Findings Of Fact Anthony Charles Fabian, a journeyman electrician, is the president of Fabian's Electrical Contracting, Inc. (FEC). Mr. Fabian owns 51 percent of the stock in FEC. FEC was incorporated in 1984 and since that time has been continuously engaged in the electrical contracting business. Although FEC shares office space with other business entities, it is an independent business operation not affiliated with any other business. In 1987, FEC applied for and received certification as a minority business enterprise (MBE). Mr. Fabian has at all times maintained he is entitled to MBE status as a Hispanic American. Mr. Fabian was born in Tampa, Florida and lived in a Hispanic neighborhood there until he was six years old. During the time he resided in Tampa, Mr. Fabian's neighbors, family, and friends used Spanish as their predominant language. The family culture was Cuban as was that of the area where the family resided. At age six Mr. Fabian moved from Tampa to Pensacola, Florida. Mr. Fabian later moved from Pensacola to Tallahassee mid-way through his sixth grade school year. School mates in Pensacola and Tallahassee called him various ethnic nicknames, all related to his Hispanic ancestry. Such names included: "Julio," "Taco," "Spic," "El Cubano," and "Cuban Wheatman." Other than an affection for Cuban food, Mr. Fabian currently has no cultural practices to tie him to his Hispanic heritage. Mr. Fabian does not speak Spanish. Mr. Fabian does not reside in a predominantly Hispanic community. Mr. Fabian does not practice the religious faith of his progenitors. Mr. Fabian does not instruct his child in any Cuban cultural practice. Mr. Fabian does not know of any Spanish cultural practice that came to him from his family. Mr. Fabian has never been refused work because of his Hispanic heritage. Mr. Fabian's mother has no Hispanic progenitors. Mr. Fabian's father, also born in Tampa, Florida, has the following ancestors: his father (Mr. Fabian's grandfather) was born in Spain, his mother (Mr. Fabian's grandmother) was born in Key West. Mr. Fabian's grandmother, Anna Rodriguez Fabian, (who Mr. Fabian spent time with in Tampa) spoke Spanish and claimed Cuban heritage as both of her parents had immigrated from there to Key West. For this reason, Mr. Fabian maintains he is a Cuban from Tampa. None of Mr. Fabian's grandparents was born in Mexico, South America, Central America, or the Caribbean. He has never claimed otherwise. Sometime after FEC obtained certification as a MBE, the Department adopted what is now codified as Rule 60A-2.001(8), Florida Administrative Code. Such rule defines "origins" as used in Section 288.703(3)(b), Florida Statutes, to mean that a Hispanic American must substantiate his cultural and geographic derivations by at least one grandparent's birth. In July, 1992, when FEC submitted its recertification affidavit, the Department notified Mr. Fabian that he had failed to establish that at least one of his grandparents was born in one of the applicable geographic locations. Accordingly, Mr. Fabian was advised his request for recertification would be denied. Approximately eleven other persons have been denied minority status because they were unable to substantiate origin by the birth of a grandparent. Of those eleven, none had been previously certified. FEC is the only formerly certified MBE which has been denied recertification because of the rule. However, when FEC was granted certification in 1987 it was not based upon the Department's agreement that Mr. Fabian met the statutory definition of a Hispanic American. Such certification was issued in settlement to the preliminary denial of certification since the word "origins," as used in the statute, had not as yet been defined by rule. Additionally, the recertification of FEC was based upon Department error and not an acceptance that Mr. Fabian met the "origins" test. Finally, in 1991, the Department cured the rule deficiencies to create parallel requirements for certification and recertification for MBE status. When FEC submitted it recertification affidavit under the current rule, the request was denied. Mr. Fabian has been aware of the Department's position regarding his requests for certification from the outset. The Department promulgated the "origins" rule in response to a number of applications for MBE status from persons with distant relations or ancestors within the minority classifications. The necessity for an "origins" rule was demonstrated since the Department needed a clear standard which staff and the public could recognize as the dividing line for who would and would not qualify as a Hispanic American, and since the purpose of the program is to provide preferences in contracting to businesses run by individuals who have been disadvantaged. The standard devised afforded a narrowly drawn, recognizable criterion. In deciding to use the grandparent test, the Department looked to outside sources. Since there was no legislative history resolving the "origins" issue, the Department sought guidance from dictionary definitions and statutory uses in other contexts. In promulgating the rule, the Department gave notice to outside sources, including groups listed in the publication Doing Business in Florida, such as the Department of Commerce, Bureau of Commerce, small business development centers, community development corporations, local minority business certification offices, and the Minority Business Advocate's office. At the public hearing conducted for the purpose of receiving input regarding the grandparent test, no one offered opposition to the "origins" definition. Mr. Fabian is not a black American as defined in Section 288.703(3)(a), Florida Statutes.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Management Services enter a final order denying Petitioner's recertification as a minority business enterprise. DONE AND RECOMMENDED this 28th day of April, 1994, in Tallahassee, Leon County, Florida. Joyous D. Parrish 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 28th day of April, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6777 Rulings on the proposed findings of fact submitted by the Petitioner: 1. Paragraphs 1 through 7, 10, 11, 13, 14, 16, 17, 19, 20, 22 through 25, 28 through 31, 33 through 41, 43, 44, 46 through 50, 60, 64, and 70 are accepted. The first sentence in paragraph 8 is accepted. With regard to the second sentence it is accepted that the neighbors et al enjoyed Cuban food and cultural aspects but spoke Spanish. No proof was submitted that a language of "Cuban" was spoken by the community. The last sentence of paragraph 12 is rejected as irrelevant, otherwise the paragraph is accepted. Paragraph 15 is rejected as irrelevant. Paragraph 18 is rejected as an incomplete statement of fact which, of itself, is insufficient to stand without further clarification; therefore rejected as not supported by the total weight of the credible evidence. Paragraph 21 is rejected as irrelevant. Paragraph 26 is rejected as repetitive and unnecessary. With regard to paragraph 27 it is accepted Mr. Fabian has 16 years of experience, otherwise rejected as repetitive and unnecessary. The first sentence of paragraph 32 is accepted. The remainder of the paragraph is rejected as not supported by the evidence or irrelevant. Mr. Fabian does have a phone number whether that number is listed in the telephone book is not supported by the record cited. Paragraph 42 is rejected as irrelevant. The first two sentences of paragraph 45 are accepted. It is also accepted that Lewis & Thompson have used other minority subcontractors. Whether they "regularly" use them is irrelevant. The first sentence of paragraph 51 is accepted; the remainder is rejected as comment or argument. With regard to paragraph 52, it is accepted that Mr. De La O did not visit a job site; otherwise rejected as irrelevant. Paragraphs 53, 54, and 55 are accepted as the applicable law of this case, not fact. Paragraph 56 is rejected as contrary to the weight of the credible evidence. Paragraph 57 is rejected as contrary to the weight of the credible evidence; the definition also applies to other minorities. Paragraph 58 is accepted as a partial statement of fact, incomplete to stand alone without further clarification; therefore rejected as not supported by the total weight of the credible evidence. Paragraph 59 is accepted as a partial statement of fact, incomplete to stand alone without further clarification; therefore rejected as not supported by the total weight of the credible evidence. Paragraph 61 is accepted as a partial statement of fact, incomplete to stand alone without further clarification; therefore rejected as not supported by the total weight of the credible evidence. Paragraph 62 is rejected as argument. Paragraph 63 is rejected as irrelevant or argument. Paragraph 65 is rejected as irrelevant or argument. Paragraph 66 is rejected as argument. Paragraphs 67, 68, and 69 are rejected as irrelevant or incomplete statements. Paragraphs 71 through 73 are rejected as irrelevant, unnecessary or repetitive. Rulings on the proposed findings of fact submitted by the Respondent: Paragraphs 1, 4, 5, 6, 8, 12, and 17 are accepted. With regard to paragraph 2, the first, second, sixth and seventh sentences are accepted; the remainder is rejected as a recitation of testimony, not statements of fact. The first sentence of paragraph 3 is accepted, the remainder is rejected as a recitation of testimony, not statements of fact. The first sentence of paragraph 9 is accepted; the remainder is rejected as argument or partial statement of fact, incomplete to stand alone without further clarification; therefore rejected as not supported by the total weight of the credible evidence. The second and third sentences of paragraph 11 are accepted, the first rejected as recitation of testimony, not statements of fact. Paragraph 13 is rejected as argument or partial statement of fact, incomplete to stand alone without further clarification; therefore rejected as not supported by the total weight of the credible evidence. Paragraph 14 is rejected as argument or partial statement of fact, incomplete to stand alone without further clarification; therefore rejected as not supported by the total weight of the credible evidence. Paragraph 15 is rejected as irrelevant. Paragraph 16 is rejected as partial statement of fact, incomplete to stand alone without further clarification; therefore rejected as not supported by the total weight of the credible evidence. COPIES FURNISHED: Michael F. Coppins Gwendolyn P. Adkins Cooper & Coppins, P.A. 515 North Adams Street Tallahassee, Florida 32302 Cindy Horne Department of Management Services Office of the General Counsel Suite 309 Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-0950 William H. Lindner, Secretary Department of Management Services Suite 307 Knight Building Tallahassee, Florida 32399-0950 Sylvan Strickland Acting General Counsel Office of the General Counsel Suite 309 Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-0950
The Issue The issues in this case are, one, whether Respondent unlawfully discriminated against Petitioner on the basis of his national origin, religion, or handicap in violation of the Florida Fair Housing Act; and, two, whether Respondent subjected Petitioner to acts of intimidation, coercion, or retaliation as a result of Petitioner's exercise, or attempted exercise, of a protected housing right.
Findings Of Fact Petitioner William Kleinschmidt ("Kleinschmidt") owns a unit in the Three Horizons North Condominium. He purchased his condominium in 1999 and has resided there continuously since that time. Respondent Three Horizons North Condominiums, Inc. ("Three Horizons"), manages the property of which Kleinschmidt's condominium is a part. Kleinschmidt and Three Horizons have been involved in a long-standing feud stemming from Kleinschmidt's possession of cats in violation of the condominium's "no pets" policy. Three Horizons has tried since 1999 to compel Kleinschmidt's compliance with the "no pets" policy. The dispute over Kleinschmidt's cats came to a head last year, when a formal administrative hearing was held on Kleinschmidt's first housing discrimination complaint against Respondent. See Kleinschmidt v. Three Horizons Condominium, Inc., 2005 Fla. Div. Adm. Hear. LEXIS 883, DOAH Case No. 04-3873 (May 25, 2005), adopted in toto, FCHR Order No. 05-097 (Fla.Com'n Hum.Rel. Aug. 23, 2005)(Kleinschmidt I). Among other allegations, Petitioner charged in Kleinschmidt I that Three Horizons had unlawfully refused to waive the "no pets" policy to permit his possession of "service animals" (i.e. cats) as an accommodation of his emotional handicap. Kleinschmidt lost that case. Kleinschmidt presently alleges that Three Horizons has discriminated against him on the basis of handicap, national origin, and religion. The undersigned has had some difficulty making sense of Kleinschmidt's allegations. As far as the undersigned can tell, Kleinschmidt alleges that: (1) members of the condominium association's board of directors (and especially the board's treasurer, Ruth Pearson, whose German ancestry Kleinschmidt assumes makes her a Nazi sympathizer hostile to Jewish persons such as himself) have made disparaging comments about him; (2) when he applied to purchase his condominium back in 1999, Three Horizons charged him a $100 screening fee, which should have been only $75; (3) Three Horizon's agents illegally broke into his unit on September 21, 2000, and again on September 21, 2001, stealing personal property each time; (4) before he purchased his unit, Three Horizons agreed to waive the "no pets" policy, which agreement Respondent now refuses to honor; and (5) Three Horizons has engaged in ongoing (but unspecified) acts of intimidation, coercion, and retaliation. There is not a shred of competent, persuasive evidence in the record, direct or circumstantial, upon which a finding of any sort of unlawful housing discrimination could possibly be made. Ultimately, therefore, it is determined that Three Horizons did not commit any prohibited act.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order finding Three Horizons not liable for housing discrimination and awarding Kleinschmidt no relief. DONE AND ENTERED this 21st day of November, 2006, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 21st day of November, 2006.
The Issue Whether Respondents Bonavida Condominium Association, Inc., Lorne Rovet, and John McNamee discriminated against Petitioners Carlos Rodriguez and Monica Bontempi in the terms, conditions, or privileges of the sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of their national origin; and retaliated against Petitioners on account of their having exercised any right granted under the Florida Fair Housing Act, in violation of sections 760.23(2) and 760.37, Florida Statutes (2018); and, if so, the relief to which Petitioners are entitled.1
Findings Of Fact Parties Petitioners are husband and wife who, until recently, worked and lived in their country of origin, Argentina. Petitioners are headstrong, well- educated, and very proud of their Argentinian national origin. While living in Argentina, Rodriguez worked as a renowned physicist and research professor and Bontempi as a physician and renowned immunologist. After successful careers in Argentina, Petitioners retired and moved from Argentina to Aventura, Florida, where, in 2015, they purchased Unit 1505 at Bonavida. Petitioners own the condominium unit through Tina Trust, LLC, named after their native country of Argentina. Bonavida is a multi-cultural condominium community governed by an association, which, in turn, is governed by a board of directors. At all times material hereto, the board has been comprised of individuals of many different cultures, backgrounds, and countries of origin. Many of the individual board members are headstrong, which often led to confrontational interactions, disputes, and bickering among board members relating to various matters of association business. Rovet has been a unit owner at Bonavida since 2009 and McNamee since 1985. Rovet is not retired and works full-time as an accountant. McNamee retired following a distinguished career in law enforcement in New York City. "The Three Musketeers" Join the Board Together in 2018 For several years, Petitioners, Rovet, and McNamee were good friends and socialized together. In 2016, Rodriguez was president of the board. By the end of 2016, a dispute arose regarding Rodriguez's presidency and he was removed as president. However, Rodriguez remained on the board as a director for unspecified periods of time during 2016 and 2017. By the end of 2017, Rodriguez was no longer on the board. However, Rodriguez, McNamee, and Rovet were dissatisfied with the prior management company at Bonavida and condition of the property, so they agreed to become more active in the association. To this end, McNamee asked Rodriguez to join the board with him and Rovet. In January 2018, Rodriguez, McNamee, and Rovet joined the board together determined to collectively combat the problems at Bonavida. McNamee became vice president, Rovet became treasurer, and Rodriguez was a director. At the time, Petitioners, McNamee, and Rovet, were still good friends. In fact, Rodriguez, McNamee, and Rovet fondly referred to each other as "the three musketeers" in reference to their plan to combat the problems at Bonavida. Deterioration of the Relationship and the July 30, 2018, Board Meeting Not long after joining the board together in January 2018, the friendship between Petitioners, McNamee, and Rovet deteriorated. A dispute arose between Petitioners, McNamee, and Rovet over the management of the board and how to address the condition of the property. These disputes are gleaned from a review of numerous emails exchanged between Rodriguez, McNamee, and Rovet on June 22, 2018. On June 25, 2018, on the heels of these emails, a Bonavida board meeting was held. During the meeting, Rodriguez became angry, took the floor, and to McNamee's and Rovet's surprise, challenged McNamee's and Rovet's qualifications to be on the board. Rodriguez argued that McNamee and Rovet were not full-time residents of Bonavida (McNamee was a resident of New York and Rovet was a resident of Canada); and, therefore, they were not qualified to be on the board. Bonavida's condominium attorney was present at the June 25, 2018, board meeting and the matter was addressed and resolved at the meeting in favor of McNamee and Rovet. Nonetheless, after the meeting, Rodriguez unilaterally contacted the board's attorney causing Bonavida to incur additional legal expense. Understandably, after the June 25, 2018, board meeting, Petitioners, McNamee, and Rovet were no longer friends and they did not speak to each other, although they each remained on the board. In the meantime, Rovet, as treasurer, had discovered that Bonavida's finances were in poor shape, and one of the reasons was the incurrence of unauthorized legal fees incurred by Rodriguez. The matter was noticed to be discussed during a board meeting to occur on July 30, 2020, where other fees potentially owing and due to Bonavida from other unit owners would also be discussed. The agenda for the July 30, 2018, board meeting was posted in common areas. The agenda items included "Carlos Rodriguez-Legal Fees" and various types of fees attributable to other units. The meeting commenced at 5:04 p.m., and did not conclude until 7:20 p.m. The meeting began in chaotic fashion with Rodriguez interrupting other speakers and bickering over the approval of the prior board meeting minutes. After several minutes of bickering, a vote was taken and the reading and approval of the previous meeting minutes was tabled so that the board could move forward and address the agenda items. Even after this vote, Rodriguez continued to argue about the prior meeting minutes and interrupted other speakers. At one point, an unidentified speaker chastised Rodriguez for always interrupting other speakers at board meetings, which invoked a loud applause and "thank yous," from other attendees at the meeting. The meeting then turned to the first agenda item, which was a discussion and vote on a proposal requiring Petitioners' unit to reimburse Bonavida for legal fees. As treasurer, Rovet took the floor to speak on the matter. He was immediately interrupted by Rodriguez, which resulted in further bickering until Rodriguez momentarily stopped talking. At the meeting, Rovet explained that the legal fees were incurred by Bonavida in 2017, and arose from five invoices totaling $5,332.52. Each invoice was attributable to Petitioners' unit. Four of the invoices (totaling $4,448.52) related to a conflict between the former association manager, Beth Natland, and Bontempi, in which Bontempi was accused of threatening Ms. Natland. Another invoice in the amount of $884.00 related to an attempted transfer in 2017 of Petitioners' unit from an "LLC to their trust." There was a heated and chaotic discussion on the item for almost one hour. Petitioners disagreed with Bonavida's legal authority to recover the legal fees. Following a vote, a majority of the board voted to hold Petitioners' unit responsible to reimburse Bonavida for the legal fees ($5,332.52). After the vote, no action was ever taken to seek to recover the legal fees. The legal fees have never been placed on Petitioners' unit ledger; Bonavida has not sought to collect the fees; the fees have never been paid; no lien, lawsuit, or foreclosure action was filed; and Petitioners have never been threatened with eviction or evicted. On December 10, 2018, the president of Bonavida sent Petitioners a letter stating that no action would be taken to collect any of the legal fees. Petitioners do not owe any assessments, expenses, or fees to the association and they own their unit free and clear of any mortgage liens, fees, expenses, or assessments owed to Bonavida. Notably, Petitioners have resided at the unit without interruption since they moved into Bonavida in 2015. At no time have Petitioners been denied the provision of services or facilities in connection with the sale or rental of a dwelling. Nevertheless, Petitioners assert that the agenda's reference to Rodriguez by name and the board's action at the July 30, 2018, meeting to recover the legal fees of $5,332.52 against their unit is based on national origin discrimination. Significantly, at no time during the meeting did Petitioners contend that the agenda or attempt to recover the legal fees was based on national origin discrimination. At hearing, Rodriguez could not explain how the attribution of the legal fees incurred in 2017 related to Petitioners' unit are based on his national origin. Rather, Rodriguez contends Petitioners could not be legally held responsible for the attorneys' fees; a point he stated at the meeting and reiterated at the final hearing. The evidence presented at hearing demonstrates that other unit owners who are not Argentinian have been identified at board meetings as being responsible for various types of fees owed to Bonavida. In sum, Petitioners failed to present persuasive and credible evidence that Respondents discriminated against them based on their national origin with respect to the meeting agenda, the July 30, 2018, board meeting, and any attempt to recover the legal fees from Petitioners' unit in the amount of $5,332.52. Emails Petitioners further assert that they were discriminated against because of their national origin based on emails authored by Rovet. On April 3, 2018, Rovet sent an email to Brenda Friend, the president of Bonavida, in which numerous other persons, including Rodriguez, were copied, stating: Great suggestion Brenda. We should only allow Brazilians into the building. My ideas would be to have everyone speak one language, like Swedish. A great rule change would be to require all residents to change their underwear every day and to wear the underwear [on] the outside of their clothing so we can check. Good work team! Rovet's April 3, 2018, email was not directed at Petitioners and does not refer to their national origin. At hearing, Rovet testified that he is a fan of movies and music, and that he often refers to various movies and songs in his communications with others in an attempt at "dry humor." Rovet testified that his reference to "Brazilians," "Swedish," and individuals with underwear outside their clothing was an attempt at humor and in reference to a "Woody Allen movie." The email was in no way intended to disparage Petitioners based on their national origin. At hearing, Rodriguez acknowledged that Rovet is sarcastic and that it is important to consider the full context of email conversations. Petitioners also point to an email by Rovet dated April 15, 2018, which he sent to Rodriguez and other board members regarding "Violations and Enforcement Committee," stating: Before leaving there Brenda and I discussed this issue and concluded that regardless of what our rules state and what state laws state we should be reasonably aggressive against violators because we have to in order to change the culture but also because most residents will not know the rules nor take the time to learn about them. If confronted by anyone surpassing that assumption we can always withdraw from our position. This email does not refer to Petitioners and makes no reference to their national origin. In no way was this email intended by Rovet to disparage Petitioners' national origin. Petitioners also point to the following string of emails by Rovet dated May 28, 2018. At 4:38 a.m. that morning, Rovet stated: "How do you know its pee?" A couple of hours later, McNamee responded; "?? Shouldn't pee be on the pillar. I only see it on the floor therefore, if pee, it's not a male dog?" In response, Rovet sent an email to McNamee, Rodriguez, and others stating: "We need a pee detective to get to the bottom of this." At hearing, Rovet testified that he wrote the May 28, 2018, emails because a dog was allegedly "peeing" somewhere near his building. Rovet's reference to "pee detective" was in reference to the Jim Carrey movie, "Pet Detective." The May 28, 2018, emails were another attempt by Rovet at dry humor and in no way intended to disparage Petitioners based on their national origin. Petitioners also point to an email written by Rovet on July 25, 2018, at 4:03 p.m. to McNamee, Rodriguez, and other board members, stating: "Let[']s put that in the new condo rules – all board members required to sit at same table facing same way unless they have BO and/or excess gas and are over smiling." This email does not refer to Petitioners. This email was another attempt by Rovet at dry humor and was in no way intended to disparage Petitioners based on their national origin. Petitioners also point to an email written by Rovet on July 26, 2018, at 5:27 p.m., to Rodriguez and other board members, stating: "can't help but think of Staff Sergeant Bob Barnes in Platoon--terrible what happened to Sergeant Elias, no relation to our President, at the end." This email does not refer to Petitioners, was another attempt by Rovet at dry humor, and was in no way intended to disparage Petitioners based on their national origin. Petitioners also point to an email written by Rovet on July 27, 2018, at 2:26 p.m., stating, "sung to the tune 'Cry For Me Argentina.' [The song title is actually 'Don't Cry for Me Argentina']." This is the only email authored by Rovet that actually mentions Argentina. This email was written by Rovet following a dispute among the board members as to how meetings and votes should be conducted. Significantly, Rodriguez interjected the issue of Argentina into the discussion in reference to the past-oppressive Argentinian government and as an example of how meetings at Bonavida should not be conducted, which prompted Rovet to write the email, "sung to the tune 'Cry for Me Argentina.'" In response to Rovet's email, Rodriguez wrote back to Rovet moments later, stating: "Please don't make fun of the death and disappearance of 30,000 people." Moments later, Rovet responded: "I love to sing. I have a right to sing and I shall sing. Can we sing together?" Later that afternoon, Rovet also sent an email, stating: "stand and sing with you John—let[']s stand and sing together a song called 'Oh That Sweet Lovely Bully Boy.'" At hearing, Rovet testified that the email "sung to the tune 'Cry For Me Argentina,'" was in reference to the song by Madonna titled: "Don't Cry For Me Argentina," which Rovet had just heard prior to writing the email. At hearing, Rodriguez acknowledged he is aware of the Madonna song; that Rovet made the statement "Cry For Me Argentina" as a joke; and that he (Rodriguez) interjected the issue of Argentina into the conversation before Rovet's email. Rovet's emails were another attempt at dry humor and were in no way intended to disparage Petitioners based on their national origin. Petitioners also point to an email written by Rovet to Rodriguez and others on August 19, 2018, stating: "Let[']s give Arthur a piece of our hearts so he might have some peace in his heart and maybe he will respect our parking rules." This email makes no reference to Petitioners' national origin and is in no way disparaging against Petitioners based on their national origin. Petitioners also point to an email written by Rovet on September 1, 2018, to various persons regarding "Unauthorized notice at mail room," stating: Well said Elisa, the guy's real intentions have been apparent for some time. Yes I agree, he needs a shrink. A football team of them, in fact. (It's never easy as an adult if beaten as a child). Meanwhile, the fencing will go on, and that's the main thing. I don't mind Carlos around, even if his intentions are nefarious, because these little things he comes up with (a piece of paper, a missing flag and the fence permit, for example), makes us all step up our game and that's never a bad thing because there are cracks and stuff inadvertently falls in them. Almost can[']t wait for his next amusing electioneering gambit. Probably the parking system. He dislikes it. But I appreciate the feedback, even if delivered negatively, and any help he has to lend us which can serve to make us better. This email refers to Rodriguez's ongoing disputes and bickering with board members regarding various issues before the board. The email in no way disparages Petitioners based on their national origin; and, in fact, demonstrates Rovet's tolerance of Rodriguez's positions on various issues pertaining to Bonavida. Petitioners also point to an email from McNamee to Rovet and other persons on September 2, 2018, at 6:32 p.m., stating, "Try dictator instead of director?" This email does not refer to Petitioners and their national origin. Even if it referred to Rodriguez, however, it illustrates the personal dispute and bickering between McNamee and Rodriguez over the handling of board matters and in no way was intended to disparage Petitioners based on their national origin. The undersigned carefully considered all the emails received into evidence which are alleged by Petitioners to be discriminatory against them based on their national origin, even if every email is not specifically referenced herein. Suffice it to say that none of the emails demonstrate a discriminatory animus by Respondents against Petitioners based on their national origin, and, in any event, Petitioners did not suffer any injuries from the emails. In sum, Petitioners failed to present persuasive and credible evidence that Respondents discriminated against them based on their national origin with respect to any emails. McNamee's "Bullshit" Comment During the October 22, 2018, Meeting During this chaotic board meeting, an ongoing parking issue was discussed. The discussion was supposed to be very brief. After a few minutes, Rodriguez took the floor and while he was speaking on the matter and discussing a possible solution, McNamee, who was attending the meeting over a speakerphone, blurted out: "Stop the bullshit." Not to be deterred, Rodriguez spoke for several more minutes explaining his proposal. At hearing, McNamee testified that the "stop the bullshit" comment was directed at his wife, who was in the same room with him. McNamee thought his speakerphone was muted when he made the comment to his wife. McNamee further testified that the same comment had been used by Rodriguez on prior multiple occasions. The phrase "stop the bullshit" is commonly used in today's vernacular. Even if the comment was directed at Rodriguez, it had nothing to do with Petitioners' national origin. In sum, Petitioners failed to present persuasive and credible evidence that Respondents discriminated against them based on their national origin with respect to the "stop the bullshit" comment made by McNamee during the October 22, 2018, board meeting. Petitioners' Retaliation Claim Based on Emails Petitioners contend Respondents subjected them to retaliation beginning in March 2019, after the filing of Petitioners' HUD complaint. In support of their position, Petitioners again rely on various emails. On March 14, 2019, at 2:49 p.m., Rodriguez wrote to Elisa Souza and copied other board members, including Brenda Friend, regarding "Generator repair quotes," stating, Hi Elisa Please note that the most important issue was not replied by you. Are you against transparency? Are you against to having 3 bids? Respectfully Carlos At 3:05 p.m., Ms. Friend wrote to the other board members, stating: "Elisa let him 'die' wondering of that!" At 3:13 p.m., Ms. Friend wrote again to other board members: "It seems Carlos has adopted the bad so well known 'leftist' habit/strategy which is: 'Always accuse others of what you are and do.' So people (the masses) of poor intellect can believe." Ms. Friend did not testify at the final hearing, so it is unclear what she meant by the emails she authored on March 14, 2019. Nevertheless, a plain reading of the email string indicates her comments were made in direct response to emails written by Rodriguez challenging her transparency and decisions, not in response to Petitioners' HUD complaint; and, in any event, no action was taken against Petitioners in the emails. On April 9, 2019, at 1:40 p.m., the Bonavida manager wrote an email to unidentified individuals regarding an insurance carrier's approval of a law firm to defend against Petitioners' HUD complaint filed against Bonavida and two directors. In response, at 2:18 p.m., Rovet wrote "another reason not to do the pool now," which elicited an email from McNamee to unidentified persons at 7:44 p.m., stating: "After the association wins the case, can they sue for expenses incurred for defending this libelous action or does every one of us sue individually?" Merely questioning whether expenses may be recovered and referring to Petitioners' complaint as "libelous" is not retaliation. Again, no action was taken against Petitioners in these emails. On May 29, 2019, at 10:33 a.m. an unidentified person wrote to Ms. Friend and other board members, stating: Dear Ms[.] Friend I do not want you to think I'm ignoring your questions but I'm going down to speak to the manager in person about what requires permits what doesn't require permits, is there a list of things that absolutely must be inspected by County inspectors, is there a list of things that absolutely don't have to be inspected. Etc etc etc] I wish there were such a list I would love to shove it in our antagonists face ??? At 11:02 a.m., McNamee replied, stating, "Does the City of Aventura reward whistle blowers for creating revenue? The City of NY does[.]" Rodriguez takes issue with McNamee's email at 11:02 a.m. At hearing, Rodriguez acknowledged that because of his "scientific preparation and attitude," he was "obsessive on getting the permits…," and ensuring they were correct. Based on Rodriguez's own testimony, the email authored by McNamee was in reference to permits, not Petitioners' HUD complaint. In any event, no action was taken against Petitioners in the email. The undersigned carefully considered all the emails received into evidence which are alleged by Petitioners to be retaliation against them based on their HUD complaint, even if every email is not specifically referenced herein. Suffice it to say that none of the emails demonstrate a retaliatory animus by Respondents against Petitioners based on their HUD complaint, and no action was taken against Petitioners in the emails. In sum, Petitioners' failed to present persuasive and credible evidence that Respondents retaliated against them for filing their HUD complaint based on any emails. Petitioners' Retaliation Claim Based on the Cardroom Incident Finally, Petitioners contend that McNamee's inquiry to the Bonavida manager regarding a gathering of owners, including Rodriguez, at a Bonavida cardroom on December 8, 2019, is further evidence of retaliation. However, McNamee's inquiry legitimately pertained to whether Rodriguez had paid the required deposit to reserve the cardroom for the gathering. In any event, no action was taken against Petitioners. In sum, Petitioners failed to present persuasive and credible evidence that Respondents retaliated against them for filing their HUD complaint based on McNamee's inquiry to the manager regarding the cardroom.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 6th day of October, 2020, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 4 On pages 29 and 30 of their Proposed Recommended Order, Petitioners assert that Respondents also violated section 760.23(3) with regard to an unspecified "chain of emails" 15 days before the July 30, 2018, board meeting and the posting of the agenda for the July 30, 2018, meeting. Under section 760.23(3), "[i]t is unlawful to make, print, or publish, or cause to be made, printed, or published, any notice, statement, or advertisement with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on … national origin or an intention to make any such preference, limitation, or discrimination." However, whether Respondents violated section 760.23(3) was not identified as an issue in the notices of hearing or at the final hearing. It is also not identified as an issue at the beginning of the parties' proposed recommended orders. Accordingly, the issue has been waived. Even if the undersigned were to address the issue, however, Petitioners' claim under section 760.23(3) fails for the same reasons their claim under section 760.23(2) fails. Respondents did not make, print, or publish, or caused to be made, printed, or published, any notice, statement, or advertisement with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on their national origin or an intention to make any such preference, limitation, or discrimination. Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Carlos O. Rodriguez Monica Bontempi 20100 West Country Club Drive, Unit 1505 Aventura, Florida 33180 (eServed) S. Jonathan Vine, Esquire Cole, Scott & Kissane, P.A. 222 Lakeview Avenue, Suite 120 West Palm Beach, Florida 33401 Stuart S. Schneider, Esquire Cole, Scott & Kissane, P.A. 222 Lakeview Avenue, Suite 120 West Palm Beach, Florida 33401 (eServed) Cheyenne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
The Issue Whether Respondent Gulf Coast Community College (Respondent or the College) violated the Florida Civil Rights Act of 1992, sections 760.01–760.11 and 509.092, Florida Statutes, by subjecting Petitioner Derek A. Robinson (Petitioner) to discrimination in employment or by subjecting Petitioner to adverse employment actions in retaliation of Petitioner’s opposition to the College’s alleged discriminatory employment practices.
Findings Of Fact Petitioner is an African-American male. The College is a public institution of higher education located in Panama City, Florida. In 1998, Petitioner was hired by the College to work in its custodial department as a custodian. Petitioner held that position until his termination on February 11, 2009. The College's custodial department is part of the College's maintenance and operations division (collectively, ?Maintenance Division?) managed by the campus superintendent. The two other departments within the Maintenance Division are the maintenance and grounds departments. During the relevant time period, there were approximately 40 to 50 employees in the Maintenance Division. Of those, there were approximately 21 to 28 custodians in the custodial department. Most of the custodians were African-Americans and there were only three Caucasian custodians. The Caucasian custodians were Tom Krampota, Josephine Riley, and Tommy Gillespie. Custodial staff typically work shifts beginning at 2:00 p.m. and ending at 10:00 p.m., Monday through Friday. They are generally assigned housekeeping duties for a specific building. In addition to Monday through Friday, the College is also open on most weekends. Prior to 2001, the College began designating one employee to work a non-rotating weekend shift. Unlike other custodians, the designated weekend custodian worked from 10:00 a.m. to 10:30 p.m. on Fridays and 6:00 a.m. to 6:30 p.m. on Saturdays and Sundays. The weekend custodian was not assigned to a particular building, but rather worked in various buildings as needed and was to be available to open doors to campus buildings during weekend hours. Petitioner was the designated weekend custodian from 2001 until his duties were changed in September 2008. Dr. John Holdnak, who worked for the College for 26 years in various capacities, including four years as Director of Human Resources, was the one who established the position of designated weekend custodian. Dr. Holdnak served as the College's Vice-President for Administration Services for his last eight years of employment with the College until leaving in July, 2008. As vice-president, Dr. Holdnak reported directly to the president of the College, Dr. James Kerley. Sometime prior to 2008, Dr. Holdnak observed that the departments in the Maintenance Division were underperforming, not adequately supervised, and failing to meet expectations. Dr. Holdnak observed that the Maintenance Division employees took excessive breaks and showed lack of effort in their work. For example, mold was found in some of the classrooms, an open window with a bird's nest was found in another, maintenance orders were backlogged, and Dr. Holdnak received a number of complaints from faculty and College employees regarding the Maintenance Division's level of service. As a result of Dr. Holdnak's observations, the College removed the campus superintendent from his position because of the superintendent's inability to manage line supervisors, provide leadership, or supervise personnel. After that, Dr. Holdnak personally supervised the Maintenance Division for a time in order to assess and develop a solution to the problem. Based upon Dr. Holdnak's assessment, the College sought applications for a new campus superintendent who could change and clean-up the culture of the Maintenance Division. At the time, the three department supervisors within the Maintenance Division were: Carlos "Butch" Whitehead for maintenance, Dan Doherty for custodial, and Ronny Watson for grounds. All three supervisors were Caucasian. The vacancy for the campus superintendent position was advertised. Dr. Holdnak encouraged John Westcott to apply for the campus superintendent position because he had previously worked with Mr. Westcott on a College construction project and was impressed with his vigor and work ethic. Mr. Westcott, a Caucasian, applied. So did custodial department supervisor, Dan Doherty, and three other candidates. Mr. Westcott disclosed on his application that he had been convicted of a felony twenty years prior to his application. Dr. Holdnak determined that Mr. Westcott's prior conviction would not impact his candidacy for the position. The applicants were screened by a selection committee composed of a number of College employees from various divisions, including Petitioner. Of the five applicants who applied, the selection committee's first choice was John Westcott, who was qualified for the position. Petitioner did not agree with the selection committee's first choice and was not impressed with Mr. Westcott during the screening process because Mr. Westcott referred to himself as the "terminator." Based upon the selection committee's first choice and the conclusion that Mr. Westcott satisfied the necessary criteria to change the Maintenance Division's culture, Dr. Holdnak recommended that the College hire John Westcott as the new campus superintendent. John Westcott was hired as campus superintendent in January 2008. Once Mr. Westcott was hired, Dr. Holdnak specifically directed him to take control of his departments, ?clean up the mess? and hold his mid-level supervisors responsible for their subordinates' results. Dr. Holdnak instructed Mr. Westcott to take a hands-on approach, physically inspect and visit the buildings to ensure cleanliness, increase effectiveness, stop laziness, and decrease work order backlogs. During his tenure, Mr. Westcott increased productivity and reduced backlogs. Mr. Westcott took more initiative than previous superintendents with cleaning and maintenance, and he conducted weekly walkthroughs. While Mr. Westcott was campus superintendent, the backlog of 400 work orders he had inherited was reduced to zero. During Mr. Westcott's first month as campus superintendent, he had an encounter with a Caucasian employee named Jamie Long. On January 31, 2008, Mr. Westcott issued a written memorandum to Mr. Long as a follow-up from a verbal reprimand that occurred on January 28, 2008. The reprimand was Mr. Westcott's first employee disciplinary action as campus superintendent. According to the memorandum, the reprimand was based upon Mr. Long's confrontation and argument with Mr. Westcott regarding the fact that Mr. Westcott had been ?checking-up? on him. According to the memorandum, Mr. Westcott considered "the manner in which [Mr. Long] addressed [him as] totally inappropriate and could be considered insubordination." Mr. Long disputed Mr. Westcott's version of the incident and later sent a letter to College President Dr. Kerley dated June 23, 2008, complaining about "the alleged incident of insubordination" and the "almost non-stop harassment by John Westcott." There was no mention or allegation in the letter that John Westcott was racist or had discriminated against anyone because of their race. After Dr. Holdnak left the College in July 2008, John Mercer assumed his responsibilities. Mr. Mercer, like Dr. Holdnak, had the perception that custodial work was below par based on complaints and personal observations. He therefore continued to direct Mr. Westcott to address these deficiencies to improve the custodians' performance. Petitioner was the designated weekend custodian when Mr. Westcott was hired. In February 2008, Dr. Holdnak discovered a problem with the amount of paid-time-off Petitioner received as a result of his weekend schedule. The problem was that if a holiday fell on a weekend, Petitioner would take the entire weekend off, resulting in a windfall of 37.5 hours in additional paid-time- off for Petitioner over other employees because his work hours on the weekends were longer. In order to correct the problem, in approximately March 2008, Petitioner was placed on a similar holiday pay schedule as all other employees. At the time, the then-director of the College's Department of Human Resources, Mosell Washington, who is an African American, explained the change to Petitioner. According to Mr. Washington, Petitioner was not happy about the change in his holiday pay schedule. Petitioner, however, does not blame Mr. Westcott for initiating the change. Because of the change in his holiday pay schedule, Petitioner was required to work or use leave time for the additional working hours during the Fourth of July weekend in 2008. Petitioner called and asked to speak with Mr. Westcott regarding the issue. During the phone call, Petitioner used profanity. After being cursed, Mr. Westcott hung up the phone and then advised Mr. Washington, who told Mr. Westcott to document the incident. The resulting written reprimand from Mr. Westcott to Petitioner was dated July 11, 2011, and was approved by Mr. Washington. When Mr. Washington presented Petitioner with the written reprimand, Petitioner refused to sign an acknowledgement of its receipt and abruptly left the meeting without any comment. Petitioner did not tell Mr. Washington that he believed he was being targeted or discriminated against because of his race. In addition to setting forth Mr. Westcott's version of what occurred, the written reprimand advised Petitioner that the College had a grievance procedure, and also stated: I have an open door policy and will gladly address any concerns you may have whether personal or job related. If you have a grievance, tell me, but in the proper manner and in the proper place. Petitioner did not take advantage of either the College's grievance procedure or Mr. Westcott's stated open door policy. The College maintains an anti-discrimination policy and grievance policy disseminated to employees. The College's procedure for employee grievances provides several levels of review, starting with an immediate supervisor, then to a grievance committee, and then up to the College's president. Under the College's anti-discrimination policy, discrimination and harassment based on race or other protected classes is prohibited. Employees who believe they are being discriminated against may report it to the Director of Human Resources. Likewise, harassment is prohibited and may be reported up the chain of command at any level. Petitioner acknowledged receipt of the College handbook and policies on August 17, 2007. In addition, both the College President, Dr. Kerley, and Vice President, John Mercer, maintain an ?open door? policy. After receiving the July 11, 2008, written reprimand, Petitioner spoke to both Dr. Kerley and Mr. Mercer, at least once, on July 15, 2008. Petitioner, however, did not tell them that he had been discriminated against because of his race. In fact, there is no credible evidence that a report of race discrimination was ever made regarding the July 11, 2008, written reprimand prior to Petitioner's termination. Petitioner, however, did not agree with the July 11, 2008 written reprimand. After speaking to Dr. Kerley and Mr. Mercer, Petitioner met with Jamie Long, the Caucasian who had earlier received a write-up from Mr. Westcott, for assistance in preparing a written response. The written response, dated August 4, 2008, and addressed to Mr. Washington, Mr. Westcott, and Mr. Mercer, stated: On July 25, 2008, I was called into Mosell Washington's office and was given a written letter of reprimand from John Westcott, the Campus Superintendent, which states that on July 3, 2008, I had used profanity in a phone conversation with him regarding my 4th of July work schedule. From the schedule that I received in February, from Mosell Washington, I believed I was off that weekend. I am writing this letter to dispute Mr. Westcott's version of our conversation and to protest the letter of written reprimand. Mr. Westcott says in the reprimand that I was insubordinate to him and had used profanity. I did not use profanity, and I do not believe that I was insubordinate in any manner to him during our brief conversation. I feel that my work record and my integrity speaks for itself. I have never been insubordinate, or been a problem to anyone until John Westcott, and had I known that I was supposed to be on the job that weekend, I would have been there. Mr. Washington, Mr. Westcott, and John Mercer all deny receiving the written response. In addition, contrary to the written response, at the final hearing, Petitioner admitted that he used profanity during the call and said ?ass? to Mr. Westcott. Moreover, the written response does not complain of race discrimination, and Dr. Kerley, Mr. Mercer, Dr. Holdnak, Mr. Washington, and Mr. Westcott all deny that they ever received a complaint of race discrimination regarding the incident. Evidence presented at the final hearing did not show that the written reprimand given to Petitioner dated July 11, 2008, was racially motivated, given in retaliation for Petitioner’s statutorily-protected expression or conduct, or that a similarly-situated non-African-American who used profanity to a supervisor would not be subject to such a reprimand. Mr. Westcott generally worked a more traditional Monday through Friday schedule and, because of Petitioner's weekend work schedule, had minimal contact with Petitioner. In fact, Mr. Westcott would not usually be on campus with Petitioner, except Fridays, and the two men rarely spoke until Petitioner's work schedule was changed in September 2008. During the weekends that he worked at the College, Petitioner was on-call and expected to return communications to his pager or mobile phone, even during his lunch breaks, regardless of his location. On Friday, August 22, 2008, after receiving a request from faculty member Rusty Garner, Petitioner’s supervisor Dan Doherty asked Petitioner to clean the music room floor. On Sunday afternoon, August 24, 2008, Mr. Mercer and Mr. Westcott were working when they received word from Mr. Garner that the music room floor had not been cleaned. After unsuccessful attempts to reach Petitioner by cell phone and pager, both Mr. Mercer and Mr. Westcott drove around the College campus to find him. They were unsuccessful. The reason Petitioner could not be reached was because he had left campus and had left his telephone and pager behind. According to Petitioner, he was on lunch break. Mr. Mercer and Mr. Westcott found another employee, Harold Brown, to help prepare the music room for Monday. Mr. Mercer was upset because he had to take time out from his own work to find someone to complete the job assigned to Petitioner. That same afternoon, Mr. Mercer reported the incident by e-mail to Mr. Washington and requested that appropriate action be taken. On August 27, 2008, Petitioner’s supervisor, Dan Doherty, issued a written reprimand to Petitioner for the August 24th incident. No evidence was presented indicating that the written reprimand was racially motivated, or that a similarly situated non-African-American who could not be located during his or her shift would not be subject to such a reprimand. In September 2008, Dr. Kerley unilaterally determined that no single employee should work his or her entire workweek in three days. He believed this schedule was unsafe, and not in the best interests of the college. He therefore directed Mr. Westcott and Mr. Mercer to implement a rotating schedule for the weekends. Mr. Westcott was not in favor of the change because it meant additional scheduling work for him to accommodate new rotating shifts. No credible evidence was presented that the schedule change was because of Petitioner’s race, or made in retaliation for Petitioner’s statutorily-protected expressions or actions. From August 27, 2008, through January 2009, there were no other disciplines issued to Petitioner or reported incidents between Petitioner and Mr. Westcott. In December, 2008, a group composed of most of the custodial employees, including Petitioner, conducted a meeting with the College's president, Dr. Kerley, and vice-president, Mr. Mercer. The group of custodians elected their new supervisor James Garcia, an Asian-Pacific Islander, as their spokesperson for the meeting. The custodians' primary purpose for the meeting was to address complaints regarding Mr. Westcott’s management style, his prior criminal conviction, and approach with employees. They felt that Mr. Westcott could not be pleased. Various concerns about Mr. Westcott expressed by the employees were condensed into three typed pages (collectively, ?Typed Document?) consisting of two pages compiled by Jamie Long and his wife Susan Long which contained 12 numbered paragraphs, and a third page with six unnumbered paragraphs. Mr. Garcia did not transmit the Typed Document to the president or vice- president prior to the meeting. Neither Jamie Long nor his wife attended the meeting. During the meeting, Mr. Garcia read several of the comments from the Typed Document and Dr. Kerley responded to each comment that was read. Mr. Garcia did not read through more than the first five of the 12 items listed on the Typed Document. The Typed Document was not reviewed by the president or vice-president and they did not retain a copy. Petitioner asserts the comment listed in paragraph 9 on the second page of the Typed Document constitutes a complaint or evidence of racial animus. Although not discussed at the meeting or reviewed by Dr. Kerley or Mr. Mercer, paragraph 9 states: During a recent candidate forum, Westcott used the term ?black ass? in regard to School Superintendent James McCallister. This was heard by at least two witnesses. Q. Are such racial slurs and inappropriate, unprofessional behavior condoned and acceptable? Mr. Westcott denies making the alleged statement referenced in paragraph 9 of the Typed Document. No evidence of other racial remarks allegedly made by Mr. Westcott was presented. There is no evidence that the College or its administration condoned the alleged statement. President Kerley, Vice President Mercer, and Mr. Washington all gave credible testimony that they were not made aware of the statement and that, if the statement in paragraph 9 of the Typed Document or any alleged racial discrimination by Mr. Westcott had been brought to their attention, immediate action would have been taken. As a result of custodial employees’ complaints about Mr. Westcott’s management style, Dr. Kerley and Mr. Mercer required Mr. Westcott to attend several sessions of management training. In addition, Dr. Kerley counseled Mr. Westcott against using harsh tactics and rough language that may be acceptable on a construction site, but were not appropriate on a College campus. On February 9, 2009, Mr. Westcott observed both Petitioner and a co-worker leaving their assigned buildings. He asked their supervisor, Mr. Garcia, to monitor their whereabouts because he thought that they appeared to not be doing their jobs. Mr. Westcott also told Mr. Garcia that, although the two workers may have had a legitimate reason for walking from their assigned buildings, he had not heard anything on the radio to indicate as much. The next day, on February 10, 2009, Mr. Garcia told Petitioner that Mr. Westcott had wanted to know where they had been headed when they left the building the day before. Petitioner responded by saying that if Mr. Westcott wanted to know where he was, Mr. Westcott could ask him (Petitioner). Later that day, Petitioner spoke to Mr. Washington on campus. Petitioner was very upset and said to Mr. Washington, ?What’s wrong with Westcott? He better leave me alone. He don’t know who he’s messing with.? Later that same afternoon, Petitioner had a confrontation with Mr. Westcott. According to a memorandum authored that same day by Mr. Westcott: I [John Westcott] had stopped outside the mailroom to talk with Beth Bennett. While talking with her I observed Derek [Petitioner] leave Student Union West. After seeing me, he returned to Student Union West and waited outside the door. Beth walked toward the Administration building and I headed through the breezeway. Derek approached me and said that he had heard that I wanted to ask him something. I asked him what he was talking about. He said that I wanted to ask him where he was going the evening before. I said ok, where were you going? Derek said that it was ?none of my f_ _ _ ing business.? I told him that since I was his supervisor, that it ?was? my business. At this time, he stepped closer to me in a threatening manner and said ?if you don’t stop f_ _ _ ing with me, I’m going to f_ _ _ you up.? I told him that if he would do his job, that he wouldn’t have to worry about me. He replied ?you heard what I said--- I’ll f_ _ _ you up?, as he walked back into SUW. I left the breezeway and went to John Mercer’s office to report the incident. Mr. Westcott’s testimony at the final hearing regarding the incident was consistent with his memorandum. While Petitioner’s version of the confrontation is different than Mr. Westcott’s, at the final hearing Petitioner admitted that Mr. Westcott had a legitimate question regarding his whereabouts and that he failed to answer the question. And, while he denied using the specific curse words that Mr. Westcott attributed to him, Petitioner testified that he told Mr. Westcott to leave him the ?hell? alone because he was doing his job. While there is no finding as to the exact words utilized by Petitioner to Mr. Westcott, it is found, based upon the testimonial and documentary evidence, that on the afternoon of February 9, 2009, Petitioner was confrontational towards Mr. Westcott, that Petitioner refused to answer a legitimate question from Mr. Westcott, that Petitioner demanded that Mr. Westcott leave him alone even though Mr. Westcott had a legitimate right to talk to Petitioner about his job, and that Petitioner used words that threatened physical violence if Mr. Westcott did not heed his warning. After Mr. Westcott reported the incident to Mr. Mercer, both Mr. Mercer and Mr. Westcott went to Dr. Kerley and advised him of the incident. Dr. Kerley believed the report of the incident and that Petitioner had threatened Mr. Westcott. Mr. Washington was then informed of the incident. After reviewing Petitioner’s employment history, including Petitioner’s recent attitude problems, as well as Mr. Washington’s own interaction the same day of the latest incident, Mr. Washington concluded that Petitioner should be terminated. Mr. Washington gave his recommendation that Petitioner be terminated to Dr. Kerley, who adopted the recommendation. The following day, February 11, 2009, Mr. Washington called Petitioner into his office and gave him a memorandum memorializing Petitioner’s termination from his employment with the College. The memorandum provided: This memorandum is written notification that because of a number of incidents which the administration of the college deems unprofessional, adversarial, and insubordinate, you are hereby terminated from employment at Gulf Coast Community College, effective immediately. At the time that he presented Petitioner with the memorandum, Mr. Washington provided Petitioner with the opportunity to respond. Petitioner told Mr. Washington, ?It is not over.? Petitioner did not state at the time, however, that he believed that his termination, change of schedule, or any disciplinary action taken against him were because of racial discrimination or in retaliation for his protected expression or conduct. Further, at the final hearing, Petitioner did not present evidence indicating that similarly-situated non-African- American employees would have been treated more favorably than was Petitioner for threatening a supervisor. Further, the evidence presented by Petitioner did not show that the decision to terminate him was based on race or in retaliation for protected expression or behavior, or that the facts behind the reason that Petitioner was fired were fabricated. Following his termination, Petitioner met with both Dr. Kerley and Mr. Mercer and apologized for acting wrongly. The empirical record evidence of discipline against College employees in the Maintenance Division during Mr. Westcott’s tenure does not demonstrate a tendency by Mr. Westcott or the College to discriminate against African- American employees. The majority of disciplines and the first discipline taken against Mr. Long by Mr. Westcott were administered to Caucasians. In total, Mr. Westcott only reprimanded five employees. Of these, three were Caucasian -- Mr. Long, Mr. Whitehead, and Mr. Doherty. Despite the fact that the majority of the custodians were African-American, only two African-Americans were disciplined -- Petitioner and Harold Brown. During Mr. Westcott’s employment, the only two employees who were terminated were Petitioner and a white employee, Mark Ruggieri. Excluding Petitioner, all African-American witnesses testified that Mr. Westcott treated them equally and not one, except for Petitioner, testified that they were treated differently because of their race. The testimony of Petitioner’s African-American co-workers is credited over Petitioner’s testimony of alleged discrimination. Harold Brown’s discipline was based upon the fact that he gave the College’s master keys to an outside third-party contractor. Although Mr. Brown disagreed with the level of punishment he received, in his testimony, he agreed that he had made a mistake. Mr. Brown further testified that he did not believe African-Americans were targeted. According to Mr. Brown, Mr. Westcott did not discriminate against him because of his race, and ?Westcott was an equal opportunist as far as his behavior? and ?seemed agitated towards everybody when he was in his moods.? Mr. Garcia was the lead custodian when Petitioner was terminated and is currently the College’s custodial department supervisor. While several employees told Mr. Garcia that they did not like Mr. Westcott’s management style, Mr. Garcia never heard a racist comment and testified that Mr. Westcott was strict and threatened the entire custodial and maintenance staff. Butch Whitehead believes that Mr. Westcott attempted to get him and his maintenance crew ?in trouble.? He had no personal knowledge of the manner in which Mr. Westcott treated Petitioner. Mr. Whitehead's testimony does not otherwise support a finding that Mr. Westcott was a racist or that the College discriminated against Petitioner because of his race. Tom Krampota, a Caucasian and longtime employee and former supervisor, agreed that Mr. Westcott was firm with all custodians and complained about everybody, but was not a racist. Lee Givens, an African-American, testified that his custodial work was monitored because Mr. Westcott took issue with dust and cleanliness, but that if he did his job Mr. Westcott did not bother him. Mr. Givens did not testify that he felt discriminated against because of his race, but rather stated that Mr. Westcott made the job hard for ?all the custodians.? Horace McClinton, an African-American custodian for the College, provided a credible assessment of Mr. Westcott in his testimony which summarized how Mr. Westcott treated all of his subordinates: There were certain things that he wanted us to do that we should have been doing already, and he was just there to enforce it . . . he did not think anybody was doing their job . . . . He was put there to make sure we were doing our job . . . . I don't think he was a racist. Mr. McClinton further testified that all Maintenance Division employees, including Caucasian supervisors, were afraid of Westcott because it was ?his way or the highway.? Latoya ?Red? McNair testified that he was being monitored like the other custodians but did not believe it was because of race. Just as Petitioner’s co-workers’ testimony does not support a finding that Mr. Westcott was a racist, Dan Doherty’s deposition testimony does not support a finding that Mr. Westcott’s actions against Petitioner were because of race. A review of Mr. Doherty’s deposition reflects that Mr. Doherty has no first-hand knowledge of actual discrimination. Mr. Doherty stated, ?I don't know? when asked how he knew Westcott was motivated by race. Nevertheless, according to Mr. Doherty, five African-Americans were singled out, including Petitioner, Mr. McClinton, Mr. Givens, Mr. McNair, and Mr. Brown. Two of these alleged ?victims? outright denied that Mr. Westcott treated them unfairly because of race. The others did not testify that they believed Mr. Westcott treated them differently because of race. Mr. Doherty testified that besides the five identified, the remaining African-Americans were not criticized or targeted. Mr. Doherty also conceded that it was possible that Mr. Westcott just did not like the five custodians. Further, despite the fact that Mr. Doherty was written up by Mr. Westcott more than any other employee, including Petitioner, Mr. Doherty never reported Mr. Westcott for discrimination and did not state in his exit interview from the College that Mr. Westcott was a racist or complain that race was an issue. Rather than supporting a finding that Mr. Westcott was motivated by race, Mr. Doherty’s testimony demonstrated that the problems he had with Mr. Westcott were similar with those pointed out by others—-namely, that Mr. Westcott had a prior criminal conviction, had a harsh management style, and closely scrutinized all workers. While Petitioner and Mr. Long contend that they raised the issue of discrimination with the College's management, the College's president, vice-president, director of human resources, former vice-president, and superintendent all deny receiving a report of discrimination or that any employment action was based on race or in retaliation. Mr. Long’s testimony that he complained of race is not substantiated because he did not witness any discrimination first hand. He also never documented his alleged concerns about racial discrimination prior to Petitioner's termination. In addition, in his testimony, Mr. Long admitted that he never heard Mr. Westcott use a racially discriminatory term. Likewise, Petitioner never documented alleged discrimination until after being terminated. Considering the evidence presented in this case, and the failure of Petitioner and Mr. Long to document alleged complaints when an opportunity was presented, it is found that the allegations of reported complaints of discrimination by Mr. Long and Petitioner are not credible. Further, the testimony from Petitioner’s co-workers and supervisors, which indicates that Mr. Westcott was harsh with all employees but not racially discriminatory, is credited. It is found that Petitioner did not show that any employment action by the College or Mr. Westcott against him was based on race. Rather, the evidence presented in this case demonstrates that Petitioner was not targeted or treated differently from any other employees based upon race. The evidence also failed to show that Petitioner was retaliated against because of his protected expression or conduct. In sum, the evidence did not show that Petitioner was subject to racial discrimination or wrongful retaliation, and Respondent proved that Petitioner was terminated for engaging in a pattern of unprofessional, adversarial, and insubordinate behavior, including a threat to his supervisor’s supervisor, John Westcott.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner’s Charge of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 6th day of December, 2011, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 6th day of December, 2011.
