10-002593 Victor R. Bracamonte vs. Commercial Interior Contractor, Corp. Status: Closed Recommended Order on Wednesday, December 29, 2010.

Summary: Petitioner was not terminated or retaliated against because of age or national origin, but because he lost access to the work site after he was arrested for stealing.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VICTOR R . BRACAMONTE , )

)

Petitioner, )

)

vs. ) Case No. 10 - 2593

)

COMMERCIAL I NTERIOR CONTRACTOR )

CORP. )

)

Respondent. )

)

RECOMMENDED ORDER

A fin al hearing was held in this case on September 29,

2010, by video teleconference between sites in Tallahassee and

Miami, Florida, before Administrative Law Judge Eleanor M.

Hunter .

APPEARANCES

For Petitioner: Zandro E. Palma , Esquire

Zandro E. Palma, P.A.

3100 South Dixie Highway, Suite 202

Miami, Florida 33133

For Respondent: Aaron Reed , Esquire

Littler Mendelson, P.C.

One Biscayne Tower

Two South Biscayne Boulevard, Suite 1500

Miami, Florida 33131

STATEMENT OF THE ISSUE

The issue is whether Respondent engaged in an unlawful

employment practice , discrimination based on age and/or national

origin , an d/or retaliation against Petitioner .

PRELIMINARY STATEMENT

Petitioner, Victor Bracamonte (Petitioner or

Mr. Bracamonte), filed a Charge of Discrimination with the Equal

Employment Opportunity Commission (EEOC) dated August 11, 2009.

The EEOC transferred t he matter for to the Florida Commission on

Human Relations (FCHR). Bracamonte claimed discrimination based

on his national origin (Hispanic Peruvian) and age (53, with a

date of birth of September 14, 1955), occurring from September

2007 through January 2 1, 2009. He also claimed that he suffered

retaliation for not issuing warnings to or firing other

employees because of their national origins. Bracamonte, did

not check the word "retaliation" on the EEOC form. The FCHR

investigated the complaint and, on April 9, 2010, issued its

"Notice of Determination: No Cause," meaning that it found no

reasonable cause to believe that an unlawful employment practice

had occurred. Bracamonte filed a Petition for Relief with the

FCHR on May 12, 2010. The Petition wa s received at the Division

of Administrative Hearings (DOAH) on May 14, 2010.

Because Bracamonte did not check "retaliation" on the EEOC

form, Respondent, on June 30, 2010, moved to dismiss that

portion of the petition for relief. In response, Petitioner

noted that he made clear and unequivocal factual allegations of

retaliation on the same form. The motion was denied.

As requested in Petitioner's Response to Initial Order, the

case was set for hearing on July 14, 2010. In its subsequently

filed Response to Initial Order, Respondent requested that the

hearing be set in August or September to allow more than the

usual time for discovery. The case was re - scheduled for

August 6, 2010. Following the filing of Petitioner's Unopposed

Motion for Continuance, t he case was re - scheduled for and held

on September 29, 2010.

The Transcript of the hearing was filed November 5, 2010.

Proposed Recommended Orders were filed November 8, 2010.

At the final hearing, Petitioner presented the testimony of

Marco Samanamoud, R oberto Santiestiban, Adriano Solar, Feliberto

Delgado, and Victor Bracamonte. Respondent presented the

testimony of Ray Mesa, Hovav Frenkel, and Eloise Gonzalez.

Respondent's Exhibits 1 - 4, 6 - 9, 11 - 14, and 16 - 18 were

received in evidence.

FINDINGS OF FACT

Stipulated Findings of Fact 1

1. Petitioner,[Victor Bracamonte (Petitioner or

Mr.

birth is September 14, 1955.

2. Petitioner began working for Respondent, [Commercial

Interior Contractor Corp. [(Res

[on April 6, 2006] as a Superintendent.

3. Respondent, a Florida corporation, has been in business

since 1984. The Company is an interior finishing contractor,

assisting private corporations and governmental entities with

refinishing, renovations, or other projects.

4. Eloise Gonzalez (Cuban; d/o/b - 8/17/62) is the founder

and owner of Respondent.

5. Ms. Gonzalez and three individuals work at Company's

corporate office, which is located at 2500 N.W. 39th Street,

Suite 100 , in Miami. The rest of the Company's employees work

at a contract [site] at the Miami International Airport("MIA").

6. In 2006, Respondent signed a contract with Parsons

Odebrecht Joint Venture ("POJV") to perform certain general site

requirement work r elated to the construction of new terminals

and concourses at MIA. POJV is the general contractor that MIA

assigned the overall task of building the new terminals.

Respondent employees have worked on this project from 2006

through the present, acting as a support team for POJV with

tasks such as lifting equipment, operating forklifts, and

cleaning.

7. Respondent employees at the POJV project are divided

into two teams, with each team responsible for a different work

area (one team in areas from Terminal B to Terminal C, and the

other team in areas from Terminal C to Terminal D). Each team

consists of Carpenters and General Laborers and is headed by a

Superintendent. CIC also employs Operators at the POJV project,

who drive a sweeper machine around the e ntire worksite and

remove debris.

8. Respondent does not have any employees at MIA who

supervise the Superintendents, nor does the Company have anyone

at the worksite that instructs the teams what needs to be done

each day. The specific work of each of R espondent's teams on

the POJV project is directed by management personnel from POJV.

9. Ms. Gonzalez works out of the Company's corporate

offices, which are approximately seven miles from MIA, and so

she is not there to direct and control the daily activi ties of

personnel on the POJV project. Ms. Gonzalez seldom visits the

actual worksite, and estimates that she is there perhaps once

every month or so. Ms. Gonzalez visits with POJV corporate

personnel two or three times per month at their offices at MIA

(which are in trailers at the airport), but this is at a

location separate from the actual worksite. The purpose of

those visits is to discuss general business items with POJV.

10. Ultimately, Ms. Gonzalez relies on her Superintendents

to be her eyes and ears at the worksite, and, of course, on POJV

personnel (since they are the client and are directly involved

in overseeing the work). As a result, decisions by Ms. Gonzalez

to discipline and/or terminate employees are typically based on

the information, recommendations, and/or requests of her

Superintendents and/or POJV personnel.

11. Since the POJV project takes place at the airport,

employees have to be given clearance to work on the private

property of MIA. Each employee must have various badges to

a ccess the airport and the project. For example, employees need

an MIA Customs Identification badge, which gives them clearance

to pass through the security area (. . . a separate commercial

security area for workers, airport personnel, and other

individua ls providing service(s) to the airport), and a North

Terminal Development badge, which gives them clearance to access

the project itself. A Superintendent also needs a driver ' s

badge, to allow them to drive a vehicle on private airport

property. Responde nt does not make the decisions about whether

to give and/or take away a badge to anyone. The badges are

issued by MIA (specifically, the Miami - Dade Aviation Department)

and/or U.S. Department of Homeland Security.

12. Respondent's employees meet at the e mployee parking

lot at MIA in the morning, and each team drives to the worksite

in a separate Company van. There are only a few Company

employees who are allowed to drive the van(s). The vans travel

from the parking lot, to the security area, and then to the

worksite. Anyone driving the van at any time on airport grounds

or anywhere else is required to follow any and all driving

rules, such as following speed limits.

13. On January 22, 2010, Petitioner was arrested at MIA by

the Miami - Dade County Police . Petitioner was accused of

stealing gas. He signed a Complaint/Arrest Affidavit on that

same date.

14. Petitioner's airport work badges were taken away by

MIA as a result of his arrest.

15. Petitioner has not worked for Respondent since the

date of hi s arrest.

16. Of the 24 current employees of Respondent, 10 of them

are over the age of 40. Of these current employees, three of

them are older than Petitioner: (1) Pedro Araujo (d/o/b -

6/7/54); (2) Moises Herrer (d/o/b - 7/11/53); and (3) Isidro

Lopes (d/o/b - 7/6/48). One additional employee is only eight

days younger than Petitioner: Edwin Torres (d/o/b - 9/22/55).

17. Between Spring 2006 and January 2009 (the period of

Petitioner's employment), the only other Peruvian employee

terminated by Respo ndent was Marco Samanamud, whose employment

was terminated in November 2008.

Additional Findings of Fact 2

18. Petitioner alleged that, in addition to discriminating

against him based on age, Ms. Gonzalez discriminated against him

because he is from Peru. He said he earned $25.32 an hour, when

the prevailing rate for a superintendent was $31. Wages were

set by the MIA aviation authority in the contract for services

with CIC, not by Ms. Gonzalez. She has had contracts for work

at the airport for twenty ye ars.

19. Before he worked for Respondent, Petitioner was

employed by prior airport subcontractors doing the same kind of

work for ten years. To explain why Ms. Gonzalez hired him but

discriminates against Peruvians, Petitioner alleged that hiring

him hel ped her get the contract for CIC.

20. On November 18, 2008, Marco Samanamoud, who was also

Peruvian, drove Petitioner in a CIC van, to a 1:30 p.m. , eye

doctor's appointment because he was going to have his pupils

dilated.

21. While he was still at the do ctor's office, Petitioner

received a call from Ms. Gonzalez who wanted to know who was

driving the van. He told her that it was Marco Samanamoud.

Marco Samanamoud, who is also Peruvian, was the only employee on

their crew, other than Petitioner, who was allowed to drive the

12 - passenger van.

22. The van was equipped with a GPS e - mail alert

notification system that had reported by e - mail that the van was

going 88 and 95 miles an hour in streets that had a 60 - mile - per -

hour speed limit.

23. Petitioner call ed Mr. Samanamoud who said he was back

at work at MIA and denied that he had been speeding. Both he

and the Petitioner questioned the accuracy of the GPS e - mail

alerts because both were received at 2:16 p.m. , from two

different locations. They had no kno wledge, however, about the

frequency of the e - mail alert transmissions.

24. Petitioner and Mr. Samanamoud both testified that they

each tried to tell Ms. Gonzalez that it was a mistake and the

GPS system could not be correct. Both said that, when they

ta lked to her, she made derogatory comments about Peruvians,

including having said something about not wanting to work with

Peruvians, about being fed up with Peruvians, and that Peruvians

had caused her too many problems.

25. Based on Mr. Samanamoud's prio r record of speeding and

reckless driving, Ms. Gonzalez told Petitioner to fire

Mr. Samanamoud. Petitioner refused Ms. Gonzalez' directive to

terminate Mr. Samanamoud's employment with CIC until she

prepared a written warning and threatened to fire both o f them.

Petitioner said he had no choice but to fire Mr. Samanamoud even

though he believed that to be an unlawful act of discrimination

based on national origin.

26. CIC employees routinely borrowed gasoline - powered saws

from other companies working at the airport. On January 22,

2009, the foreman for one of the companies called Petitioner and

requested the return of one of the saws. Petitioner instructed

a CIC employee, Roberto Santiesteban, who was driving the CIC

van , to go outside the airport check point to return the saw.

27. After he returned the saw, Mr. Santiesteban received a

radio call from Petitioner telling him to pick up six POVJ

workers to bring them to their work site. Petitioner said POVJ

wanted the workers inside as quickly as possibl e because they

were "already on the clock" earning $31.00 an hour.

28. Mr. Santiesteban, who had returned the gas saw on the

fifth level of the employee's parking deck, supposedly replied

that he did not have room in the van for six workers who had

tool b oxes and ladders. Petitioner then told him to make room

by taking Petitioner's car keys from the van, opening the trunk

of Petitioner's personal vehicle and leaving the gasoline there.

29. Petitioner's vehicle was parked in a remote area of

the fourth de ck where employees' cars were not supposed to be

parked.

30. When Petitioner was arrested on January 22, 2009, the

police confiscated his MIA employee badges. Initially

sympathetic to him, Ms. Gonzalez subsequently received an e - mail

and read the police report that made her believe that Petitioner

had been stealing gasoline for some time.

31. After Petitioner was unable to work and was

discharged, he was replaced by a person who is Cuban.

32. After Petitioner's case was nolle prossed in April

2010, he a sked Ms. Gonzalez to initiate an ID confiscation

hearing to help him get the badges and she refused.

Ultimate Findings of Fact

33. The evidence supports a finding that Petitioner,

Mr. Bracamonte, was ordered to terminate the employment of

Mr. Samanamoud n ot because he was Peruvian, but because

Ms. Gonzalez had a legitimate business interest in avoiding

liability for his speeding and reckless driving.

34. The evidence supports a finding that Petitioner,

Mr. Bracamonte, was not the victim of discrimination based on

age base d on Stipulated Finding of Fact, paragraph 16.

35. The evidence supports a finding that Petitioner,

Mr. Bracamonte, was terminated from employment because he could

not work on the MIA project after his badges were confiscated,

not because of his age or because of his national origin.

36. The evidence supports a finding that Ms. Gonzalez was

not willing to help Petitioner get the badges necessary to work

at MIA because she received information after his arrest that

tended to convince her t hat Petitioner had been stealing

gasoline over a period of time.

CONCLUSIONS OF LAW

37. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. 3

38. Petition er has the burden of proving he was victim of

discrimination and retaliation as alleged in his Complaint. See

Department of Banking and Finance Division of Securities and

Investor Protection v. Osborne Stern and Company , 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.Ñ).

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

codified in Sections 760.01 through 760.11, Florida Statutes.

The Act, as amended, was patterned after Title VII of the Civil

Rights Acts of 1964 and 1991, 42 U.S.C. § 2000, et seq .

40. Section 760.10(1)(a) defines an unlawful employment

practice as follows:

(1) It is an unlawful employment practice

for an employer:

(a) To di scharge or to fail or refuse to

hire any individual, or otherwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges of employment, because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

41. The "anti - retaliatory provisions" of the Act are found

in subsection 760.10(7), Florida Statutes, which provides as

follows:

It is an unlawful employment practice for an

employer, an employment agency, a joint

labor - management committee, or a labor

organization to discriminate against any

person because that person has opposed any

practice which is an unlawful employment

practice under this section, or because that

person has made a charge, testified,

assisted, or pa rticipated in any manner in

an investigation, proceeding, or hearing

under this section.

42. The provisions of the FCRA are almost identical to the

federal counterpart, 42 U.S.C. 2000e; therefore, Florida Courts

follow federal law when examining discrimi nation and retaliation

claims. Carter v. Health Management Associates , 989 So. 2d 1258

(Fla. 2d DCA 2008).

43. "Discriminatory [or retaliatory] intent may be

established through direct or indirect circumstantial evidence."

Johnson v. Hamrick , 155 F. Sup p. 2d 1355, 1377 (N.D. Ga. 2001);

see also United States Postal Service Board of Governors v.

Aikens , 460 U.S. 711, 714 N.3 (1983)("As in any lawsuit, the

plaintiff [in a Title VII action] may prove his case by di rect

or circumstantial evidence ") .

44. "Di rect evidence is evidence that, if believed, would

prove the existence of discriminatory [or retaliatory] intent

without resort to inference or presumption." King v. La Playa -

De Varadero Restaurant , No. 02 - 2502, slip op. at 15 n.9 (Fla.

DOAH February 19, 2003)(Recommended Order); see also Wilson v.

B/E Aero., Inc. , 376 F.3d 1079, 1086 (11th Cir. 2004). "If the

[complainant] offers direct evidence and the trier of fact

accepts that evidence, then the [complainant] has proven

discrimination [or retaliation] ." Maynard v. Board of Regents ,

342 F.3d 1281, 1289 (11th Cir. 2003). In this case, Petitioner

has not offered direct evidence of discrimination or

retaliation.

45. Courts have recognized that direct evidence of intent

is often unavailable. Shealy v. C ity of Albany, Ga. , 89 F.3d

804, 806 (11th Cir. 1996). For this reason, those who claim to

be victims of intentional discrimination "are permitted to

establish their cases through inferential and circumstantial

proof." Kline v. Tennessee Valley Authority , 128 F.3d 337, 348

(6th Cir. 1997).

46. In this case, the testimony that Ms. Gonzalez made

comments that indicated that she would does not like Peruvians

is rejected as not convincing. Alternatively, if true, that

evidence is insufficient to support a f inding that Ms. Gonzalez

actions were discriminatory or retaliatory.

47. In this case, even if Petitioner had established a

prima facie case of discrimination, Respondent showed legitimate

business reasons for terminating Mr. Samanamoud for speeding,

and Petitioner for theft and an inability to access the work

site. Ballard v.The Southland Corporation - Seven Eleven Stores ,

Case No . 85 - 2754, 1986 Fla. Div. Adm. Hear. LEXIS 4341

(Recommended Order January 10, 1986).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law set forth herein, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing the Petition for relief in this

case.

DONE AND ENTERED this 29th day of December, 2010, in

Tallahasse e, Leon County, Florida.

S

ELEANOR M. HUNTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 68 47

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of December, 2010.

ENDNOTES

1/ Findings of Fact 1 - 17 are taken verbatim, except words in

brackets, from the Pre - hearing Stipulation filed September 21,

2010.

2/ Additional Findings of Fact are based on the record from the

final hearing.

3/ References to Florida Statutes are to the 2010 version,

unless otherwise indicated.

COPIES FURNISHED :

Larry Kranert, General Counsel

Florida Commission on Hu man Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Zandro E. Palma, Esquire

Zandro E. Palma, P.A.

3 100 South Dixie Highway, Suite 202

Miami, Florida 33133

Aaron Reed, Esquire

Littler Mendelson, P.C.

One Biscayne Tower

Two South Biscayne Boulevard, Suite 1500

Miami, Florida 33131

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to su bmit 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.