The Issue Petitioner has alleged that Respondent violated the Florida Civil Rights Act of 1992 and its predecessor statute by discriminating against him based on his age and national origin in the following: denial of promotion to liftstation mechanic; disparate treatment with regard to training opportunities, transfers, overtime opportunities and disciplinary actions; ridicule and other demeaning actions, such as being escorted to the restroom; and other harassment in retaliation for his complaints. Both parties have requested attorney's fees and costs and it is necessary to determine if such award is appropriate. The primary issue for disposition is whether the alleged violations occurred, and, if so, what relief is appropriate. Although other actions, including termination, have occurred since the complaint was filed, the parties have concurred that those actions are not the subject of this proceeding.
Findings Of Fact Emiliano Santos was born in Puerto Rico in 1944 and came to the United States in 1964. Spanish is his first language, and, in his words, he has been struggling with English since 1964. Mr. Santos was employed by the City of Melbourne on January 8, 1990. His first job was as a custodian helper in the auditorium. Approximately six months later he applied for positions as Maintenance Worker I and Maintenance II in the city sewer department; he was given the Maintenance II position, the higher level, because of his employment with the city. Robert Klaproth is the Melbourne water and sewer administrator in charge of the day-to-day operations of the water and sewer division. Tom Hogeland is the water and sewer operations superintendent for the City of Melbourne and has been in that position for approximately five years. Under his supervision is Greg Williams, supervisor of the sewer collection division, who in turn directly supervises Doug Hammond, the liftstation maintenance foreman, and Bob Lyons, the maintenance and construction crewleader. Under those two latter individuals are technical workers such as liftstation mechanics, the liftstation electrician, equipment operators, and other crew leaders. At the entry-level or laborer level are the maintenance workers I and II and utility system service workers. As of January 1992, that entry level in the sewer collection division included, among others, Mr. Santos, William Spann, Joseph Concepcion, and Martin Koehler. The Liftstation Mechanic Promotion Some time in the summer of 1992, an opening came up in a liftstation mechanic position; and Tom Hogeland was directly involved in the recruitment and hiring process. Five applicants sought the position: Mr. Santos, William Spann, Elmer Cross, Oscar Vega and Cecil Smith. The position was advertised in-house as a promotional opportunity. It called for five years mechanical experience in the repair and maintenance of pumps, motors and other associated mechanical equipment. Each applicant was given a copy of the job description in advance of the interview. At the individual interviews Tom Hogeland described the physical condition of the job and asked the individual whether he was familiar with the position description. He also asked four questions to determine the applicant's basic familiarity with pumps and equipment used in liftstations, and he asked each about his background and experience. Of the five applicants, Tom Hogeland found only two had the minimum five years' experience: William Spann and Elmer Cross. Hogeland verified the experience of each applicant. William Spann had claimed experience in the Marine Corps and Hogeland called and spoke with someone in the Corps who was familiar with Spann's experience. Hogeland verified Elmer Cross' experience with his city supervisor, as Cross was working in the Melbourne wastewater treatment plant. Emeliano Santos claimed on his application that he had the requisite experience in a prior job with the John Deere company. When Hogeland called the company he was told that Mr. Santos had not worked as a mechanic, but was a machinist, assembling and operating machines. He had no pump mechanic experience at John Deere. Because of his seniority with the city, Hogeland recommended Elmer Cross for the opening. However, it was not a promotion for Cross and he told Hogeland that he decided to turn down the transfer. The position was then offered to William Spann, who accepted it. At hearing, Mr. Santos admitted that he did not have the requisite five years' experience. He claimed, however, that William Spann did not have the experience either. William Spann is a white male in his 20's who was hired as a maintenance worker I in 1990 in the sewer division. His prior experience was as a maintenance sergeant at Camp LeJeune, including the responsibility for maintaining and servicing the wells and pumps at the facility. This military experience and his experience with the city, when he was assigned to assist the liftstation mechanic, combined to provide him the requisite minimum five years. Contrary to Mr. Santo's claim that he was the only one who was quizzed on his knowledge, both William Spann and Oscar Vega (an Hispanic) testified that their interviews included the questions described by Tom Hogeland. Training Opportunities The city sponsors or pays for its employees' attendance at various training sessions and tries to insure that everyone has an opportunity for such training each year. Tom Hogeland generally makes the final decisions where there is a dispute about who can participate. As required by union contract, the educational opportunities are posted on the bulletin board, and commonly there is no dispute because selections for attendees are made on the basis of seniority and rotation. Selections are also made based on whether the opportunity relates to an individual's job. Mr. Santos alleges that he and other minorities were passed over in favor of white employees who were given training opportunities. He was selected, and attended, a pump school in Orlando, but he contends that the city denied any employee's attendance at another pump school when a number of minorities signed up for the school. Robert Klaproth has cancelled training opportunities twice, both in the wastewater treatment division. On one occasion the opportunity was posted and employees applied, but the school could not be approved because there was no money for it in the budget. On another occasion twenty people signed up, and when the union could not resolve who should go, the opportunity was cancelled. In neither case was race or ethnicity of the employees an issue. There is no evidence that race, age or ethnicity has been an issue in any decision by the city in providing training opportunities. Over-time Opportunities There are three types of overtime for employees in the sewer division. The first is a voluntary on-call overtime for which employees sign up and take one week at a time. During that week the employee forfeits his free time and must be available for emergency response. The second type of overtime is the scheduled emergency overtime which occurs when repairs need to be scheduled after hours when there is reduced demand on the system, or when an emergency occurs which cannot be handled by the on-call person, alone. The third type of overtime occurs when a job is not finished by quitting time and the crew needs to stay over to get the system back together. Generally the crew who starts the job has the opportunity to stay and finish it. Overtime is voluntary and is granted on rotation. The list is posted, by seniority, and when the individual's name comes up, the opportunity is offered, and if it is declined, the individual's name goes back to the bottom of the list. Overtime is compensated at time and a half, either in pay or compensatory time off, at the employee's option. There was a period during 1991 or 1992 when Mr. Santos declined overtime. He claims he declined because it was not being handled fairly, that the rotation was not being followed and that he was being passed over. Aside from some evidence that the overtime postings were removed from the employees' bulletin board for a brief period by some unknown person, there is no evidence that the union-prescribed rotation system was not followed. The 1992 records maintained by Greg Williams reflect a substantial amount of overtime available to Mr. Santos and no evidence that he or the other minorities in the division were being passed over. In 1993, Mr. Santos was provided more than the average amount of overtime hours provided to other employees in the sewer division. Disciplinary Incidents Mr. Santos has been disciplined on several occasions. On one occasion, he, Joseph Concepcion (an Hispanic) and Perry McThenney (Black) were disciplined for leaving the city limits in the city truck to buy some work shoes for Mr. Concepcion. Neither Mr. Concepcion nor Mr. McThenney considered the discipline unwarranted; they understood they violated city policy and did not consider the discipline as discriminatory. On another occasion, incentive points which were used to obtain a raise in pay were removed by the city after it learned that Mr. Santos forged the signatures of his supervisor and other employees on documents related to those incentive points. Mr. Santos freely admits the forgery but dismisses its significance, as he claims he was attending the classes on his own time, and received academic credit for the classes. These were classes taken in coordination with an on-job training program which required the periodic certification by the city that Mr. Santos was working as an electrical apprentice. In October 1992, Mr. Santos was given a written reprimand and leave without pay for taking a full day off for a medical appointment that was approved for a half-day. That discipline was rescinded after Mr. Santos explained to Robert Klaproth that he needed the day to go to the doctor, go to the bank to get money for his prescription and to buy the prescription. Other Hispanic employees have been disciplined from time to time. There is a union grievance procedure in place and it has been used by Mr. Santos and others. In some instances the grievance has been upheld and the discipline rescinded; in other cases the discipline has been upheld. No evidence was presented that the disciplinary process or grievance process have been used by the city to discriminate against Hispanics or other minorities; that is, no competent evidence was presented that white employees received less or no discipline for similar infractions. Ridicule, Harassment or Retaliation Claims Sewer collection division supervisor, Greg Williams, received complaints from other workers, including Joseph Concepcion, that Mr. Santos was taking the truck to make telephone calls or to go to the bathroom and the crew was left at the field site without a vehicle or tools. He also heard complaints that Mr. Santos was leaving to go to the bathroom right after the crew left the breakroom. Greg Williams spoke with crew leader, Bobby Lyons, about telling everyone, and not just Mr. Santos, that the crew members should check with the others before leaving to see if anyone else needed to go; and to be sure that tools and equipment were left at the job site. Greg Williams did not instruct Bobby Lyons to "escort" Mr. Santos to the bathroom. Bobby Lyons did go with Mr. Santos to the bathroom on two occasions after that. The record does not reflect whether Mr. Lyons also went to the bathroom or had other errands to run at the same time. The crews in the city water and sewer division are a diverse group, comprised of whites, blacks and Hispanics. The work can be rough and difficult, and there is ample opportunity for banter and joking to get out of hand. Mr. Santos was involved on several occasions in such verbal spats and was orally chastised, along with the other employee. In the course of one verbal exchange, he called Martin Koehler a "prick" and Koehler called him an "asshole." These are not racial or ethnic epithets. Mr. Santos also complained that Joseph Concepcion was calling him names. Mr. Concepcion, a Hispanic, was not harassing Mr. Santos because of his ethnicity. Two employees in particular in the water and sewer division were commonly heard to say "nigger," or to call Mr. Santos "Puerto Rican": Mike Carouso and Martin Koehler. When this language was brought to the attention of the supervisors, the men were reprimanded, either in writing (in Carouso's case) or verbally. When the union steward, Robert Bray, complained to Robert Klaproth that ethnic remarks were being made, Mr. Klaproth immediately convened a general meeting of the employees in the division and made it clear that such language would not be tolerated. Although it is obvious that the meeting did not cure the problem entirely, the name-calling and epithets did not take place in front of the supervisors. The city's policy is to discipline employees who engage in language that is derogatory to minorities and the city has taken severe action against two high-ranking employees, a police sergeant and a fire battalion chief, for single incidents of such language. Mr. Santos' claims of retaliation are not substantiated. The incidents of disciplinary action which he described were justified, or in the case of the medical leave, was properly rescinded after he explained the circumstances to his supervisors. None of the grievance proceedings described in Mr. Santos' testimony and in copious documents received in evidence, including transcripts of the proceedings, support his claims of retaliation or harassment. The Experience Of Other Minorities Carlos Colon is a sixty-two year old Hispanic employee in the city's park department. He was hired nine years ago, when he was fifty-three. He was disciplined once for accidently damaging a city tractor that he was driving, and he failed to receive a promotion for which he considered himself qualified, but he does not believe that the city or his supervisor discriminated against him. The top manager in the parks department is Felix Rodriquez, a Puerto Rican. Joseph Concepcion, also Puerto Rican, considers his ethnic background an asset because of his bi-lingual ability. He has been regularly promoted in his seven years with the city. He has not observed discrimination in the choice of employees for training, for promotions or for overtime. He has heard Martin Koehler use derogatory language regarding blacks and Hispanics, but not directly toward Mr. Santos and not when any supervisors were around. When he heard Mr. Koehler, a co-worker talking like that, Mr. Concepcion walked into the breakroom at lunch and invited anyone who did not like Puerto Ricans and blacks to come outside and "talk" to him. No one came out; and as far as he was concerned, that was the end of the issue. Perry McThenney is a black employee who has worked for the city for eight years and has been promoted three times. He has not experienced nor observed discrimination in promotions, overtime and training opportunities. Robert Bray, the union steward, is a black city employee. Mr. Santos complained frequently to him about racial slurs against his Hispanic origin but never complained about age discrimination. The one time that Mr. Bray went to Mr. Klaproth with the racial slur complaint, a meeting was held the next day to inform the entire division staff that such language would not be tolerated. Mr. Bray believes that the city should come up with some kind of sensitivity program, but he has not actually suggested that remedy to anyone yet. The employees whom Mr. Brag was aware had used derogatory language were the same two mentioned by Mr. Santos and others: Martin Koehler and Michael Carouso. Pedro Diaz, an Hispanic, was passed over for promotion in favor of a sixty year old white employee. At the time, Mr. Diaz felt he should have gotten the promotion because of his longer seniority with the city; however, he conceded that the successful employee could have had better experience. Mr. Diaz has been promoted by the city since then. Mr. Diaz encountered a series of problems with a supervisor who is no longer employed by the city. Since that supervisor left, no other management employee has given him a hard time or discriminated against him because of his ethnic background. Oscar Vega was born in Cuba and has worked for the city approximately 6-1/2 years. He has been promoted during that period. He has also applied for positions which he did not get; in one case, he was not qualified and agrees that the best person got the job; in another case, he filed a grievance with the help of Robert Bray and received the job. He feels the city has treated him fairly and has not discriminated against him based on his Hispanic origin. Summary of Findings The City of Melbourne has not discriminated against Emiliano Santos based on his age or ethnic origin. The demeanor and credibility of the witness have, in part, contributed to this finding. Specifically, the hearing officer has considered, and rejected, the suggestion that the presence of Robert Klaproth, as Respondent's representative, throughout the proceeding, influenced the testimony of the several black and Hispanic employees called as witnesses by Mr. Santos. There is no doubt that Mr. Santos is bitter and frustrated with his employment experience with the city. He has been subjected to other discipline or personnel action which, by stipulation, was not at issue in this proceeding. He has engaged in crude and disruptive verbal exchanges with co-workers. Whether he was the instigator of those exchanges or not, there is no evidence that they were racially or ethnically motivated. He has been disciplined for good cause, or when he explained the circumstances (as with the medical leave), the discipline was rescinded. He was passed over for a promotion, but did not have the requisite experience, and, as best as the city could determine, the successful applicant did have the experience. There was uncontroverted evidence that at least two non-supervisory employees have used racially derogatory or abusive language in the work place. They were disciplined, and the supervisors attempted to address the problem with a general meeting. Although the language continued, it was not because such was tolerated by the supervisors, and it was not so pervasive as to create an abusive or offensive work environment.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that Petitioner's Petition for Relief dated February 28, 1994, be dismissed. DONE AND ENTERED this 5th day of April, 1995, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 1995. COPIES FURNISHED: James L. Reinman, Esquire 1825 S. Riverview Drive Melbourne, FL 32901 Susan K. W. Erlenbach, Esquire ERLENBACH AND ERLENBACH, P.A. 400 Julia Street Titusville, Florida 32796 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road, Building F Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road, Building F Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Complaint of Discrimination filed by Petitioner on February 24, 2014.
Findings Of Fact Respondent operates one of the largest continuing care retirement communities in the country with about 2,400 residents and just over 1,000 employees on a single site in Fort Myers, Florida. Petitioner describes herself as "Indo-Guyanese" and testified that she is a member of the Catholic denomination. Petitioner is an articulate woman who projects an air of dignity and refinement. These qualities, when combined, can easily be interpreted by some individuals as producing an arrogant personality type. On June 6, 2013, Petitioner began employment with Respondent and was assigned to work at The Arbor, which is one of Respondent's assisted living facilities. Petitioner was employed as a hospitality care assistant (HCA) and worked on a PRN, or "as needed/on-call," basis. Petitioner's final date of employment with Respondent was May 8, 2014. Petitioner's employment relationship with Respondent ended after Petitioner refused to return to work after being cleared to do so by her authorized workers' compensation treating physician. During her employment by Respondent, Petitioner was supervised by Stacey Daniels, the registered nurse manager assigned to The Arbor. Ms. Daniels has held this position for 15 years. In her capacity as registered nurse manager, Ms. Daniels supervised seven licensed practical nurses, approximately 35 HCAs and resident care assistants, and two front-desk staff. In addition to Petitioner, Ms. Daniels also supervised Marjorie Cartwright, who works at The Arbors as a full-time HCA. Alleged Harassment by Marjorie Cartwright Petitioner, in her Complaint, alleges that she "endured on-going harassment by Marjorie Cartwright." According to Petitioner, Ms. Cartwright would tell Petitioner things like "we don't allow terrorists to have keys and [a] radio," would ask Petitioner if she is "Muslim," and referred to Petitioner as "that bitch nigger" when speaking with other staff. The Complaint also alleges that Ms. Cartwright told co-workers that she "hate[s Petitioner] to the bone." Olna Exantus and Nadine Bernard were previously employed by Respondent, and each woman worked with both Petitioner and Ms. Cartwright. Ms. Exantus testified that she witnessed an incident between Ms. Cartwright and Petitioner, during which Ms. Cartwright called Petitioner "stupid" and an "idiot" because Petitioner did not deliver to Ms. Cartwright the number of lemons that were requested. Ms. Exantus also recalled an incident where she was working with Ms. Cartwright and Petitioner when, out of the presence of Petitioner, Ms. Cartwright said that she hates Petitioner to the bone or words of similar import. Ms. Bernard testified that Ms. Cartwright referred to Petitioner as "stupid" on one occasion, and on another occasion, she called Petitioner a "bitch." Ms. Bernard also testified that she heard Ms. Cartwright state that she hates Petitioner to the bone or words of similar import. Both Mses. Exantus and Bernard testified that they heard Ms. Cartwright say that the reason why she hates Petitioner to the bone is because Petitioner thinks that "she is a rich lady" and is, therefore, better than everyone else. Neither Ms. Exantus nor Ms. Bernard testified to having heard Ms. Cartwright refer to Petitioner as either a "nigger" or a "bitch." Ms. Cartwright, who is not Indo-Guyanese, has been employed by Respondent for approximately six years as a full-time HCA. Although Ms. Cartwright testified for only a few minutes during the final hearing, she projects a personality type that can best be described as "feisty." Ms. Cartwright and Petitioner worked together approximately ten times during Petitioner's period of employment with Respondent. Ms. Cartwright testified that she never referred to Petitioner using either the word "nigger" or "Muslim." Ms. Cartwright did not deny that she referred to Petitioner as "stupid" or called her an "idiot." Ms. Cartwright also did not deny that she stated that she hates Petitioner to the bone. Petitioner was informed by Mses. Exantus and Bernard that she was disliked by Ms. Cartwright, and they suggested to Petitioner that she should take appropriate steps to protect her food items from possible contamination by Ms. Cartwright. Although Petitioner was warned to take such steps, there is no evidence that Ms. Cartwright engaged in any behaviors designed to cause harm to Petitioner. The evidence is clear, however, that Ms. Cartwright disliked Petitioner during Petitioner's period of employment by Respondent. Petitioner contemporaneously prepared personal notes as certain events happened during her employment by Respondent, including issues she claimed to have had with Ms. Cartwright. None of Petitioner's contemporaneous notes indicate that Ms. Cartwright, or anyone else employed by Respondent, referred to her as either a "nigger" or a "Muslim." The evidence does not support Petitioner's claim that Ms. Cartwright referred to Petitioner as a "bitch nigger" or as a "Muslim" as alleged in the Complaint. Stacey Daniel's Alleged Failure to Act on Complaints Petitioner alleges in her Complaint that she attempted to report Ms. Cartwright's behavior to their joint supervisor Ms. Daniels, but was told by Ms. Daniels that she "didn't have time to listen" to Petitioner's complaints. On December 13, 2013, Ms. Daniels met with Petitioner to discuss Petitioner's possible workers' compensation claim. During the meeting, Petitioner mentioned to Ms. Daniels that she was upset with her because approximately three months earlier, on or about September 4, 2013, Ms. Daniels refused to immediately meet with Petitioner to discuss the problems that Petitioner was having with Ms. Cartwright. Ms. Daniels had no recollection of Petitioner approaching her with concerns about Ms. Cartwright. Petitioner acknowledged that she only approached Ms. Daniels once to discuss her concerns about Ms. Cartwright. During the meeting on December 13, 2013, Ms. Daniels reminded Petitioner that she (Ms. Daniels) is very busy during the workday, that it may be necessary to bring matters to her attention more than once, and that she is not always able to stop what she is doing and immediately meet with employees to address work-related disputes. She apologized to Petitioner for the oversight and immediately offered to mediate any dispute between Petitioner and Ms. Cartwright. Petitioner refused Ms. Daniels' offer because Ms. Cartwright, according to Petitioner, would simply lie about her interaction with Petitioner. Petitioner never complained to Ms. Daniels about Ms. Cartwright referring to Petitioner as either a "nigger" or a "Muslim." Petitioner Complains to Karen Anderson Karen Anderson is the vice-president of Human Resources, Business Support, and Corporate Compliance and has been employed by Respondent for approximately 18 years. On November 21, 2013, Petitioner met with Ms. Anderson to discuss matters related to a workers' compensation claim. During this meeting with Ms. Anderson, Petitioner complained, for the first time, about Ms. Cartwright and the fact that Ms. Cartwright had called Petitioner "stupid" and had also referred to Petitioner as a "bitch." At no time during this meeting did Petitioner allege that she had been referred to by Ms. Cartwright as a "nigger" or a "Muslim." Additionally, at no time during her meeting with Ms. Anderson did Petitioner complain about Ms. Daniels, Petitioner's immediate supervisor, refusing to meet with her in order to discuss her concerns about Ms. Cartwright. Denied Promotion on Three Occasions In her Complaint, Petitioner alleges that she "was denied promotions to Registered Medical Assistant 3 different times" by Ms. Daniels. This allegation is not supported by the evidence. Ms. Daniels testified that Petitioner was never denied, nor did she ever seek, a transfer to the position of registered medical assistant. Ms. Daniels also testified that the only conversation that she and Petitioner had about the position of registered medical assistant occurred before Petitioner was hired by Respondent. Petitioner offered no credible evidence to refute Ms. Daniels' testimony. Retaliatory Reduction in Hours Worked In her Complaint, Petitioner alleges that "[o]ut of retaliation for complaining to Ms. Stacey about Ms. Marjorie, they cut my hours back to 2 days a week without my request." As previously noted, Petitioner worked for Respondent on an "as needed/on-call" basis. Typically, Respondent's on-call staff members are presented with a work schedule that has already been filled in with work times for the full-time staff members. Any work times not filled by full-time staff are then offered to on-call staff. In addition, on-call staff may be called at the last minute, if there is a last minute schedule change by a full-time staff member. On-call HCAs do not have set work schedules and are offered work hours on a first-come, first-served basis. After Petitioner was cleared to return to work following her alleged work-related injuries, Ms. Daniels, along with Amy Ostrander, who is a licensed practical nurse supervisor, tried to give Petitioner notice of the availability of work shifts that were open on upcoming schedules at The Arbor. Ms. Daniels encouraged Petitioner to provide her with an e-mail address in order to provide Petitioner with a more timely notice of available work shifts, but Petitioner refused to do so. E-mail communication is the most typical form of communication used by the rest of the on-call staff and serves as the most efficient and quickest way for Ms. Daniels to communicate with HCA staff. Because Petitioner would not provide an e-mail address, she was at a disadvantage, because other on-call staff members were able to learn of the availability of work shifts and respond faster to the announced openings. Because Petitioner would not provide an e-mail address and indicated that she preferred to receive the notice of work shift availability by mail, Ms. Daniels complied and sent the schedule of availability to Petitioner by U.S. mail. The evidence establishes that any reduction in the number of hours worked by Petitioner resulted exclusively from her own actions and not as a result of any retaliatory animus by Ms. Daniels or Respondent.
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 finding: that Respondent, Shell Point Retirement Community, did not commit an unlawful employment practice as alleged by Petitioner, Ghanshaminie Lee; and denying Petitioner's Employment Complaint of Discrimination. DONE AND ENTERED this 23rd day of March, 2015, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 2015.
Findings Of Fact Jurisdiction: The complaint alleges, the Respondent admits and I find that the Respondent is a Public Employer with its principal place of business located in the City of Port St. Joe, Florida, where it is engaged in the business of operating a city. Respondent is created directly by the Florida State Constitution and/or legislative body so as to constitute a department or administrative arm of the government as administered by individuals who are responsible to public officials and/or to the general electorate. On the foregoing, I find that the Respondent is now and has been at all times material herein, a public employer within the meaning of Section 447.203(2) of the Act. The Labor Organization Involved: On the basis of a prior administrative determination and in conjunction with an order of the Public Employees Relations Commission and its decision in case no. 8H-RC-7053-0053, 1 find that the Laborers International Union of North America, Local No. 1306, is a labor organization within the meaning of the Act. The Alleged Unfair Labor Practices: A. introduction The complaint alleges, and the General Counsel and the Charging Party contend, that the Respondent, through its representative, Mr. Hadden, engaged in a systematic pattern of harassment directed against Mr. Burrows, the Charging Party, because of Mr. Burrows union activity. Based on this harassment, the complaint alleges that Mr. Burrows was forced to quit on February 10, 1976, and was therefore constructively discharged. Respondent's position is that assuming that the allegations of the complaint are true, it should be dismissed because the Public Employees Relations Commission, hereinafter PERC, previously determined that Hadden was a member of the bargaining unit and therefore Respondent can not be held responsible for unfair labor practices of an employee. Alternatively, the Respondent alleges that if it is determined that PERC's original decision was incorrect and Hadden is a managerial employee within the meaning of the Act, the actions of Hadden did not constitute harassment of Mr. Burrows. Furthermore, it is contended that Mr. Burrows was merely asked to perform various jobs which are performed by every other employee of the public works department. Respondent urges that its actions towards Burrows were in no way discriminatory nor did they constitute harassment. Contrawise, Respondent contends that there was no constructive discharge but rather Burrows voluntarily quit his job without notice. The Respondent, City of Port St. Joe, is managed by a five member City Commission. The City's operations are divided into three principle departments: Waste Water Treatment; Parks and Cemeteries, Water and Sewer; and Roads and Streets. About 40 employees work under manager R. F. Simon at the Waste Water Treatment Plant and Curtis Lane is Simon's assistant. The plant is located on the north side of the City. G. L. Scott supervises about 10 employees working in Parks and Cemeteries, Water and Sewer. Dorton Hadden supervises about 20 employees in the Road and Streets Department. Employees of Hadden and Scott work up town, which is approximately one mile away from Simon's Employees. R. F. Simon reports directly to the City Commissioners. According to his testimony, he, as directed by the City Commission, supervises Hadden and Scott concerning some of their duties, but that for other duties, Hadden and Scott report directly to the Commission. According to Brock, Hadden hires, fires and disciplines his employees and reports such activity to the City Commission. According to him, he knew of no instance where Hadden's decisions were questioned by the City. It is fair to state that Hadden was solely in charge of his employees and that the City's prior consent is not required for him to exercise his powers as it relates to the hiring, firing and disciplining of employees in his department. Hadden also testified that he worked directly for the City Commission, and he has the power to hire, discipline and fire employees. He is not required to obtain permission to fire employees but he usually contacts the Mayor to explain the reasons why an employee is fired or otherwise disciplined. Hadden has rarely exercised this authority as most employees usually quit when they find better jobs. Hadden does not evaluate his employees and there is no senority system in his department since every employee, according to him, is a laborer and performs essentially the same work. Newly hired employees are placed on a three month probationary status after which they are placed on permanent status. According to him, the purpose of probationary is two fold: to determine whether or not an employee will stay on the job long enough such that processing of formal papers such as insurance and other necessary items will not be an exercise in futility and secondly an employee can decide whether he can perform the required "dirty work" during that period. He was unable to recall terminating any one during their probationary status, however, he did recall one employee who quit since the job required too much "dirty work". On January 27, 1976, Laborer's International Union of North America, Local No. 1306 filed a representation petition seeking a secret ballot election for a unit of blue collar employees of the City. On June 16, 1975, a Hearing Officer of the Division of Administrative Hearings conducted a public hearing on the appropriate unit question. Pursuant to the record developed in that case on December 23, 1975, the Public Employees Relations Commission determined the following appropriate bargaining unit. Included: All employees of the City. Excluded: All sworn police officers, fire fighters, hospital and medical care employees of the City. See PERC decision and order in case no. 8H-RC-753-0053, Charging Party's Exhibit 2b, received into evidence and made a part hereof by reference. PERC designated Brock and Simon managerial employees within the meaning of Section 447.203(4) of the Act. Hadden was included in the unit as a working foreman", the person who essentially "directs and assist the accomplishment of specific, tasks." The Commission found that Hadden's degree of supervision is not of such magnitude as to create an untenable conflict of interest between the lower level supervisors and other rank and file employees. See Exhibit 2(b) supra, at page 3. Thereafter an election was conducted by the Commission on February 4, 1976 and on February 18, 1976, the Union was certified as the exclusive collective bargaining representative for the employees in the above referenced unit. William Edward Burrows was initially hired by the City on September 3, 1974. Burrows had worked for the City on two prior occasions, once in 1972 and a second time in 1973. He was hired by Hadden on each occasion. The record also reveals that Burrows was employed several times for the Comforter Funeral Home where he was employed by W. P. Comforter, Sr., the funeral director. Based on the testimony of W. P. Comforter, Jr., Burrows had little if any difficulty performing his work duties as required however, Comforter, Jr. testified that he doubted whether he would reemploy Burrows since he left their employment at least once without prior notice. Burrows testified that he initially left the City's employ due to marital problems. He quit the second time for a better job and the third time his separation resulted from his discharge which is here alleged as a constructive discharge. During September 1974, he was hired as a dog catcher for the City. At that time there was no dog pound however, there was a dog pound in operation during December 1974 to December 1975. Prior to the pound being built, Burrows performed odd jobs, such as cutting grass, truck driving, picking up trash and assisting summer school employees clean out drainage ditches. In early December 1975, Burrows drove a garbage truck. During the period of approximately three weeks preceding Christmas and approximately two to three weeks after New Years, he strung Christmas lights. During that period he also was assigned to drive the dump truck hauling dirt and assisting employees with the operation of the dragline and front-end loaders. During the week of January 19 - 23 and on January 26 and 27, Burrows substituted as janitor at City Hall for Joe Badger who was on a two week vacation. According to Burrows, Hadden assigned him to replace Badger for the entire two week period, January 19 - January 30. According to him, his working relationship with Hadden was good prior to his attendance of a union meeting held January 26, 1976, and that he enjoyed working for Hadden. Burrows attended his first union meeting on January 26, 1976, which was conducted by Roy Scherer, area business representative for LIUNA, and Charles Carrol, a union member at a local plant. Prior to departing, Burrows was asked to volunteer to be a poll watcher for the union in the forth coming election. Scherer selected Burrows for the job and Burrows agreed to do so. At least one other employee, Leonard Alexander, who was also present at the January 26, meeting testified that he and others had not volunteered since they were concerned about their job security and were afraid of losing their job if they did so. On January 27, 1976, at approximately 4:15 P.M., Hadden stopped by City Hall where Burrows was replacing janitor Joe Badger for two weeks. Hadden told Burrows he wanted to talk to him in private and at Hadden's request, they rode in Hadden's truck to a warehouse approximately 1 mile away, where Hadden stopped to speak briefly with Lincoln Griffin. They then returned to City Hall at approximately 4:45 P.M. According to Burrows, while in Hadden's vehicle on the way to the warehouse, he inquired if he went to union meetings; who was there; what he thought of the union and how he was going to vote. Burrows replied that he was not definite in his responses concerning how he would vote but Hadden nevertheless urged Burrows to change his mind about unionization. Hadden admitted that the conversation with Burrows included some talk about the union and whether Burrows liked it or not and if he thought it would be good. He asked Burrows what he thought about the union and the conversation lasted approximately 5 minutes while he drove to the warehouse. According to Hadden, Burrows' response was that he hadn't made up his mind what he was going to do about the union whereupon Hadden admitted that he could have told Burrows that he would appreciate it if Burrows would change his mind. According to Burrows, Hadden had never talked to him like that before and that the only purpose for him doing so was for him to inquire about him, about the activities above mentioned as Hadden had no work assignment for him at the warehouse. The following morning, Wednesday, January 28, 1976, Burrows reported to the warehouse at 7:00 A.M. as requested by Hadden. Burrows related that he found that Hadden and the rest of the employees were not as friendly as they usually were. According to him, they "stayed away from him". When work time commenced, Hadden directed Burrows to get a shovel and that he had a job for him. Hadden reassigned Cuz VanDavender to replace Joe Badger saying "...I'm going to have to send you up there, Cuz." Hadden then took Burrows out to a ditch on Long Avenue between 7th and 8th Streets and told him to clean it out. Burrows was given no explanation for the change in assignment. Burrows testified that this was the first occasion since he commenced employment with the City on September 3, 1974, that he was assigned to clean out a ditch alone although he had assisted school boys which he supervised in digging during the prior summer and in storm situations. He testified that during the course of his employment his assignment to dig or clean out ditches was infrequent and with the assistance of other employees. While in route to the work site, Hadden asked Burrows if he had changed his mind about the union and Burrows replied that he had not made up his mind. He replied that he would "appreciate it if he (Burrows) would change his mind in the way he would vote for the union." Burrows testified that normally it is the trash crews' responsibility to clean out the ditches on Wednesdays since there was no schedule for picking up trash one that day. Burrows testified that the ditches were usually dug out with a backhoe or a dragline, which machinery was available on that date. Burrows spent the morning of January 28, raking leaves and limbs and digging out the ditch. On that evening, he was assigned to get a crowbar, axe and hammer and directed to proceed to an abandoned school, Washington High, in north Port St. Joe to pull nails out of a pile of rafters that had been torn down. Burrows had previously been out to the school during the winter along with six or seven other employees. During that time, they used the dragline to partially demolish the building while Burrows pulled nails out of the torn down rafters. Burrows testified that the school grounds were littered with broken glass, nails and other debris. The building is located approximately one block from the nearest residence. Upon his arrival at the school, Burrows was unable to locate any rafters or anything knocked down and when Hadden stopped by later to check on Burrows, he told Hadden he could not find any rafters whereupon Hadden told him to "getup there and knock them down yourself". Burrows, pursuant to that directive, proceeded to a one story section of the building and began tearing down rafters. Hadden witnessed Burrows in and around the building tearing down some two-by-fours and getting what he could. While Burrows considered the job to be a dangerous one, he never voiced this complaint about his assignment to Hadden. Hadden stated that there was no urgency in sending Burrows out to the school, however, it was just another job that needed to be completed. Later in his testimony, he indicated that he had sent Burrows to the school since the lumber was being stolen band he felt that the job was urgent. On Thursday, February 5, Burrows reported to work as usual. He started to take the trash truck on the scheduled run because one employee, Messenger Cotton, who normally drives the truck, was on vacation and Hadden had previously informed him that he would be Cotton's replacement. When he got to the site, Hadden instructed him to get out because he had secured two men from Scott's Sewer and Parks Department to drive two of the trash trucks and had recruited another employee, Bailey, who works a few days a month to drive the third trash truck. According to Burrows, it was unusual for Hadden to use Scott's employees. Instead of driving the trash truck, Burrows was assigned to clean out ditches near Garrison Avenue. One assignment was to clean out a ditch behind the Union Hall on Garrison Avenue by deepening it about six inches. The ditch was approximately 40 feet long. According to Burrows, the ditch was wet, cold and had water in it but Hadden gave him no boots. Burrows worked on that ditch on February 5, the morning following the election, and was "assigned to all various little ditches the rest of the afternoon all over town." The following day, Burrows was assigned to dig out a ditch on Garrison Avenue. He finished the assigned job. When Burrows was assigned to dig out the Garrison Avenue ditch, three employees from the trash crew had been there the day prior but since the trash crew had not adequately completed it, Burrows was assigned to complete the task. The following Monday, February 9, 1976, Burrows was sick with the flu. His wife called to advise Hadden of her husband's illness and inability to work. Hadden thanked Mrs. Burrows and stated that he hoped Burrows would feel better soon. On Tuesday, February 10, the following day, Burrows reported to work at the warehouse before starting time. He testified that he still "felt pretty well down in the weather from the flu, but he could not afford to miss work and be docked for it." Hadden again assigned him to work in a ditch using a shovel. Burrows did not follow those instructions since, according to him, he was "half way sick and felt like Mr. Hadden was harassing him so he went home." Hadden testified that when he instructed Burrows to clean up the ditch between 7th and 8th streets, on January 28, the ditch was dry and it was not raining and had not rained for some time. He said that he gave Burrows a shovel because the ditch contained only straw and leaves and that was all that was necessary to clean it out. Employees Beard, Gaynor and several others who had been in the Respondent's employ testified that they had cleaned out ditches before, however, as they relate to employees Beard and Gaynor who operate a backhoe, contrary to Burrows testimony that normally a, backhoe is used to clean out ditches, they testified that backhoes have never been used to clean out ditches adjacent to streets during their approximately 13 years of employment. There was other evidence that the street employees are regularly assigned to collect garbage and they spend at least one day a week cleaning ditches. When Burrows was initially hired, the employees were working in a ditch that was filled with mud waist high. Hadden, when asked by Burrows if he could work, replied that the work was dirty and that if he did not like to perform dirty work, he should not take the job. Burrows took the job and in the undersigned's opinion was well aware that that kind of work was within the scope of the normal duties assigned to such employees. Testimony also further reveals that other employees were assigned to clean ditches and they did not envision such as a discriminatory assignment. The undersigned also considered it strange that while Burrows considered the assignment (cleaning ditches) discriminatory, :, did not voice any dislike for the assignment to those responsible including Hadden. Nor did the job assignment of pulling nails from two-by-fours considered to be dangerous since other employees had been assigned the same task. Attention must be given to the fact that Burrows never complained about these assignments. The mere fact that a job is unpleasant or undesirable to an employee does not render a transfer of duties a constructive discharge. See for example,. NLRB v. J. W. Mortell, 440 F.2d 455 (7th Circuit, 1971) and Montgomery Ward, 160 NLRB no. 137 (1966). Based on all the factors in this case including the fact that the job assignments were of the type performed by every employee in Mr. Hadden's crew as part of their job, the undersigned is unable to attach any discriminatory motive to the assignment to Mr. Hadden since it is regarded by the employer and the employee as one of the major responsibilities of the public works department. One fellow employee testified that he had recently used a shovel to clean trash out of a ditch (employee Beard). Beard, a backhoe operator, testified that he could not use it to clean shallow ditches and that during his approximately 13 years of employment, he had never used a backhoe to perform such tasks. I am thus compelled to conclude that Mr. Hadden did not act discriminatorily toward Mr. Burrows in the distribution of work or in the tools given him to accomplish his assignments. The only evidence, if it can be regarded as such, is Burrows allegations that he suspected that he was being singled out for union activity, however mere suspicions is no substitute for proof and do not provide ample basis to support an allegation of a discriminatory discharge. See for example, NLRB v. Mays, Inc., 366 F.2d 693 (2nd Circuit 1966). Moreover, it was noted that when Burrows was rehired the last time, Hadden instructed that should he again walk off the job, the City would not rehire him. Burrows indicated that he would not walk off the job again without giving notice and therefore Mr. Hadden rehired him. It thus appears that it was with some reluctance that the City rehired Mr. Burrows and was concerned about prior occasions when he left his employment without giving sufficient notice. This occurred approximately one year prior to the advent of the union and certainly no legitimate claim can be made that the understanding which Hadden and Burrows reached at that time, had any relationship whatsoever to any union animus or that it resulted based on any concern that Respondent had about Burrow's union involvement. This being the status of the record, the undersigned therefore concludes that Mr. Burrows quit his job rather than as alleged, that he was constructively discharged. The next issue raised is whether the Respondent unlawfully interrogated employee Willie Burrows by its representative Hadden, while enroute to the warehouse on January 27, 1976. While the complaint alleges that Dorton Hadden is not an agent and a representative of the Respondent, acting on its behalf during times material, Respondent denied that allegation and further made the point that it has previously been determined by the Public Employees Relations Commission in its decision that based on the authority given to Dorton Hadden, he was not a managerial employee and thus was included in the bargaining unit. The undersigned is of the opinion that since the Commission determined that Mr. Hadden should be included within the unit, the Respondent should not be held responsible for inquiries by him about Mr. Burrows' feelings about the union since the prior determination had been made that he was a bargaining unit employee. There was no evidence indicating that his job duties had changed or for a reconsideration of his unit placement. As the Respondent correctly points out, the employer would have violated the Act if it had instructed Mr. Hadden to refrain from attending union meetings and asking questions about employees union sentiments etc., since as a unit employee he had the right to do so. Nor is the undersigned aware of any provision in the Act which prevents an eligible employee from inquiring of other employees how they feel about the union and by such acts commit an unfair labor practice attributable to the Respondent. Accordingly, I shall recommend that the complaint allegations that the Respondent or its agents unlawfully interrogated employee William E. Burrows on January 27, 1976 in a City vehicle concerning his union membership, activities, sympathies and desires. Based on the above findings and conclusions, I shall therefore recommend that the complaint be dismissed in its entirety. Based on the above Findings of Fact and Conclusions, I made the following: CONCLUSIONS OF LAW The parties were properly noticed pursuant to Chapter 447.307(3) Florida Statutes. The Respondent is a public employer within the meaning of Chapter 447,002(2), Florida Statutes. The Laborer's Local Union #1306 is an employee organization within the meaning of Chapter 447.002(10), Florida Statutes. Respondent has not engaged in any of the unfair labor practices alleged in the complaint.
Recommendation Upon the basis of the above findings of fact, conclusions of law, and the entire record in this case, and pursuant to Chapter 447, Florida Statutes, I hereby issue the following recommended:
The Issue The issue is whether Respondent should be terminated from employment with the City of Clearwater (City) for falsifying his pre-employment medical application, as alleged in the City's Termination and Dismissal Notice (Notice) dated July 7, 2014.
Findings Of Fact From 1995 until early 1999, Respondent was employed by Pinellas County (County) as a Maintenance Worker II. See Ex. A, p. 5. In April 1998, he suffered a knee injury during a County- sponsored softball game. Due to the injury, he was dismissed from employment with the County on February 25, 1999, on the ground he was incapable of performing the essential functions of his job classification, even with a reasonable accommodation.1/ See Ex. I, p. 6. At that time, Respondent was determined to have reached maximum medical improvement with a permanent impairment rating of 36 percent. See Ex. I, p. 7. This meant that he could only perform his job duties at a 64 percent level. In return for releasing all claims, in 2005 he received a payment from the County in the amount of $100,000.00 as settlement for his on-the-job injury. See Ex. I, pp. 28-31. In October 2011, Respondent applied for a position with the City.2/ See Ex. A. As a part of the employment process, an applicant is required to complete an Application for Employment (Application). The Application required Respondent to certify that "the information contained in this application is correct and complete to the best of my knowledge" and that "any false information provided by [him] to the City may constitute grounds for immediate discharge regardless of when the information is discovered by the City." Id. at p. 4. If the City decides to hire an applicant, he must then complete and submit a Medical History Questionnaire (Questionnaire). Respondent completed and filed the Questionnaire on November 21, 2011. See Ex. C. Based upon his Application and Questionnaire, Respondent was offered a position as a Park Service Technician I, a "basic manual, landscape" entry-level position in the Parks and Recreation Department. He began working in December 2011. In January 2013, he was reclassified as a Park Service Technician II. Both positions are labor-intensive and required Respondent to lift, push, or pull items weighing up to 75 pounds. See Ex. B., p. 2. In short, the job involves physical work 100 percent of the time and is considered "one of the [City's] heaviest positions, in terms of the physical labor requirements." Because of the nature of the work, the City will not hire any applicant with an existing medical disability for these positions. The City has adopted a Performance and Behavior Management Program manual that applies to all employees and contains Citywide, Integrity, and Departmental standards of conduct. Also, pursuant to the Code of Ordinances (Code), the Civil Service Board has adopted a set of rules and regulations that apply to all positions in the civil service, including Respondent's position. Among other things, those regulations set forth additional grounds for disciplining an employee. Question 2.10 of the Questionnaire asks if the applicant has "[a]ny permanent physical condition which received an impairment rating?" Respondent answered no. In response to question 2.11, he denied having any health-related reason that might affect his ability to work as a park service technician. In response to question 2.6, he denied having any injury, operation, disease, or disability not covered by previous questions. In response to question 2.10, he denied having any physical conditions which received an impairment rating. Each of these responses was not true. He also failed to answer questions asking if he had ever filed an injury report with a previous employer (question 2.5) or had ever received a settlement for inability to work (question 2.9). In the comments section of the Questionnaire, Respondent stated that he twisted his knee in 1998, he had arthroscopy on the knee (a minimally invasive surgical procedure), but he had no existing problems. For unexplained reasons, the City either failed to notice that questions 2.5 and 2.9 were not answered, or it did not ask Respondent to complete the form. Respondent had two injuries on the job while working with the City, both of which resulted in him filing workers' compensation claims. When the second injury was being processed by the insurance carrier in May 2014, it noted that Respondent had previously filed a claim with the County in 1998 and instructed the City's Risk Department to contact the County.3/ The City then learned for the first time that Respondent had a permanent disability rating of 36 percent assigned in 1998 and that, in 2005, he had received a $100,000.00 settlement for his injury. Apparently for the first time, the City also noticed that Respondent had not answered questions 2.5 and 2.9 on his Questionnaire. After discovering this information, the Parks and Recreation Department Director recommended that Respondent be terminated for violating City rules and standards. The Director testified at hearing that had this information been initially disclosed, he would not have hired Respondent due to the labor- intensive nature of the work. Civil Service Board regulations allow an employee to present the circumstances which led to his dismissal and other mitigating evidence. See ch. 13, § 8, Rules and Regs. Pursuant to that regulation, Respondent requested a disciplinary determination meeting with the Department of Human Resources, which was conducted on July 1, 2014. Respondent was represented at the meeting by the president of his union. After considering Respondent's explanation, on July 2, 2014, the Parks and Recreation Department again recommended that Respondent be terminated. On July 7, 2014, the City Manager notified Respondent that he was being terminated effective the following day, July 8, 2014. Respondent timely requested a review of that decision by a hearing officer (administrative law judge). The record does not disclose why the case was not referred to DOAH for almost one year. The evidence shows that Respondent knew, or should have known, that by disclosing that he had a permanent disability rating, he received a settlement from the County for an injury on-the-job, and he was discharged by the County because of a disability, he would not have been hired by the City. The failure to disclose that information is contrary to City policies, standards, and regulations. Respondent testified that he probably answered the medical questions incorrectly because he failed to pay close attention to the information being requested and he filled out the form quickly. He further explained that he was always under the impression that the County did not discharge him in 1999 because of a disability, but rather because it could not hold his position open for more than ten months. The evidence, however, shows otherwise. See Endnote 1. He had no explanation for failing to answer questions 2.5 and 2.9, except that he may have overlooked those items. Had he completed the Questionnaire accurately and completely, he would not have been hired. At hearing, Respondent testified that the investigation which led to his dismissal was triggered by bad relations with his landscape manager, who became upset when he observed Respondent using a handicapped license plate to park his car in a handicapped space and did not believe Respondent was disabled. Respondent suggested that this led to the City's examination of his Application and Questionnaire, and his ultimate dismissal. Respondent obtained the special license plate in 1999 when he was given a disability rating by the County, and he continued to renew the tag for around 15 years. However, the issue concerning the license plate played no role in the City's decision to terminate Respondent. Respondent had a blemish-free record while working with the City. He testified without dispute that even with a disability rating and a brace on his left leg, he performed every assigned task and was always given good evaluations by his supervisors. He wants to continue working for the City in order to support his wife and seven children. While termination may be a harsh penalty, the City has ample authority under its Code to take that action. Whether Respondent is eligible to be hired in another position that requires no physical labor is not of record.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Civil Service Board make a determination that the charges in the Notice are sustained, and that Respondent be terminated as a Park Service Technician II. DONE AND ENTERED this 13th day of October, 2015, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 2015.
The Issue The issue in this case is whether Respondent discriminated against Petitioner on the basis of marital status in terminating his employment.
Findings Of Fact For several years, Petitioner was employed as the Fire Marshall and Fire Inspector for Respondent. He worked in Respondent's Fire Department where he had been employed for some time. His responsibilities included a variety of fire safety matters, including actual firefighting. In April, 1990, the Code Enforcement Officer became ill, and the then- City Manager asked Petitioner to assume these duties. This job required the inspection of properties in the City and issuance of warning and citations for unsafe conditions, such as dilapidated buildings, abandoned cars, and overgrown vegetation obstructing traffic visibility. Petitioner assumed the Code Enforcement duties and typically worked 60 hours per week in discharging all of his responsibilities. A promised raise never materialized, so when a new Fire Chief was hired, Petitioner asked him to try to obtain a raise for Petitioner. By this time, the City had also hired a new City Manager, George Von Drok. Petitioner performed his job duties in an outstanding manner. He got along well with the Fire Chief and Mr. Von Drok, although he may have created some opposition in the community through his vigorous, but fair, enforcement of the City Code. During 1990, Mr. Von Drok lost his administrative assistant due to budgetary pressures. Possibly in response to the Fire Chief's raising the issue of a salary increase for Petitioner, Mr. Von Drok discussed with Petitioner the possibility of a salary raise concurrent with the creation of a new Department of Code Enforcement. Mr. Von Drok was thinking about possibly having Petitioner serve part-time as Mr. Von Drok's administrative assistant. Petitioner agreed to head the new Code Enforcement Department, which was established by act of the City Council on February 24, 1991. Petitioner's typical workday now ran from 8:00 am to 6:00 or 7:00 pm, plus firefighting on weekday nights and weekends. Nothing unusual occurred during the first 60 days of the new department's existence. Although the City was facing budget problems, Mr. Von Drok discussed with Petitioner ideas about making his one-man department more efficient, but he never mentioned the possibility of eliminating the new department. On April 24, 1991, when Petitioner arrived at work, he received a notice of suspension. Petitioner had just discovered that he had been named as a defendant in a civil action alleging that his wife had embezzled $130,000 from a bank where she had worked and alleging that Petitioner knew or reasonably should have known about the embezzlement. Petitioner had learned from the authorities of the alleged embezzlement only a day or two earlier. In fact, Petitioner had no knowledge about any embezzlement committed by his wife, who had suddenly disappeared. His wife had embezzled the money, which Petitioner helped to find and return to the bank. Petitioner himself was never criminally prosecuted, but his wife was convicted of the charges. Mr. Von Drok suspended Petitioner because of the civil charges against him. The suspension was without pay. Mr. Von Drok assured Petitioner that, if the allegations against him were cleared up, he would be reinstated to his job with back pay. In the next few days, it became apparent that Petitioner had had no knowledge of his wife's activities and was entirely innocent. On the afternoon of May 9, 1991, Mr. Von Drok, the Fire Chief, and Petitioner met and discussed the duties of the Fire Marshall, Fire Inspector, and Code Enforcement Officer. Mr. Von Drok indicated that he wanted to move Petitioner back into the Fire Department and transfer the Code Enforcement duties elsewhere. Petitioner responded that that was fine with him. The suspension was lifted May 10, 1991. But when Petitioner returned to work on the morning of May 10, he found that his department had been eliminated and his employment with Respondent terminated. Pursuant to the latest directive of Mr. Von Drok, Petitioner received full pay through that date, so that the suspension was effectively with pay. Mr. Von Drok testified that Petitioner was terminated for budgetary reasons. Mr. Von Drok assigned the Code Enforcement responsibilities to the Police Department and the Fire Marshall and Fire Inspector duties to the Fire Department. The Fire Chief has had to assume the Fire Marshall and Fire Inspector duties because only the Fire Chief and Petitioner had the necessary training and certification to perform these duties. Mr. Von Drok's testimony concerning why he eliminated Petitioner's department is not credible. The department was only created in late February, 1991. Mr. Von Drok testified that another department head, the Superintendent of Parks and Recreation, was terminated due to fiscal pressures on March 7, 1991. If fiscal pressures were already dictating the termination of department heads by the first week of March, it is unrealistic that Mr. Von Drok would have been creating new departments just a couple of weeks earlier. Respondent offers no evidence of unexpected financial pressures suddenly appearing in the two weeks between the creation of Petitioner's new department and the termination of the Superintendent of Parks and Recreation or later March, when Mr. Von Drok testified that he first considered the elimination of Petitioner's new department. In fact, the Superintendent of Parks and Recreation was terminated because of unsatisfactory job performance. He had left keys to a City truck in the ignition. He had failed to open park restrooms before a major event. He had played basketball on City time. And he had never finished his two-year degree as he had promised when he took the job. Likewise, Mr. Von Drok terminated Petitioner for reasons having nothing to do with financial pressures. Respondent terminated Petitioner due to his marital status. If Respondent had not been married to an embezzler, he would not have been terminated. There was no legitimate business reason for the termination of Petitioner. Petitioner lost gross wages and benefits of $88,434.44 and received in other employment and unemployment compensation a total of $16,794.11 for a net loss of $71,640.33. However, these figures are somewhat overstated. The claim for $2500 per year for two years for the loss of the use of a City-supplied car is not allowable because the City-supplied car would have been available only for City business or commuting--neither of which affected Petitioner following his termination. The claim for $9225 in retirement benefits is not allowable because Respondent shall reinstate Petitioner with full credit, in terms of accrued benefits and vesting, under the City retirement plan for the time lost. The claim for $584.44--evidently in uncovered medical expenses--is not allowable because Petitioner has failed to show that these expenditures would have been covered under a medical policy or, if covered, would not have represented deductible amounts. The claims for $300 for school and $2225 in mileage expenses in searching for work are not allowable as they are not a component of back pay. Last, the claim for an additional $1500 in salary for the second year is not allowable given the absence of evidence of such an across-the-board salary hike during the time in question. The allowable claim for back pay is therefore $52,805.89. Petitioner also obligated himself to pay his attorney a reasonable hourly rate plus costs.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a final order determining that the City of Avon Park committed an unlawful employment practice against Petitioner, prohibiting the commission of such a practice, awarding back pay of $52,805.89, requiring that Petitioner be hired for the next available job in the Avon Park fire department with pay and responsibilities generally commensurate with either of the last two jobs that Petitioner held with the City of Avon Park (or such lesser-paying, less responsible job that becomes available until such higher-paying, more responsible job becomes available), and awarding attorneys' fees and costs in the prosecution of the above-styled case. ENTERED on April 26, 1993, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on April 26, 1993. COPIES FURNISHED: Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Margaret Jones, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Robert H. Grizzard, II P.O. Box 992 Lakeland, FL 33802-0992 Michael M. Disler Trombley, Lobozzo, et al. 329 South Commerce Ave. Sebring, FL 33870
The Issue Petitioner is charged pursuant to a Citation for Violation, Onsite Sewage Program/Sanitary Nuisance with a violation of Section 386.04(1)(a) and (b), Florida Statutes (1997), which describes conditions that are prima facie evidence of a sanitary nuisance injurious to health.
Findings Of Fact It was stipulated that Petitioner, Ann B. Harvey, through her company Harvey Enterprises and Company, Inc., owns the home at 102 Williams Street, Palatka, Florida. At all times relevant to the alleged violation, the home was occupied by tenants. The tenants vacated the house on or about October 13, 1998. Kenneth F. Burnett, Environmental Specialist I, with the Putnam County Health Department, first investigated a complaint regarding the property at 102 Williams Street, Palatka, Florida, on August 5, 1998. He witnessed faulty plumbing in the home and ponded wastewater at the back of the home. On August 11, 1998, Mr. Burnett drafted and mailed a Notice to Abate. The notice was mailed by certified mail return receipt requested and received by Ann B. Harvey on August 25, 1998. Ann B. Harvey signed the return receipt for the Notice to Abate on August 25, 1998. Mr. Burnett again inspected the property on September 2, 1998, and found no change in the status of the faulty plumbing and ponded wastewater. On September 9, 1998, Mr. Burnett again inspected the property and determined there had been no changes. David Flowers, Environmental Specialist II, became involved in the case on September 18, 1998, when he inspected the property. Mr. Flowers observed that wastewater ponded on the ground at the back of the home, and that the plumbing inside the home was in disrepair. Ms. Laurey Gauch, Environmental Health Director for Putnam County Health Department testified. She inspected the property in question on September 18, 25, and 28, 1998. Ms. Gauch observed ponded wastewater in the backyard and plumbing in disrepair inside the home on each visit. Ms. Gauch opined that the condition of the property was a sanitary nuisance in violation of Section 386.041(1)(a) and (b), Florida Statutes (1997), because the ponded wastewater would breed disease (bacteria, viruses, etc.) and contamination. A Citation for Violation was received and signed for by Ronald Harvey on September 25, 1998, pursuant to statutory authority at Section 381.0065, Florida Statutes (1997). The citation cites the Petitioner for violation of Section 386.041(1)(a) and (b), Florida Statutes (1997). On September 25, 1998, Mr. Flowers again inspected the property, and observed that the sewage remained on the ground at the rear of the home. Mr. Flowers flushed dye in the toilet to determine if the standing water was coming from the toilet inside the home. The dye would run out onto the ground if the ponded water was from the toilet. Mr. Flowers inspected the problem on September 28, 1998. Sewage remained ponded on the ground at the rear of the home and the water bubbled when the toilet was flushed. Mr. Flowers re-inspected the property on September 29, 1998, and flushed dye in the toilet. He documented that the dye came to the ground surface. During the visit, Mr. Flowers was accompanied by a County Codes Enforcement Officer who condemned the home. On October 6, 1998, Mr. Flowers returned to the property with his supervisor, Geoff Batteiger. The tenants were still living in the home, but were reported to be leaving. The plumbing in the home remained unrepaired. When the toilet was flushed, water bubbled onto the ground surface. The problem had neither been abated, nor were there any signs that the problem was being corrected. No repairs were made to the premises between August 25, 1998, and October 6, 1998, a period of one and one-half months during which tenants lived in the home. On November 17, 1998, the property was reinspected by Mr. Burnett and Mr. Batteiger. They observed that the sanitary nuisance had been remedied. Ms. Lucille Harvey, property manager and sister-in-law to the Petitioner, testified for Petitioner. She collects rents and arranges for repairs. She had contacted one handyman who came to the home, but refused to do the work because of foul odor in the yard and fleas. Ms. Lucille Harvey did not contact anyone else for repairs until after the tenants had vacated the premises. The tenants kept dogs in the backyard where the problem was, and were uncooperative with the landlord. Ms. Lucille Harvey testified that she notified the Petitioner of the sanitary nuisance at the end of August 1998, and the problems she was having making repairs. Petitioner, Ann Harvey, testified she commenced eviction proceedings for the tenant at 102 Williams Street on or about July 12, 1998. The proceedings were on-going due to various legal exigencies until the tenants vacated the premises on or about October 13, 1998. Ms. Harvey was out-of-town from approximately July 22, 1998, through August 15, 1998, during which time a judge dismissed the eviction action. The action was recommenced. The tenant made a partial payment of one month, which Petitioner accepted. The judge again dismissed the eviction action. The sanitary nuisance at the property in question was not remedied until the Petitioner evicted the tenants and gained access to the premises. Mr. Thomas Harvey, handyman and brother Ron Harvey, testified that he began working on the repairs at the home at 102 Williams Street, on November 2, 1998. He testified that he replaced broken lines, cleaned a grease trap, and snaked the kitchen and bathroom. These repairs concluded on or about November 12, 1998.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law reached, it is RECOMMENDED: That the Department of Health enter a final order waiving the fine and payment as stated in the Citation for Violation. DONE AND ENTERED this 9th day of April, 1999, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 9th day of April, 1999. COPIES FURNISHED: Ron Harvey Route 2, Box 1650 Palatka, Florida 32177 Ann B. Harvey 102 Williams Street Palatka, Florida 32177 Susan E. Lindgard, Esquire Department of Health 1000 Northeast 16th Avenue Box 19 Gainesville, Florida 32601 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1701 Dr. Robert G. Brooks, Secretary Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact The parties agreed that the City of Winter Park or the City Commission was the Public Employer as defined by Chapter 477, Florida Statutes. The Public Employees Relations Commission's file contains the affidavit of Pat Hill attesting to the fact that the Winter Park Professional Fire Fighters Local #1598 was a duly registered employee organization as of the date of hearing. This affidavit was executed on May 2, 1975. The Petition recites that recognition of Petitioner was requested on January 16, 1975. The Public Employer has not responded to the request for recognition. The Winter Park Fire Department is composed of full-time and volunteer fire fighters. The Petitioner seeks to represent only full-time fire fighters, of which there are approximately 38, and would seek to represent all fire fighters in the Department except the chief. The Winter Park Fire Department is composed of the chief, fire inspector (fire marshall), three captains, three lieutenants, one mechanic, various engineers and fire fighters. There are two fire stations, Station 1 and Station 2, each station having three shifts. Station 1 is commanded by a captain and Station 2 is commanded by a lieutenant who reports to the captain who also is the shift commander. It should be noted, however, that the captain would not respond to a fire in Station 2's area, therefore, generally, a lieutenant would not work on a fire scene for the captain. Each shift has approximately eleven men, including the captain and lieutenant, assigned, and there are approximately 6-5 at Station 1 and 4-5 at Station 2. The Mechanic is a fully qualified fire fighter and the Chief feels that this dual capability makes him more valuable to the Department. The Fire Inspector (Fire Marshall) is a special staff officer who inspects building plans for compliance with fire safety codes, assist in operational planning, and directs the activities of fire safety inspectors assigned to him. The Deputy Chief acts as the second in command of the Department, assistant to the Fire Chief, and coordinates and directly supervises the shift captains. He would respond to any fire alarm in Area 1 or 2 which was other than a minor fire, and command the fire scene, except those to which the Chief responded. It was apparent that the Fire Chief was the major policy maker, but the Deputy Chief was the "detail man" charged with developing and executing major polices determined by the Chief. The Deputy Chief prepared the Standing Operating Procedures (SOP's), letters of change to the SOP's, and other letters of direction received from the Chief. Although the Chief would consult with the Deputy Chief on budgetary, personnel, and planning matters, the Chief retained the authority to determine policy. The Deputy Chief was authorized to exercise his discretion in implementing these polices particularly those related to personnel; assignments, transfers, and approval of leaves. The Mechanic is assigned to maintain and repair all the department's trucks and pumps. The Chief testified that the Mechanic had and needed knowledge of regular gasoline engines, diesel engines, and pumps. The Chief further testified that the Mechanic's position was held by a man who had been an engineer with the Department, who had the requisite skills, and the Chief had promoted him to provide him additional compensation in order that he would take the job. The Mechanic spends almost all of his 40-hour week in the performance of mechanic's duties, but as a qualified fire fighter he is qualified to perform fire fighting duties if necessary. In actuality the Mechanic does not fight fires, but has the capability if required. The Mechanic schedules his own work and reports to the Deputy Chief. He is on call when not on duty. He is assisted as required by other firemen if additional physical strength is necessary to perform a specific task. The status of the current mechanic is apparently in flux, and the Chief has referred to a study committee of firemen and officers the problem of to what rank and seniority the individual should revert. The Mechanic is not required to be a fire fighter. It was apparent from the Chief's testimony regarding various major policy decisions that he consulted with fire department personnel who would be effected by a proposed policy either by means of a group meeting, study committee or similar decision making process. Such input was obtained from personnel not so much on the basis of rank in the Department but rather on the issue involved and who it affected. The Chief was dependent upon his special staff members, i.e., the Deputy Chief and Fire Marshall, for special plans and operational advice, however, the pattern for decision making did not restrict input solely to officer personnel. The company officers provide budgetary information by preparing lists of their stations' and shifts' projected equipment, consumable, and capital outlay needs in the upcoming fiscal year. Based upon this data the Chief and Deputy Chief prepare the budget for submission to the City Manager. Items requested by company officers are reviewed by the Chief and Deputy Chief and are generally approved if they are not too expensive and appear to be justifiable. The Chief indicated that he gave careful consideration to such requests, pointing out an expensive hose dryer purchased at the request of Station 2's officers and a coffee maker needed and requested by Lt. Legarde, the latter being a direct authorization purchase from current funding. The company officers were responsible for the assignment of duties of subordinate personnel at their station on their shift both on equipment and station work details. Because of the limited numbers of personnel assigned at the stations, the company officers participated in clean up details including the handling of the light clean up duties. The company officers had only limited authority to grant leaves. Company officers would not have authority to suspend personnel except under those circumstances in which the individual would pose a hazard to himself and others such as an employee reporting to work drunk. Disciplinary cases would be referred through the Deputy Chief to the Chief for final action with appeal rights to the civil service board. The authority to grant regular leave similarly would necessitate approval by the Deputy Chief. The company officers forward the request to the Deputy Chief and explain the basis for the request. According to the testimony, officers would not generally present a recommendation regarding approval to the Deputy Chief. Company officers do have authority to grant temporary exchanges of duty although this would be reported as a courtesy to the Deputy Chief. Company officers do evaluate personnel and these evaluations would be a considerable but not determinative factor in promotion. It would be one of several things which a panel of fire officers from surrounding communities would consider in evaluating an employee's eligibility for promotion. The Chief indicated that although by law he could select from the several highest individuals recommended, he had established a policy that he would promote the highest recommended. Merit increases were authorized and dependent upon evaluations, however, because of nonavailability of funds, merit increases had not been paid for some time and no one could foresee their payment. The relationship of company officers on the table of organization would indicate that the Lieutenant at Station 2 was subordinate to the Captain at Station 1. However the Captain is more closely under the supervision of the Deputy Chief. The conduit for information is through the chain of command, however, any person who was not present or otherwise reasonably available would be skipped.
The Issue The issue in this case is whether Respondent, Miami-Dade County ("MDC" or the "County"), discriminated against Petitioner ("Petitioner" or "Titus") on the basis of his race, age, national origin, disability, or retaliation in violation of the Florida Civil Rights Act ("FCRA"), when it did not hire or promote him to the Technical Equipment Instructor ("TEI") vacancy.
Findings Of Fact Based on the evidence presented at the hearing and the record as a whole, the following findings of fact are made: MDC is comprised of 25 working departments, including the Miami- Dade Water & Sewer Department ("W&S") and the Miami-Dade Solid Waste Department ("Solid Waste"). The County employs over 28,000 employees. Petitioner, Selwyn Titus, is a black male who was born in Trinidad. During the relevant time period, the County employed Titus as a W&S Heavy Equipment Operator. Michelle Sifontes ("Sifontes") is a black female, who was also born in Trinidad. Sifontes is the Solid Waste Chief of Human Resources at MDC and has served in that capacity for over 11 years.1 As the Chief of Human Resources, she is responsible for ensuring that the Solid Waste hiring and recruitment complies with the County's hiring policies. In late 2017, Solid Waste posted a job announcement for a TEI vacancy.2 Cty. Ex. 1, Career Employment Opportunity Bulletin. The job announcement established the minimum qualifications for the position. Applicants submitted resumes through the County’s PeopleSoft program. This position fell within the Solid Waste Human Resources Division and is under Sifontes’s chain of command. A TEI performs "specialized instructional work in the training of commercial drivers and heavy equipment operators for waste collection and disposal operation systems." Cty. Ex. 7, Job Description Technical Equipment Instructor. 1 Ms. Sifontes has been a Solid Waste employee for over 24 years. T. at p. 72. 2 This 2017 TEI job announcement is identical to the previous 2016 TEI job announcement, which Titus had applied for, and been rejected, for the reasons stated infra. Solid Waste Department Posts Previous 2016 Technical Equipment Instructor Job Announcement As background to the current dispute, it is important to note that in 2016 Titus had applied with MDC for the same job posting for TEI. Titus applied for the TEI position in 2016 and submitted his resume via the PeopleSoft program. Pet. Ex. 9. Sifontes reviewed Titus’s resume and determined that he met the minimum qualifications. Consequently, Titus was interviewed by a three-member panel of Solid Waste supervisors. As a result of Titus’s performance during the first interview related to his 2016 application, the panel placed Titus in the second "band." Because Titus was placed in the second band, and no applicant was placed in the first band, Titus was considered as a finalist for the TEI vacancy posted in 2016. As the Chief of Human Resources, and because the TEI reports to her and is under her supervision, Sifontes reviewed Titus’s personnel file to determine if Titus should be selected for the 2016 TEI vacancy. Upon review, Sifontes noted that Titus’s personnel file contained information that he had been disciplined by W&S supervisors, and that Titus received a Written Reprimand and Record of Counseling in 2013. Cty. Ex. 26. Those disciplinary records speak for themselves. The undersigned finds that the disruptive, aggressive, and unbecoming conduct by Titus outlined in the County’s Exhibit 26 was incompatible and unsuitable for a person being considered for an instructional or training role with MDC. Sifontes considered the events in the Written Reprimand "very concerning [because] the behavior that was described … shouting and loud, disruptive tone, argumentative with the supervisor … in light of the position that we are hiring for … It just would not be a good business practice to promote or hire someone with a record such as this." As a result of this disciplinary information, Titus was not selected for the 2016 TEI position, and his application was rejected by MDC. Solid Waste Department Posts 2017 Technical Equipment Instructor Job Announcement In the latter part of 2017, Solid Waste again posted an announcement for a vacant TEI position. Cty. Ex. 1. The announcement set minimum qualifications for the position. Id. A total of 68 applicants, including Titus, applied for the TEI position through the PeopleSoft program. Cty. Ex. 6. Titus met the minimum qualifications for the position. Sifontes reviewed the list of applicants who applied for the position and recognized Titus’s name. Sifontes recollected and considered her previous experience with Titus, particularly the disciplinary issues she had uncovered, and decided to eliminate Titus from further contention for the 2017 TEI vacancy. As a result, she did not permit him to interview for the position--for the same reasons she did not select him for the 2016 TEI vacancy. Sifontes explained that "based on the information that I reviewed previously at the beginning of the year (2017) and the decision I made at that time, [Titus] was not invited to an interview later that year." Sifontes did not know Titus’s age, religion, or alleged disability when she made the decision not to pass Titus along for an interview for the TEI position. Similarly, Sifontes was not aware that Titus had filed a charge of discrimination against W&S with FCHR or the Equal Employment Opportunity Commission ("EEOC") when she rejected his name for the second TEI opening in late 2017. The Panel Selects Luis Monteil For The 2017 TEI Position As The Most Qualified Applicant On November 21, 2017, a racially diverse three-member panel of Solid Waste supervisors interviewed 11 applicants for the TEI positon. Cty. Ex. 8. Jesmar Olivo ("Olivo") was one of the panel members that interviewed applicants for the TEI position. Olivo is employed with Solid Waste as a Solid Waste Human Resource Manager with the Labor and Discipline section. She reports to Sifontes. According to Olivo, the panel conducted a structured interview. All of the applicants were individually asked a series of pre-selected questions in the same order and then scored on their answers. Olivo further explained that the individual applicants’ resumes were not reviewed or considered during the interview. Olivio recounted, "we [the interview panel] do not do the reviewing of the applications. Once we are there [interviewing] it’s determined that whoever we are interviewing has met the minimum qualifications." She further testified that her decisions were based solely on the interview answers. Luis Montiel ("Montiel"), a Hispanic male, applied for the 2017 TEI position. Montiel was employed as a W&S Heavy Equipment Operator. Montiel met the minimum qualifications and was selected to be interviewed. At the conclusion of the panel interviews, Montiel was the highest scoring applicant. Cty. Ex. 20, Interview Score Sheet. As a result, Sifontes reviewed Montiel’s personnel file. While doing so, she determined that he had never been disciplined. She ultimately selected Montiel for the 2017 TEI position. At the evidentiary hearing, Titus took the position that he should have been hired or promoted to the 2017 TEI position because he was the "most qualified." This was the core and substance of his argument throughout the hearing and arguments made by him thereafter. He also argued that the fact that he had been interviewed for the 2016 position "proved" that Respondent must have discriminated against him when he was not promoted in 2017. It is understandable that such arguments would be made by any individual unhappy with the selection of another person for a position he desired and coveted. However apparent these arguments may seem, they are unavailing and not persuasive. Under the facts presented, there are several reasons for this conclusion. First, Titus failed to identify anyone at Solid Waste who directly discriminated or retaliated against him, nor did he present any direct evidence to that affect. More specifically, there was no evidence presented to show that any blatant, direct, or overt statements, emails, or memos were issued or made by management personnel or Sifontes, targeting him for discrimination or failing to promote him because of his race, age, national origin, or a disability. Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1359 (11th Cir. 1999); Lee v. Miami-Dade Police Dep't, 2005 U.S. Dist. LEXIS 22890 (S.D. Fla. 2005). Moreover, Titus failed to identify a similarly-situated comparator or employee at MDC who was promoted to TEI and who had a disciplinary record like his. Likewise, he failed to prove that Respondent’s consideration of his disciplinary record was only a pretext for not hiring or promoting him. As will be discussed, this factor can be legitimately considered in cases involving failure to hire or promote. Titus did not establish that the decision maker--Sifontes--was aware of his age, disability, religion, or protected activity. Finally, there was not sufficient circumstantial evidence presented by Titus under the burden shifting analysis outlined in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973), to carry his burden of proving a circumstantial case of discrimination or retaliation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR find in favor of Respondent and dismiss Petitioner's claim with prejudice. The undersigned also recommends that after considering the findings herein, FCHR determine the appropriate disposition of Respondent’s Amended Motion for Attorney Fees, filed January 16, 2020. DONE AND ENTERED this 13th day of March, 2020, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) William X. Candela, Esquire Dade County Attorney's Office 111 Northwest 1st Street, Suite 2810 Miami, Florida 33128 (eServed) Selwyn Don Titus Apartment 601 14030 Biscayne Boulevard Miami, Florida 33181 (eServed) Cheyenne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
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.
Findings Of Fact Petitioner was born on September 13, 1955. He was initially employed by Respondent in 1996. He remained employed with Respondent until he was terminated in late November 2000. At the time of his termination, Petitioner served as the Assistant Director of Parks. His immediate supervisor was Julio Martinez, who was the Director of Parks. On July 18, 2000, Yioset de la Cruz was elected Mayor of Respondent. Mayor de la Cruz had been employed by Respondent during the administrations 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. 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. 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. Shortly after disciplining Petitioner for improper use of his city telephone, Mayor de la Cruz visited Respondent's office, which was located in one of the major city parks, to assure that city park employees had completed their preparations for the long holiday weekend of Thanksgiving 2000. Unable to find Petitioner at his office, Mayor de la Cruz asked to see Petitioner's time card and found that he had not punched out for the day. After driving through nearby parks in search of Petitioner, Mayor de la Cruz returned to the office, where the secretary belatedly informed him that Petitioner had called in to say that he had fallen ill and asked that another employee punch him out for the day. After Mayor de la Cruz and the secretary finished speaking, Mayor de la Cruz spoke with Petitioner by telephone. When Mayor de la Cruz attempted to discuss the matter with Petitioner, Petitioner became disrespectful and insubordinate. Petitioner began screaming and swearing at the Mayor, who responded by promptly firing Petitioner. The evidence in this case is clear that Mayor de la Cruz fired Petitioner due to his insubordination, not 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, Suite 200 Coral Gables, Florida 33134 J. Frost Walker, III, Esquire Law Office of J. Frost Walker, III 100 West Sunrise Avenue 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 Relation 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
Findings Of Fact The city would not stipulate that it was a public employer as defined by Section 447.002(2), "Florida Statutes, or that petitioner was an employee organization as defined by Section 447.02(10) Florida Statutes. With respect to the former, the hearing officer takes official notice that the City of Lakeland is a municipal corporation with the basic authority of all municipal corporations in Florida, i.e., it has power to tax, pass and enforce ordinances, appropriate funds, hire people to provide services to the residents of the city and perform those functions normally performed by cities. The city appeared to vacillate on the proposition that the Civil Service Board, instead of the city, might be the public employer in this situation. However, subsequent testimony revealed that the Board has no power to expend funds other than those authorized by the city, or to order into effect a pay raise unless the funds to provide such a raise had previously been authorized and approved by the City Commission. The hearing officer also takes official notice of Section 112.191, Florida Statutes, relating to death benefits for firemen which states: "[Tlhe word 'employer' means a state board, commission, department, division, bureau or agency, or a county, municipality or special district." From the foregoing the hearing officer concludes that the city is a public employer as defined in Section 447.002(2), Florida Statutes. With respect to an employee organization as defined in Section 447.002(10), Florida Statutes, testimony was received that Local 2350 is a labor organization and represents or seeks to represent public employees concerning matters relating to their employment relations with the City of Lakeland. Accordingly, the hearing officer concludes that the petitioner is an employee organization as defined in section 447.002(10), Florida Statutes. The city called ten witnesses, nine of whom were from the police force, and the tenth a member of the Civil Service Board. The latter's testimony clearly demonstrated that the Board is not a public employer. Although a considerable amount of time was expended in attacking the registration of petitioner with the Commission as an employee organization, no evidence was presented not known to the Commission at the time Exhibit 3 was executed with one possible exception. That was the fact that a revision of the International Association of Firefighters, AFL-CIO, Constitution and By-Laws had been received by petitioner subsequent to his filing the petition and had not been forwarded to PERC. The only difference between the revised edition and its predecessor known to the president of Local 2590 was that the covers had different colors. However, even if substantial changes in the Constitution and By-Laws of IAFF had been made, it is difficult to see how this could have affected the registration. One captain, five lieutenants, and one driver-engineer were called by the City in an attempt to establish collusion, coercion, intimidation or misrepresentation in obtaining the signature cards. Absolutely no evidence discrediting the validity of the cards was produced. Ultimately, evidence was received relative to unit determination. Both parties stipulated that all combat, full-time firefighters below the rank of lieutenant were properly included in the unit and that only firefighting personnel, excluding clerical personnel, dispatchers, and maintenance personnel would be included. There was disagreement regarding the inclusion of lieutenants, captains, deputy chiefs, fire marshals, fire inspectors, fire alarm maintenance superintendents and training officers in the unit, with the petitioner taking the position that they should be included. All parties stipulated that the Fire Chief should be excluded from the unit. Evidence presented regarding these contested positions will be discussed in the descending order of rank in the fire department. The Lakeland Fire Department is organized on quasi-military lines with the forces organized into one combat division comprised of three combat platoons. The three deputy chiefs each command one platoon. They stand 24-hour shifts at the main fire station and are then off for 48 hours. During the time on duty, the Deputy Chief makes all decisions affecting the department when the chief is unavailable. They have authority to transfer personnel from one station to another; they evaluate captains and approve evaluations on lower personnel, make effective recommendations regarding the discharge of employees, promotions, etc. These duties are more fully contained in Exhibit 20. The Fire Marshal carries the same rank as Deputy Chief. He is responsible for fire prevention, arson investigation and fire code enforcement. His is the basic responsibility for modifications of the fire code to keep up with changes in conditions, and he is the senior city official involved in enforcement and application of the fire code. Most of his work requires independent judgement and decision making. He establishes policies applicable throughout the fire department. He is assisted by two fire inspectors and makes effective recommendations respecting their pay, promotion, transfer, etc. The two fire inspectors perform many of the functions assigned to the fire marshal and in carrying out their inspections make recommendations that are effective in changing policies, rules and regulations applicable throughout the department. One of the inspectors carries the rank of captain and the other the rank of lieutenant. If assigned to duties other than inspections, e.g., as a member of a combat team in an emergency, they would be expected to exercise the authority and responsibilities associated with their rank. These duties are more fully contained in Exhibit 19. Captains stand their 24-hour watches at the main fire station with the Deputy Chiefs. In addition to having some responsibilities affecting the entire platoon's readiness posture, captains are in charge of one of the engine companies at the main station. As such they prepare efficiency reports on personnel under them which affects promotions, transfers and assignments. During the absence of the Deputy Chief they are in command of the fire station and make required managerial decisions. During fire fighting operations, as officer in charge of their companies, they are called upon to make decisions subjecting personnel under them to situations of great physical peril. The duties of captains are more fully described in Exhibits 14 and 21. The Fire Alarm Maintenance Supervisor (FAMS) is recognized in the captain's category. He is not an integral part of the combat force which is engaged in fighting fires but has the minimum training required to be used in such capacity if needed. He generally works independently with occasional help assigned to him from the combat platoon. He is responsible for the maintenance of various fire alarms throughout the city and has the basic responsibility for determining where these alarms shall be installed. The FAMS reports directly to the Fire Chief, and the nature of his duties require that he make an independent valuation and judgement decision on practically every problem with which he is confronted. The duties and responsibilities of the FAMS are more fully contained in Exhibit 16. The training officer holds the rank of captain. He has the responsibility of training all fire department personnel in the basic requirements of firefighters and in preparing continuing training schedules to maintain and upgrade these capabilities. In carrying out these duties, he is required to submit reports on the personnel undergoing training which can effect their promotion and retention. In developing training programs and procedures, he effectively formulates policies having direct impact throughout the fire department. The training officer reports directly to the chief. The duties and responsibilities of the training officer are more fully set out in Exhibit 17. Lieutenants are the lowest rank in the officer category in the Lakeland Fire Department whose inclusion in an appropriate bargaining unit is proposed by Petitioner. There are 15 lieutenants and they command the companies not commanded by captains at the main station as well as being in charge of the three outlying stations. They prepare efficiency reports on the people in their company and make effective recommendations regarding personnel actions which affect the promotion, discipline, and salaries of these personnel. As the officer in charge of a combat company engaged in fighting a fire, the lieutenant perforce has the responsibility for making the operational decision on how to employ his company in fighting a particular fire. While there are procedures developed during training programs designed to acquaint these officers with proven solutions to many problems they are likely to encounter, the final decision on which particular solution is most appropriate for the situation at hand ultimately is determined by the exercise of the independent judgment of the officer in charge at the scene. In exercising this judgment, the lieutenant will in many situations have the responsibility for detaching one or more of his company to a firefighting task involving high risk of physical injury. The duties of the lieutenants are more fully described in Exhibits 18 and 22. With respect to all of these disputed categories, they have several common denominators with all combat fire fighters. All stand duties on a 24 hour on - 48 hour off basis; all sleep and eat at the fire station to which they are assigned; and all are covered by the existing Civil Service System adopted by the city. In carrying out their fire fighting assignments they share, in company with all other combat personnel in the platoon, the rigors and dangers with which their profession is afflicted.
