16-002166 Thomas Harris vs. Brevard County Sheriff's Department Status: Closed Recommended Order on Friday, September 16, 2016.

Summary: Petitioner failed to establish that his lack of promotion or success with Respondent employer was based on his race; that he met conditions necessary for promotion; and that a hostile, discriminatory work environment forced his resignation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS HARRIS,

Petitioner,

vs. Case No. 16 - 2166

BREVARD COUNTY SHERIFF'S

DEPARTMENT,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, this case was heard on June 27, 2016,

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

Administrative Hearings (DOAH), in Titusville, Florida.

APPEARANCES

For Petitioner: Richard Manzo, Esquire

Manzo Law Firm

5095 South Washington Avenue

Titusville, Florida 32780

For Respondent: Marc Aaron Sugerman, Esquire

Wayne L. Helsby, Esquire

Allen, Norton and Blue, P.A.

Suite 100

1477 West Fair banks Avenue

Winter Park, Florida 32789

STATEMENT OF THE ISSUE

Whether the Brevard County SheriffÓs Department

(Respondent) violated law and discriminated against Thomas

Harris (Petitioner) by harassment or constructive termination of

hi s employment on the basis of race.

PRELIMINARY STATEMENT

The Florida Commission on Human Relations (FCHR) forwarded

this case to DOAH in order to conduct an administrative hearing

based upon Petiti onerÓs claim of discrimination. P etitioner

alleged that Re spondent discriminated against him on the basis

of his race in that he was subjected to treatment not

administered to other employees. Petitioner asserted that his

job assignments were not equal to othersÓ, his promotion

opportunities were not equal to ot hersÓ, and the continuous

harassment by others at the job ultimately le d to constructive

termination of his employment in violation of law. After its

investigation of the claim , 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 and

presented the testimony of Kimberly Harris, his wife.

Respondent presented testimony from James Dodson, Robert Lough,

and Robbie Stokes. Respondent Ós Exhibits 1 through 13 were

admitted into evidence.

The Transcript of the proceeding was filed with DOAH on

July 18, 2016. The parties were granted an extension to file

proposed orders no later than August 18, 2016. Respondent

timely filed a propos ed order that has been considered in the

preparation of this O rder.

FINDING S OF FACT

1. Petitioner is a black male, who has work ed for

Respondent as a Corrections Officer in the county jail since

2001. He was assigned different areas of service through out h is

tenure with Respondent including the Ðannex , Ñ as well as the

main jail.

2. Respondent is responsible for the operation and control

of the Brevard County jail(s) and employs a number of Correction

Officers in the furtherance of that responsibili ty. Correction

Officers are employed pursuant to the terms of a Collective

Bargaining Agreement (CBA) that addresses multiple facets of the

work performed by the bargaining unit members. Promotions and

disciplinary actions are encompassed within the CBA.

3. Petitioner believes he was subjected to inappropriate

treatment, denied promotions, and harassed to such an extent

that he was forced to resign his position with the Respondent.

Petitioner asserts that he was ill - treated because of his race.

4. I n addition to Florida law, the CBA at Article 4.02

provides, in part:

No bargaining unit member will be

discriminated against on the basis of age,

race, creed, color, national origin, sex,

disability, marital status, religion, or

sexual orientation.

5. The position of Corrections Corporal is considered a

lead position that may receive shift differential pay increase.

Prior to 2011 , Petitioner applied for a Corporal position , but

was never selected. After 2012 , Petitioner did not apply for

the Corporal position. Petition er beli eved the selection

process for C orporal was Ðrigged.Ñ At the time of his

separation from employment with Respondent , 18 percent of the

Corrections Corporals were black. PetitionerÓs race had nothing

to do with his failure to se cure the position of Corporal.

6. The position of Corrections Sergeant is considered a

promotion within the RespondentÓs work place. To become

eligible for the rank of Sergeant , a Corrections Officer must

pass the written SergeantÓs test and then go th rough a screening

process with others who successfully passed the test.

Petitioner applied for the position of Sergeant twice during his

employment with Respondent. On one occasion , Petitioner did not

pas s the written test for Sergeant; therefore , could not m ove on

to the screening process. O n a second occasion , Petitioner did

not turn in his application within the designated time frame for

testing. PetitionerÓs race had nothing to do with his failure

to achieve the rank of Sergeant.

7. There were tw o other non - promotional positions within

the jail that Petitioner sought during his tenure. These

positions did not require testing and did not increase the base

pay of officers assigned to the duty. The position , Officer in

Charge (OIC) , was one such as signment. A second position, Field

Training Officer (FTO) , also did not increase base pay for the

assignment , but shift differential increase might be applicable.

Petitioner did not obtain these positions.

8. In January 2015, six ( 6 ) out of twenty - fou r ( 24 ) FTOs

were black.

9. At all times material to this case , there were no tests

required for assignment to OIC, Corporal, or FTO. The process

for selection to these positions was informal. An interested

candidate could respond to an announcement and based on

supervisory input, including disciplinary issues and leadership

ability, candidates would be selected. Petitioner was not

selected because his supervisors did not consider him to be

appropriately qualified to take on the positions.

10. To be s elected for one of these positions, an officer

has to exhibit the ability to deal with other officers, let them

know what they must do, and hold them accountable to policy.

Petitioner was written up on two occasions for not following

policy. First, Petit ioner was given a verbal counseling because

he violated procedure and failed to keep a door open for a

juvenile watch post. This failure to follow protocol was deemed

carelessness , and Petitioner was counseled regarding the safety

implications of not keep ing the door open.

11. Second, Petitioner failed to report that he had

misplaced his Ðchemical agentÑ while at work. Apparently

Petitioner not only lost the item , but failed to notice that it

was missing until several days later. He did not report the

loss to his supervisor or complete the proper reports before

attempting to obtain a replacement. For this infraction ,

Petitioner was given a written reprimand. This event happened

in 2012 , some 10 plus years into PetitionerÓs career as a

Corrections Off icer.

12. When Petitioner last applied for promotion to

Corrections Sergeant, seven ( 7 ) out of twenty - three ( 23 )

Corrections Sergeants were black.

13. In January 2015 , when Petitioner resigned his position

with the Respondent, six ( 6 ) out of twenty - o ne ( 21 ) Corrections

Sergeants were black.

14. Kimberly Wilson, a black female, was promoted to the

rank of Corrections Sergeant while Petitioner was employed by

Respondent. Sergeant Wilson scored the requisite 76 percent or

better on the examination befo re being considered for promotion.

15. Clifford Ferguson, a black male who began working for

Respondent about the same time as Petitioner, was promoted to

the rank of Corrections Sergeant. Sergeant F erguson scored the

requisite 76 percent or better on th e examination before being

considered for promotion.

16. Vere Samuel, a black male who began working for

Respondent in 2008, was promoted to the rank of Corrections

Sergeant. Sergeant Samuel scored the requisite 76 percent or

better on the examination be fore being considered for promotion.

17. Robbie Stokes, a black male, was promoted to the rank

of Corrections Sergeant in 2008, and later to the rank of

Lieutenant. As did all successful candidates, Stokes scored the

requisite 76 percent or better on the examination before being

considered for promotion.

18. In contrast, the only time Petitioner took the

Sergea ntÓs examination , he scored a 52 percent , which was the

lowest score of any applicant in that testing cycle.

19. Respondent established that bl ack officers who

demonstrated the requisite examination results, abilities , and

leadership qualities were promoted to the rank of Sergeant.

Petitioner never met the threshold criterion of scoring well

enough on the written examination.

20. As to Petit ionerÓs claims that he was routinely

harassed by other Corrections Officers, Petitioner did not

report many of the alleged actions to his supervisors so that,

if true, appropriate corrective action could be taken. Instead,

Petitioner maintained he endured the stressful environment

without seeking regress against any of the alleged perpetrators.

Management cannot act against inappropriate employee conduct

without notice of such behavior.

21. The one or two times that Petitioner did complain to a

supervi sor regarding his treatment by other officers , action was

taken. None of the complaints would support a claim of a

discriminatory environment based upon race. More likely,

Petitioner was not regarded favorably by his peers and their

comments were undoubt edly hurtful. His inability to move past

his perceived slights contributed to his work stress , not

discriminatory actions of others.

22. In January 2015 , Petitioner submitted his resignation

to Respondent. Petitioner was contacted to reconsider the

de cision. Petitioner was given a full pay out of his benefits

eve n though he did not provide two weeks Ó notice.

23. Petitioner was considered a dependable Corrections

Officer who simply lacked a level of maturity and judgment to

achieve promotion during h is time with Respondent. PetitionerÓs

lack of self - awareness and inability to demonstrate a command of

procedure and policy resulted in his failure to achieve

promotion.

24. PetitionerÓs inability to move past his perceived

slights from others created the stress he felt on the job.

Discrimination was not a factor.

25. Sergeant Stokes noted PetitionerÓs deficien cy to be

the inability to make sound decisions.

CONCLUSIONS OF LAW

26. DOAH has jurisdiction over the subject matter and the

parties of t his p roceeding. See §§ 760.11, 120.569, and 120.57,

Fla. Stat. (2016). 1/

27. Section 760.10, Florida Statutes, provides, in

pertinent part:

(1) It is unlawful employment practice for

an employer:

(a) To discharge or to fail or refuse to

hire any individua l, 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, ag e, handicap, or marital

status.

28. Petitione r maintains he was discriminated against

based upon his race (African - American).

29. In accordance with section 760.11 , Petitioner timely

filed his claim with FCHR.

30. Petitioner has the burden of proving by a

preponderance of the evidence that Responde nt committed an

unlawful employment practice. See St. Louis v. Fla. IntÓl

Univ. , 60 So. 3d 455 (Fla. 3 d DCA 2011); Fla. DepÓt of Transp.

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

31. 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. 3 d DCA

2009).

32. In this case, Petitioner presented no direct evidence

of discrimination. There is nothing in the record to suggest

Responde nt maintained any bias for or against any employee based

upon race. Respondent promoted black officers to positions of

supervision based upon merit and job performance. PetitionerÓs

performance was not comparable. Race did not have any part of

Petitione rÓs failure to receive promotion to Corrections

Sergeant.

33. Petitioner presented no statistical evidence of

discrimination. There was no statistical evidence that non -

black officers were more favorably treated than Petitioner.

34. In this case, to e stablish discrimination by

circumstantial evidence, Petitioner must demonstrate that he is

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

promotion, he was subjected to an adverse employment action, and

that his employer treated similarly - 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).

35. Respondent did not treat any employee more favorably

than Petitioner. All candidates for Corrections Ser geant

followed the same path. Petitioner could not qualify for

promotion because the one time he took the examination , he

scored the lowest grade among those who took the test. No

officer could be promoted without meeting the te sting

requirement. Other black officers were successful; Petitioner

was not. Discrimination bore no part in the decision.

36. Finally, PetitionerÓs perceived slights by co - workers

were not racially motivated. There is no evidence that

Petitioner was singled out by the alleged perpetrators to taunt

him based upon his race. There is insufficient evidence that

PetitionerÓs supervisors were made aware of any significant act

of disrespect toward Petitioner. Petitioner simply did not

enjoy the work environment. He was unhappy he had not been

chosen for positions (OIC, FTO, or Corporal), he was unhappy

with his co - workers who teased him (assuming the comments were

made), and he did not pass the SergeantsÓ test the one time he

took it. He may have assumed his career would be limite d.

Nothing in the work environment forced Petitioner to submit his

resignation in January 2015.

37. PetitionerÓs lack of success in his job did not stem

from a discriminatory employer. Respondent did not discriminate

against Petitioner on the basis of his race. If discrimination

is not the factor motivating an employment decision, companies

are entitled to reach their own decisions 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 no t for a discriminatory

reason.Ñ Nix v. WLCY Radio/Rahall CommcÓns , 738 F.2d 1181, 1187

(11th Cir. 1984). In this case, Respondent chose employees for

OIC, FTO, and Corporal based upon nondiscriminatory reasons,

promoted all officers to Sergeant based upo n criteria that were

not based upon race, and did not foster a work environment

hostile to PetitionerÓs race. As evidenced by the record in

this case , members of PetitionerÓs race were successful within

the ranks of Respon dentÓs employees and others; nonm embers of

PetitionerÓs race were not more favorably treated.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that the Florida Commission on Human

Relations enter a final order dismissing PetitionerÓs cla im of

discrimination.

DONE AND ENTERED this 16th day of September , 2016 , in

Tallahassee, Leon County, Florida.

S

J. D. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalac hee 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 16th day of September , 2016 .

ENDNOTE

1/ All statutory references are to Flo rida Statutes (2016).

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed)

Marc Aaron Sugerman, Esquire

Allen, Norton and Blue, P.A.

Suite 100

1477 West Fairbanks Avenue

Winter Park, Florida 32789

(eServed)

Wayne L. Helsby, Esquire

Allen, Norton & Blue, P.A.

1477 West Fairbanks Avenue, Suite 100

Winter Park, Florida 32789

(eServed)

Richard Manzo, Esquire

Manzo Law Firm

5095 South Washington Avenue

Titusville, Florida 32780

(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.