STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAUL LOUIS FAIRBANKS )

)

Petitioner, )

)

vs. ) CASE NO. 93-6866

)

CITY OF TAMPA, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tampa, Florida on March 20, 1995, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Paul Louis Fairbanks, pro se

1715 82nd Street, Northwest Bradenton, Florida 34209

For Respondent: Thomas M. Gonzalez, Esquire

Thompson, Sizemore & Gonzalez

109 North Brush Street, Suite 200 Tampa, Florida 33601

STATEMENT OF THE ISSUES

The issue for consideration in this hearing is whether Petitioner was unlawfully discriminated against in employment by Respondent as retaliation for having filed a prior complaint with the Florida Commission on Human Relations.

PRELIMINARY MATTERS

In 1989, Petitioner applied for employment with the Tampa Police Department but was determined to be unqualified because of his eyes. He thereafter filed a complaint with the Florida Commission on Human Relations and the claim was settled with the understanding that Petitioner would be allowed to apply for employment again and his application would be processed. Thereafter, however, he was again denied employment, this time on the grounds that he did not meet the Department's professional standards. Consequently, on February 22, 1993, Petitioner filed another complaint against the Department, this time alleging that the refusal to hire him was in retaliation for his prior complaint with the Commission.

After an investigation into Petitioner's allegation, on August 5, 1993, the Commission entered its Notice of Determination: No Cause, which was followed, on September 17, 1993, by an Amended Notice of Determination: No Cause. Petitioner then filed his Petition for Relief and the matter was forwarded to the Division

of Administrative Hearings for appointment of a Hearing Officer. The matter was initially set for hearing in August, 1994, but when the hearing was convened it became immediately apparent that Petitioner, who had prepared for a hearing regarding the denial of employment based on his eyesight, was unprepared for hearing. The matter was then continued until November 23, 1994, but in the interim, Petitioner indicated he was having difficulties in obtaining the material he needed from Respondent. After a telephone hearing which resolved the discovery matters, the hearing was reset for March 20, 1995, at which time it was held as scheduled.

At the hearing, Petitioner testified in his own behalf and presented the testimony of Herbert C. Anderson, Jr., a background investigator with the Tampa Police Department; Joseph H. Walker, Manager of the Personnel Bureau of the Tampa Police Department; and Richard C. Maddox. Jr., formerly Chief of Police for Holmes Beach, Florida. Petitioner also introduced Petitioner's Exhibits 1 and 2. Respondent called no witnesses but introduced Respondent's Exhibits A through D.

A transcript of the proceedings was furnished. Only Respondent submitted Proposed Findings of Fact which have been accepted and are incorporated in this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Paul Louis Fairbanks, first applied for employment with the Tampa Police Department, (TPD), on December 19, 1988. He was disqualified at that time because he did not meet the Department's visual acuity standards. Nonetheless, he appealed that decision and after a lengthy process, as a part of the settlement, he was allowed to complete the employment process.

   
   

2. A part of that process includes an employment interview after which a background investigation is conducted. This includes checking with the professional and personal references provided by the applicant and the development of independent leads which might cast some light on the investigative process. The background investigation of Petitioner was conducted by Herbert C. Anderson, Jr., a retired Lieutenant of Detectives with the Minneapolis, Minnesota, Police Department, and now a civilian investigator with TPD.

   
   

3. During the course of his investigation, Mr. Anderson contacted the references provided by the Petitioner, both in Florida and in Baltimore, Maryland, where Petitioner was engaged in police work subsequent to his graduation from college in 1969, to 1974, when, because of his wife's illness, the family moved to Florida.

   
   

4. The records of the Baltimore Police Department, show that he was promoted from Patrolman to Police Agent and from Police Agent to Sergeant. Petitioner claims he had the highest scholastic grade in his police academy graduating class and was awarded each promotion at the earliest possible time. It also appears that he did quite well in his firearms qualification and, while employed in Baltimore, received two official commendations. His evaluations ranged from average to excellent as a police officer. As a sergeant, his evaluations ranged from above average to unsatisfactory.

   
   

5. By the same token, Petitioner was disciplined four times during the five years he worked in Baltimore. He received three reprimands for failing to appear in traffic court, for having a preventable accident, and for a violation

   of juvenile custody procedures. His record shows he was reduced in grade from Sergeant to Police Agent for unsatisfactory performance, but Petitioner claims the reduction was the result of his decision to move and the Department's desire to not have him in a sensitive position during his last months of work for fear he might be called back to testify at Department expense.

   
   

6. Petitioner claims that when, because of his wife's illness, he decided to move from Baltimore to Florida so his wife could be near her parents, he was given the choice of either resigning immediately as a Sergeant, or taking a reduction in grade and being moved to a less sensitive position. When he declined to do either, he was reduced in grade and the record was made to look as though it was the result of his misconduct.

   
   

7. When Petitioner returned to Florida in July, 1974, he went to work for the Sarasota County Sheriff. During the period before he was terminated in November, 1978, he received several letters of thanks from citizens, but also letters of reprimand, suspensions and requests from supervisors for either demotion or dismissal. During this period, the State Attorney's office notified the Sheriff that Petitioner's testimony in court was being questioned and as a result, that office did not want to work with him or prosecute his cases.

   
   

8. Petitioner disputes this claim, asserting that his conviction and arrest rates were well above average, and his rate of "decline to file" and "Nol-Pros" were lower than the majority of the other detectives. In reality, Petitioner claims, he was discharged because he was injured in 1977 and was hospitalized three time because of that. His supervisor directed him to return

   to work before it was appropriate to do so, and expressed the opinion Petitioner was malingering. Notwithstanding this, Petitioner filed a worker's compensation claim against the Sheriff's office as a result of his injury, and when his lawyer negotiated a settlement slightly under the maximum compensible for the injury involved, Petitioner was thereafter discharged. Mr. Fairbanks notes that shortly after this time, the Sheriff was removed from office by the Governor.

   
   

9. Petitioner also claims that he received "good or better" evaluations over the first four years of his employment. Yet, the termination action was based on several alleged incidents of misconduct. These included a failure to comply with search and seizure laws, failure to follow department policies in areas of public statements pertaining to other criminal justice agencies, and a failure to comply with civil rights of individuals being questioned. He also believes it was because of the notoriety he had gained within the criminal justice system. Petitioner either denies any involvement in the situations alleged or, as in the incident involving public statements, asserts what he considers to be a reasonable and legitimate rationale for having done what he did. In the latter incident, he claims, he was directed to discuss the case in question by his superior who thereafter, when the publicity was less than desirable, declined to admit he had done so.

   
   

10. In December, 1989, Petitioner went to work for the Bradenton Beach Police Department as a police officer, resigning in August, 1983 when the department was moving for his termination because of a false official report, false swearing and official misconduct. Petitioner was cleared of those charges by State Attorney, but the Department persisted in its efforts to dismiss him. During the course of this process, Petitioner inquired of the Criminal Justice Standards and Training Commission regarding his certification status and was advised he was not certified. Upon the receipt of this information, Petitioner resigned. After his resignation, however, he was advised by the Commission that he had not been decertified.

11. In addition to the matters outlined above, Mr. Fairbanks' personnel file with the Bradenton Police Department also contained two letters of reprimand regarding citizen complaints on traffic stops and his demeanor with the public, and a letter from the Manatee Sheriff's Detention Director complaining of Petitioner's failure to follow proper procedures when booking prisoners. Again, Petitioner has "explanations" for the allegations which, if believed, would absolve him of any wrongdoing. In this, as in the other situations mentioned where Petitioner has his own version of the situation, it is impossible to determine which version is the most accurate.

    
    

12. Petitioner claims that in 1984, for a period of three months, he served as Risk Management-Range Safety Officer for Manatee County. However, the Human Resources Director for the County has no record of this or of Petitioner working there as anything other than a life guard. He also held several jobs outside law enforcement that year and into 1985.

    
    

13. From August, 1985 to November, 1988, the period covering that referenced in the paragraph next above, Petitioner worked as a lifeguard in Manatee County. Though rated as an overall satisfactory employee, the records reflect that Petitioner quit without notice. He also worked as a part-time police officer for Bradenton Beach from July, 1987 to April, 1988 when he was discharged by the new Chief of Police.

    
    

14. From November, 1988 to December, 1988, Petitioner served as Chief of Police for Bradenton Beach, but he was terminated by the new City Council for "administrative reasons - unfavorable circumstances." Allegedly these referred to reported citizen complaints about Petitioner while he was conducting a personally initiated investigation into the improper notarization of election affidavits. Petitioner recounts an extended version of the incidents alleged here. It is impossible, at this time, to determine what actually happened.

    
    

15. For eighteen days during April, 1989, Petitioner was employed by the DeSoto Correctional Institute as a Corrections Officer. While in training at the Corrections Academy, Petitioner disagreed with the way the firearms instruction was being conducted and criticized the instructors. He was described as "irritable, argumentative and totally untrainable." It is also alleged that Mr. Fairbanks committed safety violations at the range. In a discussion with one of the instructors, Petitioner was sent to the office of the personnel manager where he asked for a piece of paper and submitted his resignation.

    
    

16. It is quite probable, in light of the Petitioner's extensive experience with and good record in the use of firearms, that he did comment unfavorably on the way the range training was being conducted. By his own admission, Petitioner is difficult to get along with and very open and free in expressing his opinion. By the same token, he admits to being abrasive and argumentative. Based on his extensive experience with firearms, however, it is highly unlikely that he was unsafe on the range. He claims he was not argumentative with the people at the prison, but he resented the way he was talked to. He was afraid he would be framed by prison personnel, and he quit before they could do anything to him. This was the last employment he had in law enforcement. Since May, 1989 to the present, he has been employed as a forklift operator at Tropicana Products in Bradenton.

17. Mr. Fairbanks takes great umbrage at the fact that he was denied employment by TPD when Mr. Metzger, also a police officer, who was discharged from his prior employment in law enforcement in Bradenton Beach, was hired. Petitioner considers his qualifications and his honesty as being far superior to that of Mr. Metzger, and he is offended by the fact that TPD considers Metzger qualified for employment while rejecting him. He is convinced that TPD relied on the recommendation of Mr. Maddox, the former Chief of Police at Holmes Beach, whose own reputation, according to Petitioner, is not so good.

    
    

18. In the course of his investigation, Mr. Anderson interviewed several individuals other than those related to the incidents described herein. An attorney described Petitioner as uncompromising and a "by the book" policeman. A former supervisor at the Sheriff's department, while describing him as a hard worker and needing specific supervision, nonetheless would like to have Petitioner work for him. Mr. Maddox is not a great admirer of Mr. Fairbanks, describing him as, among other things, aggressive. Three professional references describe him as hard headed and would not recommend him, yet the six personal references all gave him a good recommendation.

    
    

19. Mr. Anderson submitted his investigative summary regarding Mr. Fairbanks to Mr. Walker, TPD Personnel Bureau Manager, on September 14, 1992. About that time, a copy of Mr. Anderson's report was discussed with the Petitioner who thereafter prepared an extensive rebuttal to the allegations therein, supported by numerous exhibits which, he felt, gave credence to his assertions. Mr. Walker cannot say at this time whether he read it or not, but it seems familiar. His testimony indicates the likelihood he did read it, however, and it is so found. Nonetheless, Mr. Walker indicated that he was not persuaded by the Petitioner's submittal, and, on September 28, 1992, he forwarded his negative recommendation to the TPD Chief of Police.

    
    

20. In his recommendation against hiring Petitioner, Mr. Walker noted Petitioner's prior complaint history but gave no indication that played any part in his recommendation. He also recited Petitioner's prior employment history and briefly describes the caliber of that service. Walker concluded that Petitioner's past employment record, with its indication of disciplinary problems, demonstrates he does not meet the TPD's professional standards.

    
    

21. There is no evidence of personnel records of the TPD from which it reasonably can be concluded that the Department's decision not to employ Petitioner was retaliation for his prior complaint filed with the Commission.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

23. Section 760.10(7), Florida Statutes, makes it an unlawful employment practice for an employer to discriminate against any person because that person has opposed any practice which is an unlawful employment practice or because that person has made a charge or participated in any investigation, proceeding or hearing under this section. In this case, Petitioner claims the Respondent discriminated against him in retaliation for his filing of and participating in an unlawful employment complaint against the Department when it failed to employ him because of a physical handicap, his eyesight.

24. Petitioner has the initial burden of proving a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). The Florida Commission on Human Relations has adopted this evidentiary model, Kirkpatrick v. Howard Johnson Co., 7 FALR 5468 (FCHR). Once the Petitioner has established a prima facie case of discrimination, the burden shifts to the Respondent to articulate a nondiscriminatory reason for its actions.

    
    

25. The evidence of record shows at best a spotty employment record for the Petitioner. His earliest years in police work, those in Baltimore, Maryland, reflect a questionable performance. He was promoted quickly, but was demoted equally as fast, and his personnel record discloses several disciplinary infractions.

    
    

26. After his return to Florida, he held several different jobs, from most if not all of which, he departed under a cloud. It is interesting to note that Petitioner has a perfectly rational explanation for his employment troubles, none of which indicates any misconduct on his part. While admitting he is opinionated, somewhat obstinate, and often hard to get along with, he nonetheless places the blame for each of his departures on his employer. If Petitioner is to be believed, there are few honest souls in politics or police work. Manipulation and fault finding seem to be a way of life in Petitioner's former milieu. Somehow, it is hard to accept this, however.

    
    

27. In any case, as counsel for Respondent so aptly points out in his post-hearing submittal, it matters not for the purposes of this hearing whether what Petitioner alleges is true or not. It also matters not whether Petitioner's spotty employment record is accurate or not. What is important is whether Respondent had a right to believe what the investigation showed about Petitioner's prior work history and how that history would likely impact the potential of his success in employment with this employer.

    
    

28. The information presented to the Department was gleaned from the official records of the agencies for which Petitioner previously worked. As such, they bore the imprimatur of credibility. However, the Department's investigator also sought the opinion of others, cited by Petitioner as references, whose opinions, except for social references, were not supportive.

    
    

29. No doubt the Petitioner is seriously concerned about the information which has been provided to the Department regarding him, and he wishes to contest not only what has been said but also the character of the individuals who have submitted it. For the purposes of this review, it can be accepted his contention that all the incidents of alleged misconduct were either untrue or of minimal importance. It can also be accepted that those individuals who initiated the discipline taken against him in the past were, themselves, corrupt and a proper subject for discipline. It can even be accepted that the characterizations of his personality and demeanor which were presented regarding him are incorrect. However, that is not the issue in this hearing.

    
    

30. What appears clearly to anyone who chooses to look at Petitioner's record, and Petitioner admits this, is a picture of contentiousness, of an opinionated individual, and of irascibility - all characteristics which do not promote harmony or effectiveness in the work place. Regardless of the motivation of the individuals who submitted the information on which the Department relied, it was reasonably believable, and it constituted a nondiscriminatory basis for the Department's decision not to hire Petitioner. There is no showing of retaliation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that a Final Order be entered by the Commission on Human Relations in FCHR Case No. 93-0636 determining No Cause on Petitioner's complaint of retaliation.

RECOMMENDED this 2nd day of May, 1995, in Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 2nd day of May, 1995.

COPIES FURNISHED:

Paul Louis Fairbanks 1715 82nd Street NW Bradenton, Florida 34209

Thomas M. Gonzalez, Esquire Thompson, Sizemore & Gonzalez Suite 200, 109 N. Brush Street Post Office Box 639

Tampa, Florida 33601

Sharon Moultry Clerk

Commission On Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32302-4149

Dana Baird General Counsel

Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-4149

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 consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.

Docket for Case No: 93-006866

Orders for Case No: 93-006866