STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JULIO MARTINEZ, )

)

Petitioner, )

)

vs. ) Case No. 01-3464

) 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 November 9, 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 Offices 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, the parties agreed to incorporate the evidentiary record of the hearing conducted the previous day in Rolanda Boada v. City of Hialeah Gardens, DOAH Case No. 01-3463. The evidentiary record in that case consists of the testimony of three witnesses called by Petitioner, four witnesses called by Respondent, Petitioner Exhibits 1-3 and 5, and Respondent Exhibits 1-21. In addition, Petitioner offered eight additional exhibits: Petitioner Exhibits 6-13; Respondent offered twelve additional exhibits: Respondent Exhibits 22-33; Petitioner called seven witnesses; and Respondent called four witnesses.

All of the exhibits were admitted.

The parties did not order a transcript.

FINDINGS OF FACT

1. Petitioner was born on June 26, 1943. He has served as a city council member and mayor of Hialeah, which, during his three-year term as mayor, had 230,000 residents and nearly 1,200 city employees. Petitioner has served on the Dade League of Cities for seven or eight years, as well as the United States League of Cities and a committee of the United States Department of Housing and Urban Development. From October 1998 through

   November 27, 2000, Petitioner served as Park Director of Respondent, which is considerably less populated than Hialeah.

2. On July 18, 2000, Yioset de la Cruz was elected Mayor of Respondent. Mayor de la Cruz had been employed by Respondent during the administration 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.

3. 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.

4. 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.

5. Relations between Petitioner and Mr. Ruiz, who was the Director of Administration for Respondent, were often strained.

   Mr. Ruiz felt that Petitioner did not cooperate with him, but instead forced Mr. Ruiz to perform Petitioner's job by following through on parks projects until their completion.

6. At the same time, Mayor de la Cruz felt that the condition of the parks was not improving. Mayor de la Cruz believed that Petitioner was at fault in failing to execute the Mayor's policies on maintaining and operating the parks.

7. There is considerable dispute between Petitioner and his witnesses and Respondent and its witnesses as to whether the perceptions of Mayor de la Cruz and Mr. Ruiz were accurate concerning the inadequacies of Petitioner's job performance. For instance, Mayor de la Cruz testified to a long list of jobs, such as the erection of signage and repair of an air conditioning unit, that went undone or were finished too slowly under Petitioner. The Mayor also detailed dramatic improvement in the condition of the parks after the termination of Petitioner. On the other hand, Petitioner testified that Respondent did not have the funds for certain jobs, such as major drainage work, and that other work necessarily required a long time to complete. Petitioner also detailed dramatic deterioration in the condition of the parks after his termination.

8. It is undisputed that Mayor de la Cruz fired Petitioner in late November 2000, a few days after firing Petitioner's Assistant Park Director, Rolanda Boada, for insubordination.

9. It is not seriously disputed that Mayor de la Cruz did not fire Petitioner due to age discrimination. The Mayor claims that he fired Petitioner due to poor job performance. Petitioner claimed in a newspaper interview shortly after the termination that his termination was due to politics. While testifying, Petitioner repeated the same claim several times on direct until he finally--and unconvincingly--recalled that his age was also a reason for his termination.

10. Whether Mayor de la Cruz fired Petitioner due to the Mayor's perception of poor job performance or insufficient loyalty is irrelevant to this case because the evidence fails to establish that the Mayor terminated Petitioner due to his age.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes.

12. Section 760.10(1)(a), Florida Statutes, prohibits employment discrimination based on age.

13. 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. He either perceived that Petitioner was not doing an adequate job in administering the parks or that the Mayor needed a person more committed to the Mayor and the implementation of his programs. Either way, the Mayor did not fire Petitioner due to his age.

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

Coral Gables, Florida 33134

J. Frost Walker, III

Law Offices of J. Frost Walker, III

100 West Sunrise Boulevard 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 Relations

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: 01-003464

Orders for Case No: 01-003464