10-001182 Phillip Mctaggart vs. Pensacola Bay Transportation Company Status: Closed Recommended Order on Tuesday, June 1, 2010.

Summary: Petitioner did not prove that he was discriminated against in the hiring of drivers by Respondent transportation company. Accordingly, his Petition for Relief should be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PHILLIP MCTAGGART, )

)

Petitioner, )

)

vs. ) Case No. 10-1182

)

PENSACOLA BAY TRANSPORTATION )

COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held in this matter before Robert S.

Cohen, Administrative Law Judge with the Division of

Administrative Hearings, on May 11, 2010, in Pensacola, Florida.

APPEARANCES

For Petitioner: Ryan M. Barnett, Esquire

Whibbs & Stone, P.A.

801 West Romana Street, Unit C

Pensacola, Florida 32501

For Respondent: Elizabeth Darby Rehm

Qualified Representative

The Kullman Firm

Post Office Box 1287

Mobile, Alabama 36633

STATEMENT OF THE ISSUE

The issue is whether Respondent discriminated against

Petitioner based on Petitioner's race.

PRELIMINARY STATEMENT

At the hearing, Petitioner testified on his own behalf and

presented the testimony of Shelia Justice, Margie Wilcox, Tammie

Nelms, Brenda Lewis, and Beverly Moorer. Respondent presented

testimony through the witnesses called by Petitioner, recalled

Tammie Nelms in its case-in-chief, and offered one exhibit into

evidence.

Neither party requested a transcript. After the hearing,

Petitioner and Respondent filed their Proposed Recommended

Orders on May 26, 2010.

References to statutes are to Florida Statutes (2009)

unless otherwise noted.

FINDINGS OF FACT

1. Petitioner, Phillip McTaggart, is a white male who

retired after more than 20 years in the United States Air Force

(including the reserves), and 18 years with Delta Airlines.

2. Respondent, Pensacola Bay Transportation Company,

specializes in the transportation of people with special

transportation needs, including the elderly, disabled, and

economically disadvantaged.

3. Respondent contracts with the Escambia Area Transit

Service, the local coordination board of the Florida Commission

for the Transportation Disadvantaged, to provide these services.

Many of Respondent's customers are wheel-chair bound or

otherwise need assistance with transportation. Respondent uses

both automobiles and specially designed buses for the

transportation of wheel-chair bound customers.

4. Petitioner applied for a job with Respondent by filling

out an application on January 20, 2009. His application did not

specify for which position he was applying.

5. Respondent had hired a white driver just days before

Petitioner's application. Respondent hired three African-

American drivers after Petitioner applied. Each of the hired

drivers stated on their applications that they were applying for

driver positions. The last driver hired by Respondent in 2009

was on April 13.

6. All of the drivers hired after Petitioner applied had

submitted their application before Petitioner applied. Each of

the hired drivers' application reflected previous wages in line

with wages paid to other drivers in the Pensacola area.

Petitioner's application showed he had earned wages at his

previous jobs that significantly exceeded the wages Respondent

was paying its drivers.

7. Petitioner testified that he either re-applied or

updated his application for a driver position in May 2009, but

Respondent has no record of the subsequent application.

8. Petitioner contends, through the use of a vocational

expert, that Respondent hires minority candidates for its driver

workforce at a rate that far exceeds the demographics of the

Pensacola area. Also, a large number of the drivers are

minority women, who statistically receive lower wages than white

male employees based upon national Department of Labor figures.

9. Petitioner contends that he was discriminated against

by being a white male with a history of receiving higher wages

than the typical driver employed by Respondent. Some companies

refuse to hire individuals they believe are overqualified for

the position for which they apply. The reasons for this failure

to hire the "overqualified" are that they command higher wages,

as well as a general fear they will leave to seek higher-paying

employment.

10. Petitioner listed on his application his previous

experience in the Air Force as an aircraft mechanic. He listed

his previous experience with Delta Airlines as a customer

service agent in public relations, baggage, and ticketing.

Nowhere did Petitioner hint at previous experience as a driver.

11. Petitioner's updated resume, which he testified he

supplied to Respondent with his application failed to make

mention of any professional driving experience. He testified at

hearing, however, that when he went to update his application in

May 2009, he told Respondent's personnel that he had driving

experience from his time serving in the Air Force.

12. Respondent is a unionized company that operates under

a collective bargaining agreement (CBA). Its wages are set by

the CBA. Petitioner's vocational expert was not aware of the

company's union status when she performed her wage study for the

Pensacola area.

13. Respondent inherited many of its employees from a

company it acquired in 2001. The company was required to keep

these employees at the wages they were already receiving under

the CBA.

14. Respondent had never hired a driver with an employment

background matching Petitioner's. Tammie Nelms, the human

resources manager for Respondent, liked the fact that Petitioner

had such a stable work history. She would have called him back

had she known he was seeking a driver position.

15. Although Respondent has a box full of driver

applications (about 50 applied in 2009 alone), few whites apply

for driver positions at Respondent's Pensacola location. The

company has three white maintenance workers in the Pensacola

location. White drivers more commonly apply at Respondent's

Santa Rosa County location.

16. Respondent has a policy of non-discrimination in the

hiring of employees.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. §§ 120.569, 120.57(1), and 760.11, Fla. Stat.

18. Pursuant to Subsection 760.10(1), Florida Statutes, it

is unlawful for an employer to discharge, refuse to hire, or

otherwise discriminate against an employee with respect to

compensation, terms, conditions, or privileges of employment,

based on the employee's race, gender, or national origin.

19. Federal discrimination law may properly be used for

guidance in evaluating the merits of claims arising under

Section 760.10, Florida Statutes. See Brand v. Fla. Power

Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA 1994); Fla. Dep't of

Cmty. Affairs v. Bryant , 586 So. 2d 1205, 1209 (Fla. 1st DCA

1991).

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

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

scheme for cases involving 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 Ctr. v. Hicks , 509 U.S. 502, 506-07

(1993), in which the Court reiterated and refined the McDonnell

Douglas analysis.

21. 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 establish a prima facie case of

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

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

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

1987)).

22. If, however, the plaintiff 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 plaintiff'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.

23. In Hicks , the Court stressed that even if the

trier-of-fact were to reject as incredible the reason put

forward by the defendant to justify its actions, the burden

nevertheless would remain with the plaintiff to prove the

ultimate question of whether the defendant intentionally

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.

24. Petitioner complains that Respondent's failure to hire

him was motivated by his race. This is a disparate treatment

claim. To present a prima facie case of disparate treatment

using the indirect, burden-shifting method just described,

Petitioner needed to prove, by a preponderance of the evidence,

that "(1) [he] belongs to a racial minority; (2) [he] was

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

similarly situated employees outside [his] classification more

favorably; and (4) [he] was qualified to do the job." Holifield

v. Reno , 115 F.3d 1555, 1562 (11th Cir. 1997).

25. Here, Petitioner failed to establish a prima facie

case of unlawful discrimination using circumstantial evidence.

He produced no credible evidence that similarly situated

applicants for employment outside his classification were

treated more favorably than he, as was his burden under

McDonnell Douglas . See Campbell v. Dominick's Finer Foods,

Inc. , 85 F. Supp. 2d 866, 872 (N.D. Ill. 2000) ("To establish

this element, [the claimant] must point to similarly situated

non-[minority] employees who engaged in similar conduct, but

were neither disciplined nor terminated."). By not stating in

his application that he was applying for a driver position, and

making no mention of commercial driving experience in his

resume, Petitioner failed to demonstrate that he was even

applying for the position he sought, let alone that he was

qualified. Further, at the time of Petitioner's application,

Respondent had recently hired a driver who was white. By the

time Petitioner allegedly updated his application in May 2009 to

add driving experience, Respondent had filled the three

remaining driver positions available at the time of Petitioner's

employment application. Petitioner's claim that he was passed

over in Respondent's hiring process for drivers is not supported

by the evidence at hearing.

26. The fact that Petitioner is white does not preclude

him from pursuing a claim of discrimination. McDonald v. Santa

Fe Trail Transp. Co. , 427 U.S. 273, 280-81 (1976) ("Title VII

prohibits racial discrimination against the white petitioners in

this case upon the same standards as would be applicable were

they [African-American] and Jackson white."). However, in order

to sustain a claim for "reverse discrimination," Petitioner must

demonstrate that "'but for' his race – white – [Petitioner]

would not have been [discriminated against]." Riviera Beach v.

Langevin , 522 So.2d 857,860 (Fla. 4th DCA 1987), citing McDonald

v. Santa Fe Transp. Co. , supra . Petitioner offered no evidence

to prove that "but for" his race, he would have been hired for

the available driver positions at the time he filed his

application in January 2009. Petitioner offered no evidence

that proved Respondent was even aware of his desire to become a

driver when he applied for a position. Petitioner's employment

history, as set forth in his resume, indicates that he has been

employed in the past as an aircraft mechanic and as a customer

service representative. No information regarding an employment

history as a driver was supplied to Respondent while any driver

positions were available.

27. Assuming, for the sake of argument, that Petitioner

could establish a prima facie case of failure to hire, he

nevertheless did not prove that Respondent's legitimate business

reasons for not hiring him are a pretext for unlawful racial

discrimination. See Issenbergh v. Knight-Ridder Newspaper

Sales, Inc. , 97 F.3d 436, 444 (11th Cir. 1996) ("Conclusory

allegations of discrimination, without more, are not sufficient

to raise an inference of pretext or intentional discrimination

where [a defendant] has offered extensive evidence of

legitimate, non-discriminatory reasons for its actions.")

( quoting Young v. General Food Corp. , 840 F.2d 825, 830 (11th

Cir. 1988) ("Once a legitimate, non-discriminatory reason for

dismissal is put forth by the employer, the burden returns to

the plaintiff to prove by significant probative evidence that

the proffered reason is a pretext for discrimination."). The

most persuasive evidence indicates that Respondent had

legitimate, non-discriminatory reasons for not hiring

Petitioner. Respondent simply was not aware that Petitioner

sought employment as a driver when it conducted its hiring of

three drivers between January and April 2009. Petitioner's

claim that he updated his application and resume in May 2009,

even if proven, occurred after Respondent had filled the

available positions and at a time when no additional drivers

were needed.

28. Moreover, it is not the role of the courts to second

guess an employer's business judgment. In Chapman v. AI

Transport , 229 F.3d 1012, 1031 (11th Cir. 2000), the 11th

Circuit reiterated that:

[f]ederal courts do not sit as a

superpersonnel department that reexamines an

entity's business decisions. No matter how

medieval a firm's practices, no matter how

high-handed its decisional process, no

matter how mistaken the firm's managers, the

ADEA does not interfere. Rather our inquiry

is limited to whether the employer gave an

honest explanation of its behavior. See

also Elrod v. Sears, Roebuck & Co. , 939 F.2d

1466, 1470 (11th Cir. 1991); Nix v. WLCY

Radio-Rahall Communications , 738 F.2d 1181,

1187 (11th Cir. 1984) (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.").

29. Accordingly, Petitioner failed to meet his ultimate

burden of proving that Respondent engaged in unlawful racial

discrimination by denying him employment. At most, Petitioner

has produced nothing more than his own belief and speculation

concerning the motives for Respondent's actions. This alone is

not sufficient to satisfy Petitioner's burden of proving

intentional discrimination. Avril v. Village S., Inc. , 934 F.

Supp. 412, 417 (S.D. Fla. 1996) ("[a] plaintiff's mere belief,

conjecture, or speculation that he or she was discriminated

against is not sufficient to support an inference of

discrimination or to satisfy the plaintiff's burden").

Respondent had legitimate, non-discriminatory reasons for not

hiring Petitioner. The greater weight of the evidence clearly

indicates that Respondent did not engage in an unlawful

employment practice.

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 ENTERED this 1st day of June, 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

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of June, 2010.

COPIES FURNISHED :

Ryan M. Barnett, Esquire

Whibbs & Stone, P.A.

801 West Romana Street, Unit C

Pensacola, Florida 32501

Elizabeth Darby Rehm, Esquire

The Kullman Firm

Post Office Box 1287

Mobile, Alabama 36633

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2900 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry Kranert, General Counsel

Florida Commission on Human Relations

2900 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.