STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONALD DUVERGLAS, )

)

Petitioner, )

)

vs. ) Case No. 07-0989

)

CITY OF FORT LAUDERDALE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on December 11, 2007 and April 21, 2008, by video teleconference with connecting sites in Lauderdale Lakes and Tallahassee, Florida, before Errol H. Powell, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jonel Lemy, Esquire

The Law Offices of Jonel Lemy, P.A. 1061 West Oakland Park Boulevard,

Suite 106

Fort Lauderdale, Florida 33311

For Respondent: Eugene K. Pettis, Esquire

Haliczer, Pettis, & Schwamm, P.A. One Financial Plaza

100 Southeast Third Avenue, Seventh Floor Fort Lauderdale, Florida 33394

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent discriminated against Petitioner on the basis of national origin

and retaliated against Petitioner in violation of the Florida Civil Rights Act of 1992, as amended.

PRELIMINARY STATEMENT

Donald Duverglas filed a Charge of Discrimination with the Broward County Civil Rights Division and U.S. Equal Employment Opportunity Commission (EEOC) against the City of Fort Lauderdale (City) on July 24, 2006, alleging that the City discriminated against him on the basis of national origin (Haitian) and retaliation in violation of the Florida Civil Rights Act of 1992, as amended. Broward County Civil Rights Division waived investigation of the charge. The matter was investigated by the Florida Commission on Human Relations (FCHR). On January 19, 2007, the FCHR issued a Determination of No Cause and a Notice of Determination of No Cause.

Mr. Duverglas timely filed a Petition for Relief with the FCHR against the City. On February 27, 2007, the FCHR referred this matter to the Division of Administrative Hearings.

Initially, the City made a request for this matter to proceed as a summary hearing in its response to the Initial Order. The undersigned directed the City to file its request in accordance with Section 120.574, Florida Statutes (2006).

Subsequently, the City complied with the directive and filed a motion for summary final hearing, which was denied. After

several continuances for various reasons, the final hearing was held.

At hearing, to Mr. Duverglas testified on his own behalf, presented the testimony of four witnesses, and entered three exhibits (Petitioner's Exhibits numbered 2, 19, and 23) into evidence.1 The City presented the testimony of four witnesses and entered 39 exhibits (Respondent's Exhibits numbered 2, 4, 5,

6, 7, 8, 12, 14, 15, 16, 19, 20, 26, 27, 28, 30, 33, 34, 35, 36,

37, 39, 40, 44, 45, 46, 50, 51, 52, 59, 62, 65, 68, 69, 70, 73,

74, 80, and 82) into evidence.

A transcript of the hearing was ordered. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. The Transcript, consisting of two volumes, was filed on June 23 and July 10, 2008.2 The City timely filed its post-hearing submission. Mr. Duverglas did not file his post- hearing submission until October 10, 2008, which was untimely, but the City did not object to Mr. Duverglas’ untimely post- hearing submission. In light of the lack of any objection from the City, Mr. Duverglas’ post-hearing submission is accepted and is considered timely filed. The parties’ post-hearing submissions were considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. No dispute exists that Mr. Duverglas is a male and Black and that his national origin is Haitian. No dispute exists that he is a member of the protected class as it relates to discrimination.

2. No dispute exists that, at all times material hereto, the City was an employer as defined by the Florida Civil Rights Act of 1992, as amended.

3. Mr. Duverglas began his employment with the City in 1996 as a Park Ranger. An inference is drawn and a finding is made that Mr. Duverglas wore a uniform type of clothing for his position.

4. In 2002, some employees complained, among other things, that the vehicles that Mr. Duverglas drove and in which he rode often were left reeking of urine. On December 17, 2002, a counseling session was held with Mr. Duverglas by his supervisor, Kelton Wayns, regarding, among other things,

   Mr. Duverglas’ personal hygiene and cleanliness of vehicles.

   
   

5. In 2003, a complaint was received by Mr. Wyans regarding Mr. Duverglas urinating in a drain on the floor in a bathroom, instead of a urinal. Mr. Wyans investigated the complaint, and the investigative report was reviewed by the Park Ranger Supervisor and Foreman, Earnest Jones. Mr. Jones concluded that the allegation could not be substantiated, but he

   did counsel Mr. Duverglas that, as an employee of the City, he (Mr. Duverglas) must conduct himself professionally, at all times, and that any unsanitary behavior would not be tolerated.

6. Performance evaluations of Mr. Duvergals were conducted. The categories for the rating of the evaluations were unsatisfactory, marginal, satisfactory, above satisfactory, and outstanding. At the review ending date of April 29, 2001, he received a satisfactory rating; and at the review ending dates of October 29, 2001, October 27, 2002, and October 27, 2003, he received an above satisfactory rating.

7. In February 2004, due to workforce reductions, Mr. Duverglas was bumped and reassigned to the Grounds

   Maintenance Division as an Apprentice Maintenance Worker. In that position, Mr. Duverglas was assigned to a roving-crew of three to four workers who picked-up litter in a quadrant of the City. An inference is drawn and a finding is made that he wore a uniform type of clothing for his position.

8. Also, around November 2004, Mr. Duverglas was hired as a part-time Park Ranger. Any problems, regarding Mr. Duverglas in this position, were directly dealt with by Mr. Jones.

9. On December 9, 2004, Mr. Duverglas, as a maintenance worker, had a problem arriving at work timely. On December 15, 2004, he was given a letter of reprimand by his supervisor, John Neal, for arriving to work late and for failing to call-in

   regarding his tardiness. Additionally, the reprimand indicated that future occurrences could result in more severe disciplinary action up to and including dismissal.

10. In January 2005, Mr. Neal, advised Mr. Duverglas that he was spending too much time on his (Mr. Duverglas’) cell phone. At that time, Mr. Duverglas informed Mr. Neal that a co- worker, L. C. Orr, had made offensive comments about Haitians. Mr. Neal had no knowledge of Mr. Orr’s alleged comments before being informed of them by Mr. Duverglas.

11. Mr. Orr was aware of Mr. Duverglas’ Haitian ancestry.

    
    

    However, Mr. Neal was not until he was informed of Mr. Orr’s alleged comments.

12. After that meeting and also in January 2005, Mr. Duvergals made a complaint with the City’s Office of

    Professional Standards (OPS) against Mr. Orr. Mr. Duverglas complained that Mr. Orr had made offensive comments about Haitians and that the offensive comments had contributed to a hostile work environment.

13. After making the complaint with OPS, Mr. Duverglas was counseled by Mr. Neal regarding his (Mr. Duverglas’) poor work performance. At that time, Mr. Duverglas informed Mr. Neal that he had made a complaint against Mr. Orr with OPS. Mr. Neal had no knowledge of the OPS complaint before being informed of it by Mr. Duvergals.

14. Mr. Duvergals also complained to OPS that Mr. Neal had retaliated against him when Mr. Neal met with him to counsel him about his performance deficiencies after his (Mr. Duverglas’) OPS complaint. Mr. Duverglas informed Mr. Neal, during the meeting, that he (Mr. Duverglas) had made a complaint to OPS against Mr. Orr regarding Mr. Orr’s derogatory comments about Haitians. Mr. Neal was not aware of Mr. Duverglas’ complaint against Mr. Orr until Mr. Duverglas informed him (Mr. Neal) of it.

15. OPS investigated the complaint. OPS was unable to question Mr. Orr because he had retired from the City. Following an investigation, OPS determined that the allegations were unfounded and without merit.

16. During his work as a maintenance worker and his part- time work as a Park Ranger, complaints regarding Mr. Duverglas’ personal hygiene occurred in both positions. Complaints were made regarding his clothing and body having the odor of urine and his trousers being wet in the front, and regarding the odor of urine being left in vehicles and lingering in the Park’s office. Mr. Duverglas was counseled on several occasions regarding these issues and notified that, if the problems continued, stronger action, than counseling, would be taken to address the problems.

17. When Mr. Duverglas was a part-time Park Ranger, only one Park Ranger, Alan Brown, did not complain about

    Mr. Duverglas smelling of urine, wetting the front of his trousers, or leaving the smell of urine in vehicles.

18. The evidence demonstrates that Mr. Jones,

    
    

    Mr. Duverglas’ supervisor as a Park Ranger, was aware of Mr. Duverglas’ Haitian ancestry. The evidence fails to

    demonstrate that any of Mr. Jones’ actions were taken because of Mr. Duverglas’ Haitian ancestry.

19. In March 2005, Mr. Duverglas, as a maintenance worker, was sent by the City for a Fit-For-Duty evaluation, which was a medical evaluation to determine his fitness for duty. On

    March 22, 2005, a Fit-For-Duty evaluation was performed. The report by the examining physician indicates, among other things, that a prior evaluation was performed on March 11, 2005, and

    Mr. Duverglas was found fit for duty; that another evaluation was requested due to continued concerns regarding his “cleanliness” at work; that a concern existed as to whether he was suffering from incontinence; that he refused to allow the physician to perform an abdominal and genital exam; that his personal physician wrote a note to the examining physician that Mr. Duverglas did not suffer from incontinence and was fit to return to work with no restrictions; and that, based upon the representations by Mr. Duverglas’ personal physician, the

    examining physician had no choice but to find Mr. Duverglas fit for duty and clear him to return to work.

20. Mr. Duverglas denied, and continues to deny, that he suffered or suffers from a medical condition, i.e., incontinence.

21. The evidence is insufficient to demonstrate that Mr. Duverglas suffered or suffers from incontinence.

22. The evidence demonstrates that Mr. Duverglas was fit- for-duty.

23. In April 2005, Teresa “Terry” Reynard, Assistant Director of Parks and Recreation, who had the responsibility for park maintenance, transferred Mr. Duverglas, in his position as a maintenance worker, from one location to another location, Carter Park. Ms. Reynard’s intent was to accommodate what she perceived to be a problem with Mr. Duverglas’ personal hygiene by placing him in a park, Carter Park, in which several restrooms were available and accessible.

24. However, the complaints continued at both of Mr. Duverglas’ jobs with the City.

25. Mr. Duverglas’ supervisors counseled him on several occasions regarding his hygiene, the smell of urine, and trousers being wet in the front. At one point, Mr. Duverglas, as a maintenance worker, was notified that he should bring a

    change of clothing to work in an effort to eliminate the odor and smell of urine.

26. Mr. Duverglas admits that he may have urinated on himself maybe once or twice but nothing extraordinary.

27. Also, complaints were made regarding Mr. Duverglas’ excessive cell phone use, instead of working, inadequately performing his work, and unauthorized breaks.

28. Mr. Duverglas admits that he was disciplined for excessive cell use.

29. Mr. Duverglas admits that, on April 14, 2005, he was issued a reprimand for arriving at work late and that was his second violation in six months. Further, he admits that he was notified that the continuation of such conduct could be a basis for termination.

30. On June 13, 2005, Mr. Duverglas was issued a letter of reprimand by Ms. Reynard for lack of productivity. Furthermore, the letter of reprimand notified Mr. Duverglas that his failure to be productive in his work could result in further disciplinary action including termination.

31. On June 15, 2005, Mr. Duverglas was again issued a letter of reprimand by Ms. Reynard for lack of productivity. The letter of reprimand indicated, among other things, that

    Mr. Duverglas had violated the following General Employees’ Work Rules:

    Minor Rule 3 – Failure to observe department work schedules (starting time, quitting time, and meal periods).

    
    

    Minor Rule 6: - Unsatisfactory work performance, inefficiency.

    
    

    Minor Rule 7 – Loafing or other abuse of time during assigned working hours.

    
    

    Major Rule 6 – Leaving City premises during working hours without permission of supervisor.

    
    

    Further, the letter of reprimand notified Mr. Duverglas that, among other things, “future occurrences of the same or similar nature will result in more severe disciplinary action up to and including dismissal.” Mr. Duverglas refused to sign the letter of reprimand, but was provided a copy of it.

32. On June 22, 2005, Ms. Reynard issued Mr. Duverglas an “Informational Letter” regarding his personal hygiene, i.e., urinating in his trousers. The Informational Letter provided, among other things, that, despite prior conversations and counseling, he (Mr. Duverglas) continued to have the personal hygiene problems; that his situation was a serious health risk; that, if he soiled his uniform in the future, he would be asked to change his uniform, and, if he failed to have a change of uniform with him at the time, he would be asked to leave work on his own time and not return until he had changed his uniform; and that, if his problem was caused by a medical condition and he wished to request an accommodation, he should do so.

33. On June 24, 2005, Mr. Duverglas was issued a letter of counseling by Ms. Reynard regarding his (Mr. Duverglas’) personal hygiene. The letter of counseling provided, among other things, that Mr. Duverglas had been spoken to and counseled in the past months regarding his personal hygiene, but that the problem had persisted; and that Ms. Reynard had observed, the day before, that Mr. Duverglas’ trousers were wet. Further, the letter of counseling reminded Mr. Duverglas what he was directed to do if he wet his trousers. Moreover, the letter of counseling provided that future occurrences would result in disciplinary action, including dismissal.

34. Mr. Duverglas contends that he was not protected from a threat of violence made by a co-worker Wilmar “Slim” Alexander. On June 29, 2005, Mr. Alexander threatened physical violence against Mr. Duverglas if Mr. Duverglas approached him (Mr. Alexander) in an aggressive manner. On July 5, 2005,

    Ms. Reynard issued a letter of reprimand against Mr. Alexander for “an inappropriate remark to a coworker.” Further, the letter of reprimand provided, among other things, that the behavior exemplified by Mr. Alexander would not be tolerated and that future occurrences would result in severe disciplinary action including dismissal.

35. The evidence failed to demonstrate that Mr. Alexander exhibited any further violent behavior towards Mr. Duverglas.

36. The evidence failed to demonstrate that the letter of reprimand was not the appropriate punishment for Mr. Alexander’s behavior.

37. The evidence is insufficient to demonstrate that Mr. Alexander exhibited any violent behavior towards

    Mr. Duvergals prior to Mr. Alexander’s threat. The evidence failed to demonstrate that the City failed to protect

    Mr. Duverglas from the threat made by Mr. Alexander.

    
    

38. On June 30, 2005, Mr. Duverglas was placed on administrative leave with pay pending the City’s investigation that he “may have violated City rules and regulations.”

39. On July 27, 2005, after notice, an informational meeting was held with Mr. Duverglas. Based on the informational meeting, on July 28, 2005, Ms. Reynard issued a written recommendation to Phil Thornburg, Director of the City, regarding Mr. Duverglas. The recommendation provided, among other things, that the persons in attendance at the informational meeting included Ms. Reynard, Mr. Duverglas, and a union representative; that the meeting was held to address several issues including Mr. Duverglas’ personal hygiene, complaints regarding the smell of urine, his performance deficiencies and general loafing, and the report of his urinating in public; and that Mr. Duverglas denied all allegations. Further, the recommendation determined that

    Mr. Duverglas’ denials, explanations and responses were “incredible and unworthy of belief” and that he had engaged in severe conduct. Ms. Reynard recommended the termination of Mr. Duverglas.

40. Around May 2005, a self-employed painter, Samuel Mitchell, was performing contract work at Carter Park.

    Mr. Mitchell observed whom he recognized as Mr. Duverglas leaning against a concrete pole with his (Mr. Duverglas’) trousers around his (Mr. Duverglas’) knees, appearing to be urinating, but Mr. Mitchell did not observe a stream of liquid. The area in which Mr. Duverglas was observed was near a residential area, was an area that the general public frequents, and was an area used by school children. Mr. Mitchell perceived the conduct to be inappropriate. Mr. Mitchell spoke with

    Mr. Duverglas, and Mr. Duverglas vehemently denied that he was the person whom Mr. Mitchell observed. Mr. Mitchell did not wish to report what he observed to the City, but wanted

    Mr. Duverglas to change the behavior that he (Mr. Mitchell) observed; however, because of the way Mr. Duverglas reacted to his (Mr. Mitchell’s) talking with him (Mr. Duverglas),

    Mr. Mitchell reported the incident to the City.

    
    

41. Mr. Mitchell testified at hearing, and his testimony is found to be credible. Mr. Duverglas denied that he was the

    person observed by Mr. Mitchell. Mr. Mitchell’s testimony is found to be more credible than Mr. Duverglas’ testimony.

42. Also, at the time of the incident, another person, who was a non-employee of the City, reported the same observation to the City. That person did not testify at hearing.

43. A finding is made that Mr. Duverglas was the person observed by Mr. Mitchell and was the person engaged in the conduct observed by Mr. Mitchell. Further, even though

    Mr. Mitchell did not observe a stream of liquid, an inference is drawn and a finding is made that, based upon the prior conduct, actions, and behavior of Mr. Duverglas, regarding his personal hygiene and the wetting of the front of his trousers,

    Mr. Duverglas was urinating. Moreover, a finding is made that the City was reasonable in making a determination that

    Mr. Duverglas was urinating.

    
    

44. The evidence demonstrated that Ms. Reynard was aware of Mr. Duverglas’ Haitian descent. However, the evidence failed to demonstrate that any of her actions were motivated by

    Mr. Duverglas’ Haitian descent.

    
    

45. Mr. Thornburg had the final authority in disciplinary matters regarding the Parks and Recreation Department. By letter dated August 5, 2005, Mr. Thornburg notified

    Mr. Duverglas that he (Mr. Duverglas) was being suspended, without pay, for 20 days, effectively immediately, and was being

    dismissed from the City as an Apprentice Maintenance Worker, effective September 2, 2005. The letter was hand-delivered to Mr. Duverglas. The letter provided, among other things, that the action was being taken for continued deficiencies in performance and conduct, setting forth the deficiencies, which were:

    1. Despite prior counseling, a transfer to another facility with better access to bathroom facilities and other accommodations, you continued to disregard your personal hygiene and appearance as a representative of the City by urinating in your trousers in public and disregard of proper safety practices and precautions. Your failure to conform your behavior to civilized standards has been the subject of complaints by your co-workers over having to work in offensive, unsanitary and unhealthy conditions and cannot be tolerated.

       
       

    2. You continued to demonstrate deficiencies in performance of assigned duties by taking unauthorized breaks, excessive use of your personal cell phone in the field during working hours and general loafing.

       
       

    3. Employees of two City contractors have witnessed you urinating in a public place although restroom facilities were available. City Ordinance 16-75(a)(5) – Public Indecency.

       
       

       Additionally, the letter set forth General Employees’ Work Rules that Mr. Duverglas violated, which were:

       Major Rule 1 – Any act which might endanger the safety or lives of other [sic].

       Major Rule 2 – Refusal to perform work properly assigned by a supervisor.

       
       

       Major Rule 3 – Willful, deliberate or repeated violation of City safety rules, including instances where there is evidence of willful disregard of proper safety practices and precautions while operating City equipment.

       
       

       Major Rule 7 – Deliberately abusing [sic] destroying, damaging or defacing City property, tools, equipment or the property of others on City premises.

       
       

       Major Rule 21 – Neglect of duty.

       
       

       Major Rule 24 – Conduct, either while on or off duty, which tends to reflect discredit upon the City.

       
       

       Major Rule 25 – Employee harassment, abusive conduct towards an employee or a member of the general public.

       
       

       Major Rule 26 – Violation of City Charter, ordinances, or administrative rules and regulations, specifically City Ordinance 16- 75(a)(5) – Public Indecency.

       
       

       Furthermore, the letter provided that Mr. Duverglas had the opportunity to request a hearing, setting forth the procedure for such a request, and indicated the consequences for his failure to request a hearing.

46. City Ordinance 16-75(a)(5) – Public Indecency provides in pertinent part:

    1. Offense. It shall be unlawful for any person to commit public indecency. A person commits public indecency when he performs any of the following acts in a public place:

       * * *

       
       

       (5) Urinates . . . in other than a toilet or washroom . . . .

       
       

    2. Definitions. “Public place,” for purposes of this section, means any place where the conduct may reasonably be expected to be viewed by others.

       
       

    3. Penalties. Any person convicted of violating this section shall be deemed guilty of the offense of public decency and upon conviction shall be punished as provided in section 1-6 of this Code.

    
    

47. Section 1-6, titled “Penalty for violations,” provides in pertinent part:

    1. In this section “violation of this Code” means:

       1. Doing an act that is prohibited or made or declared unlawful or an offense by ordinance or by rule or regulation authorized by ordinance . . . .

    
    

    * * *

    
    

    1. Except as otherwise provided herein, a person convicted of a violation of this Code, shall be punished by a fine not to exceed five hundred dollars ($500.00) or by imprisonment for a term not to exceed sixty

       (60) days or by both such fine and imprisonment. . . .

       
       

    2. The imposition of a penalty does not prevent revocation or suspension of a license, permit or franchise or the imposition of civil fines, civil penalties or administrative sanctions.

    
    

48. Administrative sanctions could be imposed for a violation of City Ordinance Section 16-75(5).

49. Mr. Duverglas admits that a violation of City Ordinance Section 16-75(5) is just cause for suspension and dismissal.

50. The ground of public indecency was sufficient, in and of itself, to dismiss Mr. Duverglas from employment. The evidence demonstrated that he committed the act of public indecency as defined in City Ordinance Section 16-75(5).

51. The evidence fails to demonstrate that Mr. Thornburg had any knowledge of Mr. Duverglas’ Haitian ancestry prior to the disciplinary action.

52. Mr. Duverglas requested a hearing from the City. The hearing was held on September 6, 2005.

53. By letter dated September 7, 2005, the City Manager, George Gretsas, notified Mr. Duverglas that, after a review of all the available and relevant information, including that presented at the hearing, the suspension and dismissal was upheld.

54. A grievance under the union contract was filed. On November 21, 2005, the City’s Employee Relations Director issued a “Fourth Step Response Teamster Grievance,” providing, among other things, that a hearing was held on November 9, 2005, in accordance with the grievance, that no evidence was presented to cause the City to modify its decision, and that, therefore, the grievance was denied.

55. An inference is drawn and a finding is made that an arbitration hearing was held on or about May 18, 2006, regarding Mr. Duverglas’ suspension and dismissal. The evidence was insufficient to demonstrate the outcome of the arbitration proceedings, but an inference is drawn and a finding is made that the arbitration decision was not favorable to

    Mr. Duverglas.

    
    

56. On July 24, 2006, Mr. Duverglas filed a Charge of Discrimination with the Broward County Civil Rights Division and the EEOC against the City alleging that the City discriminated against him on the basis of national origin (Haitian) and retaliation in violation of the Florida Civil Rights Act of 1992, as amended. The Broward County Civil Rights Division waived investigation of the charge. The matter was investigated by the FCHR. On January 19, 2007, the FCHR issued a Determination of No Cause and a Notice of Determination of No Cause. Mr. Duverglas timely filed a Petition for Relief with the FCHR against the City.

    CONCLUSIONS OF LAW

    
    

57. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto, pursuant to Sections 760.11 and 120.569, Florida Statutes (2008), and Subsection 120.57(1), Florida Statutes (2008).

58. Section 760.10, Florida Statutes, provides in pertinent part:

    
    

    1. It is an unlawful employment practice for an employer:

       
       

       1. 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 of employment, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.

          
          

       2. To limit, segregate, or classify employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities, or adversely affect any individual's status as an employee, 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.

          
          

59. A three-step burden and order of presentation of proof have been established for unlawful employment practices. McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S. Ct.

    1817, 36 L. Ed. 2d 688 (1973); Aramburu v. The Boeing Company,

    
    

    112 F.3d 1398, 1403 (10th Cir. 1997). The initial burden is upon Mr. Duverglas to establish a prima facie case of discrimination. McDonnell Douglas, at 802; Aramburu, at 1403. Mr. Duverglas establishes a prima facie case of discrimination by showing: (1) that he belongs to a protected group; (2) that he was subjected to an adverse employment action; and (3) that his employer treated similarly situated employees outside the protected group differently or more favorably. McDonnell Douglas, supra; Holifield v. Reno, 115 F.3d 1555 (11th Cir. 1997); Aramburu, supra. See Kendrick v. Penske Transportation Services, 220 F.3d 1220 (10th Cir. 2000) (similarly situated employees need not be outside the protected group).

60. Once Mr. Duverglas establishes a prima facie case, a presumption of unlawful discrimination is created. McDonnell Douglas, at 802; Aramburu, at 1403. The burden shifts then to the City to show a legitimate, nondiscriminatory reason for its action. McDonnell Douglas, at 802; Aramburu, at 1403. If the City carries this burden, Mr. Duverglas must then prove by a preponderance of the evidence that the reason offered by the City is not its true reason, but only a pretext for discrimination. McDonnell Douglas, at 804; Aramburu, at 1403.

61. However, at all times, the ultimate burden of persuasion that the City intentionally discriminated against him

    remains with Mr. Duverglas. Texas Department of

    
    

    Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67

    
    

    L. Ed. 2d 207 (1981).

    
    

62. Applying the prima facie standards, the evidence demonstrates that Mr. Duverglas has satisfied the first two prongs but failed to satisfy the third prong of the test.

    Mr. Duverglas has demonstrated that he belongs to a protected class (national origin--Haitian) and that he was subjected to an adverse employment action (suspension and termination of employment). However, he failed to demonstrate that the City treated similarly situated employees, whether inside or outside the protected group, differently or more favorably. Anderson v.

    WBMG-42, 253 F.3d 561, 565 (11th Cir. 2001); McGuinness v.

    
    

    Lincoln Hall, 263 F.3d 49, 53, 54 (2d Cir. 2001); Kendrick, supra; Holifield, supra at 1562; Shumway v. United Parcel Service, Inc., 118 F.3d 60, 64 (2d Cir. 1997).

63. Assuming Mr. Duverglas had established a prima facie case, the City has demonstrated a legitimate, nondiscriminatory reason for its employment action of suspending and terminating him. The City demonstrated that Mr. Duverglas had performance deficiencies; that he had continuous hygiene problems that he failed to successfully address and which the City continuously attempted to assist him in addressing; and that ultimately, for

    the City, he had committed public indecency, which was a proper basis, in and of itself, for suspension and termination.

64. Further, Mr. Duverglas failed to demonstrate that the City's reason for terminating him was not the true reason, but a pretext for discrimination.

65. Mr. Duverglas also asserts that the City retaliated against him for filing a complaint with OPS against a co-worker, Mr. Orr, for making discriminatory remarks. Mr. Duverglas has demonstrated that he made a complaint with OPS against Mr. Orr for making discriminatory remarks regarding Haitians.

Mr. Duverglas is of Haitian descent. Also, Mr. Duverglas demonstrated that he made a complaint with OPS against his supervisor, Mr. Neal, who was also Mr. Orr’s supervisor, for retaliation in that Mr. Neal retaliated against him

(Mr. Duverglas) for making the complaint against Mr. Orr. The evidence demonstrates that Mr. Neal had no knowledge of

Mr. Orr’s alleged discriminatory comments and of Mr. Duverglas’ complaint against Mr. Orr until being informed of the comments and complaint by Mr. Duverglas. Furthermore, the evidence demonstrates that Mr. Duverglas was having performance and hygiene problems prior to his complaints with OPS. Consequently, the evidence fails to demonstrate retaliation.

RECOMMENDATION

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 discrimination complaint of Donald Duverglas against the City of Fort Lauderdale.

DONE AND ENTERED this 25th day of November, 2008, in Tallahassee, Leon County, Florida.

ERROL H. POWELL

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 25th day of November, 2008.

ENDNOTES

1/ At hearing, Mr. Duverglas entered into evidence Petitioner’s Exhibit numbered 23, which was a contemplated disciplinary action memorandum dated August 2, 2005. However, he failed to forward the exhibit to the Division of Administrative Hearings in order for the exhibit to be made a part of record. Consequently, Petitioner’s Exhibit numbered 23 is not a part of the record.

2/ The record of this matter shows three volumes of the Transcript being filed. The first volume was filed on June 23, 2008; the second volume was filed on June 30, 2008; and the third

volume was filed on July 10, 2008. The second volume, filed June 30, 2008, is an incomplete Transcript of the first-part of the hearing held on December 11, 2007. The third volume, filed July 10, 2008, is the complete Transcript of the first-part of the hearing and is, therefore, the official Transcript of the first-part of the hearing held on December 11, 2007.

COPIES FURNISHED:

Jonel Lemy, Esquire

The Law Offices of Jonel Lemy, P.A. 1061 West Oakland Park Boulevard,

Suite 106

Fort Lauderdale, Florida 33311

Eugene K. Pettis, Esquire Haliczer, Pettis, & Schwamm, P.A. One Financial Plaza

100 Southeast Third Avenue, Seventh Floor Fort Lauderdale, Florida 33394

Denise Crawford, Agency Clerk

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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.

Docket for Case No: 07-000989

Orders for Case No: 07-000989