12-003489 Jeff Klimczak vs. Digital Now, Inc. Status: Closed Recommended Order on Wednesday, April 17, 2013.

Summary: Even if basis of termination was based on a misperception of facts, basis was honest and evidence did not show Petitioner terminated based on marital status (separated).

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JEFF KLIMCZAK , )

)

Petitioner , )

)

vs. ) Case No. 12 - 3489

)

DIGITAL NOW, INC. , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a fin al hearing was held in this matter

before the Division of Administrative Hearings by Administrative

Law Judge Diane Cleavinger on January 16, 2013, in Pensacola,

Florida.

APPEARANCES

For Petitioner: Tiffany Rousseau Cruz, Esquire

Ma rie A. Mattox, P.A.

310 East Bradford Road

Tallahassee, Florida 32303

For Respondent: Michael John Stebbins, Esquire

Michael J. Stebbins, P.L.

504 North Baylen Stree t

Pensacola, Florida 32501

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner was the subject

of an unlawful employment practice by Respondent due to his

marital status.

PRELIMINARY STATEMENT

On April 30, 2012, Pet itioner, Jeff Klimczak, filed an

Employment Complaint of Discrimination against Respondent ,

Digital Now, Inc. ( Digital Now ) , with the Florida Commission on

Human Relations (FCHR) alleging discrimination based on marital

status. On September 26, 2012, FCHR issued a Notice of

Det ermination, finding that there wa s no cause to believe that an

unlawful employment practice occurred. The Notice of

Determination also advised Petitioner of his right to file a

Petition for Relief and request a formal administrative hearing.

On October 18, 2012, Petitioner filed a Petition for Relief with

FCHR. The matter was then forwarded to the Division of

Administrative Hearings.

At the hearing, Petitioner testified on his own behalf and

called one witness to testify. In addit ion, Petitioner offered

PetitionerÓs Exhibits 1 through 6 into evidence. Respondent

called one witness to testify and offered RespondentÓs Exhibits 1

through 11 into evidence.

After the hearing, Petitioner filed a Proposed Recommended

Order on March 7, 20 13. Respondent filed an Amended Proposed

Recommended Order on March 8, 2013.

FINDING S OF FACT

1. Respondent is a corporation that sells and services

bl ueprint machines and the supplies needed to operate such

machines throughout a multi - regional area in the United States .

2. Pamela Turner was the Director of Operat ions for

Respondent. Her office was i n the Pensacola, Florida, branch

offices of the Respondent.

3. During 2011, Respondent was looking for a person to fill

a field technician position covering parts of Florida and

Georgia. At the time, t he territory that this position serviced

ranged from Tallahassee, Florida , south to Perry, Florida, north

to Valdosta and Albany, Georgia, and west to Destin, Florida.

Importantly, the technician for t he above area did not work out

of Respondent's Pensacola office, but was remotely located

somewhere within the position's service area. Further, parts and

inventory were shipped to the remote location used by the field

technician. For th at reason, it was required that the field

technician for the area possess the utmost honesty and

trustworthiness . Additionally, it was very important that

Petitioner and, specifically, Ms. Turner have a high degree of

confide nce in any person selected for the field techni cian

position.

4. In November 2011, Petitioner interviewed for the Field

Service Technician position with Respondent. Petitioner

interviewed with Pamela Turner and Michael Miller , the head of

the company . Pamela Turner advised the Petitioner that due to

the remote location of the job, it required the utmost in terms

of honesty and trustworthi ness of the person hired since the

employee would be unsupervised most of the time and would possess

valuable tools, parts an d inventory at the employee's remote

loc ation .

5 . On his application, Petitioner disclosed the address

where he lived as 1654 Eagles Watch Way, Tallahassee, Florida.

The addre ss on PetitionerÓs application wa s his motherÓs home and

was the place where he liv ed . Petitioner understood that this

address also would be considered the address for his office and

the address where parts and inventory would be shipped.

6 . During PetitionerÓs interview, Petitioner was never

asked any questions by the interviewers about the status of his

marriage. The fact that Petitioner was married came up during

casual conversation in relation to the travel required for the

job. Additionally, during the course of the interview with

Ms. Turner, Petitioner told Ms. Turner that PetitionerÓs wife

would like for him to g et this job because it meant more time at

home with her. However, Petitioner did not inform any

interviewer that he was separated from his wife because he did

not feel that it had anything to do with his ability to perform

the job he was interviewing for. He likewise did not inform any

of the interviewers that he was not living with his wife at her

home or that he occasionally stayed at his wife's house because

they were trying to work things out between them.

7. Petitioner was never asked specifi cally d uring the

interview who owned the address that was listed on his

application. However, Ms. Turner reasonably assumed that it was

PetitionerÓs and his wifeÓs home.

8. The Petitioner was hired for the position of field

service technician on December 12, 2011. His employment contract

ran from December 12, 2011, through December 11, 2012.

9 . After Petitioner began his employment, Petitioner shared

with a co - employee, Paul Springer, that he was separated from his

wife. Paul Springer was a church counselor and suggested that he

could help Petitioner and his wife by counseling them.

1 0 . In January 2012, while talking with another employee,

Pamela Turner learned that Petitioner was living with his mother

and that Petitioner was separated from his wife. This

information was of concern to Pamela Turner because she

questioned where parts Petitioner utilized in the maintenance and

repair of customer photocopying machinery were being shipped .

She was concerned because she thought this was Petitioner's and

his wi fe's home only to discover that the home did not belong to

Petitioner. Ms. Turner felt that Petit i oner should have

disclosed the fact that the address on his application wa s not

owned by him and felt that the lack of disclosure was the same as

misrepresen ting information to her. Further , Ms. Turner , based

on her earlier incorrect assumptions about Petitioner's address

and living in the marital home, asked Petitioner why he had not

told her about the address as it related to the circumstances of

Petitioner 's marriage . Ms. Turner incorrectly felt that

Petitioner had misrepresented the circumstances of his marriage ,

which called into question the ownership of the address to which

parts and inventory were being shipped . As a result, the

confidence that Ms. T urner had in Petitioner was undermined .

1 1 . Petitioner explained to Ms. Turner that he and his wife

were working on things and he was between his wifeÓs residence

and his motherÓs residence, but that he was not telling different

stories. Further, the e vidence demonstrated that Petitioner did

not actively misrepresent anything to Respondent.

12 . However, Ms. Turner honestly felt that she could no

longer trust Petitioner and honestly believed through her

worldview that Petitioner had misrepresented himse lf to her .

On January 30, 2012, she advised Petitioner that he was being

terminated for misrepresentation. Given Ms. Turner's honest

beliefs, Respondent's rationale for terminating Petitioner was

not a pretext for discrimination. More importantly, given these

honest beliefs, the evidence did not demonstrate that

Petitioner's termination was based on Petitioner's separated

marital status, but on the lack of trust that Petitioner's

supervisor had in him.

13 . After the termination, Petitioner made no repor t of the

alleged discrimination pursuant to the Respondent's written

Problem Resolution policy and /or Equal Employment Opportunity

policy both of which provided a problem and discrimination

complaint process within Respondent's company .

14 . Petitioner was aware of these policies. However,

Petitioner did not utilize these complaint processes because

there was no one to esc alate the complaint to since his

supervisor, Pamela Turner, and the head of the company, Michael

Miller, were both involved in the d ecision to terminat e

Petitioner. Therefore, Petitioner's lack of use of Respondent ' s

discrimination and problem complaint processes was reasonable

under the circumstances.

15 . Further, n o adverse action has been taken against any

employee of Respondent d ue to that employeesÓ marital status.

Thus , there ar e no similarly situated employees outside

Petitioner's protected class to which Petitioner can be compared.

Moreover , Petitioner offered no evidence at the hearing on

January 16, 2013 , that he lost any wages due to the alleged

discrimination. Ultimately , however, the evidence was

insufficient to demonstrate that Petitioner was terminated due to

his separated marital status. As indicated, Ms. Turner honestly

felt she could not trust Petitioner in a posi tion that required

her to have the highest confidence in that employee. Therefore,

based on these facts, Respondent did not discriminate against

Petitioner based on his marit al status and the Petition for

R elief should be dismissed.

CONCLUSIONS OF LAW

16 . The Division of Administrative Hearing has jurisdiction

over the parties to and the subject matter of this proceeding.

§§ 120.57(1) and 760.11, Fla. Stat.

17 . Sections 760.01 through 760.11, Florida Statutes, are

known as the Florida Civil Rights Act ( FCRA). Subs ection

760. 1 0 ( 1 )(a) of the Act state s as follows:

(1) It is an unlawful employment practice

for an employer;

(a ) To discharge or to fail or refuse to

hire any individual, or otherwise to

discriminate against any individual with

respect to c ompensation, terms, conditions,

or privileges of employment, because such

individualÓs race, color, religion, sex,

national origin, age, handicap, or marital

status.

18 . The Florida Civil Rights Act was patterned after Title

VII of the Civil Rights Act of 1964, 42 U.S.C.S § 2000, et seq.

As such, FCHR and Florida courts have determined f ederal case law

interpreting Title VII is applicable to cases arising under the

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

3d 17 (Fla. 3d DCA 2009); Green v. Burger King Corp. , 728 So. 2d

369, 370 - 371 (Fla. 3d DCA 1999); Fla. State Univ. v. Sondel , 685

So. 2d 923 (Fla. 1 st DCA 1996); Brand v. Fla . Power Corp . , 633

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

19 . In the instant case, Petitioner alleged in the

Employment Complaint of Discrimination that he filed with FCHR

that Respondent discriminated against him on the basis of his

marital status when it terminated his employment.

20 . Discriminatory intent can be established through direct

or circumstantial evidence. Schoenfeld v. Babbitt , 168 F.3d

1257, 1266 (11th Cir. 1999). Direct evidence of discrimination

is evidence that, if believed, establishes the existence of

discriminatory intent behind an employment decision without

inference or presumption. Ma ynard v. Board of Regent s , 342 F.3d

1281, 1289 (11th Cir. 2003).

21 . "Direct evidence is composed of 'only the most blatant

remarks, whose intent could be nothing other than to

discriminate' on the basis of some impermissible factor."

Schoenfeld v. Bab bitt , supra . Herein, Petitioner presented no

direct evidence of discrimination based on his marital status .

22 . However , since "[ d ]irect evidence of intent is often

unavailable , " those who claim to be victims of intentional

discrimination may establish t heir cases through inferential and

circumstantial proof. Shealy v. City of Albany, Ga. , 89 F.3d

804, 806 (11th Cir. 1996) ; Kline v. Tenn . Valley Auth . , 128 F.3d

337, 348 (6th Cir. 1997).

23 . Where a complainant attempts to prove intentional

discriminat ion using circumstantial evidence, the shifting burden

analysis established by the United States Supreme Court in

McDonnell Douglas v. Green , 411 U.S. 792 (1973), and Texas

Dep ar t ment of C o m muni ty . Aff airs v. Burdine , 450 U.S. 248 (1981),

is applied. Unde r this well - established model of proof, the

complainant bears the initial burden of establishing a prima

facie case of discrimination. When the charging party, i.e.,

Petitioner, is able to make out a prima facie case, the burden to

go forward with the evi dence shifts to the employer to articulate

a legitimate, non - discriminatory explanation for the employment

action. See Dep Ó t of Corr . v. Chandler , 582 So. 2d 1183 (Fla.

1st DCA 1991) (court discusses shifting burdens of proof in

discrimination cases). Th e employer has the burden of

production, not persuasion, and need only present the finder of

fact with evidence that the decision was non - discriminatory. Id.

See also Alexander v. Fulton County, Georgia , 207 F.3d 1303 (11th

Cir. 2000). The employee must then come forward with specific

evidence demonstrating that the reasons given by the employer are

pretext s for discrimination. Schoenfeld v. Babbitt , supra at

1267. The employee must satisfy this burden by showing that a

discriminatory reason more like ly than not motivated the

decision, or indirectly by showing that the proffered reason for

the employment decision is not worthy of belief. Dep Ó t of Corr .

v. Chandler , supra at 1186; Alexander v. Fulton County, G a. ,

supra .

24 . Notably, " a lthough the in termediate burdens of

production shift back and forth, the ultimate burden of

persuading the trier of fact that the employer intentionally

discriminated against the [Petitioner] remains at all times with

the [Petitioner]." EEOC v. Joe's Stone Crabs, Inc. , 296 F.3d

1265, 1273 (11th Cir. 2002); see also Byrd v. RT Foods, Inc. , 948

So. 2d 921, 927 (Fla. 4th DCA 2007) ("The ultimate burden of

proving intentional discrimination against the plaintiff remains

with the plaintiff at all times.").

25 . To establish a prima facie case, Petitioner must prove

that (1) he is a member of a protected class; (2) he was subject

to an adverse employment action; (3) h is employer treated

similarly situated employees, who are not members of the

protected class, more favorably; a nd (4) he was qualified for the

job or benefit at issue. See McDonnell , supra ; Gillis v. G a.

Dep Ó t of Corr . , 400 F.3d 883 (11th Cir. 2005); Rice - Lamar v. City

of Ft. Lauderdale , 232 F.3d 842 - 843 (11th Cir. 2000).

27 . However, Ðe stablishing the elements o f the McDonnell

Douglas framework is not, and never was intended to be, the sine

qua non for a plaintiff to survive a summary judgment motion in

an employment discrimination case . . . [and] the plaintiffÓs

failure to produce a comparator does not necessar ily doom the

plaintiffÓs case. Ñ Smith v. Lockheed - Martin Corp. , 644 F.3d

1321, 1328 (11th Cir. 2011); see also Chapter ustee v. Gate

Gourmet, Inc. , 683 F.3d 1249, 1255 (11th Cir. 2012) (quoting

Lockheed - Martin ). Rather, as the Supreme Court acknowled ged:

Our decision in [ McDonnell Douglas ] however,

did not purport to create an inflexible

formulation. We expressly noted that Ð[t]he

facts necessarily will vary in Title VII

cases, and the specification . . . of the

prima facie proof required from (a pla intiff)

is not necessarily applicable in every

respect to differing factual situations.Ñ

The importance of McDonnell Douglas lies, not

in its specification of the discrete elements

of proof there required, but in its

recognition of the general principle t hat any

Title VII plaintiff must carry the initial

burden of offering evidence adequate to

create an inference that an employment

decision was based on a discriminatory

criterion . . .

Int Ó l Bd. o f Teamsters v. U . S . , 431 U.S. 324, 358 (1977)

(internal c itations omitted) . Further, t he " methods of

presenting a prima facie case are not fixed; they are flexible

and depend to a large degree upon the employment situation.Ñ

Wilson v. B/E Aerospace, Inc. , 376 F.3d 1079, 1087 (11 th Cir.

2004) . If the plaintiff cannot produce a comparator, he Ðwill

always survive [summary judgment] if he presents circumstantial

evidence that creates a triable issue concerning the

discriminatory intent.Ñ Lockheed - Martin at 1328 ( citing

Holifield v. Reno , 115 F.3d 1555, 1562 (11 t h Cir. 1997)) . S ee

also Hamilton v. Southland Christian Sch., Inc. , 680 F.3d 1316,

1320 (11 th Cir. 2012) (citing Lockheed - Martin ). In order to

survive summary judgment, t he circumstantial evidence create s a

triable issue if it, Ðviewed in a light most fa vorable to the

plaintiff, presents Òa convincing mosaic of circumstantial

evidence that would allow a jury to infer intentional

discri mination by the decision - maker. Ñ Lockheed - Martin at 1328

(quoting Silverman v. Bd. o f Educ. , 637 F.3d 729, 734 (7 th Cir.

2011)); se e also Rioux v. City of Atlanta , 520 F.3d 1269, 1277

(11 th Cir. 2008) (holding that plaintiff submitted sufficient

circumstantial evidence of discrimination to meet elements of

prima facie case even though no comparator produced); Holland v.

Gee , 677 F.3d 1047, 1062 (11 th Cir. 2012) (holding plaintiff

submitted sufficient circumstantial evidence for jury to find

termination motivated by discrimination).

28 . In the instant case , the lack of evidence regarding

similarly situated employee comparator s is not fatal to

Petitioner's case. However, this proceeding was not halted based

on a summary judgment, but was fully tried before the Division of

Administrative Hearings. Where the administrative law judge does

not halt the proceedings for "lack of a prima facie case and the

action has been fully tried, it is no longer relevant whether the

[Petitioner] actually established a prima facie case. At that

point, the only relevant inquiry is the ultimate, factual issue

of intentional discrimination. . . . [ W]hether or not [the

Petitioner] actually established a prima facie case is relevant

only in the sense that a prima facie case constitutes some

circumstantial evidence of intentional discrimination." Green v.

Sch . Bd . of Hillsborough Cnty . , 25 F.3d 974, 9 78 (11th Cir.

1994); Beaver v. Rayonier, Inc. , 200 F. 3d 723, 727. (11th Cir.

1999). See also U . S . Postal Serv . Bd . of Governors v. Aikens ,

460 U.S. 711, 713 - 715 ("Because this case was fully tried on the

merits, it is surprising to find the parties and the Court of

Appeals still addressing the question of whether Aikens made out

a prima facie case. We think that by framing the issue in these

terms, they have unnecessarily evaded the ultimate question of

discrimination vel non . . . . [W]hen the defendant fails to

persuade the district court to dismiss the action for lack of a

prima facie case, and responds to the plaintiff's proof by

offering evidence of the reason for the plaintiff's rejection,

the fact - finder must then decide whether the rejection was

d iscriminatory within the meaning of Title VII. At this stage,

the McDonnell - Burdine presumption 'drops from the case,' and 'the

factual inquiry proceeds to a new level of specificity.'").

29 . In this case, the evidence demonstrated that Petitioner

is a member of a protected class for purposes of his marital

status discrimination claim. It is also undisputed that

Petitioner was qualified for the Field Service Technician

position , and that Petitioner suffered an adverse employment

action when he was ter minat ed from that position .

30 . The evidence also showed that the proffered reason for

PetitionerÓs termination was not a pretext for marital status

discrimination, but was based on Ms. TurnerÓs perception of

PetitionerÓs misrepresentation and dishonesty.

31 . Even if Ms. TurnerÓs misperceptions were wrong and

based on assumptions she made, such perceptions were legitimate

and honest on her part. On balance, the evidence demonstrated

that RespondentÓs basis for terminating Petitioner was legitimate

and no t a pretext for discrimination based on PetitionerÓs

marital status. Further, the evidence did not demonstrate that

Petitioner was terminated based on his marital status.

Therefore, the Petition for Relief should be dismissed.

RECOMMENDATION

Based on th e foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations issue a Final Order dismissing the Petition for Relief.

DONE AND ENTERED this 1 7 th day of April , 2013 , in

Tallahassee, Leon County, Fl orida.

S

DIANE CLEAVINGER

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 1 7 th day of April , 2013 .

COPIES FURNISHED:

Daniel Phillips, Esquire

Phillips Law Firm

1413 North Randolph Circle

Tallahassee, Florida 32308

Michael John Stebbins, Esquire

Michae l J. Stebbins, P.L.

504 North Baylen Street

Pensacola, Florida 32501

Tiffany Rousseau Cruz, Esquire

Marie A. Mattox, P.A.

310 East Bradford Road

Tallahassee, Florida 32303

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

Suite 100

20 09 Apalachee Parkway

Tallahassee, Florida 32301

Cheyanne Costilla, Interim Gen eral Co unsel

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

Michelle Wilson, Executive Director

Florida Commission on Hum an Relations

Suite 100

2009 Apalachee Parkway

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 Recomm ended Order should be filed with the agency that

will issue the Final Order in this case.