14-005355 Johnny D. Ellis, Jr. vs. American Aluminum Status: Closed Recommended Order on Tuesday, July 14, 2015.

Summary: Petitioner failed to establish his claim against Respondent for alleged employment discrimination based upon race, age, or retaliation.

STATE O F FLORIDA

DEPARTMENT OF ADMINISTRATIVE HEARINGS

JOHNNY ELLIS, JR.,

Petitioner,

v s . Case No. 14 - 5355

AMERICAN ALUMINUM ,

Respondent.

_ _______________________________ _/

RECOMMENDED ORDER

An administrative hearing was conducted in this case on

May 1 , 2015, in Tallahassee , Florida, before James H. Peterson,

III, Administrative Law Judge with the Divi sion of

Administrative Hearings.

APPEARANCES

For Petitioner: Johnny D. Ellis, Jr. , pro se

200 Alice Street

Perry, Florida 32348

For Respondent: Bret Carson Yaw, Esquire

Ford and Harrison LLP

Suite 1300

300 South Orange Avenue

Orlando, Florida 32801

STATEMENT OF THE ISSUE

Whether Respondent American Aluminum Accessories, Inc.

(Respondent or American Aluminum ) , violated the Florida Civil

Rights Act of 1992, sections 760.01 Î 760.11 and 509.092, Florida

Statutes, 1/ by discriminating against and discharging Petitioner

Johnny D. Ellis, Jr. (Petitioner) , based upon PetitionerÓs race

and age, or in retaliation for his participation in protected

activity.

PRELIMINARY STATEMENT

On April 14, 2014, Petitioner filed an Employment Complaint

of Discrimination (Complaint) with the Florida Commission on

Human Relations (Commission or FCHR). The Commission

investigated the Complaint, which was assigned FCHR No.

201400631 . F ollowing completion of its investigation, the

Commission Ós executive director issued a Determination dated

October 6 , 2014, finding t hat Ðno reasonable cause exists to

believe that an unlawful employment practice occurred.Ñ That

same day, the Commission sent Petitioner a Notice of

Determination of Cause (Notice) on the Complaint which advised

Petitioner of h is right to file a Petition for Relief for an

administrative proceeding on his Complaint within 35 days of the

Notice, or a civil action within one year from the Notice.

Petitioner timely filed a Petition for Relief with the

Commission reiterating the alleg ations of his Complaint.

On November 14 , 2014, the Commission filed a Transmittal of

Petition with the Division of Administrative Hearings (DOAH) for

assignment of an administrative law judge to conduct an

administrative hearing on PetitionerÓs Petition fo r R elief. The

case was assigned to the undersigned .

The final hearing was first scheduled to be held on

January 15, 2015 , but was twice continued. The hearing was

ultimately rescheduled and heard on May 1, 2015 .

At the final hearing, Petitioner testified on his own

behalf, but offered no exhibits. Respondent presented the

testimony of two witnesses and offered five exhibits , the first

three of which were officially recognized, and all five exhibits

were received into evidence as RespondentÓs Exhibits R - 1 through

R - 5 .

The proceedings were recorded and a transcript was ordered.

The parties were given 30 days from the filing of the transcript

within which to file their proposed recommended orders. A one -

volume Transcript of the proceeding was filed May 2 0, 2015 .

Respondent timely filed its Proposed Recommended Order (entitled

ÐPost - hearing BriefÑ) on June 19, 2015 , which was considered in

preparing this Recommended Order. Petitioner did not file a

proposed recommended order.

FINDINGS OF FACT

1. American Aluminum is a company engaged in the business

of building and selling toolboxes.

2. Petitioner is an African - American male who was employed

at American Aluminum from 2002 until his discharge in March

2014. Petitioner was over the age of 40 at t he time of his

discharge.

3. From the time of his hire in 2002 , until August 2013,

PetitionerÓs job responsibilities consisted of assembling

aluminum boxes.

4. In September of 2013, PetitionerÓs supervisor, Michael

Flowers , who is also African - American, promoted Petitioner to

Shipping Supervisor. Michael Flowers hoped that as a

supervisor, Petitioner would take more responsibility in his

work, take better care of American AluminumÓs products , and

inspire his subordinates .

5 . Michael FlowersÓ brother, Du ane Flowers , recommended

Petitioner for this promotion. Duane Flowers is African -

American.

6. Petitioner was American AluminumÓs only Shipping

Supervisor.

7 . PetitionerÓs responsibilities as a Shipping Supervisor

included placing labels on the boxes, en sur ing that the right

boxes were placed on the right pallets, correctly assembl ing

orders, and ensuring that orders were loaded into shipping

trucks without damage.

8. On the day of PetitionerÓs promotion, Michael Flowers

explained the new job responsibi lities to Petitioner. He

informed Petitioner that as a supervisor, he needed to stay at

American AluminumÓs facility until orders are shipped. He also

told Petitioner that if Petitioner needed a ride home, someone

at American Aluminum would find him a ride. Petitioner

acknowledged the responsibilities, told Michael Flowers that he

accepted the demands of the position, and indicated that he

understood.

9. On February 25, 2014, prior to a 3:00 p.m. meeting,

Michael Flowers gave Petitioner instruction s on completing an

order of boxes . The boxes had already been built, but still

needed to be labeled, placed in shipping containers, and loaded

onto a pallet.

10. Specifically, Michael Flowers gave Petitioner a direct

order to make sure that the order on which they were working was

compl eted and loaded onto the truck, because the order needed to

be shipped that day.

11. Michael Flowers had already assigned Joseph Weaver the

task of operating a forklift to physically load the order into

the truck , but he apparently did not share this information with

Petitioner .

1 2 . After Michael Flowers left to attend his 3:00 p.m.

meeting, Petitioner left American AluminumÓ s facility before the

truck was loaded . The reason Petitioner left was because his

ride home was leaving. He also decided to leave because he was

not authorized to operate a forklift and therefore believed that

he would not be able to complete the assigned task of loading

the truck. So, Petitioner took the ride home without assur i ng

that the order was complete and loaded on the truck.

1 3 . When Michael Flowers returned to the production floor,

Petitioner was nowhere to be found. Instead, he saw American

Aluminum Ós Human Resources manager , a female, in the process of

trying to label boxes and place them into shipping containers in

an effort to complete the unfinished order.

14 . Michael Flowers asked the human resources manager to

return to the office, and then began working to comp lete the

order. With assistance from two other employees, including

Joseph Weaver, Michael Flowers was able to complete the order on

time.

15. Completion of the order was important because, i f the

order had not shipped, American Aluminum would have jeopardized

the customer relationship involved in t he order.

1 6 . American Aluminum depends on customer commitment . It

pre - plan s shipping arrangements and notif ies customers of those

arrangements . In addition to impacting customer relations,

American Aluminum can incur financial penalties if it fails to

timely ship an order.

17. After Michael Flowers completed the order, he called

Petitioner and asked for an explanation as to why Petitioner had

left prior to the orderÓs completion. Petitioner explained that

his ride was leaving and that he needed to leave. Petitioner

did not offer any other explanation for why he left the facility

before completing the order, and insisted that the situation was

not his fault.

18. As a result of PetitionerÓs conduct, Michael Flowers

suspended Petitioner for three day s, and told Petitioner that,

considering the severity of the infraction of leaving his post

wi thout completing the order, his future employment with

American Aluminum was at stake.

19. Michael Flowers subsequently spoke to American

Aluminum Ós President, J ennifer Arnold , about the situation, and

Ms. Arnold agreed with the discipline imposed up on Petitioner.

20 . After serving his suspension, Petitioner met with

Michael Flowers in his office. Michael Flowers just wanted to

counsel Petitioner about the event s on February 25, 2014, and

explain why it is unacceptable to leave work before completing

assigned tasks.

21. Instead of responding positively and taking

responsibility for his actions , Petitioner demanded his paycheck

and attempted to turn the counseling session into an argument.

Michael Flowers considered PetitionerÓs reaction

insubordination, and terminated PetitionerÓs employment.

22 . Subsequent to terminating PetitionerÓs employment ,

Michael Flowers spoke to Ms. Arnold , and explained that h e

terminated Petitioner for his insubordination in failing to

follow a direct order, failure to accept responsibility for his

actions, and failure to rationally speak with Michael Flowers

about why he had abandoned his job.

23. Ms. Arnold agreed with Peti tionerÓs termination.

2 4 . Petitioner testified that the only individuals at

American Aluminum who discriminated against him on the basis of

his race were Michael Flowers and Duane Flowers, both of whom

are African - American.

2 5 . PetitionerÓs rational for his belief that Michael

Flowers and Duane Flowers discriminated against him on the basis

of race is because they prefer to have romantic rel ationships

with Caucasian women; because Michael Flowers does not like

Petitioner sharing his general workplace opi nions ; and because

Michael Flowers wanted to replace Petitioner with Duane Flowers,

because Duane Flowers is Michael Flowers Ó brother.

26. Petitioner also stated that Michael Flowers

discriminatorily terminated another African - American employee

and hired a Caucasian individual.

27. Despite his allegations that he was discriminated

against because of his race, at the final hearing, Petitioner

admit ted that he has no evidence to support his claim of race

dis crimination. And, the evidence does not otherwise support a

finding that American Aluminum discriminated against Petitioner

because of his race.

28 . As to his claim that American Aluminum discriminated

against him because of his age, Petitioner alleges that,

subsequent to his termination, he had a telephone conversation

with Ms. Arnold , during which Ms. Arnold allegedly stated that

ÐtheyÑ had a meeting to discuss PetitionerÓs age. Ms. Arnold

testified that she never had a discussion with Petitioner

reg arding his age. Ms. ArnoldÓs testimony is credited.

29 . Moreover , during the final hearing, Petitioner

admit ted that no one ever told him that he was Ðtoo old , Ñ and no

one ever told him that there were issues with his age.

30 . And, while Petitioner stated that he believes that

Michael Flowers wanted to replace him with Duane Flowers because

Michael Flowers did not believe Petitioner could per form his job

functions any more, o ther than his subjective belief, there is

no evidence to support Petitioner Ós claim that American Aluminum

discriminated against him because of his age.

31 . As to Petitioner Ós claim that American Aluminum

retalia t ed against him , Petitioner Ós testimony did not explain a

basis for retaliation. While Petitioner indicated that he had

expressed his opinions to Mike Flowers about the general

workplace at American Aluminum, and that Mike Flowers did not

like him sharing those opinions, there is n o indicati on that

those opinions were in opposition to an unlawful employment

practice. There was also no evidence that Petitioner ever

participated in any activity opposing an alleged unlawful

employment practice at American Aluminum prior to his

termina tion.

32. While Petitioner testified that he believed that when

Michael Flowers asked him to load the truck, Michael Flowers was

actually telling Petitione r to operate a forklift himself , that

misunderstanding on the part of Petitioner does not suggest

re taliation . In fact, Michael Flower s never instructed

Pe titioner to operate a forklift.

33. Furthermore, Petitioner admitted in his testimony that

he has no evidence that he engaged in protected activity, or

that American Aluminum took adverse action agai nst Petitioner

because of his participation in protected activity.

34. In sum, Petitioner failed to substantiate his claim of

discrimination based upon his race or age, and Petitioner did

not show a basis for his claim that American Aluminum illegally

re taliated against him.

CONCLUSIONS OF LAW

35 . The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

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

Statutes, and Florida Administrative Code Rul e 60Y - 4.016(1).

36 . The State of Florida, under the legislative scheme

contained in sections 760.01 Î 760.11 and 509.092 , known as the

Florida Civil Rights Act of 1992 (the Act), incorporates and

adopts the legal principles and precedents established in the

federal anti - discrimination laws specifically set forth under

Title VII of the Civil Righ ts Act of 1964, as amended.

4 2 U.S.C. § 2000e, et seq .

37 . The Florida law prohibiting unlawful employment

practic es is found in section 760.10. Section 760.10(1)(a)

provides that Ð[i]t is an unlawful employment practice for an

employer:Ñ

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

individualÓs race, color, religion, sex,

national origin, age, handicap, or marital

status.

38 . Section 760.10(7) provides:

It is an unlawful employment practice for an

employer . . . to discriminate against any

person because that person has opposed any

practice which is an unlawful employment

practice under this section, or because that

person has made a charge, testified,

assisted, or participated in any manner in

an investigation, proceeding, or hearing

under this section.

39 . Florida courts have held that because the Act is

patterned after Title VII of the Civil Rights Act of 1964, as

amen ded, federal case law dealing with Title VII is applicable.

See, e.g. , Fla. Dep't of Cmty. Aff. v. Bryant , 586 So. 2d 1205,

1209 (Fla. 1st DCA 1991).

40 . As developed in federal cases, a prima facie case of

discrimination under Title VII may be establish ed by statistical

proof of a pattern of discrimination, or on the basis of direct

evidence which, if believed, would prove the existence of

discrimination without inference or presumption. 2 / Usually,

however, as in this case, direct evidence is lacking an d one

seeking to prove discrimination must rely on circumstantial

evidence of discriminatory intent, using the shifting burden of

proof pattern established in McDonnell Douglas Corp. v. Green ,

411 U.S. 792 (1973). See Holifield v. Reno , 115 F.3d 1555, 156 2

(11th Cir. 1997).

41 . Under the shifting burden pattern developed in

McDonnell Douglas :

First, [Petitioner] has the burden of

proving a prima facie case of discrimination

by a preponderance of the evidence. Second,

if [Petitioner] sufficiently establishes a

prima facie case, the burden shifts to

[Respondent] to Ðarticulate some legitimate,

nondiscriminatory reasonÑ for its action.

Third, if [Respon dent] satisfies this

burden, [Petitioner] has the opportunity to

prove by a preponderance that the legitimate

reasons asserted by [Respondent] are in fact

mere pretext.

U.S. Dep't of Hous. and Urban Dev. v. Blackwell , 908 F.2d 864,

870 (11th Cir. 1990)(housing discrimination claim); accord

Valenzuela v. GlobeGround N. Am., LLC , 18 So. 3d 17, 22 (Fla. 3d

DCA 2009)(gender discrimination claim)("Under the McDonnell

Douglas framework, a plaintiff must first establish, by a

preponderance of the evidence, a prima facie case of

discrimination.").

42 . Therefore, in order to prevail in his claim s of

discrimination and unlawful retaliation , Petitioner must first

establish a prima facie case by a preponderance of the evidence.

Id. ; § 120.57(1)(j), Fla. Stat. ("Findings of fact shall be

based upon a preponderance of the evidence, except in penal or

licensure proceedings or except as otherwise provided by statute

and shall be based exclusively on the evidence of record and on

matt ers officially recognized.").

43 . "Demonstrating a prima facie case is not onerous; it

requires only that the plaintiff establish facts adequate to

permit an inference of discrimination." Holifield , 115 F.3d at

1562; cf. , Gross v. Lyons , 763 So. 2d 276, 280 n.1 (Fla. 2000)

("A preponderance of the evidence is 'the greater weight of the

evidence,' [citation omitted] or evidence that 'more likely than

not' tends to prove a certain proposition.").

44 . Although Petitioner's Complaint alleges that American

Aluminum unlawfully discriminated against him in his employment

based upon his race and age, and in retaliation for his

participation in protected activity , Petitioner failed to

establish a prima facie case for any of these claims.

45 . To establish a prima facie case of race

discrimination, Petitioner must show: (1) he belongs to a

protected group; (2) he was subjected to an adverse employment

action; (3) his employer treated similarly - situated employees

outside his classification mo re favorably; and (4) he was

qualified to the job. Holifield , 115 F.3d at 1562. While it

appears as though Petitioner establish ed the first and second

elements of his prima facie case, he did not establish the third

or fourth criterion because he has no evid ence that there was a

similarly - situated person outside of his classification who was

treated more favorably than he was treated, and he did not

demonstrate that he was qualified for the position of Shipping

Supervisor.

46. ÐIf [Petitioner] fails to i dentify similarly situated

employees who were not [African American], [his] case must fail

because the burden is on [him] to establish [his] prima facie

case.Ñ Jones v. Bessemer Carraway Med. Ctr. , 137 F.3d 1306,

1311 (11th Cir.) modified on other grounds , 151 F.3d 1321 (11th

Cir. 1998).

47. ÐI f two employees are not Òsimilarly situated,Ó the

different application of workplace rules does not constitute

illegal discrimination. Ñ Lathern v. DepÓt of Children and Youth

Servs. , 172 F.3d 786, 793 (11th Cir. 1999) (citing Ni x v. WLCY

Radio/Rahall CommcÓns. , 738 F.2d 1181, 1186 (11th Cir. 1984) ) .

48. To establish that American Aluminum treated similarly -

situated employees outside PetitionerÓs protected classification

more favorably tha n himself, Petitioner must show he and the

employees are Ðsimilarly situated in all relevant aspects.Ñ

Holifield , 115 F.3d at 1562. ÐT he comparator must be nearly

identical to the plaintiff to prevent courts from second -

guessing a reasonable decision by the employer.Ñ Wilson v. B/E

Aerospace, Inc. , 376 F.3d 1079, 1091 (11th Cir. 2004) .

49. Petitioner failed to offer evidence that American

Aluminum treated similarly - situated employees outside of his

protected class more favorabl y .

50. As to the fourth element required to establish a prima

facie case for race discrimination , Petitioner failed to show

that he was qualified for his position. PetitionerÓs primary

responsibility included ensuring that customer orders were

completed properly and on schedule. Petitioner , however, failed

in this regard, af ter he had been given a direct order .

Accordingly, Petitioner cannot demonstrate the fourth element of

his prima facie case of race discrimination.

51. Petitioner also failed to state a prima facie case of

age discrimination. In order t o establish a prima facie case of

age discrimination , Petitioner must demonstrate that: Ð(1) he

was a member of the protected group of persons between the ages

of 40 and 70; (2) he was subject to an adverse employment

action ; (3) a substantially younger person filled the position

from which he was discharged; and (4) he was qualified to do the

job.Ñ Damon v. Fleming Supermarkets of Fla., Inc. , 196 F.3d

1354, 1358 (11th Cir. 1999). Specifically, as in his race

discrimination claim, Petitioner failed to prove the fourth

element necessary for his prima fa cie case of age

discrimination, by failing to prove that he was qualified for

his position.

52. Petitioner also failed to prove that American Aluminum

terminated him in retali ation for his participation in protected

activity. Petitioner Ós explanation that he was discharged in

retaliation for refusing to operate a forklift was not supported

by the evidence and does not otherwise support a claim of

unlawful retaliation under the Act.

53. In order to establish a prima facie case of

retaliation, Petitioner must demonstrate that: Ð(1) he

participated in an activity protected by [the Act ]; (2) he

suffered an adverse employment action; and (3) there is a causal

connection between th e participation in the protected activity

and the adverse employment decision.Ñ Batch v. Jefferson Cnty.

Child Dev. Council , 183 Fed. Appx. 861, 863 (11th Cir. 2006);

see also Stone v. Geico GenÓ l Ins. Co. , 279 Fed. Appx. 821, 823

( 11th Cir. 2008) ( applying same analysis to claims of retaliation

for age claims).

54. PetitionerÓs claim of retaliation fails because he did

not establish the first or third element to show a prima facie

case. First, P etitioner failed to show that he engaged in

p rotecte d a ctivity within the meaning of the Act. In order to

qualify for protected activity under the Act, Petitioner must

have shown that he is a person who Ð has made a charge,

testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing under [the Act ] . Ñ

§ 760.10(7), Fla. Stat.

55. There are two types of protected activity under the

Act: (1) opposition activity, for example, an employee opposes

an unlawful employment practice; and (2) participation activity,

for instance, an employee files a charge with the Commission.

Hinton v. Supervision IntÓl , Inc. , 942 So. 2d 986, 989 - 990 (Fla.

5th DCA 2006). Opposition activity occurs where an employee has

Ðopposed any practice made an unlawful employment practice.Ñ

Id. Participation activity occurs where an employee has Ðmade a

charge, testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing.Ñ Id. ÐCourts have

consistently required that, in order for an employeeÓs complaint

to co nstitute protected activity, the complaint must clearly put

an employer on notice of a violation of the law.Ñ Johnson v.

Fla., 2010 U.S. Dist. LEXIS 42784, *6, 201 0 WL 1328995 (N.D.

Fla. 2010) .

56. Petitioner provided no evidence to show that

Petitioner engaged in either of these types of activity during

his employment. In fact, Petitioner admit ted that he has no

evidence that he engaged in protected activity. Moreover,

refusal s to drive a forklift or a complaint regarding driving a

forklift under the c ircumstances of this case are not activit ies

protected by the Act.

57. Furthermore, even if Petitioner had engaged in

protected activity, there was no evidence submitted in this case

showing that Respondent retaliated against Petitioner for such

participation. In other words, Petitioner failed to prove a

causal connection between any alleged protected activity and his

discharge. In order to establish a causal connection,

Petitioner must show that Ðthe deci sion - maker[s] [were] aware of

the protected conduct,Ñ and Ðthat the protected activity and the

adverse action were not wholly unrelated.Ñ Gupta v. Fla. Bd. of

Regents , 212 F.3d 571, 590 (11th Cir. 2000). Even if Petitioner

had actually refused to drive a forklift (which he did not) and

that alleged refusal is protected activity (which it is not),

Petitioner produced no evidence that Michael Flowers Ï the

d ecision maker in this case Ï was aware of PetitionerÓ s alleged

refusal.

58. In fact, Petitioner ad mitted at the final hearing that

he has no evidence that American Aluminum took adverse action

against Petitioner because of any alleged p rotected activity.

Further, American Aluminum terminated Petitioner for legitimate,

non - retaliatory reasons Ï PetitionerÓs inability to meet

American AluminumÓ s work performance and conduct standards.

59. Finally, e ven if Petitioner had establish ed a prima

facie case of race or age discrimination, or unlawful

retaliation, American Aluminum proved a legitimate, n on -

discriminatory reason for terminating Petitioner. The evidence

showed that American AluminumÓs decision to terminate Petitioner

was because Petitioner failed to comply with a direct order from

his supervisor, effectively abandoning his job, and jeopard izing

an order for a valued customer, as well as PetitionerÓs failure

to accept responsibility for his actions .

60. The evidence provided by American Aluminum supports

the conclusion that Petitioner could not perform the duties of

his position, and provid ed a legitimate, non - discriminatory

reason for PetitionerÓs termination. P etitioner failed to

demonstrate that this reason was mere pretext for

discrimination, and there was no evidence introduced in this

case showing that American Aluminum acted with unl awful

discriminatory intent . See Holifield , 115 F.3d at 1565.

61. Even if it had been demonstrated that American

AluminumÓs decision to terminate Petitioner was an erroneous,

unfair, or unwise decision , such a showing, without more, would

be insufficient to support PetitionerÓs claims. Ð[C]ourts Òdo

not sit as a super - personnel department that reexamines an

entityÓs business decisions. No matter how medieval a firmÓs

practices, no matter how high - hande d its decisional process, no

matter how mistaken the firmÓs managers, [ the Act ] do [es] not

interfere. Rather, [the courtÓs] inquiry is limited to whether

the employer gave an honest explanation of its behavior.ÓÑ

Elrod v. Sears, Roebuck & Co. , 939 F.2d 1 466, 1470 (11th Cir.

1991). An Ðemployer may [take an employment action] 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 Comm cÓns ,

738 F.2d 1181, 1187 (11th Cir. 1984).

62. In Combs v. Plantation Patterns Meadowcraft, Inc. ,

106 F.3d 1519 (11th Cir. 1997), the Eleventh Circuit , in

outlin ing the analysis to determine whether an employee produced

sufficient evidence to overcome an employerÓs proffered reasons

for its actions , stated:

The district court must, in view of all

evidence, determine whether the plaintiff

has cast sufficient doubt on [the

employerÓs] proffered nondiscriminatory

reasons to permit a reasonable factfinder to

conclude that the employerÓs proffered

legitimate reasons were not what actually

motivated its conduct. The district court

must evaluate whether the plaintiff has

de monstrated such weaknesses,

implausibilities, inconsistencies,

incoherencies, or contradictions in the

employerÓs proffered legitimate reasons for

its action that a reasonable factfinder

could find them unworthy of credence.

Id. at 1538 (citation and inte rnal quotation marks omitted).

63. ÐA reason is not a pretext for discrimination unless

it is shown both that the reason was false, and that

discrimination was the real reason.Ñ Brooks v. C nty . Comm'n of

Jefferson County, Ala. , 446 F.3d 1160, 1163 (11t h Cir. 2006).

64. In this case, Petitioner presented no evidence to show

that American Aluminum Ós reasons for terminating his employment

were false and that the real reason was discrimination. Rather,

the lack of evidence to support PetitionerÓs claims demonstrated

that PetitionerÓs allegations of race and age discrimination , as

well as his claim of retaliatory discharge, are not based on

evidence, but on PetitionerÓs own speculation and belief. Such

s peculation and belief are not enough to prove discrimination.

See St. Hilaire v. The Pep Boys - Manny, Moe & Jack , 73 F. Supp.

2d 1350, 1360 (S.D. Fla. 1999) (stating that a plaintiffÓs mere

belief, speculation, or conclusion that he was subject to

discrimin ation does not create an inference of discrimination).

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 dismissing Petitioner's Complaint of

Discrimination and Petition for Relief consistent with the terms

of this Recommended Order.

DONE AND ENTERED this 14th day of Ju ly , 2015, in

Tallahassee, Leon County, Florida.

S

JAMES H. PETERSON, III

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida32399 - 3060

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of Ju ly , 2015.

ENDNOTES

1/ Unless otherwise indicated, all references to the Florida

Statutes, Florida Administrative Code, and federal laws are to

the current versions which have not substantively changed since

the time of the alleged discrimination.

2 / For instance, an example of direct evidence in an age

disc rimination case would be the employer's memorandum stating,

ÐFire [petitioner] Î he is too old,Ñ clearly and directly

evincing that the plaintiff was terminated based on his age.

See Early v. Champion Int'l Corp. , 907 F.2d 1077, 1081 (11th

Cir. 1990).

COP IES FURNISHED :

Johnny D. Ellis, Jr.

200 Alice Street

Perry, Florida 32348

Bret Carson Yaw, Esquire

Ford and Harrison , LLP

Suite 1300

300 South Orange Avenue

Orlando, Florida 32801

(eServed)

Tammy Scott Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

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.