STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WARREN D. BROWN, )

)

Petitioner, )

)

vs. ) CASE NO. 93-3994

) DADE COUNTY POLICE BENEVOLENT ) ASSOCIATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held in this case before Errol H. Powell, a duly designated Hearing Officer of the Division of Administrative Hearings, on November 5, 1993, in Miami, Florida.

APPEARANCES

For Petitioner: Warren D. Brown, pro se

630 Northwest 186th Street Miami, Florida 33169

For Respondent: Rhea P. Grossman, Esquire

2710 Douglas Road, Suite 300

Miami, Florida 33133-2749 STATEMENT OF THE ISSUES

The issue for determination at final hearing was whether Respondent discriminated against Petitioner based on his race (Black) in violation of the Florida Human Rights Act.

PRELIMINARY STATEMENT

On or about January 19, 1993, Warren D. Brown (Petitioner) filed a discrimination charge with the Florida Commission on Human Relations (Commission) against the Dade County Police Benevolent Association (Respondent). In essence, Petitioner who is one of Respondent's members alleged that, because of his race (black), Respondent did not provide him the same representation in his disciplinary action that Respondent provided to white officers who are also members of Respondent in their disciplinary actions.

After an investigation by the Commission, on July 1, 1993, it issued a notice of no cause determination. The Commission determined that, even though Petitioner had shown a prima facie violation of Florida's Human Rights Act of 1992, Respondent had shown legitimate nondiscriminatory reasons for its action complained of and that Petitioner had failed to show that Respondent's reasons were pretextual. Consequently, the Commission determined that there was no reasonable cause to believe that Respondent discriminated against Petitioner.

On July 16, 1993, Petitioner filed a petition for relief with the Commission. By notice dated July 19, 1993, Respondent was notified of the petition and of its requirement to file an answer.

On July 20, 1993, the matter was referred to the Division of Administrative Hearings for assignment of a Hearing Officer to conduct a formal hearing. On August 11, 1993, Respondent filed its answer with the Division, in essence denying that it discriminated against Petitioner. A formal hearing was scheduled on November 5, 1993, pursuant to notice.

At the hearing, Petitioner testified on his own behalf, presented the testimony of one witness and entered eight exhibits into evidence. Respondent presented the testimony of two witnesses and entered four exhibits into evidence.

A transcript of the formal hearing was ordered. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the conclusion of the hearing. The parties submitted proposed findings of fact and conclusions of law. All proposed findings of fact are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. At all times material hereto, the Dade County Police Benevolent Association (Respondent) was the collective bargaining agent for the bargaining unit of the City of Hialeah Police Department (CHPD).

   
   

2. Warren D. Brown (Petitioner) is a black male. At all times material hereto Petitioner was a law enforcement officer with the CHPD, a member of the bargaining unit and a dues paying member of the Respondent.

   
   

3. On or about May 11, 1992, Petitioner was attempting to exit a secured and locked double doorway located on the east side of the CHPD's building. Upon pushing a switch, a lock mechanism releases the lock, and a door can be opened. However, at this particular time, the lock was not immediately released. Petitioner applied greater force to the door, which caused it to swing open forcefully (when the lock did release) and strike another officer who was attempting to enter the building through the same door. Petitioner was heard to chuckle after exiting the door.

   
   

4. Approximately two to three days later (May 13 or 14, 1992), the officer who was struck by the door filed an internal complaint against Petitioner. The officer had discussed the incident with a CHPD sergeant who had had problems with the Petitioner in the past and who had filed several internal complaints against Petitioner. The officer alleged in his complaint that Petitioner intentionally hit him with the door.

   
   

5. The internal complaint was referred to CHPD's Internal Affairs for investigation. The investigation included taking statements from Petitioner, the officer and any witnesses.

   
   

6. When the internal complaint was filed against Petitioner, he contacted Respondent for assistance, and Respondent's Senior Attorney, James Casey, represented Petitioner. Casey was present with and represented Petitioner at the initial questioning by Internal Affairs.

7. On or about June 16, 1992, Internal Affairs issued its findings to CHPD's Chief of Police (Chief). The Internal Affairs investigator concluded that Petitioner had intentionally hit the officer with the door.

   
   

8. On July 7, 1992, the Chief issued a disposition of the complaint. The Chief determined that the complaint against Petitioner was sustained and that the appropriate discipline was a 10-hour suspension without pay. Further, the Chief scheduled a pre-disciplinary hearing for July 21, 1992.

   
   

9. On or about July 13, 1992, the Chief had prepared a recommendation to the Mayor of the City of Hialeah that Petitioner be suspended without pay for 10 working hours from the CHPD. The letter included a summary of the incident, the rules and regulations violated by Petitioner and the disciplinary action for such violations. However, the recommendation was never forwarded to the Mayor for his approval. 1/

   
   

10. The pre-disciplinary hearing was held and, as a result of that hearing, a CHPD Captain was requested to view the photographs of the door which were taken at the time the incident occurred and to examine the door itself. On August 3, 1992, in a memorandum to the Chief, the Captain indicated that it was possible that the door did stick and that Petitioner was not aware of the officer's presence. Furthermore, the Captain recommended that one of the doors be labeled for entering and the other for exiting and that a caution zone be established to alert individuals that they should use caution when opening the doors.

    
    

11. Casey was also present with and represented Petitioner at the pre- disciplinary hearing.

    
    

12. After the pre-disciplinary hearing, Petitioner contacted Respondent almost on a weekly basis inquiring about the status of his case. Each time Respondent had nothing to relate to Petitioner indicating that nothing had been done by the CHPD and the Mayor.

    
    

13. In August 1992, Casey terminated his employment with Respondent. He was replaced by Michael Braverman. Petitioner continued his weekly inquiry to Braverman and received the same response as before.

    
    

14. On or about October 20, 1992, the Chief changed the discipline to a written reprimand. However, again, this disciplinary recommendation was not forwarded to the Mayor for his approval.

    
    

15. On or about November 19, 1992, Braverman recommended to Petitioner that he accept oral counseling, or an oral reprimand, and end the matter. Petitioner refused.

    
    

16. Finally, on or about December 6, 1992, Petitioner forwarded an internal memorandum to the Chief inquiring about his case, reminding him that, according to the collective bargaining agreement, the complaint should have been resolved within 60 days and allowing him five working days to resolve the complaint before he appealed to the next level.

    
    

17. On or about December 11, 1992, the Chief informed Petitioner that the complaint was sustained for violation of courtesy conduct but that the disciplinary action (a written reprimand) was rescinded due to "unreasonable delay in imposing the written reprimand."

18. Even though the written reprimand was rescinded, the Chief recommended to the Mayor that Petitioner receive oral counseling which was in essence the same as an oral reprimand. The Mayor approved the oral counseling. Petitioner contacted the Mayor who confirmed that the sanction was oral counseling.

    
    

19. Article 26, entitled "Disciplinary Review Procedures," Section 2 of the collective bargaining agreement entered into between the City of Hialeah (City) and Respondent 2/ provides in pertinent part:

    
    

    k. The employee who is the subject of a complaint or allegation shall be promptly notified of the disposition upon the conclusion of the investigation. In any investigation in which

    the charges against the officer cannot be substantiated, the officer shall be deemed to have been exonerated of any charges.

    * * *

    o. Any internal investigation, except where criminal charges are being investi gated, shall be completed within sixty (60) days from the date the officer is informed of the initial complaint. No officer may be subjected to any disciplinary action as a result of any investigation not completed within that time period.

    
    

20. Oral counseling is not considered by Respondent or the City as discipline. As a consequence, there is no appeal of such an action against an employee of the City who is also a member of the bargaining unit represented by Respondent.

    
    

21. However, oral counseling is considered "progressive discipline" which means, in essence, that CHPD can consider it if another complaint against Petitioner is sustained involving a violation of courtesy conduct and impose a sanction which is considered disciplinary. Because of this possibility of a disciplinary sanction being imposed in the future, Petitioner objected to the oral counseling.

    
    

22. Petitioner contacted Respondent to appeal the oral counseling. Petitioner discussed the situation with Braverman, Respondent's attorney. Braverman informed Petitioner that there was nothing to appeal since oral counseling was not discipline but that, pursuant to the collective bargaining agreement, Petitioner could respond in writing to the oral counseling and have the response placed in his personnel file. Consequently, Braverman informed Petitioner that Respondent could provide no representation.

    
    

23. Article 44 of the collective bargaining agreement, entitled "Personnel Records," provides:

    
    

    Section 1. Each bargaining unit employee shall have the right to respond, in writing, to any

    and all derogatory material placed in their personnel file and have that response placed in their personnel file.

    Section 2. Employees who complete two (2) years of discipline free service shall have all

    counseling and/or written reprimands removed from their personnel files pursuant to State of Florida Department of Archives guidelines.

    
    

24. This complaint against Petitioner was not the first complaint against him but was one of many. The Chief and certain uniformed supervisors of the CHPD have a history of filing complaints for internal investigation against Petitioner. 3/ Respondent was well aware of that history and has, in fact, represented Petitioner in many of the complaints.

    
    

25. Historically, Respondent has not been free of discriminatory practices toward black officers. In 1972 a federal court held that the Miami PBA 4/ had discriminated against black officers by not permitting them to become members of the PBA, but permitting white officers to become members. The federal court ordered the Miami PBA to allow black officers to become members and to offer them the same benefits as white officers. Adams v. Miami Police Benevolent Association, 454 F.2d 1315 (5th Cir. 1972), cert. denied, 409 U.S. 843 (1972). However, since that federal case, there has been no legal showing of discrimination by Respondent.

    
    

26. Contrastingly, through court action, Respondent eliminated a discriminatory practice by the City that benefited a black officer. Sometime in 1980, 5/ several white officers and one black officer 6/ were denied the opportunity to take the examination for police chief by the City. They contacted the Respondent for legal assistance,which represented the officers in a court action against the City. The court ordered the City to administer the exam to the officers.

    
    

27. Notwithstanding, the City permitted the white officers, but not the black officer, to take the police chief exam. The black officer again approached Respondent for legal assistance. Respondent denied him such assistance. Respondent's position was that, even though the court had ordered the City to permit him to take the police chief examination, at that point in time the City had already appointed the police chief. Furthermore, Respondent indicated that to pursue the matter further would provide no meaningful redress.

    
    

28. Respondent's Policy No. 84-2, entitled "Request For Legal Assistance" (Legal Assistance Policy), controls the Respondent's legal representation of its members. The Legal Assistance Policy defines legal assistance as "the representation of Association members at administrative and disciplinary hearings as well as taking judicial action on behalf of Association members, in accordance with the provisions of this policy." Under this Policy, a member of the Respondent is eligible for legal assistance "if the matter arises out of the scope of the member's employment" and the member was in "good standing" 7/ at the time of the incident and remained in good standing throughout the course of any legal action pertaining to the matter.

    
    

29. Also, pursuant to the Legal Assistance Policy, a member who is approved for legal assistance must accept Respondent's attorney for representation. Other counsel may be used only when the Respondent's attorney has a conflict and when approved by the Legal Assistance Coordinator or the Board of Directors. Furthermore, benefits provided pursuant to the Legal Assistance Policy are applicable only to administrative and trial level actions and may be applicable to appellate level actions under certain specific situations.

30. The Legal Assistance Policy also defines "Legal Defense Benefit" as Respondent's Policy No. 3-80 which provides "coverage for members, in good standing, for incidents within the scope of employment resulting in criminal or civil prosecution." Policy No. 3-80 (Legal Defense Benefit Policy) provides that Respondent will provide its members with this benefit "only in those cases where a lawsuit or criminal indictment results from professional acts or omissions which arise out of and in the scope of their duties as a law enforcement officer." Further, it provides that the benefit consists of Respondent paying "attorney's fees and directly related Court costs."

    
    

31. Petitioner never requested the Respondent to file an action against the City or the CHPD on the grounds of racial discrimination in the CHPD's disciplinary action(s) against him. Petitioner believed that he was not required to make such a request because it was obvious what the City or CHPD was doing and that the Respondent should have taken the initiative and filed a discrimination action.

    
    

32. Even though the Respondent's action of allowing the CHPD to continue the investigation of the complaint against Petitioner for several months beyond the 60-day limitation is suspect, there was insufficient evidence of any disparity presented at hearing to conclude that the Respondent had acted any differently when dealing with the same or similar complaints against white officers who were members of the Respondent.

    
    

33. Moreover, there was no evidence presented that the Respondent acted any differently with white officers who had been given oral counseling as a result of a complaint against them. There was no evidence that the Respondent failed to appeal Petitioner's oral counseling because of race, and there was insufficient evidence of any conduct by Respondent from which it can be inferred that the actions of Respondent were based on race.

    
    

34. The Respondent's failure to insist upon no disciplinary action against the Petitioner at the expiration of the 60-day investigation limitation was nondiscriminatory. Moreover, the Respondent's failure to appeal Petitioner's oral counseling was legitimate and nondiscriminatory and its denial to appeal was without discriminatory motivation.

    
    

    CONCLUSIONS OF LAW

    
    

35. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to Subsection 120.57(1), Florida Statutes. The parties were duly noticed for the formal hearing.

    
    

36. The Dade County Police Benevolent Association (Respondent) is a labor organization within the meaning of Subsection 760.10(3), Florida Statutes.

    
    

37. The City of Hialeah (City) is an employer within the meaning of Subsection 760.10(3), Florida Statutes.

38. Subsection 760.10(3), Florida Statutes, provides:

    
    

    1. It is an unlawful employment practice for a labor organization:

       1. To exclude or to expel from its membership, or otherwise to discriminate against, any individual because of race, color, religion, sex, national origin, age, handicap, or marital status.

       2. To limit, segregate, or classify its member- ship or applicants for membership, or to classify or fail or refuse to refer for employment any individual, in any way which would deprive or tend to deprive any individual of employment opportunities, or adversely affect any individual's status as an employee or as

          an applicant for employment, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.

       3. To cause or attempt to cause an employer

          to discriminate against an individual in violation of this section.

          
          

39. It is incumbent upon the Petitioner to establish a prima facie case by showing: (1) that he belongs to a racial minority, (2) that the labor organization failed to represent or inadequately represented him in a meritorious claim, (3) that the labor organization had an obligation to provide representation, (4) that, despite the obligation, the labor organization denied representation, and (5) that similarly situated white members were treated differently. Donaldson v. Taylor Products Division of Tecumseh, 620 F.2d 155 (7th Cir. 1980). Only if the Petitioner meets this initial burden is the burden then shifted to the Respondent to articulate a legitimate, nondiscriminatory reason for its action. Thereafter, if the Respondent carries this burden, Petitioner is then required to prove, by a preponderance of evidence, that the reasons offered by the Respondent were pretextual. McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 688 (1973). Applying these standards, Petitioner has failed to establish a prima facie violation of Subsection 760.10(3), Florida Statutes. Although Petitioner satisfied the first three (3) prongs of the test set forth in Donaldson, supra, he failed to establish that he was denied adequate legal representation by Respondent or that similarly situated white members were treated differently.

    
    

40. To present a prima facie case, Petitioner must present facts which "raise an inference of discrimination only because we presume those acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors." Texas Department of Community Affairs v. Burdine, 450

    U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The prima facie case serves to eliminate the most common nondiscriminatory reasons for the Petitioner's disparate treatment. See, Teamsters v. United States, 431 U.S. 324, 358 and n.44, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977).

    
    

41. Petitioner has not established that his race was in any way a factor in the complained of action taken by the Respondent. The evidence fails to establish that the Respondent discriminated against Petitioner because of race. Accordingly, it is concluded that Petitioner has failed to establish a prima facie case of discrimination. Assuming that Petitioner had succeeded in establishing a prima facie case of discrimination, the Respondent has articulated and substantiated legitimate, nondiscriminatory reasons for the

actions complained of by Petitioner, and Petitioner has presented no persuasive evidence that the articulated reasons are a pretext for discrimination because of his race.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final

order DISMISSING the Petition for Relief.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 7th day of April 1994.

ERROL H. POWELL

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 this 7th day of April 1994.

ENDNOTES

1/ The Chief makes recommendations for disciplinary actions or sanctions for violations of CHPD's rules or regulations and they are forwarded to the Mayor for final action. No disciplinary action or sanction is final and effective until the Mayor makes a decision.

2/ The collective bargaining agreement entered into evidence covers a two-year period from October 1, 1992, to September 30, 1994. Although the acts complained of predate the effective date of the collective bargaining agreement, the parties agreed that this collective bargaining agreement was applicable to Petitioner's situation.

3/ The Respondent was aware that the disciplinary process was a tool used by the Chief against officers whom he did not like for whatever the reason or with whom he had personal problems. The Respondent indicated that the purpose of the 60-day requirement was an attempt to effectively deal with this problem.

4/ Here, there is an inference drawn that the Miami PBA and Respondent are one in the same. Respondent offered no testimony or evidence to refute this inference.

5/ The date was not established, but all parties were certain the incident occurred after Respondent became the bargaining agent.

6/ Petitioner's witness at hearing was the black officer involved in the court action and testified, among other things, regarding Respondent's representation and the court action.

7/ Good standing is defined in another policy--PBA Membership Policy 84-1.

APPENDIX

The following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact

1-3. Rejected as being subordinate, irrelevant, unnecessary, cumulative, contrary to the evidence, recitation of testimony, argument, or conclusions of law.

1. Partially accepted in finding of fact 21.

2. Partially accepted in finding of fact 19.

Respondent's Proposed Findings of Fact

1. Partially accepted in findings of fact 1 and 2.

2. Partially accepted in findings of fact 28 and 30.

3. Partially accepted in findings of fact 6, 11, 13-15 and 22.

4. Partially accepted in findings of fact 17-19.

5. Partially accepted in findings of fact 20-21.

6. Partially accepted in findings of fact 24-27 and 32-34.

Note--Where a proposed finding has been partially accepted, the remainder has been rejected as being subordinate, irrelevant, unnecessary, cumulative, contrary to the evidence, recitation of testimony, argument, or conclusions of law.

COPIES FURNISHED:

Warren D. Brown

630 Northwest 186th Street Miami, Florida 33169

Rhea P. Grossman, Esquire 2710 Douglas Road, Suite 300

Miami, Florida 33133-2749

Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

Dana Baird, General Counsel

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1925

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: 93-003994

Orders for Case No: 93-003994