14-003387 Reggie Dancy vs. Precision Tune Auto Care Status: Closed Recommended Order on Monday, December 29, 2014.

Summary: Petitioner failed to prove that Respondent discriminated against him on the basis of his race, or by acts that created a sexually hostile work environment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

REGGIE DANCY ,

Petitioner ,

vs. Case No . 1 4 - 3387

PRECISION TUNE AUTO CARE ,

Respondent .

/

RECOMMENDED ORDER

Pursuant to notice, this case was heard on November 12,

2014 , by video teleconference at sites in Tallahassee and

Pensacola, Florida, before E. Gary Early, a designated

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: R eggie Dancy , pro se

6 881 Twiggs Lane

Pensacola, Florida 32505

For Respondent: Kelly B. Holbrook, Esquire

Broad and Cassel

100 North Tampa Street , Suite 3500

Tampa, F lorida 33602

STATEMENT OF THE ISSUE

Whether the Petitioner was subject to an unla wful

employment practice by Respondent, Precision Tune Auto Care , on

account of his r ace , or a result of a sexually abusive work

environment in violation of s ection 760.10, Florida Statutes.

PRELIMINARY STATEMENT

On January 2, 2014, Petitioner, R eggie Dan cy (Petitioner) ,

filed a n Employment C omplaint of D iscrimination , dated

December 29, 2013, w ith the Florida Commission on Human

Relations (FCHR) in which he alleged that Respondent, Precision

Tune Auto Care ( Precision or Respondent ) , violated s ection

760.1 0, by discriminating against h im on the basis of h is r ace ,

and by sexual harassment that created a sexually hostile or

offensive work environment .

On July 1, 2014 , 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 July 21, 2014 ,

Petitioner filed a Petition for Relief with the FCHR . The

Petition was transmitted to the Division of Admini strativ e

Hearings to conduct a final h earing.

T he final hearing was originally set for September 18,

2014. It was twice - continued, re - set for November 12, 2014 , and

held as scheduled.

At the final hearing, Petitioner testified on his own

behal f . Petitioner Ó s Exhibits 1 through 6 were received into

evidence. Respondent presented the testimony of Gregory Geiger ,

PrecisionÓs Assistant District Manager; Michael McCoy, a

Precision lead technician; Rio Jones, the receptionist at

several Precision facilities, inc luding the 9th Avenue facility

at which Petitioner worked; Scott Gerhardt, PrecisionÓs part -

owner and District Manager; Anthony Hale, who at all times

relevant hereto was a Precision technician and former manager;

and Krystal Abbott, manager of PrecisionÓs 9th Avenue facility.

R espondentÓs Exhibits 1 through 3, and 6 through 16 were

received into evidence.

A one - volume Transcript of the hearing was filed on

December 4 , 2014 . The parties timely filed their post - hearing

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

preparation of this Recommended Order. References to statutes

are to Florida Statutes (201 4 ) unless otherwise noted.

FINDINGS OF FACT

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

matter , an employee of Respondent , is an African - American male .

2 . Precision owns and operates five automobile service

facilities in northwest Florida. They are generally referred to

as the 9th Avenue (Pensacola) facility, the 9 - Mile (Pensacola)

facility, the Navy Boulevard (Pensacola) facility, the Fort

Walton Beach facility, and the Crestview facility. Though there

was no direct testimony as to the number of persons employed by

Precision, the evidence is persuasive that each facility has a

minimum of 4 to 6 full - time employees. There fore, there is

sufficient competent, substantial evidence to establish that

Respondent employs more than 15 full - time employees at any given

time.

PetitionerÓs Hiring

3 . On June 14, 2013, Petitioner started work at

RespondentÓs 9th Avenue location in Pen sacola, Florida , as a

lube - tech.

4 . When Petitioner was hired, Ms. Abbott was the manager

of the 9th Avenue location, having started in that position in

April 2013.

5 . Petitioner was not hired by Ms. Abbott. Rather,

Mr. Geiger interviewed Petitione r and approved his hiring for

the 9th Avenue lube - tech position.

6 . Prior to his employment at the 9th Avenue facility,

Petitioner worked at RespondentÓs Navy Boulevard facility. He

was there for a single day. The circumstances of his departure

were no t explained.

7 . When Petitioner started work at 9th Avenue, he was

provided with employee procedures handbooks issued by Respondent

and by Lyons HR, Respondent Ó s payroll management company. Both

handbooks contained policies prohibiting sexual harassment , and

provided means for reporting complaints. On June 6, 2013,

Petitioner signed written acknowledgement pages for each of the

handbooks.

8 . RespondentÓs employee procedures handbook had been

revised in March 2013. T he written acknowledgement page sig ned

by Petitioner for RespondentÓs employee procedures handbook was

for a n earlier revision . T he evidence was persuasive that the

page signed by Petitioner was one of a stack Ðkept in a drawerÑ

for that purpose , a stack that had not been replaced when the

handbook was updated. The preponderance of the evidence

supports a finding that Petitioner received the employee

procedures handbooks issued by Respondent and Lyons HR . In

addition, current handbooks were available at each of

RespondentÓs facilities for the employeesÓ use.

9 . Petitioner alleg ed in his Employment Complaint of

Discrimination that he was hired at 9th Avenue because it was

the only one of RespondentÓs locations at which African -

Americans were employed , which Petitioner attributed to

Ms. A bbottÓs alleged desire Ð to be with a black guy . Ñ 1/ The

preponderance of the evidence establishes that Respondent

employed African - American workers at its other locations, in

positions including those of manager and technician.

10. Lube - techs are employ ed by Respondent to perform oil

changes. As they gain experience, they may be assigned to

perform simple maintenance work .

1 1 . Technicians are employed by Respondent to perform a

range of automotive repairs. Technicians are required to own a

set of mec hanicsÓ tools sufficient to perform more complex work ,

involving mechanical work, repair and replacement of water

pumps, power steering pumps and the like .

12. When he was hired as a lube - tech at 9th Avenue ,

Petitioner had neither the skills nor the to ols to perform work

as a technician .

1 3 . When he started work, Petitioner was perceived as a

very good employee, doing work without being asked, cleaning,

and generally doing extra work around the facility. As a

result, Petitioner received a raise of 25 cents per hour after

six - to - eight weeks on the job.

1 4 . Technician work is desirable because technicians have

the ability to earn commissions. Petitioner soon began asking

for technician work. His requests were refused. Although

Petitioner was al lowed to do some extra work, Mr. Geiger

believed that he was not ready to be a full - time technician .

1 5 . On August 5, 2013, Morgan Hancock was hired as a

technician at 9th Avenue. He had previously been a technician

at another Precision facility. Pet itioner felt as though he

should have been given the opportunity to work as a technician,

and there began to be friction between Petitioner and

Mr. Hancock.

1 6 . As a result of the perceived slight at his not being

promoted to technician, Petitioner began to exhibit a Ðbad

attitudeÑ and his performance began to Ðslack off.Ñ His

willingness to do more undesirable tasks that were expected of

all employees, including cleaning, deteriorated over the ensuing

weeks. H e made several requests to transfer to a te chnicianÓs

position at other Precision facilities , discussing the matter

with both Ms. Abbott and Mr. Geiger. The dates of the verbal

requests are unclear, though it appears that one was made on

September 5, 2013 , and one was made to Mr. Geiger within two

weeks prior to PetitionerÓs November 20, 2013 , termination .

1 7 . The evidence is persuasive that the requests to

transfer were denied for a number of non - discriminatory reasons.

First, as set forth above, Petitioner did not have sufficient

skills or a n adequate set of tools to work as a technician.

Second, Precision had been cutting back on employees, and there

were no positions open at the other facilities for someone of

PetitionerÓs level of skill and experience. Finally, one of

PetitionerÓs reques ts was for a transfer to the Navy Boulevard

facility. Petitioner had previously worked there for a short

period, and the manager simply did not want him back. There is

no evidence to support a finding that PetitionerÓs requests for

transfer were denied a s a result of some racial animus, or as a

result of Ms. Abbot t Ós alleged sexual desire for Petitioner.

1 8 . By the time Petitioner was at the end of his 90 - day

probationary period, his performance was such that he did not

receive a discretionary salary in crease. The evidence is

persuasive that the decision was based on PetitionerÓs

increasingly poor job performance and not, as alleged by

Petitioner, retaliation by Ms. Abbott for PetitionerÓs failure

to satisfy her sexual requests.

1 9 . On September 26, 2 013, at PetitionerÓs request,

Ms. Abbott wrote a letter on Precision letterhead stating that

Petitioner had worked for Precision since August 6, 2012.

Petitioner had, in fact, started work for Precision in

June 2013. Petitioner characterized the letter a s evidence of

Ms. AbbottÓs willingness to falsify a document as a means of

gaining favor with Petitioner, and as an enticement for

Petitioner to provide sexual favors. Ms. Abbott testified,

convincingly, that Petitioner asked her to write the letter so

he could show one year of Florida residency, and therefore

qualify for in - state tuition at George Stone, a technical center

in Pensacola , where he wanted to take classes to gain skills to

be a technician . She wanted to help him, and so wrote the

letter know ing it to be false. Mr. McCoy witnessed Ms. Abbott

giving the letter to Petitioner, and testified it was

accompanied by no suggestive remarks. Her agreement to write

the letter on PetitionerÓs behalf was ill - advised, and up on its

discovery, she was repri manded by Mr. Gerhardt. The letter does

not, by any means, suggest that Respondent or Ms. Abbott

discriminated against Petitioner in any way , or that Ms. Abbott

used the letter as an inducement for Petitioner to provide her

with sexual favors .

20 . On Oc tober 7, 2013, Bret Ramsey was hired at 9th

Avenue. Mr. Ramsey , who is Caucasian, was a technician who had

previously worked at RespondentÓ s Navy Boulevard location.

Mr. Ramsey worked at 9th Avenue for two weeks , at which time he

transferred back to Navy Boulevard. Mr. Geiger could not

remember the reason for Mr. RamseyÓs transfer , but assumed that

Navy Boulevard was in need of an experienced and qualified

technician. As to whether Petitioner would have been a suitable

candidate for the transfer, Mr. Ge rhardt testified credibly that

the manager of the Navy Boulevard location would not accept

Petitioner due to his past employment there. Mr. RamseyÓs

transfer does not support a finding that Respondent

discriminated against Petitioner on the basis of his r ace, or

that Ms. Abbott was ÐkeepingÑ Petitioner at 9th Avenue to

satisfy her sexual urges.

21 . Respondent required its employees to Ð clock - out Ñ for

their lunch hour and leave the premises. By so doing, it was

easier to ensure that work hours were not confused with off - duty

lunch hours and to Ðkeep payroll straight.Ñ RespondentÓs policy

was applied evenly to all employees.

2 2 . Ms. Abbott would occasionally b u y lunch for all of the

employees at 9th Avenue, either when they were busy, or as

thanks for their hard work. Petitioner characterized

Ms. AbbottÓs acts of kindness and gratitude towards the

employees of 9th Avenue as Ð buying me expensive lunchesÑ to

induce c ooperation with her requests for sexual favors, a

characterization that finds no evident iary support.

2 3 . Petitioner testified that Ms. Abbott would come to

work drunk. Aside from the fact that Ms. AbbottÓs state of

sobriety, or lack thereof, has no bearing on whether Petitioner

was subject to racial discrimination or sexual harassment, t he

evidence was insufficient to support PetitionerÓs claim.

2 4 . Petitioner testified that Ms. Abbott cut his hours as

retaliation for his failure to submit to her sexual advances.

The time records for Petitioner demonstrate s that Petitioner

worked 40 - ho ur s plus overtime on 19 of the 23 weeks that he was

employed at 9th Avenue, including five of his last six full

weeks of employment. The other four weeks ranged from 35.90 to

38.68 hours per week. Thus, there is nothing to support the

assertion that Peti tionerÓs hours were cut for any reason.

PetitionerÓs supposition that Ms. Abbott m ay have altered his

time records -- which records are managed and kept by Lyons HR -- is

not persuasive .

PetitionerÓs Termination

2 5 . On November 18, 2013, Ms. Abbott , after having spent

the day cleaning the service pits, instructed employees to place

all cars needing service on the facilityÓs lift racks, and not

over the pits. That day, Petitioner pulled a car into position

over a pit. Mr. McCoy advised Petitioner that Ms. Abbott had

instructed that all cars were to be put on a rack. Petitioner

responded to the effect that if Ms. Abbott wanted the car

racked , she could rack it herself, sprinkling his response with

some choice profanities. His response was loud enough that

Ms. Abbott could overhear it through the window between the shop

and the reception area.

26 . As a result of what Ms. Abbott understandably

perceived as insubordination, she prepared a written warning

based on the fact that Ðemployee was told multiple ti mes to

place vehicles on lifts not over pit [and] refused.Ñ She

presented the Discipline/Discharge Form to Petitioner, who

refused to sign the form to acknowledge receipt. Mr. McCoy was

called in to witness that Petitioner refused to sign the

warning. P etitioner became argumentative with Ms. Abbott, who

then instructed him to go home for the day. Upon leaving the

premises, Petitioner Ðpeeled outÑ of the parking lot , spraying

gravel in the direction of other parked cars . By that time,

Ms. Abbott had cal led Mr. Geiger to discuss the circumstances of

the written warning. Mr. Geiger was able to hear the sound of

PetitionerÓs exit from the premises. That act was taken by

Mr. Geiger and Ms. Abbott as a second instance of misconduct

warranting discipline.

2 7 . Ms. Abbott discussed the situation regarding

Petitioner with Mr. Geiger and Mr. Gerhardt. The decision was

made by the t h ree of them , based upon that dayÓs behavior and

PetitionerÓs increasingly bad attitude, that Ms. Abbott should

terminate Petitione r from employment.

2 8 . November 19, 2013 , was a scheduled day off for

Petitioner. When Petitioner returned to work on November 20,

2013, he presented Ms. Abbott with a letter in which he

requested a transfer to another Precision location. In his

letter , he indicated that he had previously discussed a transfer

with Ms. Abbott because of Ðlack of communication, lack of

supervision, lack of procedure standards and underlying

personality conflicts.Ñ No mention was made of any

discriminatory or sexually ina ppropriate actions on the part of

Precision or Ms. Abbott . Petitioner requested that Ms. Abbott

sign the transfer request to acknowledge receipt, which she did.

Her acknowledgement of receipt of the transfer request does not

support a finding that Respon dent or Ms. Abbott discriminated

against Petitioner.

2 9 . Ms. Abbott advised Petitioner that a transfer was out

of the question, and that he was being terminated from

employment. Petitioner demanded that she give him a copy of his

termination papers. M s. Abbott advised that he would be faxed

his Termination Record by RespondentÓs human resources

department. Petitioner then left the premises. He was

subsequently sent a copy of the Termination Record as stated.

Uniform Return

30 . When Petitioner left the employ of Respondent, he

failed to return the company - issued uniforms , valued at $466.00 .

On January 6, 2014, a fter several verbal attempts by Ms. Abbott

to recover the uniforms, Mr. Gerhardt sent a certified letter to

Petitioner at his address of rec ord. The address to which the

letter was mailed, 6881 Twiggs Lane, Pensacola, Florida 32305,

is the same address provided to the FCHR by Petitioner in his

December 29, 2013 Employment Complaint of Discrimination, and

his July 21, 2014 Petition for Relief. Mr. GerhardtÓs letter

advised Petitioner that if he did not return the uniforms by

January 31, 2014, the matter would be turned over to the s tate

a ttorney.

31 . Petitioner did not return the uniforms and, as

promised, the matter was turned over to law e nforcement.

3 2 . Respondent has taken legal action to recover uniforms

from former employees in the past, including Caucasian former

employees.

Ultimate Findings of Fact

3 3 . Up to and including the time of his termination,

Petitioner did not contact the employee hotline, file a

complaint, discuss with co - workers or management , or otherwise

claim that he had been the subject of discrimination because of

his race, or that Ms. Abbott had acted in a sexually

inappropriate way towards him.

3 4 . No witness, other than Petitioner, testified that they

ever saw Ms. Abbott dress ÐprovocativelyÑ or in other than

standard work attire, ever heard Ms. Abbott tell off - color or

racially - charged jokes, or ever heard or observed Ms. Abbott

interacting with Peti tioner in an inappropriate manner .

3 5 . There was no competent, substantial evidence adduced

at the hearing to support a finding that any personnel decision s

regarding Petition er , including those regarding his requests to

transfer, his written warning, an d his termination , were made

due to P etitionerÓs race , or in furtherance of any effort to

sexually harass or obtain sexual favors from Petitioner.

3 6 . There was no competent, substantial evidence adduced

at the hearing that any persons who were not mem bers 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.

CONCLUSIONS OF LAW

3 7 . Sections 120.569 and 120.57(1), Flo rida Statutes,

grant th e Division of Administrative Hearings jurisdiction over

the subject matter of this proceeding and of the parties.

Standards and Procedure

3 8 . 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,

national or igin, age, handicap, or marital

status.

3 9 . Petitioner maintain s that Respondent discriminated

against him on account of his race and as a pattern of sexual

behavior and harassment that resulted in a sexually abusive work

environment .

40 . 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.

41 . Section 760.11(7) provides that upon a d etermination

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

violation of the Florida Civil 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.

Applicability of Federal Precedent

4 2 . Chapter 760, P art 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 Bran d v. Fl a. Power Corp. , 633 So. 2d

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

N. Am. , 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).

Burden of Proof

4 3 . Petitioner has the burden of proving by a

preponderance of the evidence that Respondent committed an

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

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

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

4 4 . Employees may prove discrimination by direct,

statistical, or circumstantial evidence. Valenzuela v .

GlobeGround N. Am. , LLC , 18 So. 3d at 22.

4 5 . 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 (11th Cir. 2001); Holifield v. Reno , 115 F.3d 1555,

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

blatant remarks, whose intent could be nothing other than to

discriminate . . .Ó will constitute direct evidence of

discrimination.Ñ Damon v. Fleming Supermarkets of Fla., Inc. ,

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

4 6 . 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 oration v.

Green , 411 U.S. 792 (1973), and as refined in Texas Dep artment

of C ommunity Affairs 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

rely upon ci rcumstantial evidence of discriminatory intent.

4 7 . If Petitioner is able to prove his prima facie case by

a preponderance of the evidence, the burden shifts to Respondent

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 - discriminat ory. 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).

4 8 . If the employer produces evidenc e that the decision

was non - discriminatory, then the complainant must establish that

the proffered reason was not the true reason but merely a

pretext for discrimination. St. Mary's Honor Ctr . 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 likely 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.

Cha ndler , 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

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

4 9 . The law is not concerned with whether 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 or 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 employer

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).

Moreover, 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.

Discrimination on the Basis of Race

50 . The record of this proceeding contains no direct

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

level.

51 . Petitioner presented no statistical evidence of racial

discrimination by Respondent in its personnel decisions

affecting Petitioner.

5 2 . In order to demonstrate by circumstantial evidence

that a disciplinary decision was motivated by racial

discrimination , Petitioner must establish the prima facie case

that he Ð (1) belong s to a protected class; (2) was qualified to

do the job; (3) was subjected to an adverse employment action;

and (4) the employer treated similarly situated employees

outside the class more favorably.Ñ Johnson v. Great Expressions

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

2014) ( citing McDonnell Douglas Corp. v. Green , 411 U.S. at

802) .

Prima Facie Case

5 3 . The first three elements of PetitionerÓs prima facie

case have been met. Petitioner proved that, as an African -

American, he is a m ember of a protected class ; that he was

qualified to hold the job of lube - tech; and that he was

subjected to the adverse employment action of termination.

5 4 . Where Petitioner ha s failed in the establishment of

his prima facie case of racial discrim ination is his failure to

demonstrate that other comparably situated employees were

subject to personnel decisions that differed from those applied

to him.

5 5 . Petitioner provided no evidence that Respondent acted

inconsistently with the manner in whic h any employee, regardless

of race, would have been subject to its practice of transfers to

different facilities, taking into account PetitionerÓs level of

skill and experience ; that Respondent acted inconsistently with

the manner in which any employee, re gardless of race, would have

been subject to work performance expectations ; or that

Respondent treated Petitioner any differently than any other

employee , regardless of race, in matters involving

insubordination and response to a reprimand .

5 6 . In s hort, Petitioner failed to prove that his

treatment as an employee of Respondent 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 - discriminatory Reason

5 7 . Assuming -- for the sake of argument -- that Petitioner

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

to proffer a legitimate non - discriminatory r eason for its

action, which at this stage is a burden of production, not a

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

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

5 8 . Respondent met its burden by producing credible,

clear, and convincing testimony and evidence that Petitioner was

terminated from employment in accordance with established

disciplinary practices , and for reasons related to his job

performance, insubordinate actions, and general ly poor attitude .

5 9 . Although RespondentÓs burden to r efute PetitionerÓs

prima facie case was light, the evidence showing the reason s for

its personnel decision to be legitimate and non - discriminatory

was substantial .

Pretext

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

Petitioner made a prima fa cie showing, then upon RespondentÓs

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 Respondent Ós stated

reasons were not its true reason s, 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 Honor Ctr . v. Hicks , 509 U.S. at 515 ) ) . (emphasis in

original).

61 . 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 reasons, but were a pretext for discrimination.ÓÑ Reeves

v. Sanderso n 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 2 . T he record of this proceeding does not support a

finding or a conclusion that RespondentÓs proffered explanation

for its personnel decision was false or not worthy of credence ,

nor does it support an inference that the explanation was

pretextual.

Discriminati on on the Basis of Sex

6 3 . FloridaÓs Civil Rights Act prohibits sex - based

discrimination in two ways: by a tangible adverse employment

action; or by creation of a hostile workplace environment caused

by sexual harassment that is so severe or pervasive as to alter

the terms and conditions of work. Blizzard v. Appliance Direct,

Inc. , 16 So. 3d 922, 926 (Fla. 5th DCA 2009)( citing Baldwin v.

Blue Cross/Blue Shield of Alabama , 480 F.3d 1287 (11th Cir.

2007); and Thornton v. Flavor House Products, Inc . , 105 Fa ir

Empl. Prac. Cas. (BNA) 336 (M.D. Ala. 2008)).

64. In an action based on sexual harassment Ð a plaintiff

may establish a violation of Title VII by proving that the

harassment either was directly linked to the grant or denial of

an economic quid pro quo or created a hostile work environment .Ñ

Farley v. American Cast Iron Pipe Co. , 115 F.3d 1548 , 1551 - 1552

(11th Cir. 1997) ( citing Meritor Sav. Bank, FSB v. Vinson , 477

U.S. 57, 67 (1986) ).

6 5 . In order to establish a claim based on sexual

harassment by hi s supervisor, Ms. Abbott, Petitioner was

required to show: (1) that he is a member of a protected group;

(2) that he was subjected to unwelcome sexual harassment , such

as sexual advances, requests for sexual favors, and other

conduct of a sexual nature; ( 3) that the harassment was based on

the sex of the employee; (4) that the harassment was

sufficiently severe or pervasive to alter the terms and

conditions of employment and create a discriminatorily abusive

working environment; and (5) that there is a bas is for holding

the employer liable. Blizzard v. Appliance Direct, Inc. , 16 So.

3d at 927 ( citing Mendoza v. Borden, Inc . , 195 F.3d 1238 (11th

Cir. 1999; and Speedway Superamerica, L.L.C. v. Dupont , 933 So.

2d 75 (Fla. 5th DCA 2006) ) .

6 6 . Petitioner is a member of a protected class, since the

term ÐsexÑ in section 760.10 is a general term that in everyday

usage can mean either male or female. See Gen. Dynamics Land

Sys. v. Cline , 540 U.S. 581, 597 - 598 (2004); Oncale v. Sundowner

Offshore Servs. , 523 U.S . 75 (1988).

6 7 . Petitioner failed to produce any persuasive evidence

to support a prima facie case that he was subjected to

unwelcome sexual advances or harassment by Ms. Abbott. No co -

workers observed any sexually oriented conduct on the part of

Ms. A bbott directed towards Petitioner or anyone else. There

was no support from any employee that Ms. Abbott dressed

provocatively around him , which would have been readily

observable had it occurred. Petitioner failed to prove that

Ms. Abbott sought to enti ce him by purchasing Ðexpensive

lunches , Ñ rather the evidence establishes that she bought

lunches for all employees when warranted by their work

performance and schedules. Petitioner never mentioned or

complained to co - workers or management about any sexu al

misconduct by Ms. Abbott until well after his termination for

cause . In short, there is not a shred of corroborative evidence

to support PetitionerÓs after - the - fact claims of sexual

impropriety.

6 8 . Petitioner failed to prove that his treatment a s an

employee of Respondent differed in any material way from the

treatment afforded other employees. Furthermore, Petitioner

failed to prove that he was exposed to or the subject of any

unw elcome sexual harassment , such as sexual advances, requests

for s exual favors, or other conduct of a sexual nature .

Therefore, Petitioner failed to meet his burden of proof that he

was the subject of sex - based discrimination, and his petition

for relief should be dismissed.

Conclusion

6 9 . Respondent put forth persua sive evidence that

Petitioner was terminated from employment for reasons unrelated

to PetitionerÓs race, and unrelated to PetitionerÓs failure to

submit to Ms. AbbottÓs allegedly carnal desires.

70 . Section 760.10 is designed to eliminate workplace

dis crimination, 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 Respon dent 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 fina l order finding that Respondent, Precision

Tune Auto Care , did not commit any unlawful employment practice

as to Petitioner, Reggie Dancy , and dismissing the Petition for

Relief filed in FCHR No. 201 4 - 0068 .

DONE AND ENTERED this 29th day of December , 2014 , in

Tallahassee, Leon County, Florida.

S

E. GARY EARLY

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 29th day of Dec ember, 2014.

ENDNOTE

1/ Ms. Abbott had previously been married to an African - American

man, with whom she had a bi - racial child.

COPIES FURNISHED:

Reggie T. Dancy

6881 Twiggs Lane

Pensacola, Florida 32505

Cheyanne Michelle Costilla, General Counsel

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed)

Kelly B. Holbrook, Esquire

Broad and Cassel

Suite 3500

1 00 North Tampa Street

Tampa, Florida 33602

(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.