14-006042 Christopher Brian Edwards vs. Sapa Precision Tubing Rockledge, Llc Status: Closed Recommended Order on Wednesday, July 8, 2015.

Summary: Petitioner failed to prove his age had any bearing in the company's decision to terminate his employment. Petitioner's failed drug test was the sole basis for the termination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHRISTOPHER BRIAN EDWARDS,

Petitioner,

vs. Case No. 14 - 6042

SAPA PRECISION TUBING ROCKLEDGE,

LLC,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to noti ce , this case was heard on April 17, 2015,

before J. D. Parrish, Administrative Law Judge, Division of

Administrative Hearings (DOAH), in Orlando, Florida.

APPEARANCES

For Petitioner: Christopher Brian Edwards, pro se

4605 Ocean Beach Bou levard

Cocoa Beach, Florida 32931

For Respondent: M ary Susan Sacco, Esquire

Ford Harrison , LLP

Suite 1300

300 South Orange Avenue

Orlando, Florida 32801

STATEMENT OF THE ISSUE

Whether Sapa Precision Tubing Rockledge , LLC (Respondent) ,

discriminated against Christo p her Brian Edwards (Petitioner) on

the basis of age.

PRELIMINARY STATEMENT

The Florida Commission on Human Relations (FCHR) forwarded

this case to DOAH in or der to co nduct an administrative hearing

based upon PetitionerÓs claim of discrimination. Petitioner

alleged that Respondent discriminated against him on the basis of

his age when he was terminated from employment. Petitioner

maintains he had performed w ell in his position with the company

and that the company wanted to dismiss him for either his age or

in retaliation for statements he made challenging the companyÓs

manner of doing business. After its investigation of the claim

of discrimination based up on age (Petitioner did not raise the

claim of retaliation until later), FCHR rendered a determination

of no cause. Petitioner timely challenged that decision and the

matter was referred to DOAH.

At the hearing , Petitioner testified on his own behalf an d

presented the testimony of Leonard Stetson Clarke, Lisa Chapman,

Jamie Spindler, and Brenda Lawrence. PetitionerÓs Exhibits 1 and

2 were admitted into evidence. Respondent called the same

witnesses as Petitioner , and its Exhibits 1 through 11 were also

received in evidence.

The Transcript of the proceeding was filed with DOAH on

May 26, 2015. Both parties timely filed proposed orders that

have been considered in the preparation of this Recommended

O rder.

FINDING S OF FACT

1. Petitioner is over 40 ye ars of age , and was employed by

Respondent from 2009 until May 21, 2013. Prior to his

termination , Petitioner received favorable work evaluations and

demonst r ated good work attendance.

2. Respondent is a manufacturing company that makes

aluminum tubing for commercial purposes. Safety in the work

environment is critical to RespondentÓs success.

3. Part of RespondentÓs safety regimen includes maintaining

a drug - free workplace. To that end , Respondent retains an

outside company, Edge Information Manage ment, Inc. (Edge), to

conduct random drug tests of RespondentÓs employees.

4. RespondentÓs drug - free policy is set forth in its

employee handbook that is provided to all employees. Petitioner

received a copy of the handbook and knew or should have know n of

the companyÓs drug - free policy upon his employment.

5. In order to screen RespondentÓs employees, Edge creates

a random matrix that assigns all employees a number. The

computer program used by Edge then generates a random sampling of

employees fo r the given test date. In this case, approximately

one month before the test date , Edge randomly selected employees

who were to be tested on May 14, 2013. Petitioner was named

among the randomly selected employees.

6. Edge is accredited by the Drug and Alcohol Testing

Industry Association and is fully authorized to conduct drug

screenings. Edge employee, Leonard Clarke, was fully trained in

the process of collecting samples to assure conformance with all

applicable testing standards.

7. Prior to the test date , Petitioner attended a meeting

with other employees and voiced concerns to Respondent regarding

working conditions by Ðbringing up stuff that they were not

comfortable with.Ñ Although not part of his original claim of

discrimination, Petitioner now maintains that his termination was

also in retaliation for his comments during that meeting.

8. On May 14, 2013, based upon the employees randomly

selected by Edge, Respondent notified supervisors to send the

employees to a conference room for drug testing. Clarke prepared

the paperwork and waited for the 27 employees to report for the

screening. No one at Respondent selected the employees to be

screened, conducted the collection of samples, or tested the

samples taken. Clarke was solely responsib le for the drug

testing.

9. All of the employees were required to review the testing

form, sign, and date it before returning it to Clarke. Each was

given a lollypop stick with a sponge attached to one end. By

placing the sponge in the mouth and coll ecting saliva , the sample

can then be tested to issue a preliminary result for drugs.

10. Clarke had a difficult time collecting a saliva sample

from Petitioner. Eventually , on the second or third attempt

Petitioner produced enough saliva to place the sponge in the vial

to allow the test strip to render a result. The test strips are

designed to react to substances such as marijuana, cocaine, or

amphetamines. In PetitionerÓs case , the test strip showed

positive for drug metabolites and/or alcohol.

1 1. After testing positive on the saliva test (the only

employee who did), Clarke asked Petitioner to give a urine sample

so that a complete drug analysis could be performed by the Edge

lab. Petitioner consented to all testing procedures and the

collectio n of samples on May 14, 201 3 .

12. For the purpose of the urine sample , Petitioner was

given a cup and asked to go into the adjacent bathroom to produce

the sample. When Petitioner returned the cup to Clarke it was

noted that the cold, clear liquid did no t register a temperature.

Based upon his training , Clarke suspected that Petitioner had not

urinated into the cup and discarded the sample.

13. Next , Clarke accompanied Petitioner while a second

sample was collected for urinalysis. Clarke marked the sam ple,

packaged it in accordance with all applicable standards, and sent

it by FedEx to EdgeÓs lab. PetitionerÓs testing went from

ÐrandomÑ to Ðreasonable suspicion/causeÑ based upon his saliva

test and behavior with Clarke. It appeared to Clarke that

Peti tioner attempted to evade the drug testing process.

14. Based upon the preliminary test results , Petitioner was

suspended from work. Petitioner knew he had tested positive for

drugs and that his urine sample would be further evaluated.

15. It is un disputed that PetitionerÓs urine tested

positive for cocaine. Prior to notifying Respondent of the test

results , Edge notified Petitioner that the sample tested positive

for cocaine and gave Petitioner an opportunity to contest or

explain how the result m ight be erroneous. Petitioner did not

contest the result and has not disputed the presence of drugs in

his saliva and urine on May 14, 2013.

16. On May 21, 2013, Edge sent PetitionerÓs drug results to

Respondent. At that time , Respondent decided to t erminate

Petitioner Ós employment with the company , and Chapman notified

Petitioner by telephone that he was terminated because he tested

positive for cocaine.

17. Respondent gave Petitioner an opportunity to contest

the drug results , but he did not. A t hearing , Petitioner did not

contest the drug results.

18. Of the persons tested with Petitioner , twenty were

younger than he and six were older. Only Petitioner tested

positive for drugs.

19. In the last ten years , all employees at Respondent who

have tested positive for drugs have been terminated. No one

younger or older than Petitioner has been retained if they tested

positive for drugs. PetitionerÓs age did not impact RespondentÓs

decision to terminate his employment.

20. None of Petition erÓs comments were considered in the

termination of his employment. Petitioner did not raise

retaliation with FCHR and has not established that Respondent

retaliated against him because of comments he made during a

company meeting. In short, Petitioner w as terminated because he

tested positive for cocaine. There was no competent, substantial

evidence that persons younger than Petitioner were treated

differently from Petitioner or were subject to dissimilar

policies or practices. All of RespondentÓs empl oyees who tested

positive for drugs have been terminated .

CONCLUSIONS OF LAW

21 . DOAH has jurisdiction over the subject matter and the

parties of his proceeding. See §§ 760.11, 120.569, and 120.57,

Fla. Stat. (2014).

22. Section 760.10, Florida Statut es, provides, in

pertinent part:

(1) It is 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,

o r privileges of employment, because of such

individualÓs race, color, religion, sex,

national origin, age, handicap, or marital

status.

23. Petitioner maintains he was discriminated against based

upon his age.

24. In accordance with s ection 760.11, Florida Statutes,

Petitioner timely filed his claim with FCHR. The original

complaint investigated by FCHR claimed only age as the grounds

for RespondentÓs alleged unlawful act. Petitioner did not timely

claim retaliation as a basis for his termination. Regardless, as

explained below, PetitionerÓs claim must fail on both accounts.

25. Petitioner has the burden of proving by a preponderance

of the evidence that Respondent committed an unlawful employment

practice. See St. Louis v. Fla. IntÓl Univ. , 6 0 So. 3d 455 (Fla.

3rd DCA 2011); Fla. DepÓt of Transp. v. J.W.C. & Co. , 396 So. 2d

778 (Fla. 1st DCA 1981).

26. In accordance with law , Petitioner may establish his

case by direct, statistical, or circumstantial evidence. See

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

2009).

27. In this case , Petitioner presented no direct evidence

of discrimination. There is nothing in the record to suggest

Respondent maintained any bias for or against any employee based

upon age. Responden t has employees older and younger than

Petitioner and all are subject to random drug testing.

28. Petitioner presented no statistical evidence of

discrimination. The only personnel policy or decision utilized

in PetitionerÓs termination was the companyÓ s drug - free workplace

policy. That policy is enforced regardless of any employeeÓs

age. The statistical evidence presented in this case could only

suggest that zero employees who tested positive for drugs have

been retained by Respondent.

29. In this ca se , to establish discrimination by

circumstantial evidence , Petitioner must demonstrate he is a

member of a protected class, that he was qualified for his

position, that he was subjected to an adverse employment action,

and that his employer treated simila rly situated employees

outside of his protected class more favorably than he was

treated. See Burke - Fowler v. Orange Cnty. , 447 F.3d 1319 (11th

Cir. 2006).

30. Respondent did not treat any employee more favorably

than Petitioner. Younger employees were required to take drug

screening tests. Younger employees would be terminat ed for

positive drug results. All employees with positive drug results

were terminated . PetitionerÓs age had nothing to do with his

termination. RespondentÓs policy of maintainin g a drug - free

workplace has nothing to do with any employeeÓs age and ha s

everything to do with safety in the workplace. Employees under

the influence of drugs may cause safety hazards. Insurance

claims and rates can be adversely affected by allowing emp loyees

who have tested positive for drugs to remain employed.

RespondentÓs policy was clear and unrelated to the age of any

employee. Not g iving employees who test positive for drugs a

Ðsecond chanceÑ is not an employment decision that may be

challenged. Fairness and loyalty to long - time employees play no

part in determining whether an employerÓs decision was tainted by

discrimination. If discrimination was not the factor to motivate

the employment decision, companies are entitled to reach their

own dec isions Ðfor 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). In this case ,

Respond ent made a legitimate employment decision unrelated to

discrimination.

RECOMMENDATION

Based upon the foregoing F indings of F act and C onclusions of

L aw , it is RECOMMENDED that the F lorida C ommission on H uman

R elations enter a final order dismissing Petition erÓs claim of

discrimination.

DONE AND ENTERED this 8 th day of July , 2015 , in Tallahassee,

Leon County, Florida.

S

J. D. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apala chee 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 8 th day of July , 2015 .

COPIES FURNISHED:

Christopher Brian Edwards

4605 Oce an Beach Boulevard

Cocoa Beach, Florida 32931

Mary Susan Sacco, Esquire

Ford and Harrison , LLP

Suite 1300

300 S outh 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.