10-002591 Lellewyn Jones vs. Walt Disney World Status: Closed Recommended Order on Tuesday, March 1, 2011.

Summary: There is insufficient proof to establish employment discrimination based on age, race, or in retaliation for prior complaints.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LELLEWYN JONES , )

)

Petitioner , )

)

vs. ) Case No. 10 - 2591

)

WALT DISNEY WORLD , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was

conducted by video teleconference between Orlando and

Tallahassee, Florida, on November 20 and 30 , 2010 , before

Administrative Law Judge Claude B. Arrington of the Division of

Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Jerry Girley, Esquire

The Girley Law Firm, P.A.

125 East Marks S treet

Orlando, Florida 32803

Brooks Girley, Esquire

The Girley Law Firm, P.A.

125 East Marks Street

Orlando, Florida 32803

For Respondent : Glennys Ortega Rubin, Esquire

Shutts and Bowen LLP

300 South Orange Avenue

Orlando, Florida 32801

STATEMENT OF THE ISSUE

Whether Respondent violated section 760.10, Florida

Statutes , by discriminat ing against Petitioner based on his race

(black) and age (over 40 years old) and retaliat ing against him

for engaging in protected activity . 1

PRELIMINARY STATEMENT

At times relevant to this proceeding, Respondent , Walt

Disney World (WDW), employed Petitioner . On April 1, 2009,

Petitioner filed a Charge of Discrimination with the Florida

Commission on Human Relations ( FCHR ) alleging that WDW had

discriminated against him in his employment based on his race,

age, and in retaliat ion for exer cising protected right s . FCHR

staff investigated the subject Charge of Discrimination and on

May 21, 2010, the Executive Director of FCHR issued a

"Determination: No Cause." Thereafter, on May 12, 2010,

Petitioner filed a Petition for Relief (Petition) from an

unlawful employment practice , which alleged that WDW had

committed an unlawful employment practice as follows:

"Initially [WDW] paid me less for doing the

same work as a similarly situated non - black

person. When I complained about it I was

retalia ted against by my supervisor in the

form of negative evaluations and micro

management of my job performance.

Ultimately, I was terminated from my

position.

The Petition listed the following as the disputed issues of

material fact:

1. Whether the Petit ioner was subjected to

disparate terms and conditions of employment

because of his race.

2. Whether the Petitioner was subjected to

disparate terms and conditions of employment

because of his age.

3. Whether the Petitioner was retaliated

against for pa rticipating in a lawfully

protected activity.

On May 13 , 2010, FCHR transmitted the Petition to DOAH to

"conduct all necessary proceedings required under the law and

submit recommended findings to the [FCHR]."

At the final he aring, Petitioner testifi ed on his own

behalf. Petitioner presented no other witnesses and no

exhibits.

Respondent presented the testimony of Patrick Doubleday

( Respondent 's Manager of Compensation) ; Donald W. Drasheff, Jr.

( Petitioner 's direct supervisor) ; Robert Castillo ( Petitioner 's

co - worker) ; Anthony Roberts ( Petitioner 's co - worker) ; and Betty

Forrest ( Petitioner 's co - worker) . Respondent offered 28

consecutively - numbered exhibits, 26 of which were admitted into

evidence.

A Transcript of the proceedings, consisting of t wo volume s ,

was filed on January 6 , 2011. The parties filed Proposed

Recommended Order s, which ha ve been duly considered by the

undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is a male African - American who was 46 years

old at the time of the formal hearing. At all times relevant to

this proceeding, Petitioner was over the age of 40.

2. Petitioner graduated from Tuskegee University with a

degree in mechanical engineering. He has 17 years of experience

in manufacturing and 10 years of working in management.

3. On May 14, 2004, WDW hired Petitioner as a host and

ride attendant at WDW's Animal Kingdom Dinoland Attraction.

Petitioner was an hourly employee .

4. On November 3, 2004, WDW promoted Petitioner to a

position titled " Material Control Supervisor, " which is a

salaried position. Petitioner 's promotion included a

substantial pay increase from his prior hourly position.

Although there was no change in his actual duties, Petitioner 's

job title changed from Supervisor to Superintendent . In January

2008, his job ti t le changed to Service Manager.

5. Material Control is one of several departments within

WDW's in - house manufacturing unit, which is referred to as

"Central Shops."

6. Until September 2007, Petitioner 's direct supervisor

was either Laura Greico or Bill Pace. 2

7. In September of 2007, Donald W. Drasheff, Jr. , became

the manufacturing manager of Central Shops and became

Petitioner 's direct supervisor.

8. Mr. Drasheff, a Caucasian male, was 37 years of age at

the time of the formal hearing.

9. In addition to Petitioner , Mr. Drasheff had direct

supervision over Robert Castillo (Hispanic male under 40 years

of age), Anthony Roberts (black male over 40 years of age), and

Betty Forrest (black female over 40 years of age). For ease of

reference, these employees will be referred to as Mr. Drasheff's

direct reports. All of Mr. Drasheff's direct reports were

salaried superintendents or supervisors (later titled service

managers) .

10. When the title of the direct reports was changed to

s ervice m anager, Petitioner 's pay grade was changed fro m a 27 to

a 30. The pay grades overlap, and Petitioner received no

additional compensation when his pay grade was changed. The

reclassification for Petitioner and the other direct reports was

in title only. No one received any additional compensation.

1 1. Mr. Drasheff informed his direct reports that he

expected each of them to be present at the time their

subordinates clocked - in around 6:30 a.m. and clocked - out in the

afternoon; absent emergency circumstance, each was to obtain

advance approval of vac a tion and personal appointments ; each had

to arrange coverage from another Drasheff direct report when

absent; and each had to inform him if he or she was going to be

late. Mr. Drasheff informed his direct reports that he expected

them to be available 24 h ours per day, 7 days per week.

12. Mr. Drasheff regularly met with all his direct

reports, including Petitioner , on a one - on - one basis to discuss

his expectations as a manager, the status of pending projects,

and to follow up on any outstanding issues. M r. Drasheff

provided his direct reports performance critiques when he

thought it necessary. Mr. Drasheff kept notes of those meetings

to document his discussions with his direct reports.

13. There was insufficient evidence to establish that

Mr. Drasheff treated Petitioner any differently than he treated

his other direct reports.

14. Between September 2007 and September 2008,

Petitioner 's job performance was inconsistent , and he failed to

meet reasonable expectations. Petitioner repeatedly complained

ab out his work assignments and his level of pay. Mr. Drasheff

repeatedly met with Petitioner and counseled him as to his

performance and to areas of performance that required

improvement.

15. On March 11, 2008, Robert Castillo was hired as a

service manage r over the paint shop , wh ich is a department

within the C entral S hop . Petitioner applied for the position

for which Mr. Castillo was hired because the pay grade was

higher than Petitioner 's pay grade. While Mr. Castillo had

little or no training as a pa inter, he had management skills WDW

wanted. Mr. Castillo was an external hire, i.e., he was not

promoted from within WDW. As an external hire, Mr. Castillo

could and did command a higher salary than an employee such as

Petitioner , who had been promoted from within the company. At

the time he was hired, Mr. Castillo was paid $60,000.00 per year

while Petitioner was earning $57,000.00. Neither the decision

to hire Mr. Castillo nor the disparity in pay was based on

Petitioner 's race or age. 3

16. On September 5, 2008, Mr. Drasheff again discussed

with Petitioner some of the issues they had been discussing

throughout the year . Those issues includ ed Petitioner 's failure

to f ollow up on job assignments, failure to communicate non -

emergency absences, failure to obtain coverage in the event of

absence, failure to get to work on time, and lack of

dependability. Mr. Drasheff advised Petitioner that he would

evaluate Petitioner 's job performance in the category of

"falling behind , " which is an unsatisfact ory rating, and that he

would place Petitioner on a 60 - day performance plan (PDO) , once

the PDO had been constructed with the assistance of WDW's human

relations department (HR) .

17. On September 7, 2008, Petitioner lodged a complaint

against Mr. Drasheff by a telephone call to WDW's hotline, which

is the company's complaint line. Petitioner asserted that

Mr. Drasheff was harassing him, that he was being discriminated

against, and that his pay was inequitable.

18. For the evaluation period October 1, 200 7 to

September 30, 2008, Petitioner received an annual performance

rating of "falling behind . "

19. On November 6, 2008, Petitioner began the PDO that had

been developed by Mr. Drasheff and HR. The PDO outlined the

performance concerns that Mr. Drasheff had been discussing with

Petitioner throughout the previous year.

20. When he issued the PDO, Mr. Drasheff advised

Petitioner that there would be weekly review sessions during

which he and Petitioner would discuss Petitioner 's performance

and any concern s Mr. Drasheff had with that performance. These

weekly sessions replaced the less formal one - on - one sessions

Mr. Drasheff had utilized during the previous year. The PDO

included a 30 - day review and a 60 - day review with a

representative from HR present t o monitor Petitioner 's progress.

21. In January 2009, while still on the PDO, Petitioner

caused damage to a company vehicle that Mr. Drasheff attributed

to Petitioner 's lack of attention. Mr. Drasheff, with the

assistance of HR, issued Petitioner a couns eling memorandum in

connection with the accident.

22. At the conclusion of the PDO, M r . Drasheff concluded

that Petitioner 's performance while on the PDO had been

inconsistent and that he should be placed on an "At Risk Plan , "

which was a 30 - day plan to p rovide Petitioner a final

opportunity to improve his performance. A representative of HR

assisted in developing and monitoring the At Risk Plan. The

development of the PDO and the subsequent development of the At

Risk Plan were consistent with establishe d WDW policies.

23. Petitioner disputed that his performance had not

satisfied the PDO and asserted that he should not have been

placed on the At Risk Plan.

24. Mr. Drasheff, in consultation with HR, determined that

Petitioner 's performance remained inconsistent dur ing the At

Risk Plan period. Petitioner had periods during which he

performed well, but he was unable to sustain satisfactory

performance. Petitioner conti nued to lack dependability, failed

to adequately communicate with Mr. Drasheff, and did not follow

through with projects as expected. There was no evidence that

Petitioner 's race or age was a factor in Mr. Drasheff's

evaluation of Petitioner's performance .

25. Towards the end of the At Risk Plan, Petitioner was

told during a meeting with Mr. Drasheff and a representative

from HR that he was not meeting expectations and that he was in

danger of losing his job.

26. Mr. Drasheff therefore recommended to his immediate

supervisor and to the HR director that Peti tioner 's employment

be terminated. While that recommendation was pending,

Petitioner went on family medical leave for one or two weeks.

27. After Mr. Drasheff had submitted his recommendation of

termination to his immediate supervisor and to HR, Petition er

filed with FCHR the Charge of Discrimination dated April 1,

2009 . 4

28. Petitioner 's employment with WDW was terminated when

he returned from family medical leave.

29. Mr. Drasheff followed WDW policies and procedures in

supervising Petitioner .

30. There was insufficient evidence to establish that

Mr. Drasheff or any other WDW employee discriminated against

Petitioner based on Petitioner 's race or age. There was no

evidence that Mr. Drasheff or any other WDW employee retaliated

against Petitioner ba sed on any complaint made by Petitioner

regarding pay inequity or discriminatory treatment.

CONCLUSIONS OF LAW

31 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to sections 120 .569, 120.57(1), and 760.11 ,

Florida Statutes .

32 . The Florida Civil Rights Act of 1992 (FCRA) is

codified in sections 760.01 through 760.11 , Florida Statutes .

33 . Pursuant to section 760.10(1)(a), it is unlawful for

an employer to terminate the employme nt of any individual based

on that individual's race or age.

34 . The FCRA was patterned after Title VII of the Civil

Rights Act of 1964, 42 U.S.C s ection 2000 et seq. Federal case

law interpreting Title VII is applicable to cases arising under

the FCRA. See Valenzuela v. GlobeGround North America, LLC , 18

So. 3d 17, 21 (Fla. 3d DCA 2009) and Brand v. Florida Power

Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA 1994).

35 . Petitioner bears the burden of proving by a

preponderance of the evidence that Respondent discriminated

against h im based on his race or age . See Valenzuela , 18 So. 3d

at 22.

36 . Discriminatory intent may be established through

direct, circumstantial, or statistical evidence. See United

States Postal Serv. Bd. of Governors v. Aikens , 460 U. S. 711,

714 (1983), and Valenzuela , 18 So. 3d at 21.

37 . Direct evidence is evidence that, if believed, would

prove the existence of discriminatory intent without resort to

inference or presumption. See Wilson v. B/E Aero., Inc. , 376

F.3d 1079, 1086 (11t h Cir. 2004)("Direct evidence is 'evidence,

that, if believed, proves [the] existence of [a] fact without

inference or presumption.'").

38 . Petitioner offered no direct evidence that WD W , acting

through Mr. Drasheff or any other WDW employee , discriminate d

against h im based on his race or age .

39 . Petitioner offered no statistical evidence that WDW ,

acting through acting through Mr. Drasheff or any other WDW

employee , discriminated against h im based on h is race or age .

40 . Where a complainant attempts to prove intentional

discrimination using circumstantial evidence, the shifting

burden framework established by the United States Supreme Court

in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S. Ct.

1817, 36 L. Ed. 2d 668 (1973) and Texas De partment of C ommunity .

Affairs v. Burdine , 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d

207 (1981) is applied. Those decisions, and the long line of

cases that followed , established the following framework to

establish a prima facie case of discrimination based on race or

age : (1) p roof that the claimant is a member of a protected

class; (2) p roof that the claimant was qualified for h is

position; (3) p roof that the claimant suffered an adverse

employment action; and (4) p roof that si milarly situated

employees outside the employee's protected class were treated

more favorab ly. See Valenzuela , 18 So. 3d at 21.

41 . Petitioner established prongs 1, 2 , and 3 of the

analysis.

42 . Petitioner did not establish prong 4 of the analysis.

There was no evidence WDW treated any employee outside of

Petitioner 's protected class more favorably than Petitioner .

Consequently, his assertion that WDW discriminated against him

based on his race or age should be re jected. See Jones v.

Bessemer Caraway Med. Ctr. , 137 F.3d 1306, 1311 (11th Cir.

1998).

43 . To establish a claim of retaliation, Petitioner had to

prove (1) that he engaged in a protected activity, (2) that he

was subjected to an adverse employment actio n, and (3) the two

events were causally related. See McCann v. Tillman , 526 F.3d

1370 (11th Cir. 2008) and Wideman v. Wal - Mart Stores, Inc. , 141

F.3d 1453, 1457 (11th Cir. 1998).

44 . Petitioner engaged in a protected activity when he

complained to the WD W hotline that Mr. Drasheff was harassing

him , when he complained that he was subjected to discrimination

and pay inequity , and when he filed the Charge of Discrimination

with FCHR . Although Mr. Drasheff was Petitioner 's direct

supervisor and recommended to the HR department that

Petitioner 's employment be terminated, there was insufficient

evidence that Petitioner's protected activity and Mr. Drasheff's

recommendation were causally related. Consequently, it is

concluded that Petitioner failed to establish a prima facie case

of retaliation.

45 . Because Petitioner failed to establish a prima facie

case for his contentions, it is unnecessary to determine whether

WDW articulated a legitimate, nondiscriminatory reason for

ter minating his employment. Had such a determination been

necessary, the undersigned would have concluded that WDW did

articulate a legitimate, nondiscriminatory reason for

terminating Petitioner 's employment. In light of the reason

articulated by WDW , Peti tioner must produce competent evidence

to show either his race , age or retaliation for protected

activity actually motivated the discharge, or (2) that WDW 's

nondiscriminatory explanation is a false pretext. See Reeves v.

Sanderson Plumbing Prods. Inc. , 1 20 S. Ct. 2097 (2006).

Petitioner has produced no credible evidence that WDW 's action

was actually motivated by his race . age , or retaliation, and he

produced no evidence that Respondent 's articulated reason for

its action was a false pretext for discrimination.

46 . Petitioner has not met h is burden of proof in this

proceeding.

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 that dismisses Petitioner's claims

of discrimination .

DONE AND ENTERED this 1st day of March , 2011, in

Tallahassee, Leon County, Florida.

S

CLAUDE B. ARRINGTON

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 1st day of March , 2011.

ENDNOTES

1 Unless otherwise noted, each reference to a statute is to

Florida Statutes (2010), and each reference to a rule is to the

rule as published in Florida Administrative Code as of the date

of this Recommended Order.

2 On cross - examination counsel for WDW elicited testimony from

Petitioner that he had made a prior complaint of discrimination

in May 2006 pertaining to a supervisor named Laura Grieco. On

reflection, the undersigned concludes that the line of

questioning should not have been permitted. In r eaching the

findings and conclusions set forth in this Recommended Order,

the undersigned has given that line of questioning no

consideration.

3 Mr. Drasheff had no input into the salary or pay grade for any

of his service managers, including Petitioner and Mr. Castillo.

Mr. Castillo negotiated his salary through a recruiter.

4 While processing his Charge of Discrimination, a clerk at the

FCHR suggested to Petitioner that he include an allegation of

discrimination based on Petitioner 's age. Petitioner offered no

evidence that his age was a factor in any of the actions against

which he complains.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Jerry Girley, Esquire

The Girley Law Firm

125 East Marks Street

Orlando, Florida 32803

Glennys Ortega Rubin, Esquire

Shutts & Bowen, LLP

300 South Orange Avenue, Suite 1000

Orlando, Florida 32802

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 thi s recommended order should be filed with the agency that

will issue the final order in this case.