08-003937 Jacques Pierre vs. Security Services Of America Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Friday, March 11, 2011.

Summary: Petitioner showed a prima facie case of retaliation for the filing of an EEOC complaint, and established employment discrimination where, after denial of motion to dismiss petition, Respondent declined to present evidence to meet the burden of production.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JACQUES PIERRE, )

)

Petitioner, )

)

vs. ) Case No. 08-3937

)

SECURITY SERVICES OF AMERICA, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held in this case on September 25,

2009, by video teleconference at sites in Tallahassee and Miami,

Florida, before Eleanor M. Hunter, Administrative Law Judge with

the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Erwin Rosenberg, Esquire

Post Office Box 416433

Miami Beach, Florida 33141

For Respondent: Ronald G. Polly, Esquire

Hawkins & Parnell, LLP

4000 SunTrust Plaza

303 Peachtree Street, Northeast

Atlanta, Georgia 30308-3243

STATEMENT OF THE ISSUE

The issue is whether Respondent engaged in an unlawful

employment practice by retaliating against Petitioner for filing

a charge of discrimination.

PRELIMINARY STATEMENT

Petitioner, Jacques Pierre (Mr. Pierre), filed a Charge of

Discrimination with the Florida Commission on Human Relations

(Commission) dated October 3, 2006. Mr. Pierre alleged

retaliation for a previous complaint of discrimination based on

race (black) and national origin (Haitian).

The Commission investigated the complaint and on July 2,

2008, issued its "Notice of Determination: Cause." Mr. Pierre

timely filed a Petition for Relief with the Commission on

July 7, 2008. The Petition with attachments was transmitted to

the Division of Administrative Hearings in a letter dated

August 12, 2008. Based on a Joint Response to Initial Order,

the case was set initially for hearing on October 30, 2008. Due

to a conflict in Petitioner's counsel's schedule, Petitioner's

Motion for Continuance was granted and the case was re-scheduled

for December 15, 2008. On December 1, 2008, Respondent's Motion

for Summary Final Order (the Motion) was filed with a Memorandum

of Law in Support of the Motion. On December 3, 2008,

Petitioner's counsel filed a Motion to Withdraw as Attorney for

Petitioner, in order to testify on his behalf, and requested a

continuance to allow Petitioner to obtain other counsel. The

unopposed motion to withdraw was granted and the hearing was

rescheduled for March 26, 2009, at 9:00 a.m. No subsequent

notice of appearance on Petitioner's behalf was received.

At the time set for the hearing to commence, counsel for

Respondent announced his appearance and presented his Motion.

In addition to the grounds stated in the written Motion,

Respondent's counsel argued that, in effect, a Motion To Dismiss

should be granted because Mr. Pierre failed to respond to the

Motion, and failed to appear for the hearing. The hearing was

postponed for 15 minutes. At the end of that time, Mr. Pierre

did not appear, and the Motion was granted.

After the hearing ended, Respondent's counsel telephoned

the undersigned's assistant and notified her that, as he was

leaving, he saw that Mr. Pierre had arrived. Over objection of

Respondent's counsel, the proceedings were reconvened and

Respondent's counsel presented his Motion again. In response,

Mr. Pierre asserted that a response to the Motion, in fact, had

been filed. To support that claim, he presented the testimony

of his former attorney, Erwin Rosenberg, but Mr. Rosenberg

confirmed that he had not filed a response to the Motion, most

likely because the Motion was filed at approximately the same

time that he was withdrawing as counsel. After that hearing,

Mr. Rosenberg subsequently filed a Notice of Appearance as

counsel for Petitioner and a response to the Motion. The Order

granting the Motion was vacated on April 1, 2009, based on the

provisions of Florida Administrative Code Rule 28-106.204(4) and

Subsection 760.11(6), Florida Statutes (2008). The hearing was

rescheduled and held on September 25, 2009. Proposed

Recommended Orders were filed on November 6 and 19, 2009. The

Transcript, due on October 9, 2009, was apparently timely

received by counsel. The Transcript was not received at the

Division of Administrative Hearings until December 16, 2009,

after the assistant to the undersigned requested if from counsel

for the Respondent.

At the final hearing, Petitioner presented the testimony of

Kent Jurney and Jacques Pierre. Petitioner's Exhibits A, B, C,

D, and E were received in evidence. Respondent's Exhibits 1 and

2, Petitioner's depositions, were received in evidence.

Respondent presented no witnesses and made an ore tenus Motion

for a Directed Verdict at the close of Petitioner's case,

arguing that Petitioner failed to establish the third prong of a

prima facie case of retaliation. The Motion was denied.

Respondent rested its case.

FINDINGS OF FACT

1. Petitioner, Jacques Pierre (Petitioner or Mr. Pierre)

is black and his national origin is Haitian. He has worked in

the United States for 24 years. On or about January 25, 2006,

Mr. Pierre filed with the Equal Employment Opportunity

Commission (EEOC) a charge of discrimination against his

employer, Respondent, SSA Security, Inc., a/k/a Security

Services of America, a California Corporation (Respondent or

SSA).

2. SSA, under a subcontract with a federal government

contractor, Alutiiq-Mele, provided security services for a

federal building in Miami. SSA continued to employ Petitioner

as a security guard when it took over the contract from his

previous employer, Superior Protection. Contractors and

managers changed, in the past, but the security guards stayed

the same.

3. On August 10, 2006, and August 15, 2006, first

Mr. Pierre, then a representative for SSA signed an agreement to

settle the EEOC complaint. With a letter dated August 23, 2006,

Mr. Pierre received a settlement check in the amount of

$1,257.04, and he was advised to report any future unlawful

harassment or discrimination charges by use of a "Harassment

Hotline and [to] speak with your local area manager, Barry

Hirsch [sic]." Captain Barry Hersch was Mr. Pierre's immediate

supervisor. The agreement was approved, in principle, by Kent

Jurney, Sr., an SSA corporate officer. The language of the

agreement is, in relevant part, as follows:

1. Removal of all Disciplinary Notices in

File . Company agrees to remove all writings

related to disciplinary actions taken

against Employee from Employee's personnel

file maintained by the Company. Employee

understands that the removal of said

documents does not prevent the Company from

issuing disciplinary notices and/or taking

disciplinary action against Employee as

necessary in the future should Employee

violate the Company's rules of [sic]

policies.

* * *

4. Confidentiality Clause. The Employee

and the Company agree to the following

confidentiality and non-disclosure

agreement:

(a) The parties represent and agree that

they will keep the terms and amount of this

agreement completely confidential. The

parties will not hereafter disclose any

information concerning this agreement to

anyone, including but not limited to, any

past, present or prospective employee of the

Company or any prospective employer of the

Employee.

4. On August 25, 2006, the federal government changed the

requirements in the contract. No longer would security guards

be allowed to take breaks at the start or end of their shifts,

but only during the middle. Mr. Pierre was made aware of the

change. In violation of the requirement, on September 1, 2006,

Mr. Pierre took his break at the end of his shift.

5. The federal government contract also prohibited

security guards from being on the work premises more than 30

minutes before or after their shifts. On August 28, 2006,

Mr. Pierre returned to his work site and entered the building

more than 30 minutes after his shift to retrieve keys and a

telephone charger. Mr. Pierre also got into a loud and profane

argument with another worker during his unauthorized return to

the building. Mr. Pierre admitted he had an incident where he

got into an argument with and "fired back" at a supervisor in

1995 or 1996.

6. Beginning on or about July 10, 2006, Petitioner began

to request, but initially was denied, leave. Mr. Pierre was

feeling threatened and harassed by his supervisors and was

suffering physically as a result. On a form dated August 25,

2006, Mr. Pierre said he was requesting leave from September 11

to September 25, with a return date of September 27, 2006.

Spaces on the form to indicate whether it was approved or

disapproved, and by whom are blank. As the reason for the

request, Mr. Pierre indicated "stress related: as a result of

retaliation.” This time, Captain Hersch, approved the request

and Mr. Pierre went on vacation in September 2006.

7. On September 5, 2006, as instructed by Mr. Jurney,

another Miami supervisor, Bill Graham, issued a memorandum to

Mr. Pierre requiring him to attend a mandatory meeting "about

several important issues and notifying him of his "temporary

removal from the schedule until this meeting has taken place."

Copies of the memorandum were sent to Mr. Jurney and Captain

Hersch. The evidence is insufficient to determine if other

security guards who violated the same rules were subjected to

the same consequences, or if discipline was uniformly applied.

Mr. Pierre requested, either through his supervisor, Captain

Hersch, or directly to Mr. Graham, that the attorney who handled

his EEOC complaint and settlement agreement be allowed to attend

the meeting with him. Mr. Jurney denied the request. Because

he never attended a meeting, Mr. Pierre remained "off the

schedule." For the remainder of 2006 and in early 2007, he was

working part-time only at his second job with the State

Department of Corrections. Mr. Pierre's income was reduced from

$15 an hour ($17 minus $2 for insurance) for 40-hour weeks with

SSA, plus $1,000 every two weeks from Corrections to only his

Corrections pay. The evidence is insufficient to determine how

long Mr. Pierre was, or if he still has, a lower income and

what, if any, efforts he has taken to secure alternate

employment to mitigate damages. SSA supposedly notified

Mr. Pierre, in a memorandum dated September 22, 2006, that he

was suspended without pay for two weeks for his rule violations

and his failure to attend the mandatory meeting. The

authenticity of the memorandum was questioned, and no witnesses

testified to sponsor it or to explain why it was necessary,

given the fact that Mr. Pierre was already "off the schedule."

8. On October 3, 2006, Mr. Pierre filed a charge of

retaliation with the Florida Commission on Human Relations

which, on July 2, 2008, found that reasonable cause existed to

believe that an unlawful employment practice had occurred.

9. In the fall of 2006, Mr. Pierre applied for a job with

the Miami-Dade Corrections and Rehabilitation Department (Miami-

Dade). It was his understanding that his background

investigation had been successfully completed, but that SSA had

not responded to a reference form. Mr. Pierre took the form to

SSA. The form, dated October 4, 2006, was completed by Captain

Hersch, who responded, in relevant part, as follows:

3. Reason for termination (voluntary/fired)?

NON APPLICABLE

4. Describe the applicant's work

performance. GENERALLY ACCEPTABLE

5. Describe the applicant's attendance

record. GOOD OVERALL

6. Was the applicant ever disciplined for

any reason? If YES, please explain. YES

CONFIDENTIAL ."

7. Is applicant able to work well with

others? YES

8. Is applicant trustworthy? YES

9. Describe applicant's work habits? KNOWS

HIS JOB, AND DOES IT

10. Is applicant eligible for re-employment?

If NO, please explain why. STILL EMPLOYED

10. There is no explanation why Captain Hersch mentioned

the confidential agreement, but not the subsequent disciplinary

actions that were the focus of concern to Mr. Jurney and

Mr. Graham, which could have been disclosed without violating

the agreement. Based on the earlier assurances from Miami-Dade,

Mr. Pierre, having put "no" when asked about discipline of his

job application, believes the contradictory response from SSA

caused him not to get the job. He received a letter informing

him, but without giving specific reasons, that he was not hired

by Miami-Dade. He failed to prove the correctness of his

belief. Mr. Pierre testified, but presented no supporting

evidence, that he could have earned up to $120,000 a year with

Miami-Dade.

11. SSA received notice on the second anniversary of its

contract, in October 2006, that the federal government contract

would not be renewed. Some time in 2007, most likely in

February, at Mr. Pierre's request, he met with Mr. Jurney. It

was not until that meeting, Mr. Pierre remembered, that

Mr. Jurney had someone remove pre-settlement discipline records

from his personnel file. By that time, SSA no longer had a

contract with the federal government and was transferring its

personnel over to work for the next contractor, Alutiiq.

Mr. Pierre asked to be transferred and Mr. Jurney testified that

he contacted someone at Alutiiq and asked for Mr. Pierre to be

interviewed, but the evidence is insufficient to support a

finding that SSA attempted to transfer Mr. Pierre to Alutiiq, or

what the routine procedures were for transferring security

guards. When Mr. Pierre found out that the necessary paperwork

was never sent from SSA to Alutiiq, he tried unsuccessfully for

two or three weeks to contact SSA. It is reasonable to believe

that SSA, while not allowing Mr. Pierre to work, would not help

him transfer over to the next contractor. Mr. Pierre was not

transferred and was not employed by Alutiiq. Mr. Jurney

testified unconvincingly that he made non-federal contract job

offers to Mr. Pierre and Mr. Pierre found the offers acceptable,

“but he didn’t accept them.” It is inconceivable that

Mr. Pierre, who has three children to support and a wife who

works part-time, would have rejected any legitimate job offer at

that time. Mr. Pierre and Mr. Jurney, a former highway patrol

trooper and member of an advisory board for the Florida Highway

Patrol, discussed Mr. Pierre’s desire to be a trooper.

Mr. Jurney offered to assist him but that employment never

materialized.

12. As a corporate officer, Mr. Jurney was responsible for

overseeing hundreds of contracts involving 1,500 employees. He

was senior to Mr. Graham and Captain Hersch. Yet, once he

authorized the EEOC settlement, he became directly involved in

the decision-making concerning discipline and consequences for

Mr. Pierre. There is no evidence that Mr. Pierre had ever come

to his attention before he approved the settlement.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2009).

14. Petitioner had the burden of proving, at the

administrative hearing held in this case, that he was the victim

of the unlawful "retaliation" alleged in his Complaint. See

Department of Banking and Finance Division of Securities and

Investor Protection v. Osborne Stern and Company , 670 So. 2d

932, 934 (Fla. 1996)("The general rule is that a party asserting

the affirmative of an issue has the burden of presenting

evidence as to that issue.”).

15. The Florida Civil Rights Act of 1992 (Act) is codified

in Sections 760.01 through 760.11, Florida Statutes. The Act,

as amended, was patterned after Title VII of the Civil Rights

Acts of 1964 and 1991, 42 U.S.C. § 2000, et seq . The "anti-

retaliatory provisions" of the Act are found in Subsection

760.10(7), Florida Statutes, which provides as follows:

(7) It is an unlawful employment practice

for an employer, an employment agency, a

joint labor-management committee, or a labor

organization to discriminate against any

person because that person has opposed any

practice which is an unlawful employment

practice under this section, or because that

person has made a charge, testified,

assisted, or participated in any manner in

an investigation, proceeding, or hearing

under this section.

The provisions of (Subsection 760.10(7)) are almost identical to

the federal counterpart, 42 U.S.C. 2000e—3(a); therefore,

Florida Courts follow federal law when examining retaliation

claims. Carter v. Health Management Associates , 989 So. 2d 1258

(Fla. 2d DCA 2008).

16. "Courts have commonly referred to [these anti-

retaliatory] provisions [of Section 760.10(7), Florida Statutes]

as the participation and opposition clauses." Guess v. City of

Miramar , 889 So. 2d 840, 846 (Fla. 4th DCA 2004). "Cases (like

this one) involving retaliatory acts committed after the

employee has filed a charge with the relevant administrative

agency usually arise under the participation clause." Carter ,

989 So. 2d at 1263.

17. Retaliatory acts prohibited by Section 760.10(7),

Florida Statutes, amount to intentional discrimination. See

Stubbs v. Department of Transportation , No. 02-1437, 2002 Fla.

Div. Adm. Hear. LEXIS 1366 *20 (Fla. DOAH October 3, 2002). The

protection against retaliation extends to former employees.

Robinson v. Shell Oil Co. , 519 U.S. 337, 117 S. Ct. 843, 136

L. Ed. 2d 808 (1997).

18. "Discriminatory [or retaliatory] intent may be

established through direct or indirect circumstantial evidence."

Johnson v. Hamrick , 155 F. Supp. 2d 1355, 1377 (N.D. Ga. 2001);

see also United States Postal Service Board of Governors v.

Aikens , 460 U.S. 711, 714 (1983)("As in any lawsuit, the

plaintiff [in a Title VII action] may prove his case by direct

or circumstantial evidence. The trier of fact should consider

all the evidence, giving it whatever weight and credence it

deserves.").

19. "Direct evidence is evidence that, if believed, would

prove the existence of discriminatory [or retaliatory] intent

without resort to inference or presumption." King v. La Playa-

De Varadero Restaurant , No. 02-2502, slip op. at 15 n.9 (Fla.

DOAH February 19, 2003)(Recommended Order); see also Wilson v.

B/E Aero., Inc. , 376 F.3d 1079, 1086 (11th Cir. 2004). "If the

[complainant] offers direct evidence and the trier of fact

accepts that evidence, then the [complainant] has proven

discrimination [or retaliation]." Maynard v. Board of Regents ,

342 F.3d 1281, 1289 (11th Cir. 2003). In this case, Petitioner

has not offered direct evidence of retaliation.

20. Courts have recognized that "direct evidence of intent

is often unavailable." Shealy v. City of Albany, Ga. , 89 F.3d

804, 806 (11th Cir. 1996). For this reason, those who claim to

be victims of intentional discrimination "are permitted to

establish their cases through inferential and circumstantial

proof." Kline v. Tennessee Valley Authority , 128 F.3d 337, 348

(6th Cir. 1997).

21. Where a complainant attempts to prove intentional

discrimination using circumstantial evidence, the "shifting

burden framework established by the [United States] Supreme

Court in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S.

Ct. 1817, 36 L. Ed. 2d 668 (1973), and Texas Dep't of Community

Affairs v. Burdine , 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d

207 (1981)" is applied. "Under this framework, the

[complainant] has the initial burden of establishing a prima

facie case of discrimination. If [the complainant] meets that

burden, then an inference arises that the challenged action was

motivated by a discriminatory intent. The burden then shifts to

the employer to 'articulate' a legitimate, non-discriminatory

reason for its action. This burden of rebuttal "is merely one

of production, not persuasion, and is exceedingly light." Verna

v. Public Health Trust , 539 F. Supp. 2d 1340, 1354 (S.D.Fla.

2008). (citing Mont-Ros, 111 F. Supp. 2d at 1349-1350 (citing

Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 101 S. Ct.

1089, 67 L. Ed. 2d 207 (U.S. 1981) ; and Lee v. Russell County

Bd. of Educ, 684 F.2d 769, 773 (11th Cir. 1982)) . If the

employer successfully articulates such a reason, then the burden

shifts back to the [complainant] to show that the proffered

reason is really pretext for unlawful discrimination."

Schoenfeld , 168 F.3d at 1267 (citations omitted); see also Ruby

v. Springfield R-12 Public School District , 76 F.3d 909, 911

(8th Cir. 1996)("Ruby's retaliation claims are also analyzed

under this shifting burden framework."); and Brewer v. AmSouth

Bank , No. 1:04CV247-P-D, 2006 U.S. Dist. LEXIS 35762 *25 (N.D.

Miss. May 25, 2006)("Analysis of a retaliation claim proceeds

under the same McDonnell Douglas-Burdine shifting burden

framework as other claims arising under Title VII.").

22. To establish a prima facie case of retaliation, the

Petitioner must show the following: (a) he engaged or

participated in a protected activity; (b) he suffered an adverse

employment action; and (c) there is some causal link between his

protected activity and the adverse employment action. See

Brochu v. City of Riviera Beach , 304 F.3d 1144, 1155 (11th Cir.

2002).

23. Petitioner participated in a protected activity when

he complained to the EEOC in January 2006, in a case that was

settled in August 2006. He suffered a negative employment

action when he was no longer assigned work beginning in

September 2006. Respondent conceded that the first two prongs

of the test for retaliation have been met.

24. "To meet the causal link requirement, the plaintiff

'merely has to prove that the protected activity and the

negative employment action are not completely unrelated.'" See

E.E.O.C. v. Reichhold Chemicals, Inc. , 988 F.2d 1564, 1571-72

(11th Cir. 1993)). “[T]he causal link requirement . . . must be

construed broadly; a plaintiff merely has to prove that the

protected activity and the [adverse] employment are not

completely unrelated.” Carter , 989 at 1263. Cases that

demonstrate evidence of a causal link include Hyde v. Storelink

Retail Group, Inc. , 2007 U.S. Dist. LEXIS 45667, summary

judgment denied by Hyde v. StoreLink Retail Group, Inc., 2008

U.S. Dist. LEXIS 108429 (M.D. Fla., Dec. 4, 2008) ("Plaintiff

alleges that shortly after October of 2005, she told Human

Resources and Storelink owners that she opposed the

discriminatory conduct of [her immediate supervisor]. After

complaining to Defendant about [him], Plaintiff began to receive

disparaging write-ups and by March 28, 2006, [her supervisor]

had fired her. In light of Plaintiff's ten years of favorable

evaluations, these events occurring after her complaints are

sufficient to support a prima facie claim for retaliation under

Title VII."); Hinton v. Supervision Int'l, Inc ., 942 So. 2d 986

(Fla 5th DCA 2006) ("Hinton met all the requirements to

demonstrate a prima facie retaliation case. First, Hinton filed

a claim with the Florida Commission of Human Relations. Second,

she was terminated from her employment after she filed the

claim. Third, Hinton was terminated within one hour after the

claim was faxed to [the company], after being previously

threatened by [a manager] that she would be fired if she wasted

any more of his time with her claim that [a supervisor] had

engaged in a pattern of sexual harassment.”); Mowery v. Escambia

County Utilities Authority , 19 Fla. L. Weekly Fed. D 369 ("The

third requirement of the prima facie case of retaliation

requires a causal connection between the protected expression

and the alleged retaliation. To establish [a] causal

connection, a plaintiff need only show 'that the protected

activity and the adverse action were not wholly unrelated.");

Clover v. Total Systems, Inc., 176 F.3d 1346, 1354 (11th Cir.

1999) (quoting Simmons v. Camden County Bd. of Educ., 757 F.2d

1187, 1189 (11th Cir. 1985)) ("Temporal proximity between the

protected activity and the adverse employment action may suffice

to show a causal connection if there is any other evidence

suggesting that the employer-defendant was aware of the

protected expression.) Ashmore v. J. P. Thayer Co., 303 F.

Supp. 2d 1359, 1373 (D. Ga. 2004) (citing Goldsmith v. City of

Atmore , 996 F.2d 1155, 1163 (11th Cir. 1993).”); Wideman v Wal-

Mart , 141 F.3d 1453 (M.D. Fla. 1998)(“To establish the causal

relation element of her prima facie case of retaliation, Wideman

need only show "that the protected activity and the adverse

action are not completely unrelated." Meeks v. Computer

Associates Intern. , 15 F.3d 1013, 1021 (11th Cir.1994) (quoting

EEOC v. Reichhold Chem., Inc. , 988 F.2d 1564 at 1571-72 (11th

Cir.1993)). She has done that by presenting evidence that Wal-

Mart knew of her EEOC charge--she testified that she informed

her Wal-Mart managers on February 10, 1995, that she had filed

an EEOC charge of discrimination the day before--and that the

series of adverse employment actions commenced almost

immediately after management learned she had filed the charge.

See Donnellon v. Fruehauf Corp. , 794 F.2d 598, 601 (11th

Cir.1986) ("The short period of time [(one month)] between the

filing of the discrimination complaint and the . . . [adverse

employment action] belies any assertion by the defendant that

the plaintiff failed to prove causation."); and Farley v.

Nationwide Mut. Ins. Co ., (S.D.Fla. 1999) (“Here, there is no

dispute that Farley's two supervisors, Tom Sutterfield and Hugh

Glatts, learned of Farley's EEOC charge shortly after its

filing. Sutterfield admitted in his deposition that Farley told

him about the charge and that he discussed the matter with

Glatts. Moreover, a close temporal proximity existed between

Farley's termination and his supervisors' knowledge of the

complaint. The charge was made May 19, 1995 and Farley was

fired seven weeks later on July 10, 1995. We find this

timeframe sufficiently proximate to create a causal nexus for

purposes of establishing a prima facie case.”) Respondent's

argument that, as with a claim of discrimination, Petitioner has

to demonstrate that, for the third prong, he was treated

differently from others is not supported by case law on

retaliation.

25. Mr. Jurney’s approval of the EEOC settlement that was

entered into in August 2006, followed by his personal

involvement in Petitioner’s discipline beginning in September

2006, intervening over the authority of two intermediate

supervisors, establishes a causal link between the protected

activity and the adverse employment outcome that is sufficient

to establish a prima f acie case of discrimination by

retaliation. A prima facie case also exists because of the

apparent discrepancy between the relative lack of concern over

Petitioner’s rule violations by his immediate supervisor, based

on his failure to mention the more recent incidents on the

reference form, as compared to the consequences faced by

Petitioner. If it is possible to infer either that there was or

was not discrimination, then the evidence must be rebutted.

Jamerson v. Arrow Co. , 75 F.3d 1528, 1532 (11th Cir. 1996).

26. "Although the intermediate burdens of production shift

back and forth, the ultimate burden of persuading the trier of

fact that the employer intentionally discriminated against the

[complainant] remains at all times with the [complainant]."

EEOC v. Joe's Stone Crabs, Inc. , 296 F.3d 1265, 1273 (11th Cir.

2002); see also Byrd v. BT Foods, Inc. , 948 So. 2d 921, 927

(Fla. 4th DCA 2007) ("The ultimate burden of proving intentional

discrimination against the plaintiff remains with the plaintiff

at all times."); and Brand v. Florida Power Corp. , 633 So. 2d

504, 507 (Fla. 1st DCA 1994)("Whether or not the defendant

satisfies its burden of production showing legitimate,

nondiscriminatory reasons for the action taken is immaterial

insofar as the ultimate burden of persuasion is concerned, which

remains with the plaintiff.").

27. Where an administrative law judge does not halt the

proceedings "for lack of a prima facie case and the action has

been fully tried, it is no longer relevant whether the

[complainant] actually established a prima facie case. At that

point, the only relevant inquiry is the ultimate, factual issue

of intentional discrimination. . . .. [W]hether or not [the

complainant] actually established a prima facie case is relevant

only in the sense that a prima facie case constitutes some

circumstantial evidence of intentional discrimination." Green

v. School Board of Hillsborough County , 25 F.3d 974, 978 (11th

Cir. 1994).

28. Although Respondent's motion was denied at the close

of Petitioner's case, the instant case was not "fully tried"

because Respondent declined to present any evidence other than

its two exhibits, Petitioner's depositions, and the testimony

elicited on cross-examination of Petitioner's witnesses.

Donnellon v. Fruehauf Corp ., 794 F.2d 598 (N.D. Ga. 1986). It

was at this point in the proceedings, that Respondent had the

opportunity to demonstrate that Petitioner was not treated

differently from others and that it had a uniform discipline

policy. In Texas Department of Community Affairs v. Burdine ,

however, the Supreme Court observed, that after an employer

produced evidence of a legitimate business purpose for its

actions and the plaintiff offered no new evidence, "there may be

some cases where the plaintiff's initial evidence, combined with

effective cross-examination of the defendant, will suffice to

discredit the defendant's explanation" and that "this evidence

and inferences properly drawn therefrom may be considered by the

trier of fact on the issue of whether the defendant's

explanation is pretextual." Likewise, the cross-examination of

Petitioner's witnesses must be considered as possible evidence

rebutting the claim of retaliation.

29. Considering the cross-examination elicited in this

case, there is insufficient evidence of any uniform application

of discipline or that the appropriate discipline for various

rule or policy infractions was imposed by Respondent, or that

procedures to transfer Petitioner to the next contractor were

followed. Assessing the plausibility of Respondent’s position,

weighing all the evidence, including the testimony and cross-

examination of Petitioner’s witnesses, it is determined that

Petitioner established he suffered an adverse employment outcome

for filing a discrimination complaint. "Disbelief of the

defendant's proffered reasons, together with the prima facie

case, is sufficient circumstantial evidence to support a finding

of discrimination." Farley v. Nationwide Mut. Ins. Co. , 197

F.3d 1322 (S.D.Fla. 1999).

30. Consideration of the appropriate remedy is guided by

Subsection 760.11(7), Florida Statutes , which provides, in

relevant part, as follows:

(7) If the administrative law judge finds

that a violation of the Florida Civil Rights

Act of 1992 has occurred, he or she shall

issue an appropriate recommended order to

the commission prohibiting the practice and

recommending affirmative relief from the

effects of the practice, including back pay.

Within 90 days of the date the recommended

order is rendered, the commission shall

issue a final order by adopting, rejecting,

or modifying the recommended order as

provided under Sections 120.569 and 120.57.

The 90-day period may be extended with the

consent of all the parties. 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 case law involving a

Title VII action. In the event the final

order issued by the commission determines

that a violation of the Florida Civil Rights

Act of 1992 has occurred, the aggrieved

person may bring, within one year of the

date of the final order, a civil action

under subsection (5) as if there has been a

reasonable cause determination or accept the

affirmative relief offered by the

commission, but not both.

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 directing that Respondent cease the

discriminatory employment practice evidenced in this case and

awarding Petitioner back pay at the rate of $15.00 an hour for

each normal 40-hour work week between September 5, 2006, and the

date of the final order, offset by earnings from substitute

employment, if any.

DONE AND ENTERED this 27th day of January, 2010, in

Tallahassee, Leon County, Florida.

S

ELEANOR M. HUNTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of January, 2010.

COPIES FURNISHED:

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

Ronald G. Polly, Esquire

Hawkins & Parnell, LLP

4000 SunTrust Plaza

303 Peachtree Street, Northeast

Atlanta, Georgia 30308-3243

Jacques Pierre

19601 Northwest 12th Court

Miami, Florida 33169

Erwin Rosenberg, Esquire

Post Office Box 416433

Miami Beach, Florida 33141

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.