16-004415 Justin (Michael) King vs. Overhead Door Corp., D/B/A Wayne Dalton Status: Closed Recommended Order on Tuesday, May 23, 2017.

Summary: Petitioner failed to establish a prima facie case of disparate treatment or retaliation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JUSTIN (MICHAEL) KING,

Petitioner,

vs. Case No. 16 - 4415

OVERHEAD DOOR CORP., d/b/a WAYNE

DALTON,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notic e, a final hearing was conducted in this

case on October 12, 2016, December 16, 2016, and February 9,

2017, in Pensacola, Florida , before Garnett W. Chisenhall, a

duly - designated Administrative Law Judge of the Division of

Administrative Hearings (ÐDOAHÑ).

APPEARANCES

For Petitioner: Justin Michael King, pro se

2237 Kingfisher Way

Pensacola, Florida 32534

For Respondent: B. Tyler White, Esquire

Jackson Lewis P.C.

Suite 902

501 Riverside Avenue

Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

The issue is whether Respondent, Overhead Door Corporation,

d/b/a Wayne Dalton (ÐOverhead DoorÑ) , committed an unlawful

employment practice against Petitioner (ÐJustin KingÑ) by

subjecting him to disparate treatment based on his race, and/or

retaliating against him .

PRELIMINARY STATEMENT

Mr. King filed a Charge of Discrimination with the Florida

Commission on Human Relations (Ðthe CommissionÑ) on July 8,

2015, alleging that he was subjected to disparate treatment

during his employment with Overhead Door.

The Commission conducted an investigation and issued a

Determination on June 29, 2016, concluding that there was no

reasonable cause to believe that an unlaw ful employment practice

had occurred:

[Mr. King] filed a charge of discrimination

against [Overhead Door] alleging that he was

disciplined, retaliated against and

discharged based on his race. The facts and

evidence as set forth in the Investigative

Mem orandum do not support [Mr. King]Ós

allegation. The evidence in this matter

reveals that [Mr. King] was discharged for

repeated acts of insubordination not because

of race. [Mr. King] failed to provide any

competent substantial evidence to prove that

he was discharged based on his race or that

he was retaliated against for engaging in a

protected activity.

Mr. King responded by filing a Petition for Relief with the

Commission on July 28, 2016. 1/

On July 28, 2016, the Commission referred this matter to

DOAH for a formal administrative hearing.

The final hearing was commenced as scheduled on October 12,

2016. Because the final hearing coul d not be completed that

day, the undersigned conducted add itional proceedings on

December 16, 2016, and February 9, 2017.

Mr. King offered Exhibits 1 and 3 , and they were accepted

into evidence without objection. Mr. King offered Exhibit 2,

and that exhibit was marked for identification during the final

hearing without a ruling being made as to its admissibility.

The undersigned now accepts Exhibit 2 into evidence due to the

lack of any prejudice to Overhead Door.

Mr. King called himself as a witness.

Overhead DoorÓs Exhibits 1 through 9 and 11 through 16 were

admitted into evidence . The undersigned provisio nally accepted

Overhead DoorÓs Exhibit 10 into evidence over a hearsay

objection . However, the undersigned reserved ruling on

Exhibit 10Ós ultimate admissibility in order to ascertain if it

would supplement or corroborate other non - hearsay evidence.

Over head DoorÓs Exhibit 10 is now accepted into evidence.

Overhead Door presented the testimony of Don Duncan, Jack

Miller and Michael Vazzana .

Transcripts from the aforementioned hearing dates were

filed with DOAH on March 9, 2017, March 24, 2017, March 2 7,

2017, and March 28, 2017.

After receiving two extensions, Overhead Door filed a

timely Proposed Recommended Order on April 21, 2017.

Because Mr. King filed a timely Proposed Recommended Order

prior to the undersigned granting Overhead DoorÓs first

e xtension motion, the undersigned sua sponte gave Mr. King an

opportunity to file an amended proposed recommended order

following the filing of Overhead DoorÓs Proposed Recommended

Order. In compliance with the undersignedÓs ÐOrder Granting

RespondentÓs Se cond ÒMotion for Extension of Time to Submit

Recommended Order,ÓÑ Mr. King filed a timely Proposed

Recommended Order on May 2, 2017.

FINDING S OF FACT

Based on the oral and documentary evidence adduced at the

final hearing and the entire record in this pr oceeding, the

following Findings of Fact are made:

Findings Regarding the Parties

1. Overhead Door manufactures residential and commercial

garage doors and has plants in Florida, Oregon, and Washington.

Overhead DoorÓs Florida facility is located in Pen sacola .

2. Overhead Door has policies prohibiting unlawful

discrimination. For example, one provision with in Overhead

DoorÓs employee handbook stated that :

We have a policy of Equal Employment

Opportunity and will not discriminate

against any employee or applicant for

employment because of race, color, religion,

sex, national origin, disability, age,

marital status, veteran status, or sexual

orientation in those states, cities, or

counties where it is a violation of the law.

In compliance with Section 503 of the

Rehabilitation Act of 1973 and Section 402

of the Vietnam Era Veterans Readjustment

Assistance Act of 1974, the CompanyÓs

affirmation of non - discrimination also

applies to qualified disabled veterans,

veterans of the Vietnam era or any other war

era and handicapped persons.

We will not tolerate any form of prohibited

discrimination including harassment. In

keeping with this policy of equal employment

opportunity, we will continue to recruit,

hire, train, and promote into all job levels

the most qualified individuals without

regard to their race, color, religion, sex,

national origin, disability, age, marital

status, veteran status, or sexual

orientation, in those states, cities, or

counties where it is a violation of the law,

by ensuring that we base all employment

decisions only on valid job requirements.

Similarly, we will continue to administer

all other personnel matters such as

compensation, benefits, transfers,

reductions, education, tuition assistance,

and social and recreational programs in

accordance with our policy of Equal

Employment Opportunity.

3. Overhead Door also h as a policy against retaliation

providing in pertinent part that, Ð We will not subject employees

and applicants for employment to harassment, intimidation,

threats, co ercion, or discrimination because they have, in good

faith, filed a complaint pursuant to this policy . . .Ñ

4. In January of 2014, Overhead Door hired Mr. King, an

African - American male, as a temporary employee at its Pensacola

facility .

5. Mr. King w orked in the facilityÓs small roll form

(ÐSRFÑ) department. The SRF department is responsible for

making the parts used by every other department in the Pensacola

facility.

6. The SRF department has 20 to 24 employees, and five to

six are African - Ameri can. Approximately 80 percent of the

employees at Overhead DoorÓs Pensacola facility are African -

American.

7. Overhead Door refers to forklift drivers as Ðmaterial

handlers.Ñ At the beginning of h is tenure at Overhead Door,

Mr. King was the only mater ial handler within the SRF

department . As such, he was responsible for transporting goods

to other departments, emptying out trash bins, and keeping the

production lines supplied with materials.

8. Mr. King reported directly to Jack Miller, who is the

lead person in the SRF department. Mr. Miller reports to

Michael Vazzana who manages the Pensacola facilityÓs tool and

die and SRF departments.

9. Based on the recommendations of Mr. Miller and

Mr. Vazzana , Overhead Door hired Mr. King as a permanent

e mployee on June 1, 2014.

Findings Regarding t he Alleged Incidents of Disparate Treatment

10. Overhead DoorÓs employee handbook states that Overhead

Door is a Ðdrug - free and alcohol - free workplace to ensure a

productive and safe environment for all employe es.Ñ

Accordingly, Overhead Door has Ðzero toleranceÑ for violations

of that policy and reserves the right to terminate employment

for fi rst violations.

11. In addition, the employee handbook provides that

Overhead Door Ðwill immediately drug and/or alcoh ol test any

employee who caused, contributed to, or was involved in an on -

the - job accident.Ñ Mr. King acknowledged through a written

signature that he was aware of the aforementioned polices when

he became a permanent employee of Overhead Door.

12. On July 31, 2014, Mr. King Ós forklift collided with a

barrel filled with brackets , and the brackets spill ed onto the

floor.

13. Mr. Miller did not witness the accident , but Mr. King

reported it to him soon thereafter. In accord with Overhead

DoorÓs drug - t esting policy, Mr. Miller immediately required

Mr. King to take a drug test , and Mr. King passed.

14. A subsequent drug test of another employee at Overhead

Door led Mr. King to conclude that he had been subjected to

disparate treatment via the aforemen tioned drug test .

15 . Josh Isaac, an African - American material handler who

worked outside the SRF department, dropped a pallet during the

morning of September 16, 2014 , and product damage occurred .

Mr. Isaac was subsequently drug tested.

16 . Because his accident on July 31, 2014, resulted in no

product damage, Mr. King believes that he should not have been

drug - tested. However, Overhead DoorÓs post - accident drug -

testing policy makes no distinction as to whether product damage

occurred. Therefore, t he greater weight of the evidence

indicates that Mr. KingÓs July 31, 2014, drug test was not

disparate treatment.

17 . The remaining allegations of disparate treatment

primarily pertain to Mr. KingÓs workload and the division of

duties between himself an d a second material handler .

18 . During the first five months of his tenure at Overhead

Door, Mr. King expressed no concerns about his workload.

19. Overhead Door experienced a great deal of growth in

2014. At some point in June of 2014, Mr. King told Mr. Miller

and Mr. Vazzana that he was overwhelmed.

20. At that point in time, Don Duncan was the regi o nal

human resources manager for Overhead Door and was physically

located at the Pensacola fac ility. He, Mr. Miller, and

Mr. Vazzana responded to Mr. KingÓs concern by study ing the

situation and concluding that the SRF department needed a second

material handler.

21. After gaining approval from Overhead DoorÓs corporate

headq uarters to hire a second material handler, the Pensacola

facility advertise d this new position internally and ultimately

hired Manny Torres in September of 2014 .

22. Mr. Torres is Hispanic and had been working for

Overhead Door outside the SRF department.

23. Mr. Vazzana and Mr. Miller created job descriptions

for both of t he material handler positions now within the SRF

department. Mr. King would be Material Handler A and be

responsible for keeping the production lines running, taking

finished goods off the production lines, and brin g ing raw

materials to the production lin es.

24. As Material Handler B, Mr. Torres was responsible for

ensuring that inventory was transported to the proper storage

area s . Mr. Torres was also responsible for taking items to

shipping.

25. Mr. King was never satisfied that the division of

duti es between himself and Mr. Torres was equitable . Mr. King

always felt that Over head DoorÓs management gave Mr. Torres

preferential treatment by: (a) allocating fewer

responsibilities to Mr. Torres ; and (b) consciously allowing him

to neglect the responsi bilities he did have .

26. Approximately one month after Mr. Torres began working

as Material Handler B, Mr. King approached Mr. Duncan and stated

that he was doing more work than Mr. Torres.

27. Mr. Duncan responded by asking Mr. Vazzano and

Mr. Mill er to review the duties allocated to the Material

Handler A and Material Handler B positions.

28. Mr. Vazzano and Mr. Miller re - examined the allocation

of duties and adjusted them in order to make th e division of

responsibilities equal.

29. After mee ting with M r. Duncan, Mr. Vazzano, and

Mr. Miller to discuss the reallocation of duties, Mr. King and

Mr. Torres appeared to be satisfied.

30. However , two or three weeks later, Mr. King again

appro ached Mr. Duncan and complained that he was still doing

m ore work than Mr. Torres.

31. Mr. D uncan asked Mr. Vazzano and Mr. Miller to

re - examine the duties allocated to the Material Handler A and

Material Handler B positions a second time.

32. Mr. Miller and Mr. Va zzano met with Mr. King and

Mr. Torre s on November 11, 2014 . This meeting resulted in a

further reallocation of duties between Material Handler A and

Material Handler B pertaining to the removal of scrap and trash.

33. The November 11, 2014, meeting also addressed ongoing

communication iss ues between Mr. King and Mr. Torres. While the

reasons as to why they did not work well together are unclear,

it is perfectly clear that Mr. King and Mr. TorresÓ working

relationship was toxic.

34. Mr. Vazzano counseled Mr. King and Mr. Torres on the

n eed for them to work together and to have mutual respect for

their coworkers.

35. O n November 20, 2014 , Overhead DoorÓs Pensacola

facility was experiencing great difficulty because of employee

absences and a particularly heavy workload. As a result, a

supervisor outside the SRF department directed Mr. Torres away

from his normal duties and had him assisting the material

handlers outside the SRF department.

36. Mr. King was un aware that Mr. Torres had been directed

away from his normal duties.

37. Ov er the course of that day, Mr. Miller asked Mr. King

three times to retrieve pallets from an outside storage area.

Mr. King responded by stating he had other tasks that needed to

be accomplished and that he was not receiving any support from

Mr. Torres. Also, Mr. King objected to retrieving the pallets

because he felt that was Mr. TorresÓ responsibility as Material

Handler B.

38. Mr. King eventually retrieved the pa llets after

Mr. Vazzano intervened and directed him to do so.

39. The November 20, 20 14, incident resulted in Mr. King

receiving an employee counseling report (Ða write - upÑ) for

insubordinat ion . The write - up noted that this was a Ðfinal

warningÑ and that Ð[t]he next breach of discipline, act of

insubordination or rule violation will resul t in immediate

termination.Ñ 2 /

40. Because of the ongoing problems between Mr. King and

Mr. Torres, Overhead DoorÓs management decided on December 4,

2014, that Mr. King and Mr. Torres would exchange

responsibilities. In other words, Mr. King would be Material

Handler B, and Mr. Torres would be Material Handler A.

41. The greater weight of the evidence indicates that

there was no disparate treatment with regard to how Overhead

Door allocated duties between Mr. King and Mr. Torres. To

whatever extent that Mr. King had greater responsibilities

during any point in time, Overhead DoorÓs management did its

best to alleviate the situation so that Mr. King and Mr. Torres

would have identical workloads.

42. Nevertheless, the t ension between Mr. King and

M r. Torres continued.

43. On December 9, 2014, Mr. Vazzano asked Mr. King to

locate coils and write down their location. When Mr. King

responded by stating that he had no training for that task,

Mr. Vazzano stated that he would send Mr. Mil ler to train hi m.

However, Mr. Miller was unavailable at that time, and Mr. Torres

was sent to train Mr. King.

44. After Mr. King re fused to take training from

Mr. Torres, Mr. Vazzano deemed him to be insubordinate and

issued a third write - up.

45. Mr. King brou ght this latest incident to Mr. DuncanÓs

attention, and Mr. Duncan agreed that Mr. King should not have

been disciplined. I n reaching that conclusion, Mr. Duncan

reasoned that it had been unwise to expect Mr. King to accept

training from Mr. Torres given the ir tense working relationship.

46. On December 17, 2014, Mr. King saw Mr. Miller loading

a flatbed truck while Mr. Torres stood by . 3/ This upset Mr. King

because Mr. Miller was performing a task within the scope of

Material Handler AÓs duties, and Mr. Miller never did that when

Mr. King was Material Handler A.

47. Mr. Torres was unfamiliar with the products that were

being shipped at that time, and Mr. Miller wanted to ensure that

the truck was safely loaded and evenly balanced.

48. Rather than be ing an example of disparate treatment,

the greater weight of the evidence indicat es Mr. Miller was

provid ing training to Mr. Torres.

49. Mr. King alleged that he usually had to clear items

from a dock in order to load a truck when he was Material

Handler A. According to Mr. King, the outside material handlers

sh ould have clear ed the dock, and Mr. Torres never had to do

that when he became Material Handler A.

50. The greater weight of the evidence does not

demonstrate that this circumstance amounts to d isparate

treatment. Moreover, Overhead Door appears to have addressed

the issue by having Mr. King and Mr. Torres switch roles.

Findings Regarding the Alleged Retaliation

51. At approximately 4:00 p . m . on December 30 , 2014,

Mr. Miller asked Mr. King to empty a trash hopper that was

overflowing with pieces of scrap steel.

52. Mr. King determined that his fork lift was not strong

enough to lift th at particular hopper , and Mr. King reported

th at to Mr. Miller in his office . Mr. Miller responded by

i nstruct ing Mr. King t o use a stronger forklift. Mr. Miller

also told Mr. King to finishing emptying the hopper before he

left work that day.

53. Material Handler A and Material Handler B were

responsible for emptying the hoppers.

54. Mr. Torres was in Mr. MillerÓs office when Mr. King

reported the situation with the overflowing hopper.

55. Because Mr. Miller did not instruct Mr. Torres to

assist with the overflowing hopper, Mr. King viewed this as

another example of Mr. Torres receiving preferential treatment.

56. Mr. King became upset . In the course of emptying the

overflowing hopper, several pieces of scrap steel fell onto the

floor, and Mr. King left work for a pre - arranged vacation

without picking up the pieces of scrap .

57. Soon thereafter, Mr. Miller discovered that Mr. King

had left work without removing the spilled pieces of scrap steel

from the floor. That amounted to a safety hazard because the

pieces of scrap steels were razor sharp and covered with oil.

58. Mr. Vazzana discussed t hi s situation with Mr. Duncan

later that day and recommended that Mr. King be terminat ed .

However, Mr. Duncan had to discuss potential terminations with

Overhead DoorÓs Vice President of Human Resources.

59. Ultimately, the Vice President of Human Reso urces

agreed with the termination rec ommendation after reviewing

Mr. KingÓ s personnel file.

60. Mr. King learned of his termination in early January

after return ing from his vacation.

61. Because the pieces of scrap steel left on the plant

floor amount ed to a safety hazard, Overhead Door had just cause

for terminating Mr. King on December 30, 2014. The greater

weight of the evidence demonstrates Mr. KingÓs termination was

not retaliation for his complaints of disparate treatment. 4 /

Findings Regardin g Mr. KingÓ s Allegations of Belonging to a

Protected Class

62. Mr. King alleged in the Charge of Discrimination filed

with the Commission on July 8, 2015, that ÐI believe I was

discriminated against and ultimately terminated because of my

race, African American, and in retaliation for repeatedly

complaining about discrimination in violation of Title VII of

the Civil Rights Act of 1964, as amended, and the Florida Civil

Rights Act, Chapter 760, Florida Statutes.Ñ

63. However, Mr. KingÓs testimony indicat ed that he

believed that he was subjected to disparate treatment because

(unlike many of his coworkers) he had a college degree and

lacked a criminal background:

ALJ: Are you saying, Mr. King, that because

you were able to read employee handbooks and

know what your rights are and then exercise

those rights, that made you a less desirable

employee because if something was going

wrong you would speak up for yourself, but

someone else who didnÓt have a college

degree, maybe had a criminal background, it

is li ke maybe their last chance for a job,

so theyÓre not going to do anything. They

are just going to take Î live with an

undesirable environment and not speak up for

themselves?

A: Yes, Your Honor.

ALJ: Okay.

Q: So are you saying that that had anythi ng

to do with your race?

A: As it pertains to me being the only

African - American inside material handler,

yes, it also did. And like I said, and that

is what the part was, it also pertains to

the systematic racial and discrimination,

ye s .

Q: But you a re saying you are the only

African - American inside material handler,

but you were the only inside material

handler up until August when Manny Torres

became an inside material handler, correct?

A: N ot Jack Miller, Josh Isaac, he was an

outside material ha ndler.

Q: And he is African - American, correct?

A: And that is where the systematic parts

come in and that is where the status of Josh

Isaac and myself [differs], because he has a

different background as I have as it

pertains to educational and it perta ins to

criminal background. We have two different

backgrounds.

Q: So are you saying that the company, Jack

Miller and Michael Vazzana, wanted someone

who is less educated and willing to go along

with whatever they wanted them to do?

A: As it pertain s to exactly what the Judge

just stated, that is everything that I

stated, the difference between me and any

other African - American associate. 5 /

CONCLUSIONS OF LAW

64. The Division of Administrative Hearings has

jurisdiction over the parties and the sub ject matter of this

proceeding pursuant to sections 120.569 and 120.57, Florida

Statutes (2016) , 6 / and Florida Administrative Code Rule 60Y -

4.016(1).

65. The State of Florida, under the legislative scheme

contained in sections 760.01 Î 760.11 and 509.092, F lorida

Statutes, known as the Florida Civil Rights Act of 1992 (Ðthe

FCRAÑ) , incorporates and adopts the legal principles and

precedents established in the federal anti - discrimination laws

specifically set forth under Title VII of the Civil Rights Act

of 1 964, as amended. 42 U.S.C. § 2000e, et seq .

66. S ection 760.10 prohibits discrimination Ðagainst any

individual with respect to compensation, terms, conditions, or

privileges of employment, because of such individual's race,

color, religion, sex, nationa l origin, age, handicap, or marital

status.Ñ § 760.10(1)(a), Fla. Stat.

67. Mr. King allege d in his Charge of Discrimination that

he was the victim of disparate treatment under the FCRA; in

other words, he claimed that he was treated differently because

of his race. He also alleges that Overhead Door retaliated

against him when he was terminated following the incident with

the overflowing hopper. As a result, Mr. King has the burden of

proving by a preponderance of the evidence that Overhead Door

discri minated against him. See Fla. DepÓt of Transp. v . J.W.C.

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

68. A party may prove unlawful race discrimination by

direct or circumstantial evidence. Smith v. Fla. DepÓt of

Corr. , Case No. 2:07 - cv - 631 (M.D. Fla. May 27, 2009); 2009 U.S.

Dist. LEXIS 44885 (M.D. Fla. 2009). When a petitioner alleges

disparate treatment under the FCRA, the petitioner must prove

that his race Ðactually motivated the employerÓs decision. That

is, the [petitionerÓs race] Òmust have actua lly played a role

[in the employerÓs decision making] process and had a

determinative influence on the outcome.ÓÑ Reeves v. Sanderson

Plumbing Prods ., Inc. , 530 U.S. 133, 141 (2000)(alteration in

original).

69. Direct evidence is evidence that, Ðif bel ieved, proves

[the] existence of [a] fact in issue without inference or

presumption.Ñ Burrell v. Bd. of Trs. of Ga. Mil. Coll. ,

125 F.3d 1390, 1393 (11 th Cir. 1997). Direct evidence consists

of Ðonly the most blatant remarks, whose intent could be nothin g

other than to discriminateÑ on the basis of an impermissible

factor. Carter v. City of Miami , 870 F.2d 578, 582 (11 th Cir.

1989).

70. There is no direct evidence of unlawful race

d iscrimination in the instant case . That is not uncommon

because Ð d ire ct evidence of intent is often unavailable.Ñ

Shealy v. City of Albany , 89 F.3d 804, 806 (11th Cir. 1996).

Accordingly , those who claim to be victims of intentional

discrimination Ðare permitted to establish their cases through

inferential and circumstant ial proof.Ñ Kline v. Tenn. Valley

Auth. , 128 F.3d 337, 348 (6th Cir. 1997).

71. To prove unlawful discrimination by circumstantial

evidence, a party must establish a prima facie case of

discrimination by a preponderance of the evidence. If

successful, t his creates a presumption of discrimination. Then

the burden shifts to the employer to offer a legitimate, non -

discriminatory reason for the adverse employment action. If the

employer meets that burden, the presumption disappears and the

employee must pr ove that the legitimate reasons were a pretext.

Valenzuela v. GlobeGround N. Am., LLC , 18 So. 3d 17, 25 (Fla. 3d

DCA 2009) . Facts that are sufficient to establish a prima facie

case must be adequate to permit an inference of discrimination.

Id.

72. Un d er the McDonnell Douglas framework , one can

est ablish a prima facie case of discrimination by demonstrat ing

that : (a) he is a member of a protected class; (b) he was

qualified for the position held; (c) he was subjected to an

adverse employment action; an d (d) other similarly - situated

employees, who are not members of the protected group, were

treated more favorably. See McDonnell Do uglas Corp. v. Green ,

411 U.S. 792, 802 (1973). ÐWhen comparing similarly situated

individuals to raise an inference of dis criminatory motivation,

these individuals must be similarly situated in all relevant

respects.Ñ Jackson v. BellSouth Telecomm. , 372 F.3d 1250,

1273 (11 th Cir. 2004).

73. With regard to the first element of a prima facie

case, Mr. King belongs to a pro tected class, and his Charge of

Discrimination filed with the Commission cited race as the basis

for discrimination. However, Mr. King testified that Overhead

Door discriminated against him because he has a college degree

and lacked a criminal record.

7 4. Mr. KingÓs testimony on this point, by itself, would

be grounds to conclude that he failed to present a prima facie

case. See generally Francis v. DepÓt of Juv . Just . , Case

No. 05 - 2958 (Fla. DOAH Sept. 1, 2006; FCHR Feb. 15, 2007)

( stating ÐPetitioner did not timely raise any allegation of

discrimination against her status as a college student, but in

an abundance of caution, it is here concluded that status as a

college student is not a protected class under Chapter 769,

Florida Statutes.Ñ) .

75. Ne vertheless, even if the undersigned were to overlook

Mr. KingÓs testimony regarding the asserted basis for the

alleged discrimination, the undersigned would still conclude

that Mr. King has failed to present a prima facie case.

7 6 . With regard to Mr. Ki ng having to take a drug test,

Overhead DoorÓs drug - testing policy made no distinction between

accidents that resulted in product damage and those that did

not. As a result, Mr. King cannot demonstrate that a similarly

situated employee outside his protec ted class was treated more

favorably. See Jones v. Bessemer Carraway Med. Ctr. , 137 F.3d

1306, 1311 (11 th Cir. 1998)(noting that Ð[i]f Plaintiff fails to

identify similarly situated, nonminority employees who were

treated more favorably, her case must fai l because the burden is

on her to establish her prima facie case.Ñ).

7 7 . As for Mr. KingÓs allegation that Mr. Torres received

more favorable treatment from Overhead Door with regard to job

responsibilities, the greater weight of the evidence

demonstrat es that Overhead Door went to great efforts to address

Mr. KingÓs concerns by reallocating the duties of Material

Handler A and Material Handler B multiple times. In addition,

Overhead Door even had Mr. King and Mr. Torres switch positions

as a means of a ddress ing Mr. KingÓs concern that Mr. Torres was

performing less work than him.

7 8 . With regard to Mr. KingÓs allegation that Mr. Torres

never had to clear a dock when he was Material Handler A, this

allegation (even if accepted as true) is not serious enough or

sufficiently material to rise to the level of an adverse

employment action. ÐNot all conduct by an employer negatively

affecting an employee constitutes adverse employment action.Ñ

Davis v. Town of Lake Park , Fla. , 245 F. 3d 1232, 1238 (11 th

Ci r. 2001) (ruling that the plaintiff, who received one oral

reprimand, one written reprimand, the withholding of a bank key,

and a restriction on cashing non - account holder checks, did not

suffer an adverse employment action). ÐThe asserted impact

cannot be speculative and must at least have a tangible adverse

effect on the plaintiffÓs employment.Ñ Id. at 1239. An

employe e is required to show a Ðserious and material change in

the terms, conditions, or privileges of employment.Ñ Id.

79 . To the extent tha t Mr. King alleges that the multiple

write - ups he received amounted to adverse employm ent actions, he

failed to establish that write - ups were not issued to similarly

situated employees who were insubordinate or who refused

requests to perform tasks well wi thin their capabilities. See

Bessemer Carraway Med. Ctr. , 137 F.3d at 1311.

8 0 . The same reasoning applies to Mr. KingÓs assertion

that his termination was retaliation for his previous

complaints.

8 1 . In order to establish a prima facie case for

retal iation, a petitioner must show that: (1) he was engaged in

a statutorily protected expression or conduct; (2) he suffered

an adverse employment action; and (3) there is some casual

relationship between the two events. Holifield v. Reno ,

1 15 F.3d 1555, 15 66 (11 th Cir. 1997) .

8 2 . Overhead Door terminate d Mr. KingÓs employment after

he disobeyed Mr. MillerÓs direction to empty a hopper and left

work without removing dangerous pieces of steel from the floor.

Mr. King presented no evidence that similarly sit uated employees

did not suffer comparable disciplinary action for committing

comparable acts.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations issue a final or der dismiss ing Justin KingÓs Petition

for Relief from an Unlawful Employment Practice.

DONE AND ENTERED this 23rd day of May , 2017 , in

Tallahassee, Leon County, Florida.

S

G. W. CHISENHALL

Administrative Law Judge

Divis ion of Administrative Hearings

The DeSoto Building

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 23rd day of May, 2017 .

ENDNOTE S

1/ Mr. King indicated during the final hearing that racial slurs

had been directed toward him during his tenure at Overhead Door.

However, Mr. King made no mention of that in his Petition for

Relief. Because this allegation was raised for the first time

at the final hearing, the undersigned ruled that it could not be

considered. See Adhim Hollis Hosein v. Miami - Dade Pub . Sch . ,

Case No. 07 - 1972 (Fla. DOAH Sept. 28, 2007; FCHR Dec. 17,

2007)(stating ÐÒ [o]nly those claims that are fairly encompassed

within a [timely - filed complaint] can be the subject of [an

administrative hearing conducted pursuant to Sections 120.569

and 120.57, Florida Statutes]Ó and any subsequent FCHR award of

relief to the complainant.Ñ)(citing Chambers v. Am . Trans Air,

Inc. , 17 F.3d 998, 1003 (7 th Cir. 1994); Gwendolyn Salter v.

Int Ó l Paper , Case No. 06 - 0339 (Fl a. DOAH Nov. 3, 2006; FCHR

Jan. 29, 2007)( stating that Ð[t]he Division of Administrative

Hearings and the undersigned [are] without jurisdiction of any

claim not raised in the initial charge of discrimination before

the Commission. New or different types of discrimination cannot

be alleged in the Petition for Relief or at the formal

proceeding instituted under Sections 120.569 and 120.57(1),

Florida Statutes, unless they were originally alleged in the

Charge of Discrimination and investigated by the Commission. Ñ).

2/ Mr. King had received o ther w rite - ups. One occurred on

July 29, 2014, and pertained to an incident on July 21, 2014.

According to the writ e - up, Mr. King was loading a bin onto a

trailer. However, the bin tipped over and caused numerous parts

to be damaged. Rather th an reporting this accident, Mr. King

picked up the parts and put them back in the bin. Ultimately,

the parts were deemed unus able and returned to Overhead DoorÓs

Pensacola facility. The second write - up pertained to an

incident on September 4, 2014. Mr. Miller and Mr. King were in

Mr. MillerÓs office and discussing how Mr. King had been using a

cell phone during working hours. Mr. King argued that he was

being singled out for this particular violation and complained

that Overhead DoorÓs management was not responsive to his

complaints. According to Mr. Miller, Mr. King continually

interrupted him and would not allow Mr. Miller to address any of

his complaints. Mr. Miller gave Mr. King a write - up for this

incident and characterized Mr. KingÓs conduct as

Ðinsubordination and attempt at intimidation.Ñ

3 / Mr. King testified that Mr. Torres was talking on a cell

phone while Mr. Miller was loading the truck. However, it is

unlikely that Mr. Miller performed a subordinateÓs work while

knowingly allowing that subordinate to talk on a cell phone.

4 / Mr. King also alleged that he was retaliated against

because he called a 1 - 800 h otline maintained by a third - party

administrator that is available to Overhead Door employees

who wish to report an ethics violation. While a reporting

employee is asked his or name, they are not required to give it.

Mr. Duncan, Mr. Miller, and Mr. Vanaz za testified that they had

no knowledge of Mr. King ever utilizing the hotline. As a

result, the greater weight of the evidence does not support this

allegation of retaliation.

5 / Mr. King never complained to Mr. Duncan, Mr. Miller, or

Mr. Vanazza that he was being treated unfairly du e to his race.

6 / U nless stated otherwise, all statutory references will be to

the 2016 version of the Florida Statutes.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

40 75 Esplanade Way

Tallahassee, Florida 32399

(eServed)

Jodie Hayes

Overhead Door Corporation, d/b/a Wayne Dalton

Suite 200

2501 South State Highway 121

Lewisville, Texas 75067

Justin Michael King

2237 Kingfisher Way

Pensacola, Florida 32534

Benjamin D . Sharkey, Esquire

Jackson Lewis, Attorneys at Law

Suite 902

501 Riverside Avenue

Jacksonville, Florida 32202

(eServed)

B. Tyler White, Esquire

Jackson Lewis, P.C.

Suite 902

501 Riverside Avenue

Jacksonville, Florida 32202

(eServed)

Cheyanne Costilla, General Counsel

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 R ecommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.