STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
OGHENERHORO BAMAWO, )
)
Petitioner, )
)
vs. ) Case No. 02-3786
)
DEPARTMENT OF CORRECTIONS, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case on July 25, 2003, in Miami, Florida, before Patricia Hart Malono, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Oghenerhoro Bamawo, pro se
North Florida Evaluation and Treatment Center
1200 Northeast 55th Boulevard Building 11
Gainesville, Florida 32641-2759
For Respondent: Gary L. Grant, Esquire
Department of Corrections 2601 Blairstone Road
Tallahassee, Florida 32399 STATEMENT OF THE ISSUE
Whether the Petitioner was discriminated against on the basis of his race, color, or national origin in violation of Section 760.10, Florida Statutes (2000).1
PRELIMINARY STATEMENT
The Petitioner, Oghenerhoro Bamawo, filed a Charge of Discrimination with the Florida Commission on Human Relations ("FCHR") on May 2, 2001, in which he alleged that he had been discriminated against on the basis of his race, his color, and his national origin by the Florida Department of Corrections ("Department"). Mr. Bamawo alleged that, during the time he was employed by the Department as a correctional officer, he was treated differently from other, similarly-situated, "Anglo" employees and was subjected to a hostile work environment that culminated in his termination from his employment. In a Determination: No Cause dated August 22, 2002, the FCHR found that there "is no reasonable cause to believe that an unlawful employment practice has occurred."
In a notice sent to Mr. Bamawo and the Department, the FCHR advised Mr. Bamawo of his right to file a Petition for Relief, which Mr. Bamawo did on September 23, 2002. In the Petition for Relief, Mr. Bamawo alleged that he "was not provided with the same terms and conditions of employment or the same work assignments as were similarly-situated employees of different races, color, and national origin." The FCHR transmitted the Petition for Relief to the Division of Administrative Hearings for assignment of an administrative law judge. Pursuant to a
Notice of Hearing, the final hearing in the case was scheduled for November 21, 2002.
Mr. Bamawo's attorney subsequently moved to withdraw as counsel; the motion was granted; and the hearing was continued. The final hearing was ultimately conducted on July 25, 2003. At the hearing, Mr. Bamawo testified on his own behalf and called Carolyn Mompremier as a witness; Petitioner's Exhibits 1 through 3 were offered and received into evidence. The Department presented the testimony of Jeffrey Wainwright and Scott Pardue, and Respondent's Exhibits 1 through 3 were offered and received into evidence.
No transcript of the proceeding was filed with the Division of Administrative Hearings. The parties timely filed proposed findings of fact and conclusions of law, which have been considered in the preparation of this Recommended Order.2
FINDINGS OF FACT
Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:
Mr. Bamawo is a black male from Nigeria.
Mr. Bamawo began working for the Department at the Dade Correctional Institution ("DCI") as a correctional officer in March 1993. At the times material to this proceeding,
Mr. Bamawo was a career service employee whose duties included
the care, custody, and control of inmates of the institution. Mr. Bamawo normally worked the third shift, from 2:00 p.m. to 10:00 p.m.
During most of the time Mr. Bamawo was employed at DCI, Captain Scott Pardue, as the third shift supervisor, directly supervised Mr. Bamawo.
According to Mr. Bamawo, he and Captain Pardue did not "see eye-to-eye" even though Mr. Bamawo tried to get along with Captain Pardue.
The first incident that Mr. Bamawo considers discriminatory occurred in 1995, when Captain Pardue formally disciplined Mr. Bamawo for writing graffiti.3 Mr. Bamawo denies that he wrote the graffiti, and he made a verbal complaint to a superior officer identified as "Colonel Thompson."
Mr. Bamawo also asserts that, in 1995, an Anglo corrections officer was promoted to sergeant, and Mr. Bamawo was required to follow his orders. Mr. Bamawo asserted that he made many complaints to Captain Pardue about this sergeant but that Captain Pardue did nothing.
Also in 1995, Captain Pardue made two remarks to Mr. Bamawo that Mr. Bamawo considered offensive: On one
occasion, Captain Pardue apparently was looking at a picture of an African woman in a National Geographic magazine when he asked Mr. Bamawo if "you people live in houses or sleep in trees";
Mr. Bamawo believed Captain Pardue was making a derogatory comment about Mr. Bamawo's being a native of Africa. Another occasion was at Thanksgiving, when Mr. Bamawo brought a can of corn to a covered-dish lunch; Mr. Bamawo opened the can of corn and set it on the table with the other food, and Captain Pardue asked if this was the way people in Africa ate corn. These remarks caused Mr. Bamawo to be humiliated and embarrassed in front of his co-workers.
Mr. Bamawo asserts that Captain Pardue refused to approve his requests for time off the job but would approve time off for Anglo officers. When Captain Pardue refused
Mr. Bamawo's requests for time off, Mr. Bamawo asked other captains for approval, and, when they refused to approve his requests for time off, Mr. Bamawo called in sick.
Mr. Bamawo recalls that, on one occasion, he was forced to miss an appointment because Captain Pardue ordered him to work overtime.
According to Mr. Bamawo, Captain Pardue accused
Mr. Bamawo of being a minute late on one occasion and penalized him, although Mr. Bamawo recalls that Captain Pardue did not penalize others for being late.
It was Mr. Bamawo's perception while he worked at DCI that, countless times, Captain Pardue changed the work assignments of Anglo officers when they requested a change, but
that Captain Pardue never changed Mr. Bamawo's work assignment when he requested a change. Mr. Bamawo believed that he was given the assignments that no one else wanted.
On March 21, 2000, Mr. Bamawo was involved in an altercation with Sergeant Frankie Tindall. Mr. Bamawo called Sergeant Tindall "bitch" and threatened to "blow away" Sergeant Tindall when Sergeant Tindall questioned Mr. Bamawo about trash that littered his post.4
On April 23, 2000, Captain Pardue designated Correctional Officer Orol as third-shift supervisor in DCI's north annex "Yard One"; Mr. Bamawo was one of three other correctional officers assigned to Yard One at the time. As designated supervisor, Mr. Orol had the authority to assign tasks to the three other officers.
Mr. Bamawo protested Captain Pardue's choice of
Mr. Orol because Mr. Orol had been out of the academy only six months; Mr. Bamawo felt that he should have been designated supervisor because he was the senior officer on the shift.
Captain Pardue told Mr. Bamawo that he felt more confident with Mr. Orol in the position of supervisor. Mr. Bamawo told Captain Pardue that he was going to file a grievance.
At some point during the daylight hours of the third shift on April 23, 2000, Mr. Orol told Mr. Bamawo to complete a check of the perimeter fence, which Mr. Bamawo considered a
difficult job to do in the daylight because it was very hot work. Mr. Bamawo refused the order and told Mr. Orol that he would do the fence check when the sun went down. After a time, Mr. Orol called Mr. Bamawo on the radio and told him again to check the perimeter fence; Mr. Bamawo again refused, using a radio shorthand phrase meaning, "Do it yourself."
Captain Pardue was monitoring the radio transmission and heard the exchange between Mr. Bamawo and Mr. Orol. Captain Pardue thought that Mr. Bamawo had responded to Mr. Orol in a "nasty" tone of voice, and, fearing that Mr. Bamawo and Mr. Orol might get into a confrontation, Captain Pardue radioed
Mr. Bamawo and told him to come to the control room.
Captain Pardue took Mr. Bamawo into a copy room and confronted him about his attitude toward Mr. Orol. Mr. Bamawo again complained about Captain Pardue's choice of Mr. Orol as supervisor rather than Mr. Bamawo. During the discussion,
Mr. Bamawo became agitated, turned, and walked away from Captain Pardue. Captain Pardue called to him and told him to come back; Mr. Bamawo turned back and approached Captain Pardue with his fists clenched, called Captain Pardue "bitch," and said he would "bust" Captain Pardue.5
At this point, Captain Pardue, fearing for his safety, called Jeffrey Wainwright, who was the acting warden of DCI. After talking with Captain Pardue and Mr. Bamawo, Mr. Wainwright
reassigned Mr. Bamawo to the women's facility across the street from DCI. Mr. Bamawo threatened to file a discrimination complaint if Mr. Wainwright did anything to him as a result of the incident with Captain Pardue.
Mr. Bamawo was terminated from his employment with the Department on May 4, 2000. Mr. Bamawo appealed his termination to PERC, which found that the Department had just cause to terminate him based on the incidents of March 21 and April 23, 2000.
Mr. Bamawo testified that, through the years, Captain Pardue made "countless" derogatory remarks about Mr. Bamawo's race and national origin. At first, according to Mr. Bamawo, he thought that Captain Pardue was joking, but that, eventually, he saw hate behind Captain Pardue's remarks.6
Mr. Bamawo also claims that Captain Pardue gave him bad work assignments; refused to give him days off; and used rookie officers like Mr. Orol to "agitate" him. Mr. Bamawo believes that he was terminated in retaliation for having threatened to file a grievance against Captain Pardue for unprofessional conduct because Captain Pardue designated
Mr. Orol as the supervisor on April 23, 2000, and allowed him to give orders to more senior correctional officers.
Other than his complaint to "Colonel Thompson" about the graffiti incident in 1995, Mr. Bamawo did not complain
during the years he worked at DCI, either verbally or in writing, that Captain Pardue made racist remarks or derogatory remarks about his national origin or that Captain Pardue discriminated against him in any respect.
Mr. Bamawo stayed in his job as a correctional officer at DCI because he liked the job, thought everyone was friendly, and liked working with the inmates. He had no problem with anyone on the job except Captain Pardue and Sergeant Tindall.7 Summary
The evidence presented by Mr. Bamawo is not sufficient to support a finding that his termination by the Department was motivated by discriminatory intent or retaliatory. Mr. Bamawo failed to present any evidence to support a finding that the Department has ever imposed a lesser penalty on anyone not a black or a person of African origin for having threatened a Department sergeant or captain with violence. Mr. Bamawo has failed to present sufficient evidence to support a finding that his termination was retaliatory because he had not, at the time he was terminated, filed an employment discrimination complaint; rather, Mr. Bamawo had merely threatened Mr. Wainwright that he would file such a complaint if disciplinary action were taken against him for the April 23, 2000, incident involving Captain Pardue.
The evidence presented by Mr. Bamawo is not sufficient to support a finding that he was subjected to continual harassment based on his race or national origin such that his ability to function as a correctional officer was impeded. Although Mr. Bamawo, as a black man of African origin, is a member of two protected classes, he did not present evidence sufficient to establish that he was treated differently from other correctional officers with respect to pay, assignments, time off, or any other aspect of his employment with the Department, and he did not present sufficient evidence to support a finding that he was forced to endure an abusive and hostile work environment at DCI.
The evidence submitted by Mr. Bamawo is sufficient to establish that, in 1995, Captain Pardue made a remark about Africans sleeping in trees and a remark about the manner in which Africans served canned corn, but, even though Mr. Bamawo was humiliated and embarrassed by these boorish remarks, these two isolated instances of derogatory comments based on race and national origin are not indicative of a pervasively hostile or abusive work environment.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of
the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2003).
Section 760.10, Florida Statutes, part of the Florida Civil Rights Act of 1992, provided as follows:
It is an unlawful employment practice for an employer:
To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges or employment, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.
* * *
(7) It is an unlawful employment practice for an employer, an employment agency, a joint labor-management committee, or a labor organization 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.
Florida courts routinely rely on decisions of the federal courts construing Title VII of the Civil Rights Act of 1964, codified at Title 42, Section 2000e et seq., United States Code, ("Title VII"), when construing the Florida Civil Rights Act of 1992, "because the Florida act was patterned after
Title VII." Harper v. Blockbuster Entertainment Corp., 139 F.3d 1385, 1387 (11th Cir. 1998)(citing, inter alia, Ranger Ins. Co.
v. Bal Harbor Club, Inc., 549 So. 2d 1005, 1009 (Fla. 1989), and
Florida State University v. Sondel, 685 So. 2d 923, 925, n. 1 (Fla. 1st DCA 1996)).
Termination with Discriminatory Intent
Mr. Bamawo has the burden of proving by a preponderance of the evidence that he was the victim of employment discrimination, and he can establish a prima facie case of discrimination either through direct evidence of discrimination or through circumstantial evidence within the framework of the analysis first articulated in McDonald Douglas
Corp. v. Green, 411 U.S. 792, 802-04 (1973). See Holifield v.
Reno, 115 F.3d 1555, 1561-62 (11th Cir. 1997).
In this case, Mr. Bamawo has presented no direct evidence that he was discriminated against because of his race and national origin, and he must, therefore, rely on the presumption set forth in McDonald Douglas to establish a prima facie case of racial discrimination. Mr. Bamawo must show that "(1) he belongs to a racial minority [and/or is foreign-born];
(2) he was subjected to adverse job action; (3) his employer treated similarly situated employees outside his classification more favorably; and (4) he was qualified to do the job." Holifield, 115 F.3d at 1562. If Mr. Bamawo succeeds in establishing a prima facie case of discrimination, the Department then must come forward with evidence to establish a
nondiscriminatory basis for the adverse employment action, at which point the McDonald Douglas "presumption of discrimination disappears . . . , and the plaintiff once again bears the burden of production. In order to satisfy this burden a plaintiff must demonstrate that the employer's given reason was pretextual." LeBlanc v. TJX Cos., Inc., 214 F. Supp. 2d 1319, 1325-26 (S.D. Fla. 2002).
Based on the findings of fact herein, Mr. Bamawo is a member of two groups that fall within the protections provided by Section 760.10(b), Florida Statutes, in that he is a black man of African origin; he, therefore, has satisfied the first prong of the McDonald Douglas analysis. There is no dispute that Mr. Bamawo was terminated from his employment with the Department, and he, therefore, has satisfied the second prong of the McDonald Douglas analysis. Finally, the Department did not contest Mr. Bamawo's qualifications to perform the job of correctional officer, and Mr. Bamawo, therefore, has satisfied the fourth prong of the McDonald Douglas analysis.
Based on the findings of fact herein, Mr. Bamawo has nonetheless failed to establish a prima facie case of discrimination because his evidence does not satisfy the third prong of the McDonald Douglas analysis. There is no dispute that Mr. Bamawo was terminated from his employment with the Department as a direct result of the incident of March 21, 2000,
in which Mr. Bamawo threatened Sergeant Tindall, and of the incident of April 23, 2000, in which he threatened Captain Pardue. Mr. Bamawo did not, however, submit proof that the Department had meted out discipline less severe than termination to any other correctional officers who had committed the same or similar acts. See Jones v. Winn Dixie Stores, Inc., 75
F. Supp. 2d 1357, 1364 (S.D. Fla. 1999)("A claim of discriminatory discipline requires a showing that the misconduct for which the plaintiff was disciplined was 'nearly identical' to that engaged in by an employee outside the protected class and who has not been disciplined."). Mr. Bamawo has, therefore, failed to prove by a preponderance of the evidence that the Department was motivated by discriminatory intent when it terminated him from his employment in May 2000.
Retaliatory Discharge
The court in Goldsmith v. City of Atmore, 996 F.2d 1155, 1162-63 (11th Cir. 1993), observed that "[t]he burden of proof in Title VII retaliation cases is governed by the framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973)." The court described that burden as follows:
In order to prevail, the plaintiff must first establish a prima facie case by showing (1) statutorily protected expression, (2) adverse employment action, and (3) a causal link between the protected
expression and the adverse action. . . .
Once a prima facie case has been established, the defendant may come forward with legitimate reasons for the employment action to negate the inference of retaliation. . . . If the defendant offers legitimate reasons for the employment action, the plaintiff then bears the burden of proving by a preponderance of the evidence that the reasons offered by the defendant are pretextual.
Goldsmith, 996 F.3d at 1163 (citations omitted).
Based on the findings of fact herein, Mr. Bamawo has failed to establish a prima facie case sufficient to permit an inference that his termination was retaliatory. Mr. Bamawo had not engaged in "statutorily protected expression" at the time of his termination. Mr. Bamawo did nothing more than threaten to file an employment discrimination complaint if he was disciplined for the April 23, 2000, incident involving
Captain Pardue.
Hostile Work Environment
Mr. Bamawo alleges also that he was the subject of continuing discrimination in the form of derogatory comments and disparate treatment in work assignments and in the conditions of his employment with the Department. The court in Terry v. Ashcroft, 336 F.3d 128, 147-48 (2d Cir. 2003), discussed all of the elements that must be proven to establish discrimination based on a hostile work environment:
In order to prevail on a hostile work environment claim under Title VII, a plaintiff must show that "the harassment was 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'"
Alfano v. Costello, 294 F.3d 365, 373
(2d Cir. 2002)(quoting Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997)); see
also Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 78 (1998)(stating that a hostile work environment is created "[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment."). We have explained that "[t]his test has objective and subjective elements: the misconduct must be 'severe or pervasive enough to create an objectively hostile or abusive work environment,' and the victim must also subjectively perceive that environment to be abusive." Alfano, 294 F.3d at 374 (quoting Harris v. Forklift System., Inc., 510 U.S.
17, 21 (1993). Among the factors to consider when determining whether an environment is sufficiently hostile are "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris, 510 U.S. at 23. In determining whether a hostile environment exists, we must look at the "totality of the circumstances." Richardson, 180 F.3d at 437-38 [Richardson v. New York State Dep't of Corr. Serv., 180 F.3d 426 (2d Cir.
1999)]. "As a general rule, incidents must be more than 'episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive.'" Alfano, 294 F.3d at 374 (quoting Perry, 115 F.3d at 149). . . .
See also Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269 (11th Cir. 2002); Caruso v. City of Cocoa, 260 F. Supp. 2d 1191, 1218, 1221-22 (M.D. Fla. 2003); Gonzalez v. Florida Dep't of Highway Safety & Motor Vehicles, 237 F. Supp. 2d 1349-50 (S.D. Fla.
2002), aff'd without opinion, 2002 WL 1676549 (11th Cir. 2002);
Lawrence v. Wal-Mart Stores, Inc., 236 F. Supp. 2d 1314, 1323-26 (M.D. Fla. 2002); LeBlanc, 214 F. Supp. 2d at 1331-32.
It is settled in Florida that, in order to prove discrimination as a result of a hostile work environment, Mr. Bamawo must show:
that he belongs to a protected group;
that he has been subject to unwelcome harassment; (3) that the harassment [was]
. . . based on a protected characteristic of the employee, such as national origin;
(4) that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment; and (5) that the employer is responsible for such environment under either a theory of vicarious or of direct liability.
Miller, 277 F.3d at 1275.
Based on the findings of fact herein, Mr. Bamawo has satisfied the first element of a claim of hostile work environment because he is black and of African origin.
Mr. Bamawo has also satisfied the second and third prongs of a claim of hostile work environment because he has proven by a preponderance of the evidence that, in 1995, Captain Pardue made
two inappropriate comments to him based on his race and national origin and that these comments were embarrassing and humiliating.
Based on the findings of fact herein, Mr. Bamawo has not, however, satisfied the fourth prong of a claim of hostile work environment. Although there is no dispute that
Mr. Bamawo's employment by the Department was terminated on May 4, 2001, Mr. Bamawo has failed to prove by a preponderance of the evidence that Captain Pardue's treatment of him
constituted harassment that is "so severe or pervasive" that the "terms and conditions of his employment" were altered. Id.
In evaluating the proof sufficient to establish the fourth prong of a claim of hostile work environment, courts examine both the objective and the subjective severity of the harassment. In determining the objective severity of harassment, courts consider "(1) the frequency of the conduct;
(2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee's job performance." Id. at 1276.
Based on the findings of fact herein, Mr. Bamawo has failed to prove by a preponderance of the evidence that he was subjected to a work "environment 'that a reasonable person would find hostile or abusive.'" Id. (quoting Harris, 510 U.S. at
21-22). Mr. Bamawo has proven only that, in 1995, Captain Pardue made two offensive comments to him based on his race and national origin. Mr. Bamawo complains that Captain Pardue made "countless" derogatory remarks to him, that Captain Pardue gave him work assignments that no one else wanted, that Captain Pardue refused to approve his requests time off, that Captain Pardue refused to designate him as supervisor because Captain Pardue thinks "Africans are dumb," but these complaints are not sufficiently specific to establish that Mr. Bamawo was subjected to harassment that was "severe or pervasive." In a Title VII employment discrimination case, "[c]onclusory allegations without specific supporting facts have no probative value." Hillburn v. Murata Elecs. N. Am, Inc., 181 F.3d 1220, 1228 (11th Cir. 1999)(internal citation omitted).
In addition, Mr. Bamawo worked at the Department from 1993 until he was terminated in May 2001 because he liked the job and the people with whom he worked. Mr. Bamawo did not, therefore, suffer harassment that "altered the terms and conditions of his employment and created a discriminatorily abusive work environment." Miller, 277 F.3d at 1275.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human
Relations enter a final order dismissing the Petition for Relief of Oghenerhoro Bamawo.
DONE AND ENTERED this 18th day of September, 2003, in Tallahassee, Leon County, Florida.
S
PATRICIA HART MALONO
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 18th day of September, 2003.
ENDNOTES
1/ All citations to the Florida Statutes are to the 2000 edition unless otherwise noted.
2/ On August 20, 2003, Mr. Bamawo filed a pleading entitled Petitioner Seeking an Order Requiring Respondent to Cease and Desist of [sic] Providing Fasle [sic] Information to the Public Base[d] on Newly Discovered Evidence. In this pleading,
Mr. Bamawo refers to, among other things, statements given during a criminal investigation. The undersigned does not have jurisdiction to enter cease and desist orders and, therefore, cannot provide the relief requested by Mr. Bamawo.
3/ This is the only time Captain Pardue recalls imposing formal discipline on Mr. Bamawo, although he did verbally counsel and reprimand him on occasion.
4/ A full account of this incident can be found in the Hearing Officer's Recommended Order in Case No. CS-2000-170, dated July 12, 2000, and in the Final Order of the Public Employees Relations Commission ("PERC") entered September 8, 2003. See Respondent's Exhibits 1, 2, and 3. As noted in the Order Denying Motion for Summary Recommended Order of Dismissal and Granting Motion in Limine, entered June 23, 2003, the findings
of fact included in the Final Order of PERC are accepted in this proceeding pursuant to the doctrine of collateral estoppel.
At the final hearing in the instant case and in pleadings and documents submitted after the final hearing, Mr. Bamawo contended that Sergeant Tindall was lying about the March 21, 2000, incident and that Sergeant Tindall's version of events was concocted and merely a pretext for discrimination. The PERC Hearing Officer heard the testimony of Mr. Bamawo and Sergeant Tindall and, for the most part, credited Sergeant Tindall's version of events over that of Mr. Bamawo. The undersigned will, consistent with the doctrine of collateral estoppel, defer to that determination. On the other hand, the determination of whether the incident was merely a pretext for discrimination is reserved for the FCHR.
5/ A full account of this incident can be found in the Hearing Officer's Recommended Order in Case No. CS-2000-170, dated July 12, 2000, and in the Final Order of the Public Employees Relations Commission ("PERC") entered September 8, 2003. See Respondent's Exhibits 1, 2, and 3.
6/ Mr. Bamawo testified that, during the incident with Captain Pardue on April 23, 2000, Captain Pardue called him an "African monkey" and a "big black gorilla" and stated that "Africans are dumb." Captain Pardue denied having ever said these things to or about Mr. Bamawo. Having considered the evidence and assessed the credibility of the witnesses' testimony, Captain Pardue's testimony is credited over that of Mr. Bamawo with respect to these remarks.
7/ Mr. Bamawo testified that, during the March 21, 2000, incident involving Sergeant Tindall, that Sergeant Tindall insulted him and called him a "dirty individual."
COPIES FURNISHED:
Oghenerhoro Bamawo
North Florida Evaluation and Treatment Center
1200 Northeast 55th Boulevard Building 11
Gainesville, Florida 32641-2759
Gary L. Grant, Esquire Department of Corrections 2601 Blairstone Road
Tallahassee, Florida 32399
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Tallahassee, Florida 32301
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Tallahassee, Florida 32301
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 should be filed with the agency that will issue the final order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 30, 2004 | Agency Final Order | |
| Sep. 18, 2003 | Recommended Order | Petitioner did not prove that he was subjected to a hostile work environment; that his termination from employment was based on discrimination because of race and/or nationality; or was in retaliation for exercising his rights under Section 760.10, F.S. |
