08-004874 Maxito Francois vs. Miami-Dade County Status: Closed Recommended Order on Tuesday, March 17, 2009.

Summary: Petitioner failed to prove that County committed an unlawful employment practice.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MAXITO FRANCOIS, )

)

Petitioner, )

)

vs. ) Case No. 08-4874

)

MIAMI-DADE COUNTY, FLORIDA, )

)

Respondent. )

________________________________ )

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on January 23, 2009, by video teleconference between Miami and

Tallahassee, Florida, before Administrative Law Judge Claude B.

Arrington of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Erwin Rosenberg, Esquire

Post Office Box 416433

Miami Beach, Florida 33141

For Petitioner: William X. Candela, Esquire

Dade County Attorney's Office

Stephen P. Clark Center

111 Northwest First Street, Suite 2810

Miami, Florida 33128

STATEMENT OF THE ISSUE

Whether Respondent engaged in an unlawful employment

practice by discriminating against Petitioner in violation of

the Florida Civil Rights Act of 1992 (Sections 760.01 through

760.11, Florida Statutes.) 1

PRELIMINARY STATEMENT

On February 20, 2008, Petitioner dual-filed a

discrimination charge with the Florida Commission on Human

Relations (FCHR) and the Equal Employment Opportunity Commission

(EEOC) alleging that Respondent (at times referred to as County)

had discriminated against him because of his race and national

origin. On May 6, 2008, the EEOC issued its determination that

it was unable to conclude that the information obtained during

its investigation established a violation of any relevant

statute and issued its Right to Sue letter.

On September 28, 2008, Petitioner filed the subject

Petition for Relief (the Petition) with the FCHR. The Petition

alleged the following as the basis for the claim of

discrimination:

Respondent discriminated against

Petitioner on the basis of Race and National

Origin (Haitian) in that Respondent via its

agent Joe Wolf [sic][ 2 ] caused the

termination of employment of [Petitioner] in

significant part because of [Petitioner’s]

Race and National Origin.

The Petition set forth the following as being the disputed

issues of material fact:

Whether Mr. Wolf’s [sic] intention [sic]

was motivated in significant part by

[Petitioner’s] Race and/or National Origin.

The Petition set forth the following as the ultimate facts

alleged and entitlement to relief:

[Respondent] via Joe Wolf [sic] was

motivated in material part by [Petitioner’s]

Race and National Origin in causing the

termination of [Petitioner’s] employment on

the [Respondent’s] contract of security

services.

On September 29, 2008, the matter was referred to DOAH, and

this proceeding followed.

At the formal hearing, the parties offered two

sequentially-numbered Joint Exhibits, which were accepted into

evidence. Petitioner testified on his own behalf and presented

the additional testimony of Michael Breaux, Joe Wolfe, and

Brunelle Dangerville. Mr. Breaux and Mr. Wolfe are employed by

Respondent’s General Services Administration (GSA).

Mr. Dangerville filed a Charge of Discrimination against

Respondent that Petitioner argued was similar to the one at

issue filed by Petitioner. 3 Petitioner presented three

sequentially-numbered exhibits, which were admitted into

evidence. Respondent presented the testimony of Eric Camacho,

who is an employee of Security Alliance, a security company that

provides services to Respondent. Respondent offered eight

sequentially-numbered exhibits beginning at Respondent Exhibit 3

and ending at Respondent Exhibit 10. 4

A Transcript of the proceeding was filed February 24, 2009.

The deadline for the filing of post-hearing submittals was set

for ten days following the filing of the transcript. Respondent

timely filed a Proposed Recommended Order (PRO), which has been

duly-considered by the undersigned in the preparation of this

Recommended Order. Petitioner has not filed a PRO as of the

entry of this Recommended Order.

FINDINGS OF FACT

1. Respondent is a political subdivision of the State of

Florida with over 50 departments and 30,000 employees. GSA is

the Respondent’s department responsible for providing security

to other county departments and facilities. GSA provides

security services by contracting with private vendors. At the

times relevant to this proceeding, GSA had contracts with

approximately seven separate vendors to provide security guards

where needed. One of the vendors is Security Alliance, which is

a private company that provides security guards to both public

and private entities.

2. In 2004, GSA, on behalf of Respondent, entered into a

contract with Security Alliance. The “General Terms and

Conditions” of the bid document, which were incorporated into

the contract between Respondent and Security Alliance, pertained

to the responsibility of the vendor as an employer and provided

as follows in Section 1.16:

The employee(s) of the successful Bidder

shall be considered at all times its

employee(s) and not employee(s) or agent(s)

of the County or any of its departments.

. . . The County may require the successful

bidder to remove any employee it deems

unacceptable. . . .

3. Security Alliance hired the security guards that were

assigned to County posts. Only Security Alliance had the

authority to terminate one of its employees. Respondent had no

authority to terminate the employment of any Security Alliance

employee. Security Alliance paid the salaries and the

employment taxes of the security guards it employed to work on

County posts. Security Alliance administered their annual and

sick leave. Security Alliance supervisors monitored the daily

activities of the Security Alliance security guards assigned to

the various County facilities. Security Alliance employed

approximately 250 security guards to service the contract it had

with Respondent.

4. As noted above, the contract between Respondent and

Security Alliance gave Respondent the authority to require

Security Alliance to remove a security guard from a County post

if Respondent deemed the security guard’s performance to be

unacceptable. Respondent could require that a particular

security guard not be assigned to specific County posts.

Respondent could also require that a particular security guard

not be assigned to any County post. Security Alliance could

assign the security guard to other duties with Respondent

(depending on the Respondent’s instructions to Security

Alliance) or with other clients.

5. Petitioner is a black male whose national origin is

Haitian. In 2003, Security Alliance hired Petitioner as a

security guard and assigned him to work at facilities operated

by Respondent’s Water and Sewer Authority (WASA). Petitioner

was one of between 30-to-50 security guards assigned by Security

Alliance to WASA facilities.

6. The Preston Water Treatment Plant (Preston Plant) is a

water purification and distribution facility operated by WASA.

The Preston Plant runs around the clock and is considered by

Respondent to be critical infrastructure. Security must be

maintained at the Preston Plant at all times because of the need

for a safe water supply and because dangerous chemicals are

maintained there.

7. On October 16, 2006, Michael Breaux, a white male, was

employed by WASA as a Security Supervisor. His duties included

monitoring the performance of guards assigned to security posts

at WASA facilities.

8. On October 16, 2006, Mr. Breaux conducted a routine

check of the security posts at the Preston Plant. Mr. Breaux

observed the security guard at the front gate slumped over his

chair with his back to the gate. That security guard was

subsequently identified as Petitioner. Mr. Breaux observed that

Petitioner was inattentive. Mr. Breaux testified, credibly,

that Petitioner’s lack of attention to duty posed a security

risk. Nick Chernichco, Mr. Breaux’s supervisor, told Mr. Breaux

to report his observations to Mr. Wolfe, who was the GSA

security manager. Mr. Breaux reported his observations to

Mr. Wolfe orally and in writing. Mr. Wolfe is a white male.

9. When he reported his observations to Mr. Wolfe,

Mr. Breaux did not know Petitioner’s national origin.

Petitioner failed to establish that Mr. Breaux's actions

following his observations of Petitioner at the guard station

were motivated by Petitioner’s race or national origin. 5

10. Mr. Wolfe did not meet with or talk to Petitioner in

October 2006. After speaking to Mr. Breaux and reviewing the

written report Mr. Breaux generated, Mr. Wolfe instructed the

Security Alliance manager (Al Martin) not to assign Petitioner

to a WASA facility. Mr. Wolfe took that action based on

Mr. Breaux’s opinion that Petitioner’s lack of attention created

a security risk.

11. Petitioner failed to establish that Mr. Wolfe’s action

was motivated by Petitioner’s race or national origin. 6

12. After Mr. Wolf’s instruction to Mr. Martin, Security

Alliance could have assigned Petitioner to any County facility

other than a WASA facility or to another Security Alliance

client.

13. On May 17, 2007, Mr. Wolfe conducted rounds to check

on security personnel at various County facilities. He came

upon a security guard at the pump station located at

911 Northwest 67th Avenue, Miami, which is a WASA facility. The

greater weight of the credible evidence established that

Mr. Wolfe did not remember Petitioner, who was the security

guard he met. Mr. Wolfe observed that Petitioner was in

violation of the uniform policy and had unauthorized reading

material at his post. Mr. Wolfe returned to his office and

proceeded to reduce to writing what he had observed. While

preparing his memorandum Mr. Wolfe realized that Respondent had

instructed Security Alliance not to use Petitioner at any WASA

facility. Because of that prior order, with which Security

Alliance had failed to comply, Mr. Wolfe informed Security

Alliance of his observations, instructed Security Alliance not

to use Petitioner as a security guard for any County post, and

imposed a fine against Security Alliance in the amount of

$1,800.00.

14. Mr. Wolfe had no interest whether Petitioner retained

his employment with Security Alliance and he did not intend to

interfere with that employment, as long as Security Alliance did

not assign Petitioner to a County post. Petitioner failed to

establish that Mr. Wolfe’s actions following his observations on

May 17, 2007, were motivated by Petitioner’s race or national

origin.

15. On or shortly after May 17, 2007, Security Alliance

terminated Petitioner’s employment for failing to adhere to its

policies.

16. Brunelle Dangerville filed a Charge of Discrimination

against Respondent. That complaint, together with Mr.

Dangerville’s testimony, established that Mr. Dangerville and

Petitioner were not similarly situated employees. Consequently,

the claims raised by Mr. Dangerville’s Charge of Discrimination

are irrelevant to this proceeding.

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

insufficient to establish that Respondent was Petitioner’s

employer or that it, acting through Mr. Wolfe or otherwise,

unlawfully discriminated against Petitioner on the basis of his

race or national origin.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

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

19. Petitioner, who is asserting the affirmative of the

issues in this case, has the burden of proving by a preponderance

of the evidence that Respondent discriminated against him as

alleged in the Petition. See Balino v. Department of Health and

Rehabilitative Services , 348 So. 2d 349, 350 (Fla. 1st DCA 1977)

and Department of Transportation v. J.W.C. Co., Inc. , 396 So. 2d

778 (Fla. 1st DCA 1981).

20. The preponderance of the evidence standard requires

proof by "the greater weight of the evidence," Black's Law

Dictionary 1201 (7th ed. 1999), or evidence that "more likely

than not" tends to prove a certain proposition. See Gross v.

Lyons , 763 So. 2d 276, 289 n.1 (Fla. 2000).

21. 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 an 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.

22. Respondent is an “employer” within the meaning of

Section 760.02(7), Florida Statutes, which defines the term

“employer” to mean:

(7) "Employer" means any person employing

15 or more employees for each working day in

each of 20 or more calendar weeks in the

current or preceding calendar year, and any

agent of such a person.

23. 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. Absent direct evidence, a complaining party, such

as Petitioner, may prove intentional discrimination using

circumstantial evidence. See Denney v. City of Albany , 247 F.3d

1172, 1182 (11th Cir. 2001). Petitioner offered no direct

evidence that any action by Respondent, Mr. Breaux, or Mr. Wolfe,

was motivated by Petitioner’s race of national origin.

24. Petitioner relied upon circumstantial evidence in an

attempt to establish his claim(s) that Respondent committed an

unlawful employment practice against him. In McDonnell Douglas

Corp. v. Green , 411 U.S. 792, 802-803 (1973), the U.S. Supreme

Court established the methodology to be used in 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. If the

complaining party does establish a prima facie case, the burden

shifts to the responding party to establish that it had a

legitimate, non-discriminatory reason for its actions. If the

responding party makes such a showing, the burden shifts back to

the complaining party to demonstrate that the articulated reason

was a pretext for discrimination. Texas Dep’t of Community

Affairs v. Burdine , 450 U.S. 248, 255-56 (1981).

25. To establish a prima facie case of discriminatory

treatment, Petitioner 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. See Knight

v. Baptist Hospital of Miami , 330 F.3d, 1313, 1315-1316 (11th

Cir. 2003) and Burke-Fowler v. Orange County, Fla. , 447 F.3d

1319, 1323 (11th Cir. 2006).

26. Petitioner failed to establish a prima facie case of

discrimination against Respondent based on circumstantial

evidence.

27. Petitioner established that he is a member of a

protected group and was capable of performing the job of security

guard.

28. Petitioner did not establish that Respondent subjected

him to an adverse employment action. The adverse employment

action in this case was the termination of Petitioner’s

employment by Security Alliance because Petitioner failed to

follow their policies. Respondent’s placing Petitioner on the

“do not use” list was not an adverse employment action because

Security Alliance could have continued Petitioner’s employment,

but reassigned him to other duties.

29. Petitioner did not establish that Respondent treated

similarly situated employees outside of his protected class more

favorably than he was treated.

30. Even if one were to conclude that Petitioner had

established a prima facie case of discrimination, Respondent

established a legitimate, non-discriminatory reason for the

actions that underpin the allegations of discrimination. The

burden of producing a legitimate, non-discriminatory reason was

Perryman v. Johnson Products Company, Inc. , 698 F.2d 1138, 1142

(11th Cir. 1983). Because Petitioner did not show that the

articulated reason was a pretext for discrimination, it must be

concluded that Respondent is not guilty of the alleged unlawful

employment practice(s). See Burdine , supra , 450 U.S. at 254.

31. There was insufficient evidence, whether direct or

circumstantial, that Respondent, Mr. Breaux, or Mr. Wolfe took

any action against Petitioner based on his race or national

origin. Petitioner failed to establish that Respondent committed

an unlawful employment practice against him within the meaning of

the Florida Civil Rights Act of 1992.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby RECOMMENDED that the FCHR enter a final

order finding Respondent not liable to Petitioner for the

alleged discriminatory employment practice(s).

DONE AND ENTERED this 17th day of March, 2009, in

Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 17th day of March, 2009.

ENDNOTES

1 / All statutory references are to Florida Statutes (2008).

2 / The correct spelling is Wolfe.

3 / The spelling of the witness’s name in the Transcript is

“Brunell Dangerville.” The spelling of his name on the Charge

of Discrimination he filed (Petitioner exhibit 2) is “Brunel

Dangervil.”

4 / Pre-marked Respondent Exhibit 1 was admitted as Joint

Exhibit 1. An addendum was attached to pre-marked Respondent

Exhibit 2 before it was admitted as Joint Exhibit 2.

5 / Petitioner disputed that he was inattentive while on duty on

October 16, 2006. Even if that were the case, there is no doubt

that Mr. Breaux’s actions were motivated by what he believed he

had seen. His actions were not motivated by Petitioner’s race

or national origin.

6 / In making this finding, the undersigned has considered the

fact that prior to the incident involving Petitioner in

October 2006, Mr. Wolfe had instructed Security Alliance not to

assign seven or eight ineffective security guards to certain

County posts. The undersigned has also considered the fact that

Mr. Wolfe’s wife is Haitian.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Erwin Rosenberg, Esquire

Post Office Box 416433

Miami Beach, Florida 33141

William X. Candela, Esquire

Dade County Attorney's Office

Stephen P. Clark Center

111 Northwest First Street, Suite 2810

Miami, Florida 33128

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.