10-002328 Devon A. Rozier vs. Southgate Campus Center Status: Closed Recommended Order on Wednesday, November 10, 2010.

Summary: Respondent did not discriminate against Petitioner on the basis of his gender, nor did Respondent unlawfully retaliate against Petitioner. The Petition for Relief should be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEVON A. ROZIER , )

)

Petitioner , )

)

vs. ) Case No. 10 - 2328

)

SOUTHGATE CAMPUS CENT RE , )

)

Respondent . )

)

RECOMMENDED ORDER

A final hearing was h eld in this matter before Robert S.

Cohen, Administrative Law Judge with the Division of

Administrative Hearings, on August 10, 2010, in Tallahassee,

Florida.

APPEARANCES

For Petitioner: Devon A. Rozier, pro se

7361 Fieldcrest Drive

Tallahassee, Florida 32305

For Respondent: Desiree C. Hill - Henderson, Esquire

Littler Mendelson, P.C.

111 North Magnolia Avenue, Suite 1250

Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue is whether Respondent engaged in an unlawful

employment practice by subjecting Petitioner to gender

discrimination and retaliation in violation of the Florida Civil

Rights Act.

PRELIMINARY STATEMENT

Respondent, Southgate Campus Centre (S outhgate), is a

student housing and dining facility located in Tallahassee,

Florida, near the campuses of Florida State University, Florida

A&M University, and Tallahassee Community College.

Petitioner was employed as a dishwasher in the Southgate

cafet eria dish room. At the beginning of his employment,

Petitioner performed well. As time progressed and P etitioner

became older, his performance declined , and he became

disrespectful to management. On April 30, 2009, Petitioner got

into an argument with h is supervisor, and Petitioner left the

facility. Petitioner was told by his supervisor that leaving

his post would constitute job abandonment. Petitioner left

nonetheless.

Petitioner attempted to return to work, but his supervisors

chose not to re - hire P etitioner due to his prior actions and his

failure to exhibit improvement. Petitioner filed a Charge of

Discrimination with the Florida Commission on Human Relations

(FCHR) alleging gender discrimination and retaliation. A fter

investigating the charge, FCHR issued a no cause determination.

Petitioner elected to proceed to an administrative hearing by

filing a Petition for Relief on April 27, 2010.

A final hearing was scheduled for June 22 and 23, 2010, in

Tallahassee, Florida. After a Motion for Con tinuance was filed

by Respondent and granted by the undersigned to allow Respondent

to receive responses to its discovery requests, the final

hearing was held in Tallahassee on August 10, 2010.

At the hearing, Petitioner testified on his own behalf and

pre sented the testimony of Jennifer Rozier, Jodece Yant, and

Darnell Rozier . Respondent presented the testimony of

Kenneth S. Mills, Rasheik Campbell, and Jason McClung.

Respondent offered 12 exhibits into evidence.

After the hearing, a transcript of the proceedings was

filed on September 27, 2010. Petitioner and Respondent also

filed their proposed findings of fact and conclusions of law on

September 27, 2010. The post - hearing submissions by the parties

have been duly considered in the writing of this R ecommended

Order.

References to statutes are to Florida Statutes (2009)

unless otherwise noted.

FINDINGS OF FACT

1. Southgate is a student housing and dining facility

located in Tallahassee, Florida, near the campuses of Florida

State University, Flo rida A&M University, and Tallahassee

Community College .

2. On September 16, 2004, Southgate hired Petitioner Devon

Rozier as a dishwasher in the cafeteria dish room. The

cafeteria is open seven days a week and currently employs

approximately 34 employe es, some part - time and some full - time.

3. Petitioner had just turned 16 years old when Ken Mills

hired him based upon a long - standing relationship with

Petitioner ' s father , who had worked at Southgate for many years

and was an exemplary employee.

4. Petitioner worked as a part - time employee on the night

shift, 3:30 p.m. until 8:00 p.m., for a total of 20 - 25 hours per

week.

5. Petitioner later received a promotion out of the dish

room to the grill, and also worked other positions such as

a ttendant an d g reeter. Petitioner also worked in various

positions to assist as needed, as did other employees in the

cafeteria.

6. At the beginning of his employment, Petitioner

exhibited good performance. As time progressed, Petitioner ' s

performance began to dec line , and he openly disrespected

management.

7. Various disciplinary techniques were employed by his

supervisors in efforts to improve his performance, but the

improvements always proved to be short - lived.

8. On April 30, 2009, Petitioner and his super visor,

Rasheik Campbell, had an altercation , and Petitioner left the

facility. Mr. Campbell warned Petitioner before he left the

facility that such action would constitute job abandonment.

Despite Mr. Campbell ' s warning, Petitioner left the facility.

9. Mr. Campbell took the position that Petitioner

abandoned his employment with Southgate. Petitioner was no

longer placed on the schedule . O n May 4, 2009 , Southgate sent

Petitioner a letter confirming his resignation.

10. As months passed, Petitioner ma de attempts to regain

his position with Southgate by calling his supervisors

Mr. Campbell and Mr. Jason McClung. When his attempts were met

with resistance by his supervisors, Petitioner bypassed them and

went directly to Ken Mills, Southgate ' s General Ma nager and

Petitioner ' s former supervisor.

11. Petitioner presented his case to Mr. Mills in July and

August 2009, regarding his desire to return to work. Mr. Mills

had previously intervened on Petitioner ' s behalf, out of respect

for Petitioner ' s father, to help him keep his job when

difficulties with management had arisen. This time, Mr. Mills

instructed Petitioner that Mr. McClung and Mr. Campbell were his

direct supervisors and that they had ultimate responsibility

regarding his desired return to work at Southgate.

12. In August 2009, at the request of Mr. Mills, once

again doing a favor for Petitioner based upon the long - standing

work history of Petitioner ' s father at Southgate, Mr. Mills,

Mr. McClung, and Mr. Campbell met with Petitioner and his

moth er, Jennifer Rozier. At the meeting, they discussed

Petitioner ' s request to return to work at Southgate.

13. During the meeting, Mr. McClung and Mr. Campbell did

not feel that Petitioner exhibited any improvement in his

behavior and respect for authori ty. As a result, Mr. McClung

and Mr. Campbell chose not to re - hire Petitioner.

14. Petitioner claims the following conduct he witnessed

while working at Southgate was discriminatory: a) females were

allowed to sit down at tables and eat while on the clo ck;

b) females were allowed to use the computer while on the clock;

and c) Petitioner was required to perform the females ' work when

they failed to show up or wanted to leave early.

15. Petitioner further claims that his firing was

retaliatory based upon one complaint he made to Mr. Campbell in

February 2009 about having to perform the tasks of others who

failed to come to work.

16. Other employees , including Jodece Yant, Petitioner ' s

girlfriend, and Darnell Rozier, Petitioner ' s own brother,

testified th at both males and females could be seen eating or

using the computer while on the clock, and all were told to

perform others ' tasks when they failed to come to work or left

early.

17. Petitioner conceded that on occasion he engaged in the

same behaviors h e alleges to be discriminatory.

18 . Petitioner obtained a full - time job at Hobbit American

G rill on January 21, 2010, and, as of the date of the hearing,

continued to work there. His rate of pay at Hobbit American

Grill is currently $7.25 per hour , and h e testified he is better

off there than at his former employer, Southgate.

19 . Petitioner is currently earning the same hourly wage

($7.25) as he was earning when employed at Southgate.

20 . Southgate had policies and procedures in force that

prohibited, among other things, discrimination on the basis of

gender or any other protected characteristics. Southgate ' s

policies and procedures also prohibited retaliation.

21. Petitioner received a copy of the employee handbook ,

which contained Southgate ' s anti - discrimination policies and was

aware that Southgate had such policies in place.

CONCLUSIONS OF LAW

22 . The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. § § 120.569 , 120.57(1), and 7 60.11, Fla. Stat.

23. Petitioner is an " aggrieved person, " and Respondent an

" employer " within the meaning of Subsections 760.02(10) and (7),

Florida Statutes, respectively. Section 760.10, Florida

Statutes, makes it unlawful for Respondent to discharg e or

otherwise discriminate against Petitioner based upon an

employee ' s race or sex.

24. The Florida Civil Rights Act of 1992 (the " Act " ) makes

certain acts " unlawful employment practices " and gives FCHR the

authority, following an administrative hearing conducted

pursuant to Sections 120.569 and 120.57, Florida Statutes, to

issue an order " prohibiting the practice and providing

affirmative relief from the effects of the practice, including

back pay, " if it finds that such an " unlawful employment

practice " has occurred. §§ 760.10 and 760.11(6), Fla. Stat.

25. Pursuant to Subsection 760.10(1), it is unlawful for

an employer to discharge, refuse to hire, or otherwise

discriminate against an employee with respect to compensation,

terms, conditions, or privi leges of employment, based on the

employee ' s race, gender, or national origin.

26. Federal discrimination law may properly be used for

guidance in evaluating the merits of claims arising under

Section 760.10. See Brand v. Fla . Power Corp. , 633 So. 2d 5 04,

509 (Fla. 1st DCA 1994); Fla . Dep ' t of Cmty . Affairs v. Bryant ,

586 So. 2d 1205, 1209 (Fla. 1st DCA 1991).

27. In McDonnell Douglas Corp. v. Green , 411 U.S. 792,

802 - 03 (1973), the Supreme Court articulated a burden of proof

scheme for cases involvin g allegations of discrimination under

Title VII, where the plaintiff relies upon circumstantial

evidence. The McDonnell Douglas decision is persuasive in this

case, as is St. Mary ' s Honor C t r . v. Hicks , 509 U.S. 502,

506 - 07 (1993), in which the Court rei terated and refined the

McDonnell Douglas analysis.

28. Pursuant to this analysis, the plaintiff (Petitioner

herein) has the initial burden of establishing by a

preponderance of the evidence a prima facie case of unlawful

discrimination. Failure to estab lish a prima facie case of

discrimination ends the inquiry. See Ratliff v. State , 666 So.

2d 1008, 1012 n.6 (Fla. 1st DCA 1996 ), aff ' d , 679 So. 2d 1183

(1996) (citing Arnold v. Burger Queen Sys . , 509 So. 2d 958 (Fla.

2d DCA 1987)).

29. If, however, the p laintiff succeeds in making a prima

facie case, then the burden shifts to the defendant (Respondent

herein) to articulate some legitimate, nondiscriminatory reason

for its complained - of conduct. If the defendant carries this

burden of rebutting the plaint iff ' s prima facie case, then the

plaintiff must demonstrate that the proffered reason was not the

true reason, but merely a pretext for discrimination. McDonnell

Douglas , 411 U.S. at 802 - 03; Hicks , 509 U.S. at 506 - 07.

30. In Hicks , the Court stressed tha t even if the trier -

of - fact were to reject as incredible the reason put forward by

the defendant in justification for its actions, the burden

nevertheless would remain with the plaintiff to prove the

ultimate question of whether the defendant intentionally had

discriminated against him. Hicks , 509 U.S. at 511. " It is not

enough, in other words, to disbelieve the employer; the fact

finder must believe the plaintiff ' s explanation of intentional

discrimination. " Id. at 519.

31. In order to prove intentiona l discrimination,

Petitioner must prove that Respondent intentionally

discriminated against him. It is not the role of this tribunal

(or any court, for that matter) to second - guess Respondent ' s

business judgment. As stated by the court in Chapman v. AI

T ransp . , 229 F.3d 1012, 1031 (11th Cir. 2000), " courts do not

sit as a super - personnel department that reexamines an entity ' s

business decisions. No matter how mistaken the firm ' s managers,

the [Civil Rights Act] does not interfere. Rather, our inquiry

is limited to whether the employer gave an honest explanation of

its behavior (citations omitted). An 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. "

32. At the administrative hearing held in this case,

Petitioner had the burden of proving that he was the victim of a

discriminatorily motivated action. See Dep ' t of Banking & Fin . ,

Div . of Sec . & Investor Prot . v. Osborne Ster n and Co . , 670 So.

2d 932, 934 (Fla. 1996) ( " The general rule is that a party

asserting the affirmative of an issue has the burden of

presenting evidence as to that issue. " ); Fl a. Dep ' t of Health &

Rehabilitative Servs . v. Career Serv . Comm ' n , 289 So. 2d 4 12,

414 (Fla. 4th DCA 1974) ( " The burden of proof is ' on the party

asserting the affirmative of an issue before an administrative

tribunal. '" ).

33. Petitioner presented no evidence that he was subjected

to an adverse employment action. He claims that man agers

allowing females to sit at tables while on the clock, use

computers while on the clock, and forcing Petitioner to do

females ' work when they failed to show for work or wanted to

leave early constituted an adverse employment action.

34. An " adverse e mployment action " is an ultimate

employment decision, such as a discharge " or other conduct that

alters the employee ' s compensation, terms, conditions, or

privileges of employment, deprives him of employment

opportunities, or adversely affects his status a s an employee. "

Gupta v. Fl a . Bd. of Regents , 212 F.3d 571 , 587 (11th Cir.

2000). However, not all conduct taken by an employer which

causes a negative effect on an employee constitutes adverse

employment action. Davis v. Town of Lake Park , 245 F.3d 123 2

(11th Cir. 2001). In determining whether a " serious and

material " change in the terms, conditions, or privileges of

employment has been established, Davis instructs the court to

disregard the plaintiff ' s subjective view of the significance

and adversity of the employer ' s action: " [T]he employment

action must be materially adverse as viewed by a reasonable

person in the circumstance. " Id. at 1239.

35. Although Petitioner feels this alleged conduct amounts

to an adverse employment action, his subjective view is not

controlling since the conduct he alleges must be materially

adverse as viewed by a reasonable person in the circumstances.

Davis , 245 F.3d at 1239. Petitioner suffered no serious or

material change in the " terms, conditions, or privileges of

employment. " Courts have held that " trivial harms " and " petty

slights " do not constitute adverse employment actions. See

Burlington N. & Santa Fe Ry. Co. v. White , 548 U.S. 53 , 68 - 69

(2006). The conduct which is the subject of Petitioner ' s claim

of dis crimination is nothing more than " trivial harms " and

" petty slights, " if anything at all. Consequently, because

adverse employment action is an indispensable element of

Petitioner ' s claim, Petitioner ' s failure to present sufficient

evidence is fatal to hi s claim.

36. " To show that employees are similarly - situated the

Petitioner must show that the ' employees are similarly - situated

in all relevant aspects. '" Knight v. Baptist Hosp. of Miami,

Inc. , 330 F.3d 1313, 1316. " The comparator must be nearly

identi cal to the petitioner, to prevent courts from second -

guessing a reasonable decision by the employer. " Wilson v. B/E

Aero. , Inc. , 376 F.3d 1079 , 1091 (11th Cir. 2004). In other

words, Petitioner must be " matched with persons hav ing similar

job - related ch aracteristics who were similar ly situat ed " to

Petitioner. MacPherson v. Univ. of Montevello , 922 F .2d 766 ,

775 (11th Cir. 1991).

37. Simply put, in order to establish the third element of

the prima facie case, Petitioner must produce evidence that

would permit the trier of fact to conclude that Respondent

treated employees of a different gender more favorably than

Petitioner. See Lathem v. Dep ' t of Children & Youth Servs. , 172

F.3d 786 , 793 (11th Cir. 1999).

38. Petitioner cannot meet this burden becau se he

admittedly has no competent evidence of any similarly - situated

employees outside of his protected class being treated more

favorably. Testimony by Petitioner ' s girlfriend and his own

brother, both employees of Southgate, identified both men and

wome n subjected to the alleged disparate conduct of Petitioner ' s

claim. Each testified that men and women sat to eat while on

the clock, used the computer while on the clock, and were forced

to pick up others ' work when they failed to show or left early.

Pet itioner conceded that he had seen such behaviors in the past.

Since Petitioner cannot demonstrate other instances of

discrimination, his Petition for Relief must be denied. See

Lathem , 172 F.3d at 793; see also Holifield v. Reno , 115 F.3d

1555 (11th Cir. 1997).

39. Petitioner also claims that Southgate retaliated

against him when he was terminated as a result of one complaint

to Mr. Campbell in February 2009 of being forced to do other

employees ' job duties. Under Title VII, " [i]t shall be an

unlawful e mployment practice for an employer to discriminate

against any of his employees . . . because . . . [h]e has made a

charge, testified, assisted, or participated in any manner in an

investigation, proceeding or hearing under this subchapter . 42

U.S.C. §200 0e - 3(a). Because Petitioner alleges a retaliation

claim based upon circumstantial evidence, the burden shifting

framework in McDonnell Douglas applies.

40. To establish a prima facie case of retaliation,

Petitioner must show that: 1) he was engaged in a n activity

protected under Title VII; 2) he suffered an adverse employment

action; and 3) there was a causal connection between the

protected activity and the adverse employment action. See

Pennington v. City of Huntsville , 261 F.3d 1262 , 1266 (11th Cir.

2001). To satisfy the causal connection requirement, Petitioner

must establish that the protected activity and the alleged

retaliatory action are not completely unrelated. Wideman v.

Wal - Mart Store s , Inc. , 141 F.3d 1453 , 1457 (11th Cir. 1998).

Notably, the person engaged in the alleged conduct must be aware

of the protected activity. Gupta v. Fla . Bd . of Regents , 12

F.3d at 571 (11th Cir. 2000).

41. The first element of Petitioner ' s prima facie case of

retaliation requires him to establish that he enga ged in

statutorily protected activity. To do so, Petitioner must show

that he opposed conduct by the employer based upon an

objectively reasonable belief that Southgate was engaged in

unlawful employment practices. See Harper v. Blockbuster Ent.

Corp. , 1 39 F.3d 1385 , 1388 (11th Cir. 1998); Brown v. Sybase,

Inc. , 287 F. Supp. 2d 1330 , 1345 (S.D. Fla. 2003). Petitioner ' s

claim of protected activity is his complaint to Mr. Campbell in

February 2009 that he was being forced to do other employees '

job duties. No evidence was produced by Petitioner that he

expressly complained about gender discrimination. Courts have

consistently required that an employee ' s complaints must clearly

put an employer on notice of a violation of the law. See

Johnson v. Fla. Dep ' t of Elder Affairs , No. 4:09 - CV - 306/RS/WCS,

2010 U.S. Dist. L EXIS 42784 (N.D. Fla. Mar. 20, 2010).

Petitioner ' s February 2009 complaint did not put Southgate on

notice that he was opposing discrimination or that he was making

a formal complaint. Therefore , Petitioner ' s complaint does not

constitute protected activity.

42. Moreover, Petitioner ' s allegations of suspension and

termination are unfounded. After his April 30, 2009,

altercation with Mr. Campbell, Petitioner was told that if he

left t he premises at that time, Mr. Campbell would consider him

to have abandoned his job. An employee who voluntarily resigns

cannot claim that he suffered an adverse employment action under

Title VII. See Fannin v. Lemcko Fl a., Inc. , No. 8:05 - CV - 2303 - T -

27TBM, 2007 U.S. Dist. LEXIS 1267 (M.D. Fla. Jan. 5, 2007);

Hammon v. DHL Airways, Inc. , 165 F.3d 441 , 447 (6th Cir. 1999).

43. Even assuming that Petitioner suffered an adverse

employment action, no causal connection exists. Petitioner

cannot even make the minimum show ing to establish a causal

element of a prima facie claim of retaliation, i.e. , that the

employer was actually aware of the protected expression at the

time it took the adverse employment action in April 2009. A

court will not presume that a decision - maker was motivated to

retaliate by something unknown to him or her. Brungart v.

BellSouth Telecomms . , Inc. , 231 F.3d 791 , 799 - 800 (11th Cir.

2000); Holifield v. Reno , 115 F.3d at 1566 . As noted above,

Petitioner ' s conduct cannot as a matter of law be deemed to have

put Southgate on notice that he was engaging in protected

activity, and Southgate cannot be deemed to have been aware of

any other type of protected activity by Petitioner at the time

of the complained - of employment action in April 2009.

Mr. Mills , Mr. McClung, and Mr. Campbell testified that none of

them had any knowledge of P etitioner ' s claims of discrimination

until he filed his c harge of discrimination on October 27, 2009.

Consequently, there is no evidence of a causal link between the

complai ned - of employment action and Petitioner ' s alleged

protected conduct, and, based upon the facts and circumstances

of this case, no inference of a causal link could ever arise.

Since Petitioner cannot even clear the first hurdle, that of a

prima facie case, his claim must fail.

44. The evidence produced at hearing failed to prove, by a

preponderance of the evidence, that Petitioner suffered

discrimination in h is employment on the basis of h is gender.

Respondent articulated legitimate, non - discriminatory r easons

for its actions and decisions regarding Petitioner. The

preponderance of the evidence clearly supports that Respondent

did not commit an unlawful employment practice.

45. Based upon the evidence and testimony offered at

hearing, Respondent is not found to have committed an unlawful

employment practice as alleged by Petitioner in h is Petition for

Relief. Therefore, h is Petition should be dismissed.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law,

it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing the Petition for Relief.

DONE AND ENTER ED this 10th day of November , 2010 , in

Tallahassee, Leon County, Florida.

S

ROBERT S. COHEN

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 10th d ay of September , 2010 .

COPIES FURNISHED :

Desiree C. Hill - Henderson, Esquire

Littler Mendelson , P . C .

111 North Magnolia Avenue, Suite 1250

Orlando, Florida 32801

Micah Knight, Esquire

123 North Seven th Avenue

Durant, Oklahoma 74701

Devon A. Rozier

73 61 Fieldcrest Drive

Tallahassee, Florida 32305

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 Ap alachee 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.