14-003682 Mary S. Randolph vs. Walton County Board Of County Commissioners Status: Closed Recommended Order on Monday, December 1, 2014.

Summary: Petitioner failed to demonstrate that she was terminated because of her race. Recommend dismissal of Petition for Relief.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARY S. RANDOLPH ,

Petitioner,

vs. Case No. 14 - 3682

WALTON COUNTY BOARD OF COUNTY

COMMISSIONERS ,

Respondent.

________________________________/

RECOMMENDED ORDER

Administrative Law Judge Edward T. Bauer held a final

hearing in this case in D eF uniak Springs, Florida, on

October 14 , 2014.

APPEARANCES

For Pet itioner: Mary S. Randolph , pro se

623 Knox Hill Road

Ponce de Leon, Florida 32455

For Respondent: John Forth Dickinson , Esquire

Constangy, Brooks & Smith, LLP

200 West Forsyth Street, Suite 1700

Jacksonville, Florida 32202

STATEMENT OF THE ISSUE S

W hether Respondent com mitted the unlawful employment

practices alleged in the Charge of Discrimination filed with the

Florida Commission on Human Relations ("FCHR") and, if s o, what

relief should Petitioner be granted.

PRELIMINARY STATEMENT

On January 14 , 2014 , Petitioner f iled a Charge of

Discrimination ( "C omplaint" ) with FCHR alleging that the Walton

County Board of County Commissioners ("Respondent") terminated

her from employmen t because of her race . Following its

investigation of the Complaint , FCHR notified the partie s that

there was "no reasonable cause to believe that a n unlawful

employment practice occurred ."

Petitioner elected to pursue administrative remedies,

timely fil ing a Petition for R elief with FCHR on or about

August 12, 2014. Subsequently, on August 13 , 2014, FCHR

referred the matter to the Division of Administrative Hearings

("DOAH") for further proceedings.

During the final hear ing, Petitioner testified on her o wn

behalf and introduced the following pages from her exhi bit

package: 1 through 63 and 6 6 through 75. Respondent presented

the testimony of two witness es (Tom Baker and Brady Bearden) and

introduced 8 exhibits, numbered 1 through 8 .

The final hearing Transc ript was filed with DOAH on

November 4, 2014 . Both parties filed Proposed R ecommended

O rders, which the undersigned has considered in the preparation

of this Recommended Order.

Unless otherwise indicated, citations to the Fl orida

S tatutes refer to the 2013 codification.

FINDINGS OF FACT

1. At all times material to this proceeding, Petit ioner,

an African - American female, was employed by Respondent as a

c lerk coordinator in its Section 8 housing 1 / department.

2. As established during the final hearing , Petitioner's

duties required her , among other things, to field inquiri es

concerning r ental assistance, maintain records, receive

applicat ions, and, of particular importance here, conduct

inspections of rental properties. As Petitioner was responsible

for transporting herself to the inspection sites (at first in

her personal automobile and , beginning in April 2012, in a

county - issued vehicle) , her written job description mandated

that she hold a valid driver's license.

3. Petitioner 's term of employment, which began in 1990,

proceeded largely without incident until September 19, 2013. O n

that occasion, Tom Baker ÏÏ Petitioner's supervisor and the head

of Respondent's Section 8 department ÏÏ was engaged in discussions

with the DeFuniak Springs Housing Authority concerning the

development of a memorandum of understanding b etween the two

agenci es. At one point during the talks, DeFuniak Springs'

housing director suggested that Mr. Baker confirm the status of

his employees' driver's licenses. Finding the suggestion well

taken, Mr. Baker immediately asked Brady Bearden, Respondent's

loss control manager, to perf orm driver's license check s of the

employees in the Section 8 department.

4. Later in the day on September 19, Mr. Bearden informed

Mr. Baker that P etitioner's license was not valid (due to her

failure to maintain liability insurance), an d that Petitioner's

driving privilege had been continuously suspended since

January 2, 2013 ÏÏ a p eriod of more than eight mon ths , during

which Petitioner had operated a county - owned vehicle on numerous

occasions .

5. Although eager to address this issue with Petitioner,

Mr. Baker was unable to do so until the morning of September 24,

2014, when Petitioner re turned from a vacation. During the

discussion that ensued, Petitioner erroneously insisted that she

did, in fact, hold a valid driver's license. Up on being shown

documentation that refuted her claim, Petitioner stated that she

would clear up the matter with the clerk of court and return to

work later in the day.

6. Over the course of the next few hours, Petitioner

obtained liability insurance and t ook the necessary steps to

reinstate her driver's license. Later that afternoon,

Petitioner retu r ned to work and explained that she had trusted

her daughter to secure automobile insurance for the both of

them; that her daughter had failed to do so; and th at she

( Petitioner) had no knowledge of the suspension until Mr. Baker

informed her as much.

7. Predictably , this explanation did not sit well with

Mr. Baker , who was troubled by Petitioner's acute lack of

diligence in maintain ing a valid driver's licen se ÏÏ as noted

above, a prerequisite of her position as a housing clerk

coordinator. Shortly thereafter, Mr. Baker recommended to

Respondent's human resources department that Petitioner's

employment be terminated for violations of policies 31.4(A),

31.4(C), and 31.5(A), which provide:

31.4 POLICY

A. Any employee who loses the use of

his/her driving privileges, whether

knowingly or unknowingly , for any reason

other than a temporary medical/disability

condition, will be subject to disciplinary

action, or tr ansfer to another job

classification, if available, for failing to

meet the minimum qualifications of the job

description.

* * *

C. Driving a County vehicle . . . without

an appropriate valid driver's license . . .

or failure to report the loss or use o f a

valid license, whether by suspension,

revocation, or cancellation is subject to

disciplinary action up to and including

termination .

31.5 POLICY

A. Any employee who loses the use of

his/her license shall report that fact to

his/her immediate supervi sor at the earliest

possible time, and not later than the

beginning of the next work shift. Failure

to do so may result in disciplinary action.

(Emphasis added).

8. During the final hearing in this cause, Petitioner

offered no direct evidence in suppor t of her claim of race

discrimination. Instead, Petitioner attempted to prove her case

circumstantially by identifying two supposed comparators,

Kendalleigh Marse and Jerry Tuggle, both of whom, according to

Petitioner, were not terminated by Respondent d espite their

commission of similar misconduct.

9. This approach fails, for neither Ms. Marse nor

Mr. Tuggle is a valid comparator for the purposes of

establishing a prima facie case of race discrimination . First ,

the undersigned is not persuaded that t he driving privileges of

the purported comparators were ever actually suspended. 2 / Even

assuming, however, that the record permits such a finding, it is

evident that the suspensions were relatively brief , particularly

when compared to Petitioner's. 3 / Mor eover, again assuming that

the driving privileges of Ms. Marse and Mr. Tuggle were

suspended for any period of time, there has been no showing that

either employee ever operated a county - owned vehicl e without a

valid license. In any event, the record make s pellucid that, at

the time of Petitioner's termination, no one in Respondent's

employ was aware o f any issues concerning the driver's licenses

of Ms. Marse or Mr. Tuggle . 4 /

10. Even if the evidenc e were sufficient to raise an

initial inference of impro priety, which it is not, Petitioner

has failed to prove that Respondent's proffered rea son for the

firing ÏÏ i.e., driving on a suspended license in a county - issued

vehicle for more than eight months ÏÏ is a mere pre text for race

discrimination. On the contra ry, the undersigned credits

Mr. Baker's testimony that race pla ced no role whatsoever in

Petitioner's termination.

CONCLUSIONS OF LAW

I . Jurisdiction

11 . DOAH has personal and subject matter jurisdiction in

this proceeding pursuant to s ections 120.569, and 120.57(1),

Florida Statutes (2014) .

II . The FCRA

12 . The Florida Civil Rights Act of 1992 ( " the FCRA " ) ,

chapter 760, Florida Statutes, prohibits discrimination in the

workplace. Among othe r things, the FCRA makes it unlawful for

an employer:

To disc harge 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 origin, a ge, handicap, or marital

status.

§ 760.10(1)(a), Fla. Stat.

13 . The FCRA , as amended, was patterned after Title VII of

the Civil Rights Acts of 1964 and 1991 ("Title VII"), as well as

the Age Discrimination in Employme nt Act ("the ADEA"). As such,

fed eral decisional authority interpreting Title VII and the ADEA

is applicable to cases arising under the FCRA. Valenzu ela v.

GlobeGround N. Am. , LLC , 18 So. 3d 17, 21 (Fla. 3d DCA 2009) ;

Fla. State Univ. v. Sondel , 685 So. 2d 923, 925 n.1 (Fla. 1st

DCA 1996 ) .

14 . C omplainant s 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 pr esumption. Denney v. City of Albany , 247 F .3d 1172, 1182

(11th Cir. 2001) . "[O] nly the most blatant remarks, whose

intent could be nothing other than to discriminate on the basis

of some impermissible factor constitute direct evidence of

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

1086 (11th Cir. 2004)(internal quotation marks omitted) .

15 . When no direct proof of discrimination exists, the

employee may attempt to establish a prima facie case

circ umstantially through the burden - shif ting framework

articulated in McDonnell Douglas Corp. v. Green , 411 U.S. 792,

802 - 05 (1973). Failure to establish a prima facie case of

discrimination ends the inquiry. See Kidd v. Mando Am. Corp. ,

731 F.3d 1196, 1202 (11th Cir. 2013) . If, however, the employee

succeeds in making a prima facie case, the burden then shifts to

the employer to articulate a legitimate, non - discriminatory

reason for its complained - of conduct. Id . This intermediate

burden of production, not persuasion, is "exceedingly light. "

Vessels v. Atlanta Indep. Sch. Sys. , 408 F.3d 763, 769 - 70 (11th

Cir. 2005) . Should the employer meet this burden, the employee

must then establish that the proffered reason was not the true

reason for the employment decision, but rather a pretext for

d iscrimination. Kidd , 731 F.3d at 1202. Notwithstanding these

shift s in the burden of production, t he ultimate burden of

persuasion remains a t all times with the employee. Id .

III. The Charge

16 . With this framework in place, the undersigned turns to

the charge of discrimination pleaded in the Complaint ÏÏ na mely,

that Respondent terminated Petitioner because of her race.

17 . A s detailed previously , the record is devoid of any

direct evidence of race discrimination. Accordingly,

Petitioner's claim is analyzed pursuant to the McDonnell Douglas

burden - shifting framework . In this context, Petitioner can

establish a prima facie case of race discrimination upon proof

of fo ur elements: 1) that s he was a member of a protected

class ; 2) that s he was qualifie d for the position; 3) that s he

was subjected to an adverse empl oyment action ; and 4) that her

employer treated similarly - situated employees outside of her

protected class more favorably than she was treated. Burke -

Fowler v. Orange Cnty. , 447 F.3d 1319, 1 323 (11th Cir. 2006). 5 /

18. The first three elements of the foregoing test are

obviously satisfied, as the evidence demonstrates that

Petitioner is a member of a protected class; that she was

qualified for the position , 6 / see Gregory v. Daly , 243 F.3d 68 7,

696 (2d Cir. 2001)(holding that a plaintiff "need only make the

minimal showing that she possesses the basic skills necessary

for the performance of [the] job" to satisfy the requirement

that the plaintiff was qualified); and that she was subjected to

a n adverse action ÏÏ here, termination.

19. As for the fourth element, however, Petitioner has

failed to prove that the supposed comparators, Ms. Marse and

Mr. Tuggle, were "similarly situated [to her] in all relevant

respects." Holifield v. Reno , 115 F.3 d 1555, 1562 (11th Cir.

1997). As detailed previously, Ms. Marse and Mr. Tuggle's

driving privileges were suspended , if at all, for durations far

shorter than Petitioner's, and there is no evidence that either

of the potential comparators ever operated a county - owned

vehicle while their licenses were invalid. 7 / On these facts, it

cannot be said that the "individuals with whom [Petitioner]

seeks to compare [her] treatment . . . have engaged in the same

misconduct without such differentiating or mitigating

circumstances that would distinguish their conduct or the

employer's treatment of them for it." Younis v. Pinnacle

Airlines, Inc. , 610 F.3d 359, 364 (6th Cir. 2010)( quoting

Mitchell v. Toledo Hosp . , 964 F.2d 577, 583 (6th Cir. 1992));

Maniccia v. Brown , 1 71 F.3d 1364, 1368 (11th Cir. 1999)( "We

require that the quantity and quality of the comparator's

misconduct be nearly identical to prevent courts from second -

guessing employers' reasonable decisions and confusing apples

with oranges.").

20. In any event, Ms. Marse and Mr. Tuggle 's driver's

license issues are irrelevant here, as neither Mr. Bak er nor any

other decision maker knew of their s uspensions at the time of

Petitioner's termination . See Landry v. Lincare, Inc. , 2014

U.S. App. LEXIS 16651 (11th Cir. Aug. 28, 2014)("Even if a

similarly situated comparator exists, the comparator's actions

are relevant only if the plaintiff shows that the decisionmaker

knew of the comparator's prior similar acts"); Jones v. Gerwens ,

874 F.2d 1534, 1542 (11th Cir. 1989)( holding that a comparator's

actions are relevant only if the plaintiff shows that the

decisionmaker was aware of the comparator's prior similar

conduct).

21. Finally, even assuming arguendo that Petitioner has

established a prima facie case of race discri mination,

Respondent has provided legitimate, nondiscriminatory reason s

for the termination (Petitioner's lengthy driver's license

suspension, and the fact that she operated a county - owned

vehicle during that span), and Petitioner has failed to prove

that Respondent's explanations were mere pretext for

discrimination. See Kidd v. Mando Am. Corp. , 731 F.3d 1196,

1202 (11th Cir. 2013)("Because the burden of persuasion remains

with the employee, she must then show that the seemingly

legitimate reason the empl oyer gave was pretextual -- i.e., the

proffered reason was not the true reason for the employment

decision.")(internal quotation marks omitted).

22. For the reasons elucidated above, Petitioner's charge

of race discrimination must be dismissed.

RECOMMEND ATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED th at the Florida Commission on Human

Relations enter a final order adopting the Findings of Fact and

Conclusions of Law contained in this Recommended Order.

Further, i t is RECOMMENDED that the final order dismiss the

Petition for Relief.

DONE AND ENTERED this 1st day of Dec ember , 2014 , in

Tallahassee, Leon County, Florida.

S

___________________________________

Edward T. Bauer

Administrative Law Judge

Division of Admin istrative 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

t his 1st day of Dec ember , 2014 .

ENDNOTES

1 / Section 8 of the Housing Act of 1937, known colloquially as

" Section 8, " authorizes the payment of rental housing assistance

to private landlords on behalf of low - income households.

2 / Pursuant to section 318.1 5(1)(a), Florida Statutes, the

failure to pay a traffic fine by the prescribed deadline does

not immediately result in the suspension of the motorist's

driving privileges. Instead, the clerk of court transmits a

"D6" suspension notice to the Dep artment of Highway Safety and

Motor Vehicles ("DHSMV"), at which point DHSMV " immediately "

issues an "order suspending the driver license and privilege to

drive of such person effective 20 days after the order of

suspension is mailed ." Id . (emphasis added).

With this framework in mind, Petitioner's exhibits, which

include case progress notes from the W alton County Clerk of

Court, fail to demonstrate conclusively that the driver's

licenses of Ms. Marse or Mr. Tuggle were ever suspended. While

it is true that a "D6" notice was issued on April 12, 2012, when

Ms. Marse failed to pay a traffic citation by t he deadline, the

situation was fully resolved on or before May 9, 2012 (27 days

later). As the record is silent as to when DHSMV mailed the

order of suspension ÏÏ the event that would trigger the 20 - day

timeline pursuant to section 318.15(1)(a) ÏÏ it is entir ely

possible that Ms. Marse satisfi ed the fine before the suspension

took effect.

As for Mr. Tuggle, the case progress notes indicate that,

with respect to two separate traffic citations, "D6" notices

were issued on December 18, 2008, and June 23, 2009; th e first

was satisfied within 25 days (January 12, 2009), while the

second was resolved within 28 day s (June 23, 2009) . Again,

though, the record does not reflect when DHSM V mailed its

suspension orders, which makes it impossible to determine if th e

20 - day periods expired before Mr. Tuggle paid the citations.

3 / Assuming for argument's sake that DHSMV mailed its 20 - day

suspension orders on the earliest possible occasions ÏÏ i.e., on

the same dates it received the "D6" notices ÏÏ Ms. Marse's license

would have been suspended for not more than seven days, while

Mr. Tuggle's driving privilege would have been suspended for a

total of 13 days (five days in connection with the first

citation, and eight days for the second). It need hardly be

said that the se totals pale in comparison to Petitioner's eight -

month license suspension.

4 / Hr'g Tr. 47 - 49; Resp't Ex. 2.

5 / Alternatively, Petitioner could have established the fourth

pr ong of her prima facie case with proof that she was replaced

by a person outs ide her protected class. Cuddeback v. Fla. Bd.

of Educ. , 381 F.3d 1230, 1235 (11th Cir. 2004). However, the

record is devoid of evidence concerning who, if anyone, filled

Petitioner's position . See Giles v. Daytona State Coll., Inc. ,

542 Fed. Appx. 869, 872 - 73 (11th Cir. 2013)(holding that

plaintiff failed to establish a prima facie case of race

discrimination where she failed to identify her replacement).

6 / Although it is undisputed that Petitioner reinstated her

driver's license shortly before her t ermination, Respondent

nevertheless argues that the length of the suspension rendered

Petitioner unqualified for her position. This argument misses

the mark, for the relevant inqu iry is whether Petitioner

possessed the basic job qualifications at the time the adverse

action was taken . See Risk v. Burgettstown Borough , 364 Fed.

Appx. 725, 729 (3d Cir. 2010)(explaining that to satisfy the

"qualified for the position" prong of the McDonnell Douglas

framework, the employee must demonstrate that she was qualif ied

"at the time of the adverse action.") . Further, this contention

improperly conflates the qualification prong with Respondent's

legitimate, non - discriminatory reason for the adverse action.

See Slattery v. Swiss Reinsurance Am. Corp. , 248 F.3d 87, 92 (2d

Cir. 2001 )("The qualification prong must not, however, be

interpreted in such a way as to shift onto the plaintiff an

obligation to anticipate and disprove, in his prima facie case,

the employer's proffer of a legitimate, non - discriminatory basis

for i ts decision. As we have repeatedly held, the qualification

necessary to shift the burden to defendant for an explanation of

the adverse job action is minimal"); Hawn v. Exec. Jet Mgmt. ,

546 F. Supp. 2d 703, 717 (D. Ariz. 2008)("Defendant argues that

the m isconduct itself renders the Plaintiffs unqualified for the

positions. The court does not howeve r come to the same

conclusion . . . . [U] nder such a regime, the remainder of the

McDonnell Douglas framework, and the prima facie case for that

matter, would be rendered superfluous.").

7 / To be sure, Mr. Tuggle's tenure as a truck driver with

Respondent was hardly enviable. Indeed, the record contains a

memorandum dated September 8, 2010, wherein Mr. Tuggle's

supervisor chides him for "a number of unsafe a cts and

inattentiveness while operating [his] assigned County vehicle."

Pet'r Ex. p. 50. It also appears that, following several other

mishaps, Mr. Tuggle was demoted to the position of laborer.

Nevertheless, it cannot be said, at least on this record, that

Mr. Tuggle ever operated a county - owned vehicle without a valid

driver's license. Such a distinction is sufficient alone to

render Mr. Tuggle an invalid comparator.

COPIES FURNISHED:

Mary S. Randolph

623 Knox Hill Road

Ponce de Leon, Florida 32455

John Forth Dickinson, Esquire

Constangy, Brooks & Smith, LLP

200 West Forsyth Street, Suite 1700

Jacksonville, Florida 32202

(eServed)

Cheyanne Costilla, Gen eral Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 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

will issue the Final Order in this case.