STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted on December 16, 2004, at Miami, Florida, before Claude B. Arrington, a duly-designated Administrative Law Judge of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Bobby Jones, pro se

For Respondent: Rhea P. Grossman, Esquire

2650 West State Road 84, Suite 101-A Fort Lauderdale, Florida 33312

STATEMENT OF THE ISSUE

Whether Respondent failed or refused to provide the legal representation to which Petitioner was entitled because of Petitioner’s race or in retaliation for Petitioner’s prior charges against Respondent.

PRELIMINARY STATEMENT

Petitioner filed the underlying claim of discrimination with both the federal Equal Employment Opportunity Commission (EEOC) and the Florida Commission on Human Relations (FCHR). On January 16, 2004, the FCHR issued its Notice of Dismissal and Right to Sue which stated, in part: “The case was dual-filed with the EEOC, and the EEOC issued its determination that it was unable to conclude that the information obtained establishes violations of the statutes.” Thereafter, Petitioner filed a Petition for Relief, which was referred by the FCHR to DOAH, and this proceeding followed.

Petitioner’s claim of discrimination is based on Respondent’s assigning a contract attorney to represent him in a proceeding rather than assigning an in-house attorney to perform those services. Petitioner alleged that the assignment was based on Petitioner’s race and on the fact that he had previously filed an EEOC complaint against Respondent.

At the final hearing, Petitioner testified on his own behalf and presented the additional testimony of Blanca Greenwood, who is Respondent’s general counsel. Petitioner presented two exhibits, each of which was admitted into evidence. Respondent relied on its cross-examination of Petitioner and his witness and offered five sequentially numbered exhibits, each of which was admitted into evidence.

At the final hearing, Petitioner represented that he would order a copy of the transcript of the proceeding. On

December 23, 2004, Petitioner filed a pleading styled “post- hearing brief” together with numerous attachments and appendices. Petitioner also addressed a motion to the Clerk of the Division of Administrative Hearings. Thereafter, Respondent moved to strike the attachments and appendices and advised that it had determined that Petitioner had not ordered a copy of the transcript or made any effort to do so. On January 28, 2005, the undersigned entered an order pertaining to the pending motions, setting the deadline for the filing of proposed recommended orders, and advising the parties that the recommended order would be entered on or after February 18, 2005.

No transcript of the proceedings has been filed.

Petitioner has not filed a proposed recommended order other than his post-hearing brief. Respondent filed a Proposed Recommended Order. The post-hearing submittals filed by the parties have been duly-considered by the undersigned in the preparation of

this Recommended Order.

FINDINGS OF FACT

1. At all times relevant to this proceeding, Petitioner, a black male, was employed by Miami-Dade County as a correctional officer.

2. At all times relevant to this proceeding, Respondent was a public employees bargaining unit established pursuant Chapter 447, Florida Statutes (2004).1

3. At all times relevant to this proceeding, Petitioner was a dues-paying member of Respondent and was entitled to all rights and benefits of such membership.

4. Prior to March 1, 2002, Petitioner filed a complaint with the EEOC alleging that Respondent had discriminated against him in an unrelated matter. That complaint was resolved in Respondent’s favor.

5. Petitioner was notified by his employer on March 1, 2002, that his employment was being terminated for reasons that are irrelevant to this proceeding. Petitioner immediately requested legal representation from Respondent.

6. On March 4, 2002, Respondent, through Tyrone W. Williams (Respondent’s then general counsel), advised Petitioner as follows:

   We have completed our review of your request for legal assistance of March 4, 2002. Based upon the information provided, it has been determined that a conflict in representation has arisen.

   Accordingly, this matter has been assigned to the Law Offices of Slesnick & Casey. . .

   . . We have provided the Law Office of Slesnick & Casey with a copy of your file for their immediate reference. Please contact the Law Office of Slesnick & Casey upon receipt of this correspondence.

7. At the times relevant to this proceeding, the Law Offices of Slesnick & Casey was a private law firm that had contracted with Respondent to provide conflict representation to its members. Thereafter, the Law Office of Slesnick & Casey undertook Petitioner’s representation at Respondent’s expense. The procedures followed by Respondent in determining that a conflict existed and in assigning the Law Office of Slesnick & Casey to this representation were consistent with Respondent’s bylaws and written policies.

8. Petitioner was not satisfied with the representation of Slesnick & Casey and asked Respondent for other counsel. On June 24, 2002, Blanca Greenwood (Respondent’s then general counsel) notified Petitioner that if he did not want the assigned representation, Respondent would give him $500.00 towards his legal fees and he could retain any lawyer he wished. Petitioner was also told he would have to absolve Respondent of any liability regarding his representation by private counsel, which Petitioner refused to do. Petitioner thereafter filed the complaint with EEOC and, following its dismissal, the Petition for Relief that underpins this proceeding.

9. The evidence presented by Petitioner failed to establish that Respondent discriminated against him by assigning the Law Office of Slesnick & Casey to represent him or by

   offering to pay $500.00 towards his legal fees for a private lawyer.

10. There was no evidence that Mr. Williams (who is a black male) or any other representative of Respondent discriminated against Petitioner on the basis of his race.

11. There was no evidence that Mr. Williams or any other representative of Respondent discriminated against Petitioner because he had filed an unrelated EEOC against Respondent.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this case pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

13. Petitioner has the burden of proving by the preponderance of the evidence a prima facie case that Respondent committed an unlawful employment practice within the meaning of Section 760.10, Florida Statutes. See Florida Department of

    Transportation v. J. W. C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). If that prima facie case is established, the

    defending Respondent must articulate a legitimate, non- discriminatory reason for the action taken against Petitioner. The burden then shifts back to Petitioner to go forward with evidence to demonstrate that the offered reason is merely a pretext for unlawful discrimination. See McDonnell-Douglas

    Corporation v. Green, 411 U.S. 792 (1973); Texas Department of

    
    

    Community Affairs v. Burdine, 450 U.S. 248 (1981); and St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

14. Petitioner presented no evidence that would establish a prima facie case of discrimination against Respondent, and the

burden of going forward with the evidence never shifted to Respondent. Consequently, Petitioner failed to meet his burden of proof in this proceeding, and his Petition for Relief should

be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order dismissing Petitioner’s Petition for Relief.

DONE AND ENTERED this 24th day of February, 2005, in Tallahassee, Leon County, Florida.

S

CLAUDE B. ARRINGTON

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 24th day of February, 2005.

ENDNOTE

1/ All statutory references are to Florida Statutes (2004).

COPIES FURNISHED:

Rhea P. Grossman, Esquire

2650 West State Road 84, Suite 101-A Fort Lauderdale, Florida 33312

Bobby Jones

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.

Docket for Case No: 04-000556

Orders for Case No: 04-000556