20-002448 Tina Garner vs. Jr Conway Enterprises, Llc
 Status: Closed
Recommended Order on Tuesday, February 9, 2021.


View Dockets  
Summary: Recommended Order of dismissal because Petitioner failed to prove her claim of unlawful retaliation.

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.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 08/18/2022
Proceedings: Agency Final Order
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
PDF:
Date: 02/09/2021
Proceedings: Recommended Order
PDF:
Date: 02/09/2021
Proceedings: Recommended Order (hearing held November 16, 2020). CASE CLOSED.
PDF:
Date: 02/09/2021
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 01/22/2021
Proceedings: (Petitioners) Proposed Recommended Order filed.
PDF:
Date: 01/22/2021
Proceedings: Proposed Recommended Order filed.
PDF:
Date: 01/12/2021
Proceedings: Order Granting Extension of Time.
PDF:
Date: 01/11/2021
Proceedings: Joint Motion for Extension of Time to Submit Proposed Order and Recommendation filed.
PDF:
Date: 12/17/2020
Proceedings: Notice of Filing Transcript.
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).
PDF:
Date: 11/12/2020
Proceedings: Petitioner's Amended Exhibit List filed.
Date: 11/12/2020
Proceedings: Petitioner's Proposed Exhibits filed (exhibits not available for viewing).
PDF:
Date: 11/09/2020
Proceedings: Joint Pre-Hearing Statement filed.
PDF:
Date: 10/12/2020
Proceedings: Respondent's First Interrogatories to Petitioner filed.
PDF:
Date: 10/12/2020
Proceedings: Respondent's Response to First Set of Interrogatories filed.
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: 09/24/2020
Proceedings: Unopposed Petitioner's First Motion to Continue Hearing filed.
PDF:
Date: 09/02/2020
Proceedings: Petitioner's First Interrogatories to Respondent filed.
PDF:
Date: 09/02/2020
Proceedings: Petitioner, Tina Garner's Notice of Serving First Set of Interrogatories to Petitioner filed.
PDF:
Date: 08/31/2020
Proceedings: Order Denying Pending Discovery Motions, without Prejudice.
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: 08/07/2020
Proceedings: Joint Pre-Hearing Statement Regarding Continued Hearing filed.
PDF:
Date: 08/05/2020
Proceedings: Notice of Appearance (Erik DeL'Etoile) filed.
PDF:
Date: 07/29/2020
Proceedings: Order Granting Motion to Compel Discovery Responses and Imposing Sanctions.
PDF:
Date: 07/29/2020
Proceedings: Order (enclosing rules regarding qualified representatives).
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: 07/27/2020
Proceedings: Court Reporter Request filed.
PDF:
Date: 07/22/2020
Proceedings: Petitioner's Exhibits filed.
PDF:
Date: 07/22/2020
Proceedings: Petitioner's Pre-Hearing Statement filed.
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.
PDF:
Date: 06/10/2020
Proceedings: Petitioner's Notice of Taking Deposition filed.
PDF:
Date: 06/09/2020
Proceedings: Joint Response to Initial Order filed.
PDF:
Date: 06/09/2020
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 06/09/2020
Proceedings: Notice of Hearing (hearing set for July 29, 2020; 9:00 a.m.; Brooksville).
PDF:
Date: 06/08/2020
Proceedings: Joint Response to Initial Order filed.
PDF:
Date: 05/22/2020
Proceedings: Initial Order.
PDF:
Date: 05/22/2020
Proceedings: Charge of Discrimination filed.
PDF:
Date: 05/22/2020
Proceedings: Notice of Determination: No Reasonable Cause filed.
PDF:
Date: 05/22/2020
Proceedings: Determination: No Reasonable Cause filed.
PDF:
Date: 05/22/2020
Proceedings: Petition for Relief filed.
PDF:
Date: 05/22/2020
Proceedings: Transmittal of Petition filed by the Agency.

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

Related Florida Statute(s) (5):