18-006315 Vadim Troshkin vs. Armor Correctional Health Services, Inc. Status: Closed Recommended Order on Friday, May 31, 2019.

Summary: Petitioner failed to prove that the company's decision to withdraw its job offer was for any reason other than his failure to timely pass a law enforcement background screening.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VADIM TROSHKIN,

Petitioner,

vs. Case No. 18 - 6315

ARMOR CORRECTIONAL HEALTH

SERVICES, INC.,

Respondent.

_______________________________/

RECOMMENDED ORDER

A formal hearing was co nducted in this case on April 25,

2019, via video teleconference from locations in Tallahassee and

Jacksonville, Florida, before Lawrence P. Stevenson, a duly -

designated Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Vadim Troshkin, pro se

400 East Bay Street, Ap artment 1204

Jacksonville, Florida 32202

For Respondent: Patricia M. Rego Chapman, Esquire

Dean, Ringers, Morgan & Lawton, P.A.

201 East Pine Street, Suite 1200

Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue is whether Respondent, Armor Correctional Health

Service, Inc. (ÐArmorÑ), discriminated against Petitioner , Vadim

Troshkin (ÐPetitionerÑ or Ð Mr. TroshkinÑ) , based upon his age,

national origin, race, or sex, in violation of section 760.10,

Florida Statutes (2015). 1/

PRELIMINARY STATEMENT

On or about May 22, 2018, Petitioner filed with the Florida

Commission on Human Relations ("FCHR") an Empl oyment Charge of

Discrimination against Armor. Petitioner alleged that he had

been discriminated against pursuant to chapter 760, Title VII of

the Federal Civil Rights Act, and/or the Federal Age

Discrimination Act, based upon race, sex, and/or age, 2/ as

follows:

I am a Caucasian male over the age of 40. I

was discriminated against for these reasons.

I applied for an ARNP position with this

company on March 22, 2018. Ms. Selena

McClain expressed on several occasions that

White people are evil, especiall y the ones

from Europe. I had my background security

and fingerprints done on March 22, 2018. I

found out that the results came back on

March 23, 2018. Ms. McClain did not tell me

my results [came] back. On April 10, 2018,

Ms. McClain sent me an email stating that I

would not be hired because I had a history

of violations/infractions. I never had any

felonies or misdemeanors. Infractions

cannot be a reason to deny me employment.

The FCHR investigated Petitioner's Charge. In a letter

dated November 1 6, 2018, the FCHR issued its determination that

there was no reasonable cause to believe that an unlawful

practice had occurred. The letter stated as follows, in

relevant part:

Complainant applied for a position as a

nurse practitioner at Respondent's

hea lthcare service. Complainant stated that

he interviewed for this position, but he was

not hired. When he asked why he was not

hired, Respondent's administrative assistant

told Complainant that Respondent could not

hire him because he did not pass the

bac kground screening. Complainant admitted

that he had an infraction on his record.

Respondent explained that it provides

healthcare services to correctional

institutions and correctional institutions

require their employees and contractors to

pass a backgr ound screening. This is

because passing a background screening is a

prerequisite for obtaining clearance to

enter the premises of a correctional

institution. Thus, not being able to enter

Respondent's clients' correctional

facilities rendered Complainant unqualified

to work for Respondent. Complainant alleged

that Respondent failed to hire him based on

his race, sex, and age. Complainant fails

to prove a prima facie case because the

evidence does not show that Complainant was

qualified for the nurse pra ctitioner

position.

On November 29, 2018, Petitioner timely filed a Petition

for Relief with the FCHR. On November 30, 2018, the FCHR

referred the case to DOAH. The case was initially assigned to

Administrative Law Judge Suzanne Van Wyk and scheduled f or

hearing on April 25, 2019. Due to a scheduling conflict, the

case was re - assigned to Administrative Law Judge Lawrence P.

Stevenson, who conducted the hearing on the scheduled date.

At the hearing, Petitioner testified on his own behalf.

He offered no exhibits into evidence. Armor presented the

testimony of its former Regional Manager Vicki Hailey, and its

former Administrative Assistant Selena McClain. Respondent's

Exhibits 3 through 6 were entered into evidence.

No transcript of the hearing was ord ered by either party.

Respondent timely submitted a Pr oposed Recommended Order on

May 6, 2019. Petitioner filed no post - hearing written

submission.

FINDING S OF FACT

1. Armor is an employer as that term is defined in section

760.02(7). Armor provides h ealthcare services in correction al

facilities. Armor has a contract with the Jacksonville

SheriffÓs Office (ÐJSOÑ) to provide healthcare services in

correction al facilities in Duval County.

2. Petitioner is a Caucasian male over the age of 40. His

count ry of origin is Ukraine.

3. Sometime in February 2018, Mroshkin applied for an

Advanced Registered Nurse Practitioner (ÐARNPÑ) position with

Armor at the detention facility adjacent to the JSO headquarters

on Bay Street in downtown Jacksonville. Ther e is no dispute

that Mroshkin is a licensed ARNP in the State of Florida.

4. At the time Mroshkin applied for the job, Vicky

Hailey was ArmorÓs r egional m anager overseeing the Jacksonville

detention facility. Ms. HaileyÓs duties included intervie wing

and hiring applicants to work in the facility.

5. On March 21, 2018, Ms. Hailey conducted an in - person

interview with Mroshkin at a job fair in Jacksonville.

Ms. Hailey was impressed by Mroshkin and made him a job

offer on the spot. Mro shkin was given a Ðprovisional offerÑ

to work for a salary of $87,000 per year. The offer was

conditioned on Mr. TroshkinÓs passing a JSO background

screening. JSO mandates this security clearance for any Armor

employee working at the Jacksonville detent ion facility.

6. Mroshkin accep ted the provisional offer.

Mr. Troshkin testified that he was especially eager to obtain

this position because he lived in a condominium directly across

the street from the JSO headquarters and the detention facility.

He believed that his proximity to the workplace would be an

advantage to him and to his employer.

7. When Ms. Hailey ma de the provisional offer to

Mr. Troshkin on March 21, 2018, she instructed him to contact

Selena McClain, an a dministrative a ssistant at the Jacksonville

detention facility, to schedule a time to be fingerprinted for

the background screening.

8. Ms. McClain met Mroshkin at the Jacksonville

detention facility on March 22, 2018, and escorted him to the

JSO headquarters for fingerprint ing.

9. Ms. McClainÓs job duties included coordinating the

fingerprinting of applicants and corresponding with the JSO as

to the status of the background screenings. Ms. McClain had no

authority to make decisions regarding ArmorÓs hiring process.

10. Background screenings are usually completed within

48 hours of fingerprinting. If issues come up during the

screening, the process can take as long as a month. No employee

of Armor has any control over the time taken by the JSO to

complete its background screening process.

11. On March 26, 2018, Sergeant Shaun Taylor of the JSO

sent an email to Ms. McClain stating as follows:

Vadim TroshkinÓs background results came

back with criminal history that needs to be

reviewed by FDLE. [3/] I submitted the

paperw ork and I will let you know if they

request anything further.

12. On the afternoon of April 10, 2018, Ms. McClain

received another email from Sgt. Taylor. This email read as

follows:

FDLE just called about Vadim Troshkin and

stated that they are having problems getting

records from San Diego. They asked me to

reach out to see if he has any documentation

that shows the disposition and severity for

each of his charges. Thanks.

13. Also on April 10, 2018, Ms. McClain had a discussion

with Ms. Hailey as to delays i n the background checks for

Mr. Troshkin and two other candidates for employment. Both of

the other candidates were female.

14. Ms. Hailey made the decision to stop the screening

process as to these three candidates and to withdraw their

pro visional job offers. Ms. McClain had no role in the

decision, aside from providing information to Ms. Hailey.

15. Ms. Hailey directed Ms. McClain to inform Sgt. Taylor

that the JSO could stop the background screening process as to

these three candidate s. Ms. McClain sent Sgt. Taylor an email

to that effect at 3:19 p.m. , on April 10, 2018, a little more

than 20 minutes after Sgt. TaylorÓs email to her about the

problems FDLE was having in obtaining records for Mroshkin.

16. At the hearing, Ms. Hail ey testified that she needed

to fill the ARNP vacancy at the Jacksonville detention facility

as soon as possible. She had no way of knowing how long

Mr. TroshkinÓs background screening would take or whether it

would result in a security clearance. Ms. Ha iley had other

qualified candidates who had already passed their background

screenings, so she made the decision to withdraw the offer to

Mroshkin and give the ARNP job to one of the other

candidates. Because of the JSOÓs requirement that Armor

employ ees pass a background screening, Mroshkin was

technically not qualified for th e ARNP position at the time

Ms. Hailey needed to fill it.

17. Mroshkin offered no evidence that any other

applicant whose background screening was taking longer than

e xpected , and whose position Armor deemed critical to fill , was

treated differently than he was.

18. Ms. Hailey testified that her reasoning was the same

as to the two female candidates whose offers were withdrawn.

She stated that withdrawing offers beca use of problems or delays

with the background screening process was not uncommon.

19. On April 10, 2018, at 3:59 p.m., Ms. McClain sent

Mr. Troshkin, via email, a letter on behalf of Armor that read

as follows:

Dear Vadim,

We regret to inform you that yo u failed to

pass the JailÓs security clearance.

Therefore, Armor is unable to extend an

offer of employment.

As always we wish you well in your future

employment endeavors.

20. Ms. McClain testified that this letter was generated

via a template. She c hose from a menu the language that most

closely applied to Mr. TroshkinÓs situation. Unfortunately, the

language chosen from the menu left Mroshkin with the

understandable impression that he had failed the background

screening, when in reality the scr eening had never been

completed.

21. Mroshkin phoned Ms. McClain, who told him that his

background screening report had not been received by Armor and

therefore the company had decided to move on to another job

candidate.

22. Mroshkin was perplex ed. He testified that he had

no felony or even misdemeanor convictions on his record. His

only problem with law enforcement had been an Ðunpleasant

incidentÑ in California, which he referred to as an

Ðinfraction.Ñ He stated that he had been unlawfully a rrested

but that the incident had resulted in no criminal conviction.

The case had been closed and sealed. Mroshkin declined to

offer any more details about the California incident.

23. Mroshkin began thinking about his dealings with

Armor. Ms. Hailey and the other persons he met during the

interview process had been friendly and positive.

24. Ms. McClain, however, had been difficult. At the

outset of the fingerprinting process on March 22, 2018, the

JSOÓs fingerprint machine was not functio ning properly.

Mr. Troshkin and Ms. McClain were forced to make small talk for

about an hour while the machine was being repaired.

25. Mroshkin testified that things were not going

badly until he mentioned that he was a supporter of President

Trump. Ms. McClain, who is African American, castigated him,

wondering aloud why Ðyou peopleÑ come here and support President

Trump. In the context of the conversation, Mroshkin took

Ðyou peopleÑ to mean white immigrants from Eastern Europe.

26. Looking ba ck at how events had transpired,

Mr. Troshkin convinced himself that Ms. McClain was behind his

rejection by Armor. He testified that he contacted an

unidentified person with the FBI who told him that his

background screening results had been sent to the JSO on the day

after he was fingerprinted. Therefore, Ms. McClain must have

done something to prevent the results from reaching Armor, or

have lied about the results not reaching the JSO.

27. Mr. TroshkinÓs vague reference to his contact in the

FBI canno t be credited. Also, Ms. McClain was in fact simply

acting as a conduit, passing on information that Sgt. Taylor had

provided to her, though Mroshkin did not know that at the

time.

28. ArmorÓs role in the background screening process is

entirely pa ssive. The Armor employees who testified at the

hearing did not know how JSO performs the background screenings

or which databases the JSO consults during the screenings. JSO

notifies Armor of any delays in the process and, ultimately,

whether or not the applicant passes. Armor is not notified as

to the reasons why an applicant fails a background screening.

Armor is not given a report by the JSO reflecting the results of

a background screening.

29. Mroshkin began sending emails to Ms. Hailey and

ot her Armor employees. 4/ The first email was sent on April 16,

2018, to Ms. Hailey and Jackie Mattina, an Armor employee who

had participated in Mr. TroshkinÓs interview at the job fair.

The email stated that he had contacted Ðthe Florida FBI

background ch eck up,Ñ and the person he spoke with told him that

he had been ÐclearedÑ on March 23, 2018. He stated that he

could not understand why Ms. McClain Ðkeeps saying that they

never received any report and I do not pass that background

check up.Ñ

30. Later o n the same date, Mroshkin sent another

email to Ms. Mattina, complaining about the drug dealing that

went on near his apartment, Ðright in front of sheriff office.Ñ

He stated that the area was Ðinfested with drug dealersÑ who

Ðgive handshakes to cops sitting right there. But it is me with

my infraction Òdisturbance of peaceÓ is the real threat to the

whole justice system and society.Ñ

31. On April 18, 2018, Mroshkin sent another email to

Ms. Mattina that stated as follows:

Good afternoon,

I am s till in disbelief that Mrs. McClain

ruined my career in jail. It is right in

front of my building. I would cover any

shift you need coverage. And I am a good

guy, no drugs, exercise daily 2 hours, spend

3 hours daily studying and reviewing

material. Mr s. McClain windows probably

facing my condo pool. If she changes her

mind I am right there at the pool. She just

need to open window and waive her hand.

I looked through the requirement for the

position and it says not to have felonies.

I have only inf raction. 6 years ago. Next

year it will not even show in my background

check up.

Still crying, Vadim Troshkin

32. At some point in this time frame, Mroshkin sent a

series of messages to Ms. McClainÓs private Facebook account.

The messages read as follows:

[S]o you decided my fate not to have this

job, even if I donÓt have any felonies or

misdemeanors. Pure racism and

discrimination. I qualify for any federal

job.

I am a good person and good nurse

practitioner. I am just tired when some

prejudi ced people discriminate against hard -

working immigrants like me.

[D]o you realize how many times cops

fabricate complete lies and destroy lives of

many people. Do you realize that according

to statistics 20% inmates are in jail by

fabricated charges. Ma ybe it is time to

stop being a hypocrite and playing righteous

as cops can fabricate anything on anybody

including you or your family, friends etc.

You do not have any idea how much I needed

that job and I was going to give 200% of

myself into this job. No, you just threw my

opportunity away. And completely unfair and

even illegally.

As an immigrant from ex - Soviet union I

experience discrimination mostly on daily

basis. And that incident happened only

because red - neck cop fabricated all. She,

it was s he tortured me for 6 hours. I will

never forget her happy eyes when she was

watching being in horrible pain. She

fabricated all of it.

[B]ut I forgot you are so righteous, almost

saint.

33. On April 22, 2018, Mroshkin came to JSO

headquarters and asked to speak with Ms. McClain. He testified

that the person at the desk phoned Ms. McClain and that he could

hear Ms. McClain screaming over the phone. Mroshkin

testified that he could hear Ms. McClain calling him a

ÐcriminalÑ and directing the JSO personnel to either evict or

arrest him.

34. Ms. McClain credibly testified that she felt

threatened when Mroshkin contacted her via her private

Facebook account and she reported the contact to Ms. Hailey, who

in turn contacted ArmorÓs legal counsel. In a letter dated

April 18, 2018, ArmorÓs attorneys conveyed the companyÓs request

that Mr. Troshkin cease and desist his communications to ArmorÓs

employees. Mr. Troshkin complied with the attorneysÓ request.

35. Mroshkin testified that he had no complaints about

Ms. Hailey or the manner in which he was interviewed and given a

job offer. He testified that he never felt that Ms. Hailey

harbored any discriminatory intent towards him or ever

discriminated against him. Mroshkin testified that the only

individual at Armor who discriminated against him was Selena

McClain.

36. Ms. McClain credibly testified she had no

discriminatory animus towards Mroshkin. She credibly denied

that her initial conversation with Mroshkin included any

dispara ging remarks about his race or national origin. She

credibly denied screaming at a JSO employee over the phone that

Mroshkin should be arrested. She testified that she did not

know his country of origin.

37. As found above, Ms. McClainÓs only role i n this matter

was to pass information from Sgt. Taylor to Ms. Hailey. The

decision not to proceed with hiri ng Mroshkin was made by

Ms. Hailey alone and was based on Sgt. TaylorÓs information, not

on any misinformation allegedly provided by Ms. McClain .

38. In summary, Petitioner offered no credible evidence

that he was discriminated against on the basis of his age,

national origin, race, or sex.

39. Petitioner offered no credible evidence that he was

qualified for the position, given that a mandatory condition for

hiring Petitioner was that he receive a security clearance to

work in the JSOÓs Jacksonville detention facility.

40. Petitioner offered no credible evidence disputing the

legitimate, non - discriminatory reasons given by Armor for his

termina tion.

41. Petitioner offered no credible evidence that ArmorÓs

stated reasons for not hiring Petitioner were a pretext for

discrimination based on Petitioner's age, national origin, race,

or sex.

CONCLUSIONS OF LAW

42. The Division of Administrative Hear ings has

jurisdiction of the subject matter and of the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

43. The Florida Civil Rights Act of 1992 (the "Florida

Civil Rights Act" or the "Act"), chapter 760, prohibits

discrimination in the w orkplace.

44. Section 760.10 states the following, in relevant part:

(1) It is an unlawful 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

respe ct to compensation, terms, conditions,

or privileges of employment, because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

45. Armor is an "employer" as defined in section

760.02(7), which provides the following:

(7) "Employer" means any person employing

15 or more employees for each working day in

each of 20 or more calendar weeks in the

current or preceding calendar year, and any

agent of such a person.

46. Florida courts have determined that feder al case law

applies to claims arising under the Florida Civil Rights Act,

and as such, the United States Supreme Court's model for

employment discrimination cases set forth in McDonnell Douglas

Corp. v. Green , 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668

(1973), applies to claims arising under section 760.10, absent

direct evidence of discrimination. 5/ See Harper v. Blockbuster

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

Bankers Club, Inc. , 225 F. Supp. 2d 1353, 1361 (S.D. Fla. 2002);

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

DCA 1996); Fla. DepÓt of Cmty. Aff. v. Bryant , 586 So. 2d 1205

(Fla. 1st DCA 1991).

47. Under the McDonnell analysis, in employment

discrimination cases, Petitioner has the burden of establish ing

by a preponderance of evidence a prima facie case of unlawful

discrimination. If the prima facie case is established, the

burden shifts to the employer to rebut this preliminary showing

by producing evidence that the adverse action was taken for some

legitimate, non - discriminatory reason. If the employer rebuts

the prima facie case, the burden shifts back to Petitioner to

show by a preponderance of evidence that the employer's offered

reasons for its adverse employment decision were pretextual.

See T exas DepÓt of Cmty. Aff. v. Burdine , 450 U.S. 248, 101 S.

Ct. 1089, 67 L. Ed. 2d 207 (1981).

48. In order to prove a prima facie case of unlawful

employment discrimination under chapter 760, Petitioner must

establish that: (1) he is a member of the prote cted group;

(2) he was subject to adverse employment action; (3) Armor

treated similarly situated employees outside of his protected

classifications more favorably; and (4) Petitioner was qualified

to do the job and/or was performing his job at a level tha t met

the employerÓs legitimate expectations. See, e.g. , Jiles v.

United Parcel Serv., Inc. , 360 Fed. Appx. 61, 64 (11th Cir.

2010); Burke - Fowler v. Orange Cnty. , 447 F.3d 1319, 1323 (11th

Cir. 2006); Knight v. Baptist Hosp. of Miami, Inc. , 330 F.3d

1313, 1316 (11th Cir. 2003); Williams v. Vitro Serv. Corp. , 144

F.3d 1438, 1441 (11th Cir. 1998); McKenzie v. EAP Mgmt. Corp. ,

40 F. Supp. 2d 1369, 1374 - 75 (S.D. Fla. 1999).

49. Petitioner has failed to prove a prima facie case of

unlawful employment discrimin ation.

50. Petitioner established that he is a member of a

protected group, in that he is a Caucasian male over the age

of 40 and is of Ukrainian national origin.

51. Petitioner established that he was subject to an

adverse employment action, in that h e was given a provisional

job offer by Armor that was later withdrawn.

52. Petitioner offered no credible evidence to support an

inference that he was discriminated against because of his age,

national origin, race, or sex.

53. Petitioner failed to demon strate that he possessed all

of the necessary qualifications to work as an ARNP for Armor at

the Jacksonville detention facility. An essential requirement

of the job was that Petitioner obtain a security clearance from

the JSO. Petitioner was unable to o btain that clearance in a

timely fashion.

54. Petitioner offered no evidence to establish that any

similarly situated employee was treated differently by Armor. 6/

The evidence shows that Ms. Hailey made the same decision with

respect to two female applic ants on the same date she decided to

withdraw the offer to Petitioner. Ms. Hailey testified that she

routinely made the same decision with respect to applicants

whose background check did not clear in a reasonable amount of

time.

55. Armor presented adeq uate evidence of legitimate, non -

discriminatory reasons for withdrawing its offer to Petitioner.

Ms. Hailey, on behalf of Armor, initially made Petitioner a

provisional offer conditioned upon his passing a background

screening. Only those Armor employees who have obtained a

security clearance are allowed by the JSO to work in the

Jacksonville detention facility. More than two weeks after

Ms. Hailey made the provisional offer, PetitionerÓs background

screening was still in process. Ms. Hailey determined that she

could not hold the ARNP position open any longer and decided to

fill the position with another qualified applicant who had

cleared the background screening process. As of the date the

successful candidate was hired, Petitioner was not qualified f or

the position.

56. Because Armor articulated a legitimate,

nondiscriminatory reason for not hiring Petitioner, the burden

shifts back to Petitioner to produce evidence that Armor's

stated reason is a pretext for discrimination. To establish

pretext, Pe titioner must Ðcast sufficient doubtÑ on ArmorÓs

proffered nondiscriminatory reasons Ðto permit a reasonable

factfinder to conclude that the [employerÓs] proffered

legitimate reasons were not what actually motivated its

conduct.Ñ Murphree v. CommÓr , 644 F ed. Appx. 962, 968 (11th

Cir. 2016) ( quoting Combs v. Plantation Patterns , 106 F.3d 1519,

1538 (11th Cir. 1997) ) .

57. If the proffered reason is one that might motivate a

reasonable employer, Ðan employee must meet that reason head on

and rebut it, and t he employee cannot succeed by simply

quarreling with the wisdom of that reason.Ñ Chapman v. AI

Transp. , 229 F.3d 1012, 1030 (11th Cir. 2000) (en banc).

Pretext must be established with Ðconcrete evidence in the form

of specific factsÑ showing that the pr offered reason was

pretext; Ðmere conclusory allegations and assertionsÑ are

insufficient. Bryant v. Jones , 575 F.3d 1281, 1308 (11th Cir.

2009) ( quoting Earley v. Champion IntÓl Corp. , 907 F.2d 1077,

1081 (11th Cir. 1990) ) . A reason cannot be a pretext f or

discrimination Ðunless it is shown both that the reason was

false, and that discrimination was the real reason.Ñ FSU v.

Sondel , 685 So. 2d 923, 927 (Fla. 1st DCA 1996) (quoting

St. Mary's Honor Ctr . v. Hicks , 509 U.S. 502, 515 (1993)).

58. Petitioner failed to produce any evidence tending to

prove that ArmorÓs stated reasons for withdrawing its offer were

pretextual. PetitionerÓs suspicions, without more, are

insufficient to establish that Ms. Hailey and Ms. McClainÓs

testimony regarding the hiring p rocess was false, and that

Ms. HaileyÓs reason for withdrawing the job offer was due to

PetitionerÓs age, national origin, race, or sex.

59. It is not the place of the court or tribunal to

determine who is better qualified for a job, or to sit in

judgment of an employerÓs selection. Ð[D]isparities in

qualifications must be of such weight and significance that no

reasonable person, in the exercise of impartial judgment, could

have chosen the candidate selected over the plaintiff for the

job in question.Ñ Cooper v. S . Co. , 390 F.3d 695, 732 (11th.

Cir. 2004) ( quoting Lee v. GTE Fla., Inc. , 226 F.3d 1249, 1254

(11th Cir. 2000) ) .

60. A courtÓs role is not to sit as a Ðsuper - personnel

departmentÑ to re - examine a companyÓs business decisions. The

court does not ask whether the employer selected the most

qualified candidate, but whether the selection was based on an

unlawful motive. Denney v. City of Albany , 247 F.3d 1172, 1188

(11th Cir. 2001).

61. Petitioner presented no evidence beyond his own

speculati ons to prove Ms. McClainÓs sub rosa machinations were

the real reason he did not get the ARNP job at the Jacksonville

detention facility. In the absence of evidence that ArmorÓs

action was discriminatory, the undersigned is constrained to

defer to the com panyÓs business decision.

62. In summary, Petitioner failed to establish that

ArmorÓs reason for withdrawing its provisional job offer was for

any other reason than the business reasons proffered by Armor.

RECOMMENDATION

Based on the foregoing Findings o f Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

issue a final order finding that Armor Correctional Health

Services, Inc. , did not commit any unlawful employment

practices , and dismissing the Petition for Re lief filed in this

case.

DONE AND ENTERED this 3 1st day of May , 2019 , in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Ap alachee 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 3 1st day of May , 2019 .

ENDNOTE S

1/ Citations shall be to Florida Statut es (2018) unless

otherwise specified. Section 760.10 has been unchanged since

1992, save for a 2015 amendment adding pregnancy to the list of

classifications protected from discriminatory employment

practices. Ch. 2015 - 68, § 6, Laws of Fla.

2/ It is un clear when Ðnational originÑ became part of

PetitionerÓs allegations.

3/ ÐFDLEÑ is an acronym for the Florida Department of Law

Enforcement.

4/ Mr. TroshkinÓs emails and Facebook messages are reproduced

verbatim, without correction.

5/ Ð Direct eviden ce is Òevidence, which if believed, proves

existence of fact in issue without inference or presumption.Ó"

Rollins v. TechSouth, Inc. , 833 F.2d 1525, 1528 n.6 (11th Cir.

1987) ( quoting BlackÓs Law Dictionary 413 (5th ed. 1979)).

ÐOnly the most blatant rem arks, whose intent could be nothing

other than to discriminate on the basis of a protected

classification, constitute direct evidence.Ñ Kilpatrick v.

Tyson Foods, Inc. , 268 Fed. Appx. 860, 862 (11th Cir.

2008)(citation omitted). Direct testimony that a d efendant

acted with a discriminatory or retaliatory motive, if credited

by the finder of fact, would change the legal standard

ÐdramaticallyÑ from the McDonnell test. Bell v. Birmingham

Linen Serv. , 715 F.2d 1552, 1557 (11th Cir. 1983). Petitioner

offere d no credible evidence that would satisfy the stringent

standard of direct evidence of discrimination.

6/ As to the question of disparate treatment, the applicable

standard was set forth in Maniccia v. Brown , 171 F.3d 1364,

1368 - 1369 (11th Cir. 1999):

" In determining whether employees are

similarly situated for purposes of

establishing a prima facie case, it is

necessary to consider whether the employees

are involved in or accused of the same

or similar conduct and are disciplined in

different ways." Jo nes v. Bessemer Carraway

Med. Ctr. , 137 F.3d 1306, 1311 (11th

Cir.), opinion modified by 151 F.3d 1321

(1998) ( quoting Holifield v. Reno , 115 F.3d

1555, 1562 (11th Cir. 1997)). "The most

important factors in the disciplinary

context are the nature of the offenses

committed and the nature of the punishments

imposed." Id . (internal quotations and

citations omitted). We require that the

quantity and quality of the comparator's

misconduct be nearly identical to prevent

courts from second - guessing employers'

reasonable decisions and confusing apples

with oranges. See Dartmouth Review

v. Dartmouth College , 889 F.2d 13, 19 (1st

Cir.1989) ("Exact correlation is neither

likely nor necessary, but the cases must be

fair congeners. In other words, apples

should be compared to apples."). (Emphasis

added).

The Eleventh Circuit has questioned the "nearly identical"

standard enunciated in Maniccia , but has in recent years

reaffirmed its adherence to it. See , e.g. , Brown v. Jacobs

EngÓg, Inc. , 572 Fed. Appx. 750, 751 (11th Cir. 2014); Escarra

v. Regions Bank , 353 Fed. Appx. 401, 404 (11th Cir. 2009);

Burke - Fowler , 447 F.3d at 1323 n.2.

In any event, Petitioner in the instant case failed to

provide any persuasive evidence to establish disparate

treatment.

COPIES F URNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020

(eServed)

Patricia M. Rego Chapman, Esquire

Dean, Ringers, Morgan & Lawton, P.A.

Suite 1200

201 East Pine Street

Or lando, Florida 32801

(eServed)

Vadim Troshkin

Apartment 1204

400 East Bay Street

Jacksonville, Florida 32202

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.