14-002522 Manny Rolon vs. Bright House Networks Status: Closed Recommended Order on Monday, September 22, 2014.

Summary: Petitioner failed to meet his burden of proving that Respondent terminated his employment for reasons related to Petitioner's national origin.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MANNY ROLON,

Petitioner,

vs. Case No. 14 - 2522

BRIGHT HOUSE NETWORKS,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hearing in this c ause was held

by video teleconference between Orlando and Tallahassee, Flor ida,

on July 23 , 201 4 , before the Division of Administrative Hearings

by its designated Administrative Law Judge Linzie F. Bogan.

APPEARANCES

For Petitioner: Manny Rolon, pro se

Apartment 205

4413 South Kirkman Road

Orlando, Florida 32811

For Respondent: Lillian C. Moon, Esquire

Jackson Lewis LLP

Suite 1285

390 North Orange Avenue

Orlando, Florida 32801

STATEMENT OF THE ISSUE

Whether Respondent violated the Florida Civil Rights Act of

1992, as alleged in the Employment Charge of Discrimination filed

by Petitioner on November 12 , 20 1 3 .

PRELIMINARY STATEMENT

Petitioner, Manny Rolon (Petitioner), filed an Employment

C harge of Discrimination with the Florida Commission on Human

Relations (FCHR), which allege s that h is employer, Bright House

Networks (Respondent), violated section 760.10 , Florida Statutes

(201 2 ), 1/ by discriminating against h im on the basis of national

origin . Respondent terminated PetitionerÓs employment on or

about December 1 9 , 2012.

The allegations were investigated, and on A pril 2 1, 201 4 ,

FCHR issued its Determinati on: No Cause. A Petition for Relief

was filed by Petitioner on May 27 , 201 4 . On May 28, 2014, FCHR

transmitted the case to the Division of Administrative Hearings

for an assignment of an a dministrative l aw j udge to conduct the

hearing .

At the hearing, Petitioner testified on h is own behalf and

offered the testimony of no other witnesses. The following

witnesses testified on behalf of Respondent : Brinkley Ruffin,

Senior Director of Human Resources; Christopher Kranert, Senior

Regional Technical Manager ; and Victor Gomez, Technical

Supervisor. Petitioner's Exhibits 6 through 13, 17, 19 and 20

were admitted into evidence. Respondent's Exhibits 2 through 4,

9, 11 through 13, 15, 23, 27, 28, 30, 31 and 3 2 were admitted

into evidence.

A Transcript of the f inal hearing was filed with the

Division of Administrative Hearings on August 28, 2014 . The

parties each submitted a P roposed R ecommended O r der .

FINDING S OF FACT

1. On or about November 12, 2007, Respondent hired

Petitioner to work as a full - time instal lation technician.

Respondent terminated PetitionerÓs employment on or about

December 1 9 , 2012.

2. Petitioner, who is of Puerto Rican descent, alleges, in

his Charge of Discrimination filed on November 12, 2013, the

following:

My termination from Bright House Networks is

clearly a pretext. As a benefit of being an

employee I received complimentary cable. In

June 2012, I relocated and connected the

complimentary cable to my new residence. I

was never informed upon hire that I could not

connect my compl imentary cable if I

relocated. In November 2012 I advised a

manager that my route was too far from my

residence and he told me to update my address

with the company. Shortly after I did so I

was terminated. I feel I was treated

adversely as similarly si tuated employees

have relocated and connected their own cable.

Based on the foregoing actions of Bright

House Networks described herein, I believe

that I have been discriminated against

including my unlawful termination, based on

my national origin in v iolation of the

Florida Civil Rights Act of 1992, [and] Title

VII of the Civil Rights Act. Due to my

unlawful termination, I have suffered and

continue to suffer severe financial and

emotional damages.

3. RespondentÓs policies and procedures provide in part

that Ð[a]ll full and part - time Bright House Networks employees

are entitled to free cable television service as long as their

home is located within an area served by Bright House Networks.Ñ

The policies and procedures also provide that Ð[f]ree cabl e

service is not transferable to another personÓs residence.Ñ

4. RespondentÓs procedures also provide that

Ð[c]omplimentary service is provided for viewing, monitoring, and

product knowledge by the employee at his/her own personal

residence [and] [t]his benefit is not in any way transferable to

another party or residence.Ñ

5. According to Christopher Kranert and Brinkley Ruffin,

the intent of the policies and procedures governing free cable

television is to allow employees to receive free cable televisi on

service at a single residential address. This is a reasonable

interpretation by Respondent of its policies and procedures.

6. When initially hired by Respondent, Petitioner resided

at 1203 Arrowsmith Avenue , Orlando, Florida (Arrowsmith) , and

this is the address of record for Petitioner that Respondent

maintained in its database of employee addresses. In June 2012

Petitioner moved out of the Arrowsmith property and relocated to

4413 Kirkman Road, Ap artment F205 (Kirkman), which is also in

Orlando, Fl orida. Petitioner did not initially inform Respondent

that he had moved to the Kirkman address. Both the Arrowsmith

and Kirkman addresses are in areas where Respondent provides

cable television service.

7 During PetitionerÓs term of employment, Respond ent

assigned Petitioner a truck that was equipped with a GPS device

which allowed Respondent to approximate the whereabouts of the

vehicle at all times.

8. As an efficiency measure, Respondent, at the beginning

of each workday, assigns service calls to i ts individual

technicians based on a customerÓs proximity to the technicianÓs

home address of record. In furtherance of this efficiency

measure, Petitioner, at the end of each workday, was authorized

to drive his assigned vehicle to his home so that the f ollowing

workday he could leave directly from home and report to his

assigned service call(s).

9. Petitioner noticed , at some point after June 2012, that

the locations for his daily work assignments were a significant

distance from his Kirkman address. This meant that not only did

Petitioner have to wake - up earlier, and drive further, each

morning in order to timely arrive for his service calls, but it

also meant that he drove further when returning home at the end

of each workday. Petitioner complaine d to Respondent about the

distance that he was travelling to and from his daily service

calls.

10 . In investigating PetitionerÓs complaint, Respondent

pulled the GPS data log for the truck assigned to Petitioner.

The GPS data revealed that at the beginn ing and end of each

workday, the truck was parked at a location other than

PetitionerÓs home address of record (Arrowsmith) and that this

apparent anomaly had been happening for a significant period of

time. Armed with this information, Respondent sent tw o of its

employees to the Arrowsmith address for the purpose of finding

out if cable service remained active. The employees confirmed

that cable service for the Arrowsmith address was active and that

the service was listed in PetitionerÓs name.

11. Next , Respondent identified the location where

PetitionerÓs assigned truck was parked at the end of each workday

(Kirkman). Respondent sent employees to the Kirkman address and

determined that the address was receiving cable television

service and that the ad dress was not listed as an active account

in RespondentÓs billing system. Respondent reasonably concluded

that Petitioner was receiving unauthorized cable service at the

Kirkman address while simultaneously receiving authorized cable

service at the Arrows mith address.

12. Petitioner believes that his actions complied with

company policy because, according to Petitioner, the policy

authorizes him to activate service when moving to a new address

without having to notify Respondent. While RespondentÓs poli cies

do not prohibit Petitioner from personally connecting cable

service at his residence, the policies do prohibit Petitioner

from doing so without first notifying Respondent.

13. After consult ing with PetitionerÓs immediate supervisor

Victor Gomez and Brinkley Ruffin, Chris Kranert terminated

PetitionerÓs employment with Respondent.

14. Petitioner alleges that Respondent treated him

differently from another employee that engaged in the exact same

conduct that resulted in PetitionerÓs termination from

employment. PetitionerÓs only evidence in support of this

allegation is a conversation that he overheard between his former

supervisor Allen Summers and Bright House employee M.S., who is

African - American. According to Petitioner, Allen Summers asked

M.S . if he was simultaneously receiving free cable service at

more than one address. M.S. answered the question in the

affirmative and explained to Allen Summers that he (M.S.) forgot

to fill out the paperwork that would have informed Bright House

about the transfer of cable service to M.S.Ós new address.

According to Petitioner, Respondent did not discipline M.S. for

his violation of company policy. Petitioner relies on the

conversation between M.S. and Allen Summers to prove that the

facts asserted in the conversation are true. The referenced

statements attributed to M.S. and Allen Summers are hearsay.

Respondent denies h aving knowledge of any instance where M.S. was

allowed to receive free cable service at multiple addresses.

Respondent did , however, o ffer evidence where two former

employees were terminated as a result of theft of cable

television services. 2/

15. Petitioner offered no evidence that his national origin

played a role in RespondentÓs decision to terminate his

employment. 3/

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this case.

§§ 120.569 , 120.57 , and 760.11, Fla. Stat. (201 4 ).

17. Section 760.10(1) states that it is an unlawful

employment practice for an employ er to discharge or otherwise

discriminate against an individual on the basis of national

origin .

18. FCHR and Florida courts have determined that federal

discrimination law should be used as guidance when construing

provisions of section 760.10. See Va lenzuela 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).

19. In the instant case, Petitioner alleges in h is Charge

of Discrimination that Respondent discriminated again st h im on

the basis of national origin when it "discharged" h im from

employment.

20. Petitioner's asserted claim of discrimination is one of

disparate treatment. The United States Supreme Court has noted

that "'[d]isparate treatment . . . is the most ea sily understood

type of discrimination. The employer simply treats some people

less favorably than others because of their race, color,

religion, sex, or national origin ." Teamsters v. U.S. , 431 U.S.

324, 335, n.15 (1977). Liability in a disparate treat ment case

"depends on whether the protected trait . . . actually motivated

the employer's decision." Hazen Paper Co. v. Biggins , 507 U.S.

604, 610 (1993). "The ultimate question in every employment

discrimination case involving a claim of disparate treat ment is

whether the plaintiff was the victim of intentional

discrimination." Reeves v. Sanderson Plumbing Prods., Inc. , 530

U.S. 133, 153 (2000).

21. Discriminatory intent can be established through direct

or circumstantial evidence. Schoenfeld v. Babb itt , 168 F.3d

1257, 1266 (11th Cir. 1999). Direct evidence of discrimination

is evidence that, if believed, establishes the existence of

discriminatory intent behind an employment decision without

inference or presumption. Maynard v. Bd. of Regents , 342 F.3d

1281, 1289 (11th Cir. 2003).

22. "Direct evidence is composed of 'only the most blatant

remarks, whose intent could be nothing other than to

discriminate' on the basis of some impermissible factor."

Schoenfeld v. Babbitt , supra . Petitioner presente d no direct

evide nce of national origin discrimination.

23. "[D]irect evidence of intent is often unavailable."

Shealy v. City of Albany , 89 F.3d 804, 806 (11th Cir. 1996). For

this reason, those who claim to be victims of intentional

discrimination "a re permitted to establish their cases through

inferential and circumstantial proof." Kline v. Tennessee Valley

Auth. , 128 F.3d 337, 348 (6th Cir. 1997).

24. Where a complainant attempts to prove intentional

discrimination using circumstantial evidence, the shifting burden

analysis established by the U.S. Supreme Court in McDonnell

Douglas v. Green , 411 U.S. 792 (1973), and

Texas Department of Community Affairs v. Burdine , 450 U.S. 248

(1981), is applied. Under this well - established model of proof,

the charging party bears the initial burden of establishing a

prima facie case of discrimination. When the charging party,

i.e., Petitioner, is able to establish a prima facie case, the

burden to go forward shifts to the employer to articulate a

legitimate, n on - discriminatory explanation for the employment

action. See Dep't of Corr. v. Chandler , 582 So. 2d 1183 (Fla.

1st DCA 1991)(court discusses shifting burdens of proof in

discrimination cases). The employer has the burden of

production, not persuasion, an d need only present evidence that

the decision was non - discriminatory. Id. ; Alexander v. Fulton

Cnty. , 207 F.3d 1303 (11th Cir. 2000). The employee must then

come forward with specific evidence demonstrating that the

reasons given by the employer are a p retext for discrimination.

Schoenfeld v. Babbitt , supra , at 1267. The employee must satisfy

this burden of demonstrating pretext by showing directly that a

discriminatory reason more likely than not motivated the decision

or indirectly by showing that th e proffered reason for the

employment decision is not worthy of belief. Dep't of Corr. v.

Chandler , supra , at 1186; Alexander v. Fulton Cnty. , supra .

25. "Although the intermediate burdens of production shift

back and forth, the ultimate burden of per suading the trier of

fact that the employer intentionally discriminated against the

[Petitioner] 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. RT Foods, Inc. , 948 So. 2 d 921, 927 (Fla. 4th

DCA 2007)("The ultimate burden of proving intentional

discrimination against the plaintiff remains with the plaintiff

at all times.").

26. To establish a prima facie case of discriminatory

discharge, a Petitioner must show that: (1) he is a member of a

protected class; (2) he was discharged from employment ; ( 3 ) h is

employer treated similarly situated employees, outside of h is

protected class, more favorably than he was treated ; and (4) he

was qualified to do the job . See McDonnell , supra ; Burke - Fowler

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

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

2003).

27. There is no dispute in the instant proceeding that

Petitioner is a member of a protected class , t hat he was

discharged from employment, and that he was otherwise qualified

to do the job.

28 . As for the issue of whether similarly situated

employees outside of Petitioner's protected class were treated

more favorably, Petitioner must prove that the emp loyees that he

compares h im self to are "similarly situated in all relevant

respects . . . [and in making this determination,] it is

necessary to consider whether the employees are involved in or

accused of the same or similar conduct and are disciplined in

different ways." Holifield v. Reno , 115 F.3d 1555, 1562 (11th

Cir. 1997).

29 . Once the matter has, as in the instant case, been fully

tried, "it is no longer relevant whether the plaintiff actually

established a prima facie case [and] . . . the only re levant

inquiry is the ultimate, factual issue of intentional

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

F.3d 974, 978 (11th Cir. 1994)(citing U.S. Postal Serv. Bd. of

Governors. v. Aikens , 460 U.S. 711, 714 - 15 (1983)). However, the

issu e of whether a Petitioner Ðactually established a prima facie

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

constitutes some circumstantial evidence of intentional

discrimination.Ñ Green , 25 F.3d at 978 .

3 0 . Petitioner failed to show that he and M.S. , the

employee to whom Petitioner compares h im self, are similarly

situated . PetitionerÓs hearsay testimony about a conversation

that he overheard regarding the alleged status of M.S.Ós cable

service is not sufficient to establish that M.S. is a n

appropriate comparator for purposes of PetitionerÓs claim.

Section 120.57(1)(c), Florida Statutes (2014), makes clear that

hearsay evidence Ðmay be used for the purpose of supplementing or

explaining other evidence, but it shall not be sufficient in

its elf to support a finding unless it would be admissible over

objection in civil actions.Ñ Petitioner has not cited any

exception to the hearsay rule that would allow for the

consideration of the hearsay testimony regarding M.S.Ós cable

service. Accordingl y, Petitioner has failed to offer sufficient

proof establishing that a similarly situated employee outside of

PetitionerÓs protected class was treated more favorably by

Respondent.

31. Notwithstanding PetitionerÓs failure to offer either

direct or circum stantial evidence of discrimination, Respondent,

nevertheless, offered a legitimate, non - discriminatory

explanation for the termination of PetitionerÓs employment, to

wit: that Petitioner was terminated because he was

simultaneously receiving complimentar y cable service at two

addresses in violation of company policy. Petitioner argues that

his alleged violation of RespondentÓs company policy is pre -

textual because employee M.S. was treated more favorably under

similar circumstances. As previously explai ned, there is no

evidence that M.S. was treated more favorably by Respondent than

was Petitioner.

3 2 . Having considered all of the evidence of record, it is

not reasonable to infer that Petitioner was the victim of

unlawful discrimination. Accordingly, Petitioner has failed to

satisfy h is burden of proof in this matter.

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 finding that Respondent , Bright

House Networks , did not commit an unlawful employment practice as

alleged by Petitioner, Manny Rolon , and denying Petitioner's

Charge of Discrimination.

DONE AND ENTERED this 22nd day of September , 2014 , in

Tallahassee, Leon County, Florida.

S

LINZIE F. BOGAN

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 wit h the Clerk of the

Division of Administrative Hearings

this 22nd day of September , 2014 .

ENDNOTE S

1/ All subsequent references to Florida Statutes will be to 2012,

unless otherwise indicated.

2/ Former Bright House employee A.B. was terminated when

R espondent discovered that he had complimentary active cable

service at more than one address. Additionally, former Bright

House employee E.M. was terminated for unauthorized use of

company equipment when Respondent discovered that company test

equipment a ssigned to E.M. was used to download several pay - per -

view movies.

3/ Victor Gomez, who was PetitionerÓs immediate supervisor when

PetitionerÓs employment was terminated, identifies his national

origin as Columbia, South America. Petitioner implies in th e

Charge of Discrimination that PetitionerÓs national origin was a

factor in Victor GomezÓs decision to support the termination of

PetitionerÓs employment. On cross - examination , however,

Petitioner admitted that Mr. Gomez could have been motivated to

reco mmend termination of PetitionerÓs employment for any number

of reasons, including the way Petitioner Ðsmells , Ñ Ðthe way

[Petitioner] walks,Ñ or because Petitioner told Mr. Gomez to

Ðleave me alone, IÓm on lunch.Ñ

COPIES FURNISHED:

Manny Rolon

Apartment 205

4413 South Kirkman Road

Orlando, Florida 32811

Julie Sitler, Esquire

Sabin, Bermant and Gould, LLP

Four Times Square

New York, New York 10036

Benjamin D. Sharkey, Esquire

Jackson Lewis LLP

Suite 902

501 Riverside Avenue

Jacksonville, Florida 32202

(eServed)

Lillian C. Moon, Esquire

Jackson Lewis LLP

Suite 1285

390 North Orange Avenue

Orlando, Florida 32801

(eServed)

Cheyanne Michelle Costilla, General Counsel

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Flo rida 32301

(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

wi ll issue the Final Order in this case.