STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

REGINAL NUNN, )

)

Petitioner, ) CASE NO. 91-004388

) FCHR NO. 90-2807

)

CITY OF BELLEVIEW, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Stephen F. Dean, held formal hearing in the above- styled case on October 9, 1991, in Ocala, Florida.

APPEARANCES

For Petitioner: Reginal Nunn (pro se)

1010 100th 467

Belleview, Florida 32620

For Respondent: Kenneth A. Knox, Esquire

Fisher & Phillips

One Financial Plaza, Suite 2310 Fort Lauderdale, Florida 33394

STATEMENT OF THE ISSUES

Two issues were involved in this case:

1. Whether the Respondent unlawfully discriminated against the Petitioner on the basis of race when it failed to promote him to the position of lead man in the Respondent's Public Works Department.

   
   

2. Whether the Respondent unlawfully retaliated against the Petitioner by giving him written reprimands and unsatisfactory scores on job performance evaluations because of the fact that he filed an administrative charge of racial discrimination against the Respondent.

PRELIMINARY STATEMENT

This case came to the Division upon Petitioner's Petition for Relief dated June 14, 1991.

The Petition for Relief was filed with Division subsequent to a Redetermination of "No Cause" issued by the Florida Commission on Human Relations on May 7, 1991, in FCHR No. 90-2807 on the second issue above.

The Florida Commission on Human Relations had previously issued Determinations of "No Cause" on December 28, 1990, in case FCHR No. 89-9314 on the first issue above.

The Petitioner presented no witnesses or other evidence other than his own testimony. The Respondent presented the testimony of Dennis Monroe, Edwin Krusemark, and William Threet, in addition to a number of exhibits, labeled A through O.

No transcript of the hearing was ordered.

The Respondent filed a Proposed Finding of Fact which was read and considered. Appendix A sets forth the findings which were adopted, and those which were rejected and why.

FINDINGS OF FACT

1. Petitioner is a black male approximately 35 years of age. Prior to returning to Florida, Nunn had worked all over the United States, to include Alaska, as a construction worker.

   
   

2. Respondent is an incorporated city in Florida.

   
   

3. The Petitioner was hired in 1988 as a temporary employee in the Respondent's Water and Sewer Department by Dennis Monroe, Director of Public Works. While he was a temporary employee, the Petitioner indicated to Mr. Monroe, that he wished to remain in the Respondent's employ. On October 1988 the Petitioner was hired in a full time position as a Laborer I, and began a 6 months probation period.

   
   

4. At the conclusion of the Petitioner's initial six-month probationary period (in April 1989), he received a above satisfactory score on an Employee Performance Evaluation completed by Mr. Monroe (Respondent's Exhibit A). Mr. Monroe at that time promoted the Petitioner to the position of Laborer II.

   
   

5. At about this time, the water department lost three of its senior employees, and Nunn was suddenly the most senior person in the water department. Nunn talked with Moore about a promotion, but Moore hired Mr. Edwin Krusemark, a while male, who had been a consultant on the city's system, to run the water and sewer department.

   
   

6. Sometime after the completion of his probationary period in April 1989, the Petitioner asked Edwin Krusemark, Public Works Superintendent, for an additional helper to complete his job duties. Mr. Krusemark turned down this request, although two persons had been performing the duties now performed by Nunn.

   
   

7. Mr. Krusemark stated it was his opinion that two men were not needed to do Nunn's job, although it had previously taken two men to do it. Nevertheless, both Monroe and Krusemark verbally complained to Nunn about his delays.

   
   

8. Neither manager formally reprimanded the Petitioner or placed any documentation of the Petitioner's faults in the Petitioner's personnel file prior to September 27, 1989. Neither supervisor indicated to Nunn that his work was substandard and unacceptable prior to September 27, 1989.

9. Nunn stayed in the water and sewer department, and learned a short time later that a new lead man position was free. He applied and was rejected again without an interview. The promotion went to a new employee, William Threet, who was a white male with no experience in public utilities. Mr. Krusemark recommended to Mr. Monroe not to promote Nunn because of his lack of supervisory experience. There was no evidence presented by Respondent that Mr. Krusemark knew anything about Nunn's experience, except at the City. Mr. Krusemark admitted his recommendation was based upon his observations of Nunn at Belleview.

   
   

10. William Threet was hired as the lead man in September 1989, based in large part upon his 19 years of experience in construction and his experience in supervisory positions (Respondent's Exhibit C) outside of government. Nunn had to help Threet learn about the water and sewer functions after Threet was hired.

    
    

11. Shortly before September 25, 1989, the Petitioner filed an administrative charge with the Florida Commission on Human Relations, alleging that he was refused the position of lead man because of his race. The Respondent learned of Nunn's charges on or about September 25, 1989, when the Petitioner gave a copy of the charge to the Respondent's Clerk.

    
    

12. Nunn's file on or about September 25, 1989 contained no adverse personnel comments or actions. On September 27, 1989, Nunn received a letter of reprimand for not being available when he was "on call" for emergencies. When Nunn was rated in November 1989, an entire list of deficiencies had been retroactively placed in Nunn's file. These notes memorialized trivial complaints made earlier by Moore and Krusemark to Nunn about the cleanliness of Nunn's truck, and the quality and speed of Nunn's work. However, no appropriate warnings or corrective action had been taken contemporaneously with the incidents about which Monroe and Krusemark complained, except the letter of reprimand.

    
    

13. On November 1989, the Petitioner received an unsatisfactory score on this evaluation which had been due in October. Nunn and was placed upon a 90- day probationary period for the purpose of notifying him of his performance deficiencies and allowing him time in which to remedy those deficiencies and improve his job performance (Respondent's Exhibits E and F).

    
    

14. Subsequent to the November 1989 evaluation, several handwritten notes from Mr. Monroe and Mr. Krusemark regarding deficiencies in the Petitioner's job performance were placed in his personnel file (Respondent's Exhibits G, H, I, and J). There were no such handwritten documentation in Nunn's file to justify or substantiate the considerable list of "comments" attached to Nunn's November 1989 evaluation.

    
    

15. The written reprimand and the November evaluation were in retaliation for Nunn filing the discrimination complaint about Threet's hiring. These were pretexual.

    
    

16. In January 1990, the Petitioner filed another administrative charge, alleging that the September 27, 1989 reprimand, the November 1989 evaluation, and the subsequent handwritten notes had been issued to him in retaliation for having filed the original charge of discrimination against the Respondent.

    
    

17. In March 1990, the Petitioner received another Employee Performance Evaluation, this one being a collaborative effort among Mr. Monroe, Mr. Krusemark, and Mr. Threet. The Petitioner's score on this evaluation had

    improved over that of the November 1989 evaluation, but it was still unsatisfactory (Respondent's Exhibit K). Rather than discharge the Petitioner, which the Respondent could have done at that point, the Respondent placed the Petitioner on a six-month probationary status (Respondent's Exhibit L).

    
    

18. Shortly thereafter, the Petitioner requested and was granted a leave of absence to be with his son who had to undergo a heart transplant. The terms of this leave were ill defined because it was leave without pay.

    
    

19. After an absence of approximately two months, the Petitioner reported to work one morning in June 1990. Because of the Petitioner's extended absence from his job, the Respondent had employed another individual to perform the duties previously performed by the Petitioner. On the day that the Petitioner returned to work, this individual was sent out to perform Nunn's regular duties, while Mr. Threet contacted Mr. Monroe to inform him that the Petitioner had returned to work.

    
    

20. Nunn was instructed to replace a faucet and then report to Mr. Monroe's office downtown. Nunn asked why he was being asked to go to Monroe's office. Nunn could not obtain a complete answer as to why. Nunn replaced the faucet, but declined to go downtown to Monroe's office because he felt he was being pushed out and Nunn was afraid he would be victimized if he went down town to Monroe's office.

    
    

21. He rejected Mr. Monroe's request to report to Monroe's office when Mr. Monroe would not clarify the need for the visit. At that point, the Petitioner submitted his voluntary resignation from employment.

    
    

22. After leaving Belleview's employment, the Petitioner was unemployed for four months and received no employment benefits. He was then employed by Marion County Country Club for $4.75/hour for six months. He then found his current job where he makes $6.00, the same salary he made with Belleview.

    
    

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes.

    
    

24. The two issues in this case are: (1) whether Respondent committed an unlawful employment practice by discriminating against a person with respect to terms or conditions of employment because of the individual's race contrary to Section 760.10(1)(a), Florida Statutes, and (2) whether the Respondent committed an unlawful employment practice discriminating against a person because that person has, among other things, made a charge of discrimination under that Section.

    
    

25. The State of Florida, under the legislative scheme contained in Florida Statutes Chapter 760, incorporates and adopts the legal principles and precedents set forth under Title VII of the Civil Rights Act of 1964 as amended,

    42 U.S.C. Section 2000e et seq.

    
    

26. Regarding both issues, the Petitioner has the initial burden of establishing a prima facie case of discrimination. If the Petitioner succeeds in proving a prima facie case, the Respondent must articulate some legitimate reason for the action complained of. If the employer does so, the Petitioner must then prove by a preponderance of the evidence that the legitimate reasons

    offered by the Respondent were only a pretext for discrimination. The plaintiff bears the ultimate burden of persuasion at all times. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).

    
    

27. Regarding the first issue, in order to establish a prima facie case, the Petitioner must show that: (1) he is a member of a protected group; (2) he applied for and was qualified for a job for which the Respondent was seeking applicants; (3) despite his qualifications, he was rejected; and, (4) after his rejection, the position remained open and the Respondent continued to seek applicants from persons with the rejected individual's qualifications. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The Petitioner failed to prove this issue. The facts show Mr. Krusemark and Mr. Threet were hired.

    
    

28. Regarding the second issue, the order and allocation of proof set forth in McDonnell Douglas is applicable to retaliation cases. In order to establish such a claim, the Petitioner must show that: (1) he engaged in protected activity which was known by the Respondent; (2) he was subject to an adverse employment action or actions; and, (3) there is a causal connection between the first two elements. If the Petitioner establishes a prima facie case of retaliation, the Respondent must articulate some legitimate nondiscriminatory reason for the alleged acts of reprisal. Then, the Petitioner bears the burden of showing that the reasons given by the Respondent are a pretext for discriminatory actions taken in retaliation for engaging in protected activities.

    
    

29. First, the Petitioner showed he was engaged in a protected activity, and he was the object of adverse employment action. The only factual issue to be resolved is whether the personnel ratings and disciplinary documents placed in the Petitioner's personnel file between September 27, 1989 and January 30, 1990, represented unlawful retaliation against the Petitioner for having filed a charge of discrimination against the Respondent. It is concluded that they were.

    
    

30. The Petitioner has established that he filed a charge of discrimination with the Florida Commission on Human Relations, an activity protected by The Human Rights Act of 1977. Prior to this, his employment records was clear of any disciplinary items. The Petitioner showed that immediately after filing his charge of discrimination in promotion to lead worker on September 27, 1989, he received a letter of reprimand raising "misdeeds" occurring as far back as July 1989 which had not been the basis of even minor correction by Nunn's supervisors conduct prior to September 25, 1989. The record shows that written comments were attached to Nunn's November 1989 evaluation based upon hand written notes which were never produced and were not part of Nunn's folder prior to September 25, 1989. Additional hand written notes retroactively were placed in his file, and Nunn received an unsatisfactory score on his subsequent job evaluation.

    
    

31. The Petitioner showed this conduct was a pronounced change from his prior ratings which occurred after he filed the original charge of discrimination and supported his claim of retaliation. The abrupt change in treatment and in evaluation, buttressed by late additions to Nunn's personnel file, established a causal connection between Nunn's filing of the discrimination charge and the Respondent's subsequent actions toward Nunn.

    
    

32. Second, the Respondent's witnesses were not credible regarding the list of deficiencies which accompanied the November 1989 performance evaluation.

    Nunn may have had a messy truck and may have failed to respond when he was on call; however, this was not why he got a bad rating. He had never been counseled about poor job performance until September 27, 1989. His rating and the letter of reprimand were the result of his complaint to the Human Relations Commission.

    
    

33. The Petitioner demonstrated that the reasons offered by the Respondent for its actions were a pretext for unlawful discrimination; and in violation of Section 760.10(7), Florida Statutes. At $6.00/hr., 40 hrs/per week for 12 weeks, the Petitioner's initial damages were $2,280.00. He mitigated his damages by obtaining a job paying $1.75 less than he had with Belleview, which he held for 6 months. This reduced Nunn's damages to $1680 for the next 6 months, or a total of $4,560.00, plus interest at 1% per month since his discharge in June 1990 until the entry of this Recommended Order, a total of

$5,380.00.

RECOMMENDATION

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

Order GRANTING in part the Petition for Relief, and awarding the Petitioner

$5,380.00.

DONE and ENTERED in Tallahassee, Leon County, Florida, this 7th day of November, 1991.

STEPHEN F. DEAN

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 NOVEMBER, 1991.

COPIES FURNISHED:

Dana Baird General Counsel

Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1570

Margaret Jones Clerk

Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1570

Reginal Nunn 1010 100th 467

Belleview, Florida 32620

Kenneth A. Knox, Esquire Fisher & Phillips

Suite 2310

One Financial Plaza

Fort Lauderdale, Florida 33394

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.

March 3, 1992

Harden King, Esq.

Human Relations Commission

325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570

Re: Reginal Nunn v. City of Belleview DOAH Case No. 91-4388

Dear Mr. King:

In response to your inquiry, I have reviewed the file and forwarded herewith is a supplemental appendix.

Thank you for bringing this oversight to my attention.

Sincerely,

STEPHEN F. DEAN

Hearing Officer

cc: Margaret A. Jones (w/enc.) Dana Baird, Esq. (w/enc.)

Kenneth A. Knox, Esq. (w/enc.) Reginal Nunn (w/enc.)

SUPPLEMENTAL APPENDIX CASE NO. 91-4388

The Respondent filed proposed findings which were read and considered. The following indicates which findings were adopted, and which were rejected and why:

Paragraph 1 Adopted.

Paragraph 2,3 Combined and adopted.

Paragraph 4 Adopted in part. Last sentence rejected as contrary to more credible evidence.

Paragraph 5 While many of the facts were adopted, the general thrust of the proposal is rejected as contrary to more credible evidence.

Paragraph 6 Irrelevant.

Paragraph 7 Adopted in part.

Paragraph 8 Rejected as contrary to more credible evidence.

Paragraph 9 Irrelevant.

Paragraph 10 Adopted.

Paragraph 11 Rejected as contrary to more credible evidence.

Paragraph 12 Adopted.

Paragraph 13-16 Rejected as contrary to more credible evidence.

Paragraph 17,18 Adopted.

Paragraph 19 Adopted with additional facts.

Paragraph 20 Adopted.

Paragraph 21 Rejected as contrary to more credible evidence.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

REGINAL NUNN,

Petitioner,

1. EEOC Case No. 15D900788

   FCHR Case No. 90-2807

   CITY OF BELLEVIEW, DOAH Case No. 91-4388 FCHR Order No. 93-0004

   Respondent.

   /

   FINAL ORDER FINDING UNLAWFUL DISCRIMINATION BUT AWARDING NO MONETARY DAMAGES

   
   

   1. Panel of Commissioners

      
      

      The following three Commissioners participated in the disposition of this matter:

      
      

      Commissioner Willy A. Bermello, Panel Chairperson;

      Commissioner John W. Robertson; and Commissioner Ronald P. Townsend.

   2. Appearances For Petitioner Reginal Nunn:

      Reginal Nunn, pro se

      10100 South East. 36th Avenue Belleview, Florida 32620

      For Respondent City of Belleview:

      Kenneth A. Knox, Esquire Fisher & Phillips C & S Bank Building

      One Financial Plaza, Suite 2310 Fort Lauderdale, Florida 33394

      
      

   3. Preliminary Matters

      
      

      Reginal Nunn, Petitioner herein, filed a complaint of discrimination with this Commission pursuant to the Human Rights Act of 1977, as amended Sections 760.01-760.10, Florida Statutes (1991), alleging that the City of Belleview, Respondent herein, unlawfully discriminated against him on the basis of retaliation.

      
      

      In accordance with the Commission's rules, the allegations of discrimination were investigated and an Investigatory Report was submitted to the Interim Executive Director who issued her determination finding no reasonable cause to believe that unlawful retaliation occurred.

      
      

      Petitioner filed a Petition for Relief from an Unlawful Employment Practice and the case was transferred to the Division of Administrative Hearings (DOAH) for the conduct of a formal proceeding.

      
      

      A formal administrative hearing was held in Ocala, Florida before DOAH hearing officer Stephen F. Dean, who issued his Recommended Order finding that retaliation had occurred and that $5,380.00 in damages should be awarded to Petitioner as a result of job separation.

      
      

      Pursuant to notice, public deliberations were held in Tallahassee before the aforementioned Panel of Commissioners, at which deliberations the Panel determined the action to be taken upon the Petition for Relief.

      
      

   4. Exceptions to Recommended Order

      
      

      Respondent submitted nine exceptions to the Recommended Order. The arguments are, in essence, that no retaliation occurred and certainly no type of

      discharge was done by Respondent. Some of the exceptions have merit but they do not justify a complete rejection of the hearing officer findings, i.e., retaliatory disciplinary acts are accepted whereas discharge from employment must be rejected.

      
      

   5. Rulings on the Exceptions

      
      

      1. Exception No. 1 has minimal merit but it is nevertheless denied. Petitioner was spoken to regarding poor job performance but no documentation confirming such action was placed into his personnel file prior to September 27th. Without doubt, Respondent's management techniques changed after Respondent became aware of Petitioner's first complaint of employment discrimination.

         
         

      2. Exception Nos. 2 and 3 are without merit.

         
         

      3. Exception No. 4 is meritorious. Neither a retaliatory nor a constructive discharge occurred. The only occurrence was retaliatory disciplinary actions.

         
         

      4. Exception Nos. 5, 6 and 7 are without merit.

         
         

      5. Exception No. 8 has minimal merit. Petitioner was indeed spoken to prior to September 27th. This purported counseling was not formal and obviously Petitioner did not perceive the conversations with his supervisors as a form of job performance counseling.

         
         

      6. Exception No. 9 has merit. Neither a retaliatory nor a constructive discharge occurred.

      
      

   6. Findings of Facts

      
      

      The DOAH hearing officer's findings of fact are adopted but only in respect to the finding of retaliatory disciplinary actions, i.e., such as placing into Petitioner's personnel file a letter of reprimand and numerous handwritten notes documenting job performance deficiencies. Nowhere in the record is there any competent, substantial evidence to support a finding that job separation was a discharge. Neither a retaliatory nor a constructive discharge occurred. To the contrary, the evidence shows that Petitioner, in writing, voluntarily resigned his employment; thus the $5,380.00 damages recommended by the DOAH hearing officer was not due to any unlawful act by Respondent. Petitioner is awarded no damages.

      
      

   7. Conclusions of Law

The DOAH hearing officer's conclusions of law are adopted but only to the extent of concluding that retaliatory disciplinary actions occurred. Neither a retaliatory nor a constructive discharge occurred. No monetary damages are due to Petitioner because he voluntarily resigned from his employment. The award of

$5,380.00 is REJECTED. IT IS SO ORDERED.

Each party is advised of his right to petition the Florida District Court of Appeal for judicial review of this Final Agency Order. Such Notice of Appeal must be filed within 30 days of the date that this order is filed with the clerk

of the Commission. Section 120.68, Florida Statutes, and Fla.R.App.P. 9.110(b).

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Willy A. Bermello, Panel Chairperson;

Commissioner John W. Robertson, Commissioner Ronald P. Townsend.

FILED this 3rd day of February 1993, in Tallahassee, Florida.

Clerk of thee Commission (Acting)

Copies furnished to:

Reginal Nunn, pro se

10100 South East 36th Avenue Belleview, Florida 32620

Kenneth A. Knox, Esquire Fisher & Phillips

C & S Bank Building

One Financial Plaza, Suite 2310 Fort Lauderdale, Florida 33394

Stephen F. Dean, DOAH Hearing Officer Dana Baird, FCHR General Counsel and

Harden King, FCHR Assistant General Counsel

Docket for Case No: 91-004388

Orders for Case No: 91-004388