17-003261 Ian H. Williams vs. First Commerce Credit Union Status: Closed Recommended Order on Tuesday, August 29, 2017.

Summary: Petitioner did not prove even a prima facie case of discrimination against Respondent. Respondent is entitled to attorneys' fees.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IAN H. WILLIAMS ,

Petitioner,

vs. Case No. 17 - 3261

FIRST COMMERCE CREDIT UNION ,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a hearin g was conducted in this case

on August 15 , 2017 , in Tallahassee , Florida, before R. Bruce

McKibben, a duly - designated Administrative Law Judge with the

Division of Administrative Hearings, pursuant to authority set

forth in section 120.57(1), Florida Statutes. Unless

specifically stated otherwise herein, all references to the

Florida Statutes will be to the 201 7 codification.

APPEARANCES

For Petitioner: Ian H. Williams , pro se

Apartment 311C

2315 Jackson Bluff Road

Tallahassee, Florida 32304

For Respondent: Jason Curtis Taylor, Esquire

McConnaughhay, Duffy, Coonrod,

Pope and Weaver, P.A.

Suite 200

1709 Hermitage Boulevard

Tallahassee, Florida 32308

STATEMENT OF THE ISSUE S

Whether Respondent, First Commerce Credit Union (ÐFirst

Commerce Ñ), discriminated against Petitioner, Ian H. Williams ,

in violation of the Florida Human Rights Act ; and, if so, what

penalty should be imposed?

PRELIMINARY STATEMENT

On or about December 12, 2016 , Mr. Williams filed an

Employment C harge of Discrimination form with the Florida

Commission on Human Relations (ÐFCHRÑ). The c harge form alleged

discriminatio n against Mr. Williams by First Commerce, a

prospective employer , based on race (African - American) and

gender (male) . FCHR issued a Determination: No Reasonable

Cause dated May 3, 2017 . Mr. Williams then timely filed his

Petition for Relief dated May 27, 2017 . The Petition was

forwarded to the Division of Administrative Hearings ( Ð DOAH Ñ )

and assigned to the undersigned.

At the final hearing, Mr. Williams testified on his own

behalf and offered Exhibits 5 and 6 into evidence , both of

which w ere accepte d withou t objection . First Commerce called

one witness: Sarah Sorne, h uman r esources specialist . First

Commerce Ós E xhibits 3, 4, 7 through 9, and 11 through 14. were

admitted into evidence.

The parties advised the undersigned that a transcript of

the final hearing would not be ordered . By rule, the partiesÓ

proposed recommended orders ( Ð PROs Ñ ) were due at DOAH on or

before August 25, 2017 . Each party timely submitted a PRO.

FINDINGS OF FACT

1 . Mr. Williams is a 29 - year - old , African - American male

who contends he was discriminated against by First Commerce when

he applied for a position as a t eller at that institution.

2 . First Commerce is a credit union doing business in

Tallahassee, Florida. It has more than 15 employees.

3 . On December 2, 2016, Mr. Williams submitted an

employment application with First Commerce. He was seeking a

part - time position as a teller, identified internally by First

Commerce by Job ID No. 10201603.

4 . In his application, Mr. Williams indicated that he had

received a bachelorÓs degree from the University of Colorado,

but that he had no experience as a teller in a bank or credit

union. He also answered a question in the application about his

experience handling cash; he indicated he had ÐNone.Ñ However,

in his resume a ttached to the application, Mr. Williams noted

that he had ÐAdept skill in infrastructure of cash operations.Ñ

The resume did not provide any explanation as to what that skill

may have entailed.

5 . Ms. Sorne reviewed about 170 applications for the part -

time teller position. Her initial review was done to determine

which applicants met the minimum requirements for the job , i.e.,

whether the applicant had teller experience and /or experience

handling cash. Ms. Sorne did no t know the age, race, or

gender of the applicants at that point in time. From her

review of Mr. WilliamsÓ application, Ms. Sorne determined that

Mr. Williams did not meet the minimum qualifications. That is,

she did not interpret the statement concerning Ð infrastructure

of cash operationsÑ as meeting the Ðcash handlingÑ requirement.

6 . Ms. Sorne sent letters by way of email to all

applicants who did not meet the minimum requirements.

Unfortunately, when she sent the email to Mr. Williams, she

selected the wrong Ðform letterÑ from her computer drop - down

selections. The letter in the email to Mr. Williams stated:

ÐThank you for taking time to interview for our Teller position

at First Commerce Credit Union. It was a pleasure meet ing you.

Although your credentials are impressive, we have chosen to

pursue other candidates that better align with the needs of our

company. Ñ

7 . In fact, Mr. Williams had not been afforded an

interview and had never met Ms. Sorne. He apparently believe d

the email ed letter was therefore indicative of some

discriminatory animus by First Commerce. How he made the

connection between the erroneously - selected letter and

discrimination was not made clear from the evidence presented at

final hearing. Nonethel ess, h e replied to Ms. SorneÓs email,

stating, ÐI did not interview with you people.Ñ

8 . Upon receiving Mr . WilliamsÓ email response, Ms. Sorne

called him to explain her mistake in sending the erroneous Ðform

letterÑ concerning rejection of his application. During the

telephone conversation, Mr. Williams simply advised Ms. Sorne

that he would be filing a complaint with the FCHR and that he

would see her in court within the year . He did not attempt to

correct his erroneous application, i.e. , he offered no other

information concerning his experience handling cash. True to

his word, Mr. Williams filed a complaint with FCHR .

9 . First Commerce, meanwhile, hired two people to fill the

part - time teller position it had advertised. Both of the hi red

individuals w ere African - American; one was male and the other

was female.

10 . At final hearing, Mr. Williams pointed out that the

two applicants hired for the teller position may have had less

education or experience than he had. He noted that he was a

graduate of the University of Colorado (although his application

says that he attended there for less than one year ) , while the

two hired applicants attended Florida A & M University. He did

not explain why that fact may have contributed to the

dis crimination against him by First Commerce . However, b oth of

the other applicants had indicated on their application forms

that they had teller experience and cash - handling experience.

That is, each of them met the minimum requirements for the

position. That was enough to get them a job interv iew.

Inasmuch as Mr. WilliamsÓ application said he did not have that

experience, he was not chosen for an interview.

11 . Mr. Williams presented no evidence whatsoever that he

was treated differently from any other applicant based on his

race (black, African - American) or his gender (male). At final

hearing he raised the issue of discrimination based on age,

apparently because one of the competing applicants erroneously

indicated on her application that she was Ðunder the age of 18.Ñ

That disclosure was later determined to have been a mistake .

Age was not a consideration for the part - time teller position

anyway.

12 . Mr. Williams failed to establish even a prima facie

case of discrimination. It is, in fact, difficult to make any

connection between the way he was treated and discriminatory

practices in general. Mr. Williams appears to have been treated

equally with al l applicants; there is no evidence that he was

discriminated against for any reason.

CONCLUSIONS OF LAW

13 . The Division of Administrative Hearings has

jurisdiction over the parties and to the subject matter of this

proceeding pursuant to sections 120.569 an d 120.57(1), Florida

Statutes.

14 . The general rule is that the party asserting the

affirmative of an issue has the burden of presenting evidence as

to that issue. DepÓt of Banking & Fin., Div. of Sec. & Inv .

Prot. v. Osborne Stern & Co. , 6 70 S o. 2d 932, 933 (Fla. 1996)

( citing Fla. DepÓt of Transp. v. J.W.C. Co. , 396 So. 2d

778 (Fla. 1st DCA 1981) ) . According to section 120.57(1)(k),

ÐFindings of fact shall be based upon a preponderance of the

evidence . . . except as otherwise provided by sta tute, and

shall be based exclusively on the evidence of record and on

matters officially recognized.Ñ In this case, Mr. Williams has

the initial burden of proving, by a preponderance of the

evidence, that he was discriminated against during his

applicatio n for employment .

15 . The Florida Civil Rights Act of 1992 (the ÐActÑ or

Ð FCRA Ñ) is codified in sections 760.01 Î 760.11, Florida

Statutes. The ActÓs general purpose is Ðto secure for all

individuals within the state freedom from discrimination because

of race, color, religion, sex, national origin, age, handicap,

or marital status and thereby to protect their interest in

personal dignity, to make available to the state their full

productive capacities, to secure the state against domestic

strife and unrest, to preserve the public safety, health, and

general welfare, and to promote the interests, rights, and

privileges of individuals within the state.Ñ £ 760.01, Fla.

Stat. When Ða Florida statute [such as the FCRA] is modeled

after a federal law on the same subject, the Florida statute

will take on the same constructions as placed on its federal

prototype.Ñ Brand v. Fla. Power Corp. , 633 S o. 2d 504,

509 (Fla. 1st DCA 1994). Therefore, the FCRA should be

interpreted, where possible, to conform to Title VII of the

Civil Rights Act of 1964, which contains the principal federal

antidiscrimination laws.

16 . Section 760.10 provides, in relevant pa rt:

(1) It is unlawful employment practice for

an employer:

(a) To discharge or fail or

refuse to hire any individual, or

otherwise to discriminate against

any individual with respect to

compensation, terms, conditions, or

privileges of employment, because of

such individualÓs race, color,

religion, sex, national origin, age,

handicap, or marital status.

17. First Commerce is an employer pursuant to s ection

760.02(7).

18 . Complainants alleging unlawful discrimination may

prove their case using d irect evidence of discriminatory intent.

Direct evidence is evidence that, if believed, would prove the

existence of discriminatory intent without resort to inference

or presumption. Denney v. City of Albany , 247 F.3d 1172,

1182 (11th Cir. 2001); Holifie ld v. Reno , 115 F.3d 1555,

1561 (11th Cir. 1997). But courts have held that Ðonly the most

blatant remarks, whose intent could be nothing other than to

discriminateÑ satisfy this definition. Damon v. Fleming

Supermarkets of Fla., Inc. , 196 F.3d 1354, 135 8 - 59 (11th Cir.

1999) (internal quotations omitted), cert. denied , 529 U.S.

1109 (2000). There was no such d irect evidence presented by

Mr. Williams in this case.

19 . In the absence of direct evidence, the law permits an

inference of discriminatory intent if complainants can produce

sufficient circumstantial evidence of discriminatory animus,

such as proof that the charged party treated persons outside of

the protected class (who were otherwise similarly situated) more

favorably than the complainant was tr eated. Such circumstantial

evidence would constitute a prima facie case.

20 . In McDonnell Douglas Corp. v. Green , 411 U.S. 792,

802 - 803 (1973), the U.S. Supreme Court explained that the

complainant has the initial burden of establishing by a

preponderanc e of the evidence a prima facie case of unlawful

discrimination. Failure to establish a prima facie case of

discrimination ends the inquiry. See Ratliff v. State , 666 So.

2d 1008, 1012 n.6 (Fla. 1st DCA 1996 ) , affÓd , 679 So. 2d

1183 (Fla. 1996). If, how ever, the complainant succeeds in

making a prima facie case, then the burden shifts to the accused

employer to articulate a legitimate, nondiscriminatory reason

for its complained - of conduct. This intermediate burden of

production, not persuasion, is Ðexc eedingly light.Ñ Turnes v.

Amsouth Bank , N.A. , 36 F.3d 1057, 1061 (11th Cir. 1994). If the

employer carries this burden, then the complainant must

establish that the proffered reason was not the true reason but

merely a pretext for discrimination. St. M aryÓs Honor C tr. v.

Hicks , 509 U.S. 502, 516 - 518 (1993). At all times, the

Ðultimate burden of persuading the trier of fact that the

[charged party] intentionally discriminated againstÑ him remains

with the complainant. Silvera v. Orange Co. Sch. Bd. , 244 F.3d

1253, 1258 (11th Cir. 2001).

21 . To establish a prima facie case of discrimination in

the present matter, Mr. Williams would be required to show that

he Ð(1) is a member of a protected class; (2) was qualified for

the position at issue; (3) was s ubject to an adverse employment

action; and (4) was replaced by someone outside the protected

class, or, in the case of disparate treatment, shows that other

similarly situated employees were treated more favorably.Ñ

Taylor v. On Tap Unlimited, Inc. , 282 Fed. Appx. 801, 803 (11th

Cir. 2008).

22 . Mr. Williams proved he was a member of a protected

class , i.e., African - American . Mr. Williams proved that even

though he stated to the contrary in his application, he had some

experience with handling cash. Therefore, he was probably

minimally qualified for the teller position. He also proved

that he was subjected to an adverse employment action , i.e., his

application for employment was denied . He did not provide any

evidence that he was replaced by someo ne outside his protected

class or that he was treated differently than other employees,

male or female , white or black . In fact, the persons who were

hired were both African - American and one of them was a male.

23 . Further, even if he had timely asserted a

discrimination claim based on age, he could not prove a prima

facie case on that basis, either. In order to qualify for an

age - based claim of discrimination, the complainant must be at

least 40 years of age. Miami - Dade Cnty . v. Eghbal , 54 So. 3d

525, 526 (Fla. 3d DCA 2011). Mr. Williams is only 29 years old.

24 . In short, Mr. Williams did not meet his initial burden

of proof in this case , i.e., he did not establish a prima facie

case, and his complaint must be dismissed. Even if he had met

that burden, it is clear from the evidence that Mr. WilliamsÓ

application for employment was r ejected based on completely

non discriminatory bases . His application for employment was

read without knowledge of or regard for his age or r ace. It was

reviewed in accordance with appropriate policies. No one

outside Mr. WilliamsÓ race was hired in his stead. In total,

the application process was fair and nondiscriminatory.

25 . Section 57.105(1) and (5), Florida Statutes, allow for

a cour t or administrative law judge to, sua sponte, award

attorneyÓs fees when the losing partyÓs claim or defense is not

supported by the material facts necessary to prove the position.

In this case, there is reasonabl e basis for finding that

Mr. WilliamsÓ com plaint against First Commerce was completely

without basis or support. First Commerce is, therefore,

entitled to an award of attorneys Ó fees and costs related to

its defense of the frivolous claim . If First Commerce chooses

to assert a claim for attorneysÓ fees and costs against

Mr. Williams and the parties cannot agree to the amount to be

paid, the undersigned will entertain a written motion for

determination of the correct amount.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a f inal o rder be entered dismissing

the Complaint fi led by Ian H. Williams.

DONE AND ENTERED this 29th day of August , 2017 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

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 A dministrative Hearings

this 29th day of August, 2017 .

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed)

Ian H. Williams

Apartment 311C

2315 Jackson Bluff Road

Tallahassee, Florida 32304

Jason Curtis Taylor, Esquire

McConnaughhay, Duffy, Coonrod,

Pope and Weaver, P.A.

Suite 200

1709 Hermitage Boulevard

Tallahassee, Florida 32308

(eServed)

Donna Carson Utecht

First Commerce Credit Union

Post Of fice Box 6416

Tallahassee, Florida 32314

Cheyanne Costilla, Gen eral Co unsel

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 Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.