09-006377 Derek A. Robinson vs. Gulf Coast Community College Status: Closed Recommended Order on Tuesday, December 6, 2011.

Summary: Petitioner failed to prove his claim of race discrimination based on a hostile work environment, disparate treatment, or retaliation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEREK A. ROBINSON, )

)

Petitioner, )

)

vs. ) Case No. 09 - 6377

)

GULF COAST COMMUNITY COLLEGE, )

)

Respondent. )

)

RECOMMENDED ORDER

A n administrative h earing was conducted in this case on

March 30, August 18, and August 19, 2011 , in Panama City ,

Florida , before James H. Peterson, III, Administrative Law Judge

with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ceci le M. Scoon, Esquire

Peters & Scoon

25 East Eighth Street

Panama City, Florida 32401

For Respondent: Robert E. Larkin, III, Esquire

Jason Vail, Esquire

Allen, Norton & Blue, P.A.

906 North Monroe Street

Tallahassee, Florida 32303

STATEMENT OF THE ISSUE

Whether Respondent Gulf Coast Community College (Respondent

or the College ) violated the Florida Civil Rights Act of 1992 ,

s ections 760.01 Î 760.11 and 509.092, Florida Statutes, by

subjecting Petitioner Derek A. Robinson (Petitioner) to

discrimination in employment or by subjecting Petitioner to

adverse employment actions in retaliation of PetitionerÓs

opposition to the College Ós alleged discriminatory employment

practices .

PRELIMINARY STATEMENT

On April 22, 2009 , Petitioner filed a charge of

discrimination with the Florida Commission on Human Relations

(the Commission), which was assigned Charge No. 200901683

(Charge of Discrimination) . In the Charge of Discrimination , it

is alleged that the College discriminated against Petitioner in

employment by subjecting him to a hostile work environment and

treating him unfairly based upon Petitioner's race and that ,

when Petitioner complained, the College retaliated by changing

Petitioner's work schedule and e ventually firing Petitioner.

A fter investigating PetitionerÓs allegations, the Commission 's

executive director issued a Determination of No Cause on

October 12, 2009, finding that " no reasonable cause exists to

believe that an unlawful employment discrimi nation practice

occurred . . . ." An accompanying Notice of Determination

notified Petitioner of his right to file a Petition for Relief

for an administrative proceeding within 35 days of the Notice.

On November 16, 2009 , Petitioner timely filed a Petition for

Relief and , on November 19, 2009, the Commission forwarded the

petition to the Division of Administrative Hearings for the

assignment of an administrative law judge to conduct a n

administrative hearing . The case was originally assign ed to

Administrative Law Judge Diane Cleavinger, but was subsequently

transferred to the undersigned to conduct the administrative

hearing. Following a number of continuances, the final hearing

was even tually held in March and August 2011.

During the admi nistrative hearing held in this case ,

Petitioner testified , call ed 14 witnesses , and introduced 19

exhibits that were admitted into evidence as Exhibits P - 1

through P - 16, and P - 18 through P - 20 ( Exhibit P - 4 was part of

P - 20) . Respondent presented the testimony of four witnesses and

introduced 17 exhibits into evidence as Exhibits R - 1 through

R - 17 (Exhibits R - 16 and R - 17 were part of Exhibit P - 20) .

The p roceedings were recorded and a T ranscript was ordered.

T he parties were g iven 30 days from the filing of the T ranscript

within which to submit their respective Proposed Recommended

Orders. The last volume of the three - volume T ranscript of the

hearing was filed on September 13, 2011 . Thereafter , the

parties timely filed their Proposed Recommended Orders which

were considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is an African - American male .

2. The College is a public institution of higher education

located in Panama City, Florida.

3. In 1998, P etitioner was hired by the College to work in

its custodial department as a custodian . Petitioner held that

position until his termination on February 11, 2009.

4. The College's custodial de partment is part of the

College's maintenance and o perations division (collectively ,

Ð Maintenance Division Ñ ) managed by the campus superintendent.

The two other departments with in the Maintenance Division are

the maint enance and grounds departments.

5. During the relevant time period, there were

approximately 40 to 50 employees in the Maintenance Division.

Of those, there were approximately 21 to 28 custodians in the

custodial department .

6. Most of the custodians were African - Americans and there

were only three Caucasian custodians . The Caucasian custodians

were T om Krampota, Josephine Riley, and Tommy Gillespie .

7. Custodial staff typicall y work shifts beginning at

2:00 p.m. and ending at 10:00 p.m., Monday through Friday . They

are generally assigned housekeeping duties for a specific

building.

8. In addition to Monday through Friday, t he College is

also open on most weekends . P rior to 2001 , the College began

designating o ne employee to work a non - rotating weekend shift.

U nlike other custodians, the designated weekend custodian worked

from 10:00 a.m. to 10:30 p.m. on F riday s and 6:00 a.m. to 6:30

p.m. on Saturdays and Sunday s. The weekend custodian was not

assigned to a particular building, but rather worked in various

buildings as needed and was to be available to open doors to

campus buildings during weekend hours.

9. P etitioner was the designated weekend custodian from

2001 until his duties were changed in September 200 8 .

10. Dr. John Holdnak, who worke d for the College for 26

years in various capacities , including four years as Director of

Human Resources, was the one who established the position of

des ignated weekend custodian. Dr. Holdnak served as the

College's Vice - President for Administration Services for his

last eight years of employment with the College until leaving in

July, 2008 . As vice - president, Dr. Holdnak reported directly to

the president of the College, Dr. James Kerley.

11. Sometime prior to 2008, Dr. Holdnak observed that the

departments in the Maintenance Division were underperforming ,

not adequately supervised, and failing t o meet expectations.

Dr. Hold nak observed that the Maintenance Division employees

took excessive breaks and showed lack of effort in their work.

For example, mold was found in some of the classrooms, an open

window with a bird's nest was found in another, maintenance

orders were back logged, and Dr. Holdnak received a number of

complaints from faculty and College employees regarding the

Maintenance Division's level of s ervice.

12. As a result of Dr. Holdnak's observations , the College

removed the campus superintendent from his position because of

the superintendent's inability to manage line supervisors,

p rovide leadership, or supervise personnel.

13. After that, Dr. Holdnak personally supervised the

Maintenance Division for a time in order to assess and develop a

solution to the problem. Based upon Dr. Holdnak's assessment,

the College sought a pplica tions for a new campus superintendent

who could change and clean - up the culture of the Maintenance

Division. At the time, the three department supervisors within

the Maintenance Division wer e: Carlos "Butch" Whitehead for

maintenance, Dan Doherty for custodial , and Ronny Watson for

grounds. All three supervisors were Caucasi a n.

14. The vacancy for the campus superintendent position was

advertised . Dr. Holdnak encouraged John Westcott to apply for

the campus superintendent position because he had previously

worked with Mr. Westcott on a College construction project and

was impressed with his vigor and work ethic. Mr. Westcott , a

Caucasian, applie d. So did custodial department supervisor , Dan

Doherty , and three other candidates .

15. Mr. Westcott disclosed on his application that he had

been convicted of a felony twenty years prior to his

application. Dr. Holdnak determined that Mr. Westcott's prior

conviction would not impact his candidacy for the position.

16. The a pplicants were screened by a selection com mittee

composed of a number of C ollege employees from various

divisions , including Petitioner. Of the five applicants who

applied, the selection co mmittee 's first choice was John

Westcott, who was qualified for the position.

17. Petitioner did not agree with the selection

committee's first choice and was not impressed with Mr. Westcott

during the screening process because Mr. Westcott referred to

himself as the "terminator."

18. B ased up on the selection committee 's first choice and

the conclusion that Mr. Westcott satisfied the necessary

criteria to change the Main tenance Division's culture,

Dr. Holdnak recommended that the College hire John Westcott as

the new campus superintendent .

19. John Westcott was hired as campus superintendent in

January 2008. Once Mr. Westcott was hired, Dr. Holdnak

specifically directed him to take control of his departments,

Ðclean up the messÑ and hold his mid - level supervis ors

responsible for their subordinat e s ' results. Dr. Holdnak

instructed Mr. Westcott to take a hands - on approach, physically

inspect and visit the buildings to ensure cleanliness, increase

effectiveness, stop laziness , and decrease work order backlog s.

20. During his tenure, Mr. Westcott increased productivity

and reduced backlogs . Mr. Westcott took more initiative than

previous superintendents with cleaning and maintenance , and he

conducted weekly walkthroughs. While Mr. Westcott was campus

superintendent , th e backlog of 400 work orders he had inherited

was reduced to zero .

21. During Mr. Westcott ' s first month as campus

superintendent, he had an encounter with a Caucasian employee

named Jamie Lon g. O n January 31, 2008 , Mr. Westcott issued a

written memorandum to Mr. Long as a follow - up from a verbal

reprimand that occurred on January 28, 2008. The reprimand was

Mr. Westcott's first employee disciplinary action as campus

superintendent . According to the memorandum, the reprimand was

based upon Mr. Long 's confrontation and argument with

Mr. Westcott regarding the fact that Mr. Westcott had been

Ðchec king - upÑ on him. According to the memorandum, Mr. Westcott

considered "the manner in which [Mr. Long] addressed [him as]

totally inappropriate and could be considered insubordination."

22. Mr. Long disputed Mr. Westcott's version of the

incident and later sent a letter to College P resident Dr. Kerley

dated June 23, 2008, complaining about "the alleged incident of

insubordination" and the "almost non - stop harassment by John

Westcott." There was no mention or allegation in the letter

that John Westcott was racist or had discriminated against

anyone because of their race.

23. After Dr. Holdnak left the College in July 2008 , John

Mercer assumed his responsibilities . Mr. Mercer, like

Dr. Holdnak, had the perception that custodial work was below

par based on complaints and personal observations. He therefore

continued to direct Mr. Westcott to address these deficiencies

to improve the custodians' per formance.

24. Petitioner was the designated weekend custodian when

Mr. Westcott was hired.

25. In February 2008, Dr. Holdnak discovered a problem

with the amount of paid - time - off Petitioner received as a result

of his weekend schedule . The problem was that if a holiday fell

on a weekend, Petitioner would take the entire weekend off ,

resulting in a windfall o f 37.5 hours in additional paid - time -

off for Petitioner over other employees because his work hours

on the weekends were longer.

26. In order to correct the pro blem, in approximately

March 200 8, Petitioner was placed on a similar holiday pay

schedule as all other employees . At the time, the then - director

of the College's Department of Human Resources , Mosell

Washington , who is an African American , explained the change to

Petitioner. According to Mr. Washington, Petitioner was not

happy about the change in his holiday pay schedule . Petitioner,

however, does not blame Mr. Westcott for initiating the change .

27. Because of the change in his holiday pay schedule ,

Petitioner was required to work or use leave time for the

additional working hours during the Fourth of July weekend in

2008 . Petitioner called and asked to speak with Mr. Westcott

regarding the issue . During the phone call, Petitioner used

pro fanity .

28. After being cursed, Mr. Westcott hung up the phone and

then advised Mr. Washington , who told Mr. Westcott to document

the incident. The resulting written reprimand from Mr. Westcott

to Petitioner was dated July 11, 2011, and was approved by

Mr. Washington . When Mr. Washington presented Petitioner with

the written reprimand , Petitioner refused to sign an

acknowledgement of its receipt and abruptly left the meeting

without any comment. Petitioner did not tell Mr. Washington

that he believed he wa s being targeted or discriminated against

because of his race.

29. In addition to setting forth Mr. Westcott's version of

what occurred, t he written reprimand advised Petitioner that the

College had a grievance procedure, and also stated :

I have an open door policy and will gladly

address any concerns you may have whether

personal or job related. If you have a

grievance, tell me, but in the proper manner

and in the proper place.

30. Petitioner did not take advantage of either the

College's grievance procedure o r Mr. Westcott's stated open door

policy.

31. The College maintains a n anti - discrimination policy

and grievance policy disseminated to employees . The College's

procedure for employee grievances provides several levels of

review, starting with an immediate supervisor, then to a

grievance committee, and then up to the College's p resident.

32. Under the College's anti - d iscrimination policy,

discrimination and har assment based on race or other protected

class es is prohibited . Employees who believe they are being

discriminated against may report it to the Director of Human

Resources. Likewise, harassment is prohibited and may be

reported up the chain of command at any level.

33. Petitioner acknowledged receipt of the C ollege

hand book and policies on August 17, 2007.

34. In addition, b oth t he College President , Dr. Kerley,

and Vice President, John Mercer, maintain an Ðopen doorÑ policy.

35. After receiving the July 11, 2008, written reprimand,

Petitioner spoke to both Dr. Kerley and Mr. Mercer, at least

once, on Jul y 15, 2008. Petitioner, however, did not tell them

that he had been discriminated against because of his race. In

fact, there is no credible evidence that a report of rac e

discrimination was ever made regarding the July 11, 2 008 ,

written reprimand prior to Petitioner's termination.

36. Petitioner, however, did not agree with the July 11,

2008 written reprimand . A fter speaking to Dr. Kerley and

Mr. Mercer, Petitioner met with J amie Long , the Caucasian who

had earlier received a write - up from Mr. Westcott, for

assistance in preparing a written response. The written

response , dated August 4, 2008, and addressed to Mr. Washington,

Mr. Westcott, and Mr. Me rcer , stated:

On July 25, 2008, I was called into Mosell

Washington's office and was given a written

letter of reprimand from John Westcott, the

Campus Superintendent, which states that on

July 3, 2008, I had used profanity in a

phone conversation with him regarding my 4th

of July work schedule.

From the schedule that I received i n

February, from Mosell Washington, I believed

I was off that weekend.

I am wri ting this letter to dispute

Mr. Westcott's version of our conversation

and to protest the letter of written

reprimand.

Mr. Westcott says in the reprimand that I

was insubordin ate to him and had used

profanity. I did not use profanity, and I

do not believe that I was insubordinate in

any manner to him during our brief

conversation.

I feel that my work record and my integrity

speaks for itself. I have never been

insubordinate, or been a problem to anyone

until John Westcott, and had I known that I

was supposed to be on the job that weekend,

I would have been there.

37. Mr. Washington, Mr. Westcott, and John Mercer all deny

receiving the written response. In addition, contrary to the

written response, at the final hearing, Petitioner admitted that

he used profanity during the call and said ÐassÑ to

Mr. Westcott. Moreover, the written response does not complain

of race discrimination, and Dr. Kerley, Mr. Mercer, Dr. Holdnak,

Mr. W ashington, and Mr. Westcott all deny that they ever

receiv ed a c omplaint of race discrimination regarding the

incident.

38. E vidence presented at the final hearing did not show

that the written reprimand given to Petitioner dated July 11,

2008 , was racially motivated , given in retaliation for

PetitionerÓs statutorily - protected expression or conduct , or

that a similarly - situated non - African - American who used

profanity to a supervisor would not be subject to such a

reprimand.

39. Mr. Westcott general ly worked a more traditional

Monday through Friday schedule and, b ecause of Petitioner's

weekend work schedule, had minimal contact with Petitioner. In

fact, Mr. Westcott would not usually be on campus with

Petitioner , except Friday s, and the two men rarely spoke until

Petitioner's work schedule was changed in September 2008.

40. During the weekends that he worked at the College,

Petitioner was on - call and expected to return communications to

his pager or mobile phone, even during his lun ch breaks,

regardless of his location.

41. On Friday, August 22, 2008, after receiving a request

from faculty member Rusty Garner, PetitionerÓs supervisor Dan

Doherty asked Petitioner to clean the music room floor.

42. On Sunday afternoon , August 24, 2008, Mr. Mercer and

Mr. Westcott were working w hen they received word from

Mr. Garner that the music room floor had not been cleaned.

After unsuccessful attempts to reach Petitioner by cell phone

and pager, b oth Mr. Mercer and Mr. Westcott drove around the

Colleg e campus to find him. They were unsuccessful.

43. The reason Petitioner could not be reached was because

he had left campus and had left his telephone and pager behind.

According to Petitioner, he was on lunch break.

44. Mr. Mercer and Mr. Westcott found anoth er employee,

Harold Brown, to help prepare the music room for Monday.

Mr. Mercer was upset because he had to take time out from his

own work to find someone to complete the job assigned to

Petitioner.

45. That same afternoon, Mr. Mercer reported the incident

by e - mail to Mr. Washington and requested that appr opriate

action be taken.

46. On August 27, 2008 , PetitionerÓs supervisor, Dan

Doherty, i ssued a written reprimand to Petitioner for the

August 24 th incident. No evidence was presented i ndicating that

the written reprimand was racially motivated, or that a

similarly situated non - African - American who could not be located

during his or her shift would not be subject to such a

reprimand.

47. In September 2008, Dr. Kerley unilaterally determined

that no s ingle employee should work his or her entire workweek

in three days. He believed this schedule was unsafe, and not in

the best interests of the college . He therefore directed

Mr. Westcott and Mr. Mercer to implement a rotating schedule for

the weekends.

48. Mr. Westcott was not in favor of the change because it

meant additional scheduling work for him to accommod ate new

rotating shifts. No credible evidence was presented that the

schedule change was because of Petitioner Ó s race , or made in

retaliati on for PetitionerÓs statutorily - protected expressions

or actions.

49. From August 27 , 2008, through January 2009, there were

no other discipline s issued to Petitioner or reported incidents

between Petitioner and Mr. Westcott.

50. In December , 2008 , a group composed of most of the

custodial employees , including Petitioner, conducted a meeting

with the College's p resident, Dr. Kerley, and vice - p resident ,

Mr. Mercer . The group of custodia ns ele cted their new

supervisor James Garcia , an Asian - Pacific I slander , as the ir

spokesperson for the meeting.

51. The custodians ' primary purpose for the meeting was to

address complaints regarding Mr. WestcottÓs management style ,

his prior criminal conviction , and approach with employees .

They felt that Mr. Westcott could not be pleased.

52. Various concerns about Mr. Westcott expressed by the

employees were condensed in to three typed pages (collectively ,

Ð Typed Document Ñ ) consisting of two pages compiled by Jamie Long

and his wife Susan Long which contained 12 numbered paragraphs ,

and a third page with six unnumbered paragraphs . Mr. Garcia did

not transmit the Typed Document to the president or vice -

p resi dent prior to the meeting. Neither Jamie Long nor his wife

attended the meeting.

53. During the meeting , Mr. Garcia rea d several of the

comments from the Typed Document and Dr. Kerley responded to

each comment that was read. Mr. Garcia did not read through

more than the first five of the 12 items listed on the Typed

Document.

54. The Typed Document was not reviewed by the pr esident

or v ice - p resident and they did not retain a copy .

55. Petitioner asserts the comment listed in paragraph 9

on the second page of the Typed Document constitutes a complaint

or ev idence of racial animus. Although not discussed at the

meeting or reviewed by Dr. Kerley or Mr. Mercer , paragraph 9

states:

During a recent candidate forum, Westcott

used the term Ðblack assÑ in regard to

School Superintendent James McCallister.

This was heard by at least two witnesses.

Q. Are such racial slurs and

inappropriate, unprofessional behavior

condoned and acceptable?

56. Mr. Westcott denies making the alleged statement

referenced in paragraph 9 of the Typed Document. No evidence of

other racial remarks allegedly made by Mr. Westcott was

presented . There is no evidence that the College or its

administration condoned the alleged statement.

57. President Kerley, Vice President Mercer, and

Mr. Washington all gave credible testimony that they were not

made aware of the statement and that, if the statement in

paragraph 9 of the Typed Document or any alleged racial

discrimination by Mr. Westcott had been brought to their

attention , immediate action would have be en taken.

58. As a result of custodial e mployees Ó complaints about

Mr. WestcottÓs manage ment style , Dr. Kerley and Mr. Mercer

required Mr. Westcott to attend several sessions of management

training. In addition, Dr. Kerley counseled Mr. Westcott

against using harsh tactics and rough language that may be

acceptable on a construction site, but were not appropriate on a

College campus.

59. On February 9, 2009 , Mr. Westcott observed both

Petitioner and a co - worker leaving their assigned buildings . He

asked their supervisor, Mr. Garcia, to monitor their whereabouts

because he thought that they appeared to not be doing their

jobs . Mr. Westcott also told Mr. Garcia that , although the two

workers may have had a legitimate reason for walking from their

assigned building s , he had not hear d anything on the radio to

indicate as much.

60. The next day, o n February 10, 2009, Mr. Garcia told

Petitioner that Mr. Westcott had wanted to know where they had

been headed when they left the building the day before .

Petitioner responded by saying that if Mr. Westcott wanted to

know where he was, Mr. Westcott could ask him (Petitioner) .

61. Later that day , Petitioner spoke to Mr. Washington on

campus . Petitioner was very upset and said to Mr. Washington,

ÐW hat Ó s wrong with Westcott? He better leave me alone. He

don Ó t know who he Ó s messing with.Ñ

62. Later that same afternoon, Petitioner had a

confrontation with Mr. Westcott. According to a memorandum

authored that same day by Mr. Westcott:

I [John Westcott] had stopped outside the

mailroom to talk with Beth Bennett. While

talking with her I observed Derek

[Petitioner] leave Student Union West.

After seeing me, he returned to Student

Union West and waited outside the door.

Beth walked toward the Administration

building and I headed through the breezeway.

Derek approached me and said that he had

hea rd that I wanted to ask him something. I

asked him what he was talking about. He

said that I wanted to ask him where he was

going the evening before. I said ok, where

were you going?

Derek said that it was Ðnone of my f_ _ _

ing business.Ñ I told him that since I was

his supervisor, that it ÐwasÑ my business.

At this time, he stepped closer to me in a

threatening manner and said Ðif you donÓt

stop f_ _ _ ing with me, IÓm going to f_ _ _

you up.Ñ I told him that if he would do his

job, that he wouldnÓ t have to worry about

me. He replied Ðyou heard what I said ---

IÓll f_ _ _ you upÑ, as he walked back into

SUW.

I left the breezeway and went to John

MercerÓs office to report the incident.

63. Mr. WestcottÓs testimony at the final hearing

regarding the incident was consistent with his memorandum.

64. While PetitionerÓs version of the confrontation is

different than Mr. WestcottÓs, at the final hearing Petitioner

admitted that Mr. Westcott had a legitimate question regarding

his whereabouts and that he fail ed to answer the question. And,

while he denied using the specific curse words that Mr. Westcott

attributed to him , Petiti oner testified that he told

Mr. Westcott to leave him the ÐhellÑ alone because he was doing

his job.

65. While there is no finding as to the exact words

utilized by Petitioner to Mr. Westcott, it is found , based upon

the testimonial and documentary evidence, that on the afternoon

of February 9, 2009, Petitioner was confrontational towards

Mr. Westcott, that Petitioner refused to answer a l egitimate

question from Mr. Westcott, that Petitioner demanded that

Mr. Westcott leave him alone even though Mr. Westcott had a

legitimate right to talk to Petitioner about his job, and that

Petitioner used words that thre atened physical violence if

Mr. We stcott did not heed his warning.

66. After Mr. Westcott reported the incident to

Mr. Mercer, both Mr. Mercer and Mr. Westcott went to Dr. Kerley

and advised him of the incident . Dr. Kerley believed the report

of the incident and that Petitioner had threaten ed Mr. Westcott.

67. Mr. Washington was then informed of the incident.

After reviewing PetitionerÓs employment history, including

PetitionerÓs r ecent attitude problems, as well as

Mr. WashingtonÓs own interaction the same day of the latest

incident, Mr. Wash ington concluded that Petitioner should be

terminated. Mr. Washington gave his recommendation that

Petitioner be terminated to Dr. Kerley , who adopted the

recommendation.

68. The following day , February 11, 2009, Mr. Washington

called Petitioner into his office and gave him a memorandum

memorializing PetitionerÓs termination from his employment with

the College. The memorandum provided:

This memorandum is written notification that

because of a number of incidents which the

administration of the college deems

unprofessional, adversarial, and

insubordinate, you are hereby terminated

from employment at Gulf Coast Community

College, effective immediately.

69. At the time that he presented Petitioner with the

memorandum , Mr. Washington provided Petition er with the

opportunity to respond. Petitioner told Mr. Washington, ÐI t is

not over.Ñ Petitioner did not state at the time, however, that

he believed that his termination , change of schedule, or any

disciplinary action taken against him were because of r acial

discrimination or in retaliation for his protected expression or

conduct .

70. Further, at the final hearing, P etitioner did not

present evidence indicating that similarly - situated non - African -

American employees would have been treated more favorably t han

was Petitioner for threatening a supervisor. Further, the

evidence presented by P etitioner did not show that the decision

to terminate him was based on race or in retaliation for

protected expression or behavior, or that the facts behind the

reason th at Petitioner was fired were fabricated.

71. Following his termination, Petitioner met with both

Dr. Kerley and Mr. Mercer and apologized for acting wrongly.

72. The empirical record evidence of discipline against

College employees in the Maintenance Division during

Mr. WestcottÓs tenure does not d emonstrate a tendency by

Mr. Westcott or the College to discri minate against African -

American employees. The majority of discipline s and the first

discipline taken a gainst Mr. Long by Mr. Westcott w ere

administered t o Caucasians.

73. In total, Mr. Westcott o nly reprimanded five

employees. Of these, three were Caucasian -- Mr. Long,

Mr. Whitehead, and Mr. Doherty . Despite the fact that the

majority of the custodians were African - American, only two

Afri can - Americans were disciplined -- Petitioner and Harold

Brown.

74. During Mr. WestcottÓs employment, t he only two

employees who were terminated were Petitioner and a white

employee, Mark Ruggieri.

75. Excluding Petitioner , all African - American witnesses

testified that Mr. Westcott treated them equally and not one,

except for Petitioner , testified that they were treated

differently because of their race. The testimony of

PetitionerÓs African - American co - workers is credited over

PetitionerÓs testimony of alleged discriminati on.

76. Harold Brown Ós discipline was based upon the fact that

he gave the College Ós master keys to an outside third - party

contractor. Although Mr. Brown disagreed with the level of

punishment he received, in his testimony, he agreed that he had

made a mist ake. Mr. Brown further testified that he did not

believe African - Americans were targeted. According to

Mr. Brown, Mr. Westcott did not discriminate against him because

of his race , and ÐWestcott was an equal opportunist as far as

his behaviorÑ and Ðseemed agitated towards everybody when he was

in his moods.Ñ

77. Mr. Garcia was th e lead custodian when Petition er was

terminated and is currently the CollegeÓs custodial department

supervisor . While s everal employees told Mr. Garcia that they

did not like Mr. Westcott Ós management style, Mr. Garcia never

heard a racist comment and testified that Mr. Westcott was

strict and threatened the entire custodia l and maintenance

staff.

78. Butch Whitehead believes that Mr. Westcott attempted

to get him and his maintenance crew Ðin trouble. Ñ He had no

personal knowledge of the manner in which Mr. Westcott treated

Petitioner. Mr. Whitehead's testimony does not otherwise

support a finding that Mr. Westcott was a racist or that the

College discriminated against Petitioner because of his race.

79. Tom Krampota, a Caucasian and longtime employee and

former supervisor, agreed that Mr. Westcott was firm with all

custodians and complained about everybody, but was not a racist.

80. Lee Givens, an African - American , testified that his

custodial work was monitored because Mr. Westcott took issue

with dust and cleanliness , but that if he did his job

Mr. Westcott did not bother him. Mr. Givens did not testify

that he felt discriminated against because of his race, but

rather stated that Mr. Westcott made the job hard for Ðall the

custodians.Ñ

81. Horace McClinton , an African - American custodian for

the College, provided a credible assessment of Mr. Westcott in

his testimony which summarized how Mr. Westcott treated all of

his subordinates :

T here were certain things that he wanted us

to do that we should have been doing

already, and he was just there to enforce it

. . . he did not th ink anybody was doing

their job . . . . He was put there to make

sure we were doing our job . . . . I don ' t

think he was a racist.

82. Mr. McClinton further testified that all Maintenance

Division employee s , including Caucasian supervisors, were afraid

of Westcott because it was Ðhis way or the hi ghway.Ñ

83. Latoya ÐRedÑ McNair testified that he was being

monitored like the other custodians but did not believe it was

because of race.

84. Just as PetitionerÓs co - workersÓ testimony does not

support a finding that Mr. Westcott was a racist, Dan Doherty Ó s

deposition testimony does not support a finding that

Mr. Westcott Ós actions against Petitioner were because of race.

85. A review of Mr. DohertyÓs deposition reflects that

Mr. Doherty has no first - hand knowledge of actual

discrimination . Mr. Doherty state d , ÐI don't knowÑ when asked

how he knew Westcott was motivated by race . Nevertheless,

a ccording to Mr. Doherty , five African - Americans were singled

out, inclu ding Petitioner , Mr. McClinton, Mr. Givens,

Mr. McNair, and Mr. Brown . Two of these alleged ÐvictimsÑ

outright denied that Mr. Westcott treated them unfairly because

of race . The others did not testify that they believed

Mr. Westcott treated them differently beca use of race .

86. Mr. Doherty testified that besides the five

identifi ed, the remaining African - Americans were not criticized

or targeted. Mr. Doherty also conceded that it was possible

that Mr. Westcott just did not like the five custodians.

87. Further, despite the fact that Mr. Doherty was written

up by Mr. Westcott more than any other employee, including

Petitioner , Mr. Doherty never reported Mr. Westcott for

discrimination and did not state in his exit interview from the

College that Mr. Westcott was a racist or complain that race w as

an issue.

88. Rather than supporting a finding that Mr. Westcott was

motivated by race, Mr. DohertyÓs testimony demonstrated that the

problems he had with Mr. Westcott were similar w ith those

pointed out by others Ï - namely, that Mr. Westcott had a prior

criminal conviction , had a harsh managemen t style, and closely

scrutinized all workers .

89. While Petitioner and Mr. Long contend that they raised

the issue of discrimination with the College's management , t he

College's president, vice - president, d irector of human

resources, former vice - president, an d s uperintendent all deny

receiving a report of discrimination or that any employment

action was based on race or in retaliation.

90. Mr. Long Ó s testimony that he complained of race is not

substantiated because he did not witness any discrimination

first hand. He also never documented his alleged concerns about

racial discrimination prior to Petitioner's termination . In

addition, in his testimo ny, Mr. Long admitted that he never

he ard Mr. Westcott use a racially discriminatory term.

Likewise, Petitioner never documented alleged discrimination

until after being terminated.

91. Considering the evidence presented in this case, and

the failure of Pet itioner and Mr. Long to document alleged

complaints when an opportunity was presented, it is found that

the allegations of reported complaints of discrimination by

Mr. Long and Petitioner are not credible.

92. Further, the testimony from PetitionerÓs co - work ers

and su pervisors, which indicates that Mr. Westcott was harsh

with all employees but not racially discriminatory, is credited.

93. It is found that Petitioner did not show that any

employment action by the College or Mr. Westcott against him was

based on race. Rather, t he evidence presented in this case

demonstrates that Petitioner was not targ eted or treated

differently from any other employees based upon race . The

evidence also failed to show that Petitioner was retaliated

against because of his protec ted expression or conduct .

94. In sum, the evidence did not show that Petitioner was

subject to racial discrimination or wrongful retaliation, and

Respondent proved that Petitioner was terminated for engaging in

a pattern of unprofessional, adversarial, and i nsubordinate

behavior, including a threat to his supervisor Ó s supervisor,

John Westcott.

CONCLUSIONS OF LAW

95. The Division of Administrative Hearings has

j urisdiction over the parties and subject matter of this

proceeding p ursuant to section 120.569 and s ubsection 120.57(1),

Florida Statutes (20 11 ), 1 / and Florida Administrative Code Rule

60Y - 4.016(1) .

96. The State of Florida, under the legislative scheme

contained in s ections 760.01 Î 760.11 and 509.092, Florida

Statutes, known as the Florida Civil Rights Act of 1992 (the

Act), incorporates and adopts the legal principles and

precedents established in the federal anti - discrimination laws

specifically set forth under Title VII of the Civil Rights Act

of 1964, as amended. 42 U.S.C. § 2000e, et seq.

97. The Florid a law prohibiting unlawful employment

practices is found in s ection 760.10 . This section prohibits

discrimination Ð against any individual with respect to

compensation, terms, conditions, or privileges of employment ,

because of such individual's race, colo r, religion, sex,

national origin, age, handicap, or marital status.Ñ

§ 760.10(1 )( a), Fla. Stat.

98. Pursuant to s ubsect ion 760.10(1), it is an unlawful

employment practice for an employer to discharge or otherwise

discriminate against an individual on the basis of race.

Pursuant to s ubsection 760.10(7 ), it is an unlawful employment

practice for an employer to discriminate against a per son

because that person has, Ðopposed any practice which is an

unlawful employment practiceÑ or because that person Ðhas made a

charge...under this subsection.Ñ

99. Florida courts have held that because the Act is

patterned after Title VII of the Civil Right s Act of 1964 , as

amended, federal case law dealing with Title VII is applicable.

See , e.g. , Fl a . Dep't of Cmty. Aff. v. Bryant , 586 So. 2d 1205 ,

1209 (Fla. 1st DCA 1991) .

100. As developed in federal case s , a prima facie case of

discrimination under Title VII may be established by statistical

proof of a pattern of discrimination, or on the basis of direct

evidence which, if believed, would prove the existence of

discrimination without inference or presumption. 2 / Usually,

howev er, direct evidence is lacking and one seeking to prove

discrimination must rely on circumstantial evidence of

discriminatory intent, using the shifting burden of proof

pattern established in McDonnell Douglas Corp. v. Green ,

411 U.S. 792 (1973) . See Holifield v. Reno , 115 F.3d 1555, 1562

(11th Cir. 1997).

101. Under the shifting burden pattern developed in

McDonnell Douglas :

First, [Petitioner] has the burden of

proving a prima facie case of discrimination

by a preponderance of the evidence. Second,

if [Petitioner] sufficiently establishes a

prima facie case, the burden shifts to

[Respondent] to Ðarticulate some legitimate,

nondiscriminatory reasonÑ for its action.

Third, if [Respon dent] satisfies this

burden, [Petitioner] has the opportunity to

prove by a preponderance that the legitimate

reasons asserted by [Respondent] are in fact

mere pretext.

U.S. Dep't of Hous . and Urban Dev . v. Blackwell , 908 F.2d 864,

870 (11th Cir. 1990) ( ho using discrimination claim); accord

Valenzuela v. GlobeGround N . Am . , LLC , 18 So. 3d 17, 22 (Fla. 3d

DCA 2009)(gender discrimination claim)("Under the McDonnell

Douglas framework, a plaintiff must first establish, by a

preponderance of the evidence, a prima facie case of

discrimination.") .

102. Therefore, in order to prevail in his claim against

the College , Petitioner must first establish a prima facie case

by a preponderance of the evidence. Id . ; § 120.57(1)(j), Fla.

Stat. ("Findings of fact shall be based upon a preponderance of

the evidence, except in penal or licensure proceedings or except

as otherwise provided by statute and shall be based exclusively

on the evidence of record and on matters officially

recognized.").

103. "Demonstrating a prima facie case is not onerous; it

requires only that the plaintiff establish facts adequate to

permit an inference of discrimination." Holifield , 115 F.3d at

1562 ; cf. , Gross v. Lyons , 763 So. 2d 276, 280 n.1 (Fla.

2000) ( " A preponderanc e of the evidence is ' the greater weight of

the evidence,' [citation omitted] or evidence that 'more likely

than not' tends to prove a certain proposition ." ).

104. Petitioner's Charge of Discrimination against the

College alleges that Petitioner was subjected to a hostile work

environment and disparate treatment because of his race and

that, when he complained, he was subjected to unlawful

retaliation. Petitioner, however, failed to prove his

allegations.

PETITIONER FAILED TO ESTABLISH RACIAL

DISCRIMINATION B ASED UPON A HOSTILE WORK ENVIRONMENT

105. A hostile work environment claim is established upon

proof that Ðthe workplace is permeated with discriminatory

intimidation, ridicule, and insult, that is sufficiently severe

or pervasive to alter the conditions of the victim Ós employment

and create an abusive working environment.Ñ Miller v. Kenworth

of Dothan, Inc. , 277 F.3d 1269, 1275 (11 th Cir. 2002) (quoting

Harris v. Forklift Sys., Inc. , 510 U.S. 17, 21 (1998)).

106. In order to establish a prima facie case under the

hostile work environment theory, Petitioner must show : ( 1) that

he belongs to a protected group; ( 2) that he has been subject to

unwelcome harassment; ( 3) that the harassment must have been

based on a protected characteristic of the employee, such as

r ace; ( 4) that the harassment was sufficiently severe or

pervasive to alter the terms and conditions of employment and

create a discriminatorily abus ive working environment; and

( 5) that the employer is responsible for such environment under

a theory of vic arious or of direct liability. Id .

107. Petitioner failed to establish the third, fourth or

fifth elements required to establish a prima facie case.

Petitioner did not establish the third element because he failed

to present credible evidence to show that the conduct that he

considered harassment was based upon his race. Rather ,

Petitioner speculates that he was disciplined and terminated

because of his race. PetitionerÓs speculation as to the motives

of the College standing alone, however, is insuff icient to

establish a prima facie case of discrimination. See , e.g. ,

Lizardo v. DennyÓs , Inc. , 270 F.3d 94 , 104 (2d Cir. 2001)

(Plaintiff ' s have done little more than cite to their

mistreatment and ask the court to conclude that it must have

been related to their race. This is not sufficient.Ñ).

108. Petitioner did not meet the fourth element because he

failed to show that the alleged harassment was sufficiently

severe or pervasive. F actors relevant in determining whether

conduct is sufficiently severe and pervasive to show a hostile

work environment include , among others : ( a ) the frequency of the

conduct, ( b ) the severity of the conduct, ( c ) whether the

conduct is physical ly threatening or humiliating, or a mere

offensive utterance, and ( d ) whether the con duct unreasonably

interferes with the employee 's job performance. Miller , 277

F.3d at 1276.

109. As the evidence was insufficient to establish

harassment based on race, Petitioner could not present evidence

of the frequency of any harassment based upon race . In fact,

because Petitioner and Mr. WestcottÓs schedules had limited

overlap until after the two written reprimands, the evidence

suggests lack of opportunity for frequency.

110. As far as the severity of the alleged hostile conduct

toward Petitioner , the change in his schedule was explained and

the reprimands he received were the result of facts admitted by

Petitioner. There were only two reported incidents between

Petitioner and Mr. Westcott prior to the incident that led to

PetitionerÓs termination.

111. There was no indication that the alleged hostile

conduct was physical ly threatening or humiliating , and the only

evidence of a n offensive utterance was the alleged Ðblack assÑ

comment which was not directed at Petitioner and M r. Westcott

denies. Moreover, Petitioner failed to present evidence that

any the alleged conduct or utterance interfered with his job

performance.

112. Petitioner also failed to establish the fifth element

by failing to present sufficient evidence to show that the

College should be responsible for a hostile work environment

under a theory of vicarious or direct liability. As noted in

the Findings of Fact, above, the evidence was insufficient to

show that College m anagement was even aware of the alleged

rac ial discrimination until af ter Petitioner was terminated.

113. G iven the lack of corroborative statements in

document s prepared by Mr. Long or on behalf of Petitioner in

response to discipline, PetitionerÓs and Mr. LongÓs testimony

asserting that they gave con temporary notice to College

management of their alleged complaints about racial

discrimination is not credible . This conclusion is bolstered in

light of the collective denials from College management that

such complaints were ever made.

114. The only evidence of harassment appears to be

Mr. WestcottÓs monitoring of Petitioner and his co - workers,

schedule changes, and three disciplinary actions (including

PetitionerÓs termination). As summarized in the Findings of

Fact, above, the co - worker testimony was insuf ficient to show

that there was a hostile work environment based upon race.

Instead, the evidence indicates that Mr. Westcott treated all of

his subordinates, including PetitionerÓs non - African - American

co - workers and supervisors, in an equally harsh manne r .

115. Therefore to the extent PetitionerÓs claim is based

upon an alleged hostile work environment, it must fail. See ,

e.g. , Vore v. Ind. Bell Tel. Co. , 32 F.3d 116 1 , 1162 (7 th Cir.

1994)( "Without racial animus, there is no Title VII claim [based

on an alleged racially hostile workplace]" ); cf. Dattolia v.

Principi , 332 F.3d 505 (8 th Cir. 2003) ( gender - based

discrimination claim alleging hostile work environment failed

where evidence showed that alleged harasser " had problems with

everyone, men and women alike " ).

PETITIONER FAILED TO PROVE

DISCRIMINATION BASED ON DISPARATE TREATMENT

116. Petitioner did not present any statistical or direct

evidence of discrimination , and otherwise failed to present a

prima facie case of discrimination based on disparate treatment.

117. In order to establish a prima facie case of race

discrimination based on disparate treatment, a petitioner must

show that: (1) he belongs to a racial minority; (2) he was

subjected to adverse job action; (3) his employer treated

similarly situa te d employees outside his classification more

favorably; and (4) he was qualified to do the job. Holifield ,

115 F.3d at 1562.

118. To demonstrate that he was treated less favorably

than a similarly - situated individual outside his protected

class, Petitioner must show that a ÐcomparativeÑ emp loyee was

Ðsimilarly situated in all relevant respects ,Ñ meaning that an

employee outside of Petitioner's protected class was " involved

in or accused of the same or similar conduct " and treated in a

more favorable way. Id.

119. As far as the written reprimands that Petitioner

received prior to his termination, Petitioner failed to present

evidence that similarly - situated non - African American employees

would have been treated any differently for engaging in the

behavior for which he was reprimanded on July 11 and August 27,

2008 .

120. Petitioner also failed to present sufficient evidence

to show disparate treatment resulting in his discharge by

failing to i dentify another non - minority employee accused of

threatening a supervisor who was not terminated , as was

Petitioner .

121. Therefore, Petitioner did not establish a prima facie

case of discrimi natory discipline or discharge based on

disparate treatment .

122. When a P etitioner fails to present a prima facie case

the inquiry ends and the case should be dismissed . Ratliff v.

State , 666 So. 2d 1008, 1013 n.6 (Fla. 1 st DCA 1996) .

123. Even if Petitioner had established a prima facie case

of discriminatory treatment or discharge , Respondent met its

burden of demonstrating that it had a legitimate,

nondiscriminatory reason for disciplining and then ultimately

discharging Petitioner.

124. The College demonstrated that the first two

disciplinary actions were legitimate and bas ed on facts admitted

by Petitioner. T he College also presented evidence that the

Petitioner engaged in confrontational behavior and threat ened

Mr. Westcott. Mr. Westcott immediately r eported the credible

threat and Mr. Washington recommended termination to the College

p resid ent who adopted the recommendation.

125. T he evidence demonstrated that the College acted on

the threat without regard to race or in retaliation , and

demonstrated that it had legitimate, non - discriminatory reason s

for taking the actions that it did in disciplining and

terminating Petitioner. 3 /

126. Petitioner offered no proof that the CollegeÓs

proffered reason s for disciplining or discharging him were

pretext s for unlawful discrimination based on Petitioner's race .

In proving that an employ er ' s asserted reason is merely a

pretext:

A plaintiff is not allowed to recast an

employer 's proffered nondiscriminatory

reasons or substitute his business judgment

for that of the employer. P rovided that the

proffered reason is one that might motivate

a reasonable employer , an employee must meet

that reason head on and rebut it , and the

employee cannot succeed by simply quarreling

with the wisdom of that reason.

Chapman v. AI Transp ort , 229 F.3d 1 012, 1030 (11th Cir. 2000) .

127. It cannot be said that the College's decision s to

discipline or terminate Petitioner under the circumstances were

not legitimate, non - discriminatory reaction s to Petitioner's

actions. Cf. Anderson v. United Parcel Serv . , Inc. , 506

F. Supp. 2d 1215 (S.D. Fla. 2007) ( summary ju dgment in favor of

employer that discharged an employee who threatened his

supervisor , finding that the reason (the threat) was not pretext

for race discrimination ).

128. For the foregoing reasons, it is concluded that

Petitioner failed to establish his claim of discrimination under

the theory of disparate treatment.

PETITIONER FAILED TO

PROVE UNLAWFUL RETALIATION

129. Petitioner presented n o direct evidence of

retaliation . Thus, under the same burden of proof analysis

discussed above, Petitioner must first establish a prima facie

case . In order to demonstrate a prima facie case of

retaliation, Petitioner must show: (1) that he was engaged in

statutorily protected expressi on or conduct; (2) that he

suffered an adverse employment action ; and (3) that there is

some causal relationship between the two events. Holifield , 115

F.3d at 1566.

130. In order to establish a causal link between the

conduct engaged in by Petitioner and the adverse employment

action, Petitioner must at least establish that the employer was

actually aware of the protected expression or conduct at the

time the adverse decis ion was made. Id.

131. Petitioner failed to establish that the decision -

makers for the College had any knowledge of any purported

protected conduct engaged in by the Petitioner or that there was

a causal relationship between any alleged protected conduct and

the adverse employment action s .

132. A s to whether Petitioner was engaged in statutorily

protected conduct or expression , both Petitioner and Jamie Long

allege that t he y complained of race discrimination. Neither

Petitioner's or Mr. Long 's testimony in that r egard , however,

are credited because both documented their complaints regarding

Mr. Westcott but failed to state that ÐraceÑ had anything to do

with their issues. And there is no credible evidence that

Petitioner otherwise complained of racial discriminat ion prior

to his termination.

133. On the other hand, t he College produced credible and

persuasive evidence that none of the College 's management,

including Dr. Kerley , Mr. Washington, Mr. Mercer, Dr. Holdnak ,

and Mr. Westcott , had knowledge of any complaint from Petitioner

or Mr. Long regarding race prior to the change in Petitioner's

schedule, his reprimands, or t ermination. As a result, the

evidence failed to demonstrate a causal connection between

Petitioner's alleged complaint of discrimination and the a dverse

employment actions taken against him. Thus, Petitioner failed

to establish a prima facie case of retaliation .

134. Even if Petitioner had established a prima faci e

case, the College advanced legitimate, non - retaliatory reasons

for the change in Petiti oner's schedule and Petitioner's

disciplines and termination .

135. Like the disparate treatment analysis, above, once an

employer offers a legitimate, non - discriminatory reason to

explain the adverse employment action, a P etitioner must prove

that the proffered reason was pretext for what actually amounted

to disc rimination. Id. Rather than supported by credible

evidence, the only support Petitioner has for the College's

alleged discriminatory motives is based upon Petitioner's

unsupported opinion whi ch , standing alone, is insufficient.

See Lizardo , supra .

CONCLUSION

136. Petitioner did not carr y his burden of persuasion

necessary to state a prima facie case for his claims of

discrimination under any theory advanced by Petitioner . Even if

he had, the College proved legitimate, nondiscriminatory reason s

for the di scipline and termination of Petitioner's employment,

which Petitioner failed to show were a mere pretext for unlawful

discrimination.

137. In sum, Petitioner failed to prove his Charge of

Di scrimination and it is otherwise concluded, based upon the

evidence, that the College did not violate the Flo rida Civil

Rights Act of 1992 , and is not liable to Petitioner for

discrimination in employment, or retaliatory discharge.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a Final Order dismissing PetitionerÓs Charge of

Discrimination and Petition for Relief consistent with the terms

of this Recommended Order.

DONE AND E NTERED this 6th day of December , 2011 , in

T allahassee, Leon County, Florida.

S

JAMES H. PETERSON, III

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of Decem ber, 2011 .

ENDNOTES

1 / Unless otherwise indicated, all references to the Florida

Statutes , Florida Administrative Code, and federal laws are to

the current version s which have not substantively changed since

the time of the alleged discrimination .

2 / For instance, an example of direct evidence in an age

discrimination case would be the employer's memorandum stating ,

ÐFire [ petitioner ] Î he is too old,Ñ clearly and directly

evincing that the plaintiff was terminated based on his age.

See Early v. Champion Int'l Corp. , 907 F.2d 1077, 1081 (11th

Cir. 199 0)).

3 / Petitioner, in his Proposed Recommended Order (PRO), argues

that the College failed to investigate Petitioner's threat as

reported by Mr. Westcott prior to terminating Petitioner, and,

i n doing so, violated its own rules. According to Petitioner,

the rule that the College violated was the College's "Manual of

Policy Section 6.098." See Petitioner's PRO, p. 10 (citing Exh.

R - 13). Policy 6.098, however, is not about discipline. Rather,

Policy 6.098 is the College's policy on "Discrimination,

Harassment, and Sexual Misconduct." The other College policy

that was entered into evidence was its policy 6.097 , titled

"Grievance Procedure." Exh. R - 12. There is no credible

evidence that Petiti oner utilized either policy, or that the

College violated those poli cies in terminating Petitioner.

Even if the College had not followed its internal

procedures in investigating Petitioner's threat, Petitioner

failed to rebut the College's reason for terminating Petitioner.

Cf. Springer v. Convergys Customer Mgmt. Group Inc. , 509 F.3d

1344, 1350 (11th Cir. 2007)(employer's failure to follow

internal procedures does not necessarily suggest discrimination,

especially where plaintiff failed to show that the employer's

reason for its decision was pretext). Rather than raising an

inference of discriminatory intent, the evidence showed that the

College president considered prior disciplines, first - hand

observations by Mr. Washington, as well as Mr. Westcott's

eyewitness account of the th reat made by Petitioner and

Mr. Washington's recommendation, before making the decision to

terminate Petitioner. Under the circumstances, Petitioner's

argument that the College did not investigate or that the

College's actions evince a discriminatory intent is without

merit.

COPIES FURNISHED :

Cecile M. Scoon, Esquire

Peters and Scoon

25 East 8th Street

Panama City, Florida 32401

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Jason Eric Vail, Esquire

Allen, Norton and Blue, P.A.

906 North Monroe Street

Suite 100

Tallahassee, Florida 32303

Larry Kranert, General Counsel

Florida Commission on Human Relations

2009 Apalach ee 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.