STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN M. CARNEY, )

)

Petitioner, )

)

vs. ) CASE NO. 92-7529

)

CITY OF AVON PARK, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in Avon Park, Florida, on March 24, 1993, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Robert H. Grizzard, II

Post Office Box 992

Lakeland, Florida 33802-0992

For Respondent: Michael M. Disler

Trombley, Lobozzo, et al.

329 South Commerce Avenue Sebring, Florida 33870

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent discriminated against Petitioner on the basis of marital status in terminating his employment.

PRELIMINARY STATEMENT

By Charge of Discrimination executed July 15, 1991, Petitioner alleged that Respondent fired him because of alleged activities of his wife.

On November 13, 1992, the Florida Commission on Human Relations entered its Notice of Determination: No Cause.

Petitioner filed a Petition for Relief dated December 11, 1992, alleging that Respondent terminated his employment due to alleged illegal activities of his wife.

Respondent filed an Answer and Motion to Dismiss on January 19, 1993.

Ruling was reserved on the motion at the beginning of the final hearing. The motion is denied.

At the hearing, Petitioner called five witnesses and offered into evidence

12 exhibits. Respondent called no witnesses and offered into evidence one exhibit. All exhibits were admitted.

The transcript was filed on April 13, 1993. Respondent filed a proposed recommended order. All of Respondent's proposed findings have been adopted.

FINDINGS OF FACT

1. For several years, Petitioner was employed as the Fire Marshall and Fire Inspector for Respondent. He worked in Respondent's Fire Department where he had been employed for some time. His responsibilities included a variety of fire safety matters, including actual firefighting.

   
   

2. In April, 1990, the Code Enforcement Officer became ill, and the then- City Manager asked Petitioner to assume these duties. This job required the inspection of properties in the City and issuance of warning and citations for unsafe conditions, such as dilapidated buildings, abandoned cars, and overgrown vegetation obstructing traffic visibility.

   
   

3. Petitioner assumed the Code Enforcement duties and typically worked 60 hours per week in discharging all of his responsibilities. A promised raise never materialized, so when a new Fire Chief was hired, Petitioner asked him to try to obtain a raise for Petitioner. By this time, the City had also hired a new City Manager, George Von Drok.

   
   

4. Petitioner performed his job duties in an outstanding manner. He got along well with the Fire Chief and Mr. Von Drok, although he may have created some opposition in the community through his vigorous, but fair, enforcement of the City Code.

   
   

5. During 1990, Mr. Von Drok lost his administrative assistant due to budgetary pressures. Possibly in response to the Fire Chief's raising the issue of a salary increase for Petitioner, Mr. Von Drok discussed with Petitioner the possibility of a salary raise concurrent with the creation of a new Department of Code Enforcement. Mr. Von Drok was thinking about possibly having Petitioner serve part-time as Mr. Von Drok's administrative assistant.

   
   

6. Petitioner agreed to head the new Code Enforcement Department, which was established by act of the City Council on February 24, 1991. Petitioner's typical workday now ran from 8:00 am to 6:00 or 7:00 pm, plus firefighting on weekday nights and weekends.

   
   

7. Nothing unusual occurred during the first 60 days of the new department's existence. Although the City was facing budget problems, Mr. Von Drok discussed with Petitioner ideas about making his one-man department more efficient, but he never mentioned the possibility of eliminating the new department.

   
   

8. On April 24, 1991, when Petitioner arrived at work, he received a notice of suspension. Petitioner had just discovered that he had been named as a defendant in a civil action alleging that his wife had embezzled $130,000 from a bank where she had worked and alleging that Petitioner knew or reasonably should have known about the embezzlement. Petitioner had learned from the authorities of the alleged embezzlement only a day or two earlier.

9. In fact, Petitioner had no knowledge about any embezzlement committed by his wife, who had suddenly disappeared. His wife had embezzled the money, which Petitioner helped to find and return to the bank. Petitioner himself was never criminally prosecuted, but his wife was convicted of the charges.

   
   

10. Mr. Von Drok suspended Petitioner because of the civil charges against him. The suspension was without pay. Mr. Von Drok assured Petitioner that, if the allegations against him were cleared up, he would be reinstated to his job with back pay.

    
    

11. In the next few days, it became apparent that Petitioner had had no knowledge of his wife's activities and was entirely innocent. On the afternoon of May 9, 1991, Mr. Von Drok, the Fire Chief, and Petitioner met and discussed the duties of the Fire Marshall, Fire Inspector, and Code Enforcement Officer. Mr. Von Drok indicated that he wanted to move Petitioner back into the Fire Department and transfer the Code Enforcement duties elsewhere. Petitioner responded that that was fine with him.

    
    

12. The suspension was lifted May 10, 1991. But when Petitioner returned to work on the morning of May 10, he found that his department had been eliminated and his employment with Respondent terminated. Pursuant to the latest directive of Mr. Von Drok, Petitioner received full pay through that date, so that the suspension was effectively with pay.

    
    

13. Mr. Von Drok testified that Petitioner was terminated for budgetary reasons. Mr. Von Drok assigned the Code Enforcement responsibilities to the Police Department and the Fire Marshall and Fire Inspector duties to the Fire Department. The Fire Chief has had to assume the Fire Marshall and Fire Inspector duties because only the Fire Chief and Petitioner had the necessary training and certification to perform these duties.

    
    

14. Mr. Von Drok's testimony concerning why he eliminated Petitioner's department is not credible. The department was only created in late February, 1991. Mr. Von Drok testified that another department head, the Superintendent of Parks and Recreation, was terminated due to fiscal pressures on March 7, 1991. If fiscal pressures were already dictating the termination of department heads by the first week of March, it is unrealistic that Mr. Von Drok would have been creating new departments just a couple of weeks earlier. Respondent offers no evidence of unexpected financial pressures suddenly appearing in the two weeks between the creation of Petitioner's new department and the termination of the Superintendent of Parks and Recreation or later March, when Mr. Von Drok testified that he first considered the elimination of Petitioner's new department.

    
    

15. In fact, the Superintendent of Parks and Recreation was terminated because of unsatisfactory job performance. He had left keys to a City truck in the ignition. He had failed to open park restrooms before a major event. He had played basketball on City time. And he had never finished his two-year degree as he had promised when he took the job.

    
    

16. Likewise, Mr. Von Drok terminated Petitioner for reasons having nothing to do with financial pressures. Respondent terminated Petitioner due to his marital status. If Respondent had not been married to an embezzler, he would not have been terminated. There was no legitimate business reason for the termination of Petitioner.

17. Petitioner lost gross wages and benefits of $88,434.44 and received in other employment and unemployment compensation a total of $16,794.11 for a net loss of $71,640.33. However, these figures are somewhat overstated.

    
    

18. The claim for $2500 per year for two years for the loss of the use of a City-supplied car is not allowable because the City-supplied car would have been available only for City business or commuting--neither of which affected Petitioner following his termination.

    
    

19. The claim for $9225 in retirement benefits is not allowable because Respondent shall reinstate Petitioner with full credit, in terms of accrued benefits and vesting, under the City retirement plan for the time lost.

    
    

20. The claim for $584.44--evidently in uncovered medical expenses--is not allowable because Petitioner has failed to show that these expenditures would have been covered under a medical policy or, if covered, would not have represented deductible amounts.

    
    

21. The claims for $300 for school and $2225 in mileage expenses in searching for work are not allowable as they are not a component of back pay.

    
    

22. Last, the claim for an additional $1500 in salary for the second year is not allowable given the absence of evidence of such an across-the-board salary hike during the time in question.

    
    

23. The allowable claim for back pay is therefore $52,805.89.

    
    

24. Petitioner also obligated himself to pay his attorney a reasonable hourly rate plus costs.

    
    

    CONCLUSIONS OF LAW

    
    

25. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

    
    

26. Section 760.10(1)(a) provides that it is an unlawful employment practice for an employer to discharge any individual because of such individual's marital status.

    
    

27. Petitioner has proved that he was first suspended and later terminated due to his marital status. He was married to a person charged with a serious crime. Petitioner was fired for his wife's actions, not for any legitimate business reason, such as layoffs in response to mounting financial pressures on the City.

    
    

28. Pursuant to Section 760.10(13), Petitioner is entitled to a final order prohibiting the discriminatory practice, providing affirmative relief from the discriminatory practice, back pay for a period of up to two years prior to the filing of the complaint, and attorneys' fees.

    
    

29. Petitioner has shown that he has lost $52,805.89 in back pay. He has shown that he has incurred attorneys' fees and costs in connection with the prosecution of this case. However, these fees and costs must be segregated from the prosecution of another discrimination proceeding brought against Highlands County in DOAH Case No. 92-7524, in which Petitioner did not prevail.

Jurisdiction has been retained to address Respondent's liabilities for attorneys' fees and costs, if the parties are unable to reach a settlement on these issues.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Florida Commission on Human Relations enter a final order determining that the City of Avon Park committed an unlawful employment practice against Petitioner, prohibiting the commission of such a practice, awarding back pay of $52,805.89, requiring that Petitioner be hired for the next available job in the Avon Park fire department with pay and responsibilities generally commensurate with either of the last two jobs that Petitioner held with the City of Avon Park (or such lesser-paying, less responsible job that becomes available until such higher-paying, more responsible job becomes available), and awarding attorneys' fees and costs in the prosecution of the above-styled case.

ENTERED on April 26, 1993, in Tallahassee, Florida.

ROBERT E. MEALE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings on April 26, 1993.

COPIES FURNISHED:

Dana Baird, General Counsel

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149

Margaret Jones, Clerk

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149

Robert H. Grizzard, II

P.O. Box 992

Lakeland, FL 33802-0992

Michael M. Disler Trombley, Lobozzo, et al.

329 South Commerce Ave. Sebring, FL 33870

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 92-007529

Orders for Case No: 92-007529