12-002616 Phillip Riley vs. Lake Correctional Institution Status: Closed Recommended Order on Monday, February 25, 2013.

Summary: Petitioner did not prove race/gender discrimination. No competent evidence was offered to prove disparate treatment theory. Though not required, Respondent proved legitimate non-discriminatory reasons for firing Petitioner while he was on probation.

Case No. 12-2616

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PHILLIP RILEY, RECOMMENDED ORDER )

)

Petitioner, )

vs. )

)

LAKE CORRECTIONAL INSTITUTION, )

)

Respondent. )

)

)

Pursuant to notice, a final hearing was conducted in this

case on January 23, 2013, by video teleconference at sites in

Orlando and Tallahassee, Florida, before Elizabeth W. McArthur,

Administrative Law Judge, Division of Administrative Hearings

(DOAH).

APPEARANCES

For Petitioner: Jerry Girley, Esquire

The Girley Law Firm

125 East Marks Street

Orlando, Florida 32803

For Respondent: Todd Evan Studley, Esquire

Florida Department of Corrections

501 South Calhoun Street

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent committed an

unlawful employment practice by discriminating against Petitioner

on the basis of his race and his gender.

PRELIMINARY STATEMENT

Petitioner, Phillip Riley (Petitioner or Mr. Riley), filed a

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

in which he contended that Respondent, Lake Correctional

Institution (LCI or Respondent), a correctional facility within

the Department of Corrections (Department), committed an unlawful

employment practice by terminating his employment based on his

race and his gender. Following its investigation, FCHR issued a

Determination: No Cause, finding no reasonable cause to believe

that Respondent had engaged in an unlawful employment practice.

Petitioner was informed of his right to an administrative

hearing, which he exercised by timely filing a Petition for

Relief. FCHR sent the case to DOAH for assignment of an

Administrative Law Judge to conduct the requested hearing.

The final hearing was initially scheduled for November 1,

2012. A joint motion for continuance was granted, and the

hearing was rescheduled for January 23, 2013.

Notwithstanding the requirements of section 120.57(1)(g),

Florida Statutes (2012), 1/ and Florida Administrative Code Rule

28-106.214, FCHR did not provide a court reporter to preserve the

testimony at the final hearing. The Notice of Hearing by Video

Teleconference advised that if the parties did not provide a

court reporter, each party was responsible for providing a notary

public to swear in all witnesses who intended to testify.

Neither party provided a court reporter or a notary public. The

parties agreed to have the undersigned swear in the witnesses via

video teleconference.

At the final hearing, Petitioner testified on his own

behalf. Petitioner did not offer any documentary evidence.

Respondent presented the testimony of the following witnesses:

Jennifer Folsom, warden of LCI; Major Victor Barber, correctional

officer chief at LCI; Captain Etta Wright, who had been

Petitioner's shift supervisor at LCI; Richard Easterbrook,

institutional inspector with the Office of the Inspector General

(OIG); and Dorothy Minta, senior inspector with the OIG.

Respondent's Exhibits 1 through 4, 6(a) through 6(f), and 7 were

admitted in evidence. In addition, official recognition was

taken of the compilation of Florida Administrative Code rules

marked as Respondent's Composite Exhibit 5.

At the conclusion of the hearing, the parties were informed

that proposed recommended orders (PROs) would be due on

February 4, 2013. Respondent timely filed its PRO. Petitioner

filed his PRO late on February 5, 2013. Respondent did not

object to the late-filed PRO by Petitioner. Both PROs have been

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Mr. Riley is a 25-year-old African-American male, who

used to be employed as a correctional officer at LCI. His

employment was terminated on December 9, 2011.

2. Mr. Riley was hired on April 3, 2009. When he was

hired, Mr. Riley was provided a number of Department rules and

policies, such as the Department's personnel rules in Florida

Administrative Code Chapter 33-208, the employee driver's license

requirement, the Department's anti-harassment and equal

employment opportunity statements, and a sexual harassment

brochure. Mr. Riley signed a receipt acknowledging that he had

been given this material and that he was responsible for reading

and complying with the requirements specified in the material.

3. Before Mr. Riley actually began working as a

correctional officer at LCI, he completed three months of

training at a site identified as "the Academy." Mr. Riley was

trained in such matters as the Department's rules and defensive

tactics to use with inmates when appropriate. After completing

his training, on November 9, 2009, Petitioner was certified as a

correctional officer.

4. Following the initial three-month training program

required to attain certification, Petitioner was also required to

participate in annual on-site in-service training to brush up on

the skills and knowledge learned in the initial training course.

5. Mr. Riley's employment was subject to an initial

one-year probationary term, which was standard and automatic for

all employees.

6. Mr. Riley's employment file reflects a sizeable number

of counseling and disciplinary actions taken against him during

his two years and eight months employed by Respondent, which will

be summarized below. Records of these prior actions were

introduced in evidence without objection; Mr. Riley did not

dispute the accuracy of his employment records in this regard.

7. Prior to the termination of his employment in

December 2011, the next most recent disciplinary action against

Petitioner was based on an incident occurring in January 2011.

As a result of that incident, the Department initially decided to

terminate Mr. Riley's employment. Petitioner, represented by

counsel, exercised his right to appeal that decision to the

Public Employees Relations Commission (PERC).

8. Right before the PERC evidentiary hearing, Petitioner

and the Department settled their dispute in a written settlement

agreement signed by Petitioner and Petitioner's counsel.

Pursuant to the settlement agreement, the Department agreed to

rescind its dismissal letter and replace it with a suspension

letter, by which Petitioner was suspended without pay for

44 workdays, from March 11, 2011, through May 12, 2011.

Petitioner agreed to accept the suspension. In addition, the

Department imposed a new one-year term of probationary employment

status, starting May 13, 2011, and Petitioner accepted the one-

year probationary term. Petitioner acknowledged that during the

term of his probationary status, he would have no appellate

rights before PERC for discipline, including for dismissal.

9. The suspension letter summarized the incident that

initially provoked a termination letter. According to the

letter, Mr. Riley was observed by another correctional officer in

several inappropriate encounters with an inmate: first,

Mr. Riley was seen walking up to stand behind the inmate, and

then, the inmate was lying on the floor; a short while later,

Mr. Riley was observed dragging the same inmate by both of his

feet down an aisle. After the inmate was returned to the dorm,

the correctional officer informed Mr. Riley that dragging the

inmate down the aisle was inappropriate and against policy and

procedure. The officer asked Mr. Riley whether he was

horse-playing or using force, and Mr. Riley replied that he was

horse-playing. The correctional officer reiterated that this was

inappropriate behavior with the inmate.

10. At the final hearing, Mr. Riley admitted to the

horse-playing incident. Petitioner accepted a substantial

disciplinary consequence for his inappropriate conduct.

11. Before the horse-playing incident, Petitioner's

employment history was peppered with incidents for which

Petitioner was counseled or disciplined for violating rules,

policies, and procedures. Mr. Riley received three supervisory

counseling memoranda: on March 31, 2010, for attendance issues;

on September 7, 2010, for refusing an overtime shift when it was

his turn; and on November 3, 2010, for miscounting inmates.

Mr. Riley received a written reprimand on September 17, 2010, for

negligence and failure to follow instructions. The reason for

the reprimand was that in a forced cell extraction, Mr. Riley

used a leg restraint chain in an unauthorized manner to

physically transport an inmate from his cell. And on May 20,

2010, Mr. Riley was suspended for ten days, without pay, for

failure to maintain proper security, negligence, and failure to

follow instructions. The suspension was based on Mr. Riley's

failure to conduct a 30-minute security check on the wing to

which he was assigned and Mr. Riley's departure from his assigned

wing to visit a different wing, without being relieved from his

assigned post or authorized to enter the other wing.

12. The horse-playing incident occurred on January 22,

2011. Following Mr. Riley's March 12, 2011, through May 12,

2011, suspension for that incident, Mr. Riley returned to work on

May 13, 2011, as a probationary employee.

13. Mr. Riley's probationary employment status would have

lasted until May 12, 2012; however, he did not remain employed

for the full year of his probationary status. His employment was

terminated by letter dated December 9, 2011.

14. The December 9, 2011, letter did not specify reasons

for Mr. Riley's "probationary dismissal." Instead, the letter

simply indicated that Mr. Riley was dismissed in accordance with

Florida Administrative Code Rule 60L-33.002(5) (providing that a

Department employee who is not permanent in a position, serves at

the pleasure of the Department and is subject to any personnel

action, including dismissal, at the Department's discretion).

15. Although not required, LCI Warden Jennifer Folsom met

with Petitioner and told him that she had decided to terminate

his employment, for two reasons: first, because of his failure

to report several traffic citations imposing fines in excess of

$200, as he was required to do by Department rule; and second,

because of the attendance problems he continued to have since

returning from suspension.

16. The evidence established that Petitioner received at

least two traffic citations for which fines in excess of $200 per

citation were imposed, which he did not report to the Department,

as required. Petitioner's traffic citations were discovered

during a driver's license records check, as part of an OIG

investigation into an inmate complaint against Petitioner. The

complaint was ultimately determined to be unsubstantiated, but

the information regarding Petitioner's unreported traffic

citations was passed on for action. The correctional officer

chief, Major Victor Barber, instructed Petitioner to immediately

submit the required report of his citations to his shift

supervisor, then-Lieutenant (now Captain) Etta Wright.

Petitioner did not follow those instructions. Petitioner was

given several reminders; he finally submitted the report of his

traffic citations six days after Major Barber told him to do so.

17. Based not only on Petitioner's failure to submit the

required report of his traffic citations, but also, on

Petitioner's failure to follow the instructions of his superiors,

an incident report was written up and brought to the attention of

the warden.

18. At the final hearing, Mr. Riley admitted that he had at

least two citations with fines exceeding $200. He said that he

had paid off the fines, and, although, he knew about the

reporting requirement, at the time, he was under the

misimpression that by paying off the fines, he did not have to

report the citations.

19. The competent, credible evidence of record also

established that between May 13, 2011, and December 9, 2011,

Mr. Riley had the same kind of attendance problems for which he

had been previously counseled, only more so. In March 2010,

Petitioner was counseled for having five unscheduled absences in

one year. In less than seven months in 2011, Petitioner had five

unscheduled absences due to sickness or family sickness. In

addition, Mr. Riley was late twice, both classified as

unscheduled absences. These unscheduled absences were in

addition to one absence for sickness, which was not considered

unscheduled; one personal holiday; plus 13 days of annual leave.

20. Respondent's witnesses credibly testified that

unscheduled absences are a particular problem because Petitioner

was employed in a work environment where staffing shortages

cannot be tolerated, and it is very difficult to cover for

absences with little advance warning. Moreover, filling an

unscheduled gap in required coverage of correctional officers

assigned to guard inmates usually comes at great costs. These

costs come in the form of strain on the officers who might have

to work back-to-back shifts to cover for an unscheduled absence

and, also, in the form of overtime expense that could be avoided

with more advance notice.

21. Mr. Riley was on notice that the magnitude of his

unscheduled absences was considered excessive, when he was

counseled in March 2010 for fewer unscheduled absences than he

had between May and December 2011. A supervisory counseling

memorandum dated March 31, 2010, was issued to Mr. Riley because

he had used five days of unscheduled sick leave between April 3,

2009, and March 31, 2010. The memorandum noted that Mr. Riley

had been previously counseled regarding attendance-related issues

and explained the problems caused by Mr. Riley's absences:

While it is understood that from time to

time, an employee suffers personal

illnesses and other associated problems

including family illnesses, that make it

impractical for him to report for duty,

you should make every effort to report

for your scheduled shift and to maintain

an acceptable attendance record. Your

presence on the job is vital to the

effective operation of the institution.

When you fail to report for duty as

scheduled, your absence places a burden

upon your supervisor, who must then find

someone to cover your post, and your

fellow employees, who must cover your

shift.

Management has a right to expect that its

employees report to work as scheduled.

Future behavior of a similar nature may

result in formal disciplinary action.

22. Mr. Riley failed to credibly explain his record of a

significant number of unscheduled absences between May and

December 2011, while he was on probation. Petitioner

acknowledged that he left work at least once while on probation

because he was not feeling well. He also acknowledged that

"there were times" when he would call in sick, but said that he

would follow protocol by calling in an hour or two before his

shift.

23. Petitioner's testimony regarding his attendance issues

was vague. For example, he was equivocal regarding whether he

ever failed to call in sick; he could only say that he did not

recall doing so. In the face of documentary evidence of

Mr. Riley's attendance record, showing specific dates on which

Mr. Riley was credited with "unscheduled absence[s]-sick" and

"unscheduled absence[s]-family sick," Mr. Riley's vague,

generalized testimony attempting to discount his absentee record

lacked credibility. 2/ Mr. Riley knew from his prior counseling

that correctional officers guarding inmates are held to strict

standards for attendance because of their work environment, with

critical staffing needs 24 hours per day, every day of every

week. Mr. Riley should have known that his absences, totaling

20 workdays between May and December 2011, five days of which

were unscheduled absences, would be considered excessive.

24. Petitioner attempted to prove that other employees who

were not members of his race class and/or gender class were

treated more favorably than he was. However, Petitioner offered

only his understanding of the conduct of other employees and the

consequences for such conduct. Petitioner offered no competent

non-hearsay evidence to supplement or corroborate his

understanding.

25. Petitioner testified to his understanding that one

white male officer was caught on camera horse-playing with an

inmate, for which that officer received no reprimand.

26. Petitioner also testified to his understanding of cell

phone issues involving a second white male officer: a cell phone

was found in the possession of an inmate, and the white male

officer's phone number was in the inmate's cell phone; Petitioner

heard that the only consequence was that the white officer was

told not to have contact with inmates. Later, the officer's cell

phone was found in his car, where it was not allowed. This time,

Petitioner's understanding was that the officer was allowed to

resign.

27. Petitioner testified to his understanding that a white

female employee "had attendance issues" and was allowed to

resign. Petitioner did not offer his understanding about what

kind of "attendance issues" resulted in her being asked to

resign, what position she had been employed in, whether she had

been previously counseled for attendance issues, or whether she

had a prior record of discipline.

28. Petitioner testified to his understanding that another

white female employee also "had attendance issues." Petitioner's

testimony about the second white female employee with attendance

issues suffered from the same lack of information as did his

testimony about the first white female employee with attendance

issues. In addition, Petitioner failed to explain what

consequences befell the second white female employee for the

unspecified attendance issues.

29. Petitioner admitted that as far as he knows, the four

employees discussed in the four preceding paragraphs were not on

probationary employment status.

30. Petitioner knew of no employee who failed to report

traffic citations and who was not terminated. 3/

CONCLUSIONS OF LAW

31. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

32. Section 760.10(1) provides that it is an unlawful

employment practice for an employer to discharge or otherwise

discriminate against an individual on the basis of race or

gender.

33. Respondent is an "employer" within the meaning of the

Florida Civil Rights Act (FCRA). § 760.02(7).

34. FCHR and Florida courts have determined that federal

discrimination law should be used as guidance when construing the

FCRA. See Valenzuela v. GlobeGround N. Am., LLC , 18 So. 3d 17,

21 (Fla. 3d DCA 2009); Brand v. Fla. Power Corp. , 633 So. 2d 504,

509 (Fla. 1st DCA 1994).

35. Petitioner offered no direct evidence to prove his

claim of race or gender discrimination. Instead, as acknowledged

in Petitioner's PRO, given the absence of any direct evidence of

discrimination, "[a] finding of discrimination, if any, must be

based on circumstantial evidence."

36. The shifting burden analysis established by the U.S.

Supreme Court in McDonnell Douglas Corp. v. Green , 411 U.S. 792

(1973), and Texas Department of Community Affairs v. Burdine ,

450 U.S. 248 (1981), applies to this circumstantial-evidence-

based discrimination claim. Under this well-established model of

proof, the complainant bears the initial burden of establishing a

prima facie case of discrimination. If Petitioner is able to

make out a prima facie case, the burden shifts to the employer to

articulate a legitimate, non-discriminatory explanation for the

employment action. See Dep't of Corr. v. Chandler , 582 So. 2d

1183, 1186 (Fla. 1st DCA 1991) (discussing shifting burdens of

proof in discrimination cases under McDonnell and Burdine ). The

employer has the burden of production, not persuasion, and need

only articulate that the decision was non-discriminatory. Id. ;

Alexander v. Fulton Cnty., Ga. , 207 F.3d 1303, 1339 (11th Cir.

2000). Petitioner must then come forward with specific evidence

demonstrating that the reasons given by the employer are a

pretext for discrimination. Dep't of Corr. v. Chandler , supra ,

at 1187. Petitioner must satisfy this burden by showing directly

that 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. Id. ; Alexander

v. Fulton Cnty., Ga. , supra .

37. "Although the intermediate burdens of production shift

back and forth, the ultimate burden of persuading the trier of

fact that the employer intentionally discriminated against the

employee 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. BT 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.").

38. In this case, Petitioner sought to establish a prima

facie case of discrimination through a disparate treatment

theory. A prima facie case of discrimination based on a

disparate treatment theory requires proof that: (1) Petitioner

belongs to a protected class; (2) Petitioner was subjected to

adverse employment action; (3) similarly-situated employees, who

are not members of Petitioner's protected class(es), were treated

more favorably than Petitioner; and (4) Petitioner was qualified

to do the job. City of W. Palm Bch. v. McCray , 91 So. 3d 165,

171 (Fla. 4th DCA 2012) (citing U.S. E.E.O.C. v. Mallinckrodt,

Inc. , 590 F. Supp. 2d 1371, 1376 (M.D. Fla. 2008)).

39. Petitioner satisfied the first, second, and fourth

elements of a prima facie case. Petitioner proved that as an

African-American male, he is a member of protected racial and

gender classes. Petitioner's employment was terminated, thus

subjecting him to an adverse employment action. And Petitioner

established that he was qualified by certification for the

position of correctional officer. Respondent did not dispute

these matters.

40. However, the critical failure in Petitioner's attempt

to establish a prima facie case came with respect to the third

element. Petitioner failed to present any competent evidence

that other similarly-situated employees, who were not members of

the same protected classes, received more favorable treatment

than Petitioner.

41. Petitioner offered only hearsay evidence with regard to

the conduct and treatment of four other employees. However, as

Petitioner was reminded during this testimony, hearsay cannot be

used as the sole basis for a finding of fact, unless the hearsay

would be admissible over objection in civil actions; such hearsay

can only be used to supplement or explain admissible evidence.

offered no such admissible evidence.

42. Even if hearsay evidence could be used to support

findings of fact, Petitioner's hearsay evidence would not have

supported a finding that any of the other employees relied on by

Petitioner were "similarly situated." In order to prove that the

other employees are "similarly situated," Petitioner must show

that the employees are "similarly situated in all relevant

respects[,]" including that they were "involved in or accused of

the same or similar conduct" as Petitioner for which they were

treated more favorably. Holifield v. Reno , 115 F.3d 1555, 1562

(11th Cir. 1997); accord City of W. Palm Bch. v. McCray , supra .

Petitioner only testified to his understanding that two white

female employees had "attendance issues," and one was allowed to

resign in lieu of termination; Petitioner never said what

happened to the other employee. It would be impossible to find,

from this scant information, that these employees were "similarly

situated." The nature and extent of "attendance issues" for

these employees are unknown, making comparison impossible with

Petitioner's absentee record. Petitioner did not even identify

the positions that these employees held, making it impossible to

determine whether their unspecified attendance issues would have

presented the same problems as for a correctional officer such as

Petitioner. In addition, the employment records of these other

employees, including prior disciplinary actions and counseling

memoranda, are unknown, making comparison impossible with

Petitioner's track record of counseling memoranda, written

reprimand, and suspensions. Petitioner offered no information to

suggest that these employees with attendance issues also failed

to report multiple traffic citations, as he did; in fact, it was

his understanding that the unspecified "attendance issues" were

the only issues for these employees. Finally, Petitioner

acknowledged that as far as he knew, these other employees were

not on probation, as he was.

43. Petitioner's hearsay testimony regarding two white male

employees was even further afield, in that neither employee was

described as having attendance issues or as having failed to

report traffic citations, and, thus, were not "involved in or

accused of the same or similar conduct" as the conduct for which

Petitioner was terminated. Holifield , supra . And for the same

reasons that the scant (hearsay) information offered regarding

the two white female employees was insufficient to allow the

necessary comparisons, Petitioner's limited understanding about

the two white male employees provided far too little information

to show that they were "similarly situated."

44. Petitioner admitted that he knew of no employee who

failed to report traffic citations and who was not terminated.

It follows that Petitioner knew of no employee who was involved

in the same or similar conduct that triggered the warden's

decision to terminate Petitioner's employment. No other employee

had the combination of excessive unscheduled and other absences,

coupled with violations of the Department rule requiring

employees to report infractions for which fines exceeding $200

are imposed. See Fla. Admin. Code R. 33-208.002(2)(a)2.

(requiring Department employees to file a written report within

24 hours after an arrest or notice to appear for violations of

criminal laws or ordinances, except for minor violations for

which the fine is $200 or less).

45. Thus, even if the hearsay nature of Petitioner's

evidence could be ignored, Petitioner would have still failed to

prove that any other similarly-situated employee, who was not

either African-American or male, or both, was treated more

favorably than Petitioner.

46. By failing to prove that any other employee was

similarly situated, Petitioner has failed to meet his burden of

proving a prima facie case of discrimination based on his race or

gender. Failure to establish a prima facie case ends the

inquiry. See Ratliff v. State , 666 So. 2d 1008, 1012 n.6 (Fla.

1st DCA 1996) (citing Arnold v. Burger Queen Systems , 509 So. 2d

958 (Fla. 2d DCA 1987)), aff'd , 679 So. 2d 1183 (Fla. 1996).

47. Even if Petitioner had established a prima facie case

of discrimination, Respondent met its burden of articulating

legitimate reasons for terminating Petitioner's employment that

had nothing to do with Petitioner's race or gender.

48. Petitioner failed to meet his ultimate burden to prove

that he was fired because of his race or gender. Petitioner's

status as a probationary employee meant that Respondent was not

required to justify its decision to terminate Petitioner's

employment. Nonetheless, Respondent established legitimate

non-race-based and non-gender-based reasons for its actions.

Respondent had the right to insist on Petitioner's compliance

with the rules governing employees and the standards applicable

to correctional officers. Petitioner should have refrained from

even the slightest transgression while on probation. Instead,

the evidence showed that Petitioner violated a Department rule by

not reporting his traffic citations, and Petitioner did not take

heed from his prior counseling to avoid excessive absences during

his probationary period. Those are reasons enough for the

termination of his employment.

49. Petitioner may believe that Respondent's reasons for

firing him were not good enough, but he voluntarily relinquished

the right to contest the reasonableness of Respondent's

employment decision by entering into a settlement agreement and

agreeing to probationary employment status. The civil rights

laws invoked by Petitioner in this case are not concerned with

whether an employment decision is fair or reasonable, but only

whether it was motivated by unlawful discriminatory intent.

Damon v. Fleming Supermarkets of Fla., Inc. , 196 F.3d 1354, 1361

(11th Cir. 1999). 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." Nix v. WLCY Radio/Rahall Commun. , 738

F.2d 1181, 1187 (11th Cir. 1984). Petitioner failed to prove

that Respondent's decision was motivated by unlawful

discriminatory intent.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations enter a final order dismissing Phillip Riley's Petition

for Relief.

DONE AND ENTERED this 25th day of February, 2013, in

Tallahassee, Leon County, Florida.

S

ELIZABETH W. MCARTHUR

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 25th day of February, 2013.

ENDNOTES

1/ All statutory references are to the Florida Statutes (2012),

unless otherwise indicated. It is noted that there have been no

amendments during the time period relevant to this controversy to

any of the cited statutes within the Florida Civil Rights Act.

2/ Mr. Riley testified that Warden Folsom did not specify what

his attendance problems were, as if to suggest that he was unable

to respond when she informed him of his termination. However,

Petitioner had that opportunity at the final hearing. In advance

of the final hearing, Respondent provided Petitioner with copies

of its proposed exhibits, including the record detailing his

absences. Petitioner, thus, had the opportunity to respond in

his final hearing testimony to the specific problems evident from

the record of his absences. Petitioner's failure to do so

suggests that Petitioner could not refute or explain his absentee

record.

3/ Petitioner's PRO proposed the following finding of fact:

"Petitioner's un-refuted testimony is that white males, and

females who were similarly situated to him, either also failed to

report traffic citations or also had attendance issues, but they

were not disciplined as severely as he was and they were not

terminated." Instead, Petitioner's uncorroborated hearsay

testimony was that it was his understanding that two white

females had unspecified attendance issues, and one was allowed to

resign in lieu of termination; Petitioner did not describe the

consequences of the other white female's unspecified attendance

issues. Moreover, Petitioner admitted that he knew of no

employee who failed to report traffic citations and was not

terminated as a result. Petitioner's hearsay testimony regarding

two white male employees described conduct that was unrelated to

either attendance issues or failure to report traffic citations.

Thus, not only was there no non-hearsay evidence that could

support Petitioner's proposed finding of fact; there was not even

hearsay testimony that could support such a finding (if hearsay

evidence alone could suffice to support a finding of fact).

COPIES FURNISHED:

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

Cheyanne Costilla, Interim General Counsel

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

Jerry Girley, Esquire

The Girley Law Firm

125 East Marks Street

Orlando, Florida 32803

Todd Evan Studley, Esquire

Florida Department of Corrections

501 South Calhoun Street

Tallahassee, Florida 32399

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.