STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROLANDA BOADA, )

)

Petitioner, )

)

vs. ) Case No. 01-3463

) CITY OF HIALEAH GARDENS, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Miami, Florida, on October 3, 2001.

APPEARANCES

For Petitioner: Gary A. Costales

Law Office of Gary A. Costales, P.A. 2151 LeJeune Road, Suite 200

Coral Gables, Florida 33134

For Respondent: J. Frost Walker, III

Law Office of J. Frost Walker, III

100 West Sunrise Avenue Coral Gables, Florida 33133

STATEMENT OF THE ISSUE

The issue is whether Respondent is guilty of discriminating against Petitioner in employment based on his age, in violation of Section 760.10(1)(a), Florida Statutes.

PRELIMINARY STATEMENT

By Petitioners' Request for Administrative Hearing filed August 24, 2001, Petitioner alleged that Respondent terminated Petitioner due to age discrimination.

At the hearing, Petitioner called three witnesses and offered into evidence four exhibits: Petitioner Exhibits 1-3 and 5. Respondent called four witnesses and offered into evidence 21 exhibits: Respondent Exhibits 1-21. All exhibits were admitted.

The parties did not order a transcript.

FINDINGS OF FACT

1. Petitioner was born on September 13, 1955. He was initially employed by Respondent in 1996. He remained employed with Respondent until he was terminated in late November 2000.

2. At the time of his termination, Petitioner served as the Assistant Director of Parks. His immediate supervisor was Julio Martinez, who was the Director of Parks.

3. On July 18, 2000, Yioset de la Cruz was elected Mayor of Respondent. Mayor de la Cruz had been employed by Respondent during the administrations of Mayors Oliveros, Fatima, and Morejon. However, Mayor Morejon terminated the employment of Mr. de la Cruz, as well as several other employees who had served under Mayor Fatima.

4. Running on the promise to clean up the city, Mr. de la Cruz won 57 percent of the vote and defeated then-Mayor Morejon. When he assumed office, Mayor de la Cruz had to address several pressing financial issues, including a projected deficit of

   $540,000 for the fiscal year and the cancellation of Respondent's insurance by The Florida League of Cities.

5. At the same time, the people of Hialeah Gardens had become dissatisfied with the maintenance and operation of their city parks, which are the most visible reflection of the quality of their city government. Appointing Arturo Ruiz to oversee the parks and their maintenance and operation, Mayor de la Cruz nonetheless remained directly involved in parks administration by imposing new discipline upon parks workers to ensure public satisfaction with the maintenance and operation of city parks.

6. Shortly after disciplining Petitioner for improper use of his city telephone, Mayor de la Cruz visited Respondent's office, which was located in one of the major city parks, to assure that city park employees had completed their preparations for the long holiday weekend of Thanksgiving 2000. Unable to find Petitioner at his office, Mayor de la Cruz asked to see Petitioner's time card and found that he had not punched out for the day. After driving through nearby parks in search of Petitioner, Mayor de la Cruz returned to the office, where the secretary belatedly informed him that Petitioner had called in

   to say that he had fallen ill and asked that another employee punch him out for the day.

7. After Mayor de la Cruz and the secretary finished speaking, Mayor de la Cruz spoke with Petitioner by telephone. When Mayor de la Cruz attempted to discuss the matter with Petitioner, Petitioner became disrespectful and insubordinate. Petitioner began screaming and swearing at the Mayor, who responded by promptly firing Petitioner.

8. The evidence in this case is clear that Mayor de la Cruz fired Petitioner due to his insubordination, not due to his

   age.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has

   
   

   jurisdiction over the subject matter. Section 120.57(1), Florida Statutes.

10. Section 760.10(1)(a), Florida Statute, prohibits employment discrimination based on age.

11. Petitioner has failed to prove that he lost his job due to discrimination based on Petitioner's age. Mayor de la Cruz was trying to regain the confidence of the public in the administration of the city's parks, and he reasonably required the cooperation of the city parks employees in this effort. Petitioner's ill-tempered display reasonably demonstrated to the Mayor that he could not rely on Petitioner's cooperation in this

    effort. Without delay, the Mayor fired Petitioner for insubordination and did so with ample cause.

12. Respondent's request for attorneys' fees and costs is denied.

RECOMMENDATION

It is

RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Request for Administrative Hearing.

DONE AND ENTERED this 7th day of February, 2002, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 2002.

COPIES FURNISHED:

Gary A. Costales

Law Office of Gary A. Costales, P.A. 2151 LeJeune Road, Suite 200

Coral Gables, Florida 33134

J. Frost Walker, III, Esquire

Law Office of J. Frost Walker, III

100 West Sunrise Avenue Coral Gables, Florida 33133

Derick Daniel, Executive Director Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Cecil Howard, General Counsel Florida Commission on Human Relation

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Violet D. Crawford, Agency Clerk Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions to this recommended order must be filed with the agency that will issue the final order in this case.

Docket for Case No: 01-003463

Orders for Case No: 01-003463