17-003272 Dwayne E. Clark, Sr. vs. University Of Florida Jacksonville Physicians, Inc. Status: Closed Recommended Order on Thursday, November 30, 2017.

Summary: Petitioner did not establish he was the victim of age discrimination when his application for employment was removed from consideration.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DWAYNE E. CLARK, SR.,

Petitioner,

vs. Case No. 17 - 3272

UNIVERSITY OF FLORIDA

JACKSONVILLE PHYSICIANS, INC.,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursua nt to notice, a formal hearing was held in this case

on August 31, 2017, in Jacksonville, Florida, before W. David

Watkins, the duly - designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Dwayne E. Clar k, Sr., pro se

11334 Bridges Road

Jacksonville, Florida 32218

For Respondent: Jesse D. Bannon, Esquire

Margaret P. Zabijaka, Esquire

Constangy, Brooks, Smith & Prophete, LLP

200 West Forsyth Street, Suite 1700

Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

The issue is whether Respondent engaged in an unlawful

employment practice pursuant to chapter 760, Florida Statutes,

against Petit ioner due to h is age.

PRELIMINARY STATEMENT

Petitioner filed a Complaint of Discrimination with the

Florida Commission on Human Relations (Commission) on

November 4, 2016. The Commission entered a Notice of

Determination: Reasonable Cause on or about May 3, 2017.

Petitioner then filed a Petition for Relief. The Petition was

forwarded to the Division of Administrative Hearings (DOAH) on

May 11, 2017, for assignment of an Administrative Law Judge to

conduct a formal hearing. A Notice of Hearing was issued on

June 20, 2017, scheduling the final hearing for August 31, 2017.

The hearing commenced as scheduled.

At the final hearing, Petitioner and Respondent presented

the testimony of William Davis, D irector of Human Resources for

Respondent ; and Richard Riv era, H uman R esources M anager for

Respondent. Petitioner testified on his own behalf and was

cross - examined by Respondent. RespondentÓs Exhibits 1 through 7

were received into evidence without objection.

At the conclusion of the hearing, the parties agre ed to

file their proposed recommended orders, if any, within 10 days

of the filing of the final hearing transcript. The one - volume

hearing T ranscript was filed with DOAH on September 19, 2017,

making the deadline to file proposed recommended orders

Septem ber 29, 2017. At PetitionerÓs request, that d eadline was

extended to October 9, 2017. Both parties timely filed their

P roposed R ecommended O rders, which have been considered in the

preparation of this Recommended Order.

All citations are to Florida Stat utes (2017) unless

otherwise indicated.

FINDING S OF FACT

1 . Petitioner was employed by Respondent as an Employee

Relations Specialist from July 30, 2007, to March 7, 2008.

PetitionerÓs position as an Employee Relations Specialist was a

full - time salaried exempt position.

2 . Throughout PetitionerÓs employment, Mary Campbell was

the Director of Human Resources for Respondent, and William

Davis was the Human Resources Manager for Respondent. Campbell

was Petitioner and DavisÓs direct supervisor.

3 . On Mar ch 6, 2008, Petitioner submitted a letter of

resignation to Campbell, effective Friday, March 7, 2008.

4 . Pursuant to RespondentÓs termination policy, salaried

exempt employees are expected to provide a minimum of

four weeks Ó notice of their resignation, and failure to do so

could block their eligibility for rehire and payment of accrued

paid time off (PTO).

5 . Petitioner failed to provide the required four weeks Ó

notice when he resigned his employment with Respondent.

6 . Petitioner understood that resig ning with less than

four weeks Ó notice would block his eligibility for rehire, but,

despite that understanding, he chose to resign on such short

notice because he was starting a new job the next Monday.

Petitioner expressed that understanding in his resig nation

letter, stating: ÐI understand the ramification of my early

resignation but my future employer will not hold a position for

thirty days.Ñ (Resignation letter, RespondentÓs Ex. 1) .

7 . On March 7, 2008, Campbell signed a Personnel Action

Notice rel ating to PetitionerÓs resignation of employment,

stating that ÐDwayne Clark resigned his position for another

opportunity without proper notice, accepting the consequences of

losing PTO and rehire eligibility.Ñ Campbell, without the

involvement of Davis, classified Petitioner as ineligible for

rehire on March 7, 2008. At hearing, Petitioner acknowledged

this action was not discriminatory.

8 . The Monday after his resignation, Petitioner began

working for Citizens Property Insurance as a Human Resources

Ge neralist, and was involuntarily terminated after six weeks of

employment with Citizens.

9 . In July 2009, Davis was promoted to Director of Human

Resources after Campbell resigned from her employment with

Respondent.

10 . On April 15, 2011, Richard Rivera was hired by

Respondent as the Human Resources Manager. Prior to that,

Rivera was employed by University of Florida Shands Medical

CenterÓs ( UF Shands) Human Resources Department, which shares

the same building with RespondentÓs Human Resources Department .

Rivera knew Petitioner as a human resources employee of

Respondent in 2007/2008. However, they ha d never spoken prior

to mediation of this matter in 2017.

11 . Since becoming Director of Human Resources, Davis has

received several requests for an excep tion to the termination

policy from former employees classified as ineligible for

rehire. Though he has the authority to do so, Davis has never

made an exception to the termination policy or rehired anyone

who had been classified as ineligible for rehire.

12 . In July 2010 and early 2012, Petitioner asked Davis to

make an exception to the termination policy and reclassify him

as eligible for rehire. However, Davis did not reclassify

Petitioner as eligible for rehire because Ð[w]hen you make an

exception , you have problems enforcing the policy going forward,

so thatÓs why I do not make exceptions.Ñ

13 . Petitioner claims that while he was employed with

Respondent, Campbell made two exceptions to the termination

policy and allowed the rehire of two former employees who had

been classified as ineligible for rehire. However, other than

their gender and race, Petitioner could not name or otherwise

identify the two former employees in a way that would allow

Respondent to attempt to verify his claim.

14 . Petit ioner asserted that a physician assistant (PA)

had been rehired by Respondent after providing less than

four weeks Ó notice of her resignation . Respondent was able to

identify that individual as Allison McFauls. Ms. McFauls has

worked as a Senior PA since 1998 and has never been an employee

of Respondent or subject to RespondentÓs termination policy.

Ms. McFauls has always been employed by UF Shands, which is a

separate entity from UF Jacksonville Physicians, Inc., with a

separate human resources departme nt and separate personnel

policies.

15 . Neither Davis nor Rivera is aware of any employee of

Respondent receiving an exception to the termination policy.

16 . Davis classified Hubert Collins, an Employee Relations

Manager , who is nearly 20 years younger than Petitioner, and

Christy Wright, who is even younger than Collins, as ineligible

for rehire due to their failures to comply with the required

resignation notice period in the termination policy.

17 . During their conversation in July 2010, Petitioner

a sked Davis if Respondent would be interested in contracting

with PetitionerÓs consulting company to assist with the Office

of Federal Contract Compliance Programs (OFCCP) compliance

review. Respondent did not contract with Petitioner because

Respondent pe rformed compliance review work and completed its

Affirmative Action Plan in - house.

18 . Davis did not ask Petitioner questions regarding his

age and does not recall having a conversation with Petitioner

about retirement since PetitionerÓs employment with R espondent.

Even if such topics of conversation occurred, Petitioner agreed

he may have been the one to raise them.

19 . On September 12, 2016, Petitioner applied online for a

vacant Employee Relations Specialist position with Respondent.

However, due to PetitionerÓs failure to comply with RespondentÓs

four - week notice requirement, Petitioner was ineligible for

rehire with Respondent in September 2016.

20 . On September 14, 2016, Rivera reviewed the

applications and selected which applicants would be inter viewed

and considered for the open Employee Relations Specialist

position.

21 . Because Petitioner was ineligible for rehire, Rivera

removed Petitioner from further consideration. Rivera did not

base his decision on PetitionerÓs age, and there was no

pers uasive evidence of record that Rivera was biased against

Petitioner because of his age.

22 . On September 14, 2016, Rivera rejected PetitionerÓs

application in the online application system and entered

Ðineligible for rehireÑ as the reason for rejecting P etitionerÓs

application. The same day, Petitioner was sent a form email

notifying him that his application had been removed from

consideration for the Employee Relations Specialist position.

23 . No one but Rivera was involved in the decision to

remove Pe titioner from consideration for the position.

24 . Rivera did not inform Davis or anyone else that

Petitioner had applied for the Employee Relations Specialist

position. Likewise, Davis never directed Rivera or anyone else

to reject applications from Peti tioner.

25 . Petitioner did not communicate with Davis, Rivera, or

any other employee about his September 12, 2016, application.

Nor did Petitioner request an exception to the termination

policy from Davis or anyone else in 2016.

26 . Davis did not know t hat Petitioner had applied for the

Employee Relations Specialist position until November 2016, when

Respondent was notified by the Commission that Petitioner had

filed a charge of discrimination.

27 . After receiving PetitionerÓs charge of discrimination

in November 2016, Davis reviewed PetitionerÓs September 2016

application, and noticed that Petitioner stated that he had

resigned from his employment with Citizens Property Insurance,

which Davis knew to be false. If Petitioner had been hired for

the Empl oyee Relations Specialist position, Davis would have

terminated PetitionerÓs employment for falsifying his

application.

CONCLUSIONS OF LAW

28 . DOAH has jurisdiction over the parties to and the

subject matter of this proceeding. §§ 120.569, 120.57(1), and

760.11, Fla. Stat.

29 . According to Mr. Clark's Petition for Relief , and the

testimony given at final hearing, Petitioner contends that

William Davis has discriminated against him because of his age.

30 . Pursuant to section 760.10:

(1) It is an unlaw ful 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

indiv idual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

31 . Florida courts interpret chapter 760, Florida

Statutes, in accordance with federal anti - discrimination laws,

codified under Title VII of the Civil Rights Act of 1 964 (Civil

Rights Act), as amended in 42 U.S.C. § 2000e, et seq .

32 . When a p etitioner alleges disparate treatment under

chapter 760, or the Civil Rights Act, the p etitioner must prove

that his age "actually motivated the employer's decision. That

is, t he Plaintiff's age must have actually played a role [in the

employer's decision making] process and had a determinative

influence on the outcome." Reeves v. Sanderson Plumbing Prods.,

Inc. , 530 U.S. 133, 141 (2000) (quotation marks omitted)

(alteration in original). "A plaintiff may establish a claim of

illegal age discrimination through either direct or

circumstantial evidence." Van Voorhis v. Hillsborough Cnty. Bd.

of Cnty. Comm'rs , 512 F.3d 1296, 1300 (11th Cir. 2008).

33 . A plaintiff bringing a disp arate treatment claim of

age discrimination Ðmust prove, by a preponderance of the

evidence, that age was the Òbut forÓ cause of the challenged

adverse employment action.Ñ Gross v. FBL Fin. Servs., Inc. ,

557 U.S. 167, 180 (2009); see also Rodriguez v. Car go Airport

Servs. USA, LLC , 648 F. AppÓx 986, 989 (1 1th Cir. 2016) (applying

Ðbut forÑ causation requirement to an age claim brought pursuant

to the FCRA). ÐIn other words, a plaintiff must prove that,

regardless of other possible contributing factors, the

employeeÓs age was the determinative factor, without which the

employer would not have taken adverse action.Ñ Wineberger v.

RaceTrac Petro., Inc. , 2015 U.S. Dist. Lexis 35830 (M.D. Fla.

2015).

34 . Petitioner has the ultimate burden to prove

discriminati on by direct or indirect evidence. Texas DepÓt of

Cmty. Aff . v. Burdine , 450 U.S. 248, 253 (1981).

Direct evidence is admissible evidence, which if believed, would

prove the existence of discrimination without any need for

inference or presumption. Pet itioner offered no such evidence.

35 . Absent direct evidence of discrimination, Petitioner

must prove discrimination by indirect or circumstantial

evidence. To prove discrimination by indirect or circumstantial

evidence, Petitioner must first establish a prima facie case of

the following elements: (a) he is a member of a protected

group; (b) he is qualified to do his job; (c) he was subjected

to an adverse employment action; and (d) similarly - situated

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

treated more favorably than Petitioner. See McDonnell Douglas

Corp. v. Green , 411 U.S. 792 (1973).

36 . ÐAny person aggrieved by a violation of ss. 760.01 -

760.10 may file a complaint with the commission within 365 days

of the alleged violation . . . . Ñ § 760.11(1), Fla. Stat.

PetitionerÓs charge of discrimination was filed on November 4,

2016. Therefore, the only timely adverse employment action in

this case is the September 14, 2016, removal of PetitionerÓs

application from consideration for the E mployee Relations

Specialist position.

37 . If Petitioner proves his prima facie case, the

employer then must articulate a legitimate, non - discriminatory

reason for the challenged employment decision. Burdine , 450

U.S. at 254. The employer is required on ly to "produce

admissible evidence, which would allow the trier of fact

rationally to conclude that the employment decision had not been

motivated by discriminatory animus." Burdine , 450 U.S. at 257.

38 . If the employer produces evidence of a non -

discrim inatory reason for the adverse action, the burden shifts

back to Petitioner to prove that the employer's reason was a

pretext for discrimination. St. Mary's Honor Ctr . v. Hicks , 509

U.S. 502, 503 (1993).

39 . Petitioner has failed to prove a prima facie c ase of

discriminatory failure - to - hire based on age. While Petitioner

presented evidence that he is a member of a protected age group,

he failed to prove that he was qualified for the position,

inasmuch as he has been ineligible for rehire ever since his

r esignation on March 7, 2008 (the status of which Petitioner

admits was non - discriminatory). See Trask v. Sec Ó y, Dept. of

Vets .Ó Aff . , 822 F.3d 1179, 1191 (11th Cir. 2016)(ÐTo

demonstrate that she was qualified for the position at the prima

facie stage, a plaintiff must show that she satisfied an

employerÓs objective qualifications.Ñ). In addition, Petitioner

failed to present any evidence that Respondent filled the

position with a substantially younger person (neither the

identity nor the age of the perso n who filled the Employee

Relations Specialist position is of record).

40 . Even if, arguendo , Petitioner had proven a prima facie

case of discriminatory failure - to - hire based on age, Petitioner

failed to prove that RespondentÓs articulated legitimate, non -

discriminatory reason for taking the employment action is a

pretext for age discrimination and that his age was the

determinative factor (Ðbut - forÑ cause) in RiveraÓs decision to

remove his application from consideration. See Gross , 557 U.S.

at 180.

41 . An employerÓs articulated non - discriminatory reason

cannot constitute pretext for discrimination unless it is shown

that the reason was false and that discrimination was the real

reason. See St. MaryÓs Honor Ctr . , 509 U.S. at 515 . The

plaintiff must dem onstrate Ðsuch weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the

employerÓs proffered legitimate reasons for its action that a

reasonable fact finder could find them unworthy of credence.Ñ

McCann v. Tillman , 526 F.3d 1 370, 1375 (11th Cir. 2008).

42 . Respondent presented persuasive documentary and

testimonial evidence that Petitioner was removed from

consideration for the Employee Relations Specialist position by

Rivera on September 14, 2016, based solely on his ineligi bility

for rehire in accordance with RespondentÓs termination policy.

Conversely, Petitioner failed to present any competent evidence

(let alone the required preponderance of the evidence) that

RespondentÓs proffered reason for removing him from

considera tion for the Employee Relations Specialist position is

a pretext for age discrimination. Plainly stated, Petitioner

did not present any credible evidence that Respondent's reason

for the adverse employment action was a pretext for

discrimination.

43 . "Th e ultimate burden of persuading the trier of fact

that the [employer] intentionally discriminated against the

[employee] remains at all times with the [employee]." Burdine ,

450 U.S. at 253. In this case, Petitioner failed to meet his

burden.

RECOMMENDAT ION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing the Petition for Relief.

DONE AND ENTERED this 30th day of November , 2017 , in

Tallahassee, Leon County, Florida.

S

W. DAVID WATKINS

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

w ww.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of November , 2017 .

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florid a 32399

(eServed)

Margaret P. Zabijaka, Esquire

Constangy, Brooks, Smith & Prophete, LLP

Suite 1700

200 West Forsyth Street

Jacksonville, Florida 32202

(eServed)

Jesse D. Bannon, Esquire

Constangy, Brooks, Smith & Prophete, LLP

Suite 1700

200 West Fors yth Street

Jacksonville, Florida 32202

(eServed)

Dwayne E. Clark, Sr.

11334 Bridges Road

Jacksonville, Florida 32218

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issu e the Final Order in this case.