 509 U.S. 502, 506 (1993).

2 5. Under McDonnell Douglas , a prima facie case of race

discrimination may be established by showing the following:

(1) Petitioner belongs to a racial minor ity or is a person of

color; (2) Petitioner was subjected to adverse job action;

(3) Petitioner ' s employer treated similarly - situated employees

outside Petitioner ' s classification more favorably; and

(4) Petitioner was qualified to do the job. Demonstrati ng a

prima facie case is not onerous; it requires only that the

plaintiff establish facts adequate to permit an inference of

discrimination. McDonnell , supra , at 802; Holifield , supra .

2 6. Once this presumption is raised, the r espondent is

able to rebut it by introducing admissible evidence of a reason,

which if believed by the trier of fact, supports a finding that

discrimination or retaliation was not the cause of the

challenged employment action. Grigsby v. Reynolds Metals Co. ,

821 F.2d 590, 594 (11th Cir. 1987); and Equal Employment

Opportunity Commission v. Navy Federal Credit Union , 424 F.3d

397, 405 (4th Cir. 2005). The employer is required only to

" produce admissible evidence which would allow the trier of fact

rationally to conclude that the emp loyment decision had not been

motivated by discriminatory animus . " Texas Department of

Community Affairs v. Burdine , 450 U.S. 248, 257 (1981). The

employer " need not persuade the court that it was actually

motivated by the proffered reasons . . . [i]t is sufficient if

the [employer ' s] evidence raises a genuine issue of fact as to

whether it discriminated against the plaintiff. " Id. at 254.

This burden is characterized as " exceedingly light. " Perryman

v. Johnson Products Co., Inc. , 698 F.2d 1138, 1142 ( 11th Cir.

1983).

2 7. Where the defendant meets this burden, the plaintiff

has the opportunity to demonstrate that the defendant ' s

articulated reason for the adverse employment action is a mere

pretext for discrimination. McDonnell Douglas Corp. v. Green ,

supra , at 804; Roberts v. Gadsden Memorial Hospital , 835 F.2d

793, 796 (11th Cir. 1988). This demonstration merges with the

plaintiff ' s ultimate burden of showing that the defendant

intentionally discriminated against the plaintiff. St. Mary ' s

Honor Cent er v. Hicks , 509 U.S. 502, 511 (1993); Pignato v.

American Trans Air, Inc. , 14 F.3d 342, 347 (7th Cir. 1994). Put

another way, once the employer succeeds in carrying its

intermediate burden of production, the ultimate issue in the

case becomes whether the plaintiff has proven that the employer

intentionally discriminated against him because of his race.

Turnes v. AmSouth Bank, N.A. , 36 F.3d 1057, 1061 (11th Cir.

1994). Once the employer produces evidence of a legitimate,

nondiscriminatory reason for the c hallenged action, any

presumption of discrimination or retaliation arising out of the

prima facie case " drops from the case. " See Navy Federal Credit

Union , 424 F.3d at 405; Krieg v. Paul Revere Life Ins. Co. , 718

F.2d 998, 1001 (11th Cir. 1983), cert . de nied 466 U.S. 929

(1984) . The ultimate burden remains upon the complainant to

prove that the employer intentionally discriminated. Burdine ,

supra , 450 U.S. at 256. Stated another way, " ' the ultimate

question in a desperate treatment case is not whether the

plaintiff establish a prima facie case or demonstrate a pretext,

but ' whether the defendant intentionally discriminated against

the plaintiff. '" Pashoian v. GTE Directories , 208 F. Supp. 2d

1293 , 1308 (M.D. Fla. 2002).

2 8. Petitioners have established that they are members of

a protected class by virtue of their race and were well -

qualified for their positions. Further, Petitioners were the

subject of adverse employment action, termination. They have

failed to demonstrate that Respondent ' s reasons fo r termination

are pretextual or that they were subjected to racial

discrimination that resulted in their terminations.

29 . " Insubordination, " the reason presented for the

termination of Petitioners Alexander, Daniels and West, may be a

stretch of the de finition, but Petitioners did on three

occasions within the span of several work days, disregard

specific directions from supervisors. On two occasions, because

of the construction technique employed by Respondent,

Petitioners ' failure to complete work as directed, critically

affected construction progression. Petitioner Carlos Cole was

terminated as part of a lay - off.

3 0 . Respondent did hire several Hispanic employees during

the relevant time period ( seven in July and three in September) ;

however, there were appropriate business - related reasons for

these new hires. The July hires were in conjunction with taking

over an existing subcontract where the developer/contractor

requested these specific individuals. The September hires were

to perform unique con crete wall - forming.

RECOMMENDATION

Based on t he foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter final orders dismissing the Petition s f or Relief for

Petitioners Ralph Alexander, St evie Daniels, Ernest West, Jr.,

and Carlos Cole .

DONE AND ENT ERED this 31st day of January , 2008 , in

Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeS oto 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 31st day of January , 2008 .

COPIES F URNISHED :

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

Adrienne Eent, Esquire

Enrique, Smith and Trent, P.L.

836 Executive Lane, Suite 120

Rockledge, Florida 32955

Chelsie J. Roberts, Esquire

Ford & Harrison, LLP

300 South Orange Avenue, Suite 1300

Orlando, Florida 32801

NOTICE OF RIG HT 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.