19-001637 Leebert Lawrence vs. Lynx Transportation Status: Closed Recommended Order on Friday, October 4, 2019.

Summary: Petitioner failed to prove that Respondent terminated his employment for reasons related to Petitioner's race, national origin, or age.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEEBERT LAWRENCE,

Petitioner,

vs. Case No. 19 - 1637

LYNX TRANSPORTATION,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hearing in thi s cause was held

by video teleconference between sites in Altamonte Springs and

Tallahassee, Florida, on July 16 , 2019 , before Linzie F. Bogan,

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Leebert Lawren ce , pro se

Apartment 211

7511 Solstice Circle

Orlando, Florida 32821

For Respondent: Cindy Ann Townsend, Esquire

Michael John Roper, Esquire

Bell & Roper, P.A.

2707 East Jefferson Street

Orlando, Florida 32803

STATEMENT OF THE ISSUE

Whether Respondent violated the Florida Civil Rights Act of

1992, as alleged in the Employment Charge of Discrimination filed

by Petitioner on March 27, 20 18.

PRELIMINARY STATEMENT

Leebert Lawrence (Petitioner) filed an Employment Charge of

Discrimination with the Florida Commission on Human Relations

(FCHR), which alleges that his former employer, Lynx

Transportation (Respondent), violated section 760.10, F lorida

Statutes (2017), by discriminating against him on the basis of

race, national origin, and age. Respondent terminated

Petitioner ’ s employment on or about September 15, 2017.

The allegations were investigated, and on February 21, 2019,

FCHR issued it s Determination: No Reasonable Cause. A Petition

for Relief was filed by Petitioner on March 27, 2019. FCHR

transmitted the case on March 27, 2019, to the Division of

Administrative Hearings for assignment of an administrative law

judge to conduct the h earing.

At the hearing, Petitioner testified on his own behalf and

offered testimony from the following witnesses: Karamchand

Lowhar; Charles Rapier; Wilfredo Acosta; Margaret McCoy; and

Maria Colon. Respondent elicited testimony from the witnesses

calle d by Petitioner, and elected not to recall the wi tnesses

during its case - in - chief. Joint Exhibits 1 through 14 were

admitted into evidence. Respondent ’ s Exhibits 2 through 11, 22

through 25, and 27 through 34 were admitted into evidence.

A two - volume Tra nscript of the final hearing was filed with

the Division of Administrative Hearings on September 5, 2019.

Petitioner and Respondent each filed a Proposed Recommended

Order.

FINDING S OF FACT

1. On March 27, 2018, Petitioner filed a Charge of

Discrimination with FCHR and alleged therein that Respondent

committed an unlawful employment practice by discriminating

against him on the basis of race, national origin, and age.

Petitioner ’ s Charge of Discrimination states, in part, the

following:

During my time wit h LYNX, I satisfactorily

performed the essential job duties of my

position. Notwithstanding my performance, I

was fired with only two weeks left on my

training. I was subjected to discrimination

based on my age, race and nationality as

further described below.

I believe I was fired because LYNX treated

[ me ] disparately due to my Jamaican

nationality and my age of 68 years. They

manufactured classes of improper driving which

could be disputed by all of the cameras that

are on the training buses. They ga ve me only

one week to improve my driving.

2. Petitioner was born in 1949 and was 68 years old when he

commenced his employment with Respondent.

3. Petitioner was born and educated in Jamaica and lived in

the country for a significant portion of his adu lt life.

Respondent speaks with an unmistakable Caribbean accent.

Petitioner ’ s ethnicity and race derive from the African diaspora,

and for purposes of the instant proceeding his race is that of a

Black person.

4 . On or about June 14, 2017, Respondent e xtended to

Petitioner a conditional offer of employment to work as a full -

time bus operator. The terms of Respondent ’ s conditional offer of

employment to Petitioner provide, in part, as follows:

All offers of employment are contingent upon

the satisfactor y completion of the following:

acceptable criminal history background check

and motor vehicle record, employment

verification and Department of Transportation

(DOT) physical examination (that is good for a

minimum of one year) including a negative drug

sc reen. All employees must complete a 120 - day

introductory period. Should the results be

unsatisfactory, according to LYNX ’ standards,

your offer of conditional employment with LYNX

will be reviewed and may be revoked.

5. The job description for Petiti oner ’ s position as a bus

operator provides as follows:

JOB SUMMARY :

Bus Operators transport passengers by

operating any type of motor coach on

regularly scheduled links and chartered

service, observing all state and municipal

traffic laws, observing all sa fety rules and

strictly adhering to time schedules.

DUTIES :

Performs DOT pre - trip inspections.

Answers passenger questions courteously.

Calls out stops.

Issues slips for fare refunds.

Issues and collects transfers.

Observes all state and municipal traffic

laws.

Observes all safety rules.

Strictly adheres to time schedules.

Monitors fare and ticket collection.

Verifies that appropriate passes are being

used.

Writes daily reports such as transfers

collected, coach mileage, special fares and

tickets collected , time cards for hours

worked and completes memorandum cards.

Completes trouble card for mechanical

difficulties of bus assigned.

Performs other duties of similar nature as

may be required.

Completes Bus Condition Reports.

REQUIRED KNOWLEDGE, SKILLS AND A BILITIES :

Skills in customer service.

Ability to effectively communicate in

English, both verbally and in writing.

Ability to physically sit for extended periods of time.

Ability to pass a drug screen.

Must possess a valid Florida Commercial

Driver License (CDL), Class A or B with a

Passenger endorsement and airbrakes.

Ability to communicate in English on the

work site.

Ability to maintain DOT physical for one

year.

MINIMUM EDUCATION AND EXPERIENCE :

Must be at least 21 years of age.

High School diploma or GED required.

Clean driving record.

Full - time: Ability to work days, nights,

weekends, holidays, split shifts, split days

off and any hours assigned.

Part - time: Ability to work mornings,

afternoons and/or weekends. Not allowed to

work over 30 hours per week.

This description in no way states or implies

that these are the only duties to be performed

by the employee occupying this position.

Employees will be required to follow any other

job - related instructions and to perform any

other job - related dutie s requested by their

supervisor.

6. Petitioner, as a condition of employment, was required

by Respondent to complete an employment application. Petitioner

noted on his employment application that he worked as a “ Driver

Guide ” for Holland Alaska Princess for the period March 17, 2016,

through May 24, 2016. According to Petitioner, his primary

duties with Holland Alaska Princess were driving “ tourists to

scenic and historical locations in Alaska, USA, Yukon and British

Columbia in Canada and informing gue sts on the highlights and

history of each location toured. ”

7. Other than his employment at Holland Alaska Princess,

Petitioner did not list on his LYNX employment application other

jobs or experiences which required that he possess a CDL, Class A

or B, w ith a passenger and airbrakes endorsement. According to

the “ experience questionnaire ” completed by Petitioner during his

LYNX new employee orientation, Petitioner noted that he had

possessed his “ CDL with passenger endorsement ” for 16 months, and

over th e “ course of [his] CDL career ” had only driven an “ MCI

coach bus ” for three months. Although Petitioner met the minimum

qualification of possessing a valid CDL with appropriate

endorsements, he, nevertheless, had limited practical experience

in the operat ion of buses such as those operated by Respondent.

8. On or about August 23, 2017, Petitioner, after

completing the employment related background check and related

matters, was hired by Respondent as a full - time bus operator.

9. As a condition of employm ent, Respondent required

Petitioner to attend “ LYNX Training University (LTU). ” Wilfredo

Acosta, for more than seven years, has worked as a training

instructor at LTU where he conducts “ new operator ” training

sessions. According to Mr. Acosta, LTU is not a driving school

where employees are taught how to drive a bus, but is, instead,

an assessment opportunity where LYNX evaluates its new employees

to ensure that they have “ basic knowledge ” regarding the proper

way to operate buses utilized by the company.

10. On September 15, 2017, less than a month after being

hired, Respondent terminated Petitioner ’ s employment with the

company due to “ unsatisfactory job performance. ” Maria Colon, who

works as Respondent ’ s manager of organizational development and

trai ning, outlined in a memorandum to Petitioner the company ’ s

reasons for the employment decision. The memorandum provides as

follows:

On September 8, 2017, you met with the manager

and trainer concerning your unsafe driving

practices. Your daily student op erator

evaluation forms were reviewed with you and

the following dates were discussed:

8/28 Right turns too short, jumped a curb and

drifted to the right side not maintaining the

bus centered.

8/29 Right turns too short, jumped a curb and

drifted to the right.

8/31 Right turns too short and jumped curb.

9/7 Right turns too short not using pivot

point.

9/8 Unsatisfactory report was given for not

slowing down for school zone when yellow light

was flashing. Continued to make right turns

too short wit h contact to the curb. Continued

to drift to the right and did not maintain

proper hand position on steering wheel or use

of mirrors.

At that time you state d that you were a driver

for a long time and you knew how to drive. I

informed you that LYNX ’ pri ority is safety and

my job was to ensure only those students that

demonstrate consist ent, safe driving practices

wou ld graduate from the LYNX Bus Operator

Training Program. You felt the trainers were

targeting you and [you believed that] with

time you can improve. We agreed to give you

until Friday, September 15th to improve your

driving. If no improvement was noticed you

would be terminated from the program.

On September 15, 2017, you once again met with

the manager and trainer to review your

progress:

9/13 Unsatisfactory report for improper

securing of the bus. Unsatisfactory report

for obstructing traffic at an intersection.

Continued to make right turns too short and

jumped the curb.

9/15 Continued to drift to the right side not

maintaining the bus centered. Failed to

properly signal when approaching railroad

crossing.

Since you have continued to have unsafe

driving practices with no signs of

improvement, I have decided to terminate you

from the LYNX Bus Operator Training Program.

11. During the evaluation period referenced above,

Petitioner ’ s driving deficiencies were personally observed by

LYNX employees Karamchand Lowhar, Charles Rapier, Wilfredo

Acosta, and Margaret McCoy. Each employee credibly testified

during the final hearing regardin g Petitioner ’ s driving

deficiencies, and their testimony is credited.

12. Petitioner contends that he is a bus driver of

considerable experience, and the driving deficiencies cited by

LYNX employees are exaggerated, fabricated, or both. Petitioner

assert s that each of his bus training sessions was video -

recorded, and that the most credible evidence of his driving

performance lies therein.

13. There is no indication that when Petitioner met to

discuss his driving deficiencies with Respondent on or about

S eptember 8, 2017, he specifically requested either then, or

thereafter, that the video recordings of his driving performance

be evaluated and preserved. The evidence establishes

Respondent ’ s vehicle video recording system preserves video for

30 days, and after such period, the video recordings are

overwritten with new footage.

14. Petitioner ’ s testimony that he has extensive commercial

driving experience is undercut by the employment application and

experience questionnaire that he completed as part of th e pre -

employment process. Petitioner admits in both documents that he

has very limited experience with operating a bus. Petitioner,

however, in prosecuting the instant action, and in his pre -

termination meeting with Ms. Colon on September 15, 2017,

repre sented that he is a bus driver of considerable experience.

These inconsistencies are damaging to Petitioner ’ s credibility.

15. Petitioner ’ s credibility also suffers from his

factually inaccurate statement regarding when his employment was

terminated in r elation to the end - point of his 120 - day

probationary period. Petitioner ’ s Charge of Discrimination

states that he “ was fired with only two weeks left on [his]

training. ” Petitioner attempts to bolster his claim of

discrimination by inferring that for mor e than three months, he

met, or even exceeded, Respondent ’ s performance expectations, and

that Respondent ’ s discriminatory animus was only revealed when

Respondent, without sufficient justification, terminated his

employment as a bus operator.

16. The evi dence establishes, however, that Petitioner was

hired on or about August 23, 2017, and his employment with LYNX

ended approximately three weeks later because of his poor

performance during bus operation training sessions. Petitioner ’ s

suggestion that he w as meeting, or even exceeding, Respondent ’ s

performance expectations during his probationary period is not

supported by the evidence.

17. Other than Petitioner ’ s testimony, which is not

credible, there is no proof, either circumstantial or direct,

that Re spondent ’ s asserted grounds for terminating Petitioner ’ s

employment are merely a pretext for unlawful discrimination.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this case.

§§ 120. 569, 120. 57, and 760.11, Fla. Stat. (2019 ).

19. Section 760.10(1) states that it is an unlawful

employment practice for an employer to discharge or otherwise

discriminate against an individual on the basis of race , national

origin, or age .

20. FCHR and F lorida courts have determined that federal

discrimination law should be used as guidance when construing

provisions of section 760.10. See Valenzuela v. GlobeGround N.

Am., LLC , 18 So. 3d 17, 21 (Fla. 3d DCA 2009); Brand v. Fla.

Power Corp. , 633 So. 2d 50 4, 509 (Fla. 1st DCA 1994).

21. In the instant case, Petitioner alleges in h is Charge

of Discrimination that Respondent discriminated against h im on

the basis of race, national origin, and age when it discharged

h im from employment.

22. Petitioner ’ s asse rted claim of discrimination is one of

disparate treatment. The United States Supreme Court has noted

that “ [d]isparate treatment . . . is the most easily understood

type of discrimination. The employer simply treats some people

less favorably than other s because of their race, color,

religion, sex, or national origin. ” Teamsters v. U.S. , 431 U.S.

324, 335 n.15 (1977). The theory of disparate treatment has also been recognized as a basis for recovery in age discrimination

cases. Reeves v. Sanderson Plu mbing Prods. , 530 U.S. 133, 141

(2000).

23. Liability in a disparate treatment case “ depends on

whether the protected trait . . . actually mot ivated the

employer ’ s decision. ” Hazen Paper Co. v. Biggins , 507 U.S. 604,

610 (1993). “ The ultimate question i n every employment discrimination case involving a claim of disparate treatment is

whether the plaintiff was the victim of intentional

discrimination. ” Reeves , 530 U.S. at 153.

24. Discriminatory intent can be established through direct

or circumstantial evidence. Schoenfeld v. Babbitt , 168 F.3d

1257, 1266 (11th Cir. 1999). Direct evidence of discrimination

is evidence that, if believed, establishes the existence of

discriminatory intent behind an employment decision without

inference or presumption. M aynard v. Bd. of Regents , 342 F.3d

1281, 1289 (11th Cir. 2003).

25. “ Direct evidence is composed of ‘ only the most blatant

remarks, whose intent could be nothing other than to

discriminate ’ on the basi s of some impermissible factor. ”

Schoenfeld v. Babbitt , 168 F.3d at 1266 . Petitioner presented no

direct evide nce of race, national origin, or age - based

discrimination.

26. “ [D]irect evidence of intent is often unavailable. ”

Shealy v. City of Albany , 89 F.3d 804, 806 (11th Cir. 1996). For

this reason, tho se who claim to be victims of intentional discrimination “ are permitted to establish their cases through

infere ntial and circumstantial proof. ” Kline v. Tenn . Valley

Auth. , 128 F.3d 337, 348 (6th Cir. 1997).

27. Where a complainant attempts to prove inte ntional

discrimination using circumstantial evidence, the shifting burden

analysis established by the U.S. Supreme Court in McDonnell

Douglas v. Green , 411 U.S. 792 (1973), and Texas Department of

Community Affairs v. Burdine , 450 U.S. 248 (1981), is appli ed.

Under this well - established model of proof, the charging party bears the initial burden of establishing a prima facie case of

discrimination. When the charging party, i.e., Petitioner, is

able to establish a prima facie case, the burden to go forward

shifts to the employer to articulate a legitimate, non -

discriminatory explanation for the employment action. See Dep ’ t

of Corr. v. Chandler , 582 So. 2d 1183 (Fla. 1st DCA 1991)(court

discusses shifting burdens of proof in discrimination cases).

The empl oyer has the burden of production, not persuasion, and

need only present evidence that the decision was non -

discriminatory. Id. ; Alexander v. Fulton Cnty. , 207 F.3d 1303

(11th Cir. 2000). The employee must then come forward with

specific evidence demonst rating that the reasons given by the

employer are a pretext for discrimination. Schoenfeld v.

Babbitt , 168 F.3d at 1267. The employee must satisfy this burden

of demonstrating pretext by directly showing that a

discriminatory reason more likely than not motivated the decision

or indirectly by showing that the proffered reason for the

employment decision is not worthy of belief. Dep ’ t of Corr. v.

Chandler , 582 So. 2d at 1186; Alexander v. Fulton Cnty. , 207 F.3d

1303 .

28. “ Although the intermediate burden s of production shift

back and forth, the ultimate burden of persuading the trier of

fact that the employer intentionally discriminated against the

[Petitioner] remains at a ll times with the [Petitioner]. ” EEOC

v. Joe ’ s Stone Crabs, Inc. , 296 F.3d 1265, 1 273 (11th Cir. 2002);

see also Byrd v. RT Foods, Inc. , 948 So. 2d 921, 927 (Fla. 4th

DCA 2007)( “ The ultimate burden of proving intentional

discrimination against the plaintiff remains w ith the plaintiff

at all times. ” ).

29. To establish a prima facie case of discriminatory

discharge, a Petitioner must show that: (1) he is a member of a

protected class (or age group) ; (2) he was discharged from

employment ; ( 3 ) h is employer treated similarly situated

employees, outside of h is protected class (or age group) , more

favorably than he was treated ; and (4) he was qualified to do the

job . See McDonnell , 411 U.S. 792 ; 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).

30. Once the matter has, as in the i nstant case, been fully

tried, “ it is no longer relevant whether the plaintiff actually

established a prima facie case [and] . . . the only relevant

inquiry is the ultimate, factual issue of intentional

discrimination. ” G reen v. Sch. Bd. of Hillsborough Cnty. , 25

F.3d 974, 978 (11th Cir. 1994)(citing U.S. Postal Serv. Bd. of

Governors v. Aikens , 460 U.S. 711, 714 - 15 (1983)). However, the

issue of whether a Petitioner “ actually established a prima facie case is relevant . . . in the sense that a prima facie case

constitutes some circumstantial evidence of intentional

discrimination. ” Green , 25 F.3d at 978 .

31. The evidence establishes that when Respondent

terminated Petitioner ’ s employment, Petitioner was a member of a

pr otected class/group based on his age, national origin, and

race. The evidence also establishes that Petitioner met the

minimum qualifications to be hired for the position of bus

operator, and that Respondent terminated him from the said

position.

32. Res pondent has a legitimate business interest in

ensuring that its buses are operated in a safe and efficient

manner. The evidence establishes that while Petitioner met the

minimum qualifications necessary to be hired by Respondent, he

ultimately proved hims elf unqualified because he failed to meet

Respondent ’ s reasonable expectations and safety requirements for

the position of bus operator. Petitioner failed to prove that

the reasons given by Respondent for terminating his employment

were a pretext for unla wful discrimination, and therefore,

Petitioner failed to satisfy his burden of proving that he was

the victim of unlawful discrimination.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Comm ission on Human

Relations enter a final order finding that Respondent, LYNX

Transportation, did not commit an unlawful employment practice as

alleged by Petitioner, Leebert Lawrence , and denying Petitioner ’ s

Charge of Discrimination.

DONE AND ENTERED this 4th day of October , 2019 , in

Tallahassee, Leon County, Florida.

LINZIE F. BOGAN

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 4th day of October , 2019 .

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations 4075 Espla nade Way , Room 110 Tallahassee, Florida 32399 - 7020 (eServed)

Leebert Lawrence

Apartment 211

7511 Solstice Circle

Orlando, Florida 32821

(eServed)

Cindy Ann Townsend, Esquire

Bell & Roper, P.A.

2707 East Jefferson Street

Orlando, Florida 32803

(eServed )

Michael John Roper, Esquire

Bell & Roper, P.A.

2707 East Jefferson Street

Orlando, Florida 32803

(eServed)

Cheyanne Costilla, Gen eral Counsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399 - 7020

(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 Or der in this case.