01-003464 Julio Martinez vs. City Of Hialeah Gardens Status: Closed Recommended Order on Thursday, February 7, 2002.

Summary: Mayor terminated Parks Director either for failure to maintain parks adequately or lack of loyalty to Mayor and his programs, not for age discrimination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JULIO MARTINEZ, )

)

Petitioner, )

)

vs. ) Case No. 01 - 3464

)

CITY OF HIALEAH GARDENS, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Robert E. Meale, A dministrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in

Miami, Florida, on November 9, 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 Offices 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

ag ainst 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

Petiti oner due to age discrimination.

At the hearing, the parties agreed to incorporate the

evidentiary record of the hearing conducted the previous day in

Rolanda Boada v. City of Hialeah Gardens , DOAH Case No. 01 - 3463.

The evidentiary record in that case con sists of the testimony of

three witnesses called by Petitioner, four witnesses called by

Respondent, Petitioner Exhibits 1 - 3 and 5, and Respondent

Exhibits 1 - 21. In addition, Petitioner offered eight additional

exhibits: Petitioner Exhibits 6 - 13; Respond ent offered twelve

additional exhibits: Respondent Exhibits 22 - 33; Petitioner

called seven witnesses; and Respondent called four witnesses.

All of the exhibits were admitted.

The parties did not order a transcript.

FINDINGS OF FACT

1. Petitioner was born on June 26, 1943. He has served as

a city council member and mayor of Hialeah, which, during his

three - year term as mayor, had 230,000 residents and nearly 1,200

city employees. Petitioner has served on the Dade League of

Cities for seven or eight years , as well as the United States

League of Cities and a committee of the United States Department

of Housing and Urban Development. From October 1998 through

November 27, 2000, Petitioner served as Park Director of

Respondent, which is considerably less pop ulated than Hialeah.

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

of Respondent. Mayor de la Cruz had been employed by Respondent

during the administration of Mayors Oliveros, Fatima, and

Morejon. However, Mayor Morejon terminated the employme nt of

Mr. de la Cruz, as well as several other employees who had

served under Mayor Fatima.

3. 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.

4. At the same time, the people of Hialeah Gardens had

become dis satisfied 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.

5. Relations between Petitioner and Mr. Ruiz, who was the

Director of Administra tion for Respondent, were often strained.

Mr. Ruiz felt that Petitioner did not cooperate with him, but

instead forced Mr. Ruiz to perform Petitioner's job by following

through on parks projects until their completion.

6. At the same time, Mayor de la Cruz felt that the

condition of the parks was not improving. Mayor de la Cruz

believed that Petitioner was at fault in failing to execute the

Mayor's policies on maintaining and operating the parks.

7. There is considerable dispute between Petitioner and

his w itnesses and Respondent and its witnesses as to whether the

perceptions of Mayor de la Cruz and Mr. Ruiz were accurate

concerning the inadequacies of Petitioner's job performance.

For instance, Mayor de la Cruz testified to a long list of jobs,

such as th e erection of signage and repair of an air

conditioning unit, that went undone or were finished too slowly

under Petitioner. The Mayor also detailed dramatic improvement

in the condition of the parks after the termination of

Petitioner. On the other hand , Petitioner testified that

Respondent did not have the funds for certain jobs, such as

major drainage work, and that other work necessarily required a

long time to complete. Petitioner also detailed dramatic

deterioration in the condition of the parks af ter his

termination.

8. It is undisputed that Mayor de la Cruz fired Petitioner

in late November 2000, a few days after firing Petitioner's

Assistant Park Director, Rolanda Boada, for insubordination.

9. It is not seriously disputed that Mayor de la Cruz did

not fire Petitioner due to age discrimination. The Mayor claims

that he fired Petitioner due to poor job performance.

Petitioner claimed in a newspaper interview shortly after the

termination that his termination was due to politics. While

testifying, Petitioner repeated the same claim several times on

direct until he finally -- and unconvincingly -- recalled that his

age was also a reason for his termination.

10. Whether Mayor de la Cruz fired Petitioner due to the

Mayor's perception of poor job performan ce or insufficient

loyalty is irrelevant to this case because the evidence fails to

establish that the Mayor terminated Petitioner due to his age.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the subject matter. Se ction 120.57(1),

Florida Statutes.

12. Section 760.10(1)(a), Florida Statutes, prohibits

employment discrimination based on age.

13. 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. He either perceived that

Petitioner was not doing an adequate job in administering the

parks or that the Mayor needed a person more committed to the

Mayor and the implementation of his programs. Either way, the

Mayor did not fire Petitioner 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

Coral Gables, Florida 33134

J. Frost Walker, III

Law Offices of J. Frost Walker, III

100 West Sunrise Boulevard

Coral Gabl es, 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 Relations

325 John Knox Road

Bu ilding 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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this recommended order must be filed with the agency that

will issue the final order in this case.