17-005083 Aaron Pittman vs. Sunland Center Status: Closed Recommended Order on Friday, March 30, 2018.

Summary: Petitioner failed to prove a prima facie case of discrimination where he suffered no adverse employment action.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AARON PITTMAN,

Petitioner,

vs. Case No. 17 - 5083

SUNLAND CENTER,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, this case was heard on Novembe r 16,

2017, in Marianna, Florida, before Administrative Law Judge

Suzanne Van Wyk.

APPEARANCES

For Petitioner: LaDray B. Gilbert, Esquire

The Gilbert Firm, P.A.

2913 Optimist Drive

Marianna, Florida 32446

For Respondent: Lisa Marie Kuh lman, Esquire

Agency for Persons with Disabilities

4030 Esplanade Way

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE S

Whether Respondent subjected Petitioner to an unlawful

employment practice based on PetitionerÓs race, in violation of

section 760.10, Florida Statutes (2016) 1/ ; and , if so, what

penalty should be imposed.

PRELIMINARY STATEMENT

On February 17, 2017, Petitioner filed an Employment

Complaint of Discrimination with the Florida Commission on Human

Relations (Commission ) , whi ch alleged that Respondent violated

section 760.10 by discriminating against him on the basis of his

race.

On August 11, 2017, the Commission issued a Determination:

No Cause and a Notice of Determination: No Cause, by which the

Commission determined th at reasonable cause did not exist to

believe that an unlawful employment practice occurred. On

September 15, 2017, Petitioner filed a Petition for Relief with

the Commission, which was transmitted that same date to the

Division of Administrative Hearings to conduct a final hearing.

The final hearing was scheduled for November 16, 2017, in

Marianna, Florida, and commenced as scheduled.

At the final hearing, Petitioner testified on his own behalf

and presented the testimony of Clarence Holden, Sr. Petiti oner

did not introduce any exhibits in evidence.

Respondent presented the testimony of Amanda Johnson, Raquel

Archie, and Amanda Smith. RespondentÓs Exhibits R1 through R3

were admitted in evidence.

The proceedings were recorded, but no transcript of the

proceedings was filed. On February 27, 2018, the undersigned

entered an Order on Post - h earing Filings ordering the parties to

file proposed recommended orders on or before March 9, 2018.

On March 7, 2018, PetitionerÓs counsel filed a Motion to

Extend Time for Order on Post - hearing Filings (Motion), which the

undersigned denied , without prejudice, solely because counsel did

not represent in the Motion whether Respondent opposed the

Motion. 2/ Nevertheless, Petitioner did not file an amended

motion. Nei ther party filed a proposed recommended order in this

case.

FINDING S OF FACT

1. Petitioner, Aaron Pittman, a black male, was at all

times relevant hereto employed at Sunland Center (Sunland) by the

Agency for Persons with Disabilities (APD).

2. Sunland C enter is an assisted - living facility operated

by APD in Marianna, Florida, serving clients with intellectual

and developmental disabilities.

3. Petitioner was first employed at Sunland on August 7,

1987 , as a Maintenance Mechanic. PetitionerÓs full - time job was

to maintain wheelchairs for use by residents. According to

Petitioner , the work was very steady, with continuous repairs to

footrests, wheels, seats, and many other parts of well - used

wheelchairs throughout the facility. Petitioner remained in th at

position for 17 years.

4. In 2007, Petitioner was promoted from Maintenance

Mechanic to Electronics Tech II. The duties of the Electronics

Tech II include installation of televisions, cleaning fire

detection and other safety equipment, conducting fire drills, and

repairing all manner of electronics.

5. After Petitioner was promoted to Electronics Tech II , an

employee with the last name of Moss was assigned to wheelchair

maintenance. Apparently Mr. Moss was not capable of performing

the duties of whee lchair maintenance and requested PetitionerÓs

assistance with those duties. Mr. Moss left Sunland sometime in

2010.

6. When Mr. Moss left, John Kramer, Maintenance Supervisor,

asked Petitioner to help out ÐtemporarilyÑ with the wheelchair

maintenance. P etitioner testified that he agreed to resume

wheelchair maintenance ÐtemporarilyÑ because Mr. Kramer was Ða

nice man and [Petitioner] wanted to help him out.Ñ

7. Petitioner first worked overtime on a night shift to

complete the wheelchair maintenance work . However, Petitioner

did not request prior approval for the overtime and was

instructed to take time off to compensate for the overtime.

8. Clarence Holden, Sr., a black male, was employed at

Sunland for 40 years. Mr. Holden began in an entry - level

pos ition, but was promoted to a supervisory position. Mr. Holden

supervised Petitioner during Mr. HoldenÓs last five years of

employment in the position of Telecommunication Specialist.

9. Mr. Holden also supervised Keith Hatcher, the only

employee other th an Petitioner in the Maintenance Department.

10. Mr. Hatcher retired sometime before Mr. Holden.

11. Mr. Holden retired in 2014, leaving Petitioner as the

only employee in the Maintenance Department.

12. Petitioner testified that he Ðtook over [Mr. Ho ldenÓs]

dutiesÑ when Mr. Holden retired, but was never compensated for

essentially working two jobs.

13. Petitioner never supervised any employees at Sunland.

Petitioner did not have any authority to hire or fire other

employees or perform evaluations of other employees.

14. After Mr. HoldenÓs retirement, Petitioner asked Allen

Ward (whose position in the chain of command was not identified)

about applying for the Telecommunication Specialist position.

Petitioner was told management was ÐholdingÑ that position.

15. Petitioner testified that Mr. Ward advertised and

filled the position of Telecommunication Specialist Ðwhile

[Petitioner] was out.Ñ

16. Petitioner admitted that the position of Safety

Specialist 3/ was eventually advertised, and that Petiti oner did

not apply for the position.

17. Amanda Johnson, former Employee Relations Specialist at

Sunland, met with Petitioner sometime in 2012 regarding his

complaint about working two positions without additional

compensation.

1 8 . In June 2013, Petiti on er received a ten - percent salary

increase Ðfor additional duties and responsibilities for

maintaining resident wheelchairs and electric/mechanical hospital

beds.Ñ

19 . Petitioner seeks back p ay for performing duties of

two positions beginning in 2010.

2 0 . Petitioner separately complains that he was subject to

harassment based on his race and Respondent failed to do anything

about it.

2 1 . Petitioner testified that there used to be an employee

who used the ÐN word,Ñ and under a previous administration the

s upervisor would Ðtake care of it,Ñ but that under the current

administration Ðnothing happens.Ñ

2 2 . Petitioner indicated that other employees used to Ðmake

postings about lynching.Ñ Petitioner did not identify a ny

specifics of those incidents -- when they occurred, who made the

posting, or whether there were consequences to those employees.

2 3 . Petitioner complained that a fellow employee once wrote

ÐTrumpÑ on a dirty work truck. However, when the incident was

reported, the manager washed the truck.

2 4 . Petitioner complained that white emp loyees sit around

and talk with each other for extended periods without any

consequence, but that if he sits to talk with a fellow employee

for 15 minutes Ðpeople complain.Ñ

2 5 . Petitioner has never been disciplined by Respondent.

2 6 . Respondent is managed by a black Superintendent and

black Deputy Superintendent . Sunland employs a number of black

mid - level managers and supervisors.

CONCLUSIONS OF LAW

2 7 . The Division has jurisdiction over the subject matter

and parti es to this proceeding. §§ 120.569 and 120.57(1), Fla.

Stat. (2017) .

2 8 . Petitioner has the burden of proving by a

preponderance of the evidence that Respondent committed an

unlawful employment practice. See § 120.57(1)(j), Fla. Stat.

29 . The Florida Ci vil Rights Act of 1992 (the ÐActÑ),

makes it unlawful for an employer to discriminate against any

individual with respect to compensation, terms, conditions , or

privileges of employment, because of the individualÓs race or

national origin. § 760.10(1)(a), Fla. Stat.

3 0 . The Act is patterned after Title VII of the Civil

Rights Act of 1964, as amended. Thus, case law construing

Title VII is persuasive when construing the Act. See, e.g. ,

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

DCA 199 6).

3 1 . Petitioner can meet his burden of proof with either

direct or circumstantial evidence. Damon v. Fleming

Supermarkets of Fla., Inc. , 196 F.3d 135 4 (11th Cir. 1999),

cert. den. 529 U.S. 1109 (2000). Direct evidence must evince

discrimination witho ut the need for inference of presumption.

Standard v. A.B.E.L S e r vs., Inc. , 161 F.3d 1318, 1330 (11th Cir.

1998).

3 2 . Direct evidence is evidence that, if believed, would

prove the existence of discriminatory intent without resort to

inference or presump tion. Denny v. City of Albany , 247 F.3d

1172, 1182 (11th Cir. 1997). Courts have held that Ðonly the

most blatant remarks, whose intent could be nothing other than

to discriminate will constitute direct evidence of

discrimination.Ñ Damon , 196 F.3d at 13 58 - 59 (citations

omitted). Fu r ther, the Eleventh Circuit has defined direct

evidence of discrimination as evidence which reflects Ða

discriminatory or retaliatory attitude correlating to the

discrimination or retaliation complained of by the employee.Ñ

I d . at 1358.

3 3 . Petitioner identified no direct evidence of

discrimination on behalf of Sunland or its managers. While

Petitioner did iden tify some blatant remarks by co workers, the

record shows that management addressed the issues. A manager

washed the truck with Ð Trump Ñ written on it. The supervisor

Ðtook care ofÑ coworkers who used the ÐN word.Ñ

3 4 . Although Petitioner testified that more recently

Ðnothing happensÑ when a coworker uses the ÐN word,Ñ that is

insufficient to ascribe a discriminatory a ttitude to the

employer. That testimony does not overcome the facts

demonstrating RespondentÓs non - discriminatory attitude.

Respondent promoted Petitioner, as well as his supervisor,

Mr. Holden, during their careers with Respondent. Further,

Respon dentÓ s upper - level managers and some mid - level managers

are black.

3 5 . Because PetitionerÓs direct evidence was insufficient

to establish unlawful discrimination, Petitioner must prove his

allegations by circumstantial evidence. Circumstantial evidence

of dis crimination is subject to the burden - shifting framework

established in McDonnell Douglas Corporation v. Green , 411 U.S.

792, 802 (1973).

3 6 . To prove unlawful discrimination by circumstantial

evidence, a party must establish a prima facie case of

discrim ination by a preponderance of the evidence. If

successful, this creates a presumption of discrimination. Then

the burden shifts to the employer to offer a legitimate, non -

discriminatory reason for the adverse employment action. If the

employer meets tha t burden, the presumption disappears and the

employee must prove that the legitimate reasons were a pretext.

Valenzuela v. GlobeGround N. Am., LLC , 18 So. 3d 17 (Fla. 3d DCA

2009). Facts that are sufficient to establish a prima facie case

must be adequat e to permit an inference of discrimination. Id.

3 7 . Petitioner must first establish a prima facie case by

showing: (1) he is a member of a protected class; (2) he was

qualified for the position held; (3) he was subjected to an

adverse employment actio n; and (4) other similarly - situated

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

treated more favorably than Petitioner. See McDonnell Douglas ,

411 U.S. at 802.

3 8 . The Findings of Fact here are not sufficient to

establish a prima facie ca se of discrimination based on race.

Petitioner did establish the first two elements: he i s a member

of a protected class -- African American -- and was qualified for

the position of Electronic Tech II. However, Petitioner did not

establish the third element -- that he suffered an adverse

employment action.

39 . ÐNot all conduct by an employer negatively affecting

an employee constitutes adverse employment action.Ñ Davis v.

Town of Lake Park , Fla. , 245 F. 3d 1232, 1238 (11th Cir. 2001)

(Plaintiff, who received one oral reprimand, one written

reprimand, the withholding of a bank key, and a restriction on

cashing non account - holder checks, did not suffer an adverse

employment action). ÐThe asserted impact cannot be speculative

and must at least have a tangible ad verse effect on the

plaintiffÓs employment.Ñ Id. at 1239. An employee is required

to show a Ðserious and material change in the terms, conditions,

or privileges of employment.Ñ Id.

4 0 . Petitioner was not disciplined, demoted, dismissed,

transferred, or otherwise subjected to any action with a

tangible adverse effect on his employment. Despite his

complaints, Petitioner was not denied a promotion or the chance

to apply for the position of Safety Specialist. Petitioner was

asked to take on additional re sponsibilities, and was ultimately

compensated for performing those additional duties.

4 1 . Respondent may have taken advantage of Petitioner, who

is a simple person and was obviously a good worker. The record

does not support a finding that the employer was motivated by

race in making the decision to give Petitioner additional job

responsibilities.

Hostile Work Environment Claim

4 2 . To state a Title VII claim of a hostile work

environment based on race , a plaintiff must demonstrate that his

or her Ðworkp lace [was] permeated with discriminatory

intimidation, ridicule, and insultÑ that was ÐÒsufficiently

severe or pervasive to alter the conditions of [ the ] employment

and create an abusive working environment.ÓÑ Budik v. Howard

Univ. Hosp. , 986 F. Supp. 2d 1, 7 (D.C. Cir. 2013) (citing Harris

v. Forklift Sys. , 510 U.S. 17 (1993)).

4 3 . To satisfy this requirement, Petitioner must show that:

( 1) he is a member of a protected class; (2) he was subject to

harassment; (3) the harassment was based on his protec ted status;

(4) the harassment affected a term, condition, or privilege of

his employment; and (5) the employer knew or should have known of

the harassment, but failed to take any action to prevent the

harassment. Jones v. Billington , 12 F. Supp. 2d 1, 11 (D.D.C.

1997), affÓd , No. 98 - 5014, 1998 U.S. App. LEXIS 15459 (D.C. Cir.

June 30, 1998).

4 4 . Petitioner is a black male , thus, a member of a

protected class.

4 5 . In evaluating PetitionerÓs allegation that he was

subject to harassment, Ðthe court loo ks to the totality of the

circumstances, including the frequency of the discriminatory

conduct, its severity, its offensiveness, and whether it

interferes with an employee's work performance.Ñ Baloch v.

Kempthorne , 550 F.3d 1191, 1201 (D.C. Cir. 2008) ( ci ting Faragher

v. Boca Raton , 524 U.S. 775, 787 - 88 (1998) ) . ÐExcept in extreme

circumstances, courts have refused to hold that one incident is

so severe to constitute a hostile work environment. Even a few

isolated incidents of offensive conduct do not am ount to

actionable harassment.Ñ Stewart v. Evans , 275 F.3d 1126, 1134

(D.C. Cir. 2002) (citations omitted).

4 6 . The incidents were related to PetitionerÓs protected

status and were clearly offensive .

4 7 . The record does not support a finding that the

in cidents were so pervasive or severe to interfer e with

PetitionerÓs work performance. PetitionerÓs testimony related

the ÐTrumpÑ incident and use of the ÐN wordÑ by coworkers,

generally, as well as Ð posting sÑ about lynching, during his more

than 30 - year ca reer with Sunland . Petitioner was unable to

relate the dates or time period , the frequency , or the severity

of the incidents .

4 8 . Even if PetitionerÓs testimony related severe and

pervasive harassment, Petitioner failed to establish the last

element: th at Respondent knew or should have known about the

harassment but failed to take any action to prevent it.

PetitionerÓs testimony established that Sunland management washed

the truck with the allegedly offensive comment and managers did,

at least during so me time period, Ðtake care ofÑ use of the

ÐN wordÑ by coworkers.

49 . Petitioner failed to prove that Sunland unlawfully

discriminated against him on the basis of his race.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations dismiss the Petition for Relief from an Unlawful

Employment Practice filed by Petitioner against Respondent in

Case No. 201700575.

DONE AND ENTERED this 30th day of March , 2018 , in

Tallahassee, Leon County, Florida.

S

SUZANNE VAN WYK

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

ww w.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of March , 2018 .

ENDNOTE S

1/ Except as otherwise noted herein, all references to the

Florida Statutes are to the 2016 version, which was in effect

when Pet itionerÓs Complaint of Discrimination was filed.

2/ As required by Florida Administrative Code Rule 28 -

106.204(3).

3/ Apparently Mr. HoldenÓs position was reclassified and

advertised as a ÐSafety Specialist,Ñ rather than

ÐTelecommunication Specialist.Ñ

COPIES FURNISHED:

Rockal Archie

Agency for Person with Disability

Room 225B

4030 Esplanade Way

Tallahassee, Florida 32399

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020

(eServed)

LaDray B. Gilbert, Esquire

The Gilbert Firm, P.A.

2913 Optimist Drive

Marianna, Florida 32446

(eServed)

Lisa Marie Kuhlman, Esquire

Agency for Persons with Disabilities

4030 Esplanade Way

Tallahassee, Florida 32399

(eServed)

James C. Davis, Esquire

The Gilbert Firm, P.A.

2913 Optimist Drive

Marianna, Florida 32448

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 issue the Final Order in this case.