19-005519 John Mercurio vs. Ideal Security Services, Inc. Status: Closed Recommended Order on Thursday, January 16, 2020.

Summary: Petitioner failed to prove that any actions taken by his employer were in retaliation for exercising his right to engage in protected activity.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN MERCURIO ,

Petitioner ,

vs. Case No. 19 - 5519

IDEAL SECURITY SERVICES, INC. ,

Respondent .

/

RECOMMENDED ORDER

A formal hearing was conducted in this case on December 6,

2019, in Daytona Beach, Florida, before W. David Watkins, a

duly - designated Administrative Law Judge (ÐALJÑ) with the

Division of Administrative Hearings (ÐDOAHÑ).

APPEARANCES

For Petitioner: John Mercurio, pro se

1025 1/2 June Terrace

Daytona Beach, Florida 32119

For Respondent: Diane M. Cox

Ideal Security Services, Inc.

211 North Ridgewood Avenue, Suite 203

Daytona Beach, Florida 3 2114

STATEMENT OF THE ISSUE

The issue is whether Respondent, Ideal Security Services,

Inc. (ÐRespondent or IdealÑ), retaliated against Petitioner,

John Mercurio (ÐPetitionerÑ), for exercising his right to file a

complaint on an alleged un lawful employment practice pursuant to

section 760.10, Florida Statutes (2019). 1/

PRELIMINARY STATEMENT

On April 1, 2019, Petitioner filed an Employment Complaint

of Discrimination (ÐComplaintÑ) with the Florida Commission on

Human Relations (ÐFCHRÑ). Pet itioner alleged that Respondent

retaliated against him for speaking out against racially

discriminatory behavior.

Upon receipt of the Complaint, FCHR conducted an

investigation of the allegations, and on September 25, 2019 ,

issued its determination that no reasonable cause exists to

believe that an unlawful practice occurred. Disappointed with

the FCHR determination, on October 1, 2019 , Petitioner filed the

Petition for Relief which is the subject of this proceeding.

FCHR referred the matter to DOAH on October 15, 2019. The

case was initially assigned to ALJ G.W. Chisenhall, but on

October 22, 2019 , was transferred to the undersigned for all

further proceedings.

By Notice of Hearing dated November 1, 2019, the matter was

scheduled for final hearing in Daytona Beach on December 6,

2019, on which date it was convened and completed. Petitioner

testified on his own behalf and entered PetitionerÓs Exhibits 1

and 2 into evidence. Respondent called Diane M. Cox, IdealÓs

Manager and Chief Financial Officer ( ÐCFOÑ) as its sole witness.

RespondentÓs Exhibits 1 through 26 were entered into evidence.

At the conclusion of the final hearing, the parties were

apprised of their right to order the transcript of the final

hearing (at their own expense) and to file p roposed recommended

orders. Both parties declined to order the transcript and both

stated that they would not be submitting proposed recommended

orders.

FINDING S OF FACT

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

760.02(7). While the exa ct number of employees is not reflected

in this record, the evidence established that Ideal employs

greater than 15 employees. Ideal provides security officers to

different locations for access control and on - site patrol.

2 . Petitioner worked for Respond ent as a security officer

from June 20, 2018 , through February 7, 2019.

3 . At the time he was hired by Ideal, Petitioner was

informed in writing of the companyÓs ÐInterchangeÑ practice,

which provides:

Although employees generally are hired to

work at one specific client location or

facility, the company (Ideal Services, Inc.)

uses its Guard Force INTERCHANGEABLY to meet

its needs: In case of cancellation of any

accounts, reduction or increase in hours

provided, or an employee who may request a

transfer.

Also Ideal Services, Inc. wishes to point

out that they DO NOT guarantee a full

40 hour work week. Overtime is given to

employees depending on where the overtime

will occur and the availability of employees

to work an assignment. Ideal Services, Inc.

wi shes to also point out that hourly pay

rates will depend on job placement as some

client assigned jobs will carry higher pay

rates than others.

It is therefore Ideal Services, Inc.Ós

policy to inform all individuals who are

applying for employment that Id e al Services,

Inc. DOES NOT HIRE for only one site at one

set pay rate . . . because both of these are

subject to change.

4 . On the date he was hired , Petitioner signed a copy of

the above policy statement, acknowledging that he had read and

understood its contents.

5 . PetitionerÓs first assignment was to provide security

at a Krispy Kreme Donuts retail location, an assignment which

carried a pay rate of $9.50 per hour.

6 . In July 2018 , Petitioner was assigned to several other

locations, in addition to the Krispy Kreme location. Those new

locations were at Daytona Beach Housing Authority apartments,

including the Maley, Windsor, and Trails apartment complexes.

The public housing assignments carried a pay rate of $8.50 per

hour.

7 . As of August 201 8, Petitioner was no longer assigned to

the Krispy Kreme location, but rather was working exclusively at

the public housing locations.

8 . In December 2018, another Ideal security guard was

newly assigned to the same public housing complex as Petitioner.

It was clear to Petitioner that this individual was a racist

based on his words and actions. While standing next to

Petitioner, the new security officer referred to the building

residents as "monkeys." It was clear to Petitioner that this

remark was made in reference to the African - American residents

of the complex.

9 . Dan Montrose, the senior security officer and

PetitionerÓs partner, was also within earshot when the newly

assigned officer made the derogatory remark. Petitioner was

stunned by the raci st comment, especially since Mr . MontroseÓs

wife is an African - American female.

10 . Petitioner also testified that on another occasion ,

the new officer posted a picture of a Caucasian baby on the

common area's fridge with an arrow that said, "Dan" on it, as

well as a black finger/arm covering the baby's mouth which said,

"Dan's wife."

11 . While PetitionerÓs first impulse was to report the

above racist incidents to his employer, at the request of

Officer Montrose he did not immediately do so. However, wh ile

the exact date of the conversation is not of record, sometime in

the second or third week of December 2018 , Petitioner reported

the Ðmonkey remarkÑ to IdealÓs M anager and CFO, Diane Cox.

Ms. Cox assured Petitioner that she would discuss the racist

com ment with the offending security guard.

12 . Ms. Cox testified that the offending security guard

was given a verbal warning for his inappropriate comment, but

was not otherwise disciplined because he had worked for the

company for many years without inci dent.

13 . When Ms. Cox spoke with the offending security guard

about his inappropriate remark, she did not raise the issue of

the racist picture that had been posted on the common area

refrigerator. According to the testimony of Ms. Cox, this is

because she had not been informed by anyone about the existence

of the picture, and first became aware of it when she read

PetitionerÓs Complaint. Ms. Cox testified that had she been

informed of the racist picture, disciplinary action would have

been taken agains t the offending employee.

14 . Again, while the exact date is not of record, sometime

in late December 2018, Petitioner requested a copy of his

payroll records from Ms. Cox. While gathering the records for

Petitioner, Ms. Cox discovered that PetitionerÓs rate of pay had

erroneously not been reduced from $9.50 per hour to $8.50 per

hour when he was transferred from the Krispy Kreme location to

the public housing locations. Upon discovering this accounting

error, Ms. Cox informed Petitioner that effective i mmediately

his rate of pay while on duty at the public housing locations

would be adjusted to $8.50 per hour, but that Ideal would not be

attempting to recoup the overpayments that had been made over

the previous months, since the error had been theirs.

15 . Respondent offered in evidence payroll records which

demonstrated that all Ideal security guards assigned to the

public housing locations were paid at the rate of $8.50 per

hour.

16 . At about the same time as PetitionerÓs downward rate

adjustment, anot her Ideal security guard requested tha t he be

assigned an additional eight - hour shift in order to bring him to

40 hours per week. In an attempt to accommodate this request,

Ms. Cox contacted several of the Ideal security guards,

including Petitioner, to i nquire as to whether any wished to

relinquish an eight - hour shift. Petitioner advised Ms. Cox that

he did not want to give up an eight - hour shift, and that request

was honored by Ideal.

17 . The timing of PetitionerÓs reporting of the racist

remarks to Ms . Cox; Petitioner being informed that his hourly

rate was being reduced; and Petitioner being invited to give up

a work shift; is unfortunate. Because of the temporal proximity

of these events , it is understandable that Petitioner concluded

that the reduc tion in his pay rate and attempted reduction in

his assigned hours were in retaliation of his reporting the

racist remarks. However, the evidence does not prove a causal

link between Petitioner's complaint and the adverse action he

suffered. Rather, the credible testimony of Ms. Cox established

legitimate nonretaliatory reasons for how Petitioner was

treated, and there is no evidence that the reasons articulated

by Ms. Cox were a pretext for retaliation.

18 . Petitioner failed to persuasively prove any in cidents

of retaliation.

CONCLUSIONS OF LAW

19 . The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

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

20 . The Florida Civil Rights Act of 1992 (the "Flor ida

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

retaliation for engaging in protected activity.

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

(7) It is an unlawful employment practice

for an employer, an employment age ncy, a

joint labor - management committee, or a labor

organization to discriminate against any

person because that person has opposed any

practice which is an unlawful employment

practice under this section, or because that

person has made a charge, testifie d,

assisted, or participated in any manner in

an investigation, proceeding, or hearing

under this section.

22 . Respondent is an "employer" as defined in section

760.02(7), which provides the following:

(7) "Employer" means any person employing

15 or mor e 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.

23 . Florida courts have determined that federal case law

applies to claims arising under the Florida Civil Ri ghts 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 or retaliation. 2/ 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).

24 . Under the McDonnell analysis, in employment retaliation

cases, Petitioner has the burden of establishing by a

preponderance of evidence a prima facie cas e of unlawful

retaliation. See, e.g. , Burlington Northern & Santa Fe Ry. v.

White , 548 U.S. 53 (2006). If the prima facie case is

established, the burden shifts to the employer to rebut this

preliminary showing by producing evidence that the adverse

acti on was taken for some legitimate, non - retaliatory 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 Texas DepÓt of Cmty. Aff. v.

Burdine , 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981).

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

employment retaliation under chapter 760, Petitioner must

establish that: (1) he engaged in protected activity; (2) he

suffered an adverse employment action; and (3) there was a

causal relationship between (1) and (2). See Pennington v. City

of Huntsville , 261 F.3d 1262, 1266 (11th Cir. 2001). 3/ To

establish this causal relationship, Petitio ner must prove Ðthat

the unlawful retaliation would not have occurred in the absence

of the alleged wrongful action or actions of the employer.Ñ

Univ. of Tex. Med. Ctr. v. Nassar , 133 S. Ct. 2517, 2533 (2013).

This standard has also been called Ðbut - for causation.Ñ See,

e.g. , Frazier - White v. Gee , 818 F.3d 1249, 1258 (11th Cir.

2016).

26 . Petitioner established that he engaged in protected

activity by reporting racially derogatory remarks made by a

fellow employee, and by reporting racially derogatory a ctions

taken by one security officer towards another.

27 . Petitioner failed to establish that any of the actions

of which he complained was an adverse employment action.

28 . Having failed to establish that any retaliation or

adverse employment action of any kind occurred, Petitioner has

clearly failed to establish the Ðbut - for causationÑ element of a

prima facie case of unlawful employment retaliation under

chapter 760.

29 . Even if Petitioner had met his burden and established

a prima facie case of retal iation, he failed to show that

IdealÓs legitimate business reasons for its various decisions

were false and a pretext for retaliation. To establish pretext,

Petitioner must Ðcast sufficient doubtÑ on IdealÓs 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 Fed. Appx. 962, 968 (11th Cir. 2016) ( quoting Combs v.

Plantation Patterns , 106 F.3d 1519, 1538 (1 1th Cir. 1997) ) . If

the proffered reason is one that might motivate a reasonable

employer, Ðan employee must meet that reason head on and rebut

it, and the 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 proffered reason was pretext; Ðmere

conclusory allegations and assertionsÑ are insufficient. Bryant

v. J ones , 575 F.3d 1281, 1308 (11th Cir. 2009) ( quoting Earley v.

Champion IntÓl Corp. , 907 F.2d 1077, 1081 (11th Cir. 1990) ) .

30 . Petitioner failed to provide evidence, aside from his

own suspicions, that IdealÓs proffered reasons for the

supervisory actions taken by Ms. Cox were pretextual or used as

a means of surreptitious retaliation against Petitioner. There

was no evidence that any of Ms. CoxÓs supervisory decisions had

anything to do with PetitionerÓs discrimination complaint.

31 . In summary, Petiti oner failed to establish that

Respondent took an adverse employment action against him or that

any employment action taken by Ideal was in retaliation for

PetitionerÓs having engaged in protected activities.

RECOMMENDATION

Based on the foregoing Findin gs of Fact and Conclusions of

Law, it is ,

RECOMMENDED that the Florida Commission on Human Relations

issue a final order finding that Ideal Security Services, Inc.

did not commit any unlawful employment practices and dismissing

the Petition for Relief fil ed in this case.

DONE AND ENTERED this 1 6 th day of January, 2020 , 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

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 6 th day of January , 2020 .

ENDNOTE S

1/ Citations shall be to Florida Statutes ( 2019) 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/ Ð Direct evid ence 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 re marks, 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 defendant acted with a 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 offered no evidence tha t would satisfy the stringent

standard of direct evidence of retaliation.

3/ Florida courts have articulated an identical standard:

To establish a prima facie case of

retaliation under section 760.10(7), a

plaintiff must demonstrate: (1) that he or

s he engaged in statutorily protected

activity; (2) that he or she suffered

adverse employment action ; and (3) that the

adverse employment action was causally

related to the protected activity. See

Harper v. Blockbuster EntmÓt Corp. , 139 F.3d

1385, 1388 (11 th Cir.), cert. denied 525

U.S. 1000, 119 S.Ct. 509, 142 L.Ed.2d 422

(1998). Once the plaintiff makes a prima

facie showing, the burden shifts and the

defendant must articulate a legitimate,

nondiscriminatory reason for the adverse

employment action. Wel ls v. Colorado Dep't

of Transp. , 325 F.3d 1205, 1212 (10th Cir.

2003). The plaintiff must then respond by

demonstrating that defendant's asserted

reasons for the adverse action are

pretextual. Id.

Blizzard v. Appliance Direct, Inc. , 16 So. 3d 922, 926 ( Fla. 5th

DCA 2009).

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399 - 7020

(eServed)

Diane M. Cox

Ideal Security Services, Inc.

211 North Ridgewood Avenue, Sui te 203

Daytona Beach, Florida 32114

John Mercurio

1025 1/2 June Terrace

Daytona Beach, Florida 32119

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399 - 7020

(eServed)

NO TICE 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.