08-001225 Robert L. Tucker vs. Builders First Source Status: Closed Recommended Order on Wednesday, July 16, 2008.

Summary: Termination of employment for violation of zero tolerance smoking policy was not motivated by racial bias, and previous transfer to new position was not motivated by sexual bias. Respondent is not entitled to attorney`s fees.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT L. TUCKER, )

)

Petitioner, )

)

vs. ) Case No. 08-1225

)

BUILDERS FIRST SOURCE, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

final hearing of this case for the Division of Administrative

Hearings (DOAH) on June 3, 2008, in Sanford, Florida.

APPEARANCES

For Petitioner: Jerry Girley, Esquire

The Girley Law Firm

125 East Marks Street

Orlando, Florida 32803

For Respondent: Alfred Truesdell, Esquire

Zimmerman, Kiser & Sutcliffe, P.A.

Post Office Box 3000

315 East Robinson Street, Suite 600

Orlando, Florida 32802-3000

STATEMENT OF THE ISSUE

The issue is whether Respondent discriminated against

Petitioner on the basis of race or sex in violation of

Section 760.10, Florida Statutes (2006). 1

PRELIMINARY STATEMENT

Petitioner filed complaints of discrimination with the

Florida Commission on Human Relations (FCHR) 2 and the Equal

Employment Opportunity Commission (EEOC). Both complaints

alleged that Respondent discriminated against Petitioner on the

basis of Petitioner's race and sex.

Pursuant to a Work-Sharing Agreement between the FCHR and

the EEOC, the EEOC investigated the alleged discrimination. The

EEOC was unable to conclude that a violation occurred, and the

EEOC and the FCHR each issued a right to sue notice on

February 19, 2008. On March 12, 2008, Petitioner filed a

Petition for Relief with the FCHR, and the FCHR referred the

matter to DOAH, which assigned an ALJ to conduct an

administrative hearing.

At the hearing, the parties jointly submitted 37 exhibits

for admission into evidence. Petitioner testified and called

four additional witnesses. Respondent called five witnesses.

The identity of the witnesses and exhibits and the rulings

regarding each are reported in the official record of the

hearing. Neither party requested a transcript of the hearing.

Petitioner and Respondent filed their respective PROs on June 16

and 13, 2008.

Respondent moved to admit one composite exhibit after the

hearing. The motion is denied.

FINDINGS OF FACT

1. Respondent is an employer within the meaning of

Subsection 760.02(7). Respondent employs approximately

50 employees in its facility in Sanford, Florida (the facility).

2. Respondent employed Petitioner at the facility from

July 30, 2002, through February 15, 2007. Petitioner is a

member of a protected class. Petitioner is an African-American

male.

3. On February 15, 2007, Petitioner suffered an adverse

employment action. Respondent terminated Petitioner's

employment for violating Respondent's zero tolerance smoking

policy.

4. Respondent maintains a written zero tolerance smoking

policy. The policy prohibits smoking anywhere in the facility

other than in designated smoking areas and other than during

designated smoking breaks.

5. Respondent prohibits smoking for the health and safety

of its employees. Respondent manufactures components, such as

roof trusses and other lumber products, for sale to contractors

who construct residential housing. Fire is a significant threat

in the manufacture of lumber products at the facility. Dry

lumber and sawdust are present throughout the facility.

6. The zero tolerance smoking policy prohibits smoking,

among other places, in the front lot inside the entrance gate,

in the office where the time clock is located for employees to

begin and end their workdays, and in any production area. On

February 15, 2007, Petitioner walked inside the front gate

smoking a cigarette. Petitioner continued smoking the lighted

cigarette in the plant yard and inside the office where the time

clock is located.

7. Petitioner continued smoking while he clocked in to

begin his work day and continued smoking in non-designated

areas. Petitioner smoked the cigarette during a time that was

not a designated smoking break.

8. Respondent adequately informed Petitioner of the zero

tolerance smoking policy and the consequences of any violation.

On February 6, 2007, Respondent provided all employees,

including Petitioner, with written copies of the zero tolerance

smoking policy. Each employee, including Petitioner, signed an

acknowledgment that he or she had received a written copy of the

zero tolerance smoking policy.

9. The written policy expressly provides that any employee

who violates the zero tolerance smoking policy will be fired.

The policy provides that termination of employment will occur

without further warnings and without second chances.

10. Petitioner violated the written smoking policy on

February 15, 2007, nine days after he attended a zero tolerance

meeting. During that meeting, Respondent explained the zero

tolerance policy to its employees, including Petitioner.

11. The zero tolerance smoking policy superseded the

previous smoking policy. Petitioner had twice violated the

previous smoking policy. On August 16, 2006, Respondent issued

a written reprimand to Petitioner for violating the previous

smoking policy on August 15, 2006.

12. The violation on August 15, 2006, was Respondent's

second violation. The written reprimand for the violation on

August 15, 2006, notified Petitioner that he would be suspended

for three days if he subsequently violated the policy.

13. After the written reprimand, the plant manager

instituted the zero tolerance smoking policy that was required

by direct orders from her superiors. Respondent adequately

informed all employees at the facility, including Petitioner, of

the new zero tolerance policy.

14. Respondent treated similarly situated employees in a

similar manner. Under the previous smoking policy, Respondent

issued a written reprimand to an employee identified in the

record as Mr. Joel Suarez. Although Mr. Suarez is Hispanic, he

is also Caucasian. 3 Each employee that Respondent disciplined

for violation of the smoking policy was a member of a production

crew.

15. Petitioner alleges that Respondent treated Petitioner

disparately from a similarly situated employee who was not a

member of a protected class. Petitioner alleges that Respondent

allowed Mr. Bill Thomas, a Caucasian employee, to smoke whenever

and wherever Mr. Thomas wished and did not fire Mr. Thomas.

16. Mr. Thomas was not similarly situated with Petitioner.

Unlike Petitioner, Mr. Thomas is not a member of a production

crew. Rather, Mr. Thomas is responsible for maintenance of the

equipment used by production crews. Mr. Thomas frequently must

work when production crews are not working, either because the

crew is on break or the equipment used by the crew is not

functioning, and Mr. Thomas must take smoking breaks at

different times than production crews. Mr. Thomas smoked only

during authorized smoking breaks and within designated smoking

areas.

17. Petitioner also complains that, prior to the

termination of his employment, he suffered an adverse employment

action sometime during the second half of 2006 when Respondent

allegedly demoted Petitioner based on Petitioner's sex.

18. Prior to the alleged demotion, Petitioner worked as a

sawyer. A sawyer operates a saw that cuts lumber for products,

including roof trusses, that are used in residential

construction. Sometime in the second half of 2006, Respondent

transferred Petitioner to a position as a loader.

19. Petitioner's co-worker, Ms. Nora Dowling, retained her

position as a sawyer. The plant manager, Ms. Tammi Pettis, is a

Caucasian female and approved the transfer.

20. The transfer was not an adverse employment action.

Although Respondent considers a sawyer to be a position that

requires more skill than a loader and compensates the two

positions differently, the transfer did not result in a serious

and material change in the terms, conditions, and privileges of

employment for Petitioner. Petitioner did not suffer any

reduction in pay or benefits, and the change in job

responsibilities was not a material change in the terms,

conditions, and privileges of employment.

21. The transfer from sawyer to loader was not motivated

by sexual bias. Although Petitioner had more experience than

Ms. Dowling and provided Ms. Dowling with some training as a

sawyer, production efficiency reports maintained by Respondent

and personal observations of supervisors support a finding that

Ms. Dowling was more productive than Petitioner, based on both

quantitative and qualitative measures.

22. The production manager was the primary decision-maker

in the transfer of Petitioner as well as the termination of

Petitioner's employment. The production manager is Mr. Myriel

Reid, an African-American male. Ms. Pettis, the plant manager,

merely approved the recommendation of Mr. Reid to transfer

Petitioner and to terminate his employment.

23. The decision to transfer Petitioner was based, in

addition to production efficiency data, on economic conditions

and a desire to retain both Petitioner and Dowling as employees

at the facility. During the second half of 2006, Respondent

experienced a decrease in business due to a significant slowdown

in the housing industry. A work force reduction policy

implemented in 2006 reduced employment at the facility from more

than 100 employees to fewer than 50 employees.

24. Respondent determined that it could spare both

Petitioner and Ms. Dowling from layoff by reassigning Petitioner

to an open position of loader. A loader must operate a

forklift, and, between Petitioner and Ms. Dowling, Petitioner

was the only employee with forklift experience and

certification. 4 Petitioner’s forklift experience and

certification and Dowling’s performance efficiency were the two

factors managers considered in transferring Petitioner.

25. Ms. Dowling did not replace Petitioner. Ms. Dowling

operated a saw before Petitioner was transferred in the fall of

2006. Ms. Dowling continued in the same sawyer position after

Petitioner’s transfer.

26. Respondent maintains an equal employment opportunity

policy. The policy is set forth in Respondent's employee

handbooks.

27. Petitioner signed acknowledgments that he received,

read and understood Respondent’s employee handbooks for the

years 2002, 2003, 2004, 2005 and 2006. The employee handbooks

include policies forbidding discrimination and harassment on the

basis of race, gender, and other protected classes, as well as

complaint procedures for employees.

28. Respondent adequately explained its policy to

Petitioner. Petitioner signed an acknowledgment that

Respondent’s equal employment opportunity policy was explained

to him on his first day of work.

29. Except as stated otherwise in these Findings,

Petitioner has a satisfactory record of job performance.

Respondent hired Petitioner as an Assembler of wooden trusses

and quickly promoted Petitioner to a sawyer. Petitioner earned

five raises during his employment with Respondent. The raises

were effective on October 23, 2003; March 27, 2004; March 26,

2005; June 4, 2005; and March 26, 2006.

30. Petitioner presented no evidence that he sustained any

lost wages as a result of the alleged discrimination by

Respondent. Petitioner is currently employed, and there is no

evidence that Petitioner has received less compensation at his

new jobs or that he incurred any lost wages.

31. The evidence does not establish a prima facie case of

discrimination. However, that does not require a finding that

Petitioner initiated this proceeding for a frivolous or improper

purpose.

32. Several justiciable issues of fact and law preclude a

finding that Petitioner initiated this proceeding for a

frivolous or improper purpose, including the issues resolved in

paragraph 21 of these Findings of Fact. Two smoking policies

were in effect between August 2006 and February 15, 2007, when

Respondent terminated Petitioner's employment. The plant

manager readily admits that she did not enforce the previous

smoking policy with any consistency.

33. Respondent conducted a meeting on October 25, 2006, in

an attempt to stress the importance of complying with the former

smoking policy. Respondent admits in paragraphs 36 and 40 of

its PRO that a meeting to explain the new zero tolerance policy

did not occur until February 6, 2007, approximately nine days

before Respondent terminated Petitioner's employment.

34. In the six months preceding the termination of his

employment, Respondent transferred Petitioner to a loader

position that Petitioner viewed as far beneath his experience

and skills. The plant manager, a female, kept another female in

the sawyer position. Petitioner felt that he should have kept

his sawyer position because he had more training and experience

than the female sawyer. Petitioner had helped train the female

sawyer. Petitioner had an excellent employment history with

Respondent and had consistently earned raises during each year

of employment. Petitioner felt ambushed by the termination of

his employment; felt that the smoking violation was a pretext,

in light of the lax enforcement of the historical policy that

preceded the zero tolerance policy; and reasonably alleged

discrimination.

35. The fact-finder resolved the foregoing factual issues

in favor of Respondent. However, that does not mean that the

issues presented by Petitioner were not justiciable issues. For

example, the efficiency production reports are not readily

discernable without witness explanation and, without that

explanation, lend themselves to more than one interpretation.

The fact-finder resolved the issue in favor of Respondent, but

that does not deprive the issue of its justiciability.

CONCLUSIONS OF LAW

36. DOAH has jurisdiction over the subject matter and

parties to this proceeding. §§ 120.569 and 120.57(1), Fla.

Stat. (2007). DOAH provided the parties with adequate notice of

the administrative hearing.

37. No direct evidence of discrimination exists in this

case. A finding of discrimination, if any, must be based on

circumstantial evidence.

38. The burden of proof in discrimination cases involving

circumstantial evidence is set forth in McDonnell Douglas Corp.

v. Green , 411 U.S. 792, 802-03 (1973). Federal discrimination

law may be used for guidance in evaluating the merits of claims

arising under Chapter 760. Tourville v. Securex, Inc. , 769 So.

2d 491 (Fla. 4th DCA 2000); Greene v. Seminole Electric Co-op.

Inc. , 6701 So. 2d 646 (Fla. 5th DCA 1997); Brand v. Florida

Power Corp. , 633 So. 2d 504 (Fla. 1st DCA 1994).

39. Petitioner has the initial burden of establishing by a

preponderance of the evidence a prima facie case of unlawful

discrimination. Failure to establish a prima facie case of

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

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

(1996) ( citing Arnold v. Burger Queen Systems , 509 So. 2d 958

(Fla. 2d DCA 1987)). Petitioner also has the burden to show

that he was similarly situated to a comparator outside the

protected class. Ren v. University of Central Florida Board of

Trustees , 390 F. Supp. 2d 1223, 1228 (M.D. Fla. 2005).

40. If Petitioner were to succeed in making a prima facie

case, the burden shifts to Respondent to articulate some

legitimate, nondiscriminatory reason for its conduct. If

Respondent carries this burden of rebutting Petitioner’s prima

facie case, Petitioner must demonstrate that the proffered

reason was not the true reason, but merely a pretext for

discrimination. McDonnell Douglas , 411 U.S. at 802-03.

41. The issue of intent is covered in the McDonnell

Douglas procedure. The procedure allows a court to analyze

circumstantial evidence by creating inferences of discriminatory

intent. Scholz v. RDZ Sports, Inc. , 710 So. 2d 618, 624 (Fla.

5th DCA 1998).

42. For reasons stated in the Findings of Fact and not

repeated here, Petitioner did not make a prima facie showing of

discrimination. Respondent reasonably believed that Petitioner

violated the zero tolerance smoking policy on February 15, 2007,

and that belief was the sole basis for the adverse employment

action. The ALJ has no authority to examine the wisdom of an

employer's business decision, including the decision to strictly

enforce a zero tolerance smoking policy. Davis v. Town of Lake

Park, Florida , 245 F.3d 1232, 1245 (11th Cir. 2001).

43. The transfer of Petitioner to a loader position is not

an adverse employment action under the facts and circumstances

of this proceeding. The transfer did not result in a serious

and material change in the terms, conditions, and privileges of

employment, as viewed by a reasonable person. Davis , 245 F.3d

at 1239.

44. The issue of whether a transfer is an adverse

employment action is determined by an objective standard. A

transfer is not an adverse employment action merely because an

employee is unhappy or disagrees with the change. Doe v. DeKalb

School District , 145 F.3d 1441, 1449 (11th Cir. 1998). See also

Smart v. Ball State University , 89 F.3d 437, 441 (7th Cir.

1996)(mere fact that employee dislikes an employer’s action is

not sufficient to establish adverse employment action).

45. Even if the transfer were a demotion, such a demotion

could not form the basis of a claim of discrimination because

Petitioner suffered no loss of pay or benefits in Hudson v.

Southern Ductile Casting Corp. , 849 F.2d 1372, 1375 (11th Cir.

1988). A mere loss of prestige as perceived subjectively by the

employee, without more, does not create an adverse action

sufficient to support a discrimination claim. Davis , 245 F.3d

at 1242.

46. Subsection 760.11(6) authorizes FCHR, in its

discretion, to allow the prevailing party a reasonable

attorney's fee. The exercise of agency discretion is guided by

findings concerning the issue of whether Petitioner initiated

this proceeding for a frivolous or improper purpose.

47. Participation in a proceeding is frivolous whenever a

finding is made that there is a complete absence of a

justiciable issue of either law or fact. Whitten v. Progressive

Casualty Insurance, Co. , 410 So. 2d 501, 505 (Fla. 1982); Allen

v. Estate of Dutton , 384 So. 2d 171 (Fla. 5th DCA 1980). The

Florida Supreme Court stated in Whitten that the purpose of

awarding attorney's fees is to:

. . . discourage baseless claims, stonewall

defenses and sham appeals . . . by placing a

price tag through attorney's fees awards on

losing parties who engage in these

activities. Such frivolous litigation

constitutes a reckless waste of judicial

resources as well as the time and money of

prevailing litigants.

Whitten , 410 So. 2d at 505.

48. A determination of whether a claim is baseless,

depends upon the evidence presented by the nonprevailing adverse

party and that party's conduct during the proceeding. When the

nonprevailing adverse party fails to call witnesses in that

party's own behalf, nominally attempts to create an issue by

cross-examining witnesses for the opposing party, or otherwise

fails to show facts needed to sustain the pleadings, courts have

found the purpose to be baseless and frivolous. Hernandez v.

Leiva , 391 So. 2d 292 (Fla. 3d DCA 1980); Kisling v. Woolridge ,

397 So. 2d 747, 748 (Fla. 5th DCA 1981); White v. The Montebello

Corporation , 397 So. 2d 326 (Fla. 5th DCA 1981). Petitioner's

prosecution of his claim in this proceeding did not evidence a

baseless, frivolous, or improper purpose.

49. The issue of whether a party participates in a

proceeding for a frivolous, improper, or baseless purpose is an

issue of fact. Burke v. Harbor Estates Associates, Inc. and

Department of Environmental Regulation , 591 So. 2d 1034, 1037

(Fla. 1st DCA 1991); accord Dolphins Plus v. Residents of Key

Largo Ocean Shores, Clarence Hobdy, and State of Florida

Department of Environmental Regulation , 598 So. 2d 1992 (Fla. 3d

DCA 1992). The fact-finder is entitled to rely upon permissible

inferences. Burke , 591 So. 2d at 1037.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the FCHR issue a final order dismissing

Petitioner's claim of discrimination and denying Respondent's

request for attorney's fees.

DONE AND ENTERED this 16th day of July, 2008, in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

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 16th day of July, 2008.

ENDNOTES

1/ References to Subsections, Sections, and Chapters are to

Florida Statutes (2006) unless otherwise stated.

2/ Petitioner filed a Charge of Discrimination with the FCHR on

March 16, 2007.

3/ Counsel asked two separate witnesses if they knew the race of

Mr. Suarez. Each said, "Yes," and in response to the follow up

question testified that Mr. Suarez is "Puerto Rican." The ALJ

instructed the witnesses that Puerto Rican is not a race. The

witnesses amended their answer to testify that Mr. Suarez is

Hispanic. The ALJ acknowledged that the U.S. Census Bureau

identifies Hispanic as a race but further instructed the

witnesses that being from Spain or England is not a race. The

witnesses amended their answers to identify Mr. Suarez as

Caucasian and not African-American. The evidence shows that

Respondent subsequently fired an Asian employee for violation of

the zero tolerance smoking policy.

4/ Although 10 employees at the facility had the necessary

forklift credentials, Petitioner was the only employee between

Petitioner and Ms. Dowling with the requisite forklift

qualifications.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Alfred Truesdell, Esquire

Zimmerman, Kiser & Sutcliffe, P.A.

Post Office Box 3000

315 East Robinson Street, Suite 600

Orlando, Florida 32802-3000

Jerry Girley, Esquire

The Girley Law Firm

125 East Marks Street

Orlando, Florida 32803

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.