08-005487 Justo J. Carrion vs. Energy Savings Systems Status: Closed Recommended Order on Tuesday, February 24, 2009.

Summary: The evidence demonstrated that Petitioner was terminated for misconduct, not because of discrimination based on his national origin.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JUSTO J. CARRION, )

)

Petitioner, )

)

vs. ) Case No. 08-5487

)

ENERGY SAVINGS SYSTEMS, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on January 12,

2009, in Orlando, Florida, before Lawrence P. Stevenson, a duly-

designated Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Justo J. Carrion, pro se

P.O. Box 141112

Orlando, Florida 32814

For Respondent: Priscilla Rivers, Esquire

Arthur J. Ranson, III, Esquire

Shuffield, Lowman & Wilson, P.A.

P.O. Box 1010

Orlando, Florida 32802-1010

STATEMENT OF THE ISSUE

The issue is whether Respondent committed unlawful

employment practices contrary to Section 760.10, Florida

Statutes (2008), 1 by discriminating against Petitioner based on

his national origin (Hispanic), by limiting, segregating, or

classifying employees in a discriminatory fashion, or by

retaliating against Petitioner for his opposition to unlawful

employment practices.

PRELIMINARY STATEMENT

On or about November 19, 2007, Petitioner Justo J. Carrion

("Petitioner") dually filed with the Florida Commission on Human

Relations ("FCHR") and the federal Equal Employment Opportunity

Commission ("EEOC") a Charge of Employment Discrimination

against Respondent Energy Savings Systems of Central Florida,

Inc. ("Respondent"). Petitioner alleged that he was harassed

and intimidated due to his national origin, and was ultimately

terminated in retaliation for his complaints regarding the

discriminatory treatment.

On October 10, 2008, the FCHR issued a Right to Sue letter.

The letter stated that the EEOC investigated the case pursuant

to a work sharing agreement with the FCHR, and that the EEOC

determined that it was "unable to conclude that the information

obtained during its investigation established violations of the

statutes. The Right to Sue letter informed Petitioner of his

hearing rights, including the right to pursue the case in the

Division of Administrative Hearings ("DOAH") by timely filing a

Petition for Relief with the FCHR. On October 30, 2008,

Petitioner timely filed a Petition for Relief with FCHR.

On November 3, 2008, FCHR referred the case to the Division

of Administrative Hearings. The hearing was scheduled to be

held on January 12, 2009. At the hearing, Petitioner testified

on his own behalf. Petitioner's Exhibits A, C through J, L

through S, and U through W were admitted into evidence.

Respondent presented the testimony of Daniel Alexander, Dale T.

Aldrich, Jr., Adam Sorkness, Andy Weatherby, Julio Oliva, Isaiah

Fields, Jr., Edgar Mullenhoff, Ben P. Davis, and William K.

Aldrich. Respondent's Exhibits 3 through 6 were admitted into

evidence. 2

No transcript of the hearing was ordered by the parties.

Petitioner timely filed his Proposed Recommended Order on

January 20, 2009. Respondent timely filed its Proposed

Recommended Order on January 22, 2009.

FINDINGS OF FACT

1. Respondent is an employer as that term is defined in

Subsection 760.02(7), Florida Statutes. Respondent is a family

owned company based in Winter Park that installs residential and

commercial insulation and acoustical ceilings and tiles. The

company is divided into two divisions. The Insulation Division

is headed by William Aldrich. The Acoustic/Ceiling Division is

headed by Dale Aldrich, Jr., who was Petitioner's ultimate

supervisor. Subsequent references to "Mr. Aldrich" are to Dale

Aldrich, Jr.

2. Petitioner, a Hispanic male originally from the U.S.

Virgin Islands, was hired by Respondent in February 2006 to work

in the Acoustic/Ceiling Division. He was hired as a tile

installer, the entry-level position in the Acoustic/Ceiling

Division. A tile installer drops ceiling tiles into the

gridwork installed by a ceiling mechanic. With experience, a

tile installer may work his way up to ceiling mechanic.

3. "Ceiling mechanic" is not a licensed position, and

there is no formal progression through which an employee works

his way up to this more skilled, higher paid position.

Advancement depends on management's recognition that an

employee's skills have advanced to the point at which he can be

entrusted with the mechanic's duties. Three to four years'

experience is generally required to advance from tile installer

to ceiling mechanic.

4. By all accounts, including those of the ceiling

mechanics who supervised him at job sites and that of

Mr. Aldrich, Petitioner was more than competent as to his actual

job skills. During the approximately thirteen months he worked

for Respondent, Petitioner received four pay raises. He was

making $14.00 per hour at the time of his termination in August

2007.

5. The evidence produced at the hearing demonstrated that

Petitioner had problems controlling his temper on the job. He

was generally negative and quick to take offense at perceived

slights, especially when he inferred they were due to his

national origin. During his employment with Respondent,

Petitioner was involved in at least three altercations with

fellow employees and/or general contractors for whom Respondent

worked as a subcontractor.

6. The earliest incident occurred in October 2006.

Petitioner was working on a job site at which Respondent was a

subcontractor for Harkins Development Corporation. Petitioner

testified that a Harkins supervisor named Harley was

"commanding" him to perform tasks on the job site. Petitioner

was affronted, because he was not Harley's employee and because

Harley, who was white, did not appear to be giving commands to

the white employees of Respondent.

7. After lunch, Harley feigned that he was about to throw

a soft drink at Petitioner. In fact, the Wendy's cup in

Harley's hand was empty, though a drop or two of condensation

from the outside of the cup may have landed on Petitioner.

8. In Petitioner's version of the story, Petitioner then

stood up and asked Harley if he would enjoy being on the

receiving end of such treatment. Petitioner then phoned

Mr. Aldrich and asked to be sent to a different job site.

Mr. Aldrich refused, and instead scolded Petitioner. Petitioner

believed that Mr. Aldrich was retaliating for his complaint.

Petitioner walked off the job site for the rest of the day, and

worked at a different site the next day.

9. Petitioner entered into evidence the written statement

of his co-worker, Eddy Abud. Mr. Abud is Hispanic, with a

national origin in the Dominican Republic. Mr. Abud witnessed

the confrontation between Petitioner and Harley. Mr. Abud

stated that Harley shook his cup and a "couple drops" of water

splashed on Petitioner, who "went ballistic." Petitioner used

obscenities against Harley and invited him to fight. Harley

threw Petitioner off the job, an action with which Mr. Abud

agreed.

10. Petitioner entered into evidence the written statement

of his co-worker, Robert "Pappy" Amey. Mr. Amey is white, and

wrote that Petitioner "acted like a man all the time" except for

the incident with Harley. Mr. Amey's statement reads as

follows, in relevant part:

Harley had a big drink cup and he turned

around and flipped it, playing, nothing came

out. Justo lit up [and] called him a mother

fucker a dozen times. He said if I find you

on the street, I'll kill you. I leaned to

him and I said, "Justo, shut up." He did

not, he cussed Harley out the door. It was

Harley's job. This was unprofessional

behavior by Justo. It was just horseplay

and it was empty. No reason to act like

that.

11. Despite his overall respect for Petitioner, Mr. Amey

stated that Petitioner should have been fired for his actions.

12. Mr. Aldrich testified that Harley called him and told

him that Petitioner had threatened him. Petitioner told Harley

that he would not do anything on the job, but would "kick his

ass" if he saw him away from the job. Mr. Aldrich stated that

Harkins was one of Respondent's largest, longest-standing

accounts, and that he knew Harley as a "stand up guy" who would

have no reason to lie about such an incident.

13. The second incident occurred later in the same month,

on October 31, 2006. Petitioner was working for Respondent on a

project at the University of Central Florida. A ceiling

mechanic named Adam Sorkness was in charge of the project.

Petitioner testified that Mr. Sorkness had already angered him

in September 2006 by making racial jokes about black employees,

and that Mr. Aldrich had separated Petitioner from Mr. Sorkness

on subsequent jobs up to October 31, 2006.

14. At first, there were no problems on the University of

Central Florida job. Petitioner accepted his assignment from

Mr. Sorkness. On this day, every man on the job was installing

ceiling tile, which involved wearing stilts.

15. According to Petitioner, two white employees arrived

later in the morning and decided to work together, leaving

Petitioner to work with Isaiah Fields, a black employee whom

Petitioner alleged was the butt of Mr. Sorkness' earlier racial

jokes. Petitioner became agitated because it appeared the two

white employees were doing no work.

16. Mr. Fields testified that he and Petitioner were

working around a corner from Mr. Sorkness. They heard loud

laughter from around the corner. Mr. Fields said that the

laughter was not directed at him or Petitioner, but that it

appeared to anger Petitioner, who said, "Wait a minute," and

headed around the corner on his stilts. Mr. Fields stayed put

and thus did not see the subsequent altercation.

17. Petitioner approached Mr. Sorkness, who was also on

stilts. Petitioner complained about the job assignments.

Mr. Sorkness replied that everyone was doing the same job and

that Petitioner could leave if he didn't like it. Petitioner

became more incensed, calling Mr. Sorkness a "sorry white

faggot." Petitioner took off his stilts, then confronted

Mr. Sorkness at very close range. Mr. Sorkness pushed

Petitioner away. Petitioner then charged Mr. Sorkness and they

engaged in a brief fight. Ben Davis, a white ceiling mechanic

who witnessed the altercation, called it a "scuffle." 3

18. Mr. Aldrich investigated the matter and determined

that Petitioner was the instigator of the fight. He suspended

Petitioner for three days, and gave Mr. Sorkness a verbal

warning. Mr. Aldrich issued a "written warning" to Petitioner

cautioning him that he was subject to termination. Mr. Aldrich

wrote the following comments: "Justo has been given 3 days off

without pay. Normally an employee would be fired for this

action. Justo has NO MORE chances. Next offense will result in

immediate termination of employment with Energy Savings

Systems." The document was signed by Mr. Aldrich and

Petitioner. 4

19. Petitioner claimed that Mr. Aldrich cut his hours in

retaliation for the UCF incident, and it took several months for

his hours to come back up to 40 per week. The time sheets

submitted by Petitioner showed fluctuations in his work hours

before and after the incident, which is consistent with

Mr. Aldrich's testimony that he only cuts hours when work is

slow for the company.

20. The evidence demonstrated that Petitioner's hours were

reduced at times because he would refuse to take certain jobs,

either because of their location or because Petitioner did not

want to work with certain people, such as Mr. Sorkness.

21. The third and final incident occurred on August 20,

2007. Petitioner was working on a job for which Respondent was

a subcontractor to Alexander-Whitt Enterprises, a general

contractor. Alexander-Whitt's superintendent on the job was Dan

Alexander. Mr. Alexander asked Petitioner to clean up.

Petitioner resented either the order itself or Mr. Alexander's

method of delivering it, in light of a brief altercation between

the two men on the job site three days earlier. Petitioner

threatened to slap Mr. Alexander.

22. Mr. Aldrich testified that he received several calls

from Mr. Alexander complaining about Petitioner over the course

of this job. Petitioner had an "attitude" about Mr. Alexander's

instructing him on the job. Mr. Aldrich apologized. After

Petitioner's threat, Mr. Alexander called yet again and told

Mr. Aldrich that he wanted Petitioner off the job. After this

call, Mr. Aldrich fired Petitioner.

23. Aside from his own suspicions and resentments,

Petitioner offered no evidence that his termination had anything

to do with his national origin or was retaliation for his

complaints about the company's discriminatory practices. In

fact, Petitioner never made a formal complaint while he was

employed by Respondent. His only "complaints" were to certain

co-workers that he was being discriminated against because he

was Hispanic.

24. Andy Weatherby, a ceiling mechanic who at times was

Petitioner's field superintendent, recalled Petitioner telling

him that he felt disadvantaged on the job for being Hispanic,

but that Petitioner described no specific incidents of

discrimination.

25. Julio Oliva, a junior ceiling mechanic with

Respondent, is of Puerto Rican descent. Mr. Oliva testified

that he saw no discrimination at the company. He worked often

with Petitioner, whom he described as having a negative

attitude. Mr. Oliva testified that it was difficult to merely

pass the time in conversation with Petitioner, because

Petitioner always had something negative to say.

26. Edgar Mullenhoff, also Puerto Rican, has worked for

Respondent since 1982 and is the field superintendent for the

insulation side of the company. Mr. Mullenhoff described the

company as "like a family" and stated that he never felt a

victim of discrimination.

27. Mr. Abud's written statement attests that he has had

no problems working for Respondent, and that "we have great

bosses."

28. Petitioner noted what he termed a discriminatory

pattern in the ethnic diversity of the Insulation Division

versus the Acoustic/Ceiling Division. While conceding that most

of Respondent's employees are Hispanic, Petitioner notes that

the great majority of the Hispanics work in the lower paying,

less skilled Insulation Division. Petitioner further argued

that those few Hispanics hired in the Acoustic/Ceiling Division

are given no opportunity to advance to the position of ceiling

mechanic.

29. William Aldrich, the head of the Insulation Division,

testified that there is a much higher turnover in insulation,

and that for the last four years or so the only applicants for

the positions have been Hispanic. He credibly testified that he

hires anyone who appears capable of doing the job.

30. As to Petitioner's lack of advancement, it must be

noted that he worked for Respondent for just a little over one

year. Mr. Oliva testified that he has worked for Respondent for

five and one-half years. He spent the first two years

performing menial tasks and learning on the job. Mr. Oliva

stated that Respondent's ceiling mechanics were helpful to him

in learning the trade, and he felt no barriers due to his

national origin.

31. Mr. Sorkness testified that it took him between four

and five years to become a mechanic. Mr. Davis testified that

it took him between three and four years to work his way up to

ceiling mechanic.

32. The greater weight of the evidence establishes that

Petitioner was terminated from his position with Respondent due

to misconduct on the job.

33. The greater weight of the evidence establishes that

Respondent has not discriminated against Petitioner or any other

employee based on national origin.

CONCLUSIONS OF LAW

34. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

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

35. The Florida Civil Rights Act of 1992 (the Florida

Civil Rights Act or the Act), Chapter 760, Florida Statutes,

prohibits discrimination in the workplace. Subsection

760.11(1), Florida Statutes, provides that any person aggrieved

by a violation of the Act must file a complaint within 365 days

of the alleged violation.

36. Subsection 760.10(1)(a), Florida Statutes, states the

following:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire any 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.

37. Respondent is an "employer" as defined in Subsection

760.02(7), Florida Statutes, which provides the following:

(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.

38. Florida courts have determined that federal case law

applies to claims arising under the Florida's Civil Rights Act,

and as such, the United States Supreme Court's model for

employment discrimination cases set forth in McDonnell Douglas

Corp. v. Green , 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668

(1973), applies to claims arising under Section 760.10, Florida

Statutes. See Paraohao v. Bankers Club, Inc. , 225 F. Supp. 2d

1353, 1361 (S.D. Fla. 2002); Florida State University v. Sondel ,

685 So. 2d 923, 925 n.1 (Fla. 1st DCA 1996); Florida Department

of Community Affairs v. Bryant , 586 So. 2d 1205 (Fla. 1st DCA

1991).

39. Under the McDonnell analysis, in employment

discrimination cases, Petitioner has the burden of establishing

by a preponderance of evidence a prima facie case of unlawful

discrimination. If the prima facie case is established, the

burden shifts to Respondent, as the employer, to rebut this

preliminary showing by producing evidence that the adverse

action was taken for some legitimate, non-discriminatory reason.

If the employer rebuts the prima facie case, the burden shifts

back to Petitioner to show by a preponderance of evidence that

Respondent's offered reasons for its adverse employment decision

were pretextual. See Texas Department of Community Affairs v.

Burdine , 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981).

40. In order to prove a prima facie case of unlawful

employment discrimination under Chapter 760, Florida Statutes,

Petitioner must establish that: (1) he is a member of the

protected group; (2) he was subject to adverse employment

action; (3) he was qualified to do the job; and (4) his employer

treated similarly-situated employees of other national origins

more favorably. See , e.g. , Williams v. Vitro Services

Corporation , 144 F.3d 1438, 1441 (11th Cir. 1998); McKenzie v.

EAP Management Corp. , 40 F. Supp. 2d 1369, 1374-75 (S.D. Fla.

1999).

41. Petitioner has failed to prove a prima facie case of

unlawful employment discrimination.

42. Petitioner established that he is a member of a

protected group, in that he is a Hispanic male. Petitioner was

subject to an adverse employment action insofar as he was

terminated. Petitioner was qualified to perform the job of tile

installer, and had the ability to advance to the position of

ceiling mechanic.

43. However, Petitioner presented no evidence that his

national origin played any role in his termination or in his

failure to ascend to the position of ceiling mechanic. No

similarly situated employee was treated any differently or

better than was Petitioner. Having failed to establish this

element, Petitioner has not established a prima facie case of

employment discrimination.

44. Even if Petitioner had met the burden, Respondent

presented evidence of legitimate, non-discriminatory reasons for

terminating Petitioner, thereby rebutting any presumption of

national origin discrimination. The evidence presented by

Respondent established that Petitioner was terminated for

misconduct on the job, and that he was given the opportunity to

remain employed and to amend his behavior even after physically

assaulting his supervisor on the job at the University of

Central Florida.

45. Petitioner failed to prove that Respondent's reasons

for firing him are pretextual.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

issue a final order finding that Energy Savings Systems of

Central Florida, Inc. did not commit any unlawful employment

practices and dismissing the Petition for Relief.

DONE AND ENTERED this 24th day of February, 2009, in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

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 24th day of February, 2009.

ENDNOTES

1/ Citations, hereinafter, shall be to Florida Statutes (2008)

unless otherwise specified.

2/ Respondent's proposed recommended order states that

Respondent's Exhibit 2 was admitted into evidence. The

undersigned's notes indicate that Respondent's Exhibit 2 was not

admitted because it was identical to Petitioner's Exhibit H,

which was admitted into evidence.

3/ Mr. Davis testified that the scuffle would not have happened

had Petitioner stayed on his stilts.

4/ Petitioner denied having signed the written warning, though

he did not deny receiving it. He testified that he refused to

sign it in protest because Mr. Aldrich would not allow him to

write his own comments on the document. It is found that

Petitioner's recollection of the incident must be faulty. While

there is no reason to think that Petitioner is purposely lying

about refusing to sign the document, there is also no reason to

think anyone associated with Respondent would forge Petitioner's

signature on a document that Petitioner readily concedes he read

and received. Mr. Aldrich testified that he did nothing to

prevent Petitioner from writing his own comments on the document

and that he had no idea know why Petitioner did not.

COPIES FURNISHED :

Derick Daniel, Executive Director

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

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Justo J. Carrion

P.O. Box 141112

Orlando, Florida 32814

Priscilla Rivers, Esquire

Arthur J. Ranson, III, Esquire

Shuffield, Lowman & Wilson, P.A.

P.O. Box 1010

Orlando, Florida 32802-1010

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.