08-001436 Robinson Nelson vs. Alutiiq-Mele, Llc Status: Closed Recommended Order on Wednesday, July 23, 2008.

Summary: Security services company did not unlawfully discriminate against Petitioner on the basis of his race in violation of the Florida Civil Rights Act, when Petitioner was an employee of Respondent.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARIN GS

ROBINSON NELSON, )

)

Petitioner, )

)

vs. ) Case No. 08-1436

)

ALUTIIQ-MELE, LLC, )

)

Respondent. )

)

RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

June 11, 2008, at sites in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioner: Erwin Rosenberg, Esquire

Post Office Box 416433

Miami Beach, Florida 33141

For Respondent: Christine L. Wilson, Esquire

Jennifer A. Schwartz, Esquire

Jackson Lewis LLP

One Biscayne Tower, Suite 3500

2 South Biscayne Boulevard

Miami, Florida 33131

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent unlawfully

discriminated against Petitioner on the basis of his race in

violation of the Florida Civil Rights Act, when Petitioner was

an employee of Respondent.

PRELIMINARY STATEMENT

In November 2005, Petitioner Robinson Nelson filed a Charge

of Discrimination with the Florida Commission on Human Relations

("FCHR"), and also with the Equal Employment Opportunity

Commission ("EEOC"). In his Charge, Mr. Nelson claimed that

Respondent Alutiiq-Mele, LLC had committed two acts of unlawful

racial discrimination against him during his tenure as an

employee of Respondent.

The EEOC investigated the case but was unable to decide

whether Respondent had violated Mr. Nelson's civil rights.

Because more than 180 days had elapsed since Mr. Nelson had

filed his Charge and no determination had been made concerning

the merits thereof, the FCHR issued a "Right to Sue" letter on

March 4, 2008. Mr. Nelson elected to pursue administrative

remedies, timely filing a Petition for Relief with the FCHR on

or about March 17, 2008.

The FCHR transmitted the Petition for Relief to the

Division of Administrative Hearings on March 18, 2008, and an

administrative law judge ("ALJ") was assigned to hear the case.

The ALJ scheduled the final hearing for May 12, 2008. At

Respondent's request, the final hearing was continued until

June 11, 2008.

At the hearing, Mr. Nelson testified on his own behalf and

offered Petitioner's Exhibits 6 and 7, which were admitted into

evidence. During its case, Respondent called as a witness

Lanett T. Russell, who was, as of the hearing, an employee of

Respondent. Respondent's Exhibits 1-4, 7, 9-29, and 31-36 were

received in evidence as well.

The final hearing transcript was filed on July 11, 2008.

Each party filed a Proposed Recommended Order before the

deadline established at hearing, which was July 21, 2008.

Unless otherwise indicated, citations to the Florida

Statutes refer to the 2007 Florida Statutes.

FINDINGS OF FACT

1. From November 2004 until early 2008, which period

includes all times relevant to this case, Petitioner Robinson

Nelson ("Nelson") worked for Respondent Alutiiq-Mele, LLC

("AML") as a security guard.

2. Nelson, who is black, alleges that on two discrete

occasions, AML unlawfully discriminated against him based on

race, once denying him an overtime shift which he requested, and

the other time refusing to assign him "equal work hours."

3. The first incident allegedly took place on "or about

March 1, 2005." According to Nelson, he called his supervisor

that day, using a telephone at his workstation, to ask that he

be scheduled to work overtime on his day off. The supervisor,

Nelson claims, told him that overtime had been "eliminated" and

denied Nelson's request. Shortly thereafter, as Nelson tells

it, the supervisor called Nelson's coworker, Nadja Abreu, and

offered her the overtime that Nelson had just been denied.

4. Nelson's story cannot be squared with AML's records,

which the undersigned considers reliable and truthful and hence

credits. Nelson's timesheet for the week of February 27 through

March 5, 2005, shows (and it is found) that he worked all seven

days that week, putting in 40 regular hours and 26 overtime

hours. Ms. Abreu's timesheet for the same period shows (and it

is found) that she worked four days, accruing 40 regular hours

and four overtime hours.

5. At hearing, Nelson claimed (apparently for the first

time) that the telephone conversation with his supervisor

regarding overtime had not occurred on or about March 1, 2005——

as he had alleged originally in his Charge of Discrimination

(signed on November 20, 2005) and maintained as recently as the

Joint Prehearing Stipulation (dated May 30, 2008)——but rather

some two weeks later, on or about March 15, 2005. Again,

however, credible contemporaneous records belie Nelson's claim.

A payroll document shows (and it is found) that Nelson and

Ms. Abreu each worked 40 regular hours during the week of March

13, 2005——and neither put in overtime. (Moreover, Nelson did

not work on March 15 and 16, 2005, which means that, if Nelson

called his supervisor on March 15, as he asserted at hearing,

then he likely would not have been at his workstation at the

time, which is inconsistent with his testimony that he placed

the call while at work.)

6. Regarding the second alleged incident of

discrimination, Nelson claims that on Monday, October 31, 2005,

shortly before 9:00 a.m., he received a telephone call at home

from his supervisor, who wanted to know why Nelson had failed to

report for work that morning. Nelson says he told his

supervisor that he had not been scheduled to work that day, and

he could not work because he was babysitting. Nelson complains

that, in connection with this situation, AML "denied" him

regular work hours because of his race.

7. In addition to being facially illogical, Nelson's claim

of discrimination is contradicted by reliable and persuasive

documentary evidence. First, AML's payroll record shows (and it

is found) that Nelson worked four hours on Sunday, October 30,

and seven-and-a-half hours each day the next Tuesday through

Friday, making a total 34 regular hours during the week of

October 30, 2005. While this was not quite a full-time

workweek, that Nelson worked fewer than 40 hours one week is

not, of itself, proof that AML "denied" him six hours of work.

8. In fact, AML did not "deny" Nelson a work opportunity,

as other contemporaneous documents——not to mention Nelson's own

testimony——show. In evidence are two work schedules pertaining

to the week of October 30, 2005. One was printed on October 28,

2005, and the other on October 30, 2005. There are a number of

differences between them; each, however, notes that "scheduled

hours are subject to change as needed." On the earlier

schedule, Nelson was to be off on Monday, October 31, 2005. On

the subsequent schedule, he was to work from 9:00 a.m. to 4:00

p.m. that day. Had Nelson reported to work on October 31, 2005,

would have worked more than 40 hours the week of October 30,

2005.

Ultimate Factual Determinations

9. Taken as a whole, the evidence in this case is either

insufficient to establish that AML discriminated unlawfully

against Nelson on the basis of his race; or it proves,

affirmatively, that AML did not , in all likelihood, unlawfully

discriminate against him. Either way, it is determined, as a

matter of ultimate fact, that AML did not violate the civil

rights laws in its treatment of Nelson while he was an employee

of AML.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

Sections 120.569, and 120.57(1), Florida Statutes.

11. The Florida Civil Rights Act of 1992 ("FCRA") is

codified in Sections 760.01 through 760.11, Florida Statutes.

When "a Florida statute [such as the FCRA] is modeled after a

federal law on the same subject, the Florida statute will take

on the same constructions as placed on its federal prototype."

Brand v. Florida Power Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA

1994). Therefore, t he FCRA should be interpreted, where

possible, to conform to Title VII of the Civil Rights Act of

1964, which contains the principal federal anti-discrimination

laws.

12. Section 760.10, Florida Statutes, provides, in

relevant part:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire any individual, or otherwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges of employment, because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

13. A complainant alleging unlawful discrimination may

prove his case using direct evidence of discriminatory intent.

Direct evidence is evidence that, if believed, would prove the

existence of discriminatory intent without resort to inference

or presumption. Denney v. City of Albany , 247 F.3d 1172, 1182

(11th Cir. 2001); Holifield v. Reno , 115 F.3d 1555, 1561 (11th

Cir. 1997). Courts have held that "only the most blatant

remarks, whose intent could be nothing other than to

discriminate," satisfy this definition. See Damon v. Fleming

Supermarkets of Fla., Inc. , 196 F.3d 1354, 1358-59 (11th Cir.

1999)(internal quotations omitted) , cert. denied , 529 U.S. 1109,

120 S. Ct. 1962, 146 L. Ed. 2d 793 (2000). Often, such evidence

is unavailable, and in this case, Nelson presented none.

14. A s an alternative to relying exclusively upon direct

evidence, the law permits a complainant to profit from an

inference of discriminatory intent, if he can adduce sufficient

circumstantial evidence of discriminatory animus——such as proof

that the charged party treated persons outside of the protected

class, who were otherwise similarly situated, more favorably

than the complainant was treated. Such circumstantial evidence,

when presented, constitutes a prima facie case.

15. In McDonnell Douglas Corp. v. Green , 411 U.S. 792,

802-803 (1973), the U.S. Supreme Court articulated a scheme for

analyzing employment discrimination claims where, as here, the

complainant relies upon circumstantial evidence of

discriminatory intent. Pursuant to this analysis, the

complainant 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), aff'd , 679 So. 2d 1183 (Fla.

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

(Fla. 2d DCA 1987)). If, however, the complainant succeeds in

making a prima facie case, then the burden shifts to the accused

employer to articulate a legitimate, non-discriminatory reason

for its complained-of conduct. This intermediate burden of

production, not persuasion, is "exceedingly light." Turnes v.

Amsouth Bank, N.A. , 36 F.3d 1057, 1061 (11th Cir. 1994). If the

employer carries this burden, then the complainant must

establish that the proffered reason was not the true reason but

merely a pretext for discrimination. St. Mary's Honor Center v.

Hicks , 509 U.S. 502, 516-518, 113 S. Ct. 2742, 2752-53, 125 L.

Ed. 2d 407, 422-23 (1993). At all times, the "ultimate burden

of persuading the trier of fact that the [charged party]

intentionally discriminated against" him remains with the

complainant. Silvera v. Orange County Sch. Bd. , 244 F.3d 1253,

1258 (11th Cir. 2001), cert. denied , 534 U.S. 976, 122 S. Ct.

402, 151 L. Ed. 2d 305 (2001), reh'g denied , 535 U.S. 1013, 122

S. Ct. 1598, 152 L. Ed. 2d 513 (2002).

16. To establish a prima facie case of discriminatory

treatment, Nelson was required to show that: (1) he is a member

of a protected class; (2) he was subjected to an adverse

employment action; (3) his employer treated similarly situated

employees outside of his protected class more favorably than he

was treated; and (4) he was qualified to do the job. Mathis v.

Wachovia Bank , 255 Fed. Appx. 425, 429-30 (11th Cir. 2007);

Burke-Fowler v. Orange County, Fla. , 447 F.3d 1319, 1323 (11th

Cir. 2006).

17. It is not disputed that Nelson belongs to a protected

class, or that he was qualified for the job of security guard.

Nelson failed, however, to produce persuasive evidence showing

that any employee——much less one outside of the protected class,

who was similarly situated to him in all relevant aspects——was

treated more favorably than he was with regard to work hours.

18. Further, Nelson offered no persuasive evidence that he

suffered a legally cognizable adverse employment action. As

mentioned, a prima facie case requires proof of "adverse

employment action." "An adverse employment action [for the

purposes of a discrimination claim] is an ultimate employment

decision, such as discharge or failure to hire, or other conduct

that alters the employee's compensation, terms, conditions, or

privileges of employment, deprives him or her of employment

opportunities, or adversely affects his or her status as an

employee." Gupta v. Fla. Bd. of Regents , 212 F.3d 571, 587

(11th Cir. 2000), cert. denied , 531 U.S. 1076, 121 S. Ct. 772,

148 L. Ed. 2d 671 (2001) (internal quotations and citations

omitted). "[The Eleventh Circuit] has never adopted a bright-

line test for what kind of effect on the [complainant's] 'terms,

conditions, or privileges' of employment the alleged

discrimination must have for it to be actionable; nor would such

a rigid test be proper." Davis v. Town of Lake Park, Fla. , 245

F.3d 1232, 1238 (11th Cir. 2001) (citing Gupta , 212 F.3d at

586). "It is clear, however, that not all conduct by an

employer negatively affecting an employee constitutes adverse

employment action." Id. "Title VII is neither a general

civility code nor a statute making actionable the ordinary

tribulations of the workplace." Id. at 1239 (internal

quotations and citations omitted).

19. The Eleventh Circuit has stated generally that " to

prove adverse employment action in a case under Title VII's

anti-discrimination clause, an employee must show a serious and

material change in the terms, conditions, or privileges of

employment." Id. at 1239 (emphasis in original). "Moreover,

the employee's subjective view of the significance and adversity

of the employer's action is not controlling; the employment

action must be materially adverse as viewed by a reasonable

person in the circumstances." Id.

20. None of the treatment Nelson claims was discriminatory

constituted adverse employment action. Concerning overtime

hours, the evidence shows at most that Nelson was disappointed

on one occasion when his request to work an extra shift was

denied. To be clear, there is no evidence whatsoever that

Nelson suffered a material loss of overtime, which could be an

adverse employment action. See Shannon v. Bellsouth

Telecommunications, Inc. , 292 F.3d 712, 714, 716-17 (11th Cir.

2002)(plaintiff, who was "totally blackballed" from overtime

opportunities and consequently lost approximately 90 percent of

the annual overtime compensation he had earned previously,

presented sufficient evidence of unlawful retaliation).

21. As for the alleged denial of "equal" hours the week of

October 30, 2005, the evidence shows at most a miscommunication

between AML and Nelson, which resulted in Nelson's being unable

to work a shift, as scheduled, on October 31, 2005. Viewed

objectively, this singular event cannot be deemed a materially

adverse change in the terms or conditions of Nelson's

employment.

22. Because Nelson failed to establish a prima facie case

of discriminatory treatment, he did not create a presumption of

discrimination under the McDonnell Douglas framework, and the

burden never shifted to AML to rebut the presumption by

articulating legitimate, non-discriminatory reasons for its

actions. It was therefore not necessary to make any findings of

fact in this regard.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the FCHR enter a final order finding

AML not liable to Nelson for racial discrimination.

DONE AND ENTERED this 23rd day of July, 2008, in

Tallahassee, Leon County, Florida.

___________________________________

JOHN G. VAN LANINGHAM

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 23rd day of July, 2008.

COPIES FURNISHED :

Erwin Rosenberg, Esquire

Post Office Box 416433

Miami Beach, Florida 33141

Christine L. Wilson, Esquire

Jennifer A. Schwartz, Esquire

Jackson Lewis LLP

One Biscayne Tower, Suite 3500

2 South Biscayne Boulevard

Miami, Florida 33131

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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.