08-002622 Joe Pabon vs. Carlton Arms Of Ocala Status: Closed Recommended Order on Tuesday, September 16, 2008.

Summary: Petitioner failed to prove that he was fired because of his national origin (Hispanic).

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOE PABON, )

)

Petitioner, )

)

vs. ) Case No. 08-2622

)

CARLTON ARMS OF OCALA, )

)

Respondent. )

)

RECOMMENDED ORDER

A duly-noticed final hearing was held in this case by

Administrative Law Judge T. Kent Wetherell, II, on August 5,

2008, in Ocala, Florida.

APPEARANCES

For Petitioner: Joe Pabon, pro se

10435 Southwest 49th Avenue

Ocala, Florida 34476

For Respondent: John P. McAdams, Esquire

Carlton Fields

4221 West Bay Scout Boulevard

Post Office Box 3239

Tampa, Florida 33607

STATEMENT OF THE ISSUE

The issue is whether Respondent committed an unlawful employment practice against Petitioner.

PRELIMINARY STATEMENT

On or about November 8, 2007, Petitioner filed an

employment discrimination complaint against Respondent with the

Florida Commission on Human Relations (Commission). The

Commission investigated the complaint, and on May 6, 2008, the

Commission issued a “no cause” determination. On May 27, 2008,

Petitioner timely filed a Petition for Relief with the

Commission.

On May 28, 2008, the Commission referred the petition to

the Division of Administrative Hearings (DOAH). The referral

was received by DOAH on May 30, 2008.

The final hearing was scheduled for and held on August 5,

2008. At the hearing, Petitioner testified in his own behalf,

and Respondent presented the testimony of Laura Smith, Willie

Hutchinson, Cindy McMillen, David Kinman, and Rafael Vega.

Petitioner’s Exhibits P1 through P4 and P6 through P11 were

received into evidence, as were Respondent’s Exhibits 5, 14, 18,

19, 21, and 23.

The Transcript of the final hearing was filed on August 22,

2008. The parties were given 14 days from that date to file

proposed recommended orders (PROs). Petitioner filed a PRO on

August 19, 2008. Respondent filed a PRO on September 5, 2008.

The PROs have been given due consideration.

Petitioner filed a “response” to Respondent’s PRO on

September 11, 2008. On that same date, Respondent filed a

motion to strike that filing. The motion is granted, and

Uniform Rules of Procedure do not contemplate the filing of

“responses” to PROs, and the undersigned did not authorize such

filings in this case.

FINDINGS OF FACT

1. Petitioner is a Hispanic male.

2. Respondent is an 860-unit apartment complex in Ocala.

3. Petitioner was employed by Respondent as a full-time

maintenance technician from 2001 through September 28, 2007.

His job responsibilities included performing repairs and general

maintenance work on the insides of the apartments.

4. Petitioner’s starting wage in 2001 was $9.00 per hour.

He received annual raises from 2001 to 2004, at which point his

wage was $11.75 per hour.

5. Petitioner did not receive any raises from 2004 through

2007. He was still earning $11.75 per hour when he was fired on

September 28, 2007.

6. Starting in 2004, Respondent did not give raises to any

maintenance technicians who were not HVAC-certified. This

policy applied equally to all maintenance technicians, including

non-Hispanics, and was intended to encourage them to get HVAC-

certified.

7. HVAC certification was important to Respondent because

the air conditioning systems at the apartment complex were

getting older and were requiring more frequent repairs.

8. Respondent provided the necessary study materials for

the HVAC certification exam and paid for the exam.

9. Petitioner is not HVAC-certified. He took the

certification exam once, but he did not pass. He did not take

the exam again, even though Respondent would have paid for him

to do so as it did for other maintenance technicians.

10. HVAC certification is not required to perform all

types of work on air conditioners, and Petitioner continued to

do some work on the air conditioners at the apartment complex

after 2004 even though he was not HVAC-certified.

11. Petitioner was characterized as a “fair” employee who

did “okay” work. His supervisor, a Hispanic male, testified

that there were some jobs that he did not assign to Petitioner,

that Petitioner frequently got help from other employees, and

that he received a couple of complaints from other maintenance

technicians about Petitioner’s work.

12. Respondent does not have an employee handbook, and the

only written policy that Respondent has is a policy prohibiting

sexual and other harassment. Respondent’s executive director,

Laura Smith, testified that she expected employees to use

“common sense” regarding what they can and cannot do at work.

13. Respondent utilizes a system of progressive

discipline, which starts with warnings (oral, then written) and

culminates in dismissal. However, the nature of the misconduct

determines the severity of the discipline imposed, and a serious

first offense may result in dismissal.

14. On October 5, 2006, Petitioner was given an oral

warning for “improper conduct” for visiting with a housekeeper

multiple times a day for as long as 20 minutes at a time. The

housekeeper also received an oral warning for this conduct.

15. On May 15, 2007, Petitioner was given a written

warning for the same “improper conduct,” i.e. , wasting time by

going into an apartment to visit with a housekeeper.

16. Petitioner acknowledged receiving these warnings, but

he denied engaging in the conduct upon which they were based.

His denials were contradicted by the more credible testimony of

his supervisor and Ms. Smith.

17. Petitioner was fired on September 28, 2007, after a

third incident of “improper conduct.”

18. On that day, Petitioner left the apartment complex

around 10 a.m. to get gas in his truck. He did not “clock out”

or get permission from his supervisor before leaving the

apartment complex. Petitioner was away from the apartment

complex for at least 15 minutes, but likely no more than 30

minutes.

19. Even though Respondent does not have written policies

and procedures, Petitioner understood, and common sense dictates

that he was supposed to get his supervisor’s approval and “clock

out” before he left the complex on a personal errand.

20. Petitioner also understood the procedure to be

followed to get the 14 gallons of gas per week that Respondent

provided for maintenance technicians. The procedure required

the employee to get the company credit card from the bookkeeper,

get the gas from a specific gas station, and then return the

credit card and a signed receipt for the gas to the bookkeeper.

21. Petitioner did not follow any aspect of this procedure

on the day that he was fired. He had already gotten the

14 gallons of gas paid for by Respondent earlier in the week.

22. Petitioner’s supervisor, a Hispanic male, compared

was getting paid for time that he was not at the apartment

complex working. He also expressed concern that Respondent

could have been held liable if Petitioner had gotten in an

accident on his way to or from getting gas because he was still

“on the clock” at the time.

23. Petitioner testified that he and other maintenance

technicians routinely left the apartment complex to fill up

their cars with gas without “clocking out” or getting permission

from their supervisor. This testimony was corroborated only as

to the 14 gallons of gas paid for each week by Respondent.

24. There is no credible evidence that other employees

routinely left the apartment complex to do personal errands

without “clocking out,” and if they did, there is no credible

evidence that Respondent’s managers were aware of it.

25. There is no credible evidence whatsoever that

Petitioner’s firing was motivated by his national origin. His

supervisor is Hispanic, and he and Ms. Smith credibly testified

that the fact that Petitioner was Hispanic played no role in her

decision to fire Petitioner.

26. Petitioner claimed that he was “harassed” by Ms. Smith

and that she accused him of having sex with a housekeeper in the

vacant apartments. No persuasive evidence was presented to

support Petitioner’s “harassment” claim, which was credibly

denied by Ms. Smith.

27. Petitioner also claimed that he was disciplined

differently than similar non-Hispanic employees, namely James

Stroupe, Jason Head, and Willie Hutchinson.

28. Mr. Stroupe is a white male. He worked on the grounds

crew, not as a maintenance technician. In May 2007, Mr. Stroupe

was given a written warning based upon allegations that he was

making explosive devices at work, and in September 2007, he was

given an oral warning for “wasting time” by hanging out in the

woods with Mr. Head.

29. Mr. Head is a white male. He worked on the grounds

crew, not as a maintenance technician. In September 2007, he

received a written warning for “wasting time” by hanging out in

the woods with Mr. Stroupe.

30. Mr. Hutchinson is a white male, and like Petitioner,

he worked as a maintenance technician. In September 2007, he

was arrested for DUI. Mr. Hutchinson was not disciplined by

Respondent for this incident because it did not happen during

working hours and it did not affect his ability to perform his

job duties as maintenance technician.

31. The grounds department (in which Mr. Stroupe and Mr.

Head worked) was responsible for maintaining the landscaping

around the apartment complex, whereas the maintenance department

(in which Petitioner and Mr. Hutchinson worked) was responsible

for maintaining the insides of the apartments. The departments

had different supervisors.

32. Petitioner was initially denied unemployment

compensation by Respondent after he was fired, but he

successfully appealed the denial to an Appeals Referee.

Petitioner received unemployment compensation through

April 2008.

33. On April 11, 2008, Petitioner started working for

Holiday Inn as a maintenance technician. He is employed full

time and his wage is $11.50 per hour.

34. Respondent placed an advertisement in the local

newspaper after Petitioner was fired in order to fill his

position in the maintenance department. The advertisement

stated that Respondent was looking for an applicant who was

HVAC-certified.

35. Respondent hired Javier Herrera to fill the position.

Mr. Herrera, like Petitioner, is a Hispanic male.

CONCLUSIONS OF LAW

36. DOAH has jurisdiction over the parties to and subject-

matter of this proceeding pursuant to Sections 120.569,

120.57(1), and 760.11(7), Florida Statutes. 1 /

37. The Florida Civil Rights Act (FCRA) provides that it

is an unlawful employment practice for an employer to “discharge

. . . or otherwise to discriminate against any individual with

respect to compensation, terms, conditions, or privileges of

employment, because of such individual's . . . national origin .

. . .” See § 760.10(1)(a), Fla. Stat.

38. The FCRA was patterned after Title VII of the federal

Civil Rights Act, and, therefore, case law construing Title VII

is persuasive when construing the FCRA. See Florida State

University v. Sondel , 685 So. 2d 923, 925 n.1 (Fla. 1st DCA

1996).

39. Anti-discrimination laws such as the FCRA and Title

VII do not give the courts, the Commission, or the undersigned

the authority to sit as a kind of “super-personnel department”

and second-guess an employer’s business decisions. See Elrod v.

Sears, Roebuck & Co. , 939 F.2d 1466, 1470 (11th Cir. 1991).

These laws are not concerned with whether an employment decision

is prudent or fair, but only with whether it was motivated by

unlawful animus. Id. See also Ptasznik v. St. Joseph Hosp. ,

464 F.3d 691, 697 (7th Cir. 2006) (“Federal courts have

authority to correct an adverse employment action only where the

employer's decision is unlawful, and not merely when the adverse

action is unwise or even unfair. ‘We do not sit as a super-

personnel department with authority to review an employer's

business decision as to whether someone should be fired or

disciplined because of a work-rule violation.’”); Damon v.

Fleming Supermarkets, Inc. , 196 F.3d 1354, 1361 (11th Cir. 1999)

(“We are not in the business of adjudging whether employment

decisions are prudent or fair. Instead, our sole concern is

whether unlawful discriminatory animus motivates a challenged

employment decision.”).

40. Petitioner’s discrimination claim, which is not based

upon any direct evidence of discrimination, 2 / must be analyzed

under the framework established in McDonnell Douglass

Corporation v. Green , 411 U.S. 792 (1973).

41. Under that framework, Petitioner has the initial

burden of establishing by a preponderance of the evidence a

prima facie case of unlawful discrimination. See McDonnell

Douglass , 411 U.S. at 802.

42. In order to establish a prima facie case of wrongful

discharge, which is Petitioner’s primary claim, 3 / Petitioner must

establish that (1) he belongs to a group protected by the FCRA;

(2) he was qualified for the job from which he was discharged;

(3) he was discharged; and (4) his former position was filled by

a person outside of his protected class or that he was

disciplined differently than a similarly-situated employee

outside of his protected class. See Jones v. Lumberjack Meats,

Inc. , 680 F.2d 98, 101 (11th Cir. 1982); Scholz v. RDV Sports,

Inc. , 710 So. 2d 618, 623 (Fla. 5th DCA 1998); Cesarin v.

Dillards, Inc. , Order No. 03-037 (FCHR Apr. 29, 2003) (adopting

the Recommended Order in DOAH Case No. 01-4805, but clarifying

what must be established as the first element of the prima facie

case).

43. If Petitioner establishes a prima facie case, the

burden shifts to Respondent to produce evidence that the adverse

employment action was taken for legitimate non-discriminatory

reasons. See McDonnell Douglas , 411 U.S. at 802-03. If

Petitioner fails to establish a prima facie case, the burden

never shifts to Respondent.

44. Once a non-discriminatory reason is presented by

Respondent, the burden then shifts back to Petitioner to

demonstrate that the reason is merely a pretext for

discrimination. See McDonnell Douglas , 411 U.S. at 804.

45. The ultimate burden of persuasion remains with

Petitioner throughout the case to demonstrate a discriminatory

motive for the adverse employment action. Id. See also

St. Mary’s Honor Center v. Hicks , 509 U.S. 502, 507-08, 510-11

(1993).

46. In order to meet this ultimate burden of proof, “[i]t

is not enough . . . to dis believe the employer; the factfinder

must believe the plaintiff's explanation of intentional

discrimination.” St. Mary’s Honor Center , 509 U.S. at 519

(emphasis in original).

47. Pretext can be established by showing that the reason

See Reeves v. Sanderson Plumbing Products, Inc. , 530 U.S. 133,

147-49 (2000). Pretext can also be established through

circumstantial evidence that the plaintiff was treated less

favorably than other employees who were “similarly situated . .

. ‘in all relevant respects.’” See , e.g. , Dept. of Children &

Family Servs. v. Garcia , 911 So. 2d 171, 173 (Fla. 3d DCA 2005)

(citing cases).

48. Likewise, in determining whether other employees are

similarly situated for purposes of Petitioner’s prima facie

case,

it is necessary to consider whether the

employees are involved in or accused of the

same or similar conduct and are disciplined

in different ways. The most important

factors in the disciplinary context are the

nature of the offenses committed and the

nature of the punishments imposed. We

require that the quantity and quality of the

comparator's misconduct be nearly identical

to prevent courts from second-guessing

employers' reasonable decisions and

confusing apples with oranges.

Maniccia v. Brown , 171 F.3d 1364, 1368 (11th Cir. 1999)

(citations and internal quotations omitted).

49. Petitioner established the first three elements of a

prima facie case of discrimination. He is Hispanic, he was

qualified for the maintenance technician position, and he was

fired by Respondent.

50. Petitioner failed to establish the fourth element of a

prima facie case . His former position was filled by another

Hispanic male, and there is no credible evidence that Petitioner

was disciplined differently than similarly situated non-Hispanic

employees.

51. The comparators identified by Petitioner were not

similarly situated to him “in all relevant respects.” Two of

the comparators -- Mr. Shoupe and Mr. Head -- worked in a

different department and performed different jobs than

Petitioner and none of the comparators engaged in the same

improper conduct for which Petitioner was fired, i.e. , leaving

the apartment complex without permission and without “clocking

out.” Also, the comparators did not have multiple incidents of

“improper conduct” for which they were progressively

disciplined, as was the case with Petitioner.

52. Even if Petitioner had established a prima facie case

of discrimination, Respondent met its burden to produce a

legitimate, non-discriminatory reason for Petitioner’s

discharge, i.e. , leaving work without permission and without

“clocking out” to run a personal errand.

53. Petitioner failed to prove that this reason was false,

unworthy of credence, or otherwise merely a pretext for unlawful

discrimination. Indeed, Petitioner admitted to this conduct.

54. Therefore, even if it were somehow determined that

Petitioner established a prima facie case, he failed to carry

his ultimate burden of persuasion.

55. In reaching this conclusion, the undersigned did not

overlook the fact that Petitioner successfully appealed

Respondent’s denial of his unemployment compensation benefits.

However, the legal standards in that case -- whether Petitioner

was discharged for “misconduct” as defined by the statutes and

case law governing unemployment compensation -- is different

from the legal standards governing this case.

56. In the unemployment compensation case, Respondent had

the burden to prove “willful or wanton disregard of [its]

interests” by Petitioner or “negligence of such a degree or

recurrence as to manifest culpability, wrongful intent, or evil

design.” See , e.g. , Hall v. Unemployment Appeals Comm’n ,

700 So. 2d 107, 109 (Fla. 1st DCA 1997) (quoting the definition

of “misconduct” in Section 443.036(26), Florida Statutes, and

citing cases construing the definition). By contrast, in this

case, Petitioner had the burden to prove that his firing was

motivated by unlawful discrimination as described above.

RECOMMENDATION

Based upon the foregoing findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Commission issue a final order

dismissing the Petition for Relief with prejudice.

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

Tallahassee, Leon County, Florida.

S

T. KENT WETHERELL, II

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 September, 2008.

ENDNOTES

1 / All statutory references are to the 2007 version of the

Florida Statutes.

2 / Direct evidence of discrimination is:

evidence which, if believed, would prove the

existence of a fact in issue without

inference or presumption. Only the most

blatant remarks, whose intent could be

nothing other than to discriminate . . .

constitute direct evidence of

discrimination. For statements of

discriminatory intent to constitute direct

evidence of discrimination, they must be

made by a person involved in the challenged

decision. Remarks by non-decisionmakers or

remarks unrelated to the decisionmaking

process itself are not direct evidence of

discrimination.

Bass v. Board of County Commissioners , 256 F.3d 1095, 1105 (11th

Cir. 2001).

3 / Petitioner also claims to have been subjected to sexual

harassment, harassment, and disparate terms, conditions, and

wages. See Petitioner’s PRO. These claims are not separately

analyzed in this Recommended Order because no credible evidence

was presented to show that Respondent treated Petitioner any

differently than non-Hispanic maintenance technicians in any

respect or that Petitioner was subjected to harassment of any

kind.

COPIES FURNISHED :

John P. McAdams, Esquire

Carlton Fields

4221 West Bay Scout Boulevard

Post Office Box 3239

Tampa, Florida 33607

Joe Pabon

10435 Southwest 49th Avenue

Ocala, Florida 34476

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry Kranert, 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.