ALBERT H. ROBINSON, )
vs. ) CASE NO. 87-2482
Respondent. )
Final hearing in this matter was held on October 9, and November 2, 1987 in Orlando, Florida, before Mary Clark, Hearing Officer of the Division of Administrative Hearings.
Egan, Lev & Siwica, P.A. Post Office Box 2231 Orlando, Florida 32802
For Respondent: David V. Kornreich, Esquire
Caldwell, Casey, Crossland & Bramnick, P.A. Suite 1525, Firstate Tower
On or about July 1, 1986, Albert Robinson filed his charge of discrimination with the Florida Commission on Human Relations, alleging that his employer, the City of Altamonte Springs, discriminated against him based on his race, Black, and his national origin, Jamaican. The complaint alleged harassment in several instances and the denial of a promotion.
After an investigation, a recommended determination of "No Cause" was provided in a notice filed on March 27, 1987, by the FCHR Executive Director.
Mr. Robinson filed his Petition for Relief and the matter was referred to the Division of Administrative Hearings for formal proceeding.
Respondent's motion to dismiss that Petition was denied in an Order dated August 5, 1987, but Petitioner was also required to file an amended petition. The amended petition, filed on August 12, 1987, alleges various acts of discrimination because of Petitioner's race and national origin, and alleges retaliation because he assisted a black co-employee at a disciplinary hearing before the city's personnel board.
At the final hearing, Albert Robinson testified in his own behalf and presented the testimony of eleven additional witnesses. The City of Altamonte Springs presented the testimony of nine witnesses, some of whom had also testified at the request of Petitioner. Petitioner's eleven exhibits and Respondent's seven exhibits were all received in evidence without objection.
After the preparation of a transcript, both parties submitted thorough, well-organized proposed recommended orders. These have been carefully considered, and specific rulings on each proposed finding of fact are found in the attached appendix.
Petitioner, Albert H. Robinson is a black male, over 18 years of age, born in Jamaica, West Indies.
Respondent, the City of Altamonte Springs, is a municipal corporation organized and existing under the Laws of the State of Florida, and admits that it is an "employer" for purposes of the Human Rights Act of 1977, as amended, sections 760.01-760.10 F.S.
Robinson's account of how he arrived in the United States approximately seven years ago is bizarre, but uncontroverted, and for purposes of this proceeding is deemed true.
In Jamaica, Robinson had been affiliated with the ruling People's National Party. He held the government post of Development Director in the "New Development Agency" and was in charge of approximately 300 underprivileged persons. He was also president of a youth organization within the party, and was involved in organizing youth activities and selecting members to visit Cuba as a party representative.
At some point he was approached by an American embassy attache from the CIA who recruited him to provide under-cover information on the party. When that involvement became publicly exposed, he was forced to flee the country.
Robinson and his family lived for awhile in Panama and other Latin American countries. When they decided to emigrate to the United States, the U.S.
Government made arrangements for Mrs. Robinson and the children to enter through Miami and for Mr. Robinson to cross the border "illegally" at Brownsville, Texas. He was given authorization to work and temporary asylum. He is currently awaiting disposition of his petition for a more permanent status.
Through other relatives in Florida, Robinson ended up in Altamonte Springs.
At the time that he was hired by the City in September 1984, Robinson presented a letter from the INS permitting him to work during the pendency of his asylum petition. The City was thus aware of his national origin and non- citizen status.
Robinson was hired as a laborer in the city water distribution division on September 24, 1984. He received two personnel evaluations during his probationary period, both "average," with every factor rated "average," and few comments.
On February 7, 1985, he was promoted from laborer to utility serviceworker, a more responsible position. The serviceworker is generally assisted at a job site by the laborer, who does most of the digging.
The Dixon Personnel Board hearing
In April 1985, Robinson assisted a black coworker, Patrick Dixon, at his hearing before the City Personnel Board. Dixon and another black utilities worker, Carl Wilder, had been accused of making obscene and inappropriate gestures to two white women while the men were on city duty. Wilder was given a one-day suspension. Dixon, who already had a negative performance record, was given a two-day suspension.
Dixon appealed the discipline to the Personnel Board. Robinson's involvement at the hearing on April 3rd was to sit behind Dixon and assist with the documents. Robinson, who had no firsthand knowledge of the incidents, did not testify. Carl Wilder did testify on behalf of Dixon.
The Personnel Board, in a unanimous decision by all members present, upheld the disciplinary action.
Robinson believed that Patrick Dixon had been the victim of a racial vendetta. Dixon testified in this proceeding that he, also, feels that the charge was racially motivated, yet nothing in the written documents related to his appeal supports that contention. The basis for his appeal was the insufficiency of the evidence against him and his contention that he was a bystander while Wilder, the actual perpetrator, received a lesser penalty.
Shortly after the hearing Dixon was terminated for absenteeism. He did not file a discrimination complaint nor take any other action against the city.
Wilder is still employed by the city, and in 1987, was promoted from laborer to serviceworker.
The performance evaluation
On May 3, 1985, Robinson received his first performance evaluation as a utility serviceman. His overall rating by his reporting supervisor, George Simpkins, was "average." However, he received "below average" in four categories: "ability to carry out instructions/orders"; "conduct"; "directs the work of subordinates effectively"; and "ability to make decisions within his authority."
The comments in explanation of these ratings related to Robinson's failure to follow operating procedures, his temper and conflict with fellow employees, and his dictatorial manner in dealing with subordinates.
Robinson was not pleased with the evaluation and wrote a letter to the Assistant Director of Public Works, Ronald Howse, asking to discuss it. Howse suggested that the discussion take place with Larry Alewine and George Simpkins, who were the supervisors responsible for the evaluation. Alewine was Simpkins' immediate supervisor.
The discussion took place. Robinson now claims that Larry Alewine asked him why he followed Patrick Dixon to City Hall and claims that Alewine blamed the evaluation on his involvement with Dixon. Alewine denies this and cannot recall any notoriety with regard to Robinson's association with Dixon.
Not following procedures
and problems with fellow employees
Robinson's difficulties in working with others and in following procedures are well-documented throughout his 1985 and 1986 employment with the city.
In June 1985, he received a notice of remedial action after placing a water meter in a location where the customer wanted it, rather than where he had been directed to place it. The customer was happy, but under the city's procedures, the serviceman does not have the authority on his own to change the supervisor's direction.
On November 4, 1985, Robinson had an altercation with his supervisor, Larry Alewine, regarding a meeting that Robinson wanted with Chris Hill, the recently-appointed director of the city's water distribution division. Alewine attempted to convey Hill's directive that Robinson put his request in writing, but Robinson became loud, yelled at Alewine and started to leave. When Alewine attempted to call Robinson back to discuss the matter, Robinson retorted that he (Alewine) wasn't his daddy.
Right after the incident Robinson apologized for getting loud and Alewine explained that he would still have to "write him up," because he had refused to come back in the building and was hollering.
Robinson claims that the incident occurred prior to 7:30 A.M., when he was still on his own time, but this claim is unsupported by Alewine or any of the other several witnesses.
On November 26, 1985, Robinson and Carl Wilder were at a job site trying to locate a buried water meter. Wilder, as the laborer, was doing the digging. Robinson, his superior, insisted that Wilder keep digging in a place where Wilder did not believe the meter was located. Both men's tempers flared
and Wilder called the supervisor to the site to prevent further argument. Because it was near the end of the day, Robinson was excused and Wilder was taken back to the city garage.
Chris Hill spoke with both Robinson and Wilder and determined that no disciplinary action was warranted. He told Wilder that if he had any complaints or grievances about Robinson, he would have to put them in writing. Chris Hill asked other employees if they had problems working with Robinson; he did not, as alleged by Robinson, solicit written statements against Robinson from other employees in the division.
Chris Hill
Most of Robinson's claims of discrimination by the city are directed toward Chris Hill, who, in October 1985, was placed in charge of the city's water distribution division.
The City Manager, Philip Penland, was concerned about the management of the division. The Dixon/Wilder incident was an example. Larry Alewine and George Simpkins, both white Americans, were considered to be weak leaders. Robinson and Carl Wilder were identified as employees with whom there had been problems.
Chris Hill started working for the City of Altamonte Springs in 1977 as temporary summer help and laborer. He gradually worked his way up through various levels of management and was highly regarded by his supervisors and by Philip Penland as a competent and capable employee, with a positive, "can-do" attitude. He was regarded as a tough manager who could obtain top performance from his employees. In addition to his duties at Altamonte Springs, he also is in charge of water plant operations in the neighboring towns of Eatonville and Maitland.
Lack of tact and finesse in dealing with people, including subordinates, have been considered Hill's weak points.
Hard times in the Water Distribution Division
These characteristics and Hill's direction to shape up the division led to some tense months in the division.
Larry Alewine, whose management style was certainly more relaxed, openly referred to Hill as "God" and "asshole." Alewine's position had been downgraded as a result of the reorganization, and he eventually left the city in 1987 after his position was eliminated from the budget.
George Simpkins left a bitter resignation notice when he resigned in October, shortly after Chris Hill's appointment.
In February 1986, Larry Alewine prepared an evaluation of Robinson which was reviewed, consistent with procedures, by Chris Hill. Hill did not believe the evaluation was strong enough, in light of his knowledge of the incident with Wilder and other minor problems with fellow employees. Both Hill and Scott Gilbertson, the Assistant Director of Public Works, met with Alewine and suggested that the evaluation should be changed. When Alewine declined, Chris Hill changed the evaluation.
The evaluation, dated 3/6/86, rates Robinson overall as "Employee needs improvement." The written comments are very similar to those made by George
Simpkins on the May 1985 evaluation; that is, the quality of his work was deemed generally good, but his conduct, ability to follow instructions, and ability to get along with fellow employees was noted as the real problems. While it is not apparent from the evaluation itself and the testimony in this proceeding how much of the evaluation was completed by Larry Alewine, it is clear that at least some of the negative written comments were made by him. (Respondent's exhibit #2.)
The meeting with management officials and its aftermath
Robinson wrote a protest of his evaluation which precipitated a meeting with himself, Chris Hill, Scott Gilbertson, Philip Penland, and the City Personnel Director, Sam Frazee.
The evaluation was discussed; Robinson was told that his signing the evaluation only acknowledged its receipt and that he could provide his written notations on the back of the evaluation regarding portions with which he disagreed.
The group also discussed an appointment Robinson had made with the city's worker's compensation physician. He had attempted to arrange his own follow-up visit for treatment of a work-related injury. The city's policy required that the appointments with the city's physician be made after notification to the supervisor.
While explaining his actions, Robinson gave contradictory versions of what he had been told by the nurse in the doctor's office regarding the procedures. His testimony at hearing was also confused and inconsistent on this point. On direct, he testified that he had been told that authorization from the city is not necessary for follow-up visits. On rebuttal, however, he stated that the nurse had told him that the city personnel department would have to be notified, but not his foreman. (TR, Vol I, p. 77, Vol IV, p. 324-325).
In the course of the same meeting, Robinson made allegations of wrongdoing by Larry Alewine, stating that Alewine had a meeting with his employees and encouraged them to write grievances against Chris Hill and had called Hill an "asshole" and "God."
The City Manager considered these allegations to be serious and promised Robinson that an investigation would be made. The meeting then broke up.
Ed Haven, an officer with the Professional Standards Bureau of the City Police Department was assigned to investigate the allegations of misconduct. This bureau normally conducts personnel-related internal affairs investigations and considers them administrative, not criminal.
The investigation was initially inhibited by Robinson's refusal to answer Officer Haven's questions unless the investigation was expanded to include Chris Hill as well. Robinson was then ordered by the City Manager to participate.
The inquiry sustained the allegations that Alewine had called Hill "asshole" and "God."
This investigation spawned a second investigation as to whether Robinson had ever told another employee that he lied about Alewine in order to get an investigation against Chris Hill.
The issue was never resolved, but Officer Haven found that a "preponderance of evidence indicates Robinson was untruthful during this investigation...," that Robinson did have a conversation with an employee, Barry Beavers, but denied it. (Petitioner's composite exhibit #1, Memorandum of Internal Inquiry #86-9998-03, April 15, 1986).
The lead Utility serviceworker positions
In Spring 1986, the city created two supervisor positions in the Water Distribution Division, titled "lead utility serviceworker," to supervise and oversee the work of the utility workers and their laborers.
All three utility serviceworkers applied for the jobs: Robinson, Ronnie Oliver (Black American) and Barry Beavers (White American).
Robinson was never considered a viable candidate and was interviewed as a matter of courtesy. Oliver and Beavers were chosen.
Robinson concedes that Beavers was qualified and properly promoted, but he disputes Ronnie Oliver's qualifications.
Ronnie Oliver began work one month after Robinson, in October 1984. He worked under Robinson as a laborer for some time and he freely acknowledges that Robinson taught him a lot. Oliver also had considerable personal initiative and taught himself with the use of materials he acquired from Larry Alewine. Oliver's performance evaluations were substantially better than Robinson's; by May 1986, the time of the promotion, he was evaluated as an "Outstanding" employee.
Robinson had, in fact, been on the job less than Oliver, as he had sustained a work-related injury in December 1985, and was out for weeks at a time. He had not been cleared for full-time duty when he was interviewed and was absent from work when the positions were filled.
Light duty
Robinson alleges that he was given "make-work" light duty when he was returned to work after his injury, and was later denied light duty. The city furnishes injured employees with light duty on a case-by-case basis, depending on the capabilities and physical condition of the individual and the needs of the employer.
Robinson was first assigned floor sweeping duties in June after his recurring back problems. Later he was given the task of painting an area near Hill's office. An assistant was assigned to paint the high and low portions of the wall. He was also given a chair to sit on and rest his back.
This was the lightest duty available at the city at time. Other employees including a black who had cancer, were also given routine maintenance chores.
While painting, Robinson injured his neck, shoulder and hands. He never returned to work after this injury in June 1986. The city informed him in July and August that it did not have light duty available.
In September 1987, the City agreed to pay Robinson $47,000.00 (including $7,000.00 to his attorney), to settle his worker's compensation claim of permanent back injury.
He has since applied for reemployment. As of the hearing in this proceeding, the city was reviewing his request for reemployment.
This request is not at issue here.
Various grievances
In Spring 1986, as the result of some publicity about the arrest of illegal aliens, the city reviewed the work authorization status of its employees. Since Robinson had initially given the city a letter from INS stating that he was eligible to work pending an application for political asylum, he was asked again for authorization.
He refused at first, and claimed this was harassment.
He also claimed that he was subject to derision for being a CIA spy.
He had told some fellow employees about his past and the news circulated.
The employees mostly did not take the matter seriously, but in an employee meeting, someone asked Chris Hill whether it was true that Albert was a CIA spy. He replied that this was what Robinson claimed.
At the same employees' meeting, Hill also stated that he did not think that Robinson was going to be around much longer. He made this remark based on his knowledge of Robinson's disciplinary problems.
Hill was strongly reprimanded for this remark. He did not have the authority to terminate Robinson, and management had not taken steps to terminate him.
Robinson has attributed various derogatory statements and epithets to Chris Hill. He claims that Hill said that no one would take the word of a "nigger" against him and that he didn't want Americans to take orders from a Jamaican. Hill vigorously denies these statements and no credible evidence was produced to support Robinson's claims.
Nor was credible evidence presented of Robinson's claim that on July 3, 1986, Hill lost his temper and spat in his face.
At hearing on November 2, 1987, Robinson, through his attorney, withdrew his allegation that he was defrauded of sick leave through a forged signature. (TR Vol IV, p. 293-294.)
Summary of Findings
Beyond his own unsubstantiated claim that Alewine told him so, there is no evidence that Robinson's problems with the city were the result of his rather inconspicuous involvement at the Patrick Dixon hearing.
His problems clearly began when he was promoted to a position of some authority over others and his temper, loud mannerisms and difficulty working with others became an issue. Beginning with his response to his first slightly
negative personnel evaluation, Robinson's reaction to every event in his employment, major and minor, was lengthy, rambling, confused and confusing written grievances, memoranda and letters. Robinson also carried a tape recorder to memorialize his encounters and (in his words) "...to intimidate people from molesting me..." (TR, Vol I, p. 243).
Robinson's inconsistent accounting and mixing of facts in his scenario of alleged discrimination fail to make sense. Pressure was applied to blacks and whites, alike; of the four employees targeted as "problems," the two whites are gone (Alewine and Simpkins) and one black (Wilder) has been promoted.
Evidence is clear that there were serious management problems in the city's Water Distribution Division in 1985, and the atmosphere which prevailed with reorganization of the division and Hill's arrival could very well have fueled Robinson's paranoia. His vehement protestations and repetitious and rambling litany of wrongs are either a sincere confused perception, or a deliberate attempt to manipulate a situation, which because of justifiable criticism of his job performance, was becoming increasingly uncomfortable. Nevertheless, his myriad allegations of discriminatory harassment, retaliation and of unlawful failure to promote, are unsupported by competent evidence.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding pursuant to Section 120.57(1), F.S., and Rule 33T-8.016(2), F.A.C.
The City of Altamonte Springs is an employer within the meaning of Section 760.02(6), F.S.
Albert Robinson's claims of harassment, failure to promote and retaliation are cognizable under the Human Rights Act of 1977, as amended, Sections 760.01-760.10, Fla. Stat.
Since that act is patterned after Title VII of the Federal Civil Rights Act of 1964, it is appropriate to consider the federal courts' interpretation of Title VII.
In Texas Department of Community Affairs v. Burdine, 450 US 248, 67 L.Ed. 2nd 207, 101 S. Ct. 1089 (1981) , the U.S. Supreme Court established a three- tiered evidentiary burden in discrimination cases, beginning with the plaintiff's initial burden of proving a prima facie case, by preponderance of the evidence.
Albert Robinson failed to meet that burden as to all three allegations.
It is not disputed that Robinson is a member of a protected class through his race and national origin.
He did not prove that he was harassed for being black and a Jamaican; he did not prove that he was qualified for a promotion or that a less-qualified individual was selected; and he produced no credible proof that there was a connection between his treatment and his participation in the Dixon hearing, assuming that his participation was an activity protected under Section 760.10(7), F.S.
RECOMMENDATION
Based on the foregoing, it is, hereby RECOMMENDED:
That Albert Robinson's charges that the City of Altamonte Springs violated subsections 760.10(1)(a) and (7), F.S., by
harassment
failure to promote, and
retaliation, be DISMISSED.
DONE and RECOMMENDED this 16th day of February, 1988, in Tallahassee, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2482
The following constitute my specific rulings on the findings of fact proposed by the parties:
1-5. Addressed in summary form in paragraph 3.
14-16. Rejected as contrary to the weight of evidence, except for the comment about Robinson being terminated. See paragraph 34.
34-35. Rejected as irrelevant. The "fraud" charge was withdrawn. See paragraph 36.
36-37. Rejected as irrelevant.
6-12. Adopted in paragraphs 6. through 8. 13-15. Rejected as cumulative.
16-22. Addressed in paragraphs 15. and 16., otherwise rejected as unnecessary.
23. Adopted in paragraph 13.
24-27. Addressed in paragraph 14.
28-34. Addressed in paragraph 19.
35-38. Adopted in substance in paragraph 20. 39-40. Adopted in paragraph 21.
44-49. Adopted in paragraphs 24. and 25. in substance. 50-60. Rejected as cumulative and unnecessary.
61-66. Addressed in paragraph 32.
67-69. Addressed in paragraph 33.
70-72. Addressed in paragraph 34.
73-89. Addressed in paragraphs 26.-28.; otherwise rejected as unnecessary.
93-94. Adopted in substance in paragraph 29. 95-96. Adopted in substance in paragraph 30.
99-102. Adopted in substance in paragraph 31.
103-110. Rejected as irrelevant. The "fraud" charge was withdrawn at hearing. See paragraph 36.
Egan, Lev & Siwica, P. A. Post Office Box 2231 Orlando, Florida 32802
David V. Kornreich, Esquire Muller, Mintz, Kornreich, Caldwell, Casey, Crossland, & Bramnick, P. A.
Donald A. Griffin Executive Director
Sherry B. Rice, Clerk Commission on Human Relations
