STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLEMENTE QUINTANA, )

)

Petitioner, )

)

vs. ) CASE NO. 88-5125

) HILLSBOROUGH COUNTY, BOARD OF ) COUNTY COMMISSIONERS, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in this case was held on January 17, 1989, in Tampa, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings. The parties were represented as follows:

For Petitioner: No Appearance

For Respondent: Catherine P. Teti, Esquire

Post Office Box 1110 Tampa, Florida 33601

The issue in this case is whether Hillsborough County (Respondent) unlawfully discriminated against Clemente Quintana (Petitioner) based upon his national origin. Petitioner did not appear at the hearing. At the time scheduled for the commencement of the hearing, a telephone message was received indicating that Petitioner was requesting a continuance due to difficulty he was having getting to the hearing because of car problems. The undersigned called the telephone number on the message for further explanation, bit no one was available. The Respondent opposed any continuance since eight county employees were present, having taken time away from their regular duties, and were ready to testify. The hearing proceeded, and the Respondent was allowed to call witnesses and present exhibits in order to preserve the record in this matter, although it was recognized that the Petitioner bears the burden of proof in this case. The Respondent called William Kight, Frederick Johnson, and Shirley A. Charles. No transcript of this testimony has been filed.

Following the hearing, the undersigned again called the Petitioner, and left a message on his telephone answering machine informing him that the hearing had proceeded as noticed, but that any written explanation of his failure to appear and request for continuance would be considered, if filed. To date, no written explanation or motion to reconvene the hearing has been filed by the Petitioner.

FINDINGS OF FACT

1. At all times material hereto, Petitioner has been employed by the Respondent as a multi-trades worker.

2. On or about September 2, 1987, Petitioner was demoted from the position of multi-trades worker III to II, with a 5% reduction in pay. He currently remains in the multi-trades worker II position.

   
   

3. Petitioner was demoted because he made discriminatory and derogatory racial remarks to employees under his supervision. Specifically, he referred to black employees as "niggers, sambos and blackies" on several occasions. He also told a female employee under his supervision that he would not promote her because she was a woman.

   
   

4. Following his demotion, Petitioner appealed this action to the Civil Service Board of Hillsborough County. On or about December 16, 1987, the Civil Service Board upheld his demotion based upon its finding that Petitioner had "uttered racial slurs, racially derogatory remarks and other insulting and abusive language directed toward subordinate employees under his supervision over an extended period of time and on a number of occasions."

   
   

5. On or about March 24, 1988, Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations, and after investigation, a finding of No Cause was entered. Thereafter, Petitioner timely filed a Petition for Relief alleging that Respondent had unlawfully discriminated against him due to his national origin, Hispanic. No evidence in this record supports Petitioner's allegation.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties, and the subject matter in this cause. Section 120.57(1), Florida Statutes.

   
   

7. The Petitioner bears the initial burden of establishing a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Teamsters v. United States, 431 U.S. 324 (1977). If the Petitioner sustains his initial burden, the Respondent would then have to establish some legitimate,

   non-discriminatory reason for the action taken in order to rebut the inference of discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S.

   248 (1981). Thereafter, if Petitioner can show that Respondent's actions were simply a pretext for discrimination, Petitioner may still prevail. McDonnell Douglas, at 804-805; Burdine, at 256. See also Anderson v. Lykes Pasco Packing Co., 503 So.2d 1269 (Fla. 2nd DCA 1986)

   
   

8. There is no evidence in the record to support Petitioner's allegation of discrimination due to his national origin. Petitioner has, therefore, failed to sustain his burden of proof. However, it should be noted that the Respondent did offer evidence to rebut any inference of discrimination, if one had been made, and established legitimate, nondiscriminatory reasons for demoting Petitioner.

RECOMMENDATION

Based upon the foregoing, it is recommended that Petitioner's charge of discrimination against Respondent be DISMISSED.

DONE AND ENTERED this 7th day of February, 1989 in Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 1989.

COPIES FURNISHED:

Clemente Quintana

162 Venice Circle

Land O'Lakes, FL 34639

Catherine P. Teti, Esquire Post Office Box 1110 Tampa, FL 33601

Margaret Agerton, Clerk Human Relations Commission

325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925

Donald A. Griffin Executive Director

Human Relations Commission

325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925

Docket for Case No: 88-005125

Orders for Case No: 88-005125