17-001312 Rusty Santangelo vs. Ace Staffing Status: Closed Recommended Order on Friday, October 13, 2017.

Summary: Petitioner failed to prove that Respondent took an adverse employment action based on his disability. Further, Respondent presented a legitimate, non-discriminatory reason for its employment decision.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RUSTY SANTANGELO,

Petitioner,

vs. Case No. 17 - 1312

ACE STAFFING,

Respondent.

_______________________________/

RECOMMENDED ORDER

The final hearing in this matter was conducted be fore

J. Bruce Culpepper, Administrative Law Judge of the Division of

Administrative Hearings, pursuant to sections 120.569 and

120.57(1), Florida Statutes (2017), 1/ on July 21, 2017, in

Orlando, Florida.

APPEARANCES

For Petitioner: Rusty Santangelo , pro s e

Post Office Box 536423

Orlando, Florida 32853

For Respondent: Nikhil N. Joshi, Esquire

Hultman Sensenig Joshi

2055 Wood Street , Suite 208

Sarasota, Florida 34237

STATEMENT OF THE ISSUE

Whether Petitioner, Rusty Santangelo, was subject to an

unlawful employment practice by Respondent, Ace Staffing, based

on his disability (handicap) in violation of the Florida Civil

Rights Act.

PRELIMINARY STATEMENT

On February 18, 2016, Petitioner filed a Charge of

Discrimination with the Florida Commission on Human Relations

(the ÐCommissionÑ) alleging that Respondent, Ace Staffing,

violated the Florida Civil Rights Act ( Ð FCRA Ñ ) by discriminating

against him based on his disability (handicap).

On February 20, 2017, the Commission notified Petitioner

that no reasonable cause existed to believe that Ace Staffing had

committed an unlawful employment practice.

On February 27, 2017, Petitioner filed a Petition for Relief

with the Commiss ion alleging a discriminatory employment

practice. The Commission transmitted the Petition to the

Division of Administrative Hearings (ÐDOAHÑ) to conduct a chapter

120 evidentiary hearing.

The final hearing was initially scheduled for May 4, 2017.

Followi ng a motion from Respondent, the final hearing was

continued to July 21, 20 17, and was held on that date.

At the final hearing, Petitioner testified on his own

behalf. Petitioner also called Prity Patel (Owner of Ace

Staffing), Ray Patel (Office Manager o f Ace Staffing), Janice

Mullendore, and Rich Patel as witnesses. PetitionerÓs Exhibits 1

through 23, 25, 29, 31, 35, 37, 39, and 41 were admitted into

evidence. 2/ Respondent also called Petitioner, Ray Patel,

Prity Patel, Ms. Mullendore, and Rich Patel as witnesses.

RespondentÓs Exhibits 1 and 2 were admitted into evidence.

A court reporter recorded the final hearing. Neither party

requested a transcript. At the close of the hearing, the parties

were advised of a ten - day timeframe following the final hearing

to file post - hearing submittals. Ace Staffing requested an

extension of the filing deadline , which was granted. Ace

Staffing subsequently moved for an additional ten - day extension

to file its post - hearing submission , which was also granted. 3/

Bo th parties timely filed Proposed Recommended Orders which were

duly considered in preparing this Recommended Order.

FINDING S OF FACT

1. Ace Staffing is a temporary employment agency. Ace

Staffing works mostly with day laborers in the construction

industr y.

2. Petitioner is a former temporary worker with Ace

Staffing. Petitioner worked for Ace St affing from 2007 through

2015.

3. Generally, when an Ace Staffing customer requests

temporary employees, the customer completes a Purchase Order

(ÐPOÑ) indicati ng the date(s) for which employees are needed, the

number of employees requested, and a description of the work to

be performed. Ace Staffing then contacts its list of available

employees an d offers them job assignments.

4. If an employee accepts the ass ignment, Ace Staffing

provides that employee with a ÐticketÑ for the customer to

complete. The customer is to record the hours the employee

worked, as well as the rate of pay on the ticket. After the

employee performs the job, the employee returns the co mpleted

ticket to Ace Staffing along with the PO which the customer

signs. Ace Staffing then collects information from the ticket to

generate a paycheck for the employee. Ace Staffing typically

pays employees on the day they worked. Thereafter, Ace Staf fing

bills the customer.

5. Occasionally, Ace Staffing places a temporary employee

in a long - term job assignment. In these circumstances, Ace

Staffing considers the employee to be working a ÐsteadyÑ or

ÐopenÑ ticket. The customer still prepares a PO for Ace Staffing

to record how many workers the custo mer employed for each work

day.

6. When working on a ÐsteadyÑ or ÐopenÑ ticket, Ace

Staffing requires the employee to provide his or her work hours

to the customer at the worksite. The customer then repor ts the

time to Ace Staffing (on a ticket or by e - mail). Ace Staffing,

in turn, issues the paycheck to the employee.

7. All Ace Staffing temporary employees are hired for

specific jobs as requested by customers. Employees are never

guaranteed constant wo rk or a permanent assignment. Either Ace

Staffing, the employee, or the customer may terminate the job at

any time.

8. Petitioner began working for A ce Staffing in September

2007.

9. In 2011, Ace Staffing sent Petitioner to fill a

temporary job assignme nt with Owens, Renz & Lee Company, Inc.

(ÐOwensÑ). Owens provided janitorial and maintenance services

for the Amway Arena (the ÐArenaÑ) in Orlando, Florida. Ace

Staffing did not have a formal contract with Owens for its

staffing services. Either Ace Sta ffing or Owens could end their

busine ss relationship at any time.

10. Petitioner generally worked for Owens at the Arena

performing custodial services. Petitioner worked in a part - time

capacity and typically only when the Arena hosted events, such as

mus ic concerts and sporting events.

11. Soon, PetitionerÓs assignment with Owens became a

ÐsteadyÑ or ÐopenÑ ticket. When Owens needed an employee for the

Arena, Ace Staffing allowed Owens to contact Petitioner directly

to schedule the job. Ace Staffing in structed Petitioner to

simply show up at the Aren a when Owens offered him work.

12. Regarding payment for his work for Owens, Ace Staffing

instructed Petitioner that he was responsible for ensuring Owens

completed the PO and the ticket for his work hours. Therefore,

when Owens hired him, Petitioner was required to report his time

to Owens. Specifically, Petitioner was to record the time he

reported in, and when he left, the Arena. Typically, Petitioner

would Ðpunch inÑ with a time card when he checked i n at the

Arena. Owens would provide PetitionerÓs recorded work hours to

Ace Staffing on PetitionerÓs ticket or via e - mail. Petitioner

would drop off his ticket at the Ace Staffing office once a week.

Ace Staffing would then provide Petitioner a ticket f or Owens t o

complete the following week.

13. This process enabled Ace Staffing to accurately prepare

PetitionerÓs paycheck. Ace Staffing paid Petitioner based on the

work hours Owens reported on the ticket (or by e - mail). Ace

Staffing issued PetitionerÓ s paycheck on a weekly basis.

14. Petitioner very much enjoyed his job at the Arena.

Similarly, the evidence indicates that Owens considered

Petitioner a good and reliable worker. Petitioner worked

steadily at the Arena averaging ten to 20 events a mont h.

Petitioner began to envision that he could work for Owens as long

as he wanted.

15. Periodically, however, Petitioner complained to Ace

Staffing that he was not being paid for all the hours he worked

at the Arena. PetitionerÓs pay issues c ame to a he ad in October

2015.

16. On October 2, 2015, Petitioner appeared at the Ace

Staffing office to discuss his pay shortage. Petitioner met with

Prity Patel, the Owner of Ace Staffing. Petitioner told

Ms. Patel that he had not been paid for approximately 45 hours

that he had worked the previous fall in September and October

2014.

17. Ms. Patel testified at the final hearing that the

October 2, 2015, incident was not the first time Petitioner had

complained about not being paid for all the hours he worked fo r

Owens. She relayed that in April 2014, Petitioner told her that

he had not been paid for several events he worked during December

2013. Both Ace Staffing and Owens investigated PetitionerÓs

claim. Owens subsequently confirmed that Petitioner had worke d

more hours than were recorded on his ticket. Thereafter, Ace

Staffing paid Petitioner for the missing time and billed Owens

accordingly.

18. Subsequently, in May 2014, Petitioner again reported to

Ace Staffing that he had worked several jobs for Owens for which

he had not received compensation. This time, Petitioner

identified one day in January 2014 , and 12 days in March 2014.

Once again, both Ace Staffing and Owens reviewed their respective

records, and Owens was able to confirm that Petitioner work ed the

additional hours for which he claimed he was not paid. Ace

Staffing paid Petitioner for all of t he missing time.

19. After PetitionerÓs second complaint in May 2014,

Ms. Patel instructed Petitioner to regularly check his paystub to

ensure that he was properly paid for all the hours he worked.

Ms. Patel specifically cautioned Petitioner not to wait weeks (or

longer) to advise Ace Staffing of any error in his paycheck.

20. However, despite Ms. PatelÓs instructions for

Petitioner to conscientiously record his work hours with Owens,

on October 8, 2014, and again on November 8, 2014, Petitioner

sent two e - mails to Owens declaring that he was missing pay for

hours worked in September and October 2014. Then, almost a year

later on September 11, 2015 (e vidently because Owens never

satisfactorily responded to his initial requests) , Petitioner

sent another e - mail to Owens about his missing time. At that

point, on September 24, 2015, Owens sent an e - mail to Ray Patel

(Ace StaffingÓs office manager) informi ng him that Petitioner was

complaining that he had not been paid for work in September and

October 2014.

21. Based on PetitionerÓs history of pay issues, when

Ms. Patel learned on October 2, 2015, that Petitioner was again

complaining about missing pay, she became upset. She was

frustrated that Petitioner had failed to follow her instructions

to ensure that Owens accurately recorded his work hours.

Ms. Patel was further irritated th at Petitioner was bemoaning pay

discrepancies that were over a year old . She was also distressed

that, upon receiving each paycheck over the last year, Petitioner

had assured her that the amount of his paycheck was accurate.

22. Ms. Patel explained that reconstructing PetitionerÓs

work hours was intensive and time - consuming for both Ace Staffing

and Owens. Petitioner was asking to be paid for hours that Owens

had not submitted to Ace Staffing. Therefore, tracking down

PetitionerÓs work days and hours required checking with each of

PetitionerÓs supervisors at Owens on the s pecific event to verify

whether Petitioner did, indeed, work on the date he claimed.

This process was complicated by the fact that Owens employed

hundreds of workers. Consequently, reviewing the jobs Petitioner

worked was burdensome o n both Ace Staffing and Owens.

23. Therefore, upon hearing PetitionerÓs latest complaint,

Ms. Patel instructed Petitioner not to return to Owens until she

could straighten out his back pay. Ms. Patel expressed to

Petitioner that she would investigate the issue, and he could

return to the Arena after the matter was resolved.

24. Ms. Patel testified that she spent a considerable

amount of time in October and early November 2015 accounting for

and reconciling the time Petitioner insisted that he worked for

Owens in September a nd October 2014. Ms. Patel voiced that she

was ultimately unable to independently confirm the hours

Petitioner claimed. Instead, she had to rely on PetitionerÓs

personal calendar , which he used to track the days and events he

worked at the Arena.

25. Ac e Staffing paid Petitioner for all the missing hours

(44.25 hours) he claimed he worked. On November 30, 2015,

Petitioner received a call from Ms. Patel informing him that the

final amount of all his missing back pay from 2014 would be

deposited in his ba nk account. Ace Staffing did not bill Owens

for PetitionerÓs missing time.

26. As a direct consequence of the complications

PetitionerÓs pay issues caused, Ms. Patel decided to end Ace

StaffingÓs business relationship with Owens. Petitioner was the

only Ace Staffing employee working for Owens, and the account had

simply become too troublesome to administer.

27. As a result, after October 2, 2015, Ace Staffing no

longer placed any temporary employees with Owens or the Arena.

On November 30, 2015, Ray Pa tel formally notified Owens that

Petitioner would no longer be working for them.

28. On the other hand, Petitioner, after he met with

Ms. Patel, was quite anxious to return to work at the Arena. He

was fully prepared to report back to Owens as soon as A ce

Staffing resolved his pay discrepancy. Petitioner believed that

Ace Staffing and Owens were not communicating with each other,

and the clerical error that led to his pay issue could be

resolved with minimal coordination between the two companies.

Peti tioner had been prepared to work at the Arena on Friday,

October 3, 2015, for the start of basketball season. Petitioner

represented that Owens had also scheduled him for additional

events over the next two weeks. Further, Owens indicated that it

was wil ling to continue employing Petit ioner despite the pay

dispute.

29. After October 2, 2015, Ace Staffing continued to offer

Petitioner temporary job assignments. Prior to and during the

years Petitioner worked for Owens, Ace Staffing regularly sent

Petitio ner on day labor jobs. These jobs included work as a

flagman, a sign holder, and distributing flyers. Ms. Patel, Rich

Patel (an Ace Staffing manager and secretary), and Janice

Mullendore (Ace StaffingÓs office assistant) all persuasively

testified that d uring October and November 2015, they contacted

Petitioner and presented him with similar work. Ms. Patel

explained that she only intended not to send Petitioner (or

anyone) back to Owens. But, Ace Staffing always had jobs to

provide to her temporary em p loyees, including Petitioner.

30. Petitioner, however, turned down every assignment Ace

Staffing offered. He expressed to Ace Staffing tha t he already

had a job he liked - Î working for Owens at the Arena. Ace Staffing

advised Petitioner that the assignmen ts at the Arena were no

longer an option. Petitioner pronounced that he did not want any

other jobs but to work for Owens at the Arena.

31. Ms. Mullendore testified that after Petitioner rejected

several temporary assignments, she removed him from her li st of

available employees. She did not want to spend time calling

someone who was not interested in working on the jobs she

offered. Ms. Patel echoed Ms. MullendoreÓs statement saying that

after Petitioner turned down three to four job offers, Ace

Staffi ng simply stopped calling him about available temporary

work.

32. Ace Staffing did not offer Petitioner another temp orary

job after November 2015.

33. As a result of the fallout from his meeting with

Ms. Patel on October 2, 2015, Petitioner asserts that Ace

Staffing unjustly ÐterminatedÑ him based on his disability.

Petitioner felt that Ace Staffing punished him for complaining

about his missing pay and for being Ðslow.Ñ Petitioner asserts

that he tried his best to keep up with the hours he worked for

Owens. He may have been Ðs low,Ñ but he was determined.

34. Ms. Patel denied that Ace Staffing terminated

PetitionerÓs employment. She emphasized that the reason Ace

Staffing halted PetitionerÓs assignment with Owens was due to his

multiple failures to a ccurately and timely report his work hours

to Owens (and Ace Staffing). Ms. Patel stressed that

PetitionerÓs failure to dutifully record his hours at the time he

worked at the Arena placed an extreme and unnecessary

administrative burden on Ace Staffing. Reconciling PetitionerÓs

pay discrepancies required hours of extra work for both Ace

Staffing and Owens. Further, PetitionerÓs actions placed Ace

Staffing in the uncomfortable position of having to request its

customer (Owens) review its own work records to verify

PetitionerÓs work hours. Ms. Patel felt that the situation

resulted solely from PetitionerÓs inattentiveness. The October

2015 complaint was PetitionerÓs third incident involving unpaid

work hours, which Ms. Pate l determined was unacceptable.

35. Ray Patel also testified that Ace Staffing did not

terminate Petitioner. Ace Staffing simply stopped offering

Petitioner temporary assignments after November 2015. Mr. Patel

further testified that Ace StaffingÓs decision to remove

Petitioner from it s list of available workers was not related to

any disability from which he suffered. Ace StaffingÓs decision

was based on PetitionerÓs unwillingness to take any job

assignment other than with Owens.

36. Petitioner vehemently challenged Ace StaffingÓs

re presentation that it presented him additional work after

October 1, 2015. Petitioner recounted that, according to his

phone records, Ace Staffing called him seven times between

October 5, 2015, and November 30, 2015. Of these seven calls,

Petitioner beli eved that only one call concerned additional

temporary work. This call came from Rich Patel who offered him

an a ssignment passing out flyers.

37. At the final hearing, Petitioner described a number of

mental and physical ailments he experienced during hi s time

working for Ace Staffing. 4/ In 2000, Petitioner was diagnosed

with human immunodeficiency virus (ÐHIVÑ) , which caused

Petitioner several lingering side effects including chronic

muscle pain and fatigue. Since March 2011, Petitioner has

received re gular treatment for bipolar disorder. Petitioner was

Baker Acted in June 2011 due to depression and an attempted

suicide. In 2011 and 2012, Petitioner experienced several

anxiety attacks while working at the Arena. In 2011 and 2014,

Petitioner underwent surgery related to an umbilical hernia from

which he still endures complications. Petitioner continues to be

treated for depression with psychotic features. In addition,

Petitioner suffers from asthma, sleep apnea, and p lantar

fasciitis in both feet.

38 . Ace Staffing does not dispute that Petitioner suffered

from disabilities during the time he worked for them. 5/

(Petitioner concedes that Ace Staffing had no knowledge of his

HIV or foot issues.) Ace Staffing was aware that Petitioner was

limited in th e types of work he was able to perform. Ace

Staffing tried to accommodate PetitionerÓs limitations by

offering him job assignments Petitioner indicated he could

execute. Despite all his medical conditions, Ace Staffing

readily placed Petit ioner with Owen s at the Arena.

39. Based on the competent substantial evidence in the

record, the preponderance of the evidence does not establish that

Ace Staffing discriminated against Petitioner based on his

disability (handicap). Accordingly, Petitioner failed to m eet

his burden of proving that Ace Staffing discriminated against him

in violation of the FCRA.

CONCLUSIONS OF LAW

40. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

cause pursuant to sections 120. 569, 120.57(1), and 760.11(7) ,

Florida Statutes . See also Fla. Admin. Code R. 60Y - 4.016.

41. Petitioner brings this action alleging that Ace

Staffing discriminated against him based on his disabilities

(handicap) in violation of the FCRA. The FCRA prote cts

individuals from disability discrimination in the workplace.

See §§ 760.10 and 760.11, Fla. Stat. Section 760.10 states, in

pertinent part:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire a ny individual, or otherwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges of employment, because of such

individualÓs race, color, religion, sex,

pregnancy, national origin, age, handicap, or

marital status.

42. Section 760.11(7) permits a party for whom the

Commission determines that there is not reasonable cause to

believe that a violation of the FCRA has occurred to request an

administrative hearing before DOAH. Following an administrative

hearin g, if the Administrative Law Judge (ÐALJÑ) finds that a

discriminatory act has occurred, the ALJ Ðshall issue an

appropriate recommended order to the commission prohibiting the

practice and recommending affirmative relief from the effects of

the practice, including back pay.Ñ £ 760.11(7), Fla. Stat.

43. The burden of proof in an administrative proceeding,

absent a statutory directive to the contrary, is on the party

asserting the affirmative of the issue. DepÓt of Transp. v.

J.W.C. Co. , 396 So. 2d 778 (F la. 1st DCA 1981); see also DepÓt of

Banking & Fin., Div. of Sec. & Investor Prot. v. Osborne Stern &

Co. , 670 So. 2d 932, 935 (Fla. 1996)(ÐThe general rule is that a

party asserting the affirmative of an issue has the burden of

presenting evidence as to t hat issue.Ñ). The preponderance of

the evidence standard is applicable to this matter. See

§ 120.57(1)(j), Fla. Stat.

44. The FCRA is patterned after Title VII of the Civil

Rights Act of 1964, as amended. Accordingly, Florida courts hold

that federal decisions construing Title VII are applicable when

considering claims under the FCRA. Harper v. Blockbuster Entm Ó t

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

GlobeGround N. Am., LLC , 18 So. 3d 17, 21 (Fla. 3d DCA 2009); and

Fla. State Uni v. v. Sondel , 685 So. 2d 923, 925 n.1 (Fla. 1st DCA

1996).

45. Specifically regarding disability discrimination, the

FCRA is construed in conformity with the Americans with

Disabilities Act (ÐADAÑ) found in 42 U.S.C. £ 12112(a).

Cordoba v. Dillard Ó s, In c. , 419 F.3d 1169, 1175 (11th Cir. 2005)

(citing Wimberly v. Secs. Tech. Grp., Inc. , 866 So. 2d 146, 147

(Fla. 4th DCA 2004)) (ÐBecause Florida courts construe the FCRA in

conformity with the ADA, a disability discrimination cause of

action is analyzed unde r the ADA.Ñ). See also Holly v. Clairson

Indus., L.L.C. , 492 F.3d 1247, 1255 (11th Cir. 2007)(FCRA claims

are analyzed under the same standards as the ADA.).

46. Employees may prove discrimination by direct,

statistical, or circumstantial evidence. Vale nzuela , 18 So. 3d

at 22. Direct evidence is evidence that, if believed, would

prove the existence of discriminatory intent without resorting to

inference or presumption. Denney v. City of Albany , 247 F.3d

1172, 1182 (11th Cir. 2001); Holifield , 115 F.3d at , 1561 .

47. Petitioner did not present direct evidence of

disability discrimination on the part of Ace Staffing.

Similarly, the record in this proceeding contains no statistical

evidence of discrimination related to Ace StaffingÓs decision to

cancel Pe titionerÓs assignment with Owens or discontinue offering

Petitioner temporary jobs.

48. In the absence of direct or statistical evidence of

discriminatory intent, Petitioner must rely on circumstantial

evidence of disability discrimination to prove his ca se. For

discrimination claims involving circumstantial evidence, Florida

courts follow the three - part, burden - shifting framework set forth

in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S. Ct. 1817,

36 L. Ed. 2d 668 (1973), and its progeny. See al so Valenzuela ,

18 So. 3d at 21 - 22; and St. Louis v. Fla. Int'l Univ. , 60 So. 3d

455, 458 (Fla. 3d DCA 2011).

49. Under the McDonnell Douglas framework, Petitioner bears

the initial burden of establishing, by a preponderance of the

evidence, a prima facie case of discrimination. McDonnell

Douglas , 411 U.S. at 802 - 04; see also Burke - Fowler v. Orange

Cnty. , 447 F.3d 1319, 1323 (11th Cir. 2006). Demonstrating a

prima facie case is not Ðonerous,Ñ but rather only requires

Petitioner Ðto establish facts adequa te to permit an inference of

discrimination.Ñ Holifield v. Reno , 115 F.3d 1555, 1562 (11th

Cir. 1997).

50. To state a prima facie claim for disability

discrimination, Petitioner must show that 1) he is disabled;

2) he was a Ðqualified individualÑ; and 3 ) he was discriminated

against because of his disability. See Lucas v. W.W. Grainger,

Inc. , 257 F.3d 1249, 1255 (11th Cir. 2001); and Frazier - White v.

Gee , 818 F.3d 1249, 1255 (11th Cir. 2016). An individual is

Ð qualified Ñ if he, with or without reasonab le accommodation, can

perform the essential functions and job requirements of the

position the individual holds. Earl v. Meryns, Inc. , 207 F.3d

1361, 1365 (11th Cir. 2000); Se. Cmty. Coll. v. Davis , 442 U.S.

397, 406, 99 S. Ct. 2361, 2367, 60 L. Ed. 2d 98 0 (1979).

51. If Petitioner establishes a prima facie case for

disability discrimination, he creates a presumption of

discrimination. At that point, the burden shifts to the employer

to articulate a legitimate, non - discriminatory reason for taking

the ad verse employment action. Valenzuela , 18 So. 3d at 22. The

reason for the employerÓs decision should be clear, reasonably

specific, and worthy of credence. DepÓt of Corr. v. Chandler ,

582 So. 2d 1183, 1186 (Fla. 1st DCA 1991). The employer has the

burde n of production, not persuasion, to demonstrate to the

finder of fact that the decision was non - discriminatory. See

Wilson v. B/E Aerospace, Inc. , 376 F. 3d 1079, 1087 (11th Cir.

2004). This burden of production is Ðexceedingly light.Ñ

Holifield , 115 F.3 d at 1564. The employer only needs to produce

evidence of a reason for its decision. It is not required to

persuade the trier of fact that its decision was actually

motivated by the reason given. See St. MaryÓ s Honor Ctr. v.

Hicks , 509 U.S. 502 (1993).

52. If the employer meets its burden, the presumption of

discrimination disappears. The burden then shifts back to the

employee to prove that the employerÓs proffered reason was not

the true reason but merely a ÐpretextÑ for discrimination. See

Combs v. Plantation Patterns , 106 F.3d 1519, 1538 (11th Cir.

1997); Valenzuela , 18 So. 3d at 25. In order to satisfy this

final step of the process, the employee must Ðshow[] directly

that a discriminatory reason more likely than not motivated the

decision, or in directly by showing that the proffered reason for

the employment decision is not worthy of belief.Ñ Chandler , 582

So. 2d at 1186 (citing Tex. DepÓ t of Cmty. Aff. v. Burdine , 450

U.S. 248, 252 - 256 (1981). The proffered explanation is Ðnot

worthy of belief Ñ if the employee demonstrates Ðsuch weaknesses,

implausibilities, inconsistencies, incoherencies, or

contradictions in the employerÓ s proffered legitimate reasons for

its action that a reasonable factfinder could find them unworthy

of credence.Ñ Combs , 1 06 F.3d at 1538; see also Reeves v.

Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 143, 120 S.

Ct. 2097, 147 L. Ed. 2d 105 (2000). Petitioner Ðmust prove that

the reasons articulated were false and that the discrimination

was the real reasonÑ for the def endantÓs actions. City of

Miami v. Hervis , 65 So. 3 d 1110, 1117 (Fla. 3d DCA 2011) (citing

St. MaryÓ s Honor Ctr . , 509 U.S. at 515 (Ð [A] reason cannot be

proved to be Ò a pretext for discrimination Ó unless it is shown

both that the reason was false, and tha t disc rimination was the

real reason.Ñ )).

53. Despite the shifting burdens of proof, Ðthe ultimate

burden of persuading the trier of fact that the defendant

intentionally discriminated against the plaintiff remains at all

times with the plaintiff.Ñ Burdi ne , 450 U.S. at 253, 101 S. Ct.

at 1089, 67 L. Ed. 2d 207; Valenzuela 18 So. 3d at 22.

54. Turning to the facts found in this matter, Petitioner

failed to establish a prima facie case of discrimination based on

his disability. Ace Staffing does not dispu te that Petitioner

suffers from a disability that substantially limits one or more

of his major life activities. Neither does Ace Staffing contest

that Petitioner was a Ðqualified individualÑ who was able to

perform the essential functions of his temporar y job assignments.

However, Petitioner did not set forth sufficient evidence that

Ace Staffing discontinued his work at the Arena because he was a

disabled person.

55. While establishing a prima facie case is not difficult,

Petitioner is required to prod uce facts Ðadequate to permit an

inference of discrimination.Ñ The competent substantial evidence

presented at the final hearing, however, does not support an

inference that Ace Staffing took an adverse employment action

against Petitioner because he is d isabled. Petitioner did not

produce evidence establishing that his disabilities played any

role in Ace StaffingÓs decision not to continue his temporary

assignment with Owens. Conversely, Ace Staffing witnesses

credibly and persuasively testified that Ac e Staffing cancelled

PetitionerÓs job at the Arena based on the administrative demands

that arose from managing PetitionerÓs ÐsteadyÑ ticket with Owens

( i.e. , tracking PetitionerÓs work hours). The evidence and

testimony further shows that the reason Ace Staffing stopped

offering Petitioner temporary jobs after November 2015 was

because Petitioner repeatedly turned down the op portunity for

additional work.

56. Notwithstanding the above conclusion, even assuming,

arguendo, that Petitioner did establish a p rima facie case of

disability discrimination, Ace Staffing articulated a legitimate,

non - discriminatory reason for terminating PetitionerÓs assignment

at the Arena. Ace StaffingÓs burden to refute PetitionerÓs prima

facie case is light. Ace Staffing met its burden by providing

credible testimony that its decision to stop sending Petitioner

to Owens was based on PetitionerÓs failure to properly report his

work hour s on three separate occasions.

57. Completing the McDonnell Douglas burden - shifting

analysis (again, assuming that Petitioner made a prima facie

showing of discrimination), Petitioner did not prove that Ace

StaffingÓs stated reasons for any adverse employment decision

were not its true reasons, but were merely a ÐpretextÑ for

discrimination based on his disability. Petitioner did not

produce any evidence establishing that his disabilities

influenced Ace StaffingÓs decision not to send him back to work

for Owens. After PetitionerÓs complaint on October 2, 2015, A ce

Staffing no longer offered Peti tioner work at the Arena because

it had decided to end its staffing services with Owens. The

impetus for the severed business relationship was PetitionerÓs

unfortunate failure to sufficiently report all the time he worked

despite Ace StaffingÓs instructio ns to the contrary.

Consequently, t he evidentiary record does not support a finding

or conclusion that Ace StaffingÓs proffered explanations were

fa lse or not worthy of credence.

58. Further, the underlying evidence does not establish

that Ace StaffingÓs decision to remove Petitioner from its list

of temporary employees was based on a discriminatory animus. Ace

Staffing continued to contact Petitioner regarding job

assignments after October 2, 2015. The testimony establishes

that Petitioner rejected eve ry opportunity Ace Staffing offered

because he only wanted to work for Owens at the Arena.

Accordingly, the facts found in this matter do not support a

conclusion that Ace StaffingÓs decision to no longer offer

Petitioner work was a pretext for discrimina tion.

59. At the final hearing, Petitioner was very upset that

Ace Staffing refused to allow him to return to work for Owens.

It should be noted, however, that in a proceeding under the FCRA,

the court is Ðnot in the business of adjudging whether employm ent

decisions are prudent or fair. Instead, [the courtÓs] sole

concern is whether unlawful discriminatory animus motivates a

challenged employment decision.Ñ Damo n v. Fleming Supermarkets

of Fla. , Inc., 196 F.3d 1354, 1361 (11th Cir. 1999) . Not

everythi ng that makes an employee unhappy is an actionable

adverse action. Davis v. Town of Lake Park, Fla. , 245 F.3d 1232,

1238 (11th Cir. 2001). For example, an employer may fire an

employee Ðfor a good reason, a bad reason, a reason based on

erroneous facts, or for no reason at all, as long as its action

is not for a discriminatory reason.Ñ Nix v. WLCY Radio/Rahall

Commc'ns , 738 F.2d 1181, 1187 (11th Cir. 1984) . An employee

cannot succeed by simply quarreling with the wisdom of the

employerÓ s reasons. Chapm an v. AI Transp. , 229 F.3d 1012 (l1th

Cir. 2000); see also Alexander v. Fulton Cnty., Ga . , 207 F.3d

1303, 1341 (11th Ci r. 2000)(Ð[I]t is not the courtÓ s role to

second - guess the wisdom of an employerÓ s decisions as long as the

decisions are not racially mo tivated.Ñ).

60. In sum, the evidence on record does not support

PetitionerÓs claim that Ace Staffing discriminated against him

based on his disability. Accordingly, b ecause Petitioner failed

to put forth sufficient evidence that Ace Staffing had some

dis criminatory animus motivating its employment decision, his

Petition for Relief must be dismissed.

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 no unlawful employment

practice and dismiss ing PetitionerÓs Petition for Relief from an

u nlawful employment p ractice.

DONE AND ENTERED this 13 th day of October , 2017, in

Tallahassee, Leon County, Florida.

S

J. BRUCE CULPEPPER

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 13 th day of October , 2017 .

ENDNOTE S

1/ All statutory references are to Florida Statutes (2017),

unless otherwise noted.

2 / Petitioner filed several post - hearing exhibits, many of which

were related to a concurrent disc rimination claim Petitioner

initiated against Owens. The facts found herein are based only

on the evidence and testimony properly introduced and admitted at

the final hearing in this matter.

3 / By requesting a deadline for filing post - hearing submission s

beyond ten days after the final hearing, the 30 - day time period

for filing the Recommended Order was waived. See Fla. Admin.

Code R. 28 - 106.216.

4 / Petitioner also recounted that in 2009, prior to his time with

Ace Staffing, he was charged with assaul t and was found Not

Guilty by reason of insanity. He was ordered to undergo

psychiatric treatment.

5 / In mid - 2011, while working for Ace Staffing, Petitioner

applied for Social Security Disability Insurance Benefits. In

January 2012, Petitioner was awa rded Social Security Disability

Benefits. In its decision, the Social Security Administrat ion

found Petitioner to be ÐdisabledÑ as the term is defin ed in the

Social Security Act.

The decision further determined that PetitionerÓs disability

began in March 2011. Petitioner was found to have medically

documented depressive syndrome, decreased energy, persistent

anxiety, mood disturbance, apprehensive expectation, recurrent

obsessions or compulsions, as well as intense and unstable

interpersonal relationship s, impulsive and damaging behavior, and

memory impairment.

PetitionerÓs ability to work was also evaluated in 2011.

Petitioner was found to be unable to perform several work - related

activities on a sustained basis, including a) remembering work

procedure s, b) conc entrating over extended periods, c) working

in coordination with, or proximity to, others without being

unduly distracted, d) completing a normal workday without

psychological symptoms, e) accepting instructions, f) responding

appropriately to c riticism, g) getting along with coworkers,

peers or the general public without exhibiting behavioral

extremes, h) responding appropriately to changes in work

assignments, i) dealing with normal work stress, or

j) understanding, remembering or carrying ou t detailed

instructions.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed)

Rusty Santangelo

Post Office Box 536423

Orlando, Florida 32853

(eServed)

Nikhil N. Joshi, Esquire

Hultman Sensenig Joshi

Suite 208

2055 Wood Street

Sarasota, Florida 34237

(eServed)

Lorraine Maass Hultman, Esquire

Hultman Sensenig Joshi

Suite 208

2055 Wood Street

Sarasota, Florida 34237

(eServed)

Cheyanne Costilla, Gen eral 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 Reco mmended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.