08-005374 Melvin Lee Butler vs. Cardinal Staffing Services Status: Closed Recommended Order on Friday, May 29, 2009.

Summary: The evidence did not demonstrate that Petitioner was discriminated against based on race or retaliation when he was terminated from a third-party employer or when he was not reassigned to another job by Respondent staffing company.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MELVIN LEE BUTLER, )

)

Petitioner, )

)

vs. ) Case No. 08-5374

)

CARDINAL STAFFING SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, the above matter was heard

before the Division of Administrative Hearings by Administrative

Law Judge, Diane Cleavinger, on April 7, 2009, in Tallahassee,

Florida.

APPEARANCES

For Petitioner: Melvin Lee Butler, pro se

40 Jack Scott Road

Quincy, Florida 32351

For Respondent: Robert E. Larkin, III, Esquire

Shaina Brenner, Esquire

Allen Norton & Blue, P.A.

906 North Monroe Street

Tallahassee, Florida 32303

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner was the

subject of an unlawful employment practice by Respondent.

PRELIMINARY STATEMENT

On May 3, 2008, Melvin Lee Butler (Petitioner), filed a

Charge of Discrimination with the Florida Commission on Human

Relations (FCHR), alleging that Respondent, Cardinal Staffing

Services of Tallahassee, Inc. (Respondent or Cardinal Staffing),

discriminated against him on the basis of race and/or in

retaliation for his participation in an activity protected under

Chapter 760, Florida Statutes. Specifically, Petitioner alleged

he was discriminated against when he was terminated from

employment with a client of Cardinal Staffing and/or when he did

not receive the opportunity to be reassigned to another job.

The allegations of discrimination were investigated by

FCHR. On October 8, 2008, FCHR issued its Determination,

finding “No Cause.”

On October 21, 2008, Petitioner filed his Petition for

Relief. In his petition, he reiterated the charges set forth in

his original Charge of Discrimination. The petition was

forwarded to the Division of Administrative Hearings.

At the hearing, Petitioner testified in his own behalf and

offered Exhibits 1, 2, and 5 into evidence. Respondent called

the following witnesses: Diane Jarrett, Regional Sales Manager

of Respondent; and Annis Henderson, former Human Resources

Assistant of Respondent. Respondent also offered into evidence

Exhibits A, B, C, and H.

After the hearing, Respondent filed a Proposed Recommended

Order on May 12, 2009. By letter, Petitioner filed a Proposed

Recommended Order on April 21, 2009.

FINDINGS OF FACT

1. Petitioner is a Black male.

2. Respondent is a staffing company that contracts with

third party employers. Over 80 percent of Respondent’s

employees are Black. After Respondent matches a candidate with

a job opening, the third-party employer interviews the candidate

for employment. If the candidate is employed by the third

party, the employee must abide by the third-party employer’s

policies as well as the employment policies of Respondent.

3. Petitioner was hired by Respondent some time in

January 2008.

4. Respondent requires all employees to notify Respondent

of his or her absence prior to that employee’s scheduled report

time for their employment. Respondent also requires that all

employees report to work at their scheduled report time.

Failure to either call in or show up for work is known as a ‘no

call/no show’. The employment policies of Respondent reflect

that a “no call/no show” is grounds for termination.

5. Petitioner received a copy of Respondent’s employee

handbook, which included the “no call/no show” provision. He

was also aware of Respondent’s “no call/no show” policy.

6. Around January 14, 2008, Respondent successfully

matched Petitioner with a position at BR Williams Trucking

Company (BR Williams). Like Respondent, BR Williams maintains a

policy of termination when an employee fails to show up for work

or does not call in prior to the start of the work day to report

their absence. Petitioner’s scheduled report time for

BR Williams was 7:00 a.m.

7. On March 3, 2008, Petitioner contacted Respondent’s

Regional Sales Manager, Diane Jarrett, to report that he had

overheard a racial slur that a White employee, Harry Hingson,

had made to another employee. Like Petitioner, Mr. Hingson had

been placed at BR Williams by Respondent and was an employee of

both Respondent and BR Williams.

8. Ms. Jarrett sent Respondent’s Human Resources

Assistant, Annis Herndon, to BR Williams to terminate

Mr. Hingson for having made the racial slur. She met with

Mr. Wilkinson, BR Williams’ manager. Mr. Hingson was terminated

from BR Williams. Neither Ms. Jarrett nor Ms. Herndon disclosed

that Petitioner had reported Mr. Hingson’s racial slur to her.

9. After the termination, Mr. Wilkinson mentioned to a

group of employees, including Petitioner, that he hated to fire

Mr. Hingson because “everybody needs a job.” The evidence did

not demonstrate that Mr. Wilkinson said that “once he found out

who did this, they will pay.” Petitioner felt that

Mr. Wilkinson was talking to him or targeting him because

Mr. Wilkinson looked him in the eyes during the meeting.

Mr. Wilkinson did not testify at the hearing. As a consequence,

there is no competent evidence regarding Mr. Wilkinson’s intent

showing any look he may or may not have given Petitioner.

10. On March 24, 2008, Petitioner worked his regular shift

at BR Williams. On the evening of March 24, 2008, Petitioner

was arrested for driving while intoxicated (DUI) and was held in

jail overnight. He was released two days later on March 26,

2008.

11. On March 25, 2008, Petitioner was scheduled to begin

his shift at 7 a.m. Petitioner did not report to work as

scheduled because he was in jail. Petitioner also did not call

Respondent to report his absence prior to the beginning of his

shift or during the morning of March 25, 2008.

12. Mr. Wilkinson called Respondent around 9:00 a.m. and

reported that Petitioner was not at work and had not called in.

He did not know where Petitioner was. Respondent could not

locate Petitioner at his home. Mr. Wilkinson instructed

Respondent that if he or Respondent did not hear from Petitioner

before noon, Petitioner was terminated for not showing up at

work and not calling in.

13. About 1:00 p.m., after Petitioner was terminated by

BR Williams, Petitioner called Respondent collect from jail. He

was advised that he had been terminated from BR Williams. After

speaking with Petitioner, Respondent called BR Williams to

report that Petitioner had called in after noon and that she had

told him that he had been terminated from BR Williams.

Respondent did not tell Petitioner that he was terminated from

Cardinal Staffing.

14. BR Williams’ decision to terminate Petitioner was not

based on his race or his complaint regarding Mr. Hingson’s

racial slur. Indeed, there was no competent evidence to suggest

that Petitioner was terminated from BR Williams for any reason

other than he was in jail, and did not report to work as

scheduled. Petitioner was not terminated from Cardinal

Staffing.

15. Petitioner left a message on Respondent’s answering

machine on March 27 or March 28, 2008. Return calls by

Respondent could not be left at the numbers that Respondent had

for Petitioner. He did not contact Respondent again until

August 2008, at which time there were no positions available for

him.

16. Importantly, Petitioner was not terminated from

Respondent. As with all Respondent’s employees, Petitioner had

the responsibility of calling Respondent as often as possible to

check if other employment opportunities were available. If

Petitioner had contacted Respondent to seek placement during

April–June, 2008, and if a placement for which Petitioner was

qualified had been available, Respondent would have sent him for

an interview with the prospective employer. Indeed, it was

Petitioner’s lack of action that caused him to miss any

employment opportunities that may have been available to him

during April – June, 2008. After August 2008, Petitioner did

not contact Respondent to seek other employment opportunities.

17. Petitioner identified two non-minority employees that

were terminated from their third-party employer jobs and

received new assignments with another of Respondent’s clients.

The two employees were Jason Whibble and Sherita Cheshire.

Neither of these employees was similarly situated to Petitioner.

Mr. Whibble was terminated for having a felony conviction

involving multiple traffic tickets. Ms. Cheshire was terminated

because she could not perform her job duties. After

termination, both employees called in on a daily or weekly basis

to check to see if any job openings were available.

18. In this case, Petitioner was terminated for a very

different reason from BR Williams. Petitioner also did not

frequently call Respondent to check for job openings that might

be available to him. Indeed, Petitioner has not identified any

similarly situated non-Black employee of Respondent’s who was

terminated from an employment assignment on the basis of an

employer’s “no call/no show” policy and was treated more

favorably than Petitioner. The evidence was clear that

Petitioner was not terminated from Cardinal Staffing and failed

to maintain frequent contact with them. Clearly, Respondent did

not discriminate against Petitioner. Given these facts, the

Petition for Relief should be dismissed.

CONCLUSIONS OF LAW

19. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

20. Section 760.10, Florida Statutes (2008), provides that

it is an unlawful employment practice for an employer

(1) (a) . . . [t]o discharge or to fail or

refuse to hire any individual, or otherwise

to discriminate against any individual with

respect to compensations, terms, conditions,

or privileges of employment, because of such

individual’s race, color, religion, sex,

national origin, age, handicap, or marital

status.

* * *

(7) . . . 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.

21. FCHR and the Florida courts have determined that

federal discrimination law should be used as guidance when

construing provisions of Section 760.10, Florida Statutes. See

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

1994); Florida Dept. of Community Affairs vs. Bryant , 586 So. 2d

1205 (Fla. 1st DCA 1991); and Scott v. Fla. Dept. of Children &

Family Services , 19 Fla. L. Weekly Fed D.268 (N.D. Fla. 2005).

22. The Supreme Court of the United States established in

McDonnell-Douglas Corp. v. Green , 411 U.S. 792 (1973), and Texas

Department of Community Affairs v. Burdine , 450 U.S. 248 (1981),

the analysis to be used in cases alleging discrimination under

Title VII. This analysis was reiterated and refined in

St. Mary’s Honor Center v. Hicks , 509 U.S. 502 (1993). See also

Zappa v. Wal-Mart Stores, Inc. , 1 F. Supp. 2d 1354, 1356 (M.D.

Fla. 1998), and Standard v. A.B.E.L. Svcs., Inc. , 161 F.2d 1318

(11th Cir. 1998).

23. Under McDonnell-Douglas , Petitioner has the burden of

establishing by a preponderance of the evidence a prima facie

case of unlawful discrimination. If a prima facie case is

established, Respondent must articulate some legitimate, non-

discriminatory reason for the action taken against Petitioner.

Once this non-discriminatory reason is offered by Respondent,

the burden then shifts back to Petitioner to demonstrate that

the offered reason is merely a pretext for discrimination. As

the Supreme Court stated in Hicks , before finding

discrimination, “[t]he fact finder must believe the plaintiff’s

explanation of intentional discrimination.” Hicks , 509 U.S. at

519.

24. In Hicks , the Court stressed that even if the fact-

finder does not believe the proffered reason given by the

employer, the burden remains with Petitioner to demonstrate a

discriminatory motive for the adverse employment action. Id .

25. In order to establish a prima facie case of

discrimination, Petitioner must demonstrate that:

a. Petitioner is a member of a protected

class;

b. Petitioner is qualified for the

position;

c. Petitioner was subject to an adverse

employment decision; and,

d. Petitioner was treated less favorably

than similarly situated persons outside the

protected class.

Canino v. EEOC , 707 F.2d 468 (11th Cir. 1983); Smith v. Georgia ,

684 F.2d 729 (11th Cir. 1982); Lee v. Russell County School

Board , 684 F.2d 769 (11th Cir. 1984); and Holifield v. Reno ,

115 F.3d 1555, 1562 (11th Cir 1997).

26. In this case, Petitioner has alleged that Respondent

unlawfully discriminated against him on the basis of his race

and in retaliation for engaging in a protected activity. He

alleges that such discrimination occurred on two separate

occasions. The first occasion allegedly occurred when he was

terminated from BR Williams. The second occasion allegedly

occurred when Respondent did not locate another position for him

and allegedly took him off its employment roles.

27. As a Black individual, Petitioner is a member of a

protected class. Additionally, Petitioner was qualified for the

position to which Respondent assigned him at BR Williams. The

evidence also demonstrated that he suffered an adverse

employment action when he was terminated from his position by

BR Williams.

28. However, it was BR Williams and not Respondent who

terminated Petitioner from the trucking company when he did not

report to work on March 25th. Indeed, BR Williams terminated

Petitioner prior to the time he called Respondent from jail.

29. There was no competent evidence in the record that

demonstrated that Petitioner’s termination from BR Williams was

related to his earlier complaint about a racial slur. Indeed,

the evidence demonstrated that administrative staff at

BR Williams was not told that Petitioner had complained to

Respondent about another employee’s racial slur. Petitioner’s

speculation about a “look” he received from a manager in a

meeting about the employee’s termination is insufficient

evidence to demonstrate that management at BR Williams

terminated Petitioner because of his complaint. Petitioner was

in jail and failed to report to work. He was terminated for

that failure. There was no evidence to suggest that those

reasons were invalid or a pretext to hide discrimination on the

part of BR Williams. Petitioner’s theory that a typographical

error in a written statement to FCHR by Respondent’s attorney

shows an intent to falsify records is simply misplaced and not

supported by any evidence. Additionally, there was no evidence

that would tie BR Williams’ decision to terminate Petitioner to

Respondent. Given these facts, Petitioner has not presented

competent, substantial evidence to demonstrate that he was

terminated from his employment at BR Williams by Respondent.

30. Moreover, even assuming arguendo , that Petitioner

established that he was terminated from his employment at

BR Williams by Respondent, Petitioner did not establish that

there were any individuals outside of his protected class who

engaged in similar misconduct and who were not terminated by

BR Williams. BR Williams was strict at enforcing its no show/no

call policy.

31. The burden of proof is on Petitioner to identify a

similarly situated employee who was treated more favorably

despite having engaged in similar misconduct and who is outside

of Petitioner’s protected class. Davis v. City of Panama City,

Fla. , 510 F. Supp. 2d 671, 686 (N.D. Fla. 2007). In making the

comparison, the quality of the misconduct must rise to the level

of being nearly identical. See Maniccia v. Brown , 171 F.3d

1364, 1368 (11th Cir. 1999).

32. Petitioner has not identified a single similarly

situated employee of BR Williams outside of his protected class

who committed a “no call/no show” violation and was not

terminated. Therefore, Petitioner has failed to prove the

elements of a prima facie case of discrimination as to his

termination from BR Williams.

33. Likewise, Petitioner did not adduce any evidence to

support the allegation in his Petition for Relief that he was

discriminated or retaliated against when he “did not receive the

opportunity to be re-assigned to another job” by Respondent. In

order to rise to the level of an adverse job action, Petitioner

must show that Respondent caused serious and material changes to

the terms and conditions of his employment. See Davis v. Town

of Lake Park , 245 F.3d 1232, 1239 (11th Cir. 2001).

34. To establish a prima facie case of retaliation under

Section 760.10(7), Florida Statutes, Petitioner must prove that

he engaged in a statutorily protected activity, that an adverse

employment action occurred, and that the adverse action was

causally related to his protected activity. Little v. United

Technologies , 103 F.3d 956, 959 (11th Cir. 1997).

35. As previously discussed, Petitioner did not suffer any

adverse action as to Respondent. He was not terminated by

Respondent.

36. Petitioner was terminated from his employment with

BR Williams subsequent to his complaint regarding Mr. Hingson.

There was no evidence to establish a causal connection between

his protected conduct and his subsequent failure to be

reassigned to another job. Indeed, it was Petitioner’s own lack

of action that caused his failure to receive further job

opportunities from Respondent. See Crawford v. City of

Fairburn , 482 F.3d 1305, 1308 (11th Cir. 2007); Raney v. Vinson

Guard Service, Inc. , 120 F.3d 1192, 1196 (11th Cir. 1997).

37. Finally, in relation to Cardinal Staffing, Petitioner

again did not identify any similarly situated non-minority

employee who was treated more favorably than Petitioner. The

two employees suggested by Petitioner as similar were not

terminated for the same reason and maintained regular and

frequent contact with Respondent. Again, the burden of proof is

on Petitioner to identify a similarly situated employee who was

treated more favorably despite having engaged in similar

misconduct and who is outside of Petitioner’s protected class.

Davis v. City of Panama City, Fla. , 510 F. Supp. 2d 671, 686

(N.D. Fla. 2007). In making the comparison, the quality of the

misconduct must rise to the level of being nearly identical.

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

38. Since Petitioner did not meet this burden, the

Petition for Relief should be dismissed.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that the Florida Commission on Human

Relations issue a Final Order dismissing the Petition for Relief

with prejudice.

DONE AND ENTERED this 29th day of May, 2009, in

Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

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 29th day of May, 2009.

COPIES FURNISHED :

Walter Jan Pietruszka, Esquire

Shumaker Loop & Kendrick

101 East Kennedy Boulevard, Suite 2800

Tampa, Florida 33602

Melvin Lee Butler

40 Jack Scott Road

Quincy, Florida 32351

Robert E. Larkin, III, Esquire

Allen, Norton & Blue, P.A.

906 North Monroe Street

Tallahassee, Florida 32303

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.