15-005662 Clifford Mccullough vs. Nesco Resources Status: Closed Recommended Order on Tuesday, June 21, 2016.

Summary: Evidence fails to establish Respondent discriminated against Petitioner.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLIFFORD MCCULLOUGH,

Petitioner,

vs. Case No. 15 - 5662

NESCO RESOURCES,

Respondent.

_______________________________/

RECOMMENDED ORDER

On April 14, 2016, an administrative hearin g in this case

was held by video teleconference in Tampa and Tallahassee,

Florida, before William F. Quattlebaum, Administrative Law

Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Clifford Alonzo McCullough

Post O ffice Box 26975

Tampa, Florida 33623

For Respondent: Ignacio J. Garcia, Esquire

Ina F. Crawford, Esquire

Ogletree, Deakins, Nash,

Smoak and Stewart, P.C.

Suite 3600

100 North Tampa Street

Tampa, Florida 33602

STATEMENT OF THE ISSUE

The issue in the case is whether Clifford McCullough

(Petitioner) was the subject of unlawful discrimination by Nesco

Resources (Respondent) in violation of c hapter 760, Florida

Statutes (2015) 1/ .

PRELIMINARY STATEMENT

By Employment Charge of Discrimination filed with the

Florida Commission on Human Relations (FCHR) on February 23,

2015, the Petitioner alleged that the Respondent committed

unlawful discr imination on the basis of race, color, sex, and/or

age.

By Notice of Determination dated August 28, 2015, the FCHR

found that there was Ðno reasonable cause to believe that an

unlawful employment practice occurred.Ñ

On October 2, 2015, the Petitioner f iled a Petition for

Relief (Petition) with the FCHR. The FCHR forwarded the

Petition to the Division of Administrative Hearings, which

scheduled the dispute for hearing. Upon the RespondentÓs

Motion, the hearing was continued and subsequently rescheduled

for April 14, 2016.

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

presented the testimony of one witness, and had Exhibits 1

through 3, 5, 6, 9 through 20, and 22 admitted into evidence.

The Respondent presented the testimony of three wit nesses, and

had Exhibits 1 through 5, 8, 12 through 14, 18, 20 , 21, and 24

through 30 admitted into evidence.

A T ranscript of the hearing was filed on May 6, 2016. On

May 16, 2016, the parties jointly requested that the deadline

for filing proposed r eco mmend ed o rders be extended. The

deadline was extended to May 27, 2016, and on that date, both

parties filed Proposed Recommended Orders that have been

revie wed in the preparation of this O rder.

FINDINGS OF FACT

1. The Respondent is a company that refer s pre - screened

job candidates to employers upon request by an employer seeking

to fill a specific position.

2. The Petitioner is an African - American male, born in

1959, who sought employment through the Respondent.

3. The Respondent does not make the hiring decision. The

actual decision is made by the employer requesting referrals

from the Respondent. The Respondent is compensated by the

employer if and when the employer hires an applicant referred by

the Respondent.

4. On occasion, the Responden t publishes advertisements

seeking applications to fill specific positions, such as

Ðforklift drivers.Ñ The fact that the Respondent seeks

applications for specific positions does not mean that an

employer has contacted the Respondent seeking referrals fo r such

positions. The advertisements are used by the Respondent to

create an inventory of applicants who can be referred to

employers.

5. On December 20, 2013, the Petitioner submitted a job

application to the Respondent seeking a Ðforklift driverÑ

pos ition. At that time, the Petitioner indicated to the

Respondent that he was available to perform Ðwarehouse, packing,

production, shipping and receiving tasks.Ñ

6. Several weeks prior to the PetitionerÓs application,

the Respondent had referred job can didates to an employer

seeking to fill an available forklift driver position. The

employer filled the position by hiring an African - American male

born in 1961 who was referred to the employer by the Respondent.

7. As of December 20, 2013, the Responden t had no pending

employer requests seeking referrals to fill forklift driver

positions. The evidence fails to establish that the Respondent

had any employer requests at that time which were consistent

with the PetitionerÓs skills.

8. The RespondentÓs g eneral practice when contacted by a

prospective employer is to recommend applicants who have

maintained ongoing contact with the RespondentÓs staff after the

submission of an application.

9. There was minimal contact between the Petitioner and

the Respo ndent after the Petitioner submitted his application in

December 2013.

10. The Respondent presumes that some people who submit

applications subsequently relocate or obtain employment

elsewhere. Accordingly, the Respondent requires that previous

applica nts periodically submit new employment applications so

that the RespondentÓs inventory includes only active job

seekers.

11. On April 8, 2014, the Petitioner submitted another

application to the Respondent.

12. Also in April 2014, an employer contact ed the

Respondent to obtain referrals to fill another forklift driving

position.

13. The employer filled the position by hiring an African -

American male born in 1964 , who was referred to the employer by

the Respondent.

14. Prior to his referral for t he forklift driver

position, the successful applicant routinely contacted the

RespondentÓs staff, in person and by telephone, regarding

available employment opportunities.

15. The evidence fails to establish whether the Respondent

was included within th e applicants who were referred to the

requesting employer.

16. There is no evidence that the RespondentÓs referral

process reflected factors related to any applicantÓs race,

color, sex, or age.

17. The Petitioner has also asserted that his applicatio n

should have been referred to an employer who, on one occasion,

was seeking to fill an available cleaning position. The

position was a part - time job paying an hourly wage of $10. The

Petitioner had not submitted an application for such a position.

Noth ing in the information provided by the Petitioner to the

Respondent indicated that the Petitioner was interested in such

employment.

18. Through the RespondentÓs referrals, the employer

filled the cleaning position by hiring an African - American male.

C ONCLUSIONS OF LAW

19. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2015) .

20. The P etitioner has alleged that he was subjected to

unlawful discri mination by the Respondent on the basis of race,

color, sex, and/or age, in violation of c hapter 760, Florida

Statutes. The Petitioner has the burden of proving by a

preponderance of the evidence that the Respondent committed an

unlawful employment practi ce. Fla. DepÓt of Transp. v. J.W.C.

Co. , 396 So. 2d 778 (Fla. 1st DCA 1981).

21. Chapter 760, Part I, Florida Statutes, sets forth the

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

an ÐemployerÑ as defined in s ubsection 760.02(7). S ection

760.10 provides in relevant part as follows:

(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 compensatio n, terms, conditions,

or privileges of employment, because of such

individualÓs race, color, religion, sex,

national origin, age, handicap, or marital

status.

22. Florida courts interpreting the provisions of s ection

760.10 , have held that federal dis crimination laws should be

used as guidance when construing provisions of the Florida law.

See Brand v. Fl a. Power Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA

1994); Fl a . DepÓt of Cmt y . Aff. v. Bryant , 586 So. 2d 1205 (Fla.

1st DCA 1991).

23. The Petition er has the ultimate burden to establish

discrimination either by direct or indirect evidence. Direct

evidence is evidence that, if believed, would prove the

existence of discrimination without inference or presumption.

Carter v. City of Miami , 870 F.2d 5 78, 581 - 582 (11th Cir. 1989).

Blatant remarks, whose intent could be nothing other than to

discriminate, constitute direct evidence of discrimination. See

Earley v. Champion Int Ó l Corp . , 907 F.2d 1077, 1081 (11th Cir.

1990). There is no evidence of dire ct discrimination in this

case.

24. When there is no direct evidence of discrimination,

the Petitioner may establish unlawful discrimination through the

presentation of circumstantial evidence. Such evidence is

subject to the analysis set forth in McDo nnell Douglas Corp. v.

Green , 411 U.S. 792 (1973) , and Texas Dep ar t ment of C ommunity

Affairs v. Burdine , 450 U.S. 248 (1981). Under such analysis,

the Petitioner has the initial burden of establishing a prima

facie case of unlawful discrimination.

25. If the Petitioner is able to prove a prima facie case

by a preponderance of the evidence, the burden shifts to the

Respondent to articulate a legitimate, non - discriminatory reason

for its actions. Assuming the employer articulates a

legitimate, nondiscrim inatory reason for the employment

decision, the burden then shifts back to the Petitioner who must

establish that the reason offered by the employer is not the

true reason, but is mere pretext for the decision. The question

becomes whether or not the prof fered reasons are "a coverup for

a . . . discriminatory decision." McDonnell Douglas , 411 U.S.

at 805.

26. The ultimate burden of persuading the trier of fact

that there was intentional discrimination by the Respondent

remains with the Petitioner. Bur dine , 450 U.S. at 253. In this

case, the burden has not been met.

27. The PetitionerÓ s complaint is essentially founded on

the fact that he did not obtain employment through the

Respondent after twice submitting an application. The evidence

presented in this case is insufficient to meet the burden of

establishing a prima facie case of discrimination against the

Petitioner based on the PetitionerÓs race, color, sex, or age.

28. The two forklift driver positions for which evidence

was presented were f illed by African - American males of the same

approximate age as the Petitioner. As to the cleaning position,

which was filled by an African - American male of unknown age, the

evidence fails to establish that the Petitioner had expressed

any interest in such employment, or that he was even qualified

for it.

29. Because the failure to establish a prima facie case

ends the analysis, the PetitionerÓs complaint of discrimination

must be dismissed.

30. The Petitioner presented evidence related to two

additio nal issues. The Petitioner has alleged that the

Respondent violated provisions of s ection 440.102, Florida

Statutes, related to Ðdrug - free workplace programÑ requirements.

The Petitioner has also alleged that the RespondentÓs dru g -

testing practices viola ted the Ðunreasonable search and seizureÑ

protections set forth in the Fourth Amendment of the

Constitution of the United States. Such allegations are outside

the scope of this proceeding, and , accordingly, they are not

addressed herein.

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 the Petitioner's

complaint of discrimination.

DONE AND ENTERED this 21st day of June , 2016 , in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Fili ng (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of June, 2016 .

ENDNOTE

1/ All statutory references are to Florida Statutes (2015).

COPIES FURNISHED:

Tammy S. Barton, Agency Cler k

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed)

Meridith Guyot

Nesco Resources

6140 Parkland Boulevard

Cleveland, Ohio 44124

Clifford Alonzo McCullough

Post Office Box 26975

Tampa, Florida 33623

(eServed)

Ignacio J. Garcia, Esquire

Ogletree, Deakins, Nash,

Smoak and Stewart, P.C.

Suite 3600

100 North Tampa Street

Tampa, Florida 33602

(eServed)

Ina F. Crawford, Esquire

Ogletree Deakins

Suite 3600

100 North Tampa Street

Tampa, Florida 33602

( eServed)

Cheyanne Costilla, Gen eral Co unsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

(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.