16-005778
Jose A. Ramirez vs.
Gca Service Group
Status: Closed
Recommended Order on Wednesday, April 26, 2017.
Recommended Order on Wednesday, April 26, 2017.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8JOSE A. RAMIREZ,
11Petitioner,
12vs. Case No. 16 - 5778
18GCA SERVICE GROUP,
21Respondent.
22_______________________________/
23RECOMMENDED ORDER
25The final hearing in this matter was conducte d before
35J. Bruce Culpepper, Administrative Law Judge of the Division of
45Administrative Hearings, pursuant to sections 120.569 and
52120.57(1), Florida Statutes (2016), 1/ on December 8, 2016, in
62Orlando, Florida.
64APPEARANCES
65For Petitioner: Jose Ramirez , pr o se
721525 Ravana Drive
75Orlando, Florida 32822
78For Respondent: Grissel T. Seijo, Esquire
84Littler Mendelson, PC
87Wells Fargo Center, Suite 2700
92333 Southeast 2nd Avenue
96Miami, Florida 33131
99STATEMENT OF THE ISSUE
103Whether Petitioner, Jose A. Ramirez, was subject to an
112unlawful employment practice by Respondent, GCA Service Group,
120based on his race, color, or national origin in violation of the
132Florida Civi l Rights Act.
137PRELIMINARY STATEMENT
139On March 7, 2016, Petitioner filed a Charge of
148Discrimination with the Florida Commission on Human Relations
156(the ÐCommissionÑ) alleging that Respondent, GCA Service Group
164(ÐGCAÑ), violated the Florida Civil Rights Act, by discriminating
173against him based on his race, color, and national origin.
183The Commission failed to determine whether there was
191reasonable cause for PetitionerÓs complaint within 180 days of
200the filing of the complaint in accordance with section 760.11(8 ) ,
211Florida Statutes . Therefore, on June 16, 2016, the Commission
221issued a Notice of Dismissal to allow Petitioner to proceed with
232an action under section 760.11(4).
237Petitioner elected to request an administrative hearing
244under section 760.11(4)(b). The reafter, on September 16, 2016,
253Petitioner filed a Petition for Relief with the Commission
262alleging a discriminatory employment practice against GCA. On
270October 5, 2016, the Commission transmitted the Petition to the
280Division of Administrative Hearings (Ð DOAHÑ) to conduct a
289c hapter 120 evidentiary hearing.
294The final hearing was held on December 8, 2016. At the
305final hearing, Petitioner testified on his own behalf.
313Petitioner did not present exhibits or witnesses. GCA presented
322the testimony of Jorge Ri vera, Reina Bermudez, and Thomas Pugh.
333GCA Exhibits 1 through 6 were admitted into evidence.
342A one - volume Transcript of the final hearing was filed with
354DOAH on February 23, 2017. At the close of the hearing, the
366parties were advised of a ten - day timefra me following receipt of
379the hearing transcript at DOAH to file post - hearing submittals.
390Following GCAÓs request, the parties agreed to a deadline for
400filing post - hearing submissions more than ten days a fter the
412filing of the hearing t ranscript. Petitione r filed a ÐSummaryÑ
423statement which was considered in preparing this Recommended
431Order.
432FINDING S OF FACT
4361. Petitioner is a former route driver for GCA. Petitioner
446began working for GCA in June 2012.
4532. Generally, GCA contracts with rental car companies , such
462as Avis, Budget, and Enterprise, to move and transfer vehicles
472between rental car facilities and locations.
4783. In 2015, Petitioner supported the GCA services contract
487at the Avis rental car facility at the Orlando International
497Airport. The Avis - O rlando location employed between 60 to 100
509route drivers. The majority of these drivers were Hispanic.
5184. On August 15, 2015, Petitioner requested 30 days off
528from work as personal leave. Petitioner submitted the
536appropriate Time Off Request Form to his immediate supervisor
545seeking a leave of absence from August 16, 2015, through
555September 15, 2015. Petitioner recorded that the reason for his
565leave was a personal/family situation.
5705. Thomas Pugh, GCAÓs account m anager for the Avis
580contr act, authorized PetitionerÓs 30 - day leave of absence.
590Mr. Pugh was also responsible for scheduling the route drivers
600for the Avis - Orlando location. Based on PetitionerÓs return date
611of September 15, 2015, Mr. Pugh scheduled Petitioner for work on
622September 20 through 2 2, 2015.
6286. Petitioner did not return to work on September 20, 2015.
639Neither did Petitioner report to GCA on September 21 or 22, 2015.
651No evidence shows that Petitioner attempted to communicate with
660GCA, Mr. Pugh, or any of his supervisors between Septe mber 15 and
673September 24, 2015 (the date Petitioner was officially
681terminated).
6827. According to GCA company policy, an employee who is a
693Ðno call, no showÑ for three consecutive shifts is automatica lly
704terminated. Consequently, w hen Petitioner failed to report to
713work on September 20, 21, and 22, 2015, Mr. Pugh determined that
725Petitioner should be fired. On September 24, 2015, GCA
734officially terminated PetitionerÓs employment. The GCA
740employment document notating PetitionerÓs termination date
746records Ðt erm because exceeded 30 days.Ñ
7538. At the final hearing, Petitioner testified that on
762September 24, 2015, he called Reina Bermudez, the assistant to
772the ac count manager, to request a ten - day extension of his
785personal leave. 2/ Petitioner claimed that durin g that phone call,
796Ms. Bermudez authorized him to remain on leave until October 15,
8072015.
8089. Petitioner finally appeared at the Avis - Orlando work
818site on October 13, 2015. There, he requested to meet with
829Mr . Pugh and Jorge Rivera, GCAÓs h uman r esources m anager.
842However, neither Mr. Pugh nor Mr. Rivera were available to see
853Petitioner.
85410. Mr. Rivera called Petitioner the following day.
862Mr. Rivera testified that Petitioner told him that he had not
873returned to GCA on September 15, 2015, because he had gone to
885Cuba to handle family personal issues. When Mr. Rivera responded
895that GCA would not reconsider its decision to terminate him,
905Petitioner became upset and threatened to file a discrimination
914lawsuit against GCA.
91711. On March 7, 2016, Petitioner d id, in fact, initiate a
929claim alleging discrimination in violation of the Florida Civil
938Rights Act (ÐFCRAÑ). Petitioner asserts that GCA discriminated
946against him based on his race, color, and national origin.
956Petitioner is black and Hispanic. He repres ents that he is from
968Cuba. Petitioner identifies Mr. Pugh as the individual who
977discriminated against him.
98012. At the final hearing, Petitioner asserted that GCAÓs
989discrimination actually began in May 2015. That month, GCA
998significantly reduced his work hours. Petitioner complained that
1006GCA (Mr. Pugh) scheduled more work days for drivers with less
1017seniority that him. Petitioner also claimed that GCA (Mr. Pugh)
1027scheduled non - minority drivers for more work assignments than
1037him. Specifically, Petitioner identified a former co - worker
1046named William Genao , who worked more days than Petitioner.
105513. In addition to the scheduling disparity, Petitioner
1063charged GCA with wrongfully denying him leave authorized under
1072the Family and Medical Leave Act (ÐFMLAÑ). Pet itioner insisted
1082that GCA should have allowed him to take FMLA leave after
1093September 15, 2015. 3/ Petitioner provided the name of Hector
1103Prieto, a white employee, who used FMLA while working for GCA.
111414. Petitioner also declared that GCA discouraged him f rom
1124joining a union. Petitioner stated that GCA issued several memos
1134opposing union membership. In light of this material, Petitioner
1143feared GCA would fire him if he joined the local union. In
1155support of his position, Petitioner identified two non - white co -
1167workers who m Petitioner alleged , GCA fired because they were
1177union delegates.
117915. Finally, Petitioner accused GCA of promoting white
1187employees over him. Petitioner identified a co - worker named
1197Samuel Rojas , who m GCA treated differently. 4/
120516. Mr. Pu gh testified at the final hearing on behalf of
1217GCA. As the GCA a ccount m anager for the Avis/Budget account,
1229Mr. Pugh relayed that he is in charge of GCAÓs overall operations
1241for the Avis contract at the Orlando International Airport. His
1251responsibilitie s include scheduling route drivers.
125717. Mr. Pugh stated that GCA terminated Petitioner based on
1267Ðjob abandonment.Ñ Petitioner did not return to work after his
127730 days for personal leave ended on September 15, 2015.
1287Therefore, GCA fired him.
129118. Mr. Pug h personally approved PetitionerÓs leave request
1300on August 15, 2015, and authorized Petitioner to take 30 days of
1312personal leave through September 15, 2015. Mr. Pugh stated that
1322GCA company policy allows the location manager to approve
1331personal leave up t o 30 days. Mr. Pugh relayed that he did not
1345speak to Petitioner when he submitted his leave request.
1354Petitioner had already left work by the time Mr. Pugh reviewed
1365his Time Off Request Form. Mr. Pugh was under the impression
1376that Petitioner requested le ave so that he could travel to Cuba
1388due to a family situation.
139319. Regarding PetitionerÓs complaint of reduced work hours
1401in May 2015, Mr. Pugh explained that driversÓ schedules are based
1412on customer demand. In May 2015, Avis needed fewer cars moved to
1424a nd from its airport location. Therefore, the Avis account
1434required less drivers. Consequently, almost every route driver
1442transferring Avis vehicles saw their work days reduced. Mr. Pugh
1452normally tried to schedule drivers to work approximately three
1461days a week. Because of the lower demand in May 2015, Mr. Pugh
1474was forced to cut the driversÓ schedules to only two days a week.
1487Mr. Pugh explained that he schedules drivers based on hire date.
1498All the drivers he scheduled in May 2015 had comparable seniori ty
1510to Petitioner.
151220. Jorje Rivera testified regarding GCAÓs decision to
1520terminate Petitioner. Mr. Rivera explained that GCA allows its
1529employees to take up to 30 days of personal leave (not including
1541FMLA). Mr. Rivera confirmed that Mr. Pugh only had a uthority to
1553approve leave up to 30 days. GCA upper management approval is
1564required if an employee requests more than 30 days leave.
157421. Ms. Bermudez testified that she recalled receiving a
1583phone call from Petitioner on or about September 24, 2015. She
1594r emembered that Petitioner requested an extension of his leave so
1605that he could assist a sick family member. Ms. Bermudez
1615recounted that she advised Petitioner that she did not have the
1626authority to approve his leave extension. Therefore, she told
1635him tha t she would forward his request up to the appropriate
1647manager.
164822. Thereafter, Ms. Bermudez contacted Jackie Rivera in GCA
1657management to relay PetitionerÓs request to extend his time off.
1667Ms. Rivera, however, informed Ms. Bermudez that PetitionerÓs
1675leave extension request would not be granted because he had been
1686off the driver schedule for over 28 days. Ms. Bermudez then
1697called Petitioner several times to try and convey the message
1707that GCA did not approve his leave request. However, she could
1718not reach him.
172123. Mr. Pugh and Mr. Rivera testified that neither
1730PetitionerÓs race nor national origin had any bearing on GCAÓs
1740decision to terminate his employment. GCAÓs decision was based
1749solely on PetitionerÓs failure to return to work following his
175930 - day l eave of absence.
176624. In response to the testimony from Mr. Pugh and
1776Mr. Rivera, Petition er denied that he told them he went to Cuba
1789in September or October 2015. Instead, Petitioner produced
1797evidence that he was sworn in as a United States citizen on
1809No vember 18, 2015.
181325. Based on the competent substantial evidence in the
1822record , the preponderance of the evide nce does not establish that
1833GCA discriminated against Petitioner based on race, color, or
1842national origin. Accordingly, Petitioner failed to mee t his
1851burden of proving that GCA discriminated against him in violation
1861of the FCRA.
1864CONCLUSIONS OF LAW
186726. The Division of Administrative Hearings has
1874jurisdiction over the parties and the subject matter of this
1884cause pursuant to sections 120.569, 120.57 (1), and 760.11(4)(b)
1893and (6), Florida Statutes. See also Fla. Admin. Code R. 60Y -
19054.016.
190627. Petitioner brings this matter alleging that GCA
1914discriminated against him based on his race, color, and national
1924origin in violation of the FCRA. The FCRA prote cts individuals
1935from discrimination in the workplace. See §§ 760.10 and 760.11,
1945Fla. Stat. Section 760.10 states, in pertinent part:
1953(1) It is an unlawful employment practice
1960for an employer:
1963(a) To discharge or to fail or refuse to
1972hire any individua l, or otherwise to
1979discriminate against any individual with
1984respect to compensation, terms, conditions,
1989or privileges of employment, because of such
1996individualÓs race, color, religion, sex,
2001pregnancy, national origin, age, handicap, or
2007marital status.
200928. Section 760.11(8) states that if the Commission Ðfails
2018to conciliate or determine whether there is reasonable cause on
2028any complaint under this section within 180 days of the filing of
2040the complaint, an aggrieved person may proceed under [section
2049760.11(
2050reasonable cause.Ñ Section 760.11(4)(b) permits a party , for
2058who m the Commission determines there is reasonable cause to
2068believe that a discriminatory practice has occurred , to request
2077an administrative hearing before DOAH. Following an
2084administrative hearing, if the Administrative Law Judge (ÐALJÑ)
2092finds that a violation of the FCRA has occurred, the ALJ Ðshall
2104issue an appropriate recommended order in accordance with chapter
2113120 prohibiting the practic e and providing affirmative relief
2122from the effects of the practice, including back pay.Ñ See
2132§ 760.11(6), Fla. Stat.
213629. The burden of proof in an administrative proceeding,
2145absent a statutory directive to the contrary, is on the party
2156asserting the af firmative of the issue. DepÓt of Transp. v.
2167J.W.C. Co. , 396 So. 2d 778 (Fla. 1st DCA 1981); see also DepÓt of
2181Banking & Fin., Div. of Sec. & Investor Prot. v. Osborne Stern &
2194Co. , 670 So. 2d 932, 935 (Fla. 1996)(ÐThe general rule is that a
2207party asserting the affirmative of an issue has the burden of
2218presenting evidence as to that issue.Ñ). The preponderance of the
2228evidence standard is applicable to this matter. See
2236§ 120.57(1)(j), Fla. Stat.
224030. The FCRA is patterned after Title VII of the Civil
2251Right s Act of 1964, as amended. Accordingly, Florida courts hold
2262that federal decisions construing Title VII are applicable when
2271considering claims under the FCRA. Harper v. Blockbuster Entm't
2280Corp. , 139 F.3d 1385, 1387 (11th Cir. 1998); Valenzuela v.
2290GlobeGr ound N. Am., LLC , 18 So. 3d 17, 21 (Fla. 3d DCA 2009); and
2305Fla. State Univ. v. Sondel , 685 So. 2d 923, 925 n.1 (Fla. 1st DCA
23191996).
232031. Discrimination may be proven by direct, statistical, or
2329circumstantial evidence. Valenzuela , 18 So. 3d at 22. Direct
2338evidence is evidence that, if believed, would prove the existence
2348of discriminatory intent behind the employment decision without
2356any inference or presumption. Denney v. City of Albany , 247 F.3d
23671172, 1182 (11th Cir. 2001); and Holifield v. Reno , 115 F.3d
23781555, 1561 (11th Cir. 1997). Courts have held that ÐÒonly the
2389most blatant remarks, whose intent could be nothing other than to
2400discriminate . . .Ó will constitute direct evidence of
2409discrimination.Ñ Damon v. Fleming Supermarkets of Fla., Inc. ,
2417196 F.3d 1354, 1358 - 59 (11th Cir. 1999)(citations omitted).
242732. Petitioner presented no direct evidence of race, color,
2436or national origin discrimination on the part of GCA. Similarly,
2446the record in this proceeding contains no statistical evidence of
2456discriminat ion by GCA in its decision affecting Petitioner.
246533. In the absence of direct or statistical evidence of
2475discriminatory intent, Petitioner must rely on circumstantial
2482evidence of discrimination to prove his case. For discrimination
2491claims involving circu mstantial evidence, Florida courts follow
2499the three - part, burden - shifting framework set forth in McDonnell
2511Douglas Corp. v. Green , 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed.
25252d 668 (1973), and its progeny. See also Valenzuela , 18 So. 3d
2537at 21 - 22; and St. Lou is v. Fla. Int'l Univ. , 60 So. 3d 455, 458
2554(Fla. 3d DCA 2011).
255834. In a race discrimination action, a petitioner bears the
2568initial burden of establishing, by a preponderance of the
2577evidence, a prima facie case of discrimination. To establish a
2587prima faci e case, the petitioner must show that: (1) he belongs
2599to a protected class (race, class, or national origin); (2) he
2610was qualified for his position; (3) he was subjected to an adverse
2622employment action; and (4) his employer treated similarly - situated
2632empl oyees outside of his protected class more favorably than he
2643was treated. See McDonnell Douglas , 411 U.S. at 802 - 04; Burke -
2656Fowler v. Orange Cnty. , 447 F.3d 1319, 1323 (11th Cir. 2006).
266735. Demonstrating a prima facie case is not difficult, but
2677rather only requires the petitioner Ðto establish facts adequate
2686to permit an inference of discrimination.Ñ Holifield , 115 F.3d
2695at 1562.
269736. If the petitioner establishes a prima facie case, he
2707creates a presumption of discrimination. At that point, the
2716burden shi fts to the employer to articulate a legitimate, non -
2728discriminatory reason for taking the adverse action. See
2736Valenzuela , supra , at 22. The reason for the employerÓs decision
2746should be clear, reasonably specific, and worthy of credence.
2755See DepÓt of Corr . v. Chandler , 582 So. 2d 1183, 1186 (Fla. 1st
2769DCA 1991). The employer has the burden of production, not the
2780burden of persuasion, to demonstrate to the finder of fact that
2791the decision was non - discriminatory. See Flowers v. Troup C n ty.
2804803 F.3d 1327, 13 36 (11th Cir. 2015) . This burden of production
2817is Ðexceedingly light.Ñ Holifield , 115 F.3d at 1564. The
2826employer only needs to produce evidence of a reason for its
2837decision. It is not required to persuade the trier of fact that
2849its decision was actuall y motivated by the reason given. See
2860St. Mary's Honor Ctr. v. Hicks , 509 U.S. 502 (U.S. 1993).
287137. If the employer meets its burden, the presumption of
2881discrimination disappears. The burden then shifts back to the
2890petitioner to prove that the employerÓ s proffered reason was not
2901the true reason but merely a ÐpretextÑ for discrimination. See
2911Combs v. Plantation Patterns , 106 F.3d 1519, 1538 (11th Cir.
29211997); Valenzuela , 18 So. 3d at 25.
292838. In order to satisfy this final step of the process, the
2940petitio ner must show Ðdirectly that a discriminatory reason more
2950likely than not motivated the decision, or indirectly by showing
2960that the proffered reason for the . . . decision is not worthy of
2974belief.Ñ Chandler , 582 So. 2d at 1186 (citing Tex. Dep't of
2985Cmty. Aff. v. Burdine , 450 U.S. 248, 252 - 256 (1981)). The
2997proffered explanation is unworthy of belief if the petitioner
3006demonstrates "such weaknesses, implausibilities, inconsistencies,
3011incoherencies, or contradictions in the employer's proffered
3018legitimate rea sons for its action that a reasonable factfinder
3028could find them unworthy of credence.Ñ Combs , 106 F.3d at 1538;
3039see also Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133,
3050143, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000). The petitioner
3063must prove t hat the reasons articulated were false and that the
3075discrimination was the real reason for the action. City of Miami
3086v. Hervis , 65 So. 3d 1110, 1117 (Fla. 3d DCA 2011)(citing
3097St. Mary's Honor Ctr . , 509 U.S. at 515)("[A] reason cannot be
3110proved to be 'a p retext for discrimination ' unless it is shown
3123both that the reason was false, and that discrimination was the
3134real reason.").
313739. Despite the shifting burdens of proof, Ðthe ultimate
3146burden of persuading the trier of fact that the defendant
3156intentionally discriminated against the plaintiff remains at all
3164times with the plaintiff.Ñ Burdine , 450 U.S. at 253, 101 S. Ct.
3176at 1089, 67 L. Ed. 2d 207; Valenzuela , 18 So. 3d at 22.
318940. Applying the burden - shifting analysis to the facts
3199found in this matter, Petiti oner did not meet his burden of
3211proving that GCA discriminated against him based on his race,
3221color, or national origin. Petitioner presented sufficient
3228evidence to establish the first three prongs of the prima facie
3239case in that he proved that he belongs to a protected class, was
3252qualified to perform as a route driver, and was subject to an
3264adverse employment action (termination). However, Petitioner
3270failed to establish that GCA treated similarly situated, non -
3280minority employees differently.
328341. In dete rmining whether employees are similarly situated
3292for purposes of establishing a prima facie case, Ð[w]hen
3301comparing similarly situated individuals to raise an inference of
3310discriminatory motivation, these individuals must be similarly
3317situated in all relev ant respects.Ñ Jackson v. BellSouth
3326Telecomm. , 372 F.3d 1250, 1273 (l1th Cir. 2004). The standard is
3337a Ðfairly rigorous one.Ñ Rioux v. City of Atlanta , 520 F.3d
33481269, 1281 (11th Cir. 2008); Holifield , 115 F.3d at 1562. "The
3359quantity and quality of the comparator's misconduct [must] be
3368nearly identical to prevent courts from second - guessing employers'
3378reasonable decisions and confusing apples with oranges."
3385McCann v. Tillman , 526 F.3d 1370, 1373 - 74 (11th Cir. 2008); see
3398also Nix v. WLCY Radio/Rahall Co mmc'ns , 738 F.2d 1181, 1185
3409(11th Cir. 1984)("[T]he misconduct for which [the petitioner] was
3419discharged [must be] nearly identical to that engaged in by an
3430employee outside the protected class whom the employer
3438retained.").
344042. At the final hearing, Pet itioner did not present
3450evidence or testimony identifying a non - minority route driver,
3460Ðsimilarly situated in all relevant respects,Ñ who was not
3470terminated for failing to report to work following 30 days of
3481leave. Although Petitioner offered the names of several co -
3491workers who GCA allegedly treated differently, Petitioner did not
3500show that any of these individuals were not fired for Ðjob
3511abandonmentÑ and/or missing three consecutive work shifts.
3518Accordingly, the competent substantial evidence in the reco rd
3527does not support PetitionerÓs allegation that GCA treated him
3536differently than other similarly situated employees based on his
3545race, color, or national origin. Therefore, Petitioner failed to
3554prove a prima facie case of discrimination by circumstantial
3563evidence.
356443. Assuming, a rguendo , that Petitioner did establish a
3573prima facie case of discrimination, GCA articulated a legitimate,
3582non - discriminatory reason for terminating Petitioner. GCAÓs
3590burden to refute PetitionerÓs prima facie case is light. GCA met
3601this burden by providing credible testimony that its decision to
3611fire Petitioner was based on Ðjob abandonment.Ñ
361844. Completing the McDonnell Douglas burden - shifting
3626analysis (again, assuming that Petitioner made a prima facie
3635showing of discriminati on), Petitioner did not prove, by a
3645preponderance of the evidence, that GCAÓs stated reasons for
3654terminating him were not its true reasons, but were merely a
3665ÐpretextÑ for discrimination. The evidentiary record in this
3673proceeding does not support a findin g or conclusion that GCAÓs
3684proffered explanation for firing Petitioner was false or not
3693worthy of credence. Petitioner indisputably did not appear for
3702work after his 30 days of personal leave ended on September 15,
37142015. Neither did he report to GCA on S eptember 20, 21, or 22,
37282015. As credibly represented by Mr. Pugh, GCA company policy
3738was to terminate a Ðno call, no showÑ employee who was absent
3750three consecutive work days. Accordingly, the facts found in
3759this matter do not support a finding that GCA Ós proffered reason
3771for terminating PetitionerÓs employment was a pretext for
3779discrimination.
378045. At the final hearing, Petitioner expressed frustration
3788with GCAÓs decision to fire him instead of extending his leave by
380030 days. It should be noted, howeve r, that in a proceeding under
3813the FCRA, the court is Ðnot in the business of adjudging whether
3825employment decisions are prudent or fair. Instead, [the courtÓs]
3834sole concern is whether unlawful discriminatory animus motivates
3842a challenged employment decisi on.Ñ Damon , 196 F.3d at 1361. Not
3853everything that makes an employee unhappy is an actionable
3862adverse action. Davis v. Town of Lake Park, Fla. , 245 F.3d 1232,
38741238 (11th Cir. 2001). For example, an employer may fire an
3885employee Ðfor a good reason, a bad reason, a reason based on
3897erroneous facts, or for no reason at all, as long as its action
3910is not for a discriminatory reason.Ñ Nix v. WLCY Radio/Rahall
3920CommcÓns , 738 F.2d at 1187. An employee cannot succeed by simply
3931quarreling with the wisdom of the em ployer's reasons. Chapman v.
3942AI Transp. , 229 F.3d 1012 (l1th Cir. 2000); see also Alexander v.
3954Fulton Cnty., Ga . , 207 F .3d 1303, 1341 (11th Cir. 2000) (Ð[I]t is
3968not the court's role to second - guess the wisdom of an employer's
3981decisions as long as the decis ions are not racially motivated.Ñ).
399246. In sum, the evidence on record does not support
4002PetitionerÓs claim that GCA discriminated against him based on
4011his race, color, or national origin. Further, no credible
4020evidence shows that GCA treated similarly sit uated non - minority
4031members differently or that GCAÓs stated reason for terminating
4040Petitioner was a ÐpretextÑ for discrimination. Because
4047Petitioner failed to put forth sufficient evidence that GCA had
4057some discriminatory animus motivating its decision, h is Petition
4066for Relief must be dismissed.
4071RECOMMENDATION
4072Based on the foregoing Findings of Fact and Conclusions of
4082Law, it is RECOMMENDED that the Florida Commission on Human
4092Relations issue a final o rder finding that Respondent, GC A
4103Service Group, did no t commit any unlawful employment practice
4113against Petitioner and dismiss ing his Petition for Relief from an
4124unlawful employment practice.
4127DONE AND ENTERED this 26 th day of April, 2017 , in
4138Tallahassee, Leon County, Florida.
4142S
4143J. BRUCE CULPEPPER
4146Administrative Law Judge
4149Division of Administrative Hearings
4153The DeSoto Building
41561230 Apalachee Parkway
4159Tallahassee, Florida 32399 - 3060
4164(850) 488 - 9675
4168Fax Filing (850) 921 - 6847
4174www.doah.state.fl.us
4175Filed with the Clerk of the
4181Divi sion of Administrative Hearings
4186this 26 th day of April, 2017 .
4194ENDNOTE S
41961/ All statutory references are to Florida Statutes (2016),
4205unless otherwise noted.
42082 / The evidence does not indicate whether Petitioner contacted
4218Ms. Bermudez before or after GCA officially terminated
4226Petitioner, or whether Petitioner was aware of GCAÓs decision at
4236the time of his phone call.
42423 / No evidence indicates that Petitioner requested FMLA leave
4252prior to his termination.
42564 / The parties did not present evidence of Mr. R ojasÓ race.
4269However, Petitioner stated that Mr. Rojas did not speak English.
4279COPIES FURNISHED:
4281Tammy S. Barton, Agency Clerk
4286Florida Commission on Human Relations
4291Room 110
42934075 Esplanade Way
4296Tallahassee, Florida 32399
4299(eServed)
4300Grissel T. Seijo, Esqui re
4305Littler Mendelson, PC
4308Wells Fargo Center, Suite 2700
4313333 Southeast 2nd Avenue
4317Miami, Florida 33131
4320(eServed)
4321Will Dunn
4323GCA Service Group
4326Suite 1500
43281350 Euclid Avenue
4331Cleveland, Ohio 44115
4334Jose Ramirez
43361525 Ravana Drive
4339Orlando, Florida 32822
4342Che yanne Costilla, General Counsel
4347Florida Commission on Human Relations
43524075 Esplanade Way, Room 110
4357Tallahassee, Florida 32399
4360(eServed)
4361NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
4367All parties have the right to submit written exceptions within
437715 days from the date of this Recommended Order. Any exceptions
4388to this Recommended Order should be filed with the agency that
4399will issue the Final Order in this case.
- Date
- Proceedings
- PDF:
- Date: 07/13/2017
- Proceedings: Agency Final Order Dismissing Petition for Relief from an Unlawful Employment Practice filed.
- PDF:
- Date: 05/31/2017
- Proceedings: Respondent's Response to Petitioner's Exceptions to Recommended Order filed.
- PDF:
- Date: 05/05/2017
- Proceedings: Transmittal letter from Claudia Llado forwarding Petitioner's Exceptions to the Recommended Order to the agency.
- PDF:
- Date: 04/27/2017
- Proceedings: Transmittal letter from Claudia Llado forwarding Petitioner's Proposed Exhibits to Petitioner.
- PDF:
- Date: 04/26/2017
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- Date: 02/23/2017
- Proceedings: Transcript of Proceedings (not available for viewing) filed.
- Date: 12/08/2016
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 12/05/2016
- Proceedings: Amended Notice of Hearing (hearing set for December 8, 2016; 9:00 a.m.; Orlando, FL; amended as to start time).
- PDF:
- Date: 10/31/2016
- Proceedings: Petitioner's Exhibit List filed (proposed exhibits not available for viewing).
- PDF:
- Date: 10/31/2016
- Proceedings: Letter to Judge Culpepper from Jose Ramirez requesting bilingual assistance and enclosure of Witness List filed.
Case Information
- Judge:
- J. BRUCE CULPEPPER
- Date Filed:
- 10/05/2016
- Date Assignment:
- 10/06/2016
- Last Docket Entry:
- 07/13/2017
- Location:
- Orlando, Florida
- District:
- Middle
- Agency:
- ADOPTED IN TOTO
Counsels
-
Tammy S Barton, Agency Clerk
Florida Commission on Human Relations
Room 110
4075 Esplanade Way
Tallahassee, FL 32399
(850) 907-6808 -
Will Dunn
GCA Service Group
Suite 1500
1350 Euclid Avenue
Cleveland, OH 44115
(216) 535-4900 -
Jose Ramirez
1525 Ravana Drive
Orlando, FL 32822
(407) 721-4282 -
Grissel T. Seijo, Esquire
Littler Mendelson, P.C.
Wells Fargo Center, Suite 2700
333 Southeast 2nd Avenue
Miami, FL 33131
(305) 400-7500 -
Grissel T. Seijo, Esquire
Littler Mendelson, PC
333 SE 2nd Avenue
Suite 2700
Miami, FL 33131
(305) 007-7500 -
Tammy S Barton, Agency Clerk
Address of Record -
Grissel Seijo, Esquire
Address of Record -
Tammy S. Barton, Agency Clerk
Address of Record