12-003888 Andrew Moret vs. Baker Distributing Co., Llc Status: Closed Recommended Order on Friday, May 24, 2013.

Summary: Petitioner failed to demonstrate that his dismissal from employment was due to anything other than his own violations of written company policies regarding harassment and misuse of computers.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANDREW MORET , )

)

Petitioner, )

)

vs. ) Case No . 1 2 - 3 888

)

BAKER DISTRIBUTING CO., LLC , )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on March 5 ,

2013 , in Jacksonville , Florida, before Lawrence P. Stevenson, a

duly - designated Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Andrew Guy Moret , pro se

329 Van Gogh Circle

Ponte Vedra , Florida 32081

For Respondent: Patrick G. DeBlasio , Esquire

Theresa M. Vreeland, Esquire

Littler Mendelson, P.C .

Suite 1500

2 South Biscayne Boulevard

Miami , Florida 3 3131

STATEMENT OF THE ISSUE S

The issue s are whether Respondent , Bake r Distributing Co.,

LLC (" Baker ") committed unlawful employment practice s contrary

to s ection 760.10, Florida Statutes (20 12 ) , 1 / by discriminating

against Petitioner b ased on h is race or national origin and/or

whether Baker retaliated against Petitioner fo r complaining of

discriminatory conduct by discharging Petitioner from h is

employment.

PRELIMINARY STATEMENT

On or about January 20 , 2012 , Petitioner Andrew Guy Moret

("Petitioner") filed with the Florida Commission on Human

Relations ("FCHR") a Charge o f Discrimination against Baker .

Petitioner alleged that he had been discriminated against

pursuant to c hapter 760, Florida Statutes , and Title VII of the

Federal Civil Rights Act as follows:

I am mixed race, Hispanic. I was hir ed by

Respondent as a wareh ouse man on 08/02/2010.

Don Crenshaw was my supervisor and

throughout my employment he would make fun

of Hispanics accents. This was done over

the two - way radios for everyone to hear so

there are many witnesses. I complained to

him about his discriminat ory behavior but it

still continued. After my complaint was

made, I was given a drug test and told to

"pull copper" more than the Respondent's

policy of no more than twice a week. After

my complaining to Crenshaw he said, "I

didnÓt know you were a 'spic' , get back to

work." During the time Crenshaw thought I

was non - Hispanic he confided in me that he

was a neo - Nazi in hiding. In further

retaliation, I was terminated. I asked for

a Human Resources meeting and instead

received immediate termination. I b elieve I

have been discriminated against because of

my Hispanic origin, complained about it and

then was retaliated against as indicated in

violation of Title VII of the Civil Rights

Act of 1964, as amended.

I am Hispanic and African American. I was

termi nated on the same day I asked for a

Human Resources meeting to stop Don

Crenshaw.

The FCHR investigated Petitioner's Complaint. In a letter

dated June 29 , 2012 , the FCHR issued its determination that

there was reasonable cause to believe that an unlawful

employment practice occurred .

On July 20 , 2012 , Petitioner timely filed a Petition for

Relief with the FCHR . On December 4, 2012 , the FCHR referred

the case to the Division of Administrative Hearings (" DOAH " ) .

The case was originally scheduled for heari ng on February 5,

2013 . One continuance w as granted. The hearing was ultimately

held on March 5 , 2013 .

At the hea ring, Petitioner testified on his own behalf.

Petitioner ' s Composite Exhibit 1 was admitted into evidence.

Respondent presented the testimo ny of Don Crenshaw, Baker's

Jacksonville warehouse manager, and of Colin Dees, Baker's

director of distribution. Respondent's Exhibits 1 and 2 and

Composite Exhibit 3 were admitted into evidence . 2 /

The one - volume transcript of the hearing was filed at DOA H

on April 3, 2013. Respondent timely filed a P roposed

R ecommended O rder on April 15, 2013. Petitioner had filed a

short document styled " P roposed R ecommended O rder," actually

more in the nature of a closing argument, on March 12, 2013 ,

prior to the fil ing of the transcript at DOAH . Petitioner filed

nothing further after the filing of the transcript.

FINDINGS OF FACT

1. Baker is an employer as that term is defined in

s ubs ection 760. 02(7) , Florida Statutes. Baker markets and

distributes air - conditionin g, refrigeration and heating

equipment, as well as parts and supplies for that equipment.

2. Baker has put in place written policies and procedures

that prohibit, among other things, discrimination or harassment

on the basis of race, national origin , or a ny other categories

of persons protected by state or federal anti - discrimination

laws. At the time of his hiring, Petitioner received a copy of

Baker's employee handbook setting forth Baker's anti -

discrimination and anti - retaliation policies.

3 . Petiti oner , who identifies himself as mixed race,

Hispanic and African - American , was hired by Baker on August 2,

2010 , as a temporary warehouse employee at its Jacksonville

distribution facility. Because of the quality of his work,

Petitioner was soon thereafte r retained as a full - time Baker

employee by Don Crenshaw, the warehouse manager of the

Jacksonville facility.

4. Petitioner and Mr. Crenshaw became friendly enough to

go to lunch together on at least a dozen occasions.

Mr. Crenshaw also helped Petitioner with some personal matters,

including helping bail Petitioner out of jail on one occasion

and taking him to orthodontist appointments .

5. The parties agree that Petitioner's relationship with

Mr. Crenshaw and with Baker in general soured in August 2011.

Petitioner claims that his problems began when Mr. Crenshaw

overheard him speaking Spanish with a fellow employee.

Petitioner testified that Mr. Crenshaw made fun of him after

learning of his Hispanic heritage and treated him differently

than when he bel ieved Petitioner was white.

6. Petitioner testified that he complained to Mr. Crenshaw

about making fun of his heritage. Petitioner stated that he was

subjected to a "random" drug test two days later. He then

noticed that hours were being shaved from his paychecks. Within

two months, Petitioner had been fired. Petitioner offered no

corroborating evidence to support any of these allegations.

7. Mr. Crenshaw categorically denied Petitioner's

allegations and denied that Petitioner had ever complained a bout

any discriminatory comments or actions. Mr. Crenshaw's denials

are credited. Mr. Crenshaw stated that Petitioner's attitude

changed after management declined his written demand for more

money in August 2011. Mr. Crenshaw testified that Petitioner

h ad been a good worker when he started at Baker, but that his

attitude changed after his salary demand was rejected.

Mr. Crenshaw noted that Petitioner had become hostile towards

him, "slamming my door open in the office wanting to talk about

things."

8 . Mr. Crenshaw denied Petitioner's claim that his hours

were being shaved. Mr. Crenshaw testified that another

employee, Robert Robinson, had complained that his time card was

two hours short. Mr. Crenshaw pulled the records and found that

Baker's admin istrator had made a mistake on Mr. Robinson's time.

Mr. Robinson was given credit for the missing two hours.

9. This incident apparently gave Petitioner the idea that

Baker was shaving hours on his time card. Mr. Crenshaw

investigated, and made copies of all the time records for

Petitioner, but could find no errors on Petitioner's time cards .

10. On October 20, 2011, two Baker employees reported to

Mr. Crenshaw that Petitioner had changed the screen saver on a

warehouse computer to read, "Baker . S ucks . B alls . Don - Key - Kong

Balls ." The employees told Mr. Crenshaw that they found the

language offensive.

11. Mr. Crenshaw reported the incident to Angelia Hiers,

Baker's vice president of human resources, and Colin Dees,

Baker's director of distribution. M r. Crenshaw, Ms. Hiers, and

Mr. Dees met with Petitioner to discuss the incident. At the

meeting, Petitioner did not deny that he was the author of the

offensive language on the warehouse computer.

12. At the hearing, Petitioner admitted that he changed

the message on the warehouse computer, but testified that he

intended to write the message, "Baker blows away the

competition." He stated that the character limit on the

screensaver only allowed him to write, "Baker blows away the."

13. Mr. Crenshaw test ified that after the employees

complained to him, he went down to the warehouse and saw the

offending language for himself . The language was as reported by

the two employees.

14. Petitioner theorized that these employees must have

changed his innocuous m essage of support for the company to the

offensive language after Petitioner left the area. He could

offer no evidence to confirm his theory.

15. Petitioner's version of these events is not credible

on its face, and is rendered more unlikely by the fact that he

did not relate his version during the meeting with Mr. Crenshaw,

Ms. Hiers, and Mr. Dees, when doing so might have saved his job.

16. As the head of human resources, Ms. Hiers had the

responsibility for Petitioner's discipline. She decided, with

the agreement of Mr. Crenshaw and Mr. Dees, that Petitioner's

actions constituted a violation of Baker's computer access

polic y .

17. Baker's computer access policy provided, in relevant

part:

Any employee that allows or uses computers

at Baker locations for purposes not directly

attributed to business is subject to

disciplinary action that may include

dismissal. Non - business uses include, but

are not limited to, playing games, Internet

access for other than business reasons, and

any display of offensive or pornographic

information that may be in violation of the

law.

18. Ms. Hiers concluded that Petitioner's use of the

warehouse computer was in violation of the quoted policy.

Because the warehouse computer was available to and could be

seen by any empl oyee working on the warehouse floor, Ms. Hiers

also concluded that Petitioner's screensaver message also

constituted harassment.

19. Based on Petitioner's actions, Ms. Hiers decided to

terminate Petitioner's employment on October 20, 2011, the same

day th at the incident occurred.

20 . Petitioner never complained of discriminatory

treatment or harassment to any supervisor at Baker . On this

point, Mr. Crenshaw's testimony is credited and Petitioner's

testimony is found not to be credible.

21 . Petitio ner offered no credible evidence disputing the

legitimate, non - discriminatory reasons given by Baker for his

termination.

22 . Petitioner offered no credible evidence that Baker 's

stated reasons for his termination were a pretext for race

discriminatio n or national origin discrimination.

23. Evidence presented at the hearing indicated that Baker

enforces its harassment policies without reference to an

employee's race or national origin. Baker discharged a white

male employee due to a complaint of hara ssment filed by

Petitioner. Petitioner alleged that the employee had touched

him while reaching for a radio on a table. Ms. Hiers

investigated the incident and terminated the white male

employee.

24 . Petitioner offered no credible evidence that Baker

di scriminated against him because of his race or national origin

in violation of s ection 760.10, Florida Statutes.

25 . Petitioner offered no credible evidence that his

dismissal from employment was in retaliation for any complaint

of discriminatory employme nt practices that he made while an

employee of Baker.

CONCLUSIONS OF LAW

26 . The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

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

27 . The Florida Civil R ights Act of 1992 (the " Florida

Civil Rights Act " or the " Act " ), c hapter 760, Florida Statutes,

prohibits discrimination in the workplace .

28 . Subsection 760.10 , Florida Statutes, states the

following , in relevant part :

(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 compensation, terms, conditions,

or privileges of employment, because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

* * *

(7) It is an unlawful employment practice

for an employer... to discriminate against

any person because that person has opposed

any practice which is an unlawful employmen t

practice under this section, or because that

person has made a charge, testified,

assisted, or participated in any manner in

an investigation, proceeding, or hearing

under this section.

29 . Baker is an "employer" as defined in s ubsection

760.02(7), Flo rida Statutes, which provides the following:

(7) "Employer" means any person employing

15 or more employees for each working day in

each of 20 or more calendar weeks in the

current or preceding calendar year, and any

agent of such a person.

30 . Florida c ourts have determined that federal case law

applies to claims arising under the Florida's Civil Rights Act,

and as such, the United States Supreme Court's model for

employment discrimination cases set forth in McDonnell Douglas

Corp. v. Green , 411 U.S. 792 , 93 S. Ct. 1817, 36 L. Ed. 2d 668

(1973), applies to claims arising under s ection 760.10, Florida

Statutes. See Paraohao v. Bankers Club, Inc. , 225 F. Supp. 2d

1353, 1361 (S.D. Fla. 2002); Fla . State Univ . v. Sondel , 685 So.

2d 923, 925 n.1 (Fla. 1st DCA 1996); Fla . Dep Ó t of Cm t y . Aff . v.

Bryant , 586 So. 2d 1205 (Fla. 1st DCA 1991).

31 . Under the McDonnell analysis, in employment

discrimination cases, Petitioner has the burden of establishing

by a preponderance of evidence a prima facie case of unlawful

d iscrimination. If the prima facie case is established, the

burden shifts to the employer to rebut this preliminary showing

by producing evidence that the adverse action was taken for some

legitimate, non - discriminatory reason. If the employer rebuts

the prima facie case, the burden shifts back to Petitioner to

show by a preponderance of evidence that the employer 's offered

reasons for its adverse employment decision were pretextual.

See Texas Dep Ó t of Cmty . Aff . v. Burdine , 450 U.S. 248, 101 S.

Ct. 1089, 67 L. Ed. 2d 207 (1981).

32 . In order to prove a prima facie case of unlawful

employment discrimination under c hapter 760, Florida Statutes,

Petitioner must establish that: (1) he is a memb er of the

protected group; (2) he was subject to adverse employm ent

action; (3) Baker treated similarly situated employees outside

of h is protected classifications more favorably ; and

(4) Petitioner was qualified to do the job and/or was performing

h is job at a level that met the employerÓs legitimate

expectations . Se e , e.g. , Jiles v. United Parcel Service, Inc. ,

360 Fed. Appx. 61, 64 (11 th Cir. 2010); Burke - Fowler v. Orange

Cnty . , 447 F.3d 1319, 1323 (11th Cir. 2006); Knight v. Baptist

Hosp . of Miami, Inc. , 330 F.3d 1313, 1316 (11 th Cir. 2003);

Williams v. Vitro Servi ces Corp . , 144 F.3d 1438, 1441 (11th Cir.

1998); McKenzie v. EAP Mgmt . , 40 F. Supp. 2d 1369, 1374 - 75 (S.D.

Fla. 1999).

33 . Petitioner has failed to prove a prima facie case of

unlawful employment discrimination.

34 . Petitioner asserted that he is a member of a protected

group, in that he is of Hispanic and African - American ancestry .

Baker offered no basis for doubting Petitioner's assertion on

this point. Petitioner was subject to an adverse employment

action in that he was terminated from his position as a

warehouse employee with Baker . Petitioner was qualified to

perform the job of warehouse employee . The evidence established

that Petitioner's job performance had been generally

satisfactory prior to August 2011, and then deteriorated

somewhat between A ugust and October 2011 , after Petitioner was

turned down for a pay increase .

35. As to the question of disparate treatment, the

applicable standard was set forth in Maniccia v. Brown , 171 F.3d

1364, 1368 - 1369 (11th Cir. 1999):

" In determining whether empl oyees 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 similar conduct and are disciplined in

different ways." Jones v. Bessemer Carraway

Me d. Ctr ., 137 F.3d 1306, 1311 (11th

Cir.), opinion modified by 151 F.3d 1321

(1998) ( quoting Holifield v. Reno , 115 F.3d

1555, 1562 (11th Cir. 1997)). "The most

important factors in the disciplinary

context are the nature of the offenses

committed and the nature of the punishments

imposed." Id . (internal quotations and

citations omitted). We require that the

quantity and quality of the comparator's

misconduct be nearly identical to prevent

courts from second - guessing employers'

reasonable decisions and co nfusing apples

with oranges. See Dartmouth Review

v. Dartmouth College , 889 F.2d 13, 19 (1st

Cir.1989) ("Exact correlation is neither

likely nor necessary, but the cases must be

fair congeners. In other words, apples

should be compared to apples.").

(Em phasis added) 3 / .

36 . Petitioner presented insufficient credible evidence

that h is race or national origin played any role in the business

decisions made by Baker . H e presented no evidence that any

similarly situated employee was treated any better tha n was

Petitioner. In fact, the evidence established that Baker

discharged a white male employee on a harassment claim made by

Petitioner, indicating that Baker enforced its employment

policies without reference to race or national origin.

37. Petition er claimed that he himself was treated in

disparate fashion, in that Mr. Crehshaw treated him well when he

believed that Petitioner was white but ridiculed him after

learning Petitioner was Hispanic. Petitioner's testimony as to

the behavior of Mr. Crensh aw was not credible enough to be

believed in the absence of any corroborating evidence. Having

failed to establish th e disparate treatment element, Petitioner

has not established a prima facie case of employment

discrimination.

38 . Even if Petitioner had met the burden, Baker presented

evidence of legitimate, non - discriminatory reasons for

Petitioner's termination. Baker's written policies forbid

harassment and set forth specific criteria governing employ ees'

use of company computers. Petitioner was awa re of these

policies and was aware that violation of them was cause for

termination. Petitioner's gratuitous act of crude disparagement

of the name of his employer, placed on a computer screensaver

that could be read by any fellow employee on the warehous e

floor, was certainly in violation of Baker's written policies

and provided ample cause for his dismissal. Petitioner's race

or national origin had nothing to do with Baker's decision to

terminate his employment.

RECOMMENDATION

Based on the foregoing Fi ndings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

issue a final order finding that Baker Distributing Co., LLC ,

did not commit any unlawful employment practices and dismissing

the Petition for Relief f iled in th is case .

DONE AND ENT ERED this 2 4th day of May , 201 3 , in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 4th day of May , 2013 .

ENDNOTES

1 / Citations shall be to Florida Statutes (20 12 ) unless

otherwise specified. Section 760.10, Florida Statutes, has been

unchanged since 1992.

2 / Respondent's Composite Exhibit 3 was filed electronically at

DOAH prior to the hearing. No hard co py of the exhibit was

produced at the hearing, and the undersigned determined that it

would be a waste of state resources to print a hard copy of this

111 page document to travel with the file. Respondent's

Composite Exhibit 3 may be viewed at :

http://w ww.doah.state.fl.us/DocDoc/2012/003888/12003888_0_022620

13_05595818_e.pdf.

3 / The Eleventh Circuit has questioned the "nearly identical"

standard enunciated in Maniccia , but has in recent years

reaffirmed its adherence to it. Escarra v. Regions Bank , 35 3

Fed. Appx. 401, 404 (11th Cir. 2009); Burke - Fowler , 447 F. 3d at

1323 n.2.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

Andrew Guy Moret

329 Van Gog h Circle

Ponte Vedra, Florida 32081

Theresa M. Vreeland, Esquire

Littler Mendelson, PC

Suite 1500

2 South Biscayne Boulevard

Miami, Florida 33131

Cheyanne Costilla, Interim Gen eral Co unsel

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 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.