08-001433 Alejandro Lorenzo vs. Miami Dade County Status: Closed Recommended Order on Friday, September 11, 2009.

Summary: Petitioner failed to prove prima facie case of employment discrimination or that a business reason was pretext for discrimination when he was demoted for driving garbage truck carelessly and causing accident on a busy Miami road--for the sixth time.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALEJANDRO LORENZO, )

)

Petitioner, )

)

vs. ) Case No. 08-1433

)

MIAMI-DADE COUNTY, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing, by

videoconference, in Tallahassee, Florida, on April 27, 2009.

The parties, attorneys for the parties, witnesses, and court

reporter participated by videoconference in Miami, Florida.

APPEARANCES

For Petitioner: Erwin Rosenberg, Esquire

Post Office Box 416433

Miami Beach, Florida 33141

For Respondent: Eric A. Rodriguez, Esquire

Office of Dade County Attorney

111 Northwest First Street, Suite 2810

Miami, Florida 33128

STATEMENT OF THE ISSUE

The issue is whether Respondent is guilty of employment discrimination against Petitioner.

PRELIMINARY STATEMENT

On March 4, 2008, the Florida Commission on Human Relations

(FCHR) issued a Right to Sue letter. The letter acknowledges

that Petitioner dual-filed with FCHR and the U.S. Equal

Employment Opportunity Commission, which had issued a letter

stating that it was unable to conclude that the information

obtained during its investigation established violations of the

statutes. The FCHR letter advises Petitioner that he may pursue

relief in the Division of Administrative Hearings by filing a

Petition for Relief within 15 days.

By Petition for Relief filed March 17, 2008, Petitioner

alleged that he is Hispanic, and Respondent's supervisor demoted

him for an act that, when done by nonHispanics, has not resulted

in demotions.

The case was set for hearing and continued three times

before it was transferred to the undersigned Administrative Law

Judge.

At the hearing, Petitioner called two witnesses and offered

into evidence five exhibits: Petitioner Exhibits 1-5.

Respondent called one witness and offered into evidence no

exhibits. All exhibits were admitted except Petitioner

Exhibits 3 and 4, which were proffered.

The court reporter filed the one-volume Transcript on

July 13, 2009. Respondent filed its Proposed Recommended Order

on August 24, 2009.

FINDINGS OF FACT

1. Petitioner was born in Spain and is of Hispanic origin.

At all material times, he has been employed by Respondent.

Since 1992, he has been employed as a truck driver.

2. At the time of the incident described below, Respondent

was a Waste Truck Driver. His job was to drive a 66,000-pound

truck in Miami to collect garbage from the utility customers.

3. On February 28, 2006, Petitioner was operating his

truck along Northwest 54th Street. This is a major east-west

arterial through central Dade County. At the location of the

incident, this busy road contains five lanes of traffic.

4. Leaving a strip mall, from which he had just collected

garbage, Petitioner drove the truck across this arterial,

crossing double-yellow lines in the middle, in order to save

time in driving to the next pick-up location. Petitioner was

not at an intersection and knew that the double-yellow lines

meant that his maneuver was illegal. Petitioner "explains" that

he chose to do this maneuver at the urging of the Waste

Collectors riding on the back of the truck and with the

knowledge that other truck drivers had done it too.

5. Unable to clear all of the lanes at one time,

Petitioner was forced to stop the truck around the middle of the

highway at an angle closer to perpendicular than parallel to the

direction of the traffic flowing around him. A collision

resulted when a passenger car tried to pass the garbage truck on

the left at the same time that Petitioner moved his truck

forward to try to complete his maneuver.

6. After an investigation, Petitioner's supervisor, who is

black, decided to demote him to Waste Collector, which resulted

in a small decrease in pay, but presumably less-preferred tasks

involving more direct contact with solid waste. The supervisor

weighed Petitioner's substantial experience with Respondent as a

driver against the facts that he could have prevented this

accident, even though he did not receive a citation, and that he

has had five other preventable accidents while driving

Respondent's vehicles. Respondent had previously required

Petitioner to take good-driving courses on three occasions due

to avoidable accidents. He had also been given progressive

discipline for his driving mishaps, culminating in an eight-day

suspension for his last accident, which was in December 2004.

7. Petitioner claimed to his supervisor that he had done

nothing wrong, that he had not violated any rules, and that

everyone drives like he did. The supervisor was unfavorably

impressed by his failure to accept responsibility for the

accident and his nonchalant attitude. The supervisor

legitimately concluded that this attitude combined with

Petitioner's driving history unreasonably raised the risk of

additional accidents caused by Petitioner.

8. Petitioner's attempt to show disparate treatment was

unpersuasive. Either similar discipline was imposed for a

similar number of similar offenses, supervising personnel were

different, or the similarity of past offenses could not be

determined.

9. Petitioner's supervisor testified that she did not

demote him because he is Hispanic, and this testimony is

credited.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction over the subject matter. §§ 120.569, 120.57(1),

and 760.11(6), Fla. Stat. (2009).

11. Section 760.10(1)(a), Florida Statutes, prohibits

discrimination in employment on the basis of national origin.

12. In Valenzuela v. GlobeGround North America, LLC , __

So. 3d __, 2009 Fla. App. LEXIS 11586 (Fla. 3d DCA 2009), the

court acknowledged that Florida follows the "three-part

framework" of McDonnell Douglas Corp. v. Green , 411 U.S. 792,

802-04 (1973), for establishing, by circumstantial evidence, a

discrimination claim based on disparate treatment in the

workplace. The court explained that a plaintiff must establish,

by a preponderance of the evidence, a prima facie case of

discrimination. If a prima facie showing is made, the burden of

proof shifts to the employer to prove a legitimate reason for

the adverse employment action. If the employer meets its

burden, the plaintiff must prove that the "legitimate" reason

was a pretext for discrimination.

13. Here, Petitioner has failed to prove a prima facie

case of discrimination. He caused an accident by driving a

large garbage truck in a careless manner. It was his sixth

avoidable accident. He accepted no responsibility for this

accident. The adverse job action--demotion--cost him little

money and was, obviously, less than dismissal. Petitioner

failed to prove that nonHispanics similarly situated were

treated differently. If he had proved a prima facie case,

Respondent has met its burden of proving a legitimate business

reason--i.e., public safety--for the demotion.

RECOMMENDATION

Based on the foregoing,

It is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing the Petition for Relief.

DONE AND ENTERED this 11th day of September, 2009, in

Tallahassee, Leon County, Florida.

__________________________________

ROBERT E. MEALE

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 11th day of September, 2009.

COPIES FURNISHED:

Erwin Rosenberg, Esquire

Post Office Box 416433

Miami Beach, Florida 33141

Eric A. Rodriguez, Esquire

Office of Dade County Attorney

111 Northwest First Street, Suite 2810

Miami, Florida 33128-1930

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.