14-002482 Demario Yorker vs. Girard Equipment, Inc. Status: Closed Recommended Order on Wednesday, December 17, 2014.

Summary: Former employee failed to prove that he was discharged because of his race in violation of the FCRA. Recommended dismissal of the Petition for Relief.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEMARIO YORKER,

Petitioner,

vs. Case No. 14 - 2482

GIRARD EQUIPMENT, INC.,

Respondent.

_______________________________/

RECOMMENDED ORDER

This case came before Administrative Law Judge Darren A.

Schwartz for final hearing by video teleconference on October 22,

2014, with sites in Port St. Lucie and Tallahassee, Florida .

APPEARANCES

For Petitioner: DeMario Yorker, p ro se

4129 37th Drive

Vero Beach, Florida 32967

For Respondent: Jason L. Odom, Esquire

Gould, Cooksey, Fennell, P.A.

979 Beachland Boulevard

Vero Beach, Florida 32963

STATEMENT OF THE ISSUE S

Whether Respon dent committed the unlawful employment

practice alleged in the Charge of Discrimination filed with the

Florida Commission on Human Relations (Ð FCHRÑ) , and if so, what

relief should Petitioner be granted.

PRELIMINARY STATEMENT

On December 9, 2013, Petiti oner , DeM ario Yorker

(ÐPetitionerÑ) , filed a Charge of Discrimination (ÐComplaintÑ)

with FCHR alleging that Respondent , Girard Equipment, Inc.

(ÐRespondentÑ) , terminated him from employment because of his

race. Following its investigation of the Complaint , FCHR

notified the parties that there was Ð reasonable cause to believe

that an unlawful employment practice occurred. Ñ

Petitioner elected to pursue administrative remedies, timely

filing a Petition for Relief with FCHR on or about May 22, 2014.

On May 22, 2014, FCHR referred the matter to the Division of

Administrative Hearings (ÐDOAHÑ) to assign an Administrative Law

Judge to conduct the final hearing. The final hearing initially

was set for August 14, 2014. On August 13, 2014, Respondent

filed an em ergency motion to continue the final hearing. On

August 13, 2014, the undersigned entered an Order resetting the

final hearing for October 22, 2014.

The final hearing commenced as scheduled on October 22,

2014, with both parties present. At the hearing, Petitioner

testified on his own behalf and presented the additional

testimony of Antonio Wallace, Marcus Melbourne, Darrall Holloway,

and Mike Alvarado. Petitioner offered RespondentÓs Exhibits 1

and 2, which were received into evidence based on the stip ulation

of the parties. Respondent presented the testimony of John

Brennan, Timothy Girard, Julie Thompson, and Marcus Melbourne.

Respondent did not offer any other exhibits into evidence.

The final hearing Transcript was filed with DOAH on

November 7 , 2014. The parties timely filed proposed recommended

order s , which w ere given consideration in the preparation of this

Recommended Order.

FINDING S OF FACT

1. Respondent manufactures valves for the safe

transportation of haza rdous chemicals on tanker - trailers.

Respondent is headquartered in the Vero Beach a rea; specifically,

the Gifford c ommunity, which is a predominately African - American

community . Respondent employs a significant number of employees

from the Gifford c ommun ity. 1/

2. Petitioner is a n African - American male who was employed

by Respondent f rom approximately February 2012 until his

termination in September 2013. At the time of his termination,

Petitioner wa s employed by Respondent as an a ssembl y t echn ician .

Petitioner was supervised by Darrall Holloway, an African -

American male.

3 . The incident giving rise to PetitionerÓs termination

involved a physical altercation between two of RespondentÓs

employees, Jormonte Hunter (African - American male) an d Mike

Alvarado (Hispanic male) on September 25, 2013 . The physical

altercation followed approximately two months of arguing between

Mr. Hunter and Mr. Alvarado over a female employee of Respondent .

4 . Mr. Holloway and his supervisor, John Brennan ( C au casion

male), learned of the ongoing dispute between Mr. Hunter and

Mr. Alvarado sometime during the afternoon working hours of

September 25, 201 3 .

5 . That s ame afternoon during working hours , Mr. Holloway

and Mr. Brennan met with Mr. Hunter and Mr. Al varado and told

them to cease their bickering, and to avoid any fu ture

confrontations with each other , on or off company property.

6 . That same afternoon during working hours , Mr. Holloway

and Mr. Brennan also m et with Petitioner and t wo other African -

A merican male employees (C hris Joseph and Marcus Melbourne) .

7 . During this meeting, Petitioner, Mr. Joseph and

Mr. Melbourne were directed not to allow the situation between

Mr. Hunter and Mr. Alvarado to escalate, on or off company

property . Petition er, Mr. Joseph and Mr. Melbourne were further

warned that if the situation between Mr. Hunter and Mr. Alvarado

escalates, on or off company property, Ð action s will be taken. Ñ

8 . Nevertheless, Petitioner, Mr. Joseph, Mr. Melbourne,

Antonio Wallace ( Afr ican - American male) , and Mr. Hunter left work

after 4:00 p.m., on September 25, 2013, and drove to

Mr. AlvaradoÓs apartment complex. Petitioner, Mr. Joseph,

Mr. Melbourne, Mr. Wallace, and Mr. Hunter went to Mr. AlvaradoÓs

apartment knowing there was go ing to be a physical altercation

between Mr. Alvarado and Mr. Hunter .

9 . After arriving at Mr. AlvaradoÓs apartment complex,

Petitioner, Mr. Joseph, Mr. Melbourne, Mr. Wallace, and

Mr. Hunter exit ed their vehicles . M r. Hunter then walked toward

Mr. Al varadoÓs apartment , followed by P etitioner, Mr. Joseph,

Mr. Melbourne , and Mr. Wallace .

1 0 . Moments later , Mr. Alvarado opened his apartment door ,

some words were exchanged between Mr. Alvarado and Mr. Hunter,

and the physical altercation ensued .

1 1 . Petitioner and Mr. Wallace instigated and witnessed the

physical altercation, and did nothing to try and stop it.

Mr. Joseph and Mr. Melbourne also witnessed the physical

altercation, and did nothing to try and stop it.

12. The physical altercati on between Mr. Hunter and

Mr. Alvarado lasted a matter of seconds , resulting in Mr. Hunter

slamm ing Mr. Alvarado Ós face to the ground, causing M r. Alvarado

to suffer physical injuries to his face . The next day,

September 26, 2013, Mr. Alvarado arrived t o work with his face

badly injured as a result of the altercation .

1 3 . On September 26, 2013, Mr. Holloway, Mr. Brennan, and

Mr. Girard, the p resident of the company, learned of the physical

altercation that had occurred between Mr. Alvarado and Mr. Hun ter

at Mr. AlvaradoÓs apartment complex the day before. Petitioner,

Mr. Joseph, Mr. Melbourne, Mr. Wallace, Mr. Hunter, and

Mr. Alvarado were all suspended pending an investigation by

Respondent .

1 4 . Over the next few days, Respondent conducted an

inv estigation. Following its investigation, Respondent

terminated Petitioner, Mr. Wallace, Mr. Hunter, and Mr. Joseph.

15. Mr. Girard made the ultimate decision to terminate

Petitioner, Mr. Wallace, Mr. Hunter, and Mr. Joseph. 2/

1 6 . Petitioner was termin ated because he ignored the prior

directives of Mr. Holloway and Mr. Brennan given during the

meeting on September 25, 2013 ; he instigated and witnessed the

physical altercation between Mr. Hunter and Mr. Alvarado ; and he

was employed by Respondent for onl y one year and eight months

prior to his termination , during which his job performance was ,

at times, below expectations.

1 7 . Mr. Hunter was terminated because he ignored the prior

directives of Mr. Holloway and Mr. Brennan given during the

meetin g of September 25, 2013 , and he was directly involved in

the physical altercation with Mr. Alvarado.

1 8 . Mr. Wallace was terminated because he instigated and

witnessed the physical altercation between Mr. Hunter and

Mr. Alvarado , and h e was employed by Respondent for only six

months prior to his termination .

1 9 . Mr. Joseph was terminated because he ignored the prior

directives of Mr. Holloway and Mr. Brennan given during the

meeting of September 25, 2013 , and he witnessed the physical

altercation bet ween Mr. Hunter and Mr. Alvarado .

20 . Mr. Alvarado was not terminated because he was the

victim of the physical altercation , and the physical altercation

occurred at his residence .

2 1 . Mr. Melbourne was not terminated because he did not

instigate the physical confrontation between Mr. Hunter and

Mr. Alvarado, and he was a long - term and model employee of

Respondent prior to the September 25, 2013, incident . 3 /

2 2 . Following his termination, Respondent replaced

Petitioner with Shaunte Collins, an Afri can - American male.

2 3 . The persuasive and credible evidence adduced at hearing

demonstrates that Petitioner was terminated for legitimate, non -

discriminatory reasons having nothing to do with his race.

PetitionerÓs charge of race discrimination is based on

speculation and conjecture , and Petitioner failed to prove that

RespondentÓs reasons for his firing are a mere pretext for

intentional race discrimination.

CONCLUSIONS OF LAW

24. DOAH has personal and subject matter jurisdiction in

this proce eding pursuant to sections 120.569 and 120.57(1),

Florida Statutes (2014).

25. The Florida Civil Rights Act of 1992 (ÐFCRAÑ), chapter

760, Florida Statutes, prohibits discrimination in the workplace.

Among other things, the FCRA makes it unlawful for an employer:

To discharge or to fail or refuse to hire any

individual with respect to compensation,

terms, conditions, or privileges of

employment, because of such individualÓs

race, color, religion, sex, national origin,

age, handicap, or marital status.

§ 760.10(1)(a), Fla. Stat.

26. The FCRA, as amended, is patterned after Title VII of

the Civil Rights Act of 1964 and 1991 (ÐTitle VIIÑ ). Thus,

federal decisional authority interpreting Title VII is applicable

to cases arising under the FCRA. Joh nson v. Great Expressions

Dental Ctrs. Of Fla., P.A. , 132 So. 3d 1174, 1176 (Fla. 3d DCA

2014).

27. Complainants alleging unlawful discrimination may prove

their case using direct evidence of discriminatory intent.

Direct evidence is evidence that , if believed, would prove the

existence of discriminatory intent without resort to inference or

presumption and must in some way relate to the adverse action

against the complainant . Denney v. City of Albany , 247 F. 3d

1172, 1182 (11 th Cir. 2001). Ð [ O ] nl y the most blatant remarks ,

whose intent could mean nothing other than to discriminate on the

basis of some impermissible factor constitute direct evidence of

discrimination.Ñ Wilson v. B/E Aerospace, Inc. , 376 F. 3d 1079,

1086 (11th Cir. 2004) ; See , e.g. , E.E.O.C. v. Alton Packaging

Corp. , 901 F. 2d 920, 923 (11th Cir. 1990) ( holding that general

managerÓs statement that Ðif it was his company he wouldnÓt hire

any black people , Ñ constitute s direct evidence).

28. When no direct evidence of race d is crimination exists,

the employee may attempt to establish a case circumstantially

through the burden - shifting framework articulated in McDonnell

Douglas Corp. v. Green , 411 U.S. 792, 802 - 05 (1973). The

McDonnell Douglas framework provides an allocation of the burden

of production and an order for the presentation of proof in

disparate treatment discrimination cases. Reeves v. Sanderson

Plumbing Prods . , 530 U.S. 133, 14 2 (2000).

29. First, u nder the McDonnell Douglas framework ,

Petitioner must esta blish a prima facie case of discrimination.

Id. To establish a prima facie case of race discrimination

through circumstantial evidence, Petitioner must show that he:

(1) bel ongs to a protected class; (2) he was qualified to do the

job; (3) he was subjecte d to an adverse employment action; and

(4) he was replaced by an employee outside of his protected class

or the employer treated similarly - situated employees outside the

class more favorably. Johnson , 132 So. 3d at 1176; Burke - Fowler

v. Orange County , 447 F. 3d 1319, 1323 (11th Cir. 2006) ; Maynard

v. B d. o f Regents , 342 F. 3d 1281, 1289 (11th Cir. 2003) . Failure

to establish a prima facie case of discrimination ends the

inquiry. Kidd v. Mando Am. Corp. , 731 F. 3d 1196, 1202 (11th Cir.

2013).

30. As to the fourth pro ng of the prima facie case, an

adequate comparator must be Ðsimilarly situatedÑ in all relevant

respects. Johnson , 132 So. 3d at 1176; Valenzuela v. GlobeGround

N. Am., LLC , 18 So. 3d 17, 2 3 (Fla. 3d DCA 2009). To determine

whether employe es are similarly situated, courts evaluate whether

the employees are involved in or accused of the same conduct or

similar conduct and are disciplined in different ways. Burke -

Fowler , 447 F. 3d at 1323. In making this determination, courts

Ðrequire that t he quantity and quality of the comparatorÓs

misconduct be nearly identical to prevent courts from second -

guessing employersÓ reasonable decisions and confusing apples

with oranges.Ñ Id . quoting Maniccia v. Brown , 171 F. 3d 1364,

1368 (11th Cir. 1999).

31. When the charging party, i.e., Petitioner, is able to

establish a prima facie case, the burden to go forward with the

evidence shifts to the employer to articulate a legitimate, non -

discriminatory explanation for the employment action.

Importa ntly, the employer has the burden of production, not

persuasion, and need only present the fact - finder with evidence

that the decision was non - discriminatory. This intermediate

burden is Ðexceedingly light.Ñ Vessels v. Atlanta Indep. Sch.

Sys. , 4 08 F. 3d 763, 769 - 70 (11th Cir. 2005).

32. Should the employer meet this burden, the presumption

of discrimination created by the employeeÓs prima facie case

drops from the case. Reeves v. Sanderson Plumbing Prods., Inc. ,

530 U.S. 133, 142 - 43 (2000). At t his juncture, the employee must

then establish that the proffered reasons were not the true

reason for the employment decision, but rather a mere pretext for

intentional race discrimination. Kidd , 731 F. 3d at 1202.

33. In this regard, Petitioner m ust demonstrate Ðsuch

weakness es , implausibilities, inconsistencies, incoherenc i e s , or

contradictions in the employerÓs proffered legitimate reasons for

its actions that a reasonable factfinder could find them unworthy

of credence.Ñ Combs v. Plantation Pa tterns, Meadowcraft, Inc. ,

106 F. 3d 1519, 1538 (11th Cir. 1997).

34. Ð Courts do not sit as a super - personnel department that

r e e xamine s an entityÓs business decision s . Ñ Davis v. Town of

Lake Park, Florida , 245 F. 3d 1232, 1244 (11th Cir. 2001).

Wh ether an employment decision was prudent or fair is irrelevant

because an employer Ðmay fire [Petitioner] for a good reason, a

bad reason, a reason based on erroneous facts, or for no reason

at all,Ñ as long as its action is not for a racially

discriminato ry reason. Nix v. WLCY Radio/Rahall CommcÓns , 738

F.2d 1181, 1187 (11th Cir. 1984). Petitioner Ð is not allowed to

recast an employerÓs proffered nondiscriminatory reasons or

substitute his business judgment for that of the employer. Ñ

Chapman v. AI Trans port, et a l. , 229 F. 3d 1012, 1030 (11th Cir.

2000). Provided that the proffered reasons are ones that might

motivate a reasonable employer, an employee must meet those

reasons head on and rebut them, and the employee cannot succeed

by simply quarrelling w ith the wisdom of those reasons. Id.

Importantly, t he ultimate burden of persuading the trier of fact

that an employer intentionally discriminated against the employee

based on race remains at all times with the employee. T exas

DepÓt of C mty . Affairs v . Burdine , 450 U.S. 248, 253 (1981); Bush

v. Barnett Bank , 916 F. Supp. 1244, 1252 (M.D. Fla. 1996).

3 5 . Turning to the instant case, Petitioner presented no

direct evidence of discriminatory intent by Respondent.

3 6 . Petitioner established the first three elements of a

prima facie case based on circumstantial evidence . However, he

faile d to establish the fourth prong -- that he was replaced by a

person outside of his protect ed class or that the employer

treated similarly - situated employees outsi de his protected class

more favorably. First, Petitioner was replaced by an African -

American male. Second, Mr. Melbourne , who was not terminated, is

in the same protected class as Petitioner (African - American);

therefore, Petitioner is unable to demonstr ate that Mr. Melbourne

is a comparator who is outside of his protected class.

3 7 . Furthermore, Mr. Alvarado, although outside

PetitionerÓs protected class, is not similarly situated to

Petitioner. Mr. AlvaradoÓs and PetitionerÓs conduct is

significantl y dissimilar. Petitioner instigated and witnessed

the physical altercation. D espite being directed otherwise ,

Petitioner also went to Mr. AlvaradoÓs place of residence on

September 25, 2013, looking for a fight . The physical

confrontation between Mr. Al varado and Mr. Hunter occurred at

Mr. AlvaradoÓs place of residence, and Mr. Alvarado was the

victim . Accordingly, Petitioner failed to establish a prima

facie case under the McDonnell Douglas framework.

3 8 . Having failed to establish a prima facie case , the

inquiry need not go further and the petition should be dismissed .

However, even if Petitioner had met his initial burden of

establishing a prima facie case, and the burden had shifted to

Respondent to articulate a legitimate, nondiscriminatory reaso n

for the termination, Respondent successfully met its burden at

the hearing , which Petitioner failed to prove was a mere pretext

for intentional race discrimination . The persuasive and credible

evidence adduced at hearing showed that Petitioner was termi nated

because he instigated the physical confrontation between

Mr. Hunter and Mr. Alvarado and witnessed the altercation despite

being warned not to allow the situation to escalate . Moreover,

he was employed by Respondent for only one year and eight mont hs

prior to his termination, during which his job performance was,

at times, below expectations. Accordingly, the Petition for

Relief should be dismissed. 4/

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusi ons of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations enter a final order dismissing the Petition for Relief.

DONE AND ENTERED this 17th day of December , 2014 , in

Tallahassee, Leon County, Florida.

S

DARREN A. SCHWARTZ

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

Divisi on of Administrative Hearings

this 17th day of December , 2014 .

ENDNOTE S

1/ Respondent employs approximately 51 employees. Twenty - one

employees are Caucasian, twenty employees are African - American,

and ten employees are Hispanic.

2/ Notably, Mr. Gi rard also made the ultimate decision to hire

these persons, knowing of their race at the time they were hired.

3 / Mr. Mel bourne was hired by Respondent in June 2011.

4/ Notably, this case was not resolved summarily pre - hearing, but

was fully tried before the undersigned. Where an Administrative

Law J udge does not halt the proceedings for Ðlack of a prima

facie case and the action has been fully tried, it is no longer

relevant whether the [Petitioner] actually established a prima

facie case. At tha t point, the only relevant inquiry is the

ultimate, factual issue of intentional discrimination . . . .

[W]hether or not [the Petitioner] actually established a prima

facie case is relevant only in the sense that a prima facie case

constitutes some circums tantial evidence of intentional

discrimination.Ñ Green v. Sch. Bd. of Hillsborough Cnty. , 25

F. 3d 974, 978 (11th Cir. 1994); s ee also Walker v. Mortham , 158

F. 3d 1177, 1183 , n. 12 (11th Cir. 1998)( noting that Ða factfinder

cannot infer intentional discrimi nation solely from establishment

of the prima facie case. . . . [H]owever, that the same evidence

that is used to establish the prima facie case may also cast

doubt on the employerÓs proffered legitimate, non - discriminatory

basis for its decision. Thus, in some cases, the [Petitioner],

in order to prove intentional discrimination, will not need to

produce any more evidence than what was required to establish the

prima facie case.Ñ ).

Moreover, i n Johnson v. Gre at Expressions Dental C en t e rs o f

Fl ori d a , P.A. , 132 So. 3d 1174, 1177 (Fla. 3d DCA 2014), the

court acknowledged that some recent federal court decisions ,

including the Eleventh Circuit, in Smith v. Lockheed - Martin

Corp. , 644 F. 3d 1321, 1328 (11 th Cir. 2011), have recognized an

alternative mea ns of establishing a prima facie case through

circumstantial evidence absent a sufficient comparator , where the

employee nevertheless presents a Ðconvincing mosaic of

circumstantial evidence.Ñ The Johnson court stated, however,

that whether the Ðconvincin g mosaic test is a viable alternative

to the four prong McDonnell Douglas test appears to be an

unsettled question of federal law.Ñ Id. Moreover, the Johnson

court noted that the test has been applied by the Eleventh

Circuit under differing circumstances .

After recognizing that no Florida court has adopted or even

mentioned the Ðconvincing mosaicÑ standard, the Johnson court

indicated that it Ðneed not decide whether to adopt the

convincing mosaic test because Johnson clearly fails under the

convinc ing mosaic standard as well as the traditional McDonnell

Douglas framework.Ñ Id. As in Johnson , the undersigned need not

decide whether to adopt the convincing mosaic standard because

Petitioner clearly fails under the convincing mosaic standard as

well as the traditional McDonnell Douglas framework.

COPIES FURNISHED:

DeMario Yorker

4129 37th Drive

Vero Beach, Florida 32967

Cheyanne Michelle Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way , Room 1 1 0

Tallahassee, Florida 323 99

(eServed)

Jason L. Odom, Esquire

Gould, Cooksey, Fennell, P.A.

979 Beachland Boulevard

Vero Beach, Florida 32963

(eServed)

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.