16-003766 Timothy Brooks vs. Piper Aircraft, Inc. Status: Closed Recommended Order on Friday, January 6, 2017.

Summary: Petitioner failed to prove his termination from employment was the result of retaliation based upon protected behavior.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TIMOTHY BROOKS,

Petitioner,

vs. Case No. 16 - 3766

PIPER AIRCRAFT, INC.,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice this case was heard on S eptember 12,

2016, before J. D. Parrish, Administrative Law Judge, Division of

Administrative Hearings (DOAH), in Sebastian, Florida.

APPEARANCES

For Petitioner: Adrienne Eent, Esquire

Adrienne Eent, P. A.

836 Executive Lane, Suite 120

Rockledge, Florida 32955

For Respondent: Patrick M. Muldowney, Esquire

Ashley M. Schachter, Esquire

Baker & Hostetler, LLP

Post O ffi ce Box 112

Orlando, Florida 3280 2

STATEMENT OF THE ISSUE S

Whether Piper Aircraft, Inc. (Respondent) , terminated

Timothy Brooks (Petitioner) from his employment in retaliation

for his complaints about the company Ós treatment of Peggy Sue

Pitts, a female employee who claimed sexual harassment. And, if

so, whether PetitionerÓs behavior was protected by law.

PRELIMINARY STATEMENT

The Florida Commission on Human Relations (FCHR) forwarded

this case to DOAH in order to co nduct an administ rative hearing

based upon PetitionerÓs claim of discrimination. Petitioner

alleged that Respondent retaliated against him on the basis of

complaints raised in the work place that were protected by law.

Petitioner maintains he had performed well in his po sition with

the company and that the company wanted to dismiss him for

statements he made challenging the companyÓs manner of doing

business. After its investigation of the allegations , FCHR

rendered a determination of no cause. Petitioner timely

challen ged that decision and the matter was referred to DOAH.

At the hearing , Petitioner testified on his own behalf and

presented the testimony of Peggy Sue Pitts, Phillip J. Stowell,

Timothy Smith, James Barnett, and James Funk. Exhibits 1, 3

through 7, 9, 11, 13 through 15, 17, 18, 20, and 22 through 25

were admitted into evidence on PetitionerÓs behalf. Respondent

relied upon the testimony of PetitionerÓs witnesses and called

Kathy Flynn during its case . Exhibits 6, 8 through 10, and 14

were admitted for Respondent. The Transcript of the proceeding

was filed on October 19, 2016. The parties timely filed proposed

orders that have been fully considered in the preparation of this

O rder.

FINDING S OF FACT

1. P etitioner is a male former employee of Responden t. His

tenure with the company spanned several years. The quality of

Petitioner Ós work ( that is , his production quality and volume )

was deemed acceptable and was not the basis for discipline.

Respondent laid Petitioner off in 2010 due to economic hardsh ips

of the company but rehired him in May of 2011. Thereafter ,

Petitioner worked continuously for Respondent until his

termination in January of 2015.

2. Respondent is a manufacturing company that employ s

15 or more employees for each working day in each of 20 or more

calendar weeks in the current or preceding calendar year

applicable to this case. Consequently, Respondent is an

ÐemployerÑ as defined by s ection 760.02, Florida Statutes (2015),

during the time frame applicable to this case.

3. Petitioner and another of RespondentÓs employees, Peggy

Sue Pitts, were close friends. As such , Petitioner became

increasingly concerned regarding the treatment Ms. Pitts received

in the work place. Petitioner believed Ms. Pitts was the victim

of inappropriate con duct and that Respondent failed to take

appropriate measures to protect Ms. Pitts from harassment and

inequitable treatment.

4. Additionally, over the course of his employment with

R espondent , Petitioner became concerned that employees were not

treated eq ually in terms of compensation for the work being

performed. His informal assessment led to the opinion that

Ms. Pitts and others were paid less for doing the same work that

others were paid more for completing. On more than one occasion

Petitioner voic ed his thoughts regarding the workplace inequities

to management.

5. Eventually, PetitionerÓs conduct in attempting to

intercede on behalf of Ms. Pitts and others led to a verbal

warning documented by a Performance/Behavior Improvement Notice

that notifie d Petitioner he was inappropriately involving himself

in the personal issues of his co - workers to the detriment of the

workplace. Essentially, Respondent wanted Petitioner to mind his

own business. The warning noted above was issued on March 10,

2014.

6 . At the time of the warning noted above , Petitioner was

directed to contact RespondentÓs H uman R esources O ffice if he

felt that the company needed to be made aware of a concern.

Respondent did not want Petitioner raising issues with co - workers

to stir u p matters that should be addressed elsewhere.

Petitioner refused to sign the warning notice.

7. Petitioner continued to discuss the perceived inequities

with co - workers. On July 10, 2014, Respondent issued a written

warning, Performance/Behavior Improv ement Notice, which cited

similar matters as before. Petitioner was warned that it was his

Ðlast chanceÑ to stop meddling in the business matters of others.

Further , Petitioner was transferred to another department within

the company.

8. In response to the second reprimand , Petitioner met with

James Funk, RespondentÓs c hief o perating o fficer, and expressed

his concern that he had been unfairly treated. Mr. Funk advised

Petitioner to take his issue to the companyÓs Peer Review

Committee. The Peer Revie w Committee had the authority to review

employee disciplinary actions up to and including termination.

Moreover, if the committee determined that Petitioner had been

unfairly treated , its finding and recommendation to the

Respondent would be accepted.

9. In this case, however, the Peer Review Committee did not

find the reprimand to be inappropriate. The Ðlast chanceÑ

warning became the final disciplinary ruling on the matter.

10. Over the course of the next four or five months

Ms. Pitts, who was by n ow PetitionerÓs girlfriend or fianc,

continued to be frustrated by her perception of the treatment she

received in the workplace. On the morning of January 8, 2015,

Ms. Pitts decided to resign from her employment with Respondent.

Ms. Pitts asked Petitio ner to turn in her employee badge and

stamp for her.

11. On the afternoon of January 8, 2015, Petitioner went to

the executive offices to talk to Mr. Funk regarding Ms. PittsÓ

resignation. Kathy Flynn, Mr. FunkÓs executive assistant,

assisted Petitioner and gave him Mr. FunkÓs email address.

During the course of his exchange with Ms. Flynn , Petitioner

expressed his displeasure with Jimmy Barnett and Tim Smith , who m

he blamed for the perceived treatment Ms. Pitts had endured. In

discussing the matter , Pe titioner expressed his anger and desire

to Ðbeat the shit out of someone.Ñ Petitioner called Mr. Barnett

and Mr. Smith Ðpieces of shit.Ñ Ms. Flynn memorialized the

comments later that afternoon.

12. Next, Petitioner went to Mr. BarnettÓs office and

tur ned in Ms. PittsÓ badge and stamp and told Mr. Barnett that

Ms. Pitts was quitting. Petitioner told Mr. Barnett that he was

so angry he could throw him (Mr. Barnett) out the window. In

response , Mr. Barnett called Mr. Smith and asked for a meeting

with P etitioner.

13. Mr. Barnett and Petitioner joined Mr. Smith in SmithÓs

office. When offered a seat , Petitioner declined and stated he

was too upset. Mr. Barnett asked Petitioner to confirm his

previous comments and he did. Petitioner confirmed that he w as

upset to the point of throwing Mr. Barnett out the window.

14. Given PetitionerÓs agitated state and verbal threats,

Mr. Barnett and Mr. Smith wrote notes to Mr. Funk recommending

that Respondent issue a suspension and written warning to

Petitioner.

15. Instead, Mr. Funk determined that PetitionerÓs conduct

violated his Ðlast chanceÑ warning. Taken in totality ,

PetitionerÓs comments to Ms. Flynn and his comments to

Mr. Barnett and to Mr. Smith evidenced to Mr. Funk that

Petitioner should be removed from the workplace.

16. To that end , Mr. Funk authorized a Notice of Employment

Termination on January 12, 2015, and Respondent officially ended

PetitionerÓs employment with the company on that date.

Petitioner refused to sign the notice.

17. Petition er timely filed a charge of discrimination with

the FCHR regarding his termination a nd asserted he had been

terminated in retaliation f or his complaints regarding the

companyÓs sex discrimination against another employee (Ms.

Pitts).

18. On May 20, 2016, FCHR issued its determination of no

reasonable cause. After Petitioner timely filed a petition

challenging that decision, the matter was forwarded to the

Division of Administrative Hearings for a disputed - fact hearing .

CONCLUSIONS OF LAW

19. DOAH has jur isdiction over the subject matter and the

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

Fla. Stat. (2015).

20. Section 760.10 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,

or privileges of employment, because of such

individualÓs race, color, religion, sex,

national origin, age, handi cap, or marital

status.

* * *

(7) It is an unlawful employment practice

for an employer, an employment agency, a

joint labor - management committee, or a labor

organization to discriminat e against any

person because that person has opposed any

practic e 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.

21. Petitioner maintains he was t erminated in retaliation

for his comments and complaints to the company regarding the

companyÓs acts of discrimination against another employee.

Petitioner asserts his comments were protected by law and because

he brought the companyÓs alleged acts of dis crimination to the

forefront he was being punished unfairly.

22. In accordance with s ection 760.11, Petitioner timely

filed his claim with the FCHR.

23. Petitioner has the burden of proving by a preponderance

of the evidence that Respondent committed a n unlawful employment

practice against him. 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. 1 st DCA 1981).

24. Petitioner may establish his case by direct,

statistical, or c ircumstantial evidence. See Valenzuela v.

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

25. In this case Petitioner presented no direct evidence of

discrimination against him. There is nothing in the record to

suggest Respondent maintained a ny bias for or against Petitioner

because of protected conduct. PetitionerÓs assertions of bias

were based upon his perception of the companyÓs treatment of

an other who may be within a protected class (female). Petitioner

was advised to take any concern to the companyÓs human relations

department. Instead, Petitioner continued to inject himself into

a situation that did not concern him. He advocated on behalf of

an other who may or may not have sought his help. He did not have

the authority to do so. R espondent warned him to stop injecting

himself into the work business of others. Respondent issued a

stern, formal warning that Petitioner ignored. Finally,

Petitioner used vulgar and inappropriate language with

unacceptable threats of physical viol e nce to evidence his

displeasure with the company. Respondent terminated Petitioner

because of such behavior , not because it sought to punish him in

retaliation for bringing discrimination complaints to the

companyÓs attention. Respondent gave Petitioner a cl ear

directive of how to express his concerns (to human resources) and

asked him to stop interfering with business. When Petitioner

presented himself to Mr. BarnettÓs office , he was unprofessional,

rude, vulgar, and inappropriate. Vulgar language toward c o -

workers is not protected language. Threats of violence due to

frustration and anger are not protected.

26. To establish discrimination , a claimant 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 similarly

situated employees outside of his protected class more favorably

than he was treated. See Burke - Fowler v. Orange Cnty. , 447 F.3d

1319 (11 th Cir. 2006). Similarly, to clai m retaliation a

claimant must show that the employerÓs employment action was in

retaliation for the employeeÓs assertion of his rights.

27. C ompanies are entitled to reach employment 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 not for

a discriminatory reason.Ñ Nix v. WLCY Radio/Rahall CommcÓns , 738

F.2d 1181, 1187 (11 th Cir. 1984). In this case Respondent made a

legitimate employment decision unrelated to discrimination

against Petitioner and not in retaliation for protected behavior.

28. Assuming arguendo, that PetitionerÓs complaints to

Respondent were protected, there is no causal connection between

those comments and the termination. Petitioner thought he should

be paid more, Ms. Pitts should be paid more, others should be

paid equally, and Ms. Pitts was being sexually harassed. What

caused his termination was his failure to comply with a

reasonable directive, his use of profane language, his threat of

violence, and his failure to stop interfering with the business

after being asked to do so.

RECOMMENDATION

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

L aw , it is RECOMMENDED that the F lorida Commission on Human

Relations enter a final order dismissin g PetitionerÓs claim of

discrimination.

DONE AND ENTERED this 6 th day of January , 201 7 , in

Tallahassee, Leon County, Florida.

S

J. D. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Buildin g

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

this 6 th day of January , 201 7 .

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399

(eServed)

Adrienne Eent, Esquire

Adrienne Eent, P.A.

836 Executive Lane, Suite 120

Rockledge, Florida 32955

(eServed)

Ashley M. Schachter , Esquire

Baker & Hostetler, LLP

Suite 2300

200 South Orange Avenue

Orlando, Florida 32801

(eServed)

Patrick M. Muldowney, Esquire

Baker & Hostetler LLP

Post Office Box 112

Orlando, Florida 32802

(eServed)

Cheyanne Costilla, General Counsel

Florida Com mission on Human Relations

Room 110

4075 Esplanade Way

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 exce ptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.