STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EMILIANO SANTOS, )

)

Petitioner, )

)

vs. ) CASE NO. 94-1593

)

CITY OF MELBOURNE, FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings, by its duly designated hearing officer, Mary Clark, held a formal hearing in the above- styled case on January 18 and 19, 1995, in Melbourne, Florida.

APPEARANCES

For Petitioner: Susan K. W. Erlenbach, Esquire

400 Julia Street Titusville, Florida 32796

For Respondent: James L. Reinman, Esquire

1825 South Riverview Drive Melbourne, Florida 32901

STATEMENT OF THE ISSUES

Petitioner has alleged that Respondent violated the Florida Civil Rights Act of 1992 and its predecessor statute by discriminating against him based on his age and national origin in the following:

1. denial of promotion to liftstation mechanic;

2. disparate treatment with regard to training opportunities, transfers, overtime opportunities and disciplinary actions;

3. ridicule and other demeaning actions, such as being escorted to the restroom; and

4. other harassment in retaliation for his complaints.

Both parties have requested attorney's fees and costs and it is necessary to determine if such award is appropriate.

The primary issue for disposition is whether the alleged violations occurred, and, if so, what relief is appropriate.

Although other actions, including termination, have occurred since the complaint was filed, the parties have concurred that those actions are not the subject of this proceeding.

PRELIMINARY STATEMENT

On March 23, 1994, Petitioner's complaint and Petition for Relief were sent by the Florida Commission on Human Relations to the Division of Administrative Hearings for a formal evidentiary hearing. Thereafter, the Respondent filed its answer and affirmative defenses and request for fees.

The hearing was scheduled and continued twice, at the request of the parties and due to a severe storm, before proceeding as described above.

At the hearing, Petitioner testified in his own behalf and presented the additional testimony of the following: Carlos Colon, Joseph Concepcion, Perry McThenney, Robert Bray, Pedro Diaz, Oscar Vega, Martin Koehler, Tom Hogeland, William Spawn, Lois Santos and Jose Bravo. Petitioner's exhibits #1-30 were received in evidence, with the exception of exhibit #14, which was withdrawn, and exhibit #19, which was rejected as irrelevant.

Respondent presented the following witnesses: Tom Hogeland, Greg Williams, Ronnie Baker and Robert Klaproth. Respondent's exhibits #1-23 were received, with the exception of exhibits #9 and 10, relating to investigation and determinations by the FCHR, which exhibits were rejected as irrelevant and hearsay, and exhibit #14 which was rejected as hearsay.

The transcript of hearing was filed on March 3, 1995. Respondent filed a document styled "Respondent's Findings of Facts, Conclusions of Law and Recommended Order". The document has been considered in the preparation of this recommended order, but it is impossible to address proposed findings as provided in Section 120.59(2), F.S., since the paragraphs are unnumbered and consist in summaries of witnesses' testimony rather than proposed findings.

FINDINGS OF FACT

1. Emiliano Santos was born in Puerto Rico in 1944 and came to the United States in 1964. Spanish is his first language, and, in his words, he has been struggling with English since 1964.

   
   

2. Mr. Santos was employed by the City of Melbourne on January 8, 1990. His first job was as a custodian helper in the auditorium. Approximately six months later he applied for positions as Maintenance Worker I and Maintenance II in the city sewer department; he was given the Maintenance II position, the higher level, because of his employment with the city.

   
   

3. Robert Klaproth is the Melbourne water and sewer administrator in charge of the day-to-day operations of the water and sewer division. Tom Hogeland is the water and sewer operations superintendent for the City of Melbourne and has been in that position for approximately five years. Under his supervision is Greg Williams, supervisor of the sewer collection division, who in turn directly supervises Doug Hammond, the liftstation maintenance foreman, and Bob Lyons, the maintenance and construction crewleader. Under those two latter individuals are technical workers such as liftstation mechanics, the liftstation electrician, equipment operators, and other crew leaders. At the entry-level or laborer level are the maintenance workers I and II and utility system service workers. As of January 1992, that entry level in the sewer collection division included, among others, Mr. Santos, William Spann, Joseph Concepcion, and Martin Koehler.

   The Liftstation Mechanic Promotion

   
   

4. Some time in the summer of 1992, an opening came up in a liftstation mechanic position; and Tom Hogeland was directly involved in the recruitment and hiring process.

   
   

5. Five applicants sought the position: Mr. Santos, William Spann, Elmer Cross, Oscar Vega and Cecil Smith. The position was advertised in-house as a promotional opportunity. It called for five years mechanical experience in the repair and maintenance of pumps, motors and other associated mechanical equipment. Each applicant was given a copy of the job description in advance of the interview.

   
   

6. At the individual interviews Tom Hogeland described the physical condition of the job and asked the individual whether he was familiar with the position description. He also asked four questions to determine the applicant's basic familiarity with pumps and equipment used in liftstations, and he asked each about his background and experience.

   
   

7. Of the five applicants, Tom Hogeland found only two had the minimum five years' experience: William Spann and Elmer Cross. Hogeland verified the experience of each applicant. William Spann had claimed experience in the Marine Corps and Hogeland called and spoke with someone in the Corps who was familiar with Spann's experience. Hogeland verified Elmer Cross' experience with his city supervisor, as Cross was working in the Melbourne wastewater treatment plant. Emeliano Santos claimed on his application that he had the requisite experience in a prior job with the John Deere company. When Hogeland called the company he was told that Mr. Santos had not worked as a mechanic, but was a machinist, assembling and operating machines. He had no pump mechanic experience at John Deere.

   
   

8. Because of his seniority with the city, Hogeland recommended Elmer Cross for the opening. However, it was not a promotion for Cross and he told Hogeland that he decided to turn down the transfer. The position was then offered to William Spann, who accepted it.

   
   

9. At hearing, Mr. Santos admitted that he did not have the requisite five years' experience. He claimed, however, that William Spann did not have the experience either.

   
   

10. William Spann is a white male in his 20's who was hired as a maintenance worker I in 1990 in the sewer division. His prior experience was as a maintenance sergeant at Camp LeJeune, including the responsibility for maintaining and servicing the wells and pumps at the facility. This military experience and his experience with the city, when he was assigned to assist the liftstation mechanic, combined to provide him the requisite minimum five years.

    
    

11. Contrary to Mr. Santo's claim that he was the only one who was quizzed on his knowledge, both William Spann and Oscar Vega (an Hispanic) testified that their interviews included the questions described by Tom Hogeland.

    
    

    Training Opportunities

    
    

12. The city sponsors or pays for its employees' attendance at various training sessions and tries to insure that everyone has an opportunity for such training each year. Tom Hogeland generally makes the final decisions where there is a dispute about who can participate.

13. As required by union contract, the educational opportunities are posted on the bulletin board, and commonly there is no dispute because selections for attendees are made on the basis of seniority and rotation. Selections are also made based on whether the opportunity relates to an individual's job.

    
    

14. Mr. Santos alleges that he and other minorities were passed over in favor of white employees who were given training opportunities. He was selected, and attended, a pump school in Orlando, but he contends that the city denied any employee's attendance at another pump school when a number of minorities signed up for the school.

    
    

15. Robert Klaproth has cancelled training opportunities twice, both in the wastewater treatment division. On one occasion the opportunity was posted and employees applied, but the school could not be approved because there was no money for it in the budget. On another occasion twenty people signed up, and when the union could not resolve who should go, the opportunity was cancelled. In neither case was race or ethnicity of the employees an issue.

    
    

16. There is no evidence that race, age or ethnicity has been an issue in any decision by the city in providing training opportunities.

    
    

    Over-time Opportunities

    
    

17. There are three types of overtime for employees in the sewer division. The first is a voluntary on-call overtime for which employees sign up and take one week at a time. During that week the employee forfeits his free time and must be available for emergency response.

    
    

18. The second type of overtime is the scheduled emergency overtime which occurs when repairs need to be scheduled after hours when there is reduced demand on the system, or when an emergency occurs which cannot be handled by the on-call person, alone.

    
    

19. The third type of overtime occurs when a job is not finished by quitting time and the crew needs to stay over to get the system back together. Generally the crew who starts the job has the opportunity to stay and finish it.

    
    

20. Overtime is voluntary and is granted on rotation. The list is posted, by seniority, and when the individual's name comes up, the opportunity is offered, and if it is declined, the individual's name goes back to the bottom of the list.

    
    

21. Overtime is compensated at time and a half, either in pay or compensatory time off, at the employee's option. There was a period during 1991 or 1992 when Mr. Santos declined overtime. He claims he declined because it was not being handled fairly, that the rotation was not being followed and that he was being passed over.

    
    

22. Aside from some evidence that the overtime postings were removed from the employees' bulletin board for a brief period by some unknown person, there is no evidence that the union-prescribed rotation system was not followed. The 1992 records maintained by Greg Williams reflect a substantial amount of overtime available to Mr. Santos and no evidence that he or the other minorities in the division were being passed over. In 1993, Mr. Santos was provided more

    than the average amount of overtime hours provided to other employees in the sewer division.

    
    

    Disciplinary Incidents

    
    

23. Mr. Santos has been disciplined on several occasions. On one occasion, he, Joseph Concepcion (an Hispanic) and Perry McThenney (Black) were disciplined for leaving the city limits in the city truck to buy some work shoes for Mr. Concepcion. Neither Mr. Concepcion nor Mr. McThenney considered the discipline unwarranted; they understood they violated city policy and did not consider the discipline as discriminatory.

    
    

24. On another occasion, incentive points which were used to obtain a raise in pay were removed by the city after it learned that Mr. Santos forged the signatures of his supervisor and other employees on documents related to those incentive points. Mr. Santos freely admits the forgery but dismisses its significance, as he claims he was attending the classes on his own time, and received academic credit for the classes. These were classes taken in coordination with an on-job training program which required the periodic certification by the city that Mr. Santos was working as an electrical apprentice.

    
    

25. In October 1992, Mr. Santos was given a written reprimand and leave without pay for taking a full day off for a medical appointment that was approved for a half-day. That discipline was rescinded after Mr. Santos explained to Robert Klaproth that he needed the day to go to the doctor, go to the bank to get money for his prescription and to buy the prescription.

    
    

26. Other Hispanic employees have been disciplined from time to time. There is a union grievance procedure in place and it has been used by Mr. Santos and others. In some instances the grievance has been upheld and the discipline rescinded; in other cases the discipline has been upheld. No evidence was presented that the disciplinary process or grievance process have been used by the city to discriminate against Hispanics or other minorities; that is, no competent evidence was presented that white employees received less or no discipline for similar infractions.

    
    

    Ridicule, Harassment or Retaliation Claims

    
    

27. Sewer collection division supervisor, Greg Williams, received complaints from other workers, including Joseph Concepcion, that Mr. Santos was taking the truck to make telephone calls or to go to the bathroom and the crew was left at the field site without a vehicle or tools. He also heard complaints that Mr. Santos was leaving to go to the bathroom right after the crew left the breakroom.

    
    

28. Greg Williams spoke with crew leader, Bobby Lyons, about telling everyone, and not just Mr. Santos, that the crew members should check with the others before leaving to see if anyone else needed to go; and to be sure that tools and equipment were left at the job site. Greg Williams did not instruct Bobby Lyons to "escort" Mr. Santos to the bathroom.

    
    

29. Bobby Lyons did go with Mr. Santos to the bathroom on two occasions after that. The record does not reflect whether Mr. Lyons also went to the bathroom or had other errands to run at the same time.

30. The crews in the city water and sewer division are a diverse group, comprised of whites, blacks and Hispanics. The work can be rough and difficult, and there is ample opportunity for banter and joking to get out of hand.

    
    

31. Mr. Santos was involved on several occasions in such verbal spats and was orally chastised, along with the other employee. In the course of one verbal exchange, he called Martin Koehler a "prick" and Koehler called him an "asshole." These are not racial or ethnic epithets.

    
    

32. Mr. Santos also complained that Joseph Concepcion was calling him names. Mr. Concepcion, a Hispanic, was not harassing Mr. Santos because of his ethnicity.

    
    

33. Two employees in particular in the water and sewer division were commonly heard to say "nigger," or to call Mr. Santos "Puerto Rican": Mike Carouso and Martin Koehler. When this language was brought to the attention of the supervisors, the men were reprimanded, either in writing (in Carouso's case) or verbally.

    
    

34. When the union steward, Robert Bray, complained to Robert Klaproth that ethnic remarks were being made, Mr. Klaproth immediately convened a general meeting of the employees in the division and made it clear that such language would not be tolerated.

    
    

35. Although it is obvious that the meeting did not cure the problem entirely, the name-calling and epithets did not take place in front of the supervisors.

    
    

36. The city's policy is to discipline employees who engage in language that is derogatory to minorities and the city has taken severe action against two high-ranking employees, a police sergeant and a fire battalion chief, for single incidents of such language.

    
    

37. Mr. Santos' claims of retaliation are not substantiated. The incidents of disciplinary action which he described were justified, or in the case of the medical leave, was properly rescinded after he explained the circumstances to his supervisors.

    
    

38. None of the grievance proceedings described in Mr. Santos' testimony and in copious documents received in evidence, including transcripts of the proceedings, support his claims of retaliation or harassment.

    
    

    The Experience Of Other Minorities

    
    

39. Carlos Colon is a sixty-two year old Hispanic employee in the city's park department. He was hired nine years ago, when he was fifty-three. He was disciplined once for accidently damaging a city tractor that he was driving, and he failed to receive a promotion for which he considered himself qualified, but he does not believe that the city or his supervisor discriminated against him. The top manager in the parks department is Felix Rodriquez, a Puerto Rican.

    
    

40. Joseph Concepcion, also Puerto Rican, considers his ethnic background an asset because of his bi-lingual ability. He has been regularly promoted in his seven years with the city. He has not observed discrimination in the choice of employees for training, for promotions or for overtime. He has heard Martin Koehler use derogatory language regarding blacks and Hispanics, but not directly toward Mr. Santos and not when any supervisors were around. When he heard Mr.

    Koehler, a co-worker talking like that, Mr. Concepcion walked into the breakroom at lunch and invited anyone who did not like Puerto Ricans and blacks to come outside and "talk" to him. No one came out; and as far as he was concerned, that was the end of the issue.

    
    

41. Perry McThenney is a black employee who has worked for the city for eight years and has been promoted three times. He has not experienced nor observed discrimination in promotions, overtime and training opportunities.

    
    

42. Robert Bray, the union steward, is a black city employee. Mr. Santos complained frequently to him about racial slurs against his Hispanic origin but never complained about age discrimination. The one time that Mr. Bray went to Mr. Klaproth with the racial slur complaint, a meeting was held the next day to inform the entire division staff that such language would not be tolerated. Mr. Bray believes that the city should come up with some kind of sensitivity program, but he has not actually suggested that remedy to anyone yet. The employees whom Mr. Brag was aware had used derogatory language were the same two mentioned by Mr. Santos and others: Martin Koehler and Michael Carouso.

    
    

43. Pedro Diaz, an Hispanic, was passed over for promotion in favor of a sixty year old white employee. At the time, Mr. Diaz felt he should have gotten the promotion because of his longer seniority with the city; however, he conceded that the successful employee could have had better experience. Mr. Diaz has been promoted by the city since then. Mr. Diaz encountered a series of problems with a supervisor who is no longer employed by the city. Since that supervisor left, no other management employee has given him a hard time or discriminated against him because of his ethnic background.

    
    

44. Oscar Vega was born in Cuba and has worked for the city approximately 6-1/2 years. He has been promoted during that period. He has also applied for positions which he did not get; in one case, he was not qualified and agrees that the best person got the job; in another case, he filed a grievance with the help of Robert Bray and received the job. He feels the city has treated him fairly and has not discriminated against him based on his Hispanic origin.

    
    

    Summary of Findings

    
    

45. The City of Melbourne has not discriminated against Emiliano Santos based on his age or ethnic origin. The demeanor and credibility of the witness have, in part, contributed to this finding. Specifically, the hearing officer has considered, and rejected, the suggestion that the presence of Robert Klaproth, as Respondent's representative, throughout the proceeding, influenced the testimony of the several black and Hispanic employees called as witnesses by Mr. Santos.

    
    

46. There is no doubt that Mr. Santos is bitter and frustrated with his employment experience with the city. He has been subjected to other discipline or personnel action which, by stipulation, was not at issue in this proceeding. He has engaged in crude and disruptive verbal exchanges with co-workers. Whether he was the instigator of those exchanges or not, there is no evidence that they were racially or ethnically motivated. He has been disciplined for good cause, or when he explained the circumstances (as with the medical leave), the discipline was rescinded. He was passed over for a promotion, but did not have the requisite experience, and, as best as the city could determine, the successful applicant did have the experience.

47. There was uncontroverted evidence that at least two non-supervisory employees have used racially derogatory or abusive language in the work place. They were disciplined, and the supervisors attempted to address the problem with a general meeting. Although the language continued, it was not because such was tolerated by the supervisors, and it was not so pervasive as to create an abusive or offensive work environment.

    
    

    CONCLUSIONS OF LAW

    
    

48. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Section 120.57(1), F.S.; Section 760.10, F.S. (1991) and Section 760.11, F.S. (1992).

    
    

49. It is an unlawful employment practice for an employer to fail to hire or otherwise discriminate against an individual with respect to compensation, terms, conditions or privileges of employment because of such individual's race, color, religion, sex, national origin, age, handicap or marital status. Subsection 760.10(1)(a), F.S. (1991) and (1992).

    
    

50. As established by relevant state and federal case law, Petitioner has the burden or proving the alleged violations of Section 760.10, F.S. This includes the burden of presenting a prima facie case of discrimination as to the failure to promote. McDonald Douglas Corp. v. Green, 441 U.S. 792 (1973); Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981).

    
    

51. Petitioner failed to make that prima facie showing, as he did not meet the minimum requirements for the position which he sought. Respondent proved, on the other hand, that it treated each applicant for that promotion the same with regard to interviews, questions and background investigations.

    
    

52. Petitioner likewise failed to prove discrimination in the terms and conditions of his employment and the harassment and retaliation claims.

    
    

53. Abusive or hostile remarks by fellow employees were proven. However, a determination of whether the environment was hostile or abusive requires a consideration of all the circumstances. Mere utterance of an epithet which engenders offensive feelings is not enough, but neither is it required that Petitioner show psychological injury. Harris v. Forklift Systems, Inc., 114 S.Ct. 367 (1993). The abusive or hostile remarks in this case were not so frequent or severe as to affect other minority employees, nor were they so severe or pervasive as to interfere with Petitioner's or other's performance on the job. They were not condoned by the Respondent, nor tolerated by the Respondent.

    
    

54. The actions which are the subject of Petitioner's petition for relief occurred primarily prior to October 1, 1992. The Charge of Discrimination is dated November 22, 1992. The Florida Civil Rights Act of 1992 (Sections 760.01- 760.11, F.S.) applies only to conduct occurring on or after October 1, 1992. While the prohibited employment practices in Section 760.10(1)(a), F.S., remain the same in the 1992 Act, the provisions for relief and procedures were substantially amended by the 1992 Act.

    
    

55. Prior to the 1992 Act, Section 760.10(13), F.S., provided for affirmative relief, including reasonable attorney's fees, to the prevailing Petitioner. Now, Section 760.11(7), F.S., provides for the commission, in its discretion, to "allow the prevailing party a reasonable attorney's fee as part of the costs." (Emphasis added). The legislature also specifically directed

    that the attorney's fee provision be interpreted in a manner consistent with federal case law in a Title VII action.

    
    

56. Respondent filed a motion for fees at the time that it filed its answer, well before the evidentiary hearing. It presented no evidence at hearing on the fees and did not address them in argument or otherwise at hearing, or in its proposed recommended order. It is impossible, on the record before the hearing officer, to determine what, if any, fees are appropriate, and the motion is, therefore, remanded to the Commission with this recommended order.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that Petitioner's Petition for Relief dated February 28, 1994, be dismissed.

DONE AND ENTERED this 5th day of April, 1995, in Tallahassee, Florida.

MARY CLARK

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 5th day of April, 1995.

COPIES FURNISHED:

James L. Reinman, Esquire 1825 S. Riverview Drive Melbourne, FL 32901

Susan K. W. Erlenbach, Esquire ERLENBACH AND ERLENBACH, P.A.

400 Julia Street Titusville, Florida 32796

Sharon Moultry, Clerk Commission on Human Relations

325 John Knox Road, Building F Suite 240

Tallahassee, Florida 32303-4149

Dana Baird, General Counsel Commission on Human Relations

325 John Knox Road, Building F Suite 240

Tallahassee, Florida 32303-4149

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: 94-001593

Orders for Case No: 94-001593