22-000437 Kevin Cruz vs. Amazon Status: Closed Recommended Order on Monday, August 1, 2022.

Summary: FCHR correctly determined that it lacked jurisdiction to investigate Petitioner's Complaint because he was not an employee of Respondent on the date of the alleged adverse action.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

K EVIN C RUZ ,

Petitioner ,

vs. Case No. 22 - 0437

A MAZON ,

Respondent .

/

R ECOMMENDED O RDER

This case came before Administrative Law Judge (ÑALJÒ) Darren A.

Schwartz of the Division of Administrative Hearings (ÑDOAHÒ) for final

hearing by Zoom conference on May 25, 2022.

A PPEARANCES

For Petitioner: Kevin Cruz , pro se

121 S outhwest 4 th A venue

Hallandale, Florida 33009

For Respondent: J ames W. Seegers, Esquire

Baker & Hostetler, LLP

200 South Orange Avenue , Suite 2300

Or lando, Florida 32801

S TATEMENT OF T HE I SSUE

Whether the Florida Commission on Human Relations (ÑFCHRÒ) correctly

determined that it lacked jurisdiction to investigate Petitioner , Kevin CruzÔs

(ÑPetitionerÒ) , Employment Complaint of Discrimination (ÑComplaintÒ)

because he was not an employee of Respondent, Amazon (ÑRespondentÒ) , on

the date of the alleged adverse action .

P RELIMINARY S TATEMENT

On July 21, 202 1 , Petitione r filed a Complaint with FCHR alleging that

Respondent discriminated against him because of his race and disability . On

January 28, 2022, FCHR notified the parties that it lacked jurisdiction to

investigate PetitionerÔs Complaint. Dissatisfied with FCHRÔs decision,

Petitioner timely filed a Petition for Relief with FCHR on February 9, 2022.

On February 10, 2022, FCHR referred the matter to DOAH to assign an ALJ

to conduct the final hearing.

On March 1, 2022, the undersigned entered an Order setting the final

hearing for May 16, 2022 , by Zoom conference. On April 19, 2022, Respondent

filed a motion for a brief continuance of the final hearing, which Petitioner

opposed. On April 21, 2022, the u ndersigned entered an Order granting the

motion, resetting the final hearing for May 25, 2022. The final hearing was

held on May 25, 2022 , with both parties present. At the hearing, Petitioner

testified on his own behalf. PetitionerÔs Exhibits 1 through 11 were received

into evidence. Respondent presented the testimony of Anyea Debose.

RespondentÔs Exhibits 1 through 15 were received into evidence.

The one - volume final hearing Transcript was filed at DOAH on July 14,

2022. The parties timely filed proposed recommended orders, which were

given consideration in the preparation of this Recommended Order. Unless

otherwise indicated, all statutory references are to the 202 0 version of the

Florida Statutes.

F INDINGS OF F ACT

1. In March 2020, Petitioner was an employee of Respondent at its MIA - 5

facility, located in Doral, Florida. At that time, Anyea Debose was employed

by Respondent as the Senior HR Business Partner. As the Senior HR

Business Partner , Ms. Debose handled a variety of employee matters ,

includin g conduct ing investigations of employee - alleged violations of

RespondentÔs policies . Ms. Debos e Ôs territory included the MIA - 5 facility.

2. Respondent has a zero - tolerance d rug and a lcohol policy, which

prohibits employees from smoking marijuana at RespondentÔs facilit ies .

3. In late March 2020, Ms. Debose received a report that Petitioner was

observed smoking marijuana while on duty , and on Amazon property , at the

MIA - 5 facility. As a result of the report, Ms. Debose commenced an

investigation of P etitioner . Th e same day Ms. Debose notified Petitioner of

the allegation, Petitioner requested, and was granted, COVID - 19 related

leave until July 1, 2020.

4. Respondent also has a zero - tolerance d iscrimination and h arassment

p olicy.

5 . While Petitioner w as on leave, Ms. Debose received multiple racist

emai ls from Petitioner u sing the ÑNÒ word.

6. As a result of PetitionerÔs repeated use of the ÑNÒ word in the emails,

Ms. Debose expanded her investigation of Petitioner to include a violation of

RespondentÔs zero - tolerance d iscrimination and h arassment policy.

7 . On July 1, 2020, the date Petiti oner Ôs leave expired , Ms. Debose

contacted Petitioner by e - mail, to continue her investigation into PetitionerÔs

alleged misconduct involving smoking marijuana while at work on

RespondentÔs property and the repeated racist emails he sent to her.

8 . Petit ioner responded to Ms. Debose by email , asserting that his leave

was not scheduled to end while c ontinu ing his repeated use of the ÑNÒ word.

9. Ms. Debose had no reason to believe that the emails received from

Petitioner were not sent by Petitioner. PetitionerÔs assertion that his email

had been hacked , and that he did not send the racist emails , is rejected as

unpersuasive and is not credible. The testimony of Ms. Debose that the

emails were received from Petitioner is more persuasive and credited ov er the

testimony of Petitioner, which was unpersuasive and is not credited. In

reaching this conclusion, the undersigned had the distinct opportunity to

observe the witnesses when testifying and their demeanor.

10. In any event, Ms. Debose closed her inv estigation based on the

evidence received, concluding that Petitioner violated RespondentÔs zero -

tolerance drug and alcohol and zero - tolerance harassment and discrimination

policies. Each of these policies require termination for the first offense.

Accordi ngly, Petitioner was terminated from Respondent, effective July 8,

2020 , and was not eligible for rehire.

11. On March 24, 2021, more than eight months after his termination,

Petitioner returned to RespondentÔs MIA - 5 facility. Respondent contacted the

po lice, who arrived at the facility and issued Petitioner a trespass warning.

In his Complaint, Petitioner alleged Respondent discriminated against him,

based on his race and disability, for contacting t he police in response to

showing up at RespondentÔs MIA - 5 facility on March 24, 2021. PetitionerÔs

Complaint filed with FCHR on July 21, 2021, alleging race and disability

discrimination, is based solely upon his alleged mistreatment by Respondent

at the MIA - 5 facility on March 24, 2021.

1 2 . In an effort to demonstrate that FCHR had jurisdiction to investigate

his Complaint, Petitioner asserts that h is employment was reinstated on

March 17 , 2021 . However, PetitionerÔs testimony is rejected as unpersuasive

and is not credible. The testimony of Ms. Debose that Petitioner was never

reinstated after his termination , and that he was not eligible for rehire , is

more persuasive and credited over the testimony of Petitioner, which was

unpersuasive and is not credited. In reaching this conclusion, the

undersigned had the distinct opportunity to observe the witnesses when

testifying and their demeanor.

C ONCLUSIONS OF L AW

1 3 . DOAH has personal and subject matter jurisdiction in this proceeding

pursuant to sections 120.569 , 120.57(1), and 760.11 Florida Statutes.

1 4 . The Florida Civil Rights Act of 1992 (ÑFCRAÒ), chapter 760, prohibits

discrimination in the workplace. Among other things, the FCRA makes it

unlawful for an employer :

To discharge or to fail 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 individualÔs race, color, religion, sex,

pregnancy, national origin, age, handicap, or marital

status.

§ 760.10(1)(a), Fla. Stat.

1 5 . Turning to the instan t case, P etitioner Ôs Complaint is premise d on a

discrete act of alleged discrimination occurring on March 24 , 2021 , more than

eight months after his termination .

16 . In an effort to demonstrate that FCHR had jurisdiction to investigate

his Complaint , Petitioner argues that he was reinstated by Respondent on

March 17, 2021, and therefore, he was an employee of Respondent on

March 24 , 2021 . As detailed above, Petitioner was n ever reinstated .

Petitioner cites no legal authority which would authorize FCHR to

investigate his Complaint of post - employment discrimination under the

particular facts of this case.

17 . In sum, Petitioner failed to establish at the final hearing that he was

employed by Respondent at the time of the alleged conduct by Respondent at

its MIA - 5 facility on March 24, 2021. To the contrary, the persuasive and

credible evidence presented at hearing demonstrates that Petitioner was

terminated from employment by Respondent more t han eight months earlier

on July 8, 2020 , that he was not eligible for rehire, and that he was never

reinstated . Accordingly, FCHR correctly determined that it lacked

jurisdiction to investigate PetitionerÔs Complaint.

R ECOMMENDATION

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

R ECOMMENDED that the Florida Commission on Human Relations enter a

final order dismissing the Petition for Relief.

D ONE A ND E NTERED this 1st day of August , 2022 , in Tallahassee, Leon

County, Florida.

S

D ARREN A. S CHWARTZ

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of August , 2022 .

C OPIES F URNISHED :

Tammy S. Barton, Agency Clerk Kevin Cruz

Florida Commission on Human Relations 121 Southwest 4th Avenue

4075 Esplanade Way , Room 110 Hallandale, Florida 33009

Tallahassee, Florida 32399 - 7020

James W. Seegers, Esquire

Nicole Phillips, Esquire Baker & Hostetler, LLP

Littler Mendelson, P.C. 200 South Orange Avenue , Suite 2300

2301 McGee Street , 8th Floor Orlando, Florida 32801

Kansas City, Missouri 64108

Henry Graham, Attorney Supervisor

Mary Ellen Clark, Chief Legal Counsel Florida Commission on Human Relations

Florida Commission on Human Relations 4075 Esplanade Way , Room 110

4075 Esplanade Way , Room 110 Tallahassee, Florida 32399 - 7020

Tallahassee, Florida 32399 - 7020

N OTICE OF R IGHT T O S UBMIT 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.