12-001195 Arnaldo M. Garcia vs. Embarq Of Florida, Inc. Status: Closed Recommended Order on Tuesday, September 11, 2012.

Summary: Petitioner failed to show that his employment termination was based on age, national origin, or disability.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ARNALDO M. GARCIA , )

)

Petitioner , )

)

vs. ) Case No. 12 - 1195

)

EMBARQ OF FLORIDA, INC. , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to not ice, a formal hearing was held in this case

on August 9, 2012 , by video teleconference at sites in Orlando

and Tallahassee, Florida , before Thomas P. Crapps, an

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner : Curtis B. Lee, Esquire

Law Office of Curtis B. Lee

Post Office Box 3412

Orlando, Florida 32802

For Respondent: Patrick M. Muldowney, Esquire

Sarah K. Newcomer, Esqui re

Baker and Hostetler LLP

Post Office Box 112

Orlando, Florida 32802

STATEMENT OF THE ISSUES

Whether Respondent violated the Florida Civil Rights Act of

1992, as alleged in the Employment Charge of Di scrimination filed

by Petitioner on September 12, 2011.

PRELIMINARY STATEMENT

On September 12, 2011, Petitioner, Arnaldo M. Garcia

(Mr. Garcia), filed an Employment Complaint of Discrimination

with the Florida Commission on Human Relations (FCHR), which

alleged that his employer, Respondent , Century Link/Embarq

(Embarq), violated section 760.10, Florida Statutes (2010) , 1/ by

discriminating against him on the basis of age, national origin ,

and disability.

FCHR investigated the allegations , and on Februar y 27, 2012,

issued its Determination that there was no reasonable basis to

find that Embarq had committed an unlawful employment practice.

Mr. Garcia filed a Petition for Relief on March 25, 2012. FCHR

transmitted the case to the Division of Administrati ve Hearings

(DOAH) on April 4, 2012. The case was set for final hearing on

June 7, 2012. Embarq filed a motion to continue the hearing,

which the undersigned granted, and the final hearing was

rescheduled for August 9, 2012. 2/

At the hearing, Mr. Garcia testified on his own behalf and

presented the testimony of Renee Smith (Ms. Smith), Betsy Trinder

(Msinder), Robert Rivera (Mr. Rivera), and James Shaunessy

(Mr. Shaunessy). Mr. Garcia introduced into evidence E xhibits

numbered 1 through 4, and Embarq introduced into evidence

E xhibits numbered 1 through 3, 6 through 8, 11, 13, 15 through

17, and 26. A two - volume T ranscript of the proceeding was filed

with DOAH on August 20, 2012. Embarq filed a P roposed

R ecommended O rder, but Mr. Garcia did not file one.

FINDINGS OF FACT

1. The events at issue concern Embarq's termination of

Mr. Garcia's employment on September 13, 2010. At the time of

his termination, Mr. Garcia was a 45 - year - old male. His national

origin is Puerto Ric o , and he is of Hispanic d escent. Further,

Mr. Garcia suffered from migraine headaches, which were the

result of a work - related injury. He had been an employee of

Embarq, and its predecessor companies, since August 10, 1998.

2. Before his termination, Mr. Garcia worked as a

te chnician servicing business and residential customers. His

base of operations was a t the customer service center located in

Winter Park, Florida, referred to by Embarq as the Winter Park

"Railroad Avenue" Center. As a service technician, Mr. Garcia

would receive his daily customer calls through a computer system

that sent out work orders. Mr. Garcia would drive the Embarq

vehicle to the customer's house or business to complete the

service. The Embarq vehicle was equipped with a global

positioning satell ite (GPS) monitor tracking the vehicle's

location, including the time the vehicle left and returned to the

Embarq office. Finally, Mr. Garcia's work time was recorded by

Embarq's computer system, named SAP, in which Mr. Garcia would

enter a code indicatin g the tasks accomplished in customer

service, the time when the task began and the time when he

completed the task. As a service technician, Mr. Garcia was

required to truthfully and accurately enter his time worked into

the SAP system.

3. Ms. Smith was Embarq's area operations manager for the

Central Florida area, including the Winter Park center where

Mr. Garcia worked. In the summer of 2010, Ms. Smith noted that

some of the Embarq vehicles were returned to the customer service

centers before the end of the work day at 4:30 p.m.

C onsequently, she asked the customer service center supervisors

to examine all employee time records and determine whether or not

a problem existed.

4. Ms. Smith learned from Charles Clendenny

(Mr. Clendenny), the acting m anager for the Winter Park customer

service center , that the examination showed some questionable

activities. Based on Mr. Clendenny's report, Ms. Smith asked

Msinder to conduct an independent review of all the employees

at the Winter Park Ð Railroad Avenue Ñ center. Msinder was

Embarq's h uman r elations business - partner, and part of her duties

involved conducting employee investigations. Msinder

examined the GPS documentation, the SAP time sheets, and the

computer systems work force management assignments for all of the

Winter Park Ð Railroad Avenue Ñ employees. Her examination

revealed questionable activities by four employees: Mr. Garcia,

Scott Somner, James Shaunessy, and William Allison.

5. The record showed that Mr. Somner is an African A merican

and was approximately 48 years old at the time; that

Mr. Shaunessy is a Caucasian, age in his sixties; and that

Mr. Allison is an African American, age in his twenties. Of the

four employees, only two were terminated, Mr. Garcia and

Mr. Somner. Msinder and Ms. Smith credibly testified that

during the interviews , they had learned that Mr. Shaunessy and

Mr. Allison had received approval from their prior supervisor,

Joe Venezia, to leave work early on the specific dates. Further,

the data fro m the three computer systems confirmed

Mr. Shaunessy' s and Mr. Allison's explanations for leaving work

early for the specific dates. Both Mr. Shaunessy and Mr. Allison

were given training by Ms. Smith and Msinder concerning

Embarq's work attendance p olices.

6. A s to Mr. Garcia, Msinder's examination showed that

Mr. Garcia had falsified his time records, and that he had

unscheduled work absences. At the conclusion of the interview,

Msinder typed a statement of Mr. Garcia's interview. The

sta tement indicates that Mr. Garcia stated he did not know why he

had entered that he had worked on two unscheduled work days, July

2, 2010 , and July 14, 2010, and that he had mistakenly entered

4.75 hours as worked on an August 3, 2010 , a date he actually

to ok unscheduled time off . The result of these time entries was

that Mr. Garcia was paid for work days o n which he did not work,

and that he avoided discipline for missing work. The Embarq

employee handbook shows that employees are subject to discipline,

i f the employee misses work o n a scheduled work day . The record

shows that Mr. Garcia had previously been trained by his

supervisor about the problem of missing work without providing

the required 24 - hour notice.

7. On September 10, 2010, Ms. Smith sent a request to

Ms. Susan Sarna, v ice p resident/ g eneral m anager , recommending

that Mr. Garcia be terminated. Similarly, Msinder sent a

recommendation to her supervisor recommending Mr. Garcia's

termination.

8. On September 13, 2010, Mr. Garcia was ter minated as an

Embarq employee.

9. Mr. Garcia clearly testified that even though he had

migraines that he had not requested any type of accommodation

from his supervisors or from Embarq.

10. Mr. Garcia did not bring forward any evidence, either

direct or indirect, showing that Embarq's termination of his

employment was the result of an unlawful employment practice.

11. Mr. Garcia did not bring forward any evidence showing

that Embarq's offered explanation that it terminated Mr. Garcia

for attendance and t ime falsification was pretextual.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has subject

matter and personal jurisdiction over the parties pursuant to

section s 120.569 and 120.57, Florida Statutes (2011).

13. Mr. Garcia alleges that Embarq engaged in an unlawful

employment practice by terminating his employment based on

national origin, age , and disability; thus, violating the

Florida Civil Rights Act, as amended, chapter 760, Florida

Statutes.

14. Section 760.10(1)(a) provides it is an unlawful

employment practice for an employer to discharge or otherwise

discriminate against an individual on the basis of national

origin, age , or handicap.

15. Mr. Garcia has the burden of proving by a

preponderance of the evidence that Embarq com mitted an unlawful

employment practice. See St. Louis v. Fla. Int'l Univ .,

60 So. 3d 455, 458 - 59 (Fla. 3d DCA 2011); Fla. Dep't of Transp.

v. J.W.C. Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981). Boland

v. Div. of Emerg . Mgmt . / Younger v. Div. Emerg . M gmt . , Case Nos.

11 - 5198, 11 - 5199 (Fla. DOAH Jan. 26, 2012 ; FCHR Jun. 27, 2012) .

16. Because the Florida Civil Rights Act of 1992, sections

760.01 through 760 .11, is patterned after Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. section 2 000e - et seq. ,

the Florida courts look to federal case law in interpreting and

applying the Florida law. Valenzuela v. GlobeGround N. Am.,

LLC , 18 So. 3d 17, 21 (Fla. 3d DCA 2009)(omitting string

citations). Evidence of an unlawful employment practice may be

established by either direct evidence of discrimination or

through circumstantial evidence, which is evaluated within the

framework of the burden - shifting analysis set forth in McDonnell

Douglas Corp. v. Green , 411 U.S. 792, 802 - 804, 93 S. Ct. 1817,

36 L. Ed. 2d 668 (1973), and its progeny.

17. "Direct evidence of discrimination is evidence which,

if believed, would prove the existence of a fact in issue

without inference or presumption. Only the most blatant

remarks, whose intent could be nothing other than to

discriminate on the basis of the protected characteristic

constitute direct evidence of discrimination." Bass v. Bd . of

Cnty Comm'rs, Orange Cnty . , Fla . , 256 F.3d 1095, 1105 (11th Cir.

2001).

18. Because direct evidence of discriminatory intent is

often unavailable, persons who claim that they are victims of

intentional discrimination "are permitted to establish their

cases through inferential and circumstantial proof." Kline v.

Tennessee Valley Auth. , 128 F.3d 337, 348 (6th Cir. 1997) ;

S healy v. City of Albany , 89 F.3d 804, 806 (11th Cir. 1996). As

stated earlier, the analytical framework for establishing

intentional discrimination through inferential and

circumstantial evidence is the shifting - burden analysis

established by the U nited S tates Supreme Court in McDonnell

Douglas .

19. Under the McDonnell Douglas framework, a claimant

bears the initial burden of establishing a prima facie case of

discrimination. If the claimant establishes a prima facie case,

the claimant raises a presump tion of discrimination against the

employer. Ho l ifield v. Reno , 115 F.3d 1555, 1562 (11th Cir.

1997)("Demonstrating a prima facie case is not onerous; it

requires only that the plaintiff establish facts adequate to

permit an inference of discrimination.") . S ee also Texas Dep't

of C mty . Affairs v. Burdine , 450 U.S. 248, 253 - 54, 101 S. Ct.

1089, 1093 - 94, 67 L. Ed. 2d 207 (1981)("The burden of

establishing a prima facie case of disparate treatment is not

onerous. The plaintiff must prove by a preponderance of the

evidence that she applied for an available position for which

she was qualified, but was rejected under circumstances which

give rise to an inference of unlawful discrimination.").

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

McDonnell Douglas framework, a claimant must show that: (1) he

or she is a member of a protected class; (2) he or she was

qualified for the position; (3) he or she was subjected to an

adverse employment action; and (4) similarly situated employees

outside the employ ee's protected class were treated more

favorably than the claimant. See McDonnell Douglas , supra ;

Burke - Fowler v. Orange Cnty ., 447 F.3d 1319, 1323 (11th Cir.

2006); Maynard v. Bd. of Regents of the Div. of Univs. of the

Fla. Dep't of Educ . , 342 F.3d 1281 (11th Cir. 2003).

21. If the claimant establishes a prima facie case, the

burden shifts to the employer to articulate a legitimate, non -

discriminatory explanation for the adverse employment action.

McDonnell Douglas , supra ; Dep't of Corr. v. Chandler , 582 So. 2d

1183, 1186 (Fla. 1st DCA 1991).

22. If the employer produces evidence showing a

legitimate, non - discriminatory reason for the employment

decision, then the burden shifts to the claimant to establish

that the employer's proffered reason is me rely a pretext for

discrimination. McDonnell Douglas , supra ; St. Mary's Honor

Ctr ., et al., v. Hicks , 509 U.S. 502 at 516 - 518, 113 S. Ct.

2742, 125 L. Ed. 2d 407 (1993). In order to satisfy this final

step of the process, claimants must "show directly th at a

discriminatory reason more likely than not motivated the

decision, or indirectly by showing that the proffered reason for

the employment decision is not worthy of belief." Chandler , 582

So. 2d at 1186, citing Burdine , 450 U.S. at 252 - 256 . S ee also ,

Holifield, 115 F.3d at 1565. A claimant may establish that an

employer's offered explanation is pretext for discrimination by

offering sufficient evidence showing inconsistencies,

implausibilities, or contradictions in the employer's offered

explanation. See Fuentes v. Perskie , 32 F.3d 759, 765 (3d Cir.

N.J. 1994)("the non - moving plaintiff must demonstrate such

weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions in the employer's proffered legitimate reasons

for its action that a reasonable fact finder could rationally

find them Ò unworthy of credence, Ó ( citing Ezold v. Wolk, Block,

Schorr, and Solis - Cohen , 983 F.2d 509, 531 (3d Cir. 1992) ) , and

hence infer "that the employer did not act for [the asserted]

non - discriminatory reas ons." (footnote omitted)).

23. Finally, it bears repeating that the law is not

concerned with whether an employment decision is fair or

reasonable, but only with whether it was motivated by unlawful

discriminatory intent. An "employer may fire an emplo yee 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." Nix v. WLCY Radio/Rahall Commc'ns , 738

F.2d 1181, 1187 (11th Cir. 1984). In a proceeding under the

Civil Rights Act, the courts "are not in the business of

adjudging whether employment decisions are prudent or fair.

Instead, our sole concern is whether unlawful discriminatory

animus motivates a challenged employment decision." Damon v.

Fleming Supermar kets of Fla., Inc. , 196 F.3d 1354, 1361 (11th

Cir. Ct. 1999).

24. Applying the rules of law to the facts here,

Mr. Garcia failed to establish a prima facie case of

discrimination because he failed to bring forward evidence

showing that similarly situate d employees, who were not members

of his protected class, were treated more favorably than him.

Moreover, even if Mr. Garcia met his initial burden, he failed

to ultimately prove that Embarq terminated his employment based

on an unlawful employment practi ce. Embarq brought forward

evidence showing legitimate, non - discriminatory reasons for Mr.

Garcia's termination. Mr. Garcia, however, failed to show that

Embarq's offered reasons were pretext for intentional

discrimination.

25. At the onset, there is no direct evidence of

discrimination in this case. Consequently, the analysis case

proceeds under the McDonnell Douglas framework.

26. Turning to the issue of a prima facie case, Mr. Garcia

entered evidence showing that he was a member of a protected

c lass for each of his claims; 3/ 4/ 5/ that he was qualified for the

position that he had held; 6 / and that his termination was an

adverse employment action. Mr. Garcia, however, failed to bring

forward evidence showing that similarly situated employees, who

were not members of his protected class, received more favorable

treatment than him.

27. In proving his prima facie case of discrimination,

Mr. Garcia was required to show that similarly situated

employees, who were not members of his protected class, were

treated more favorably than him. In order to meet this burden,

a claimant "must show that he and the employees are similarly

situated in all relevant respects." Holifield , 115 F.3d at

1562, quoting Smith v. Stratus Computer, Inc., 40 F.3d 11, 19

(1 st Cir. 1994)(additional string citations omitted). In

determining whether employees are similarly situated for

purposes of establishing a prima facie case, it is necessary to

consider whether the employees are involved in or accused of the

same or simila r conduct and are disciplined in different ways.

Holifield , 115 F.3d at 1562 ( citing Williams v. Ford Motor Co .,

14 F.3d 1305, 1309 (8th Cir.1994) ) .

28. The facts here showed that Embarq terminated two

employees and retained two employees for time disc repancies. As

to the age discrimination claim, the facts showed that one

retained employee was older than Mr. Garcia, and that other

retained employee was younger. As to the national origin claim,

the record showed that both retained employees were from

different ethnic backgrounds. Finally, as to the disability

claim, there was no evidence about whether or not the retained

employees suffered from any disability. On the face of these

facts, one might conclude that Mr. Garcia had established that

similar ly situated employees, who were not a member of his

protected class, were treated more favorably than him. The

record, however, showed a key difference between Mr. Garcia and

the two retained employees. The key difference was that Embarq

retained employe es who had permission from their manager to

leave work early. In contrast, the record shows that the

terminated employees did not have permission to leave work early

or to have unauthorized leave. Mr. Garcia did not show that the

two retained employees w ere involved in the same conduct as

himself. Therefore, Mr. Garcia did not bring forward evidence

showing that the two retained employees were involved in conduct

that was similar to his own. Arguabl y , the only similar ly

situated employee is Mr. Scott So mner, who m Embarq also

terminated.

29. Next, even assuming that Mr. Garcia had established a

prima facie case, he still failed in his ultimate burden of

showing that his termination was based on discrimination. The

record clearly established Embarq's r easons for terminating

Mr. Garcia. The record showed that Embarq terminated Mr. Garcia

for his false time entries for work and unauthorized absences.

Mr. Garcia did not introduce any evidence showing that Embarq's

explanation contained contradictions , o r that it was

inconsistent, implausible, or incoherent in any way.

Consequently, Mr. Garcia did not meet his burden of proving that

his termination was unlawful.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMEN DED that the Florida Commission on Human

Relations enter a final order finding that Petitioner failed to

show that Respondent engaged in an unlawful employment practice

in violation of the Florida Civil Rights Act, and dismiss ing the

Petition for Relief.

DONE AND ENT ERED this 1 1 th day of September , 2012 , in

Tallahassee, Leon County, Florida.

S

THOMAS P. CRAPPS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallaha ssee, 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 1 1 th day of September , 2012 .

ENDNOTES

1/ Unless otherwise indicated, all references to the Flor ida

Statutes are to the 2010 version.

2/ Respondent filed a response indicating that Embarq of

Florida, Inc., had been erroneously identified by the Petitioner

as Century Link/Embarq, and that Embarq of Florida, Inc., was

the proper name of the Responden t. Based on the Respondent's

filing, the undersigned entered an oral Order recognizing that

the Respondent's proper designation would be Embarq of Florida,

Inc., and has directed the Clerk for the Division of

Administrative Hearings to correct the case st yle.

3/ Gandia v. Walt Disney World , No. 07 - 4147, 2008 Fla. Div. Adm.

Hear. LEXIS 147 (Fla. Div. Adm. Hear. Mar. 13, 2008)(recognizing

national origin of Puerto Rico as a protected class) ( FCHR May 8,

2008) .

4/ Bratcher v. City of High Springs , Case No. 11 - 2999 (Fla. D .

Adm. Hear. Sept. 28, 2011), FCHR Order 11 - 091, 2011 Fla. Div.

Adm. Hear. LEXIS 358 (Fla. Div. Adm. Hear. Dec. 7, 2011)(stating

that "Commission panels have concluded that one of the elements

for establishing a prima facie case of age d iscrimination under

the Florida Civil Rights Act of 1992 is a showing that

individuals similarly - situated to Petitioner of a Ò different Ó

age were treated more favorably, and Commission panels have

noted that the age Ò 40 Ó has no significance in the

interpre tation of the Florida Civil Rights Act of 1992. See ,

e.g. , Downs v. Shear Express, Inc. , FCHR Order No. 06 - 036

(May 24, 2006), and cases and analysis set out therein; see also

Boles v. Santa Rosa Cnty Sheriff's Office , FCHR Order No. 08 - 013

(February 8, 2 008), and cases and analysis set out therein.)";

but see Miami - Dade Cnty v. Eghbal , 54 So. 3d 525, 526 (Fla. 3d

DCA 2011)(protected class at least 40 years of age) .

5/ Rivero v. Miami - Dade Cty , Case No. 02 - 2311, 2002 Fla. Div.

Adm. Hear. LEXIS 1444 (Fla . Div. Adm. Hear. Nov. 12,

2002)(migraine headache recognized as a handicap as defined by

the FCHR); FCHR Feb. 21, 2003).

6 / See Damon v. Fleming Supermarkets of Fla., Inc. , 196 F.3d at

1360 (" . . . plaintiffs, who have been discharged from a

previous ly held position, do not need to satisfy the McDonnell

Douglas prong requiring proof of qualification . . . [I]n cases

where a plaintiff has held a position for a significant period

of time, qualification for that position sufficient to satisfy

the test of a prima facie case can be inferred.")(citations and

internal quotation marks omitted) .

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

Curtis B. Lee, Esquire

Law Office of Curtis B. Lee

Post Office Box 3412

Orlando, Florida 32802

Patrick M. Muldowney, Esquire

Baker and Hostetler, LLP

Post Office Box 112

Orlando, Florida 32802

Sarah K. Newcomer, Esquire

Baker and Hostetler, LLP

200 South Orange Avenu e

Orlando, Florida 32801

Lawrence F. Kranert, General Counsel

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptio ns 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.