14-002524 Terry R. Douglas vs. Gulf Coast Enterprise Status: Closed Recommended Order on Wednesday, August 27, 2014.

Summary: Petitioner did not establish prima facie case for discrimination; the employer's actions were justified anyway.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TERRY R. DOUGLAS,

Petitioner,

vs. Case No. 14 - 2524

GULF COAST ENTERPRISE,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on July 25, 2014, in Pensacola, Florida, before

Administrative Law Judge R. Bruce McKibben of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Terry R. Douglas, pro se

7591 West Highway 98, Apartment 9B

Pensacola, Florida 32506

For Respondent: Breanna H. Young, Esquire

Starnes Davis Florie, LLP

100 Brookwood Place, 7th Floor

Post Office Box 598512

Birmingham, Alabama 35259

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent, Gulf Coast

Enterprise (GCE), discriminated against Petitioner, Terry R.

Douglas, based on his race -- African - American -- or his disability --

hea ring impairment.

PRELIMINARY STATEMENT

Douglas filed a Petition for Relief from an Unlawful

Employment Practice with the Florida Commission on Human

Relations (FCHR) dated May 21, 2014. FCHR forwarded the Petition

to the Division of Administrative Hear ings for assignment of an

Administrative Law Judge to conduct a formal administrative

hearing. Upon notice to all parties, a formal hearing was held

at the time, date, and place shown above.

At the final hearing, Douglas appeared on his own behalf.

He provided sworn oral testimony and called one additional

witness, Cicily Mathis. Douglas did not offer any exhibits into

evidence. GCE was represented by counsel and by a corporate

representative, Angie Kahiapo, director of employee relations.

GCE calle d four witnesses: Kahiapo; Shelley Prater, employee

relations specialist; Paul Markham, assistant building manager;

and Alan Harbin, senior employee relations specialist. Exhibits

1, 3, 6, 8 - 11, 13 - 17, and 19 offered into evidence by GCE were

admitted.

A T ranscript of the final hearing was filed at DOAH on

August 12, 2014. By rule, the parties had 10 days to submit

proposed recommended orders (PROs) to be considered in the

preparation of a r ecommended o rder. GCE filed its PRO on

August 22, 2014; as o f the date of this Recommended Order,

Douglas had not filed a PRO.

FINDING S OF FACT

1. Petitioner, Terry R. Douglas (Douglas) is an African -

American male. He is hard of hearing and uses hearing aids (when

he can afford the batteries) and relies upon i nterpretive sign

language when it is available. 1/

2. At all times relevant hereto, Douglas worked as a food

line server under the employ of GCE, which is a division of

Lakeview Center, Inc., an affiliate of Baptist Health Care. The

stated purpose of G CE is " to operate a successful business which

will provide meaningful employment to persons with disabilities

in accordance with the requirements of the AbilityOne Program. "

AbilityOne is a program that creates jobs and training

opportunities for people w ho are blind or who have other severe

disabilities, empowering them to lead more productive and

independent lives. GCE is an equal opportunity employer and does

not discriminate on the basis of race, color, national origin,

religion, gender, age, marital status, disability, or any other

category protected by law.

3. Douglas had been previously employed by GCE in 2010 as a

custodian but voluntarily resigned to pursue employment

elsewhere. He briefly took a job in the Orlando area, then went

to Memphis f or about one year. When he returned to Pensacola he

took a position with GCE commencing May 9, 2013 , in the food

service division. He was hired to work the night shift, from

7:00 p.m. , until approximately 1:30 a.m. As part of being hired

anew by GCE, Do uglas filled out an " Employee Self - Identification

Form " in order to advise GCE of his status within a protected

class. Douglas identified himself as an individual with a

disability but stated that there were no accommodations which GCE

needed to provide i n order to improve his ability to perform his

job.

4. When Douglas recommenced employment with GCE in

May 2013, he went through employee orientation. He received

copies of the Employee Handbook and various written policies

addressing issues such as dis crimination, harassment, drug - free

workplace, etc. He was also provided training on the GCE Code of

Conduct and Respect in the Workplace policies.

5. Douglas ' job entailed preparing and/or serving food at

the cafeteria in Building 3900 at the Pensacola Naval Air Station

(NAS). He was by all accounts a good employee, a hard worker,

and gained the respect of his supervisor, Prospero Pastoral

(called " Mr. Pete " by most employees). In fact, when Mr. Pete

was going to take an extended vacation to visit his home in the

Philippines, Douglas was selected as one of the individuals to

take over some of Mr. Pete ' s duties in his absence. Douglas got

along well with his fellow employees and co - workers.

6. Douglas ' supervisors were Mr. Pete and Paul Markham, the

a ssistant building manager of Building 3900. Douglas had a good

relationship with Markham when he first started work ing in food

service, but (according to Douglas) they did not get along so

well later on. There did not appear to be any overt animosity

bet ween the two men during the final hearing.

7. In November 2013 , Markham was advised by the kitchen

manager that some food items (including several hams) were

missing from the kitchen inventory. It was suspected that some

night shift employees may have b een stealing the food items.

Markham was asked to investigate and see if there was any

suspicious behavior by any employees.

8. On the evening of November 22, 2013, Markham changed

from his work uniform into civilian clothes just prior to

midnight. H e then drove to a parking lot just behind Building

3900 and sat inside his darkened vehicle. He had driven his

wife ' s car to work that day so that his pickup truck (which

employees would recognize) would not alert others to his

presence.

9. At around mi dnight, he saw two employees

(Gerry Riddleberger and Andy Bartlett) sitting outside Building

3900 talking. He could see Douglas in the building through the

window. A few minutes later, Douglas exited the building

carrying a large black garbage bag. Mark ham got out of his car

and walked toward Douglas. As he approached, Markham began to

" chat " with Douglas about trivial things. He asked how he was

doing; he asked where Ira (another employee) was; he made small

talk. 2/

10. Finally, Markham asked Doug las what was in the bag.

Douglas responded that " these are tough times " and that " I have

to take care of my family. " He then opened the bag and showed

Markham the contents therein. The bag contained numerous bags of

potato chips and snacks, some bananas , packets of coffee creamer,

and other small items.

11. Markham asked Douglas to hand over the bag and he did

so. He then asked Douglas for his badge and access key. When

Douglas handed those over, Markham told him to leave the NAS and

he would be hear ing from the GCE human resources/employee

relations department (HR). Douglas left the base and Markham

waited around a while to see if any other employees were carrying

suspicious items. Not observing any other sus pect behavior,

Markham concluded his inv estigation for that evening.

12. The next day, Markham handed over the bag and Douglas '

badges to HR. It was determined by HR that Douglas ' attempted

theft of the property constituted just cause for termination of

his employment with GCE. The HR office notified Douglas of the

decision to terminate his employment. Douglas thereafter visited

the HR office to ask that the decision be reconsidered. Douglas

was told that the process for reconsideration was to submit, in

writing, his statement of the reason s and whether there were

mitigating factors to be considered.

13. Douglas submitted a four - page request for

reconsideration to Kahiapo, director of employee relations, dated

December 2, 2013. In the letter, Douglas admitted to the theft

but rationaliz ed that other employees were stealing food as well.

He said he had seen Markham taking boxes out of storage and

putting them in his truck, but did not know what the boxes

contained. He said a blonde worker on the food line ate food

from the serving line, but had no details about the allegation.

He complained that other workers had been caught stealing but had

not been terminated from employment. He alleged that a worker

(Jeanette) stole a bag of bacon and only got suspended. Markham

had no support or i ndependent verification of the allegations.

14. GCE had one of its employee relations specialists,

Alan Harbin, review Douglas ' reconsideration letter and

investigate the allegations found therein. All of the

allegations were deemed to be unfounded. There was a worker

named Jeanette who had been suspended for eating an egg off the

serving line, but this did not comport with Douglas ' allegation.

15. When Harbin ' s findings were reported to HR, Kahiapo

notified Douglas via letter dated December 18, 2 013, that his

request for reconsideration was being denied. The termination of

employment letter was not rescinded. The decision by HR was in

large part due to the zero tolerance policy against theft adhered

to by GCE. The GCE Employee Handbook contains the following:

In accordance with the general " at will "

nature of employment with GCE, generally,

employees may be discharged at any time, and

for any reason.

* * *

An employee may be discharged on a first

offense and without prior disciplinary a ction

i f the violation so warrants.

* * *

Conduct that may result in immediate

termination of employment includes, but is

not limited to:

* * *

[12] Theft, pilfering, fraud or other forms

of dishonesty.

16. It is clear -- and Douglas admits -- that Douglas was

guilty of theft. He attempted to steal a bag of food items from

the building in which he worked.

17. During his term of employment, Douglas never made any

claim concerning discrimination against him or anyone else due to

his race, African - American. He was never mistreated or treated

differently than any other employee by his supervisors.

18. Douglas did not have any problem doing his job. His

disability, being hard of hearing, did not adversely affect his

employment. He never asked f or any accommodation to do his job

or suggested to anyone that his disability interfered with his

ability to perform his duties.

19. There are simply no facts in this case upon which a

claim of discrimination could reasonably be based.

CONCLUSIONS OF L AW

20. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to sections 120.569 and 120.57(1), Florida

Statutes. Unless otherwise specified herein, all references to

Florida Statute s shall be to the 2013 codification.

21. The Florida Civil Rights Act of 1992 (the " Act " ) is

codified in sections 760.01 Î 760.11, Florida Statutes. The Act ' s

general purpose is " to secure for all individuals within the

state freedom from discrimination b ecause of race, color,

religion, sex, national origin, age, handicap, or marital status

and thereby to protect their interest in personal dignity, to

make available to the state their full productive capacities, to

secure the state against domestic strife and unrest, to preserve

the public safety, health, and general welfare, and to promote

the interests, rights, and privileges of individuals within the

state. " § 760.01, Fla. Stat. When " a Florida statute [such as

the Act ] is modeled after a federal law o n the same subject, the

Florida statute will take on the same constructions as placed on

its federal prototype. " Brand v. Fl a. Power Corp. , 633 So. 2d

504, 509 (Fla. 1st DCA 1994). Therefore, the FCRA should be

interpreted, where possible, to conform t o Title VII of the Civil

Rights Act of 1964, which contains the principal federal anti -

discrimination laws.

22. Section 760.10, provides, in relevant part:

(1) It is an unlawful employment practice for

an employer:

(a) To discharge or fail to 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, national origin,

age, handicap, or marital st atus.

23. 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. Denney v. City of Albany , 247 F.3d 1172, 1182 (11 th

Cir. 2001); Holifield v. Reno , 115 F.3d 1555, 1561 (11 th Cir.

1997). But courts have held that " only the most blatant remarks,

whose intent could be nothing other than to discriminate " s atisfy

this definition. Damon v. Fleming Supermarkets of Fla., Inc. ,

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

omitted), cert . denied , 529 U.S. 1109 (2000).

24. In the absence of direct evidence, the law permits an

inference of discri minatory intent, if complainants can produce

sufficient circumstantial evidence of discriminatory animus, such

as proof that the charged party treated persons outside of the

protected class (who were otherwise similarly situated) more

favorably than the co mplainant was treated. Such circumstantial

evidence constitutes a prima facie case.

25. In McDonnell Douglas Corp oration v. Green , 411 U.S.

792, 802 - 803 (1973), the U.S. Supreme Court explained that the

complainant has the initial burden of establishing by a

preponderance of the evidence a prima facie case of unlawful

discrimination. Failure to establish a prima facie case of

discrimination ends the inquiry. See Ratliff v. State , 666 So.

2d 1008, 1012 n.6 (Fla. 1 st DCA 1996 ), aff ' d , 679 So. 2d 1183

(Fl a. 1996). If, however, the complainant succeeds in making a

prima facie case, then the burden shif t s to the accused employer

to articulate a legitimate, non - discriminatory reason for its

complained - of conduct. This intermediate burden of production,

not persuasion, is " exceedingly light. " Turnes v. Amsouth Bank ,

N.A. , 36 F.3d 1057, 1061 (11 th Cir. 1994). If the employer

carries this burden, then the complainant must establish that the

proffered reason was not the true reason but merely a pretext for

dis crimination. St. Mary ' s Honor Ctr . v. Hicks , 509 U.S. 502,

516 - 518 (1993). At all times, the " ultimate burden of persuading

the trier of fact that the [charged party] intentionally

discriminated against " him remains with the complainant. Silvera

v. Oran ge Co. Sch. Bd. , 244 F.3d 1253, 1258 (11 th Cir. 2001).

26. To establish a prima facie case of employment

discrimination in the present matter, Douglas is required to show

that he " (1) is a member of a protected class; (2) was qualified

for the position; (3) was subject to an adverse employment

action; and (4) was replaced by someone outside the protected

class, or, in the case of disparate treatment, shows that other

similarly situated employees were treated more favorably. "

Taylor v. On Tap Unlimited, I nc. , 282 Fed. Appx. 801, 803 (11 th

Cir. 2008).

27. There is no dispute that Douglas belongs to a protected

class due both to his race and his disability. As such, Douglas

satisfied the first prong of a prima facie case of employment

discrimination.

28. As to the second prong, there is no dispute that

Douglas had the skills necessary to perform his duties and did an

admirable job.

29. The termination of his employment constitutes an

adverse employment action, so Douglas satisfies the third prong

as we ll.

30. Finally, with respect to the fourth prong, Douglas

provided no competent evidence that he was treated any

differently than other similarly situated workers. His

allegations concerning other employees failed to establish that

they were similarly situated. His allegations were also

completely hearsay in nature, with no corroborating evidence to

substantiate his claims.

31. Based upon these facts, Douglas failed to establish a

prima facie case of employment discrimination, and the burden of

pr oduction never shifted to GCE to articulate a legitimate, non -

discriminatory reason for the termination of employment.

32. Nonetheless, GCE offered its legitimate reasons for

terminating the employment action it took against Douglas. He

was fired for st ealing food. Even Douglas admitted that he was

guilty of stealing the food and that it was wrong to do so. It

is also clear that the GCE Employee Handbook lists theft as a

basis for terminating an employee ' s employment.

33. Though not necessary or rele vant due to the foregoing,

Douglas then attempted to prove that GCE ' s stated basis for

terminating Douglas ' employment was mere pretext. He attempted

to prove that others similarly situated had been treated

differently. His hearsay evidence failed to sub stan tiate any

such claim. Hearsay cannot be used as the sole basis for a

finding of fact, unless the hearsay would be admissible over

objection in civil actions; such hearsay can only be used to

supplement or explain admissible evidence. § 120.57(1)(c) , Fla.

Stat.; Fla. Admin. Code R. 28 - 106.213(3).

34. Even if hearsay evidence could be used to support

findings of fact, Douglas failed to prove that any other

employees were " similarly situated. " In order to prove they

were, Douglas would have to show th at the employees are

" similarly situated in all relevant respects, " including that

they were " involved in or accused of the same or similar conduct "

as Douglas for which they were treated more favorably. Holifield

v. Reno , 115 F.3d 1555, at 1562. Douglas claimed that a woman

had stolen bacon and only been suspended. He said a man had

stolen a pie but had not been fired. He said Markham put boxes

in his truck but was not penalized. None of these allegations

would have established that the employees were " similarly

situated, " even if they had been proven by competent evidence.

35. Douglas failed to meet his burden of proving a prima

facie case of discrimination based on his race or disability.

That failure ends the inquiry. See Ratliff v. State , 666 So. 2 nd

1008, 1012 n.6 (Fla. 1 st DCA) ( citing Arnold v. Burger Queen

Systems , 509 So. 2d 958 (Fla. 2d DCA 1987)), aff ' d , 679 So. 2d

1183 (Fla. 1996).

36. Even if Douglas had established a prima facie case, GCE

met its burden of articulating legitimate r easons for terminating

Douglas ' employment with the company that had nothing to do with

race or handicap.

37. Further, Douglas could have been terminated for any

reason or no reason at all under the GCE policies in existence.

An " employer may fire an em ployee for a good reason, a bad

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

all, as long as its action is not for a discriminatory reason. "

Nix v. WLCY Radio/Rahall Comm c ' n , 738 F. 2d 1181, 1187 (11 th Cir.

1984).

38. Douglas appears to be a nice, sincere young man and has

shown remorse for attempting to steal food from his employer. He

understands the wrong he committed, but wishes he could have a

chance to redeem himself. That request is between Douglas and

GCE . In the present case, under the facts presented, there is no

basis for finding that GCE discriminated against Douglas in any

fashion.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by the Florida

Commission on Human Relations, upholding its determination that no

cause exists for a finding of discrimination against Petitioner,

Terry R. Douglas, by Re spondent, Gulf Coast Enterprise .

DONE AND ENTERED this 27th day of August , 2014 , in

Tallahassee, Leo n County, Florida.

S

R. BRUCE MCKIBBEN

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 27th day of August , 2014 .

ENDNOTE S

1/ Prior to the final hearing in this matter, Douglas requested

that a sign interpreter be provided at final hearing to insure

tha t he could " hear " everything said. An interpreter was located

by DOAH and contracted to appear. On the evening prior to final

hearing, the interpreter notified DOAH that he would not be able

to attend the hearing until 11:30 a.m. (the hearing was schedul ed

to begin at 9:00 a.m. CDT). On the morning of the final hearing,

the interpreter notified DOAH that he would not be able to attend

the final hearing at all. Upon Douglas ' arrival, and in the

presence of counsel for Respondent, the ALJ explained the

si tuation to Douglas. After a brief conversation wherein Douglas

appeared able to comprehend and respond to the ALJ, it was decided

to attempt to conduct the hearing without use of the interpreter.

The hearing room was quite small and all parties were with in six

feet of each other. The hearing was commenced and the ALJ found

that Douglas was able to follow the testimony and statements of

counsel without difficulty.

2/ Douglas claims that the inquiry about Ira was discriminatory

because Ira was African - Am erican. Thus, reasoned Douglas, Markham

was only concerned with possible theft by non - Caucasian workers.

But as Markham explained, he asked about Ira because the only

other employees were already sitting outside and there was no

reason to inquire about t heir whereabouts. Douglas ' allegation of

discrimination is not convincing or based on any supportive facts.

COPIES FURNISHED:

Terry R. Douglas

7591 West Highway 98 , Apartment 9B

Pensacola, Florida 32506

Breanna H. Young, Esquire

Starnes Davis Flori e, LLP

100 Brookwood Place, 7th Floor

Post Office Box 598512

Birmingham, Alabama 35259

Cheyanne Michelle Costilla, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway , Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO S UBMIT 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.