20-002448
Tina Garner vs.
Jr Conway Enterprises, Llc
Status: Closed
Recommended Order on Tuesday, February 9, 2021.
Recommended Order on Tuesday, February 9, 2021.
1S TATE OF F LORIDA
6D IVISION OF A DMINISTRATIVE H EARINGS
13B ERNARD M AYBIN ,
17Petitioner ,
18vs. Case No. 20 - 4880
24C OMMERCIAL C ONCRETE S YSTEM , LLC
31Respondent .
33/
34R ECOMMENDED O RDER
38Administrative Law Judge John D. C. Newton, II, of the Division of
50Administrative Hearings (Division), conducted the final hearing in this case
60on January 28, 2021, by Zoom video conference.
68A PPEARANCES
70For Petitioner: Bernard Maybin , Pro se
76290 Lowell Avenue
79North Fort Myers, Florida 33917
84For Respondent: Peter Shoup
88Commercial Concrete Systems, LLC
926220 Taylor Road , Suite 101
97Naples, Florida 34109
100S TATEMENT OF T HE I SSUE
107Did Respondent, Commercial Concrete Systems, LLC (Commercial
114Concrete), discriminate against Petitioner, Bernard Maybin, because of his
123race or color?
126P RELIMINARY S TATEMENT
130On October 23, 2019, Mr. Maybin filed an Employment Complaint of
141Discrimination with the Florida Commission on Human Relations
149(Commission) . The C omplaint alleged that Commercial Concrete paid
159Mr. Maybin less and denied him paid vacation time on account of his race or
174color. The Commission investigated the C omplaint and determined that there
185was no re asonable cause to believe that Commercial Concrete had
196discriminated against Mr. Maybin unlawfully. Mr. Maybin filed a Petition for
207Relief reiterating his claim that Commercial Concrete discriminated against
216him because of his race or color . The Petition also alleged that Commercial
230Concrete retaliated against Mr. Maybin , by discharging him, for complaining
240of discrimination. 1 The Commission transmitted the matter to the Division to
252conduct a final hearing on Mr. Maybin ' s claims.
262The undersigned issued an Initial Order directing the parties to provide
273suggested dates for the hearing, an estimate of the hearing length, and other
286information. Neither party responded. The undersigned set the hearing to
296begin January 18, 2021, and later issued an Amended Not ice of Hearing
309setting the hearing for January 28, 2021. The Amended Notice of Hearing
321required the parties to file and serve copies of all proposed exhibits no later
335than January 21, 2021, seven days before the hearing. Mr. Maybin timely
347filed his propose d exhibits. Commercial Concrete did not. An Order of Pre -
361hearing Instructions required the parties to exchange witness lists and copies
372of intended exhibits no later than January 21, 2021. Neither party complied
384with this requirement.
3871 The retaliation claim is not part of this matter because it was not contained in the
404Complaint. If it were, the record does not support the claim because Commercial Concrete
418was not aware of Mr. Maybin ' s complaints when it discharged him. Therefore, the complaints
434could not have been the cause for his discharge. See Murphy v. City of Aventura , 616 F. Supp.
4522d 1267, 1279 (S.D. Fla. 2009); Webb v. R&B Holding Co. , 992 F. Supp. 1382, 1389 (S.D. Fla.
4701998).
471The undersigned als o issued a Notice of Telephonic Pre - hearing
483Conference for January 19, 2021. The undersigned conducted the p re - hearing
496conference as scheduled. Mr. Maybin participated in the c onference.
506Commercial Concrete did not. During the conference the undersigned
515re viewed the nature of this legal proceeding and the requirements for it. The
529review included directing Mr. Maybin to the " Representing Yourself " link on
540the Division website and advising him that the decision resulting from the
552hearing would rely only on ev idence presented at the hearing. The review
565included an explanation that a petitioner ha s the burden of proving his claim
579by a preponderance of the evidence and that documents or other material
591submitted to the Commission were not part of the evidence, unl ess they were
605offered as exhibits and admitted.
610The undersigned conducted the hearing as scheduled. Mr. Maybin
619testified on his own behalf. Mr. Maybin ' s E xhibits D, F, G, and H were
636admitted into evidence. No other exhibits were offered by either party. P eter
649Shoup testified on behalf of Commercial Concrete.
656F INDINGS OF F ACT
6611. Mr. Maybin was an employee of Commercial Concrete in 2019.
672Mr. Maybin is a dark - skinned African - American. In 2019 , Commercial
685C oncrete reprimanded Mr. Maybin for tardiness and absenteeism on
695January 18, April 15, and August 16 , 2019 . On November 8 , 2019,
708Commercial Concrete terminated Mr. Maybin for being absent all of the
719preceding 30 days . This was consistent with its policy of terminating
731employees who were absent for thirty days without communicating with the
742company.
7432. During at least some of the days that he was absent, Mr. Maybin was
758recovering from an automobile accident. He advised Commercial Concrete of
768the accident. But he did not advise it which days he would be una ble to work
785due to the accident or request leave. He also did not communicate with
798Commercial Concrete during the period of absenteeism, beyond advising it of
809the accident when it first occurred.
8153. There is no evidence that any non - African - Americans or li ght - skinned
832employees with attendance failings similar to Mr. Maybin ' s were treated
844differently than him.
8474. There is no evidence of statements by any manager or other employee of
861Commercial Concrete alluding to Mr. Maybin ' s race or color .
8735. There is no evidence that non - African - American or light - skinned
888employees were paid more than Mr. Maybin or received vacation pay that he
901did not , although his petition makes that allegation.
9096 . When Commercial Concrete discharged Mr. Maybin, it was not aware
921that he had filed a complaint of discrimination with the Commission.
932C ONCLUSIONS OF L AW
9377 . Sections 760.11(7), 120.569, and 120.57, Florida Statutes (2020), confer
948jurisdiction of this matter on the Division.
9558 . Section 760.10(1)(a), Florida Statut es (2019) , makes it unlawful to
967discriminate against someone in employment because of the individual ' s race
979or color.
9819 . Mr. Maybin brought this charge of discrimination. Consequently, he
992must prove his claim that Commercial Concrete discriminated against him by
1003a preponderance of the evidence. See Dep ' t of Transp. v. J.W.C. Co. , 396 So.
10192d 778 (Fla. 1st DCA 1981). A preponderance of the evidence is evidence
1032which more likely than not tends to prove something. Gross v. Lyons , 763 So.
10462d 276, 279, n. 1 (Fla. 2000) .
105410 . Mr. Maybin may prove the alleged discrimination by direct or
1066circumstantial evidence. Valenzuela v. GlobeGround N. Am., LLC , 18 So. 3d
107717 (Fla. 3d DCA 2009).
108211 . Direct evidence proves the complained of discrimination without need
1093for interpret ation, presumption, or inference. It includes facts such as
1104derogatory statements about an employee explicitly referring to race or
1114specific invocations of racial stereotypes as a basis for an employment
1125decision. If the evidence suggests , but does not pro ve discriminatory intent, it
1138is circumstantial , not direct. Wilson v. B/E Aerospace, Inc. , 376 F.3d 1079
1150(11th Cir. 2004). 2 There is no direct evidence of discrimination against
1162Mr. Maybin in the record.
11671 2 . An employee or former employee may also prove discrimination using
1180a " disparate treatment " theory. Here that requires proof that Mr. Maybin
1191belongs to a protected class, that he was qualified to remain employed, and
1204that , despite his qualifications , he w as terminated while similarly situated
1215employees were not. See Fla. Dep ' t. of Cmty. Aff. v. Bryant , 586 So. 2d 1205,
12321209 (Fla. 1st DCA 1991)(applying the reasoning of McDonnell Douglas Corp.
1243v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.Ed.2d 668 (1973), i n interpreting
1259chapter 760). Mr. Maybin ' s month of unexcused absen ces made him
1272unqualified for employment at Commercial Concrete. There is no evidence
1282that non - African - American or light - skinned employees of Commercial
1295Concrete with attendance issues like Mr. Maybin ' s remained employed.
1306Consequently, t he evidence does not support finding discrimination based on
1317a " disparate impact " theory.
13211 3 . Mr. Maybin failed to prove the unlawful discrimination that he
1334alleged.
1335R ECOMMENDATION
1337Based on the preceding Findings of Fact and Conclusions of Law, it is
1350r ecommended that the Florida Commission on Human Relations enter a final
1362order dismissing the Petition for Relief of Petitioner Bernard Maybin.
13722 F ederal cas e law dealing with Title VII applies when interpreting chapter 760 . School Bd.
1390of Leon Cty . v. Hargis , 400 So. 2d 103, 108 n. 2 (Fla. 1st DCA 1981).
1407D ONE A ND E NTERED this 9th day of February , 2021 , in Tallahassee, Leon
1422County, Florida.
1424S
1425J OHN D. C. N EWTON , II
1432Administrative Law Judge
14351230 Apalachee Parkway
1438Tallahassee, Florida 32399 - 3060
1443(850) 488 - 9675
1447www.doah.state.fl.us
1448Filed with the Clerk of the
1454Division of Administrative Hearings
1458this 9th day February, 2021 .
1464C OPIES F URNISHED :
1469Tammy S. Barton, Agency Clerk Bernard Maybin
1476Florida Commission on Human Relations 290 Lowell Avenue
14844075 Esplanade Way , Room 110 North Fort Myers, Florida 33917
1494Tallahassee, Florida 32399 - 7020
1499Cheyanne Costilla, Gen eral Co unsel
1505Peter Shoup Florida Commission on Human Relations
1512Commercial Concrete Systems, LLC 4075 Esplanade Way, Room 110
15216220 Taylor Road , Suite 101 Tallahassee, Florida 32399 - 7020
1531Naples, Florida 34109
1534N OTICE OF R IGHT T O S UBMIT E XCEPTIONS
1545All parties have the right to submit written exceptions within 15 days from
1558the date of this Recommended Order. Any exceptions to this Recommended
1569Order should be filed with the agency that will issue the Final Order in this
1584case.
- Date
- Proceedings
- PDF:
- Date: 08/18/2022
- Proceedings: Agency Final Order Dismissing Petition for Relief from a Discriminatory Employment Practice filed.
- PDF:
- Date: 02/09/2021
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- PDF:
- Date: 01/11/2021
- Proceedings: Joint Motion for Extension of Time to Submit Proposed Order and Recommendation filed.
- Date: 12/17/2020
- Proceedings: Transcript of Proceedings (not available for viewing) filed.
- Date: 11/16/2020
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 11/13/2020
- Proceedings: Petitioner's Notice of Filing Deposition Transcript (Jeff Conway) filed.
- Date: 11/13/2020
- Proceedings: Petitioner's Proposed Exhibits filed (exhibits not available for viewing).
- Date: 11/12/2020
- Proceedings: Petitioner's Proposed Exhibits filed (exhibits not available for viewing).
- PDF:
- Date: 09/25/2020
- Proceedings: Order Granting Continuance and Rescheduling Hearing by Zoom Conference (hearing set for November 16, 2020; 9:00 a.m., Eastern Time; Brooksville).
- PDF:
- Date: 09/02/2020
- Proceedings: Petitioner, Tina Garner's Notice of Serving First Set of Interrogatories to Petitioner filed.
- Date: 08/28/2020
- Proceedings: CASE STATUS: Motion Hearing Held.
- PDF:
- Date: 08/27/2020
- Proceedings: Respondent's Response to Request for Production of Documents filed.
- PDF:
- Date: 08/26/2020
- Proceedings: Notice of Telephonic Motion Hearing (motion hearing set for August 28, 2020; 2:00 p.m.).
- PDF:
- Date: 08/13/2020
- Proceedings: Petitioner's Second Motion to Hold Respondent in Contempt of Court for Failure to Comply with the Court's Order Compelling Discovery Responses filed.
- PDF:
- Date: 08/13/2020
- Proceedings: Petitioner's Motion to Hold Respondent in Contempt for Violating Court Order to Pay Sanctions for Discovery Violations filed.
- PDF:
- Date: 08/11/2020
- Proceedings: Order Rescheduling Hearing by Zoom Conference (hearing set for October 2, 2020; 9:00 a.m.; Brooksville).
- PDF:
- Date: 07/29/2020
- Proceedings: Order Granting Motion to Compel Discovery Responses and Imposing Sanctions.
- PDF:
- Date: 07/29/2020
- Proceedings: Order Granting Continuance (parties to advise status by August 7, 2020).
- Date: 07/28/2020
- Proceedings: CASE STATUS: Status Conference Held.
- PDF:
- Date: 07/28/2020
- Proceedings: Notice of Telephonic Status Conference (status conference set for July 28, 2020; 3:00 p.m.).
- Date: 07/27/2020
- Proceedings: Petitioner's Proposed Exhibits filed (exhibits not available for viewing).
- PDF:
- Date: 07/20/2020
- Proceedings: Petitioner's Motion to Compel Discovery Responses from Defendant and for Discovery Sanctions filed.
- PDF:
- Date: 07/09/2020
- Proceedings: Order Rescheduling Hearing by Zoom Conference (hearing set for July 29, 2020; 9:00 a.m.; Brooksville).
- PDF:
- Date: 07/01/2020
- Proceedings: Return of Service (Subpoena Duces Tecum with Deposition Jeff Conway) filed.
Case Information
- Judge:
- JAMES H. PETERSON, III
- Date Filed:
- 05/22/2020
- Date Assignment:
- 05/22/2020
- Last Docket Entry:
- 08/18/2022
- Location:
- Brooksville, Florida
- District:
- Northern
- Agency:
- ADOPTED IN TOTO
Counsels
-
Tammy S Barton, Agency Clerk
Address of Record -
Jeff Conway
Address of Record -
Erik DeL'Etoile, Esquire
Address of Record -
William Sheslow, Esquire
Address of Record