01-003463 Rolanda Boada vs. City Of Hialeah Gardens Status: Closed Recommended Order on Thursday, February 7, 2002.

Summary: Mayor fired Assistant Parks Director for insubordination, not age.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROLANDA BOADA, )

)

Petitioner, )

)

vs. ) Case No. 01 - 3463

)

CITY OF HIALEAH GARDENS, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Robert E. Meale, Ad ministrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in

Miami, Florida, on October 3, 2001.

APPEARANCES

For Petitioner: Gary A. Costales

Law Office of Gary A. Costales, P.A.

2151 LeJeune Road, Suite 200

Coral Gables, Florida 33134

For Respondent: J. Frost Walker, III

Law Office of J. Frost Walker, III

100 West Sunrise Avenue

Coral Gables, Florida 33133

STATEMENT OF THE ISSUE

The issue is whether Respondent is guilty of discriminating

again st Petitioner in employment based on his age, in violation

of Section 760.10(1)(a), Florida Statutes.

PRELIMINARY STATEMENT

By Petitioners' Request for Administrative Hearing filed

August 24, 2001, Petitioner alleged that Respondent terminated

Petitione r due to age discrimination.

At the hearing, Petitioner called three witnesses and

offered into evidence four exhibits: Petitioner Exhibits 1 - 3

and 5. Respondent called four witnesses and offered into

evidence 21 exhibits: Respondent Exhibits 1 - 21. All exhibits

were admitted.

The parties did not order a transcript.

FINDINGS OF FACT

1. 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 Novem ber 2000.

2. 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.

3. On July 18, 2000, Yioset de la Cruz was elected Mayor

of Respondent. Mayor d e 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.

4. Run ning 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 t he fiscal year and the cancellation of

Respondent's insurance by The Florida League of Cities.

5. 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 refl ection 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.

6. 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.

7. 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.

8. The evidence in this case is clear that Mayor de la

Cruz fired Petitioner due to his insubordination, not due to his

age.

CONCLUSIONS OF LAW

9. The Di vision of Administrative Hearings has

jurisdiction over the subject matter. Section 120.57(1),

Florida Statutes.

10. Section 760.10(1)(a), Florida Statute, prohibits

employment discrimination based on age.

11. Petitioner has failed to prove that he lost his job

due to discrimination based on Petitioner's age. Mayor de la

Cruz was trying to regain the confidence of the public in the

administration of the city's parks, and he reasonably required

the cooperation of the city parks employees in this effort.

Petitioner's ill - tempered display reasonably demonstrated to the

Mayor that he could not rely on Petitioner's cooperation in this

effort. Without delay, the Mayor fired Petitioner for

insubordination and did so with ample cause.

12. Respondent's request for attorneys' fees and costs is

denied.

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 FURNIS HED:

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, E xecutive 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, Flor ida 32303 - 4149

Violet D. Crawford, Agency Clerk

Florida Commission on Human Relations

325 John Knox Road

Building F, Suite 240

Tallahassee, Florida 32303 - 4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exception s within

15 days from the date of this recommended order. Any exceptions

to this recommended order must be filed with the agency that

will issue the final order in this case.