21-000057 Edgardo Ruiz Valesco vs. Holzman Machine, Llc Status: Closed Recommended Order on Friday, June 18, 2021.

Summary: Petitioner failed to prove that Respondent discriminated against him based on his race or national origin. Further, Respondent presented a legitimate, non-discriminatory reason for its employment action.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

E DGARDO R UIZ V ALESCO ,

Petitioner ,

vs. Case No. 21 - 0057

H OLZMAN M ACHINE LLC ,

Respondent .

/

R ECOMMENDED O RDER

The f inal hearing in this matter was conducted before J. Bruce Culpepper,

Administrative Law Judge of the Division of Administrative Hearings,

pursuant to sections 120.569 and 120.57(1), Florida Statutes (20 20 ), 1 on

April 20, 2021 , by Zoom video conference from Tallahassee, Florida.

A PPEARANCES

For Petitioner: Jason Imler, Esquire

Printy & Printy

3411 West Fletcher Avenue , Suite A

Tampa, Florida 33618

For Respondent: Jolinda Dianna Holzman

Holzman Machine, LLC

12900 Automobile B oulevard , Suite G

Clearwater, Florida 33762

S TATEMENT OF T HE I SSUE

Whether Petitioner, Edgardo Ruiz Valesco , was subject to an unlawful

employment practice by Respondent, Holzman Machine LLC , based on his

1 All stat utory references are to Florida Statutes (20 20 ), unless otherwise noted.

race , national origin, disability, or in re taliation , in violation of the Florida

Civil Rights Act.

P RELIMINARY S TATEMENT

On June 4, 2020 , Petitioner filed a Charge of Discrimination with the

Florida Commission on Human Relations (the " Commission " ) alleging that

R espondent, Holzman Machine LLC ( " H olzman Machine " ), violated the

Florida Civil Rights Act ( " FCRA " ) by discriminating against h im based on h is

race, national origin, and disability, as well as in retaliation for his practice of

an activity protected by the FCRA. 2

On December 1, 2020 , the C ommission notified Petitioner that no

reasonable cause existed to believe that Holzman Machine had committed an

unlawful employment practice.

On January 5, 2021 , Petitioner filed a Petition for Relief with the

Commission alleging a discr iminatory employme nt practice. The Commission

transmitted the Petition to the Division of Administrative Hearings

( " DOAH " ) to conduct a chapter 120 evidentiary hearing.

The final hearing was held on April 20, 2021. At the final hearing,

Petitioner testified on h is own beha lf. Holzman Machine presented the

testimony of Jolinda Holzman, Russell Holzman, and Terry Carter.

P etitioner ' s Exhibits 1 through 15 were admitted into evidence.

A court reporter recorded the final hearing. Neither party ordered a

transcript. At the clo se of the final hearing, the parties were advised of a ten -

day timeframe following the hearing to file post - hearing submittals. Both

2 Petitioner concomitantly filed a Charge of Discrimination with the Pinellas County Office of

Human Rights alleging a violation of Pinellas County Code S ection 70 - 53.

parties timely filed Proposed Recommended Orders , which were duly

considered in preparing this Recommended Order.

F INDINGS OF F ACT

1. Holzman Machine is a small , family - owned business located in

Clearwater, Florida. Holzman Machine is jointly owned by Jolinda Holzman

and her son, Russell Holzman .

2. Holzman Machine manufactures machined parts and products based on

customer or ders. To perform this task, Holzman Machine owns and operates

five CNC machines. " CNC " stands for " computer numerical control. " A CNC

machine uses multiple cutting tools guided by computerized controls to lathe

or mill raw material, such as metal, plastic, or wood, into custom - designed

parts. A CNC machine operator programs the CNC machine to shape the

desired part to exact and precise specifications.

3. Pet itioner started working for Holzman Machine on April 6, 2020.

Holzman Machine agreed to pay Petitione r $20 per hour.

4. Petitioner was hired as a CNC machinist to operate one of Holzman

Machine ' s five CNC machines. In Petitioner ' s words, as a CNC machinist, his

job was to set up, adjust, and maintain the equipment used to create the

manufactured compone nts. He would then activate the CNC machine, which

would follow an automated computer program to produce the appropriate

parts and tools.

5. Holzman Machine fired Petitioner on May 5, 2020, one month after he

was hired.

6. Petitioner is Hispanic. He was born in Mexico. Petitioner entered the

United States when he was three years old. He became an American citizen

in approximately 2000.

7. Petitioner testified that he has worked in the parts manufacturing

industry for over 23 years. Petitioner asserted th at he possesses the

experience and training necessary to skillfully operate a CNC machine. In

fact, before Holzman Machine hired him, Petitioner spent the previous five

years as a CNC machinist. Petitioner explained that he left his former job for

better w ork hours with Holzman Machine. Petitioner declared that,

unfortunately, the move was the " worst decision I ever made. "

8. At the final hearing, in recounting the discrimination he believes he

encountered at Holzman Machine, Petitioner identified several a lleged

inappropriate acts and activities. 3 Initially, Petitioner focused on the

objectionable behavior of Eric Kirchner, another CNC machinist who was

working at the company when Petitioner arrived. Petitioner expressed that

Mr. Kirchner, who is white, was aggressive and unfriendly from the start.

Petitioner declared that Mr. Kirchner constantly made offensive racial

comments to him. For instance, Mr. Kirchner repeatedly called Petitioner

random Mexican names such as " Raymundo, " " Javier, " and " Jose " (which are

not Petitioner ' s names) . Mr. Kirchner also frequently spoke to Petitioner

using a fake Spanish accent.

9. Petitioner claims that he informed Jolinda and Russell Holzman of

Mr. Kirchner ' s offensive conduct on three separate occasions. Petitioner,

howeve r, never observed the owners take any action to correct Mr. Kirchner ' s

actions.

10. Petitioner also described a specific incident that occurred on April 17,

2020. Petitioner relayed that shortly after he arrived at Holzman Machine,

the company moved to a n ew location. On April 15, 2020, Petitioner, along

with the other Holzman Machine employees, helped moved various tools and

supplies to the new shop. On the last day of the move, Friday, April 17, 2020,

several Holzman Machine employees, including Petitione r, Terry Carter

3 In the cours e of this matter, Petitioner also asserted that he suffered a back injury assisting

Holzman Machine move its shop to a new business location. (See paragraphs 19 through 21

below . ) The undersigned does not address any issues related to a potential worker ' s

compensation claim or Holzman Machine ' s other possible responsibilities associated with the

injury , as those disputes fall outside the scope of Petitioner ' s FCHR cause of action. Further,

the evidence in the record does not support a claim that Holzman Mac hine made any adverse

employment decisions based on Petitioner ' s alleged disability .

(another CNC machinist), and Jolinda and Russell Holzman were sitting

around a table in the new space having a pizza lunch. Mr. Kirchner, however,

would not join them. Petitioner claims that Mr. Kirchner announced that " he

did not want to s hare his meals with Hispanics. "

11. Petitioner asserted that he later reported Mr. Kirchner ' s comment to

Mr. Holzman. Petitioner claims that, upon hearing his complaint,

Mr. Holzman simply laughed and replied that Mr. Kirchner would get over it.

1 2 . Rega rding his termination, Petitioner expressed that May 5, 2020,

began like every other work day. He arrived a t Holzman Machine in the

morning and started cutting parts with his CNC machine. Soon, however,

Petitioner noticed that the parts he was producing we re not matching the

programmed dimensions. Petitioner stopped his machine to tr y to determine

the cause of the error. At that point, Petitioner attested that Mr. Carter

informed him that he had seen Mr. Kirchner in Petitioner ' s area tampering

with his CNC machine ' s input.

13. Later that day, around 1:00 p.m., Petitioner claimed that he saw

Mr. Kirchner and Mr. Holzman talking alone together in Mr. Holzman ' s work

space. Petitioner asserted that, unbeknownst to the two of them, he

overheard Mr. Kirchner conf ide to Mr. Holzman, " You don ' t really want any

Mexicans around here, right? " Petitioner testified that Mr. Holzman

responded, " You got that right. " Mr. Holzman then laughed like they were

sharing " a little joke. "

14. At that point, Petitioner interrupted the two of them. Mr. Kirchner

walked away.

15. Afterwards, at approximately 3:30 p.m., Mr. Holzman came up to

Petitioner and announced , " I think we ' re going to let you go. " Petitioner

asked him, " Why? " Mr. Holzman did not offer Petitioner a specific reaso n

other than to say that Holzman Machine needed a CNC programmer, not a

machinist. 4

16. Petitioner was confused why Mr. Holzman fired him. Petitioner

contends that, for the brief time he worked for Holzman Machine, he did a

good job and had no issues. Neit her was he ever disciplined or notified of any

performance problems. Petitioner concedes that he did make a few mistakes.

However, he was frustrated why Mr. Holzman did not show him any grace.

17. Petitioner was also critical of the short amount of time t hat Holzman

Machine allowed him to accustom himself with the CNC machine he was to

operate. Petitioner pointed out that Holzman Machine ' s move to the new

shop took about a week, which only left him just over two weeks to prove

himself. Petitioner further c ommented that Holzman Machine did not provide

him any orientation or training programs to familiarize him with its CNC

machines and standard procedures.

18. About a month following his termination, Petitioner represented that

he actually rebounded into a m ore favorable job after leaving Holzman

Machine. Petitioner was hired as a CNC mechani st for another company and

currently makes parts for the aerospace industry. Petitioner commented that,

unlike his Holzman Machine experience, he was provided three weeks of

training at the new job. His salary was also increased to $24 an hour.

Petitioner expressed that he has not received any complaints or negative

write ups in the year that he has worked with his new employer.

19. Finally, at the hearing, Petitioner als o complained that the Holzmans

refused to pay him for some additional handyman work that he performed for

the company. Petitioner explained that, during the move from the old shop,

Holzman Machine was forced to cut through an interior wall to free one of t he

CNC machines from the building. During the pizza lunch on the Friday after

4 Petitioner conveyed that a CNC programmer must be able to read and interpret blueprints

to produce the component s outlined in the program. Petitioner explained that a

pr ogrammer ' s job is " vastly different " from a machinist ' s job , which is primarily to operate

the CNC machine and produce the part(s) .

the move, Jolinda and Russell Holzman discussed how they were going to fix

the damage. Petitioner informed Mr. Holzman that he possessed the skills to

repair the wall. Petitioner testified that Mr. Holzman agreed to pay him

$985.00 as an independent contractor to perform the repairs.

20. Thereafter, on Monday, April 20, 2020, Ms. Holzman and Petitioner

drove together to Home Depot to purchase the supplies necessary to repair

the w all. They then travelled to the old shop, where Petitioner went to work.

Petitioner completed the work on the wall on Wednesday, April 22, 2020.

21. Petitioner asserts that the Holzmans never paid him for the repair

work. At the final hearing, Petitioner p roduced an invoice, billed to Russell

Holzman at Holzman Machine LLC for $985.00. The invoice records that

Petitioner performed sheetrock repair, framing, and painting of a lobby and

an office space. Petitioner testified that he sent the invoice to Holzman

Machine after he was terminated. However, he never received any payment

from Holzman Machine.

22. Both Jolinda and Russell Holzman testified at the final hearing. The

Holzmans are white.

23. Jolinda Holzman initially conveyed that she manages the office

administration tasks, including overseeing accounts, payroll, and shipping

operations for Holzman Machine. In her words, she does " everything but

make the parts. "

2 4 . Regarding Petitioner ' s time with the company, Jolinda relayed that

she had very little i nteraction with Petitioner while he worked at Holzman

Machine. She explained that her son, Russell, oversees the machine shop, as

well as the machinists . Jolinda also imparted that Petitioner was the first

Hispanic the company had ever hired.

2 5 . Jolinda t estified that she understood from her son that Holzman

Machine fired Petitioner based on his poor work on the CNC machine.

However, Jolinda disclosed that she had no firsthand knowledge of

Petitioner ' s job performance other than what her son told her. Joli nda further

divulged that Holzman Machine did not maintain any written records

documenting Petitioner ' s work competency or the reasons why the company

let him go. However, Jolinda offered that Holzman Machine tries to give new

employees at least 30 days to establish their competence.

2 6 . That being said, Jolinda stated that she was well aware of a customer

complaint that Holzman Machine received about Petitioner ' s work during his

short stint with the company. Jolinda voiced that, just after Holzman

Machine moved to the new shop, she received an email from a customer who

claimed that Holzman Machine incorrectly manufactured an order of over

1,000 parts. Based on the error, the parts were useless, and the customer

rejected the entire lot.

2 7 . Jolinda believed that Petitioner was solely responsible for the mistake

because the ruined parts were specifically cut at the CNC machine assigned

to him. Jolinda explained that, to rectify the problem, Mr. Holzman

instructed Petitioner to recast the entire order so that Holzman Machine

could refill the full request. Jolinda asserted that due to Petitioner ' s failure to

competently operate his CNC machine, Holzman Machine was forced to cover

the cost of the material used to make the replacement parts. Consequently,

Holzman Machine made no profit from the transaction.

2 8 . Regarding Petitioner ' s allegations about Mr. Kirchner, Jolinda denied

that Petitioner ever reported to her that Mr. Kirchner, or anyone else at

Holzman Machine, ever made racial comments at work. Similarly, Jolinda

testified that she had never personally heard Mr. Kirchner make racial

comments to or about Petitioner. She further denied that during the pizza

lunch, she heard or observed Mr. Kirchner make disparaging comments

about not eating with Petitioner.

2 9 . Jolinda was also skeptical of Petitioner ' s claim that he secretly

overheard Mr. Kirchner utter the word " Mexicans " in Mr. Holzman ' s office

just before he fired Petitioner. Jolinda explained that Mr. Holzman ' s " office "

is really just a desk planted in a n open area of the shop floor. There are no

walls. In addition, the CNC machine assigned to Petitioner was located just

next to Mr. Holzman ' s desk. Therefore, Jolinda believed that Mr. Holzman

would have been well aware of Petitioner ' s presence during any (alleged)

conversation he had with Mr. Kirchner.

30 . Finally, Jolinda relayed that Mr. Kirchner no longer works for

Holzman Machine. He voluntarily resigned in June 2020.

3 1 . Regarding Petitioner ' s comments about the move to the new shop and

his repair wo rk on the wall at the old shop, Jolinda confirmed that Holzman

Machine ' s relocation covered three days, from Wednesday, April 15, 2020,

through Friday, April 17, 2020. Jolinda relayed that she hired movers to

transport the five CNC machines. For the remain ing office materials,

supplies, and tools, all the employees (including Petitioner) " chipped in " to

help pack up. After the move was completed that Friday, she and

Mr. Holzman treated everyone to pizza for lunch at the new location.

3 2 . Jolinda recalled di scussing the issue of the damaged wall during the

pizza lunch. She explained that a wall had been torn open to extricate one of

the CNC machines from an indoor room. Consequently, once the move was

completed, the wall needed to be replaced. Therefore, the Holzmans accepted

Petitioner ' s offer to repair the wall.

3 3 . Jolinda stated that Petitioner worked on the wall for approximately

three days, from Monday, April 20, 2020, through Wednesday, April 22, 2020.

3 4 . Jolinda testified that she never had any disc ussion with Petitioner

about paying him extra for his repair services. Instead, Holzman Machine

allowed Petitioner to work on the wall during his normal business hours (7:00

a.m. through 3:30 p.m.). Therefore, she asserted that Holzman Machine was

only obl igated to pay Petitioner his agreed daily wage ($20 per hour) for the

time he spent at the old shop.

3 5 . Jolinda further denied that Holzman Machine ever received

Petitioner ' s $985 invoice for his repair work. (Jolinda stated that the first

time she saw the bill was about a month before the final hearing.)

3 6 . On the other hand, Jolinda agreed with Petitioner ' s representation

that he could not operate his CNC machine during that time he spent

repairing the wall. Jolinda further agreed that Holzman Machin e has no

formal training program. Consequently, Jolinda voiced that Holzman

Machine tries to hire e xperienced employees. Based on the prior experience

Petitioner included on his resume, Holzman Machine expected him to know

how to perform the job of a CNC m achinist when he was hired .

3 7 . Russell Holzman ' s testimony echoed his mother ' s on a number of

points. Initially, Mr. Holzman relayed that Holzman Machine manufactures

parts for a number of industries. Currently, the majority of its customers

come from the aerospace industry.

3 8 . As his mother stated, Mr. Holzman explained that he manages the

machining and shop operations, while his mother handles the company ' s

office administration. Mr. Holzman remarked that, for a typical work order,

Holzman Machine rece ives blueprints or drawings from a customer. He then

designates a CNC machinist to fill the order.

3 9 . At the final hearing, Mr. Holzman testified that he made the decision

to terminate Petitioner. Mr. Holzman asserted that he fired Petitioner based

on his poor performance. Specifically, Mr. Holzman expressed that Petitioner

had difficulty completing the " setup " of his CNC machine on his own.

Mr. Holzman explained that he expected the CNC machinists working for

him to perform the day - to - day setups of their machines. Mr. Holzman

commented that if a CNC machinist fails to properly set up the CNC

machine, then his machine will not produce good parts. Mr. Holzman further

asserted that Petitioner did a bad job checking the quality of his work, and he

continually made mistakes.

40 . Mr. Holzman testified that when he hired Petitioner, based on his

prior experience, he expected Petitioner to possess the knowledge and

experience to competently operate a CNC machine. However, Mr. Holzman

quickly observed that Petitione r struggled to properly accomplish this task.

4 1 . Mr. Holzman relayed that Petitioner ' s deficiencies became clear after a

customer notified Holzman Machine that certain parts his company produced

were out of compliance. Upon review, Mr. Holzman quickly re alized that the

dimensions of the parts were " coming up short. " Mr. Holzman traced the

miscast parts to Petitioner ' s CNC machine. Mr. Holzman suspected that

Petitioner incorrectly set up his machine and failed to ensure that the parts

he produced were " in tolerance " throughout the manufacturing process. As a

result, t he parts in question fell out of conformity by u p to 1/8th of an inch.

Mr. Holzman believed that Petitioner should have caught the error. Instead,

Petitioner produced over 1,000 bad parts, whic h effectively became nothing

more than scrap. Mr. Holzman expressed that Petitioner ' s error cost the

company approximately $2,000, which Holzman Machine was forced to spend

to acquire replacement material and stock to recut new parts.

4 2 . At the final h earing, Mr. Holzman acknowledged that other CNC

machinists at Holzman Machine made mistakes when operating their

machines, including both Mr. Kirchner and Mr. Carter. He further agreed

that it is not uncommon to see " minimal " errors in the industry. Howeve r,

Mr. Holzman declared that none of the other Holzman Machine employees

had produced such a " large quantity " of bad parts as Petitioner did during his

error. Mr. Holzman commented that Petitioner ' s mistake was not " small. "

4 3 . Mr. Holzman disavowed heari ng Mr. Kirchner make any racist

remarks to or about Petitioner. Mr. Holzman specifically denied hearing

Mr. Kirchner refer to Petitioner by another Hispanic name or speak in a fake

Spanish accent. Mr. Holzman further denied that he heard Mr. Kirchner say

t hat he would not " eat with Mexicans " at the pizza lunch.

4 4 . Mr. Holzman expressly refuted the allegation that Mr. Kirchner made

any comments to him regarding whether Mexicans should be allowed to work

at his company. Mr. Holzman also declared that Mr. Ki rchner had no input or

influence on his decision to fire Petitioner.

4 5 . Finally, Mr. Holzman denied that anyone at Holzman Machine ever

treated Petitioner differently because of his race. Mr. Holzman maintained

that neither he nor his mother would tolera te such behavior. Mr. Holzman

expressed that, as far as he knew, everyone in his shop got along well.

Mr. Holzman insisted that he and his mother treat all their employees with

fairness and kindness.

4 6 . Regarding Petitioner ' s work on the wall at the old s hop, Mr. Holzman

supported his mother ' s testimony that Petitioner performed all repairs

during his normal (daytime) work hours. Mr. Holzman specifically denied

that Holzman Machine entered into any separate agreement to pay

Petitioner an additional amount for his repair work. Further, like his mother,

Mr. Holzman denied that he was aware of, or had ever received, Petitioner ' s

$985 invoice.

4 7 . Petitioner Rebuttal : During his testimony, Petitioner offered an

explanation for the faulty parts that led to the customer complaint. Petitioner

stated that about one week before Holzman Machine fired him, he found that

his CNC machine was " messing up. " For some reason, the output was

incorrect. Petitioner stated that just before the issue started, he had

momentarily stepped away from his workspace. When he returned, he saw

Mr. Kirchner leaving Petitioner ' s CNC machine. When Petitioner inspected

his CNC machine, Petitioner claims that he saw that some of the controls had

been manipulated without his knowledge. Petition er promptly recalibrated

the controls. However, when Petitioner later learned that a large order that

he had produced was miscast, he suspected that Mr. Kirchner had

deliberately sabotaged his machine. Petitioner asserted that he informed

Mr. Holzman that someone had changed the dimensions of his CNC machine.

However, once again, Mr. Holzman was not helpful and took no action,

except, as it turned out, to fire Petitioner.

4 8 . As a final witness, Holzman Machine called Terry Carter to testify on

its behalf . Mr. Carter has worked continuously for Holzman Machine since

February 2020, including the period of time during which Petitioner worked

for the company. Mr. Carter is white.

4 9 . Like Petitioner, Holzman Machine hired Mr. Carter as a CNC

machinist . Unlike Petitioner, Mr. Carter had no machinist experience when

he joined the company. (Mr. Carter also began at the lower rate of pay of

$13.00 an hour.) Consequently, after he started, Mr. Carter stated that

Mr. Holzman and Mr. Kirchner trained him how to opera te a CNC machine.

By the time Holzman Machine hired Petitioner, Mr. Carter was

independently running his own machine.

50 . Mr. Carter admitted that he " made a bad part every now and then " as

he learned how to use the CNC machine. He reflected that if he mad e a

mistake, he simply " moved forward " and " tried not to let it happen again. "

Despite his periodic mistakes, however, Mr. Carter stated that Holzman

Machine never issued him a written warning or threatened to fire him.

5 1 . Regarding Petitioner ' s complaint s about Mr. Kirchner, contrary to

Petitioner ' s allegations, Mr. Carter testified that he never heard

Mr. Kirchner make any racial comments while working at Holzman Machine.

Neither did he hear Mr. Kirchner call Petitioner a Hispanic name or speak in

a fake Spanish accent. Similarly, Mr. Carter denied hearing Mr. Kirchner

announce during the pizza lunch that he would not eat with Mexicans.

5 2 . Finally, Mr. Carter denied ever seeing Mr. Kirchner loitering next to

the CNC machine that Petitioner operated. Mr. Carter further denied ever

telling Petitioner that Mr. Kirchner surreptitiously changed his CNC

machine ' s controls.

5 3 . Based on the competent substantial evidence in the record, the

preponderance of the evidence does not establish that Holzman Machine

d iscriminated against Petitioner based on h is race, national origin, disability,

or in retaliation for h is complaint of discrimination. The testimony of Jolinda

Holzman and Russell Holzman explaining the circumstances of Petitioner ' s

termination from Holzma n Machine is credible and is credited. The

Holzmans persuasively explained that the reason Holzman Machine fired

Petitioner on May 5, 2020, was due to issues they experienced with

Petitioner ' s operation of the CNC machine. Accordingly, Petitioner failed to

meet h is burden of proving that Holzman Machine committed an unlawful

employment action against h im in violation of the FCRA.

C ONCLUSIONS OF L AW

5 4 . The Division of Administrative Hearings has jurisdiction over the

parties and the subject matter of this cause pursuant to sections 120.569,

120.57(1), and 760.11(7), Florida Statutes. See also Fla. Admin. Code R. 60Y -

4.016.

5 5 . Petitioner brings this matter alleging that Holzman Machine

discriminated against him based on his race and national origin in viola tion

of the FCRA. 5

5 6 . The FCRA protects individuals from discrimination in the workplace.

See §§ 760.10 and 760.11, Fla. Stat. Section 760.10 states, in pertinent part:

(1) It is an unlawful employment practice for an

employer:

(a) To discharge or to fa il or refuse to hire any

individual, or otherwise to discriminate against any

individual with respect to compensation, terms,

conditions, or privileges of employment, because of

such individual ' s race, color, religion, sex,

pregnancy, national origin, age, handicap, or

marital status.

5 In his initial Charge of Discrimination, Petitioner also complained that Holzman Machine

discriminated against him based o n a disability and in retaliation. At the final hearing,

however, Petitioner ' s evidence and testimony specifically focused on discrimination against

his race (Hispanic) and national origin (Mexico). Accordingly, the Recommended Order in

this matter is appr opriately confined to an analysis of those allegations. In any event, the

evidence in the record does not support a claim that Holzman Machine made any adverse

employment decisions based on Petitioner ' s alleged disability or in retaliation for his

particip ation in a protected act.

5 7 . Section 760.11(7) permits a party for whom the Commission

determines that there is not reasonable cause to believe that a violation of

the FCRA has occurred to request an administrative hearing before DOAH.

Following an a dministrative hearing, if the Administrative Law Judge

( " ALJ " ) finds that a discriminatory act has occurred, the ALJ shall issue an

appropriate recommended order to the C ommission prohibiting the practice

and recommending affirmative relief from the effect s of the practice,

including back pay. § 760.11(7), Fla. Stat.

5 8 . The burden of proof in an administrative proceeding, absent a

statutory directive to the contrary, is on the party asserting the affirmative of

the issue. Dep ' t of Transp. v. J.W.C. C o ., 39 6 So. 2d 778 (Fla. 1st DCA 1981);

see also Dep ' t of Banking & Fin., Div. of Sec. & Investor Prot. v. Osborne

Stern & Co. , 670 So. 2d 932, 935 (Fla. 1996)( " The general rule is that a party

asserting the affirmative of an issue has the burden of presenting e vidence as

to that issue. " ). The preponderance of the evidence standard is applicable to

this matter. See § 120.57(1)(j), Fla. Stat.

5 9 . The FCRA is patterned after Title VII of the Civil Rights Act of 1964,

as amended. Accordingly, Florida courts hold tha t federal decisions

construing Title VII are applicable when considering claims under the FCRA.

Harper v. Blockbuster Entm ' t Corp. , 139 F.3d 1385, 1387 (11th Cir. 1998);

Valenzuela v. GlobeGround N. Am., LLC , 18 So. 3d 17, 21 (Fla. 3d DCA

2009); and Fla. S tate Univ. v. Sondel , 685 So. 2d 923, 925 n.1 (Fla. 1st DCA

1996).

60 . Discrimination may be proven by direct, statistical, or circumstantial

evidence. Valenzuela , 18 So. 3d at 22. Direct evidence is evidence that, if

believed, would prove the existence of discriminatory intent behind the

employment decision without any inference or presumption. Denney v. City of

Albany , 247 F.3d 1172, 1182 (11th Cir. 2001); see also Holifield v. Reno , 115

F.3d 1555, 1561 (11th Cir. 1997). Courts have held that "' only the m ost

blatant remarks, whose intent could be nothing other than to discriminate È '

will constitute direct evidence of discrimination. " Damon v. Fleming

Supermarkets of Fla., Inc. , 196 F.3d 1354, 1358 - 59 (11th Cir. 1999)(citations

omitted).

6 1 . The record in this matter does not contain direct evidence of race or

national origin discrimination on the part of Holzman Machine. Similarly,

the record in this proceeding contains no statistical evidence of

discrimination by Holzman Machine.

6 2 . In the absence of dir ect or statistical evidence of discriminatory intent,

Petitioner must rely on circumstantial evidence to prove a claim of

discrimination. For discrimination causes of action involving circumstantial

evidence, Florida courts follow the three - part, burden - sh ifting framework set

forth in McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973), and its

progeny. Valenzuela , 18 So. 3d at 21 - 22; see also St. Louis v. Fla. Int ' l Univ. ,

60 So. 3d 455, 458 (Fla. 3d DCA 2011).

6 3 . For the first part of an action allegin g race or national origin

discrimination, Petitioner bears the burden of establishing, by a

preponderance of the evidence, a prima facie case of discrimination. To

establish a prima facie case, Petitioner must show that: (1) he belongs to a

protected class (race or national origin); (2) he was qualified for his position

(CNC machinist); (3) he was subjected to an adverse employment action; and

(4) his employer treated similarly - situated employees outside of his protected

class more favorably than he was tre ated. See McDonnell Douglas , 411 U.S.

at 802 - 04; Burke - Fowler v. Orange Cty. , 447 F.3d 1319, 1323 (11th Cir. 2006).

6 4 . Demonstrating a prima facie case is not difficult, but rather only

requires Petitioner " to establish facts adequate to permit an inferen ce of

discrimination. " Holifield , 115 F.3d at 1562.

6 5 . If Petitioner establishes a prima facie case, he creates a presumption

of discrimination. At that point, the burden shifts to the employer to

articulate a legitimate, non - discriminatory reason for tak ing the adverse

action. Valenzuela , 18 So. 3d at 22. The reason for the employer ' s decision

should be clear, reasonably specific, and worthy of credence. Dep ' t of Corr. v.

Chandler , 582 So. 2d 1183, 1186 (Fla. 1st DCA 1991). The employer has the

burden of production, not the burden of persuasion, to demonstrate to the

finder of fact that the decision was non - discriminatory. Flowers v. Troup Cty. ,

803 F.3d 1327, 1336 (11th Cir. 2015). This burden of production is

" exceedingly light. " Holifield , 115 F.3d at 1 564. The employer only needs to

produce evidence of a reason for its decision. It is not required to persuade

the trier of fact that its decision was actually motivated by the reason given.

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

6 6 . If t he employer meets its burden, the presumption of discrimination

disappears. The burden then shifts back to Petitioner to prove that the

employer ' s proffered reason was not the true reason but merely a " pretext "

for discrimination. Combs v. Plantation Patte rns , 106 F.3d 1519, 1538 (11th

Cir. 1997); Valenzuela , 18 So. 3d at 25.

6 7 . In order to satisfy this final step of the process, P etitioner must show

" directly that a discriminatory reason more likely than not motivated the

decision, or indirectly by showin g that the proffered reason for the È decision

is not worthy of belief. " Chandler , 582 So. 2d at 1186 (citing Tex. Dep ' t of

Cmty. Aff. v. Burdine , 450 U.S. 248, 252 - 56 (1981)). The proffered explanation

is unworthy of belief if P etitioner demonstrates " suc h weaknesses,

implausibilities, inconsistencies, incoherencies or contradictions in the

employer ' s proffered legitimate reasons for its actions that a reasonable

factfinder could find them unworthy of credence. " Furcron v. Mail Ctrs. Plus,

LLC , 843 F.3d 12 95, 1313 (11th Cir. 2016); see also Reeves v. Sanderson

Plumbing Prods., Inc. , 530 U.S. 133, 143 (2000). P etitioner must prove that

the reasons articulated were false and that the discrimination was the real

reason for the action. City of Miami v. Hervis , 65 So. 3d 1110, 1117 (Fla. 3d

DCA 2011)(citing St. Mary ' s Honor Ctr . , 509 U.S. at 515)( " [A] reason cannot

be proved to be ' a pretext for discrimination ' unless it is shown both that the

reason was false, and that discrimination was the real reason. " ).

6 8 . Despite the shifting burdens of proof, " the ultimate burden of

persuading the trier of fact that the [respondent] intentionally discriminated

against the [petitioner] remains at all times with the [petitioner]. " Burdine ,

450 U.S. at 253; Valenzuela , 18 So. 3d at 22.

6 9 . Applying the burden - shifting analysis to the facts found in this

matter, Petitioner established a prima facie case that Holzman Machine

discriminated against him based on his race and national origin. Initially,

Petitioner belongs to a prote cted class (Hispanic/Mexican). He was also

subject to an adverse employment action in that he was discharged from the

company.

70 . Petitioner further persuasively demonstrated that he was qualified to

perform the duties of a CNC machinist. To demonstrate that he was qualified

for the position, Petitioner " need only show that he or she satisfied an

employer ' s objective qualifications. " Vessels v. Atlanta Indep. Sch. Sys. , 408

F.3d 763, 769 (11th Cir. 2005). While Petitioner may not have ultimately met

Holzm an Machine ' s expectations for its CNC mechanics, Petitioner did show

that he possessed the experience and knowledge to proficiently operate a

CNC machine and manufacture parts using the same.

7 1 . Regarding the fourth element, Petitioner also presented suff icient

evidence to show that Holzman Machine treated similarly - situated, white

employees (Mr. Kirchner and Mr. Carter) differently. Holzman Machine hired

both Mr. Kirchner and Mr. Carter to work in the same position as Petitioner

(CNC machinists ). As with Petitioner, both employees operated their own

CNC machines and individually worked on customer orders. Further, the

testimony indisputably establishes that both Mr. Kirchner and Mr. Carter (as

well as Mr. Holzman) made mistakes while operating their CNC machines. 6

Yet, unlike Petitioner, Holzman Machine elected not to terminate either

Mr. Kirchner or Mr. Carter based on their missteps.

7 2 . However, despite the fact that Petitioner established a prima facie

case of discrimination, Holzman Machine articula ted a legitimate, non -

discriminatory reason for the adverse employment action about which

Petitioner complains. As discussed above, Holzman Machine ' s burden to

refute Petitioner ' s prima facie case is light. Holzman Machine met this

burden by providing pers uasive evidence that Petitioner made mistakes

while operating his CNC machine. In addition, Jolinda Holzman and

Mr. Holzman credibly testified that a customer complained to Holzman

Machine about one of Petitioner ' s mistakes, and Holzman Machine lost

money because of this mistake.

7 3 . Completing the McDonnell Douglas burden - shifting analysis,

Petitioner did not prove that Holzman Machine ' s stated reason for his

termination was not its true reason, but was merely a " pretext " for

discrimination based on his r ace or national origin. The evidentiary record

does not support a finding or conclusion that Holzman Machine ' s explanation

is false, implausible, inconsistent, or not worthy of credence. Mr. Holzman

convincingly attested that he fired Petitioner based on t he unacceptable work

product that he produced from his CNC machine. During the final hearing,

Mr. Holzman, as supported by Jolinda Holzman ' s testimony, credibly

identified a concrete example of an error Petitioner made that detrimentally

and financially im pacted the company. Mr. Holzman cogently explained why

Petitioner ' s poor performance, not his race or national origin, led directly to

Holzman Machine ' s decision to let Petitioner go.

6 In determining whether employees are similarly - situated for purposes of establishing a

prima facie case, " a plaintiff asserting an intentional - discrimination claim under McDonnell

Douglas must demonstrate that [he] and [his] pro ffered comparators were ' similarly situated

in all material respects. '" Lewis v. City of Union City, G a. , 918 F.3d 1213, 1218 (11th Cir.

2019) . Based on the evidence in the record, Mr. Kirchner and Mr. Carter meet this

requirement.

7 4 . To argue that Mr. Holzman ' s justification for terminating him was

s imply a " pretext, " Petitioner advances that the real reason Mr. Holzman

fired him was because Petitioner overheard him sharing racially charged

comments with an overtly racist co - worker (Mr. Kirchner). However, the out -

of - court statements Petitioner allege s that Mr. Kirchner uttered to

Mr. Holzman in Mr. Holzman ' s office space are clearly hearsay, and thus

unreliable as substantive evidence. See § 90.801(1)(c), Fla. Stat. While the

Administrative Procedure Act does allow hearsay evidence to be " used for the

purpose of supplementing or explaining other evidence, È it shall not be

sufficient in itself to support a finding unless it would be admissible over

objection in civil actions. " § 120.57(1)(c), Fla. Stat.

7 5 . During the final hearing, Petitioner did not present any exception to

the hearsay rule which would allow the admissibility of Mr. Kirchner ' s out - of -

court statements as factual findings. Further, no evidence was produced from

any witness (in particular , Mr. Kirchner who did not appear at the hearing)

that substantiated any of the objectionable comments that Petitioner claims

he heard. Instead, Mr. Holzman credibly testified that he never participated

in a racially offensive conversation with Mr. Kirchner in his office. In

addition, the fact that Mr. Ho lzman ' s office is located in an open area of the

shop floor casts doubt on Petitioner ' s representation that he secretly observed

the dialogue without Mr. Holzman ' s knowledge. Accordingly, the evidence in

the record does not support a finding that Mr. Holzm an and Mr. Kirchner

discussed Petitioner ' s race or national origin just before Mr. Holzman

informed Petitioner that he was fired. Neither do they prove Petitioner ' s

argument that Mr. Holzman ' s non - discriminatory explanation for

terminat ing Petitioner was m erely a pretext. 7

7 The undersigned recogn izes that the statements attributed to Mr. Holzman might be

offered into evidence as an admission by a party opponent under section 90.803(18) , Florida

Statutes . However, as stated above, Mr. Holzman credibl y testified that he did not make or

adopt any com ments to or from Mr. Kirchner regarding Petitioner ' s race. Mr. Holzman also

persuasively stated that neither Petitioner ' s race n or national origin played any part in his

decision to fire Petitioner .

7 6 . The undersigned finds that the comments Mr. Kirchner allegedly

made to Petitioner more accurately fall into the category of " stray remarks, "

and no evidence supports attributing those offensive comments to Holzman

Machine. See Parri s v. Keystone Foods, LLC , 959 F. Supp. 2d 1291, 1308

(N.D. Ala. 2013)( " Stray remarks in the work place ... unrelated to the

decisional process itself [cannot] suffice to satisfy the plaintiff ' s burden. " ) No

evidence shows that Mr. Kirchner had any authorit y, responsib ilit y, or role in

Mr. Holzman ' s decision to fire Petitioner. Consequently, because

Mr. Kirchner ' s (alleged) isolated and remote comments about Petitioner ' s

name, accent, or lunch plans cannot be tied to Holzman Machine ' s decisional

process to t erminate Petitioner, they do not establish pretext. See Rojas v.

Florida , 285 F.3d 1339, 1343 (11th Cir. 2002)( Because the alleged comment

was " a n isolated comment, unrelated to the decision to fire [the plaintiff], it,

alone, is insufficient to establish a material fact on pretext. " ).

7 7 . Finally, Petitioner contends that Mr. Holzman never gave him a fair

chance to prove himself as a CNC machinist. Petitioner rightly points to the

fact that, based on the company ' s relocation, he was afforded less than 30

d ays to work at his CNC machine. Petitioner also correctly asserts that

Holzman Machine never spent the time to orient or train him on how it

expected him to operate its CNC machines. In addition, Petitioner

substantiated his position that all CNC machinist at Holzman Machine (if

not industry - wide) commonly made mistakes. Therefore, he claims it was not

fair for Mr. Holzman to single him out for termination.

7 8 . However, to show pretext, Petitioner " must meet each proffered reason

' head on and rebut it, and [he] cannot succeed by simply quarreling with the

wisdom of that reason. '" Furcron , 843 F.3d at 1313 - 14. " Unfair treatment,

absent discrimination based on race, sex, or national origin, is not an

unlawful employment practice under Title VII. " Coutu v. Mar tin Cty . Bd. of

Cty . Com m ' rs , 47 F.3d 1068, 1074 (11th Cir. 1995) " Title VII is not a shield

against harsh treatment at the workplace. È The employer may fire an

employee for a good reason, a bad reason, a reason based on erroneous facts,

or for no reason at all, as long as its action is not for a discriminatory reason. "

Nix v. WLCY Radio/Rahall Communications , 738 F.2d 1181, 1187 (11th Cir.

1984).

7 9 . The fact that Petitioner may have been qualified to perform

competently as a CNC mechani st does not mean t hat he actually did so. Nor

does it mean that Petitioner automatically met the standard that Holzman

Machine expected of its CNC mechan ist . Based on the guiding case law, the

undersigned ' s function is not to second - guess whether Holzman Machine ' s

decision to fire Petitioner was fair. See Chapman v. AI Transp. , 229 F.3d

1012, 1030 (11th Cir. 2000). Instead, the undersigned is charged with

determining whether the adverse employment action was motivated by

discriminatory intent. Based on the facts adduced at t he final hearing, the

undersigned concludes that Holzman Machine ' s decision was not.

80 . Therefore, even though Petitioner presented enough evidence to

establish a prima facie case of discrimination, he did not produce sufficient

facts or testimony to prov e that Holzman Machine treated him differently

because of his protected class. Consequently, Petitioner did not meet his

ultimate burden of proving, by a preponderance of the evidence, that

Holzman Machine ' s decision affecting his employment was based on

d iscrimination.

8 1 . In sum, to establish discrimination, Petitioner attempts to connect

Holzman Machine ' s adverse employment action to the fact that he is from

Mexico. However, the evidence and testimony in the record does not, either

directly or circumsta ntially, link Petitioner ' s termination with actual

discriminatory animus. On the contrary, Holzman Machine credibly and

persuasively explained that its decision to fire Petitioner was solely based on

Petitioner ' s failure to properly operate his CNC machine . Consequently,

Petitioner failed to meet his burden of proving that Holzman Machine

discriminated against him based on his race or national origin. Accordingly,

Petitioner ' s Petition for Relief must be dismissed.

R ECOMMENDATION

Based on the foregoing Fin dings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Florida Commission on Human Relations issue a

final order finding that Petitioner, Edgardo Ruiz Valesco, did not prove that

Respondent, Holzman Machine, committed an unlawful employment actio n

against him; and dismissing his Petition for Relief from an unlawful

employment practice.

D ONE A ND E NTERED this 18th day of June , 2021 , in Tallahassee, Leon

County, Florida.

S

J. B RUCE C ULPEPPER

Administrative Law Judge

1230 Apalachee Parkway

Tallahas see, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of June , 2021 .

C OPIES F URNISHED :

Tammy S. Barton, Agency Clerk Russell Holzman

Florida Commission on Human Relations Holzman Machine, LLC

4075 Esplanad e Way , Room 110 Suite G

Tallahassee, Florida 32399 - 7020 12900 Automobile Boulevard

Clearwater, Florida 33762

Jason Imler, Esquire Jolinda Dianna Holzman

Printy & Printy Holzman Machine, LLC

Suite A Suite G

3411 West Fletcher Avenue 12900 Automobile Boulevard

Tampa, Florida 33618 Clearwater, Florida 33762

Cheyanne Costilla, Gen eral Co unsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallah assee, Florida 32399

N OTICE OF R IGHT T O S UB MIT E XCEPTIONS

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.