09-001212 Jesse Blount vs. Cemex/Rinker Materials Status: Closed Recommended Order on Thursday, May 28, 2009.

Summary: Petitioner failed to prove that Respondent discriminated against him. He was laid-off because he did not have required DOT certification, not because of his age or a perceived disability.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JESSE BLOUNT, )

)

Petitioner, )

)

vs. ) Case No. 09-1212

)

CEMEX/RINKER MATERIALS, )

)

Respondent. )

)

RECOMMENDED ORDER

A duly-noticed final hearing was held in this case by

Administrative Law Judge T. Kent Wetherell, II, on May 6, 2009,

in Gainesville, Florida.

APPEARANCES

For Petitioner: Jesse Blount, pro se

7814 Railroad Drive

Hawthorne, Florida 32640

For Respondent: David A. Young, Esquire

Fisher & Phillips, LLP

300 South Orange Avenue, Suite 1250

Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue is whether Respondent committed an unlawful employment practice against Petitioner.

PRELIMINARY STATEMENT

On August 11, 2008, Petitioner filed a Charge of

Discrimination with the Florida Commission on Human Relations

(Commission). The charge alleged that Respondent discriminated

against Petitioner based upon his age and disability.

On January 29, 2009, the Commission issued a “no cause”

determination based upon its investigation of Petitioner’s

allegations. On March 4, 2009, Petitioner timely filed a

Petition for Relief with the Commission. The petition alleged

that Respondent discriminated against Petitioner based upon his

age and a perceived disability.

On March 4, 2009, the Commission referred this matter to

the Division of Administrative Hearings (DOAH) to conduct the

hearing requested by Petitioner. The referral was received by

DOAH on March 6, 2009.

The final hearing was scheduled for and held on May 6,

2009. Petitioner testified at the hearing in his own behalf,

and Respondent presented the testimony of Jeremy Howard and

Jennifer Anderson. Petitioner’s Exhibits 1 through 3 and

Respondent’s Exhibits 1 through 10 were received into evidence.

Contrary to clearly-established law, 1 / the Commission did

not make arrangements to preserve the testimony at the final

hearing, either by sending a court reporter or a recording

device and someone to operate it. The parties were informed in

the Notice of Hearing that the Commission would likely not

comply with its duty to preserve the final hearing testimony,

but neither party hired a court reporter to do so. Therefore,

there is no record of the final hearing, except for the exhibits

received into evidence and this Recommended Order.

The parties were given until May 18, 2009, to file proposed

recommended orders. Petitioner filed a written closing argument

on May 13, 2009. Respondent filed its Proposed Findings of Fact

and Brief in Support on May 18, 2009. These filings have been

given due consideration.

All statutory references in this Recommended Order are to

the 2008 version of the Florida Statutes.

FINDINGS OF FACT

1. On May 23, 2005, Petitioner was hired by Respondent as

a ready-mix concrete truck driver at Respondent’s Gainesville

plant.

2. Petitioner was a good employee. He had a clean driving

record, and he did not have any disciplinary problems while

working for Respondent.

3. On or about July 27, 2007, Petitioner had a “mild”

heart attack and was placed on medical leave by Respondent.

4. In September 2007, Petitioner was released by his

personal physician to return to work.

5. Thereafter, Petitioner returned to work for a couple of

days and began the process of being recertified for his driving

duties. He reviewed safety materials and videos and did “ride-

alongs” with other drivers.

6. Before Petitioner could return to his driving duties,

he was required by federal Department of Transportation (DOT)

regulations to pass a physical and be certified as “physically

qualified.” Recertification is required every 24 months and

after an injury that impairs the driver’s ability to perform

his/her normal duties, such as the heart attack suffered by

Petitioner.

7. Petitioner understood that he could not return to his

job as a ready-mix concrete truck driver until he passed a

physical and received his DOT certification.

8. On September 12, 2007, Respondent sent Petitioner to a

DOT-approved physician in Ocala for his physical.

9. Petitioner did not pass the physical. The DOT-approved

physician expressed concerns about Petitioner’s cardiac surgery,

possible sleep apnea (based upon a questionnaire filled out by

Petitioner), and blood pressure issues.

10. There is no credible evidence that Respondent

influenced the DOT-approved physician’s decision in any way.

Petitioner’s suspicion that Respondent had something to do with

the decision is unfounded.

11. Petitioner’s personal physician disagreed with the

concerns expressed by the DOT-approved physician, and after

Petitioner underwent a series of tests, it was determined that

he did not have sleep apnea.

12. On November 9, 2007, Respondent laid Petitioner off

based upon his “failure to meet job qualifications.”

13. Petitioner was 48 years old at the time of the lay-

off.

14. There is no credible evidence that Petitioner’s age or

medical condition played any role in Respondent’s decision to

lay Petitioner off. Rather, the decision was based solely upon

Petitioner’s failure to have the DOT certification that was

required for him to drive a ready-mix concrete truck.

15. Respondent gave Petitioner ample time to obtain his

DOT certification before it laid him off. Approximately two

months passed between the time that Petitioner was cleared to

return to work by his personal physician and the time that he

was laid off for not having his DOT certification.

16. Petitioner did not obtain his DOT certification until

some point in January 2008.

17. Petitioner was treated no differently by Respondent

than other drivers -- both older and younger than Petitioner --

who lost their DOT certification. Like Petitioner, those

drivers were fired because they did not meet the applicable job

qualifications.

18. Petitioner testified that he was told that he would be

rehired when he got his DOT certification. This testimony is

corroborated by the comment on the Employee Separation Notice

for Petitioner, which stated “Jesse has been unable to get his

DOT card/when he does he will be rehired.”

19. By the time Petitioner obtained his DOT certification

in January 2008, Respondent’s business had declined due to the

slow-down in the economy and the building industry, and it did

not have any work for Petitioner.

20. Respondent laid off three drivers at its Gainesville

plant in December 2007, and it laid off an additional five

drivers at the plant in February 2008 because of the decline in

its business. Six of the eight drivers who were laid-off were

younger than Petitioner.

21. After these lay-offs, there were still three drivers

employed at Respondent’s Gainesville plant who had less

seniority than Petitioner, but in order to rehire Petitioner,

Respondent would have had to fire one of those drivers. There

were also a number of drivers still employed at Respondent’s

Gainesville plant who were older and had more seniority than

Petitioner.

22. Respondent’s decision not to fire one of the other

drivers in order to re-hire Petitioner was reasonable under the

circumstances. And, more importantly, there is no credible

evidence that this decision was motivated in any way by

Petitioner’s age or a perceived disability based upon his heart

attack.

23. Respondent has not hired any drivers at its

Gainesville plant since the lay-offs described above.

24. Petitioner has not worked since he was laid off by

Respondent. He testified that he has tried to find another

truck-driving job, but that like Respondent, most companies are

not hiring drivers because of the slow-down in the economy and

the building industry.

25. Petitioner would likely still be employed by

Respondent if he had obtained his DOT certification before

Respondent started laying off drivers because Petitioner was a

good employee with more seniority than all but one of the

drivers who were laid off in December 2007 and February 2008.

26. Petitioner believes that Respondent could have put him

to work in the warehouse or on the yard until he obtained his

DOT certification and could return to driving duties. However,

the record does not reflect whether any positions were available

in the warehouse or on the yard or whether Petitioner was

qualified for those positions.

27. Petitioner testified that he was told by other

employees that they overheard Respondent’s managers stating that

they did not intend to return Petitioner to his driving duties

because his heart attack made him a “high risk driver.” No

evidence was presented to corroborate this hearsay-based

testimony.

28. Petitioner also testified that a supervisor made a

critical comment to him regarding his use of a cane immediately

after he returned to work. The supervisor denied making the

comment, and even if the comment was made, there is no credible

evidence that it was anything more than an isolated comment.

CONCLUSIONS OF LAW

29. DOAH has jurisdiction over the parties to and subject

matter of this proceeding pursuant to Sections 120.569,

120.57(1), and 760.11(7), Florida Statutes.

30. It is an unlawful employment practice under the

Florida Civil Rights Act (FCRA) 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.

§ 760.10(1)(a), Fla. Stat. (emphasis supplied).

31. It is not enough for Petitioner to show that he was

treated unfairly by Respondent or to claim that Respondent

should have done more to keep him on the company’s payroll

because the FCRA, like the federal anti-discrimination laws, is

not concerned with whether an employment decision is prudent or

fair, but rather only with whether the decision was motivated by

unlawful discrimination. See Damon v. Fleming Supermarkets,

Inc. , 196 F.3d 1354, 1361 (11th Cir. 1999) (“We are not in the

business of adjudging whether employment decisions are prudent

or fair. Instead, our sole concern is whether unlawful

discriminatory animus motivates a challenged employment

decision.”); Elrod v. Sears, Roebuck & Co. , 939 F.2d 1466, 1470

(11th Cir. 1991) (“Federal courts do not sit as a super-

personnel department that reexamines an entity's business

decisions. No matter how medieval a firm's practices, no matter

how high-handed its decisional process, no matter how mistaken

the firm's managers, the [law] does not interfere. Rather, our

inquiry is limited to whether the employer gave an honest

explanation of its behavior." (internal quotations omitted));

Nix v. WLCY Radio/Rahall Communications , 738 F.2d 1181, 1187

(11th Cir. 1984) ("The employer may fire an employee for a good

reason, a bad reason, a reason based on erroneous facts, or for

no reason at all, as long as its action is not for a

discriminatory reason. While an employer's judgment or course

of action may seem poor or erroneous to outsiders, the relevant

question is simply whether the given reason was a pretext for

illegal discrimination.” (citations and internal quotations

omitted)).

32. Petitioner has the burden to prove that Respondent

unlawfully discriminated against him. See Reeves v. Sanderson

Plumbing Products, Inc. , 530 U.S. 133 (2000); St. Mary's Honor

Center v. Hicks , 509 U.S. 502 (1993); Texas Dept. of Community

Affairs v. Burdine , 450 U.S. 248 (1981); McDonnell Douglas Corp.

v. Green , 411 U.S. 792 (1973). See also City of Hollywood v.

Hogan , 986 So. 2d 634, 641-42 (Fla. 4th DCA 2008) (discussing

the elements of, and the analytical process applicable to, age

discrimination claims under the FCRA); St. Johns County School

Dist. v. O’Brien , 973 So. 2d 535, 540-43 (Fla. 5th DCA 2007)

(discussing the elements of, and the analytical process

applicable to, disability discrimination claims under the FCRA).

33. Petitioner did not establish a prima facie case of

unlawful discrimination or meet his ultimate burden of proof

based upon the standards set forth in the cases cited above.

See also Albertson’s, Inc. v. Kirkinburg , 527 U.S. 555 (1999)

(employer did not discriminate against commercial driver who

failed to meet the visual acuity standards in the DOT

regulations because compliance with the regulations was a

necessary qualification of the driver’s job).

34. First, Petitioner was not qualified for the driver

position from which he was laid-off by virtue of his failure to

pass the required physical and obtain the necessary DOT

certification. Second, Petitioner was not replaced by a person

outside of his protected class ( i.e. , younger or non-disabled)

because Respondent did not fill his position or the positions of

any of the other laid-off drivers. Third, there is no credible

evidence that the reasons given by Respondent for its decision

to lay off Petitioner in November 2007 and for its refusal to

rehire him in January 2008 were merely pretexts for

discrimination against Petitioner based upon his age or a

perceived disability.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Commission issue a final order

dismissing the Petition for Relief with prejudice.

DONE AND ENTERED this 28th day of May, 2009, in

Tallahassee, Leon County, Florida.

S

T. KENT WETHERELL, II

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 28th day of May, 2009.

ENDNOTE

1 / See § 120.57(1)(g), Fla. Stat.; Fla. Admin. Code R. 28-

106.214; North Dade Security Ltd. Corp. v. Dept. of State , 530

So. 2d 1040, 1041 (Fla. 1st DCA 1988). And cf. Fla. CS/HB 1007,

added language to Section 760.11, Florida Statutes, to provide

that “the commission is not liable for any costs, fees,

expenses, including court reporting or recordation fees

associated with the proceeding to which it is not a party,” but

which failed to pass the Legislature. The Commission is not

required to preserve the final hearing testimony by using a

court reporter rather than a mechanical device such as a tape

recorder ( see Poirier v. Dept. of Health & Rehab. Servs. , 351

So. 2d 50, 53 (Fla. 1st DCA 1977)), but it does not have any

authority whatsoever to shift its legal duty to preserve the

testimony to the parties, DOAH, or the Administrative Law Judge

(ALJ) assigned to conduct the hearing. Moreover, in the

undersigned’s view, the Commission’s recently-implemented policy

of not making any arrangements to preserve the final hearing

testimony is bad public policy because it has the effect of

precluding any meaningful review of the case by the Commission

or an appellate court, and because shifting the burden to the

parties imposes additional costs that they should not have to

bear because they did not initiate the proceeding (in the case

of the Respondent) and that they likely cannot afford (in the

case of a pro se Petitioner). The undersigned is aware that

some other ALJs are recording their final hearings with digital

tape recorders, but those recordings do not serve as an official

record of the proceeding, and in the undersigned’s view, it is

not the proper function or duty of the ALJ to be responsible for

making sure that a tape recorder is working correctly while he

or she is trying to conduct the hearing.

COPIES FURNISHED :

Jesse Blount

7814 Railroad Drive

Hawthorne, Florida 32640

David A. Young, Esquire

Fisher & Phillips LLP

300 South Orange Avenue, Suite 1250

Orlando, Florida 32801

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.