STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IVAN ROSARIO, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5380

)

ORANGE COUNTY, FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case by videoconference on February 7, 1996. The parties, their witnesses and the court reporter participated from the videoconference center in the Hurston Building, Orlando, Florida; the Hearing Officer presided from the videoconference center in the DeSoto Building, Tallahassee, Florida.

APPEARANCES

For Petitioner: Ivan Rosario

16268 East Colonial Drive Orlando, Florida 32820

For Respondent: Jeffrey J. Newton

Assistant County Attorney Orange County Attorney's Office Post Office Box 1393

Orlando, Florida 32802-1393 STATEMENT OF THE ISSUES

Petitioner's Charge of Discrimination and Petition for Relief allege that Respondent violated the Florida Civil Rights Act of 1992, Chapter 760, Florida Statutes, by placing false accusations in Ivan Rosario's personnel file, causing him to be denied promotional opportunity and discriminating against him on account of his national origin (Puerto Rican). The issue for resolution in this case is whether that violation occurred, and if so, what relief is appropriate. At hearing, and in his written material filed after hearing, Mr. Rosario has alluded to other grievances or complaints against his employer. The only complaint at issue here, however, is the one described above (FCHR No. 94-C954).

PRELIMINARY STATEMENT

After an initial investigation of Petitioner's allegations and a determination: no cause, the Florida Commission on Human Relations forwarded the case to the Division of Administrative Hearings for its conduct of "all necessary proceedings" and a recommended order.

Respondent filed its answer denying every allegation and asserting its affirmative defense. The hearing was thereafter scheduled and proceeded as stated above.

Because of the unavailability of a key witness for both parties, it was agreed prior to hearing that the record would remain open for the deposition of that witness, William Baxter.

At hearing Petitioner testified in his own behalf and presented the additional testimony of Miguel Ortiz, Jason Stroud and Bernard Ouellette. Respondent presented the testimony of Mark Massaro.

Petitioner offered three exhibits for admission in evidence: a several-page document with legal definitions from an encyclopedia and a brief statement of his case; two pages from the Orange County employees' code of conduct; and two pages from what appear to be Petitioner's medical records. The documents were marked for identification respectively as Petitioner's exhibits nos. 1 through 3.

Each of the exhibits has been considered in the preparation of this order, but they have not affected the recommended outcome.

The deposition of William P. Baxter was taken on February 29, 1996 and the deposition was filed on March 20, 1996. Respondent's exhibits nos. 1 through 3 are attached to that deposition. The parties were permitted to file proposed recommended orders within ten (10) days of the filing of the transcript.

The ten-day deadline has passed and as of this date neither party has provided a proposed recommended order.

FINDINGS OF FACT

1. Ivan Rosario, the Petitioner, was at all relevant times an employee of Orange County, Florida, as an equipment operator (EO III) in the highway maintenance department and assigned to the landscape crew. Mr. Rosario's national origin, Puerto Rican, is uncontroverted.

   
   

2. William Baxter is also an employee of Orange County and in 1989 was manager of highway maintenance. On or about October 10, 1989 he received a memo from Ivan Rosario's foreman recommending that Mr. Rosario be terminated for failing to meet the minimum qualifications for equipment operator. Mr. Rosario had been in that position since approximately September 27, 1989.

   
   

3. In accordance with established due process requirements and Orange County policy, and after notice to Mr. Rosario and to other relevant parties, William Baxter conducted a pretermination hearing on October 20, 1989. The outcome of the hearing was Mr. Baxter's determination that Mr. Rosario was exonerated of any of the accusations or charges. Mr. Rosario was not terminated.

   
   

4. It is Mr. Baxter's usual practice after such proceedings to write a letter stating the outcome and to provide a copy to the employee and to the personnel file. However, several years after the 1989 hearing, Mr. Rosario informed Mr. Baxter that the letter was not in his personnel file. After verifying this fact, Mr. Baxter agreed to write a statement and to put it in his personnel file.

5. Mr. Baxter or someone in the county administrative staff had also inquired of the legal staff whether the original written charges could be removed from Mr. Rosario's personnel file. The response from the county attorney's staff was that the personnel files were public records and could not be destroyed or expunged without violating Chapter 119, Florida Statutes.

   
   

6. In a memo dated August 1, 1994, William Baxter directed Mark Massaro, the manager of traffic engineering, to place this statement in Mr. Rosario's file:

   
   

   On October 20, 1989, a hearing was held concerning the allegations that Mr. Rosario was hired by Orange County and on the appli- cation form he had stated he was qualified to operate equipment, however, it has been alleged that he was not capable of operating this equipment nor had he ever operated this equipment. After conducting the hearing,

   I made a determination and I can find no faults with the qualifications of Mr. Rosario and that the allegations against him were false. This was the result of the hearing.

   (Respondent's exhibit no. 3, William Baxter deposition)

   
   

7. There is no explanation of record for the absence of some written confirmation of Mr. Baxter's decision between 1989, when the hearing was held, and 1994, when the above-described memorandum was prepared. Mr. Baxter usually provides that written decision within approximately ten (10) days and he has no recollection of failing to write the letter earlier.

   
   

8. Mr. Rosario contends that the unexplained charges in his file prevented his being promoted and kept him from a union stewardship. He also contends that the charges hurt his reputation. No evidence was presented regarding any specific promotional opportunities or any reasons why such opportunities might have been denied to Mr. Rosario. "Stewardship," a union appointment, is a matter within the jurisdiction of the union and its bargaining unit members.

   The county has no control over union stewardship appointments.

   
   

9. Mr. Rosario presented two witnesses who were also displeased with their employment experiences at Orange County. Miguel Ortiz is a computer program analyst who was with the county for five years and left in October 1994 because he felt that he was denied equal employment opportunities. He filed many grievances during his tenure and was removed from stewardship due, he believes, to his pointing out problems. He concedes that union stewardship is a union matter and not a management prerogative.

   
   

10. Jason Stroud is an equipment operator with the Orange County Highway Department. He only contends that he has a case "along the same lines" as Mr. Rosario's case. He claims that the county "makes the rules," and breaks them or makes up new rules.

    
    

11. Orange County has an Equal Employment Opportunity program and compliance officer. That officer, Bernard Ouellette, investigates when there are internal charges and compiles responses to send to the federal Equal Employment Opportunity Commission or Florida Commission on Human Relations. Mr. Ouellette has, in the past, found county supervisors who violate equal

    employment laws and they are dealt with and disciplined appropriately. A recent example is a county employee who made racially derogatory remarks and was terminated.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Sections 120.57(1), Florida Statutes, and 760.11(7), Florida Statutes, (Florida Civil Rights Act of 1992).

    
    

13. Section 760.10(1)(a), Florida Statutes, provides:

    
    

    1. Unlawful employment practices.-

       1. It is unlawful employment practice for an employer:

    (a) To discharge or to fail or refuse to hire any individual, or otherwise to discri- minate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.

    
    

14. It is uncontroverted that Orange County is an "employer" as defined in Section 760.02(7), Florida Statutes, and that Mr. Rosario's national origin is Puerto Rican.

    
    

15. When, as here, the Florida Commission on Human Relations has found "no cause" to believe a violation has occurred, the aggrieved person, upon timely request, is entitled to a de novo evidentiary hearing pursuant to Section 120.57, Florida Statutes.

    
    

16. Because the Florida Civil Rights Act is patterned after the federal Civil Rights Act of 1964 (Title VII, 42 USC section 2000e, et seq.), federal case law addressing the federal act is appropriately examined. Brand v. Florida Power Corp., 633 So.2d 504, 507 (Fla. 1st DCA 1994); Florida Department of Community Affairs v. Bryant, 586 So.2d 1205 (Fla. 1st DCA 1991), cited in Kelly

    v. K.D. Construction of Florida, Inc., 866 F.Supp. 1406 (S.D. Fla 1994).

    
    

17. Kelly, supra, p. 1411, provides a concise discussion of U.S. Supreme Court and federal district court cases which define the type of evidence for the plaintiff/petitioner's burden of proof:

    
    

    Initially, the plaintiff bears the burden of proving by a preponderance of the evidence a prima facie case of discrimination. Hicks, --

    U.S. at --, 113 S.Ct. at 2747. The plaintiff may establish a prima facie case by either direct, circumstantial or statistical evidence.

    
    

    Direct evidence is evidence which, if believed, "establishes discriminatory intent without inference or presumption." Clark v. Coats and Clark, Inc., 990 F.2d 1217, 1226 (11th Cir.

    1993). "Only the most blatant remarks whose intent could only be to discriminate ...

    constitute direct evidence." Id. However, evidence which only "[suggests] discrimination, leaving the trier of fact to [infer] discrim- ination based on the evidence" is circumstantial Early v. Champion Int'l Corp., 907 F.2d 1077, 1081-82 (11th Cir. 1990) [emphasis in original].

    
    

18. Mr. Rosario presented no direct nor statistical evidence of Orange County's discrimination against him. He produced two witnesses with vague and unsubstantiated grievances against the employer. Some of those grievances, relating to stewardship, plainly are beyond the county's jurisdiction.

    
    

19. Nor has Mr. Rosario in this case presented any competent circumstantial evidence. He has established only that he was accused of being unqualified for his job, was given a proper internal hearing and was cleared. The written confirmation of that benign outcome was not placed in his personnel file until he brought it to the manager's attention, several years later. The manager, on advice of counsel, refused to expunge the original charge.

    
    

20. While Mr. Rosario claims that the unfounded charges continued to exclude him from promotional and other opportunities, he produced no evidence of those opportunities - no evidence of any promotions or other benefits he sought, was qualified for, and was denied.

    
    

21. In the case School Board of Leon Co. v. Hargis, 400 So.2d 103 (Fla. 1st DCA 1981), a far more egregious example of employer bungling was determined insufficient to create a prima facie case. There, the hearing officer found and the appellate court concurred with the hearing officer, that evidence the school board was negligent in assuming a position was already filled and failed to follow contractual hiring procedures, was insufficient to support a conclusion or even an inference of discrimination when a qualified black employee was denied a promotion.

    
    

22. All of Mr. Rosario's evidence has been summarized in the findings of fact, above. He may have been wronged, but the evidence in this case does not prove it. Even less does the evidence prove that he was wronged on account of his national origin. He has failed to meet his burden establishing a prima facie case of discrimination under the Florida Civil Rights Act of 1992.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the complaint and petition for relief by Ivan Rosario be DISMISSED.

DONE and ENTERED this 9th day of April, 1996, in Tallahassee, Florida.

MARY W. CLARK, 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 9th day of April, 1996.

COPIES FURNISHED:

Ivan Rosario

16268 East Colonial Drive Orlando, Florida 32820

Jeffrey J. Newton Assistant County Attorney

Orange County Attorney's Office Post Office Box 1393

Orlando, Florida 32802-1393

Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

Dana Baird, General Counsel Human Relations Commission Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the 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 that will issue the Final Order in this case concerning their 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: 95-005380

Orders for Case No: 95-005380