14-001652 William Coleman vs. Daytona Beach, Ocean Center Parking Garage Status: Closed Recommended Order on Friday, June 27, 2014.

Summary: Petitioner failed to establish a prima facie case of employment discrimination based upon gender; accordingly, the Petition is dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM COLEMAN,

Petitioner,

vs. Case No. 14 - 1652

DAYTONA BEACH, OCEAN CENTER

PARKING GARAGE,

Respondent.

_______________________________/

R ECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was

conducted on May 21, 2014, in De l and, Florida, before W. David

Watkins , the duly designated Administrative Law Judge of the

Florida Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: William Coleman, pro se

208 Madison Avenue, Apartment 4

Daytona Beach, Florida 32114

For Respondent: Michael G. Moore, Esquire

Volusia County

123 West Indiana Avenue

Deland, Florida 32720

STATEMENT OF THE ISSUE S

Two issues are presented for determination in this

proceeding. The first is w hether Respondent , Volusia County , was

Pet itioner ColemanÓs employer . The second issue is whether

Respondent otherwise violated the Florida Civil Rights Act of 1992

by unlawfully discriminating against Petitioner on the basis of

his gender .

PRELIMINARY STATEMENT

On Septemb er 26, 2013, Petitioner filed an Employment

Complaint of Discrimination (Complaint) against Daytona Beach,

Ocean Center Parking Garage. 1 / The Complaint alleged an unlawful

employment practice against Petitioner based on his gender and

stated :

I am a male with parental responsibilities.

I believe I was discharged because of my

gender. I worked for Respondent as a Temp

employee/Parking Lot Attendant beginning on

July 28, 2012. On June 28, 2013, I was

unable to report to work because I had to take

care of my twins due to not being able to

get a baby sitter. I was terminated. The

reason given was excessive tardiness.

Following its investigation, by Notice dated March 11,

2014, the Florida Commission on Human Relations (FCHR) issued a

Ð Determination: No Cause Ñ ( Determination). The Determination was

forwarded to Petitioner and to Respondent Volusia CountyÓs Human

Resources Manager , Tammy King. Thereafter, Petitioner filed a

Petition for Relief (Petition) that was date - stamped by the

FCHR as being received on April 11, 2014. Succinctly stated,

Petitioner, a self - described temporary parking lot attendant,

contends that he was fired because he is male.

Respondent asserts that it was not Petitioner Ós e mployer , and

that Petitioner was a temporary leased employee of his employer ,

AUE Staffing Solutio ns (AUE) . Respondent a lso asserts that

Petitioner was properly terminated by his AUE Supervisor for his

failure to adhere to AUE employee expectations , and that

Petitioner consistently failed to report to work on time and would

frequently be a Ð no - show Ñ without calling in.

Pursuant to notice, the final hearing was held on May 21,

2014, at the Volusia County Courthouse. At the hearing, the

parties jointly stipulated to findings o f fact 1, 4 through 11,

16, 17, 18 and 20 contained in Joint Exhibit 1, which was admitted

into evidence. Where relevant, those stipulations have been

incorporated in the Findings of Fact set forth herein.

Petitioner testified on his own behalf and presented no

exhibits. R espondent presented the testimony of Tammy King, Human

Resources Manager for Volusia County, and Rebecca Pearsall,

Petitioner Ós AUE Supervisor. Respondent also offered its Exhibits

1, 2, 2A, 3, 7 , and 8, each of which was admitted into evidence .

A transcript of the final hearing was not ordered by either

party. Accordingly, at the conclusion of the hearing, the parties

agreed to file their proposed recommended orders within 10 days of

the hearing. Thereafter, Respondent timely filed its Proposed

R ecommended Order on May 23, 2014. Petitioner did not file a

proposed recommended order.

Unless otherwise noted, all statutory references are to

Florida Statutes (2013).

FINDINGS OF FACT

Based upon the testimony and documentary evidence presented

at hearing, the demeanor and credibility of the witnesses, and on

the entire record of this proceeding, the following findings of

fact are made:

1. Ocean Center Parking Garage is a parking facility owned

and operated by Volusia County in Da ytona Beach, Flori da.

2 . Petitioner Ós employer , AUE Staffing Solutions ,

and Respondent entered into a services contract for t emporary

e mployment and e mployment l easing s ervices.

3 . Respondent has no ownership interest in, or control

over, AUE Staffing Solutions.

4 . On or about July 19, 2012 , AUE hired Petitioner. Upon

his hiring, AUE provided Petitioner with a list of employment

expectations entitled ÐWelcome to AUE Staffing Solutions Î What

is Expected of You as a AUE Staffing Solutions Employee.Ñ

5 . Among the relevant employment expectations are numbers

4, 12, and 14 which provide:

4. Always arrive on time; contact AUE

Staffing Solutions immediately if you cannot

report to work or are arriving late. Always

leave a message on our 24 [h]our answering

servicing if you do not personally speak with

a Staffing Coordinator.

* * *

12. Misconduct includes: Failure to follow

any of our company procedures,

insubordination to supervisors or to office

personnel, sleeping on the job, horse playing

on the job, excessive tardiness and

absenteeism, unauthorized use of internet

activity, and the use of profanity and/or

abusive language on any assignment or to any

AUE Staffing Solutions personnel will be

grounds for immediate termination.

* * *

14. If you are a no call/no show, walk off,

or do not complete an assignment, we will

consider this a QUIT and you will be paid the

minimum wage for all hours worked for that

entire week Î no exceptions will be made .

( Emphasis in original. )

6 . On July 19, 2012, Petitioner acknowledged his acceptance

of these employment expectations.

7 . Thereafter, on or about July 28, 2012, AUE assigned

Petitioner to work as a temporary employee parking lot attendant

at the Ocean Center Parking Garage to fulf ill the terms of its

contract with Respondent .

8 . B eginning in February 2013, Petitioner began

experiencing absences and tardiness .

9 . PetitionerÓs schedule and time cards for the period

February 18, 2013 , through June 2 8 , 2013, reflect that Petitioner

was late on the following dates:

February 22

March 22

April 2, 7, 11, 14, 28

May 12, 21

June 4, 8, 15, 23

10 . PetitionerÓs schedule and time cards for the period

February 18, 2013 , through June 2 8 , 2013, also reflect that

Petitioner was a no show on the following dates:

February 16

March 24

June 11

June 28

11 . On February 16, 2013 , and June 28, 2013 , Petitioner was

a no show and did not call in to report his absence (no show/no

call) .

12 . Petitioner testified that on June 28, 2013, his

immediate supervisor , Rebecca Pearsall , called him at 11:48 a.m.

and informed him that he was supposed to be at work. Petitioner

disagreed with Ms. Pearsall that he was scheduled to work that

day.

13 . The AUE work schedule for the week of June 24, 2013

clearly reflects that Petitioner, known as ÐWillie,Ñ was scheduled

to work on June 28, 2013 from 8:30am to 5pm.

14 . Ms. Pearsall testified that work schedules were always

posted in a prominent place near the office the Thursday prior to

the start of the following work week , and that copies were made

available on a clipboard to employees who needed a copy.

Petitioner acknowledge d that copies were available and claims to

have taken a copy but lost it when it Ðblew out the windowÑ of his

car. Petitioner as serted at hearing that the ÐlostÑ version of

the schedule did not require him to work on June 28 th .

15 . Petitioner worked the Saturday, (June 22nd), Sunday

(June 23rd), and Tuesday (June 25th) preceding Friday , June 28 ,

2013 , and so would have had notice, opportunity, and

responsibility to review the work schedule to understand when he

was to report to work that week .

16 . Ms. PearsallÓs testimony , as corroborated by the AUE

work schedule and time card for June 28, 2013 , is more credible

than PetitionerÓs assertion that he had a different schedule that

Ðblew out the windowÑ of his car.

17 . Ms. Pearsall testified that Petitioner had previously

been counseled about the need to report timely and call in when he

was not going to be able to report so that the garage could make

other arrangements for coverage.

18 . During their telephone conversation of June 28, 2013,

Ms. Pearsall explained to Petitione r that his services were

no longer needed and that he was not to report to the Ocean Center

Parking Garage due to his inability to show up to work on time and

for not showing up for his shifts without calling. Pearsall

terminated PetitionerÓs employment w ith AUE Staffing Solutions

immediately .

19 . Ms. Pearsall is also an AUE Staffing Solutions employee

assigned to the Ocean Center Parking Garage . She has worked at

Ocean Center Parking Garage for five years. During the course

of PetitionerÓs assignment to Ocean Center Parking Garage

( February 2013 through June 28, 2013 ) the other AUE - assig ned

employee performing duties similar to PetitionerÓs was also a

male ( Patrick ) . After PetitionerÓs termination, Patrick

continued working for AUE on assignment to t he Ocean Center

Parking Garage . As of the hearing, he was still employed by AUE

in that capacity.

20 . Ms. Pearsall testified that Patrick has not had the

same challenges with punctuality and att endance that Petitioner

de monstrated.

21 . Ms. Pearsall testified that subsequent to PetitionerÓs

termination, AUE filled PetitionerÓs position with other males.

22 . Ms. Pearsall testified that during her five years at

the Ocean Center Parking Garage other AUE employees, both males

and females, were terminated for similar attendance and tardiness

issues as Petitioner .

23 . On September 26, 2013, Petitioner filed an Employment

Complaint of Discrimination (Complaint) against Daytona Beach,

Ocean Center Parking Garage, but did not otherwise identify either

Volusia County or AUE Staffing Solutions as PetitionerÓs employer.

24 . PetitionerÓs Complaint alleged an unlawful employment

practice against him based on his gender and provided in pertinent

part:

I am a male with parental responsibilities.

I believe I was discharged because of my

gender. I worked for Respondent as a Temp

employee/Parking Lot Attendant beginning on

July 28, 2012. On June 28, 2013, I was

unable to report to work because I had to take

care of my twins due to not being able to

get a baby sitter. I was terminated. The

reason given was excessive tardiness.

25 . Tammy King, Human Resources Manager for Volusia

County , conducted a review and investigation into the

circumstances of PetitionerÓs Complaint . Ms. King responded to

FCHR Investigator Jim Barnes by letter dated November 6, 2013,

conclud ing that Petitioner had not been discr iminated against on

the basis of his gender or any other basis .

26 . In his Investigative Memorandum dated April 23, 2014,

Investigator Barnes noted that:

Complainant was offered multiple opportunities

to provide a rebuttal but has not responded.

During an introductory telephone call,

Complainant provided no additional information

relative to his complaint. A telephone

message was left on voicemail requesting an

interview but Complainant has not responded.

Complainant filed this complaint of

discrimina tion based on his gender. The

findings of the investigation do not support

the allegation. Complainant alleged that he

had been terminated because of his gender,

after being told he was terminated for

excessive tardiness/absenteeism. Respondent

related that Complainant was late for work

13 times and failed to report for work four

times in 5 months. After repeated counseling

and cautions, Complainant was terminated for

tardiness and absenteeism . Complainant

provided no evidence of discriminatory animus,

and no documentary or t estamentary evidence

that he was discharged for anything other than

the stated reason.

27 . Upon completion of its investigation, FCHR issued a

Ð Determination : No Cause Ñ finding Ðthat no reasonable cause

exists to believe that an unlawful employment practice occurred.Ñ

28 . Petitioner t estified that following the termination of

his employment with AUE he found employment with Americano Resort

as a porter and entertainer.

29 . Petitioner testified that he was terminated from his

employment with Americano Resort after he was absent on a Monday,

following a weekend trip to Georgia . Petitioner failed to report

or call in his absence because he was tired and stayed home to

take care of his twin infants.

30 . At hearing, Petitioner candidly admitted that he had no

evidence to suggest that , had he been a female , he would have been

treated any differently by AUE .

CONCLUSIONS OF LAW

31 . The Division of Administrative Hearings has jurisdiction

over the partie s and the subject matter of this cause pursuant to

sections 120.569 and 120.57(1), Florida Statutes.

32 . Petitioner claim s he was discriminated against because

of his sex (male), in violation of the Florida Civil Rights Act of

1992 ( Ð FCRA Ñ ).

33 . Section 760.10(1)(a), Florida Statutes, makes it

unlawful for an employer to take adverse action against an

individual because of the individual's sex . Under the FCRA, an

employer commits an unlawful employment practice if it terminates

or retaliates a gainst employees based on their protected status,

which in this case, is gender. See § 760.10(1)(a), Fla . Stat.

34 . Section 760.11(7) permits a party who receives a no

cause determination to request a formal administrative hearing

before the Division of Administrative Hearings. Ð If the

administrative law judge finds that a violation of the Florida

Civil Rights Act of 1992 has occurred, he or she shall issue an

appropriate recommended order to the commission prohibiting the

practice and recommending affi rmative relief from the effects of

the practice, including back pay. Ñ Id.

35 . Florida's chapter 760 is patterned after Title VII of

the Civil Rights Act of 1964, as amended. Consequently, Florida

courts look to federal case law when interpreting chapt er 760.

Valenzuela v . GlobeGround N. Am., LLC. , 18 So. 3d 17 (Fla. 3rd DCA

2009).

36 . Petitioner claim s disparate treatment (as opposed to

disparate impact) under the FCRA; in other words, he claim s he w as

treat ed differently because of his gender. Pe titioner ha s the

burden of proving by a preponderance of the evidence that

Respo ndent discriminated against him . See Fla. Dep't of Transp.

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

prove unlawful sex discrimination by direct or circumstantial

evidence. Smith v. Fla. Dep't of Corr. , Case No. 2:07 - cv - 631,

(M.D. Fla. May 27, 2009); 2009 U.S. Dist. LEXIS 44885 (M.D. Fla.

2009).

37 . Direct evidence is evidence, that, Ð if believed, proves

[the] existence of [a] fact in issue without inference or

presumption. Ñ Burrell v. Bd. of Tr. of Ga. Military College , 125

F.3d 1390, 1393 (11th Cir. 1997). Direct evidence consists of

Ð only the mo st blatant remarks, whose intent could be nothing

other than to discriminate Ñ on the basis of an impermissible

factor. Carter v. City of Miami , 870 F.2d 578, 582 (11th Cir.

1989).

38 . The record in this case did not establish unlawful

gender discriminat ion by direct evidence.

39 . To prove unlawful discrimination by circumstantial

evidence, a party must establish a prima facie case of

discrimination by a preponderance of the evidence. If successful,

this creates a presumption of discrimination. Then t he burden

shifts to the employer to offer a legitimate, non - discriminatory

reason for the adverse employment action. If the employer meets

that burden, the presumption disappears and the employee must

prove that the legitimate reasons were a pretext. Valenzuela v.

GlobeGround N. Am., LLC. , supra . Facts that are sufficient to

establish a prima facie case must be adequate to permit an

inference of discrimination. Id.

40 . Accordingly, Petitioner must prove discrimination by

indirect or circumstantia l evidence under the McDonnell Douglas

framework. Petitioner must first establish a prima facie case by

showing: (1 ) he is a member of a protected class; (2) he was

qualified for the job; (3) he was subjected to an adverse

employment action; and (4) othe r similarly - situated employees, who

are not members of the protected group, were treated more

favorably than Petitioner . See McDonnell Douglas Corp. v. Green ,

411 U.S. 792, 802 (1973). Ð When comparing similarly situated

individuals to raise an inference of discriminatory motivation,

these individuals must be similarly situated in all relevant

respects. Ñ Jackson v. BellSouth Telecomm. , 372 F.3d 1250, 1273

(l1th Cir. 2004).

41 . Thus, in order to establish a prima facie case of

disparate treatment based o n gender, Petiti oner must show that

Respondent treated similarly - situated female employees differently

or less severely. Valdes v. Miami - Dade Coll. , 463 Fed. Appx. 843,

845 (11th Cir. 2012); Camara v. Brinker Intern. , 161 Fed. Appx.

893 (11th Cir. 2006). See also Longariello v. Sch. Bd. Of Monroe

Cnty., Fla. , 987 F. Supp. 1440, 1449 (S.D. Fla. 1997) (quoting

Coleman v. B - G Maint. Mgmt. of Colo., Inc. , 108 F.3d 1199, 1204

(10th Cir.1997)) ( Ð Gender - plus plaintiffs can never be successful

if there is no cor responding subclass of members of the opposite

gender. Such plaintiffs cannot make the requisite showing that

they were treated differently from similarly - situated members of

the opposite gender . Ñ).

42 . The findings of fact here are not sufficient to

establish a prima facie case of discrimination based on gender .

43 . There is no question that Petitioner was subject to an

adverse employment action. Petitioner was terminated.

44 . However, Petitioner failed to prove that similarly

situated female employees were treated more favorably or that he

was replaced by someone outside of his protected classification.

Indeed, there was no mention of any female in a remotely similar

position employed by AUE who was treated any differently than was

Petitione r. To the contrary, the credible evidence established

that female employees of AUE who violated the no call/no show

policy were also terminated.

45 . Petitioner admitted he had no evidence to suggest that

had he been a female he would have been treated di fferently.

Ms. Pearsall testified that other similarly situated male and

female employees had been terminated for the same reasons as

Petitioner. Further, Ms. Pearsall testified that PetitionerÓs

position had subsequently been filled with males, and another

position continued to be filled by ÐPatrick , Ñ also a male.

46 . Respondent presented ample evidence to support its

position that Petitioner w as fired for legitimate,

nondiscriminatory reasons. Petitioner had been repeatedly

counseled about his tardiness and absenteeism, and was made aware,

in writing, of the serious consequences of failing to report for

work without providing advance notice to AUE. The evidence of

reco rd does not support PetitionerÓs theory that he was fired for

discriminatory reasons. Indeed, t here is no evidence that

Petitioner was fired because of his gender. Rather, the greater

weight of the evidence established that Petitioner w as fired for

violating AUE 's written policy regarding no calls/no shows.

47 . Finally, t here was no evidence of any ownership interest

on behalf of Respondent Volusia County in AUE Staffing Solutions.

Moreover, Petitioner was hired by AUE and was terminated by his

AUE Supervisor. There is no evidence that Volusia County

exercise d any authority over Petitioner.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations dismiss the Petition for Relief from an Unlawful

Employment Practice filed against Respondent.

DONE AND ENTERED this 2 7 th day of June , 2014 , in Tallahassee,

Leon County, Florida.

S

W. DAVID WATKINS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 7 th day of June , 2014

ENDNOTE

1 / Ocean Center Parking Garage is a parking facility owned and

operated by Volusia County in Daytona Beach, Florida.

COPIES FURNISHED :

Violet Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway , Suite 100

Tallahassee, Florida 32301

William Coleman

Apartment 4

208 Madison Avenue

Daytona Beach, Florida 32114

Tammy Woodruff - King

Daytona Beach, Ocean Center Parking Garage

230 North Woodland Boulevard , Suite 262

Deland, Florida 32720

Nancye R. Jones, Esquire

County o f Volusia

123 West Indiana Avenue

Deland, Florida 32720

Michael Gray Moore, Esquire

County of Volusia

123 West Indiana Avenue , Suite 301

Deland, Florida 32720

Cheyanne Costilla, Gen eral Co unsel

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.