16-005042 Ryan Pough vs. Soler And Palau Status: Closed Recommended Order on Tuesday, March 21, 2017.

Summary: Petitioner failed to make a prima facie case of employment discrimination; he was fired for poor performance, not because of his race or color.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RYAN POUGH,

Petitioner,

vs. Case No. 16 - 5042

SOLER AND PALAU USA VENTILATION

SYSTEMS, LLC , 1/

Respondent.

_______________________________/

RECOMMENDED ORDER

A formal hearing was conducted in this case on November 8,

2016, in Jacksonville, Florida, before Lawrence P. Stevenson, a

duly - designated Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Ryan Pough, pro se

Apartment N o. 1103

11011 Harts Road

Jacksonville, Florida 32218

For Respondent: Michelle Bedoya Barnett, Esquire

David E. Chauncey, Esquire

Alexander DeGance Barnett, P.A.

1500 Riverside Avenue

Jacksonville, Florida 32204

STATEMENT OF THE ISSUE

The issue is whether Respondent, Soler and P alau USA

Ventilation Systems, LLC (ÐSoler & PalauÑ) , discriminated

against Petitioner based upon his race or color, in violation of

section 760.10, Florida Statutes (2016). 2 /

PRELIMINARY STATEMENT

On or about January 22, 2016, Petitioner , Ryan Pough

("Pe titioner") , filed with the Florida Commission on Human

Relations ("FCHR") an Employment Charge of Discrimination

against Soler & Palau. Petitioner alleged that he had been

discriminated against pursuant to chapter 760, Florida Statutes,

and Title VII of t he Federal Civil Rights Act, based upon race,

as follows:

I am a black male who has been discriminated

[against] on the basis of race and color. I

began working for Respondent on 7/21/2014 as

a Crater. Respondent treats me differently

and assigns more wo rk duties to me compared

to other co - workers. Employees that are

white are favored. I was terminated on

9/18/2015. I firmly believe I have been

discriminated against because of my race and

color.

The FCHR conducted an investigation of PetitionerÓs

alle gations. On July 20, 2016, the FCHR issued a written

determination that there was no reasonable cause to believe that

an unlawful practice occurred. The FCHRÓs determination stated

as follows, in relevant part:

The Complainant in this matter filed a

char ge of discrimination against the

Respondent alleging that he was subjected to

different terms and conditions and

discharged based on race. The facts and

evidence as set forth in the Investigative

Memorandum do not support the ComplainantÓs

allegation. Th e evidence in this matter

reveals that the Complainant was terminated

for poor performance by making shipping

errors. The Complainant was not terminated

based on his race and he failed to provide

any competent substantial evidence to prove

otherwise.

On August 24, 2016, Petitioner timely filed a Petition for

Relief with the FCHR. On August 31, 2016, the FCHR referred the

case to the Division of Administrative Hearings ("DOAH"). The

case was scheduled for hearing on November 3, 2016. On

November 2, 2016 , Petitioner requested a brief continuance due

to a family emergency. The parties agreed to move the hearing

forward to November 8, 2016, on which date it was convened and

completed.

At the hearing, Petitioner testified on his own behalf and

entered Petit ionerÓs Exhibits A through O into evidence.

Respondent presented the testimony of Krissy Velleca, human

resources and payroll administrator for Soler & Palau ; and of

Tracy Noble, distribution warehouse manager for Soler & Palau.

RespondentÓs Exhibits 1 t hrough 13 were entered into evidence.

The one - volume Transcript of the hearing was filed at DOAH

on November 29, 2016. On December 7, 2016, Respondent filed a

motion to extend the time for submitting proposed recommended

orders, which was granted by O rd er dated December 13, 2016. In

accordance with the O rder granting extension, Respondent timely

filed its P roposed R ecommended O rder on December 21, 2016. On

December 20, 2016, Petitioner filed a five - page handwritten

letter addressed to the undersigned, which has been treated

without objection as PetitionerÓs P roposed R ecommended O rder.

FINDING S OF FACT

1. Soler & Palau is an employer as that term is defined in

section 760.02(7). Soler & Palau is mainly in the business of

manufacturing and supplying f ans and other recovery ventilators

to various industries, including residential, commercial,

industrial, and institutional buildings.

2. Petitioner, a black male, was hired at Soler & Palau as

a Crater I in the distribution department at the companyÓs

B - 2 warehouse facility on July 21, 2014. Petitioner was

interviewed and hired by Soler & PalauÓs warehouse distribution

manager, Tracy Noble, who is a white female.

3. As a Crater I, Petitioner was responsible for

fabricating wooden crates or boxes, using woodworking hand tools

and power tools, around the items (mostly industrial fans and

accessories) to be shipped. Crater I was the entry level

position at Soler & PalauÓs warehouse. Petitioner was the only

Crater I at the B - 2 facility, but most , if not al l , of the other

employees at B - 2 had started at the Crater I position and

understood its duties and job requirements.

4. Eight employees worked under Ms. Noble at the

B - 2 facility. Six of those employees were black and two were

white.

5. Ms. Noble tes tified that training as a Crater I

normally takes about 90 days , and that Petitioner was fully

trained. She testified that, although it is an entry level

position, Crater I is very important because Soler & PalauÓs

customers order fans specific to their n eeds and the crater is

responsible for making sure the right fan goes in the crate.

Many Soler & Palau customers are restaurants that cannot open if

the correct equipment is not in place. Some building codes

require specific fans. Each Soler & Palau fan has a specific

drive pack that provides the horsepower to move a specific

amount of air. Two fans may look the same but have very

different capabilities. One fan may meet code for a specific

purpose and one may not.

6. It was PetitionerÓs responsibilit y to review the

orders, which listed everything that should go into the package

by part number. Petitioner would pull the corresponding fan ,

and any accessories (such as a damper or speed controls) , and

place them on a pallet. Petitioner would then build the crate

around the fan. He would weigh the order, record the weight and

dimensions of the package, and turn that information over to the

shipping clerk, who would print the shipping documents and

labels for Petitioner to affix to the package. Petition er would

place the labels on the fan, again making sure that all numbers

matched and that he had the correct fan. Petitioner would then

send out the order.

7. On May 19, 2015, nearly 10 months after his hiring,

Petitioner pulled and shipped the wrong pro duct to a customer.

8. On June 2, 2015, Petitioner again shipped the wrong

product to a customer. The product was needed by another

customer immediately. At its own expense, Soler & Palau rushed

another order to that customer.

9. As a consequence of hi s errors, Petitioner received an

informal warning from Ms. Noble on June 8, 2015. On the same

date, Ms. Noble sent an email to human resources administrator

Krissy Velleca (née Carter) requesting that the informal warning

be noted in PetitionerÓs employee file. Ms. Noble wrote that

the company was going through a transition to new fans that were

very similar to the old ones, and that she counseled Petitioner

Ðto double - check and triple - check himself until the transition

is complete.Ñ She wrote that Petit ioner agreed to watch his

work more closely and that she had asked a couple of other

employees to check behind him Ðuntil we are all used to the

changes.Ñ Finally, Ms. Noble wrote that she did not want to

issue a formal warning to Petitioner because of al l the recent

changes and that she would watch Petitioner to make sure the

problem did not repeat itself.

10. Ms. Noble testified that she had three different

people attempt to retrain Petitioner, out of concern that he was

not catching on to the job becau se of the manner of his original

training.

11. On June 19, 2015, Petitioner again made a mistake on

an order by placing the wrong part number and wrong order

identification on the shipment. Soler & Palau incurred

additional freight and expedited UPS ch arges in correcting

PetitionerÓs mistake. The company also had to deal with a

disappointed customer who had been mistakenly informed that

their shipment was in transit.

12. On June 22, 2015, Ms. Noble issued a formal written

warning to Petitioner for the June 19 incident. The warning

statement read as follows:

This statement will serve as a verbal

warning for Poor Workmanship in accordance

with Section 3.26 of the Employee Handbook.

Gus [ 3 /] is required to always verify that the

fan tag matches the order acknowledgement

with both the order and part number. Both

of these orders were entered 06/19/15 with a

Ðsame dayÑ shipping request that did put

additional workload and time pressures on

the crew, but this is one step that cannot

be skipped. In accordanc e with the company

handbook, any future occurrences of this

same offense can result in a written

warning, (3) days suspension and/or

termination.

13. Petitioner signed the statement, acknowledging that he

had read and understood the formal written warnin g.

14. Ms. Noble testified that Petitioner was again provided

additional training.

15. On July 20, 2015, Ms. Noble completed PetitionerÓs

annual performance review. She noted that Petitioner needed

improvement in the quality of his work and in his knowl edge of

the technical aspects of his job. She further noted that

PetitionerÓs attendance and punctuality verged on an

ÐunsatisfactoryÑ rating.

16. In spite of PetitionerÓs spotty evaluation, Ms. Noble

recommended him for the full three percent raise avai lable to

Soler & Palau employees upon their annu al reviews. In an email

to Ms. Velleca and vice president of operations , Greg Johnson,

Ms. Noble explained her rationale as follows:

Please see attached for GusÓ annual review.

You may question why I am giv ing him the

full 3% when I didnÓt give him a great

review. All of his attendance issues have

stemmed from transportation issues as far as

I remember. I know it must be hard to do

anything about that situation when he is

barely making enough to live on. IÓm hoping

it will make a difference in what he is able

to do to remedy his attendance problems. I

donÓt think there would have been these

issues if there were bus service offered

here, but that is not currently available.

Please let me know if this seem s out of

line. He is currently at the minimum for

his position, so it is not an overly

generous move. Please let me know if you

see anything else that needs to be clarified

or changed.

17. Mr. Johnson responded, ÐI am fine with your decision

and reason ing.Ñ

18. At the hearing, Ms. Noble testified that she knew

Petitioner had trouble getting to work. She thought that if he

were making enough money to get his truck repaired, his

attendance issues would stop and he would feel less stress and

make fewer m istakes on the job. Ms. Noble stated that she does

not like firing people because it causes disruption to the

operation and means that she has to hire and train a new person,

who may or may not turn out to be a good employee. She was

willing to do everyt hing she could to improve PetitionerÓs

deficiencies because he did a good job most of the time.

19. On September 3, 2015, while Ms. Noble was on vacation,

Mr. Johnson discovered that Petitioner had once again shipped

the wrong product to a customer. Mr. Johnson sent an email to

Ms. Velleca inquiring about PetitionerÓs hiring date and job

responsibilities. He wrote, ÐI ask because he just made a

significant mistake in pulling 2 fans for shipment. I need to

dig into how he was trained, are we asking him t o do something

outside his expected responsibilities, etc.Ñ

20. Ms. Velleca testified that she investigated to make

sure that Petitioner was on the job when the error occurred and

that a fill - in had not made the mistake. She stated that she

and Mr. Johns on did not want to take action against Petitioner

if the error was not his fault. She ultimately determined that

Petitioner had made the error.

21. Ms. Velleca testified that the B - 2 facility had

historically been graded as 100 percent efficient and 99 p ercent

error - free by the parent company in Spain. PetitionerÓs errors

were affecting B - 2Ós overall performance. The parent company

was starting to notice a falloff in customer orders and the

additional freight costs attributable to correcting PetitionerÓ s

errors.

22. Upon returning to work, Ms. Noble began her own

investigation of the mistake, which involved PetitionerÓs mixing

up two fans for shipment. On the same day, Ms. Noble caught

Petitioner making yet another error by placing the wrong tags on

a fan. Though she caught this mistake on the warehouse floor

before the fan shipped, Ms. Noble decided that Petitioner had

made too many mistakes and that he should be terminated from

employment with Soler & Palau.

23. On September 18, 201 5, Petitioner was called to

Ms. NobleÓs office and provided with a separation notice from

Soler & Palau. The stated reason for his discharge was

unacceptable performance of his job duties.

24. At the hearing, Petitioner testified that he believed

he was fired because he did not volunteer for overtime work. He

believed that the errors of which he was accused were the fault

of other employees and constituted a pretext for his dismissal.

25. Specifically, Petitioner blamed two delivery truck

drivers for the erroneous deliv eries. They were Gevon Campbell,

who was black, and a white driver whom Petitioner knew only as

Mike. Petitioner claimed that these drivers were charged with

checking the orders and ensuring that they are correct. Aside

from his claim, Petitioner offere d no evidence that the delivery

drivers were responsible for checking the orders. Ms. Noble

persuasively described PetitionerÓs Crater I job as inclusive of

ensuring that the correct items go into the crates.

26. Petitioner also alleged that a wiring tec hnician named

Dave Boyin told him that when he worked as a crater, he made

many mistakes on the job but was nonetheless promoted to a

higher position. Mr. Boyin is white. He did not testify at the

hearing.

27. Ms. Noble testified that she promoted Mr. B oyin to

wiring technician because he was doing a good job as a crater.

She stated that Mr. Boyin made errors during his 90 - day training

period, as does any trainee, but that he made no mistakes as a

crater after his training period was over. Ms. NobleÓs

testimony was persuasive.

28. At the hearing, PetitionerÓs testimony was mostly

directed toward making a case of wrongful termination, not

racial discrimination. At the conclusion of PetitionerÓs

testimony, the undersigned counseled Petitioner that the

j urisdiction of this tribunal was limited to his discrimination

claim. In response, Petitioner stated, ÐI donÓt think it was

race. I donÓt really think it was race, you know what IÓm

saying?Ñ Petitioner continued to insist that he was fired for

refusing to work overtime. Even if PetitionerÓs insistence on

this point were credited, it would not establish that he had

been discriminated against because of his race or color. 4 /

29. Petitioner offered no credible evidence that Soler &

Palau discriminated against him because of his race or color in

violation of section 760.10.

CONCLUSIONS OF LAW

30. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

3 1. The Florida Civil Rights Act of 1992 (the "Florida

Civil Rights Act" or the "Act"), chapter 760, Florida Statutes,

prohibits discrimination in the workplace.

32. Section 760.10 states the following, in relevant part:

(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 compensation, terms, conditions,

or privileges of employment, because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

33. Soler & Palau is an "employer" as defined in section

760.02(7), Florida Statutes, which provides the following:

(7) "Employer" means any person employing

15 or more employe es for each working day in

each of 20 or more calendar weeks in the

current or preceding calendar year, and any

agent of such a person.

34. Florida courts have determined that federal case law

applies to claims arising under the Florida Civil Rights Act,

and as such, the United States Supreme Court's model for

employment discrimination cases set forth in McDonnell Douglas

Corp oration v. Green , 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d

668 (1973), applies to claims arising under section 760.10,

absent dir ect evidence of discrimination. 5 / See Harper v.

Blockbuster EntmÓt Corp. , 139 F.3d 1385, 1387 (11th Cir. 1998);

Paraohao v. Bankers Club, Inc. , 225 F. Supp. 2d 1353, 1361 (S.D.

Fla. 2002); Fla. State Univ. v. Sondel , 685 So. 2d 923, 925 n.1

(Fla. 1st DCA 1996); Fla. DepÓt of Comm. Aff. v. Bryant , 586

So. 2d 1205 (Fla. 1st DCA 1991).

35. Under the McDonnell analysis, in employment

discrimination cases, Petitioner has the burden of establishing

by a preponderance of evidence a prima facie case of unlawful

d iscrimination. If the prima facie case is established, the

burden shifts to the employer to rebut this preliminary showing

by producing evidence that the adverse action was taken for some

legitimate, non - discriminatory reason. If the employer rebuts

the prima facie case, the burden shifts back to Petitioner to

show by a preponderance of evidence that the employer's offered

reasons for its adverse employment decision were pretextual.

See Texas DepÓt of Comm. Aff. v. Burdine , 450 U.S. 248,

101 S. Ct. 1089 , 67 L. Ed. 2d 207 (1981).

36. In order to prove a prima facie case of unlawful

employment discrimination under chapter 760, Petitioner must

establish that: (1) he is a member of the protected group;

(2) he was subject to adverse employment action; (3) S oler &

Palau treated similarly situated employees outside of his

protected classifications more favorably; and (4) Petitioner was

qualified to do the job and/or was performing his job at a level

that met the employerÓs legitimate expectations. See, e.g. ,

Jiles v. United Parcel Serv., Inc. , 360 Fed. Appx. 61, 64 (11th

Cir. 2010); Burke - Fowler v. Orange Cnty . , 447 F.3d 1319, 1323

(11th Cir. 2006); Knight v. Baptist Hosp. of Miami, Inc. , 330

F.3d 1313, 1316 (11th Cir. 2003); Williams v. Vitro Serv. Corp. ,

144 F.3d 1438, 1441 (11th Cir. 1998); McKenzie v. EAP Mgmt.

Corp. , 40 F. Supp. 2d 1369, 1374 - 75 (S.D. Fla. 1999).

37. Petitioner has failed to prove a prima facie case of

unlawful employment discrimination.

38. Petitioner established that he is a member of a

protected group, in that he is a black male. Petitioner

established that he was subject to an adverse employment action,

in that he was dismissed from his position as a Crater I after

holding the job for more than one year.

39. However, no evidence s upports an inference that

Petitioner was discriminated against based upon his race or

color. Petitioner offered no persuasive evidence to establish

that any similarly situated employee was treated differently by

Soler & Palau. 6 / While Petitioner was qual ified to do the job of

Crater I, and at times performed adequately, he was ultimately

fired for failing to perform the job at a level that met Soler &

PalauÓs legitimate expectations.

40. Even if Petitioner had provided sufficient evidence

that there was an adverse employment action, Soler & Palau

presented plentiful evidence of legitimate, non - discriminatory

reasons for Petitioner's termination. PetitionerÓs multiple

errors on the job cost the company money out - of - pocket to

correct, as well as a loss of customer goodwill and possible

future business. PetitionerÓs immediate employer, the

B - 2 warehouse facility, suffered intra - company damage in terms

of its lowered efficiency rating . PetitionerÓs supervisor,

Ms. Noble, showed great forbearance with Peti tioner, giving him

a raise that was not strictly merited and continuing to work

with him through his mistakes until the company could no longer

be expected to bear the cost of carrying Petitioner as an

employee. At the hearing, Petitioner himself conceded that his

firing was not based on his race or color.

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 order finding that Soler and Palau USA Venti lation

Systems, LLC , did not commit any unlawful employment practices

and dismissing the Petition for Relief filed in this case.

DONE AND ENTERED this 2 1st day of March , 2017 , in

Tallahassee, Leon County, Florida.

S

LAWRE NCE P. STEVENSON

Administrative Law Judge

Division 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 2 1st day of March , 2017 .

ENDNOTE S

1/ The style of the case has been amended to reflect

RespondentÓs full name.

2 / Citations shall be to Florida Statutes (2016) unless

otherwise specified. Section 760.10 has been unchange d since

1992, save for a 2015 amendment adding pregnancy to the list of

classifications protected from discriminatory employment

practices. Ch. 2015 - 68, § 6, Laws of Fla.

3 / On the job, Petitioner went by his middle name, Gus

(presumably short for Augus tus).

4 / On this point, Petitioner testified that he was not present

when Ms. Noble asked his shift to work overtime for a week.

Petitioner left at his regular time of 3:30 p.m., though he

noticed the other employees were staying. He appears to have

ta ken offense at not having been asked in person by Ms. Noble to

work overtime and so continued going home each day at his

regular time , even though he knew the company wanted him to stay

over. There was no element of racial discrimination involved in

a bla nket request to all employees to work overtime.

5 / Ð Direct evidence is Òevidence, which if believed, proves

existence of fact in issue without inference or presumption.Ó"

Rollins v. TechSouth, Inc. , 833 F.2d 1525, 1528 n.6 (11th Cir.

1987) ( quoting Blac kÓs Law Dictionary 413 (5th ed. 1979)). In

Carter v. City of Miami , 870 F.2d 578, 582 (11th Cir. 1989), the

court stated:

This Court has held that not every comment

concerning a person's age presents direct

evidence of discrimination. [ Young v. Gen.

F oods Corp. 840 F.2d 825, 829 (11th Cir.

Young Court made clear that

remarks merely referring to characteristics

associated with increasing age, or facially

neutral comments from which a plaintiff has

inferred discriminatory intent, are not

dir ectly probative of discrimination. Id .

Rather, courts have found only the most

blatant remarks, whose intent could be

nothing other than to discriminate on the

basis of age, to constitute direct evidence

of discrimination.

Petitioner offered no evidence that would satisfy the

stringent standard of direct evidence of discrimination.

6 / As to the question of disparate treatment, the applicable

standard was set forth in Maniccia v. Brown , 171 F.3d 1364,

1368 - 1369 (11th Cir. 1999):

"In determining whether employees are

similarly situated for purposes of

establishing a prima facie case, it is

necessary to consider whether the employees

are involved in or accused of the same

or similar conduct and are disciplined in

different ways." Jones v. Bessemer Carraw ay

Med. Ctr. , 137 F.3d 1306, 1311 (11th

Cir.), opinion modified by 151 F.3d 1321

(1998) ( quoting Holifield v. Reno , 115 F.3d

1555, 1562 (11th Cir. 1997)). "The most

important factors in the disciplinary

context are the nature of the offenses

committed and the nature of the punishments

imposed." Id . (internal quotations and

citations omitted). We require that the

quantity and quality of the comparator's

misconduct be nearly identical to prevent

courts from second - guessing employers'

reasonable decisions and confusing apples

with oranges. See Dartmouth Review

v. Dartmouth College , 889 F.2d 13, 19 (1st

Cir.1989) ("Exact correlation is neither

likely nor necessary, but the cases must be

fair congeners. In other words, apples

should be compared to apples.") . (Emphasis

added) .

The Eleventh Circuit has questioned the "nearly identical"

standard enunciated in Maniccia , but has in recent years

reaffirmed its adherence to it. See , e.g. , Brown v. Jacobs

EngÓg, Inc. , 572 Fed. Appx. 750, 751 (11th Cir. 2014); Esc arra

v. Regions Bank , 353 Fed. Appx. 401, 404 (11th Cir. 2009);

Burke - Fowler , 447 F.3d at 1323 n.2.

In any event, Petitioner in the instant case failed to

provide any persuasive evidence to establish disparate

treatment.

COPIES FURNISHED:

Tammy S. B arton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed)

Michelle Bedoya Barnett, Esquire

Alexander DeGance Barnett , P.A.

1500 Riverside Avenue

Jacksonville, Florida 32204

Ryan Pough

Apa rtment No. 1103

11011 Harts Road

Jacksonville, Florida 32218

David E. Chauncey, Esquire

Alexander DeGance Barnett , P.A.

1500 Riverside Avenue

Jacksonville, Florida 32204

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relation s

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.