STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT WRIGHT, )

)

Petitioner, )

)

vs. ) CASE NO. 94-4720

) CITY OF GAINESVILLE, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in this case was held before Larry J. Sartin, Hearing Officer, on January 31, 1995, and February 7, 1995, in Gainesville, Florida.

APPEARANCES

For Petitioner: Robert L. Wright, pro se

1130 Southwest 16th Avenue, Apartment 72

Gainesville, Florida 32601

For Respondent: Elizabeth A. Waratuke

Assistant City Attorney City of Gainesville Post Office Box 1110

Gainesville, Florida 32602 STATEMENT OF THE ISSUE

The issue in this case is whether Respondent, the City of Gainesville, discriminated against Petitioner, Robert Wright, as alleged in the Petition for Relief filed by Petitioner.

PRELIMINARY STATEMENT

On or about November 11, 1993, Petitioner, Robert Wright, filed a Charge of Discrimination with the Florida Commission on Human Relations (hereinafter referred to as the "Commission"). Petitioner alleged that Respondent had taken certain retaliatory actions against him. On July 14, 1994, the Commission entered a Notice of Determination: No Cause, finding no reasonable cause to believe that an unlawful employment practice had occurred.

On or about August 19, 1994, Petitioner filed a Petition for Relief contesting the Commission's determination and requesting a formal administrative hearing. The petition was filed with the Division of Administrative Hearings by Transmittal of Petition on August 29, 1994. The matter was designated case number 94-4720 and was assigned to the undersigned.

At the final hearing Petitioner testified on his own behalf and presented the testimony of Bernadette Woody, Eugene Ross, Robert L. Bryant, Edward Cason,

Henry B. Quarterman, Alena King Buggs, David Huckstep, Raymond Griffin, Tony Jones, Kent A. Freed, and Sylvia Hill. Petitioner also offered eighteen exhibits. All were accepted into evidence except Petitioner's exhibit 7.

Respondent presented the testimony of Lonnie Scott, Daryl Johnston and Wayland Ross Clifton, Jr. Thirty-three exhibits were offered by Respondent and accepted into evidence.

A transcript of the final hearing was filed on March 16, 1995. Proposed recommended orders were to be filed by the parties on or before March 27, 1995. The parties, however, requested an extension of time to April 6, 1995, to file proposed recommended orders. The request was granted by an Order Granting Extension of Time entered March 22, 1995. A second extension of time to April 17, 1995 was granted.

Both parties have filed proposed recommended orders containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

FINDINGS OF FACT

1. The Parties.

   
   

   1. Petitioner, Robert L. Wright, is an African-American. Officer Wright was, at all times relevant to this proceeding, employed by Respondent as a police officer.

      
      

   2. Respondent, the City of Gainesville (hereinafter referred to as the "City"), is a municipal corporation organized under the laws of the State of Florida.

      
      

   3. The City provides law enforcement services through the Gainesville Police Department (hereinafter referred to as "GPD").

      
      

   4. At all times relevant to this proceeding, the Chief of GPD was Wayland Clifton, Jr.

      
      

   5. The City is an "employer" for purposes of this proceeding.

      
      

2. Officer Wright's Employment With GPD.

   
   

   1. Officer Wright was hired by GPD in 1984. Officer Wright has served as a police officer with GPD continuously since being hired.

      
      

   2. From approximately 1985 until July of 1990, Officer Wright was assigned to Crime Prevention or Neighborhood Services. Officer Wright served as "Officer Friendly" and as the Explorer Advisor.

      
      

   3. While employed with GPD Officer Wright has received several awards and honors. See Petitioner's exhibit 10 for a list of Officer Wright's awards and honors.

      
      

   4. Officer Wright was awarded a B.A. degree in Criminal Justice from the University of Florida in 1983.

      
      

   5. Officer Wright's annual evaluations have been above-average.

   6. Officer Wright has received the following sustained internal affairs complaints prior to March of 1993:

      
      

      1. March 1, 1988: Involvement in an at-fault vehicle accident;

         
         

      2. October 12, 1990: Inefficiency in job performance;

         
         

      3. October 12, 1990: Offensive conduct toward the public/person - physical abuse;

         
         

      4. October 12, 1990: Offensive conduct toward the public/person - verbal abuse;

         
         

      5. October 22, 1990: Failure to appear for any legal process;

         
         

      6. December 17, 1990: Inefficiency in job performance;

         
         

      7. February 21, 1991: Inefficiency in job performance; and

         
         

      8. November 23, 1992: Inefficiency in job performance.

      
      

   7. The three complaints of October 12, 1990 all arose out of the same incident.

      
      

   8. Officer Wright received a written warning for each of the foregoing sustained complaints. A written warning is the lowest recorded punishment for a sustained complaint. A written warning may not be appealed.

      
      

   9. Officer Wright also received sustained complaints after 1991, but the evidence failed to prove that any of those sustained complaints were taken into account in determining whether to promote Officer Wright.

      
      

   10. Prior to 1990, Officer Wright had received overall ratings of 7 and above on his annual evaluations. A score of 5 is considered average.

       
       

   11. During 1990, Officer Wright and his former spouse were involved in divorce proceedings and a contested custody dispute over their daughter. These disputes caused disruptions for Officer Wright and GPD. As a result of the disruptions and the fact that Officer Wright was reassigned to patrol in 1990, Officer Wright's overall evaluations declined. For the period April 2, 1990 to April 1, 1991, his overall evaluation was 6.0. His overall evaluation for April 1, 1991 to March 30, 1992 was 6.2, and for March 20, 1992 to March 29, 1993 was 6.6.

       
       

   12. Officer Wright was counseled by his immediate supervisor, Lt. David Huckstep, about the performance of his duties during the time that Officer Wright was involved in the dispute with his former wife. Lt. Huckstep talked to Officer Wright about being late to work, an "attitude problem" and the negative impression of GPD being caused by the problems associated with Officer Wright's divorce. Lt. Huckstep also discussed these problems with Captain Richard Carroll. Captain Carroll was part of the Command Staff that was involved in discussions of candidates for promotion to corporal, discussed, infra.

       
       

3. Officer Wright's Activities on Behalf of African- American Issues.

   1. Officer Wright has been active in promoting the betterment of African- American officers of GPD since becoming a police officer.

      
      

   2. Officer Wright's activities on behalf of African-American issues has been very vocal and open. There are some who perceive Officer Wright's methods as too aggressive or vocal. The evidence, however, failed to prove that perception is held by Command Staff or Chief Clifton.

      
      

   3. On September 25, 1985, Officer Wright, along with ten other officers, were appointed by Chief Clifton as "recruitment team members". Petitioner's exhibit 3. Chief Clifton informed Officer Wright and the other team members that they would be assigned, as needed and on a rotational basis to recruitment functions by the Police Personnel Office. Officer Wright and the other team members had expressed interest in assisting with recruitment.

      
      

   4. On September 20, 1988, Officer Wright and eleven other individuals were appointed by Chief Clifton as a "Minority Recruiting and Training Task Force".

      
      

   5. On October 3, 1990, Officer Wright and fourteen other officers were appointed by the Professional Standards Commander, Captain Eugene K. Ross, to participate in the oral interview board for police officer applicants. Appointment to this task was based upon the expressed interest of the participants.

      
      

   6. Officer Wright has questioned the success of GPD's efforts to recruit and promote African Americans and has questioned the discipline of African American police officers. The evidence, however, failed to prove that Officer Wright's activities on behalf of African Americans amounted to opposition to any unlawful employment practice under Chapter 760, Florida Statutes, by GPD, except as discussed in section D of this Recommended Order.

      
      

4. Officer Wright's Meeting with the City Manager.

   
   

   1. At some time during 1990, Officer Wright, Captain Tony Jones, Lt. Alena Buggs (then known as Alena Lawson) and Sergeant Wayne Ashe met with Paul White, the City of Gainesville City Manager.

      
      

   2. The meeting with Mr. White was requested for the purpose of discussing the hiring and promotion of African-Americans at GPD.

      
      

   3. A perceived disparate treatment of African-American officers with regard to disciplinary actions at GPD was also briefly discussed with Mr. White. In particular, Officer Wright gave Mr. White a copy of an Internal Affairs report concerning a complaint against Officer Dan Schilling (hereinafter referred to as the "Schilling Report"). See Petitioner's exhibit 2.

      
      

   4. Officer Schilling had been found to have used the words "those God damn niggers" in front of others. When the report was forwarded to Chief Clifton from internal affairs an Employee Notice form summarizing the incident was used to send the actual detailed report to Chief Clifton. Petitioner's exhibit 2. Under the "Comments" section of the Employee Notice the offending words were quoted.

   5. Chief Clifton sent the report back with a note indicating that he would sign the report and accept the recommended punishment when the quoted offensive words were removed. The words were later removed and Chief Clifton approved the report and the proposed punishment.

      
      

   6. Mr. White told the officers that he would look into the Schilling Report. The evidence, however, failed to prove whether Mr. White ever spoke to Chief Clifton or any other individual about the Schilling Report or the meeting.

      
      

5. Officer Wright's Transfer to Patrol in July of 1990.

   
   

   1. On or about July 3, 1990, a transfer order was issued transferring Officer Wright to the Patrol Division. See. Respondent's exhibit 1.

      
      

   2. The transfer order of July 3, 1990 was issued after Officer Wright had given the Schilling Report to Mr. White. The evidence failed to prove how long a period of time had passed after the meeting with Mr. White before the transfer was ordered.

      
      

   3. Pursuant to the transfer order, four other officers were also transferred. During the month of July of 1990 a total of eight officers were transferred to patrol. None of the officers transferred had attended the meeting with Mr. White except Officer Wright.

      
      

   4. Of the individuals who attended the meeting with Mr. White, only Officer Wright was transferred.

      
      

   5. The transfer was effective July 23, 1990. Initially Officer Wright was to be assigned to the midnight shift.

      
      

   6. Officer Wright was absent on leave when the transfer order was issued. He learned of the transfer on July 10, 1990. Captain Jones informed Officer Wright of the transfer.

      
      

   7. Officer Wright spoke to Captain Noel Thomas, the commander of Patrol, on July 10, 1990 concerning the transfer. Officer Wright requested orally and by memorandum that he be assigned to a day-shift. See Respondent's exhibit 7. This request was made because Officer Wright was a single parent with custody of his three-year old daughter.

      
      

   8. Although Captain Thomas initially told Officer Wright that he would be assigned to the midnight shift, the next day, July 11, 1990, Captain Thomas told Officer Wright that his request to be assigned to a day shift would be approved.

      
      

   9. Patrol is the largest division of the GPD and is the primary service provided by GPD. All commanders, including the commander in charge of the Neighborhood Services Division of GPD, Captain Jones, were informed that there was a shortage of personnel in the Patrol Division. Therefore, the Chief directed Captain Jones and the other commanders to look within their respective divisions and make recommendations about any officer that could be transferred to patrol.

      
      

   10. Captain Jones decided that either the school resource officer at Gainesville High School, Officer Burke, or the Explorer Advisor, Officer Wright, should be returned to Patrol. Captain Jones decided that it was more important to retain an officer at the high school than to have an Explorer Advisor. This decision was based upon Captain Jones' belief that, if the high school resource

       officer was removed, patrol would simply take the officer's place by having to respond to calls from the high school.

       
       

   11. Captain Jones recommended that Officer Wright be transferred to Patrol. Captain Jones was not directed by anyone to select Officer Wright. Captain Jones' recommendation was accepted by Captain Clifton.

       
       

   12. After Captain Jones had recommended that Officer Wright be transferred and Chief Clifton had accepted the recommendation, Captain Ross met with Chief Clifton. During this meeting the question was raised as to whether Officer Wright's transfer might be perceived as retaliation for his having met with Mr. White. The evidence concerning this meeting, however, failed to prove that Chief Clifton made the decision to transfer Officer Wright based upon his involvement in the meeting with Mr. White. Captain Ross was unable to recall exactly who participated in the meeting, whether Chief Clifton made any statement to the effect that his decision to transfer Officer Wright was based in any way on the meeting with Mr. White or whether Chief Clifton was aware of the meeting with Mr. White prior to the decision to transfer or the meeting with Captain Ross. The evidence also failed to prove whether Chief Clifton was informed that Officer Wright had given the Schilling Report to Mr. White or otherwise suggested that the action in the Schilling Report was an example of disparate treatment based upon race in violation of Chapter 760, Florida Statutes.

       
       

   13. The evidence failed to prove that Officer Wright was transferred to patrol for any discriminatory reason.

       
       

   14. No complaint was filed by Officer Wright within 365 days of his transfer to patrol alleging that his transfer was for discriminatory reasons.

       
       

6. The 1991 Corporal's Eligibility List.

   
   

   1. Effective December of 1991 a group of officers qualified for promotion to corporal. They qualified for promotion by successfully completing a test and assessment.

      
      

   2. The officers that qualified for promotion to corporal in 1991 were listed alphabetically on the "1991 Corporal's Eligibility List" (hereinafter referred to as the "Corporal's List"). Respondent's exhibit 11. All of the individuals that qualified for promotion were listed alphabetically. Officer Wright was the last person on the Corporal's list.

      
      

   3. Inclusion on the Corporal's List meant that each of the individuals listed met the minimum requirements for promotion. Inclusion did not, however, mean that each individual on the list was equally qualified. Some judgment was necessary to decide which individuals on the list were actually promoted absent a need to promote all of the individuals on the list.

      
      

   4. Officer Wright was one of the individuals listed on the Corporal's List.

      
      

   5. Pursuant to contract with the union representing employees of GPD, the Corporal's List was valid for an eighteen month period: December, 1991, to May, 1993.

      
      

   6. There were twenty-six individuals listed on the Corporal's List.

7. Promotions From the Corporal's List.

   
   

   1. Chief Clifton was provided with information from the Commander in Charge of Personnel concerning each candidate's personnel record, including their annual evaluation scores, training and the length and type of their service at GPD. Chief Clifton was also provided with information from the Internal Affairs Commander concerning each candidate's sustained internal affairs complaints.

      
      

   2. Prior to January 6, 1992, when the first promotion from the Corporal's List was made, Chief Clifton met with the Commander in Charge of Personnel, the Internal Affairs Commander, the Deputy Chief and the Captains of each division of GPD to discuss the individuals on the Corporal's List.

      
      

   3. The purpose of the meeting was to allow Chief Clifton to receive input from his command staff concerning the individuals on the Corporal's list. There were more than 200 officers employed by GPD. Chief Clifton was not familiar with all of the officers and, therefore, he looked to his command staff for input.

      
      

   4. Chief Clifton insists that any comments for or against an officer on a promotion list be supported by specifics.

      
      

   5. The discussion of candidates on a promotion list can be extensive, lasting two to three hours.

      
      

   6. Chief Clifton considers comments made by his command staff concerning officers on promotion lists along with the other information he is provided about candidates mentioned in finding of fact 50. Chief Clifton, however, makes the final decision as to which officers are promoted.

      
      

   7. If someone speaks highly about a candidate for promotion on a promotion list, that individual has a better chance of being promoted. The decision is not, however, a popularity contest in which the person most liked gets promoted. If an individual is spoken highly of by his or her supervisors, it is reasonable that the Chief would give those comments great weight.

      
      

   8. Chief Clifton asked for comment about each person listed on the Corporal's List. Chief Clifton took the names on the Corporal's List in reverse alphabetical order. Therefore, Chief Clifton first asked if there were any pro's or con's concerning Officer Wright. No one in the meeting made any comment concerning Officer Wright. Chief Clifton repeated Officer Wright's name a second time. Again, there was no response. Chief Clifton then went on to the next name.

      
      

   9. Of the twenty-six individuals on the Corporal's List, Officer Wright was the only officer that received no comments whatsoever during the meeting to review the Corporal's List.

      
      

   10. After the meeting with the command staff, Chief Clifton met with Lt. Scott and Deputy Chief Johnston and informed them of his decision.

       
       

   11. Chief Clifton subsequently made promotions of seventeen individuals on the Corporal's List. The following promotions were made from the Corporal's List:

       1. January 6, 1992: Terry Converse, Paul Forsberg, Shelly Grulke, Stephen Kramig and Jeffrey Rouse (or Reese);

          
          

       2. April 27, 1992: Edward Posey and Larry Seale;

          
          

       3. November 23, 1992: Mary Birkhold, Mason Byrd, Corey Dahlem, Steve Dean, David Riker, Stephen Weaver and L. Dale Witt;

          
          

       4. January 4, 1993: Timothy Hayes, Martin Krpan; and

          
          

       5. March 29, 1993: Edward Legall.

       
       

   12. Chief Clifton met with Lt. Scott and Deputy Chief Johnston prior to each of the promotion decisions on the Corporal's List. Lt. Scott reminded the Chief during these meetings of the first meeting with the command staff.

       
       

   13. The last person to be promoted from the Corporal's List was Edward Legall.

       
       

   14. Officer Wright continued to be eligible for promotion off the Corporal's List until it expired in May of 1993.

       
       

   15. Officer Wright was not selected by the Chief for promotion from the Corporal's List. Eight other individuals on the list were also not promoted. Officer Wright could not have known that he would not be selected for promotion until May of 1993.

       
       

   16. Officer Wright has not qualified for any other promotion list.

       
       

8. The Basis for Not Promoting Officer Wright.

1. The evidence in this case failed to prove that Officer Wright was not promoted due to his activities on behalf of African American officers.

   
   

2. The evidence also failed to prove that Officer Wright was not promoted due to his having given the Schilling Report to Mr. White. Although Mr. White indicated that he would speak to Chief Clifton about the Schilling Report, the weight of the evidence failed to prove whether he actually did. To conclude that Mr. White actually spoke to Chief Clifton would require inappropriate speculation.

   
   

3. The evidence also failed to prove that Officer Wright was not promoted due to his having met with Mr. White. One of the other individuals that met with Mr. White, Wayne Ashe, was subsequently promoted to Sergeant in November of 1992. Sergeant Ashe was on the sergeant's promotion list considered at the same time as the Corporal's List.

   
   

4. The evidence also failed to prove that Officer Wright was more qualified than any of the officers selected for promotion off the Corporal's List. The only evidence presented by Officer Wright concerning any of the officers promoted was evidence comparing his education with theirs. That evidence indicated that Officer Wright had more formal education than most of the promoted officers. The evidence, however, proved that more than education was taken into account in deciding who was promoted. Also considered by Chief Clifton was: interval affairs history, performance appraisals, service with GPD, the location and circumstances surrounding the position to be filed and input from the Commanders about a candidate's performance, abilities and interaction

   with other officers. Officer Wright failed to present evidence concerning all of these factors with regard to the officers promoted off of the Corporal's List.

   
   

5. Finally, the evidence failed to prove that Officer Wright was denied a promotion because GPD or Chief Clifton perceived Officer Wright as a "racist".

   
   

   I. Officer Wright's Complaint.

   
   

6. Officer Wright filed a Charge of Discrimination with the Commission on or about November 11, 1993 alleging that Chief Clifton had subjected him to certain retaliatory actions.

   
   

7. In his complaint, Officer Wright suggested that the transfer to patrol and the failure to promote him were retaliatory actions of GPD.

   
   

8. On or about July 14, 1994, the Commission entered a Notice of Determination: No Cause, finding no reasonable cause to believe that an unlawful employment practice had occurred.

   
   

9. On or about August 19, 1994, Officer Wright filed a Petition for Relief contesting the Commission's determination. The Petition was filed with the Division of Administrative Hearings on August 29, 1994.

   
   

10. In his Petition for Relief, Officer Wright alleged that Respondent violated the Florida Civil Rights Act of 1992, as amended, in the following manner:

    
    

    I contend that I was not promoted as a retal- iatory measure resulting from my questioning the Department's commitment to increasing the numbers of African-American police officers. My comments, as reported to me by Deputy Chief

    Darryl [sic] Johnston, led to be being perceived as a "racist" by command staff, and he further suggested that this perception influenced my not being selected for promotion.

    
    

11. Officer Wright also alleged the following "ultimate facts":

    
    

    I allege that discriminatory labor practices occurred by my lack of promotion due to: a) retaliation for raising racial hiring issues, and b) issues of race, whereby command staff's perception of my being "racist" influenced the decision to not promote me. For entitlement,

    I request the following: a) finding of cause that discrimination did occur, b) promotion, and

    c) retroactive pay.

    
    

12. Officer Wright did not challenge his transfer to patrol in the Petition for Relief.

    CONCLUSIONS OF LAW

    
    

    1. Jurisdiction.

       
       

13. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Sections 120.57(1), Florida Statutes.

    
    

    1. The Burden of Proof.

       
       

14. Officer Wright had the ultimate burden of proving by a preponderance of the evidence that GPD discriminated against him. McDonnell Douglas v. Green, 411 U.S. 792, 804 (1973); Irby v. Allstate Insurance Co., 12 F.A.L.R. 2034, 2037 (Florida Commission on Human Relations 1989); and Martin v. Monsanto Co., 10

    F.A.L.R. 3886, 3896 (Florida Commission on Human Relations 1988).

    
    

    1. Officer Wright Has Failed to Prove All the Elements of Retaliatory Discrimination.

       
       

15. Section 760.10(1), Florida Statutes, provides that it is an "unlawful employment practice" to discriminate against any person with regard to his or her employment because of such person's "race, color, religion, sex, national origin age, handicap, or marital status."

    
    

16. Officer Wright has not alleged that GPD discriminated against him in violation of Section 760.10(1), Florida Statutes.

    
    

17. Officer Wright has, without any reference to Chapter 760, Florida Statutes, alleged that GPD has taken retaliatory actions against him in a discriminatory manner. Presumably, Officer Wright is relying upon Section 760.10(7), Florida Statutes, which provides that it is 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 under this section

    or because that person has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section. [Emphasis added].

    
    

18. Officer Wright has not alleged that he was discriminated against because of his involvement in any "investigation, proceeding, or hearing under this section." Therefore, it is assumed that Officer Wright is alleging that the retaliatory action taken by GPD against him was because he had "opposed any practice which is an unlawful employment practice under this section "

    
    

19. In order for Officer Wright to prevail, he was required to first present a prima facie that (a) he engaged in statutorily protected expression;

    (b) that he suffered an adverse employment action; and (c) that there is a causal connection between the two. Meeks v. Computer Associates Intern, 15 F.3d 1013 (11th Cir. 1994).

    
    

20. With regard to the statutorily protected expression, Officer Wright has alleged very generally that his activities on behalf of African American issues caused Chief Clifton to retaliate against him. Officer Wright also alleged that he was retaliated because of a belief that he was a "racist".

21. Although not alleged in his petition for relief, Officer Wright contended at the final hearing that Chief Clifton may have retaliated against him for giving the Schilling Report to Mr. White because Chief Clifton was embarrassed by the report and the manner in which he had treated the report.

    
    

22. Officer Wright failed to allege that he was retaliated against because the Schilling Report embarrassed Chief Clifton in his petition for relief and, therefore, may not rely upon it in this proceeding.

    
    

23. A "belief" that Officer Wright is a "racist" is not an unlawful practice under Section 760.10, Florida Statutes. Therefore, even if the evidence had proved that Chief Clifton believed that Officer Wright was a racist and did not promote him for that reason, the failure to promote Officer Wright would not be an unlawful employment practice.

    
    

24. Officer Wright's activities on behalf of African American issues, at least as described in the testimony presented during the final hearing of this case, also does not constitute opposition to an unlawful employment practice under Section 760.10, Florida Statutes.

    
    

25. The only opposition Officer Wright proved he took to what "may" be an unlawful employment practice under Section 760.10, Florida Statutes, took place during his meeting with Mr. White when Officer Wright suggested that the Schilling Report constituted an example of disparate treatment between African American and white police officers by GPD. This conclusion does not, however, end the inquiry.

    
    

26. GPD has argued that Officer Wright was required to not only prove that he opposed or questioned an act of GPD as being an unlawful employment practice but that he was also required to prove that the unlawful employment practice actually occurred. A strict reading of Section 760.10(7), Florida Statutes, supports this argument. Section 760.10(7), Florida Statutes does provide that the opposition must be to a practice "which is an unlawful employment practice under this section." See Crowley v. Prince George's County, 890 F.2d 683 (4th Cir. 1989).

    
    

27. GPD presented proof to support a finding that its efforts to hire and promote African Americans did not violate Section 760.10(1), Florida Statutes. GPD's proposed findings of fact are hereby accepted in the Commission accepts the strict interpretation of Section 760.10(7), Florida Statutes, advanced by GPD.

    
    

28. If the Commission accepts the strict interpretation of Section 760.10(7), Florida Statutes, suggested by GPD, Officer Wright has failed to prove that he has committed any act for which retaliation (if proven) is actionable under Chapter 760, Florida Statutes.

    
    

29. If the Commission rejects the strict interpretation suggested by GPD, Officer Wright has proved the first element of a prima facie case of discrimination. Officer Wright has proved that he opposed a practice which, if true, would constitute an unlawful employment practice.

    
    

30. Office Wright has proved the second element of a prima facie case of discrimination: that he suffered an adverse employment action when he was not promoted to corporal.

31. Officer Wright has failed to prove the third element of a prima facie case of discrimination. Even if the Commission concludes that Officer Wright engaged in statutorily protected expression when he suggested GPD was guilty of disparate treatment of African American officers for purposes of discipline, he failed to prove that his action was in any way related to the decision not to promote him.

    
    

    1. Request for an Award of Attorney Fees.

    
    

32. GPD has requested an award of attorney fees pursuant to Section 760.11(6), Florida Statutes. Such an award may be ordered by the Commission if it is determined that an action was "frivolous, unreasonable, or without foundation", or "that the plaintiff continued to litigate after it clearly became so". Christianburg Garment Co. v. EEOC, 434 U.S. 412, 421-422 (1978).

    
    

33. The evidence in this proceeding failed to prove that Officer Wright's action justifies an award of attorney fees.

ORDER

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

dismissing the Petition for Relief filed by Robert L. Wright.

DONE and ORDERED this 5th day of May, 1995, in Tallahassee, Florida.

LARRY J. SARTIN, 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 May, 1995.

APPENDIX

The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

Mr. Wright's Proposed Findings of Fact

Mr. Wright did not number his proposed findings of fact as directed. The references below are to each paragraph of his proposed order beginning with the paragraph "1" under "MINORITY ISSUES" on page 2 of his proposed order.

Page 2:

1. Accepted in 18-21. Sentences 4 through the end of the paragraph are not supported by the weight of the evidence.

2. Not supported by the weight of the evidence.

   
   

   Page 3:

3. The first two sentences are not supported by the weight of the evidence. The third through last sentence are summaries of testimony.

4. The first five sentences summarize testimony that supports finding of fact 18 and 19. The sixth through eighth sentences are not supported by the weight of the evidence.

5. The first seven sentences summarize testimony that supports finding of fact 18 and 19. Sentences eight through seventeen summarize testimony that was insufficient to prove the ultimate facts the testimony is quoted in support of. Sentences eighteen through the end is not supported by the weight of the evidence.

   
   

   Page 4:

6. Sentences one through three are not supported by the weight of the evidence. The rest of the proposed findings go to the credibility of a witness.

7 See 50-56.

8 See 50-56

1. Comments of the Hearing Officer do not constitute evidence.

   
   

   Page 5:

2. Not relevant.

3. See 41.

   
   

   Page 6:

4. See 41.

5. Not supported by the weight of the evidence.

6. Accepted in 5--56.

   
   

   Page 7:

7. Hereby accepted. See 55 with regard to the last sentence.

8. Not relevant.

9. Not relevant. Takes the testimony of Captain Jones out of context. The term "advocates" was never precisely defined. It was not, therefore, established whether Captain Jones' comments would also apply to simply discussing someone under his command as opposed to "advocating" for them.

18 See 26-29.

Page 8:

1. Not supported by the weight of the evidence.

2. Not supported by the weight of the evidence. 21-22 Goes to the credibility of a witness.

Page 9:

23 See 30-43.

Page 10:

24 Goes to the credibility of a witness.

and 47: Hereby accepted. The relevancy of these proposed findings is questionable and is discussed briefly under Conclusions of Law.

8 Accepted in 24 and hereby accepted.

11 Not relevant. The program was established after the relevant events in this matter.

1. Hereby accepted.

2. Accepted in 66-70.

3. Accepted in 36.

4. Accepted in 7 and 36-37.

5. Accepted in 38.

6. Accepted in 39.

20-21 Accepted in 40.

1. Accepted in 30 and 34-35.

2. Hereby accepted.

3. Accepted in 36. See 37.

4. Accepted in 32.

5. See 41.

6. Accepted in 42 and 67-68.

7. Accepted in 42 and 66.

8. Accepted in 43. 30-33 Hereby accepted.

1. Accepted in 46.

2. Accepted in 50.

3. Accepted in 51-52.

4. Accepted in 52.

5. Accepted in 54.

6. Accepted in 52.

7. Accepted in 54.

8. Accepted in 55, 59 and 61.

9. Hereby accepted.

10. Accepted in 48 and 61.

11. Accepted in 61 and hereby accepted.

12. Accepted in 69.

13. Hereby accepted.

48 See 48 and 65. 49-50 Hereby accepted.

1. Accepted in 57.

2. Accepted in 57-58.

3. Accepted in 57 and hereby accepted.

4. Hereby accepted.

5. See 62. The relevant period is 365 days and not 300. Additionally, it was not until the Corporal's List was not longer in effect that Mr. Wright could have concluded that he may have been retaliated against.

56-61 These proposed findings are true. See 69.

1. Hereby accepted.

2. Accepted in 16-17.

3. Hereby accepted.

65-66 These proposed findings are true. See 69.

1. Accepted in 11.

2. Accepted in 64.

69 See 66-70.

70 Accepted in 66-70.

COPIES FURNISHED:

Robert L. Wright

1130 S. W. 16th Avenue, Apartment 72 Gainesville, Florida 32601

Elizabeth A. Waratuke Assistant City Attorney City of Gainesville Post Office Box 1110

Gainesville, Florida 32602

Sharon Moultry, Clerk

Florida Commission on Human Relations

325 John Knox Road Bldg F, Suite 240

Tallahassee, Florida 32303

Dana Baird

Florida Commission on Human Relations

325 John Knox Road Bldg F, Suite 240

Tallahassee, Florida 32303

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: 94-004720

Orders for Case No: 94-004720