13-001972 Ray Neloms vs. City Of Deland Status: Closed Recommended Order on Wednesday, August 28, 2013.

Summary: Petitioner failed to prove that Respondent discriminated against him on the basis of his race, or retaliated against him for making a charge of discrimination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RAY NELOMS ,

Petitioner ,

vs. Case No . 1 3 - 1 972

CITY OF DELAND ,

Respondent .

_ ____________________________/

RECOMMENDED ORDER

Pursuant to notice, this case w as heard on July 18 , 201 3 ,

in DeLand, F lorida, before E. Gary Early, a designated

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Ray Neloms , pro se

763 Aurora Street, No. 2

St. Paul, Minnesota 55104

For Respondent: Michael H. Bowling , Esquire

Bell & Roper , P.A.

2707 East Jefferson Street

Orlando, Florida 32803

STATEMENT OF THE ISSUE

Whether the Petitioner was subject to an unlawful

employment practice by Respondent, the C ity of DeLand , on

account of his r ace , or as retaliation for engaging in protected

activities in violation of s ection 760.10, Florida Statutes.

PRELIMINARY STATEMENT

On September 10, 2012 , Petitioner, Ray Neloms , filed a

complaint of discrimination w ith t he Florida Commission on Human

Relations (FCHR) which alleged that Respondent, the City of

DeLand (City or Respondent ) , violated s ection 760.10, Florida

Statutes, by discriminating against h im on the basis of h is

r ace . The complaint of discrimination also alleged that

Petitioner was retaliated against as a result of his successful

defense of an unlawful termination that resulted in his

reinstatement as an employee of the City.

On April 1 9 , 201 3 , the FCHR issued a Determinatio n:

No Cause and a Notice of Determination: No Cause, by which the

FCHR determined that reasonable cause did not exist to believe

that an unlawful employment practice occurred. On May 22 , 201 3 ,

Petitioner filed a Petition for Relief with the FCHR . The

Petition was transmitted to the Division of Admini strative

Hearings to conduct a final h earing.

T he final hearing was set for July 18 , 201 3 , and was held

as scheduled.

At the final hearing, Petitioner testified on his own

behal f , and presented the testimony of George Schmock, a for eman

with the CityÓs Utilities Department; Mark Swanson, a

Maintenance Worker III with the CityÓs Utilities Department; and

Paris Hayden, a foreman with the CityÓs Parks and Recreation

Department . Petitioner Ó s Exhibits A through K were received

into evide nce. Respondent presented the testimony of Mikel

Grimm, a foreman with the CityÓs Utilities Department, and a

member of the interview team for the e quipment o perator position

that forms a basis for the complaint of discrimination; Obadiah

Henry, a Utility Locator with the CityÓs Utilities Department,

and a member of the interview team ; Danny Pope, a s upervisor

with the City , and a member of the interview team; James Ailes,

Jr., the City Utilities Director; and Mark Hayward, the City

Human Resources Directo r. R espondentÓs Exhibits 1 - 1 4 were

received into evidence.

A one - volume Transcript of the hearing was filed on

Ju ly 30 , 2013 . The parties timely filed their post - hearing

P roposed R ecommended O rder s, which have been considered in the

preparation of this Recommended Order. References to statutes

are to Florida Statutes (201 2 ) unless otherwise noted.

FINDINGS OF FACT

1 . Petitioner , who was at all times relevant to this

matter an employee of the City , is African - American.

2 . Respondent is a Florida municipality established

pursuant to Article VIII, § 2(b), Florida Constitution and

c hapter 166, Florida Statutes. Respondent employs more than 15

full - time employees at any given time.

3 . Petitioner was initially employed by the City in

April 2010 as a Maintenance Worker II in the Parks and

Recreation Department.

4 . On February 21, 2012, Petitioner was terminated by the

City for failing to report to work for a period of days. He was

considered by the City to be a Ðno call/no show.Ñ

5 . Petitioner filed a complaint with the federal

Department of Labor (DOL) , in which he a sserted that his absence

from w ork was authorized under the Family Medical Leave Act

(FMLA).

6 . On April 26, 2012, Petitioner filed a complaint of

discrimination with the federal Equal Employment Opportunit y

Commission (EEOC) alleging that the CityÓs decision to terminate

him was based on race and age discrimination. The complaint was

transferred to the FCHR for disposition.

7 . The D OL determined that PetitionerÓs absence from work

was warranted by application of the FMLA , upon which the DOL and

the C ity reached an agreement to resolve the DOL complaint . On

July 9, 2012 , as part of the agreement, Petitioner was

reinstated as a Maintenance Worker II, with back pay and

benefits. When the decision was made to reinstate Petitioner,

Petitioner withdrew the FCHR complaint.

8 . At the time of PetitionerÓs reinstatement, the City did

not have an opening in its Parks and Recreation Department, his

previous position having been filled. The City did have an

opening for a Maintenance Worker II in its Utilities Department.

9 . The Utilities Department opening had been advertised,

the interview process for the opening had been completed , and a

candidate had been selected. However, as the result of the DOL

settlement, Petitioner was selected to fill the position.

10 . Petitioner was placed on the mowing crew, and was

responsible for keeping areas around the CityÓs lift station s,

well houses, and wastewater plant mowed.

11 . On July 13, 2 012, the City issued a written reprimand

to Petitioner. The reprimand related to PetitionerÓs complaints

to the City Utilities Director, Mr. Ailes, regarding

PetitionerÓs assignment to the mowing crew and his supervisory

chain - of - command. The memorandum suggested that Petitioner was

not Ða team player.Ñ There was no evidence of further adverse

action relating to PetitionerÓs job performance.

12 . After Petitioner settled into the job, he performed

well. He was a hard worker, and never had to be coax ed into

working. Mr. Swanson described Petitioner as a Ðgo - getter , Ñ who

came up with more efficient ways of keeping up with the work and

making the areas look nice. Mr. Swanson testified that it was

good to have a third person on the mowing crew.

13 . O n or about July 13, 2012 , a n e quipment o perator

position came open. It was advertised, and applications were

accepted. Petitioner submitted an application for the position.

14 . Petitioner was selected as one of five applicants to

continue with the in terview process. 1 / Among the applicants was

Jose Alejo. Mr. Alejo is Hispanic. Petitioner and Mr. Alejo

were employees of the City, and were considered as Ðin - houseÑ

candidates.

15 . The interview team consisted of Mikel Grimm, a foreman

with the Cit yÓs Utilities Department; Obadiah Henry, a Utility

Locator with the CityÓs Utilities Department ; and Danny Pope, a

Supervisor with the City.

16 . Mr. Henry had been a foreman with the CityÓs Utilities

Department before a voluntary break in service, and had

extensive experience as an e quipment o perator . As a former

foreman, Mr. Henr y had been on numerous interview committees for

positions including e quipment o perator. He was considered to be

the best qualified to serve on the interview committee, even

t hough committee members were typically at the foreman level or

higher.

17 . Mr. Henry is African - American. Mr. Grimm and Mr. Pope

are white.

18 . Petitioner had no ÐissuesÑ with any of the members of

the interview team, or with any of the other foreme n in the

Utilities Department.

19 . Petitioner was working on the day that interviews were

scheduled. He was taken off of his mower at between 11:00 a.m.

and 12:00 p.m. for an interview scheduled for 2:00 p.m.

20 . Interviews consisted of a short oral i nterview,

followed by a practical test in which the applicants were tested

on a dump truck and a backhoe . The applicants were to drive the

dump truck through a sort of Ðobstacle courseÑ and, using a

backhoe, dig a hole to a pre - established specification.

21 . The questions asked of each of the applicants during

the interviews were identical.

22 . The equipment used and the layout of the practical

test performed by each of the applicants were identical.

23 . Each of the members of the interview team

ind ependently prepared his own scoring evaluation, without

comparison of notes, numbers, or scores of the other members .

After the scoring was completed , the scores were tallied.

Mr. Henry was surprised at how even the scores were between the

evaluators for each of the applicants.

24 . Each of the members of the interview team generally

though t Mr. Alejo performed better in the interview. As to the

practical test , Mr. Alejo Ðjust proved it on the machine that he

was the better applicant.Ñ In short, Mr. Alejo simply dug a

better hole. Mr. Henry noted that the decision was based on how

the applicant performed on that day. While he acknowledged that

Petitioner , or one of the other applicants , may have performed

better on another day, ÐthatÓs what I had to go off of was that

day.Ñ

25 . Mr. Henry testified credibly and convincingly that the

interview team made the effort to handle the interviews in a

professional and honest way. The interv iew team was not told by

higher - level supervisors or anyone else who should be selected

as the leading candidate. His testimony is credited.

26 . Mr. Henry testified that if he had seen any evidence

of racial bias, he would have reported it. He saw none.

27 . The recommendation of the interview team was unanimous

tha t t he position of e quipment o perator should be offered to

Mr. Alejo, who scored significantly higher than Petitioner.

28 . The City accepted the recommendation of the interview

team, and offered the position to Mr. Alejo, who accepted. 2 /

29. The interv iew process, using standardized questions

and procedures, has been the practice of the City for more than

six years. The purpose of the interview and practical test

process was to make the hiring process more equal, rather than

being based on a Ðgut feeli ngÑ or on how someone may have Ðfelt

about the guy.Ñ The interview and selection process raises no

issue of discriminatory of retaliatory bias in its application.

30 . On or about September 14, 2012, Petitioner received an

employee performance evaluation that Petitioner described as Ða

good evaluation.Ñ

3 1 . During the period of time at issue in this proceeding,

Petitioner did not complain to any co - worker or to supervisory

staff that he was subject to discriminatory acts as an employee

of the City.

3 2 . On May 3, 2013, Petitioner voluntarily resigned from

employment with the City. T he reason given by Petitioner was

that he wanted to return to Minnesota . Petitioner had lived in

Minnesota for 30 years, and planned to move back and get a job

driving a t ruck.

3 3 . In his letter o f resignation, Petitioner made no

mention of any discriminatory or retaliatory act, stating that

Ð[i]t has been a pleasure to work for the City.Ñ

3 4 . The City currently employs six e quipment o perators.

Of those, three are Hisp anic, two are white, and one is African -

America n .

Ultimate Findings of Fact

35 . The personnel decision to re - hire Petitioner to the

position of Maintenance Worker II in the Utilities Department

was made because there was an opening in that department. T here

was no competent, substantial evidence adduced at the hearing to

support a finding that the decision was made due to P etitionerÓs

race , or in retaliation for PetitionerÓs earlier EEOC complaint .

36 . T he decision to hire an applicant other than

Peti tioner for the position of e quipment o perator was made after

a reasonable and fair applicant interview and evaluation process

that was done in accordance with the CityÓs established and

objective hiring practices.

3 7 . There was no competent, substantia l evidence adduced

at the hearing that any persons who were not members of the

Petitioner Ós protected class, i.e., African - American , were

treated differently from Petitioner, or were not subject to

similar personnel policies and practices.

3 8 . There was no competent, substantial evidence adduced

at the hearing that the CityÓs decision to hire Mr. Alejo over

Petitioner was made in retaliation for PetitionerÓs earlier EEOC

complaint.

CONCLUSIONS OF LAW

39 . Sections 120.569 and 120.57(1), Flo rida Statute s,

grant the Division of Administrative Hearings jurisdiction over

the subject matter of this proceeding and of the parties.

Discrimination

4 0 . Section 760.10 provides, in pertinent 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,

nation al origin, age, handicap, or marital

status.

4 1 . Petitioner maintain s that the City discriminated

against him on account of his race .

4 2 . Section 760.11(1) provides that Ð[a]ny person

aggrieved by a violation of ss. 760.01 - 760.10 may file a

complaint with the [FCHR] within 365 days of the alleged

violation . . . .Ñ Petitioner timely filed his complaint.

4 3 . Section 760.11(7) provides that upon a determination

by the FCHR that there is no probable cause to believe that a

violation of the Florida C ivil Rights Act of 1992 has occurred,

Ð[t]he aggrieved person may request an administrative hearing

under ss. 120.569 and 120.57, but any such request must be made

within 35 days of the date of determination of reasonable cause.

. . .Ñ Following the FCHR determination of no cause, Petitioner

timely filed his Petition for Relief requesting this hearing.

4 4 . Chapter 760, Part I, is patterned after Title VII of

the Civil Rights Act of 1964, as amended. When Ða Florida

statute is modeled after a federal law on the same subject, the

Florida statute will take on the same constructions as placed on

its federal prototype.Ñ Brand v. Florida Power Corp. , 633 So.

2d 504, 509 (Fla. 1st DCA 1994); see also Valenzuela v .

GlobeGround North America, LLC , 18 So. 3d 17 ( Fla. 3rd DCA

2009); Fla. State Univ. v. Sondel , 685 So. 2d 923 (Fla. 1st DCA

1996); Fla. Dep't of Cmty. Aff. v. Bryant , 586 So. 2d 1205 (Fla.

1st DCA 1991).

4 5 . Petitioner ha s the burden of proving by a

preponderance of the evidence that the City commi tted an

unlawful employment practice. See St. Louis v. Fla. Int'l

Univ. , 60 So. 3d 455 (Fla. 3 rd DCA 2011); Fla. Dep't of Transp.

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

4 6 . Employees may prove discrimination by direct,

statistical, or circu mstantial evidence. Valenzuela v .

GlobeGround North America, LLC , 18 So. 3d at 22.

47. Direct evidence is evidence that, if believed, would

prove the existence of discriminatory intent without resort to

inference or presumption. Denney v. City of Alb any , 247 F.3d

1172, 1182 (11th Cir. 2001); Holifield v. Reno , 115 F.3d 1555,

1561 (11th Cir. 1997). Courts have held that ÐÒonly the most

blatant remarks, whose intent could be nothing other than to

discriminate . . .Ó will constitute direct evidence of

d iscrimination.Ñ Damon v. Fleming Supermarkets of Fla., Inc. ,

196 F.3d 1354, 1358 - 59 (11th Cir. 1999)(citations omitted).

4 8 . The record of this proceeding contains no direct

evidence of any racial bias on the part of the City at any

level.

4 9 . Pe titioner presented no persuasive statistical

evidence of discrimination by the City in its personnel

decisions affecting Petitioner . Petitioner submitted a

breakdown of all City employees by race and sex. However, such

a broad ly developed table , that inc ludes positions that are not

within the class occupied or sought by Petitioner, and without

any testimony to provide some statistical context, does not

constitute competent and substantial statistical evidence of

racial bias. In the absence of some basis of comparison to

measure against the raw number s , such as the number of

interested applicants for various positions, Ð[s]tatistics

without any analytical foundation are Òvirtually meaningless.ÓÑ

Wilson v. B/E Aero., Inc. , 376 F.3d 1079, 1089 (11th Cir. 20 04)

( citing Evans v. McClain of Ga., Inc. , 131 F.3d 957, 963 (11th

Cir. 1997) ) . Furthermore, the CityÓs six equipment operator

positions are held by three Hispanics, two whites, and one

African - American. Such a distribution does not serve as

statistical evidence of discrimination.

50 . In the absence of any direct or statistical evidence

of discriminatory intent, Petitioner must rely on circumstantial

evidence of such intent. In McDonnell Douglas Corp. v. Green ,

411 U.S. 792 (1973), and as refined in Texas DepÓt of Cm ty . Aff .

v. Burdine , 450 U.S. 248 (1981) and St. Mary's Honor Center v.

Hicks , 509 U.S. 502 (1993), the United States Supreme Court

established the procedure for determining whether employment

discrimination has occurred when employees rel y upon

circumstantial evidence of discriminatory intent.

5 1 . Under McDonnell Douglas , Petitioner has the initial

burden of establishing a prima facie case of unlawful

discrimination. In the conte x t of a promotional hiring

decision, Ð to establish a prim a facie case of discriminatory

failure to promote, a plaintiff must prove: (1) that he is a

member of a protected class; (2) that he was qualified for and

applied for the promotion; (3) that he was rejected; and

(4) that other equally or less qualified emp loyees who were not

members of the protected class were promoted. Ñ Denney v. City

of Albany , 247 F.3d 1172, 1183 (11th Cir. 2001) ( citing Combs v.

Plantation Patterns , 106 F.3d 1519, 1539 n.11 (11th Cir. 1997) ) .

5 2 . If Petitioner is able to prove his p rima facie case by

a preponderance of the evidence, the burden shifts to the City

to articulate a legitimate, non - discriminatory reason for its

employment decision. Texas DepÓt of Cm ty . Aff. v. Burdine ,

450 U.S. at 255; DepÓt of Corr. v. Chandler , 582 So. 2d 1183

(Fla. 1 st DCA 1991). An employer has the burden of production,

not persuasion, to demonstrate to the finder of fact that the

decision was non - discriminatory. DepÓt of Corr. v. Chandler ,

supra. This burden of production is "exceedingly light."

Holifield v. Reno , 115 F.3d 1555, 1564 (11 th Cir. 1997); Turnes

v. Amsouth Bank, N.A. , 36 F.3d 1057, 1061 (11 th Cir. 1994).

5 3 . If the employer produces evidence that the decision

was non - discriminatory, then the complainant must establish that

the prof fered reason was not the true reason but merely a

pretext for discrimination. St. Mary's Honor Center v. Hicks ,

509 U.S. at 516 - 518. In order to satisfy this final step of the

process, Petitioner must Ðshow[] directly that a discriminatory

reason more li kely than not motivated the decision, or

indirectly by showing that the proffered reason for the

employment decision is not worthy of belief.Ñ DepÓt of Corr. v.

Chandler , 582 So. 2d at 1186 ( citing Tex. Dep't of Cmty. Aff. v.

Burdine , 450 U.S. at 252 - 256 ) ) . The demonstration of pretext

Ðmerges with the plaintiff's ultimate burden of showing that the

defendant intentionally discriminated against the plaintiff.Ñ

(citations omitted) Holifield v. Reno , 115 F.3d at 1565.

5 4 . The law is not concerned with wh ether an employment

decision is fair or reasonable, but only with whether it was

motivated by unlawful discriminatory intent. In a proceeding

under the Civil Rights Act, Ð[w]e are not in the business of

adjudging whether employment decisions are prudent o r fair.

Instead, our sole concern is whether unlawful discriminatory

animus motivates a challenged employment decision.Ñ Damon v.

Fleming Supermarkets of Fla., Inc. , 196 F.3d at 1361. As set

forth by the Eleventh Circuit Court of Appeals, Ð[t]he employe r

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.Ñ Nix v. WLCY

Radio/Rahall CommcÓns , 738 F.2d 1181, 1187 (11th Cir. 1984).

Moreov er, Ð[t]he employerÓs stated legitimate reason . . . does

not have to be a reason that the judge or jurors would act on or

approve.Ñ DepÓt of Corr. v. Chandler , 582 So. 2d at 1187.

Prima Facie Case

5 5 . Petitioner failed to prove a prima facie case tha t

either PetitionerÓs initial placement as a Maintenance Worker II

in the Utilities Department, or the decision to hire Mr. A l ejo

to fill the e quipment o perator position were motivated by

discriminatory intent based on his race .

5 6 . Petitioner is a memb er of a protected class .

5 7 . Petitioner established that he was qualified to hold

the position of e quipment o perator. He held a commercial

driverÓs license, and had experience in operating the types of

equipment expected for the job .

5 8 . Where Petiti oner ha s failed in the establishment of

his prima facie case is his failure to demonstrate that other

equally or less qualified employees were subject to personnel

decisions that differed from those applied to him, or that he

was passed over for the equipm ent operator position in favor of

an applicant who was equally or less qualified than he.

5 9 . Petitioner provided no evidence that the City acted

inconsistently with the manner in which any person , regardless

of race, would have been reinstated to empl oyment. Petitioner

was, as required by the resolution of the DOL complaint, placed

into a position, identical in title, pay , and benefits . The

fact that he was placed in the Utilities Department, rather than

in the Parks and Recreation Department, was ba sed exclusively on

there being an open Maintenance Worker II position in the

Utilities Department.

60 . Petitioner provided no evidence that the City acted

inconsistently with the manner in which any applicant ,

regardless of race, would have been hired to fill the position

of e quipment o perator. Mr. Alejo (who is also a member of a

protected class) was, on the day of the applicant interviews,

the more qualified applicant.

6 1 . In short, Petitioner failed to prove that his

treatment as an employee of t he City differed in any material

way from the treatment afforded other employees, regardless of

their r ace. Therefore, Petitioner failed to prove a prima facie

case of discrimination, and his petition for relief should be

dismissed.

Legitimate, Non - discr iminatory Reason

6 2 . Assuming -- for the sake of argument -- that

Petitioner made a prima facie showing, the burden would shift to

the City to proffer a legitimate non - discriminatory reason for

its action, which at this stage is a burden of production, n ot a

burden of persuasion. Holland v. Washington Homes, Inc. ,

487 F.3d 208, 214 (4 th Cir. 2007).

6 3 . The City met its burden by producing credible, clear,

and convincing testimony and evidence that Petitioner was placed

into a position identical in ti tle, pay, and benefits, to that

held prior to his earlier wrongful termination. The fact the

position was in a different, and potentially less desirable,

department was a function of position availability, rather than

race.

6 4 . The City met its burden b y producing credible, clear,

and convincing testimony and evidence that the decision to hire

Mr. A l ejo to the position of equipment o perator was done in

accordance with established hiring practices. The process,

including the selection of the interview te am, was fair and

objective. The evidence is convincing that the decision was

based solely on the performance of the applicants in the

interview and practical test, and for no other reason.

6 5 . Although the CityÓs burden to refute PetitionerÓs

prima faci e case was light, the evidence showing the reason s for

its personnel decisions to be legitimate and non - discriminatory

was overwhelming.

Pretext

6 6 . Assuming -- again, for the sake of argument -- that

Petitioner made a prima facie showing, then upon the CityÓs

production of evidence of a legitimate non - discriminatory reason

for its action, the burden shifted back to Petitioner to prove

by a preponderance of the evidence that the CityÓs stated

reasons were not its true reasons, but were a pretext for

discrimination. To do this, Petitioner would have to Ðprove

Ò both that the reason was false, and that discrimination was the

real reasonÓ for the challenged conduct.Ñ Jiminez v. Mary

Washington Coll . , 5 7 F.3d 369, 378 (4th Cir. 1995) ( citing

St. Mary's H onor Center v. Hicks , 509 U.S. at 515 ) ) . (emphasis

in original).

6 7 . To show pretext, Petitioner Ðmust be afforded the

Òopportunity to prove by a preponderance of the evidence that

the legitimate reasons offered by the defendant were not its

true reas ons, but were a pretext for discrimination.ÓÑ Reeves

v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 143 (2000)

(citations omitted). Petitioner could accomplish this goal Ðby

showing that the employer's proffered explanation is unworthy of

credence.Ñ Texas De pÓt of Cmty. Aff. v. Burdine , 450 U.S. at

256.

6 8 . As applied to a hiring dec ision,

. . . the case law establishes that a

plaintiff cannot prove pretext merely by

asserting that he was better qualified.

Wilson v. B/E Aerospace, Inc . , 376 F.3d

1079, 1090 (11th Cir. 2004); Dancy - Pratt v.

Sch. Bd. of Miami Dade Cnty . , No. 00 - 1382,

2 001 U.S. Dist. LEXIS 24521, 2001 WL

1922063, *7 (S.D. Fla. Dec. 13, 2001); see

also Cofield v. Goldkist, Inc . , 267 F.3d

1264, 1269 (11th Cir. 2001) (holding that

qualifications must be so superior that a

reasonable fact - finder would conclude reason

given f or hiring another was pretextual);

Deines v. Texas Dep't of Protective &

Regulatory Servs . , 164 F.3d 277, 280 - 81 (5th

Cir. 1999) (holding that "disparities in

qualifications must be of such weight and

significance that no reasonable person, in

the exercise of impartial judgment, could

have chosen the candidate selected over the

plaintiff for the job in question").

City of Miami v. Hervis , 65 So. 3d 1110, 1120 (Fla. 3d DCA

2011).

6 9 . The evidence demonstrates that, for the specific

position being filled, that of equipment operator, Mr. Alejo

proved to the interview committee that he was the best - qualified

applicant.

70 . The method by which the position of equipment operator

was filled was as objective as most hiring decisions can be.

Since the scores were determined by the impressions and

observations of the members of the interview team, it did have a

subjective elem ent. That subjective element does not affect the

foregoing findings regarding a lack of a discriminatory reason

for the CityÓs personnel decisions, since:

. . . subjective reasons are sufficient, if

legitimate. See City of Hollywood v. Hogan ,

986 So. 2d 634, 644 (Fla. 4th DCA 2008);

Chapman v. AI Transp . , 229 F.3d 1012, 1034

(11th Cir. 2000) (finding that "[a]

subjective reason is a l egally sufficient,

legitimate, nondiscriminatory reason if the

defendant articulates a clear and reasonably

specific factual basis upon which it based

its subjective opinion").

City of Miami v. Hervis , 65 So. 3d at 1120.

7 1 . The only evidence of prete xt produced by Petitioner

consisted of the Ðnot a team playerÑ memorandum in which

Petitioner was reprimanded for questioning his work assignment

and supervisory chain - of - command. The memorandum itself had no

hint of a racial component, but was directed e xclusively at

issues of performance and compliance with City policy.

7 2 . T he record of this proceeding does not support a

finding or a conclusion that the CityÓs proffered explanation

for its personnel decisions were false or not worthy of

credence , no r does it support an inference that the explanation

was pretextual.

Retaliation

7 3 . S ection 760.10(7) provides, in pertinent part, that:

(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

employment 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 .

7 4 . ÐSection 760.10(7), Florida Statutes, is virtually

identical to its Federal Tit le VII counterpart, 42 U.S.C.

§ 2000e - 3(a). The FCRA [Florida C ivil Rights Act] is patterned

after Title VII; federal case law on Title VII applies to FCRA

claims.Ñ Hinton v. Supervision Int'l, Inc. , 942 So. 2d 986, 989

(Fla. 5th DCA 2006) ( citing Guess v. City of Miramar , 889 So. 2d

840, 846, n.2 (Fla. 4th DCA 2005) ) .

7 5 . In construing 42 U.S.C. § 2000e - 3(a), the Eleventh

Circuit has held that:

[t]he statute's participation clause

Òprotects proceedings and activities which

occur in conjunction with or after the

filing o f a formal charge with the EEOC

. . . . The o pposition clause, on the other

hand, protects activity that occurs before

the filing of a formal charge with the EEOC,

such as submitting an internal complaint of

discrimination to an employer, or informally

complaining of discrimination to a

supervisor. (citations omitted)

Muhammed v. Audio Visual Servs. Group , 380 Fed. Appx. 864, 872

(11th Cir. 2010).

7 6 . The division of 760.10(7) into the Ðopposition clauseÑ

and the Ðparticipation clauseÑ is recognized by Florida state

courts. See Blizzard v. App liance Direct, Inc. , 16 So . 3d 922,

925 - 926 (Fla. 5th DCA 2009). In explaining the difference

between the two clauses, the Second District Court of Appeal has

held that:

FCRA's "opposition clause [protects]

employees who have opposed unlawful

[employment practices]." . . . H owever,

opposition claims usually involve

"activities such as 'making complaints to

management, writing critical letters to

customers, protesting against discrimination

by industry or by society in general, and

expressing support of c oworkers who have

filed formal charges.'" . . . Cases

involving retaliatory acts committed after

the employee has filed a charge with the

relevant administrative agency usually arise

under the participation clause.

Carter v. Health Mgmt. Assocs. , 989 So . 2d 1258 , 1263 (Fla. 2nd

DCA 2008).

7 7 . ÐThe participation clause includes activity done in

connection with proceedings conducted by the federal government

and its agencies: an employee has invoked the jurisdiction of

the federal government through its agency, the EEOC. And we

have held that expansive protection is available for these

adjudicative kinds of proceedings run by the government.Ñ EEOC

v. Total Sys. Servs. , 221 F.3d 1171, 1175 - 1176 (11th Cir. 2000) .

7 8 . Petitioner has alleged that the Cit y retaliated

against him by placing him in a position in the Utilities

Department upon his return to City service, and by hiring

Mr. Alejo for the position of e quipment o perator . Petitioner

asserts that the personnel decisions were , at least in part, the

result of his previous claim of discrimination filed with the

EEOC . Thus, PetitionerÓs claim falls under the participation

clause.

7 9 . The Supreme Court has had recent occasion to address

the standard to be applied to retaliation claims. In reviewing

the near - identical language of 42 U.S.C. § 2000e - 3(a), the Court

held that:

Based on [] textual and structural

indications, the Court now concludes as

follows: Title VII retaliation claims must

be proved according to traditional

principles of but - for caus ation, not the

lessened causation test stated in §2000e -

2(m). This requires proof that the unlawful

retaliation would not have occurred in the

absence of the alleged wrongful action or

actions of the employer.

Univ. of Tex. Southwestern Med. Ctr. v. Nass ar , 133 S. Ct. 2517,

2533 (2013) .

80 . As with the analysis of whether status - based

discrimination has occurred, employees may prove discrimination

as a result of retaliation by direct, statistical, or

circumstantial evidence. Valenzuela v. GlobeGround N orth

America, LLC. , 18 So. 3d at 22.

8 1 . Petitioner presented no direct or statistical evidence

of retaliation resulting from h is previous complaint of

discrimination related to h is unlawful termination for issues

pertaining to his absences from work i n January and February of

2012.

8 2 . In order to establish a circumstantial prima facie

case of retaliation, the Petitioner Ðmust show: (1) that he

eng aged in statutorily - protected expression; (2) that he

suffered an adverse employment action; and (3) the re is some

causal relationship between the two events.Ñ (citations omitted)

Holifield v. Reno , 115 F.3d 1555, 1566 (11th Cir. 1997); see

also Muhammed v. Audio Visual Servs. Group , 380 Fed. Appx. 864,

872 (11th Cir. 2010); Tipton v. Canadian Imperial Bank , 872 F.2d

1491 (11th Cir. 1989).

8 3 . Petitioner did not meet his burden to establish a

prima facie case of discrimination based on retaliation .

8 4 . The evidence demonstrates that the C ity complied with

the resolution of PetitionerÓs earlier complaints , including

those to the EEOC, by placing Petitioner in a position with the

same title, pay, and benefits. The specific position was the

result of an opening in the Utilities Department that would

allow his return without displacement of other employees.

Petitioner performed well in that position , and his satisfactory

performance was recognized in his employee evaluation.

8 5 . PetitionerÓs claim of retaliation is also based upon

the CityÓs decision to hire Mr. Alejo to the position of

e quipment o perator instead of Petitioner. The evidence is

overwhelming that the hiring decision was made fairly and

impartially by a qualified and experience d team of unbiased

evaluators, and in accordance with established City hiring

practices and procedures.

8 6 . Using the applicable objective standard, it is

concluded that no reasonable person would be deterred from

making or supporting a charge of discrimination as a result of

being subjected to a personnel practices that are the same as

th at applied to other applican ts, regardless of their race or

previous employment history . Burlington Northern & Santa Fe Ry.

v. White , 548 U.S. 53, 68 - 69 (2006). Thus, PetitionerÓs

allegations in this case are not cognizable under section

760.10(7). See Mildred M. Price v. Escambia Co. Sch. Dist. ,

Case No. 03 - 4709 (Fla. DOAH June 1, 2004; FCHR Sept. 22, 2004).

8 7 . In short, Petitioner did not prove by a preponderance

of the evidence that the City discriminated against h im as

retaliation for his participation in any proceeding rega rding an

unlawful employment practice.

Conclusion

8 8 . The City put forth persuasive evidence that Petitioner

was rehired by the City in conformance with the resolution of

his wrongful termination matter with the DOL, and that his

specific placement was the result of the availability of an open

position, not as a result of race or retaliation.

8 9 . The City put forth persuasive evidence that Petitioner

was not hired to the position of e quipment o perator because

another applicant scored higher during the interview and

practical test that was used to evaluate the applicants.

90 . Section 760.10 is designed to eliminate workplace

discrimination, but it is Ðnot designed to strip employers of

discretion when making legitimate, necessary personnel

decisions . Ñ See Holland v. Washington Homes, Inc. , 487 F.3d at

220. Because Petitioner failed to put forth any credible

evidence that the City had some discriminatory reason for its

personnel decisions , his petition must be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations issue a final order finding that Respondent, the City

of DeLand , did not commit any unlawful employment practice as to

Petitioner, Ray Nelom s , and dismissing the Petition for Relief

filed in FCHR No. 201 2 - 0 2720 .

DONE AND ENT ERED this 28th day of August , 201 3 , in

Tallahassee, Leon County, Florida.

S

E. GARY EARLY

Administrative Law Judge

Division of Administrative He arings

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 28th day of August , 201 3 .

ENDNOTE S

1/ The evidence suggests that only four of the applicants

actually participated in the interview process.

2 / Petitioner asserted that after Mr. Alejo was hired, he ran

the jet truck into an overhang, damaging the vehicle. The

incident was not disputed, bu t has no relevance to whether the

decision to hire Mr. Alejo was the result of some racial animus

or retaliatory intent against Petitioner.

COPIES FURNISHED :

Violet Denise Crawford, Agency Clerk

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

Kenton V. Sands, Esquire

Sands, White and Sands, P.A.

760 White Street

Daytona Beach, Florida 32114

Ray Neloms

763 Aurora Street , No. 2

Saint Paul, Minnesota 55104

Michael Harrison Bowling, Esquir e

Bell and Roper, P.A.

2707 East Jefferson Street

Orlando, Florida 32803

Che yanne Costilla, Interim General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.