STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
KENNETH ARUGU,
Petitioner,
vs.
BROWARD COUNTY SHERIFF'S OFFICE,
Respondent.
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) Case No. 06-1985
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RECOMMENDED ORDER
This cause came on for formal hearing before Harry L. Hooper, Administrative Law Judge with the Division of Administrative Hearings, on August 22, 2007, in Fort Lauderdale, Florida.
APPEARANCES
For Petitioner: No appearance
For Respondent: Harry O. Boreth, Esquire
Glasser, Boreth & Kleppin
8751 West Broward Boulevard, Suite 105
Plantation, Florida 33324 STATEMENT OF THE ISSUE
The issue is whether Respondent engaged in an unlawful employment practice because of Petitioner's national origin.
PRELIMINARY STATEMENT
On August 2, 2005, Petitioner Kenneth Arugu (Mr. Arugu) filed an Employment Complaint of Discrimination with the Florida
Commission on Human Relations (Commission) alleging that the Broward County Sheriff's Office (BSO), Broward County, Florida, discriminated against him because of his national origin.
Mr. Arugu asserted that he was a Nigerian. After investigation, the Commission, on April 28, 2006, issued a "Determination: No Cause." On May 30, 2006, Petitioner filed a Petition for Relief. In his Petition, Mr. Arugu continued to assert that he was terminated by the BSO because of his national origin.
The case was transmitted to the Division of Administrative Hearings. It was filed on June 6, 2006. It was assigned to Administrative Law Judge Quattlebaum. It was set for hearing on August 10, 2006. Prior to that time the case was administratively assigned to Judge Rigot. On July 24, 2006, Mr. Arugu, through counsel, requested a continuance. BSO requested additional time for discovery. Judge Rigot continued the case until December 11, 2006.
On November 30, 2006, Mr. Arugu, through counsel, filed an Unopposed Motion for Continuance. In response, Judge Rigot set the case for February 20, 2007. On February 9, 2007, Mr. Arugu, through counsel, again filed an Unopposed Motion for Continuance. On April 27, 2007, the case was set for hearing on July 24, 25, and 26.
On June 11, 2007, Mr. Arugu's counsel filed a Sworn Motion for Disqualification of Presiding Judge and Memorandum of Law.
This Motion alleged that Judge Rigot was biased or prejudiced against him. Despite the absence of foundation contained in Mr. Arugu's pleading, Judge Rigot recused herself on June 19, 2007, and the case was transferred to the undersigned.
A scheduling conflict required the Administrative Law Judge to reset the hearing for August 27, 28, and 29, 2007. At the request of Mr. Arugu's counsel the case was subsequently rescheduled for August 22, 23, and 24, 2007. The day before the hearing Mr. Arugu's counsel filed a Notice of Certiorari Petition and Suggestion of Stay. This document stated that
Mr. Arugu's counsel was going to protest certain discovery orders in an unidentified court. Even if Mr. Arugu's counsel had filed an interlocutory appeal in a proper court, the filing would not, by itself, result in a stay.
On August 22, 2007, the hearing commenced as scheduled. Neither Mr. Arugu nor his counsel appeared. BSO elected to present a case demonstrating that Mr. Arugu was terminated for nondiscriminatory reasons. BSO presented the testimony of four witnesses and offered three exhibits that were accepted into evidence.
A Transcript was filed on September 18, 2007. After the filing of the Transcript, Respondent filed its Proposed Findings of Fact and Conclusions of Law on September 28, 2007.
Petitioner did not file proposed findings of fact and conclusions of law.
References to statutes are to Florida Statutes (2005) unless otherwise noted.
FINDINGS OF FACT
It is not disputed that Mr. Arugu is a Nigerian resident in the United States, that he held the position of Treatment Counselor with the BSO, that he was discharged subsequent to being charged criminally of certain violent acts, or that BSO refused to rehire him after he was found not guilty of those charges.
The BSO is an employer as that term is used in Subsection 760.02(7), Florida Statutes.
Mr. Arugu was hired as a substance abuse treatment counselor by Broward County, Florida, for its drug court program, in November 1989. He worked as a mental health specialist for the Broward County Drug Court. The position, with Mr. Arugu as the incumbent, was transferred to the BSO on October 1, 1999. A mental health specialist provides guidance to individuals or groups of persons who abuse legal and illegal substances and provides, among other things, anger management advice.
Mr. Arugu's supervisor was Kristina Gulick. Her title was Director of the Department of Community Control. She
assumed this position in 2001. Her immediate supervisor is Colonel Wimberly and his immediate supervisor is Sheriff Ken Jenne. Mr. Arugu began working for Ms. Gulick in 2002.
Teddy Meisel is the assistant director of the Department of Community Control and reports to Ms. Gulick. He has known Mr. Arugu since 1997. He learned that Mr. Arugu had been arrested sometime after June 20, 2003. Subsequent to October 24, 2003, he reviewed an investigation into the activities of Mr. Arugu and as a result, decided he should be terminated. Although Mr. Meisel was aware that Mr. Arugu was a Nigerian, that fact did not enter into his decision to recommend that he be terminated.
He discussed his recommendation with Ms. Gulick, who agreed, and forwarded a recommendation of dismissal to Colonel Wimberly. Ultimately, Sheriff Jenne signed off on the dismissal.
The investigation reviewed by Mr. Meisel, Ms. Gulick, and Colonel Wimberly was prepared by Sergeant Wilfred Medina of the BSO's Office of Professional Compliance. He opened the investigation on June 21, 2003, and completed it on October 24, 2003.
Sergeant Medina interviewed Mr. Arugu on September 21, 2003, in connection with his arrest by the Plantation Police Department (PPD) on June 20, 2003. The PPD had charged him with
two counts of battery on a law enforcement officer, resisting arrest with violence and resisting arrest without violence.
A review of the probable cause affidavit prepared by the arresting officers revealed that two PPD officers responded to a domestic disturbance complaint made by Lauretta Arugu, the estranged wife of Mr. Arugu. When the officers arrived at
Ms. Arugu's residence, Mr. Arugu struck them repeatedly. The officers used pepper spray to gain control of him and thereafter arrested him.
Based on this information, Mr. Arugu was suspended from his employment without pay. He was ordered to report to the Office of Professional Compliance on June 23, 2003, so that he could meet with Lieutenant Arndt of that office, and with Sergeant Medina. During that meeting Mr. Arugu provided the officers with a hand-written letter that was completely different from the version of events provided by the arresting officers. Mr. Arugu asserted that the arresting officers brutalized him.
On June 25, 2003, Sergeant Medina learned that Mr. Arugu had been arrested by the Sunrise Police Department
(SPD) on September 14, 1997. A report prepared by SPD indicated that on that date two SPD officers observed Mr. Arugu selling shoes from the trunk of his automobile at the Sawgrass Mall. He was arrested for operating a business without a license. After
being placed in a patrol car, he exited the vehicle and attacked two SPD officers.
Although it is a violation of the Broward County Code of Ethics Manual to fail to report an arrest to one's supervisor, a policy about which Mr. Arugu was aware, he did not inform Mr. Meisel of his arrest by SPD.
During the interview, Mr. Arugu did not inform Sergeant Medina of his arrest in 1997 by SPD for the offense of battery on a law enforcement officer. He stated that he had no criminal record and denied ever having been arrested prior to the June 20, 2003, arrest. Sergeant Medina concluded that
Mr. Arugu was not a truthful person.
During Sergeant Medina's interview, Mr. Arugu made no claim that he was the victim of prejudice based on his national origin or any other status.
On July 11, 2003, pursuant to Ms. Arugu's petition, a permanent restraining order was served on Mr. Arugu. The restraining order forbade him from being in the presence of
Ms. Arugu or contacting her. Mr. Arugu nevertheless called Ms. Arugu's home and left messages on her answering machine. This was reported to the judge, who issued the order. On October 14, 2003, the judge, who issued the order, found that
Mr. Arugu had indeed violated the order and admonished him, but did not incarcerate him.
In Mr. Arugu's Employment Complaint of Discrimination, Mr. Arugu specifically alleged that Roy Vrchota, Assistant Inspector General told him, while his criminal case was pending, that he would be reinstated if he was found not guilty at the end of the criminal case addressing the June 30, 2003, incident. Mr. Vrchota testified under oath that he never told Mr. Arugu that he would be reinstated. Upon consideration of all of the facts and circumstances of this case, it is found as a fact that Mr. Vrchota did not tell him that.
Mr. Vrchota was the person who discovered the previous arrest by SPD. Mr. Vrchota does not believe that Mr. Arugu is a truthful person. Mr. Arugu never made any allegations to him with regard to being a victim of prejudice. He did not learn that Mr. Arugu was a Nigerian until he was deposed in this case.
On September 12, 2003, Mr. Arugu was found not guilty of charges addressing the June 30, 2003, incident. On
September 29, 2003, Mr. Arugu sent the BSO a letter asking to be reinstated. In a letter dated December 23, 2003, Mr. Arugu was informed that he was not going to be reinstated.
The fact that Mr. Arugu was a Nigerian was not taken into consideration by those in the decision-making process.
Mr. Arugu's conduct was contrary to BSO standards and that is why he was discharged.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. §§ 120.57(1) and 760.10(7) Fla. Stat.
Subsection 760.10(1), Florida Statutes, states that it is an unlawful employment practice for an employer to discharge or otherwise discriminate against an individual on the basis of race or sex. Because direct evidence of discrimination was conspicuous by its absence in this case, Mr. Arugu, in order to prevail, was required to prove his case by indirect evidence.
To prove a case by indirect evidence, the charging party, Mr. Arugu in this case, must prove disparate treatment. In order to do so, the charging party generally bears the burden of proof established by the United States Supreme Court in McDonnell Douglas v. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). Under this well established model of proof, the charging party bears the initial burden of establishing a prima facie case of discrimination.
If the charging party is able to make out a prima facie case, the burden to go forward shifts to the employer to articulate a legitimate, non-discriminatory explanation for the employment action. See Department of Corrections v. Chandler, 582 So. 2d 1183 (Fla. 1st DCA 1991).
The employer then has the burden of production, not persuasion, and need only persuade the finder of fact that the decision was non-discriminatory. Id. Alexander v. Fulton County, Georgia, 207 F.3d 1303 (11th Cir. 2000). The charging party must then come forward with specific evidence demonstrating that the reasons given by the employer are a pretext for discrimination. "The employee must satisfy this burden by showing directly that a discriminatory reason more likely than not motivated the decision, or indirectly by showing that the proffered reason for the employment decision is not worthy of belief." Department of Corrections v. Chandler, supra at 1186; Alexander v. Fulton County, Georgia, supra.
Mr. Arugu claims he was discharged because of prejudice based on national origin. To establish a prima facie
case of discrimination based on national origin, he must prove that: (1) he is a member of a protected class, African/Nigerian; (2) he was subject to an adverse employment action; (3) his employer treated similarly situated employees, who are not members of the protected class, more favorably; and
(4) he was qualified for the job or benefit at issue. See McDonnell, supra; Gillis v. Georgia Department of Corrections, 400 F.3d 883 (11th Cir. 2005).
Mr. Arugu, because he failed to appear at the hearing, did not prove that he was a member of a protected class,
Nigerian or otherwise. However, he will nevertheless be deemed to be an African/Nigerian for purposes of these proceedings and, therefore, a member of a protected class.
Mr. Arugu was the subject of an adverse employment practice. He was discharged from his job. He was not, however, qualified to remain in his job because it is unacceptable for a member of a sheriff's department to become aggressive in the presence of arresting officers. Moreover, his supervisors believed that a person in the business of teaching anger management who cannot control his own anger should find another vocation.
There was no evidence that BSO treated members not of a protected class more favorably. Accordingly, he did not prove a prima facie case of racial discrimination. See Holifield v.
Reno, 115 F.3d 1555, 1563 (11th Cir. 1997).
Even assuming that Mr. Arugu had demonstrated a prima facie case of discrimination, BSO demonstrated a legitimate, non-discriminatory reason for refusing to continue to employ him. That is, BSO believed that he physically attacked law enforcement officers on two occasions and learned that he violated a restraining order.
Even if it were necessary to go to the next level of the McDonnell analysis, Mr. Arugu did not produce any evidence that BSO's asserted legitimate reasons were a pretext for
discrimination. Therefore, Mr. Arugu did not meet his burden of showing that a discriminatory reason, more likely than not, motivated the decision to discharge him. Consequently,
Mr. Arugu has not met his burden of showing pretext.
In summary, Mr. Arugu has failed to carry his burden of proof that BSO engaged in racial discrimination toward him
when it discharged him.
Based upon the 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.
DONE AND ENTERED this 8th day of October, 2007, in Tallahassee, Leon County, Florida.
S
HARRY L. HOOPER
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 8th day of October, 2007.
COPIES FURNISHED:
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Tallahassee, Florida 32301
Odiator Arugu, Esquire The Florida Law Firm, PLC
1990 West Fairbanks Avenue Winter Park, Florida 32789
Harry O. Boreth, Esquire Glasser, Boreth & Kleppin
8751 West Broward Boulevard, Suite 105
Plantation, Florida 33324
Cecil Howard, General Counsel 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 |
|---|---|---|
| Feb. 20, 2009 | Mandate | |
| Feb. 04, 2009 | Opinion | |
| Dec. 17, 2007 | Agency Final Order | |
| Oct. 08, 2007 | Recommended Order | Petitioner failed to demonstrate that the cause of his unemployment was grounded in discrimination based on national origin. |
