01-003465 Juan Elso vs. City Of Hialeah Gardens Status: Closed Recommended Order on Thursday, January 3, 2002.

Summary: Evidence is insufficient to prove age-based discrimination. Accordingly, petition should be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JUAN ELSO, )

)

Petitioner, )

)

vs. ) Case No. 01 - 3465

)

CITY OF HIALEAH GARDENS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final h earing was conducted in this

case on November 16, 2001, by video teleconference at sites in

Miami and Tallahassee, Florida, before Administrative Law Judge

Michael M. Parrish of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ga ry A. Costales, Esquire

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

2151 Le Jeune Road, Suite 200

Coral Gables, Florida 33134

For Respondent: J. Frost Walker, III, Esquire

Law offices of Charles A. Citrin

100 West Sunrise Avenue

Coral Gables, Florida 33133

STATEMENT OF THE ISSUE

The issue in this case is whether the Respondent

discriminated against the Petitioner on the ba sis of age for the

reasons stated in the Charge of Discrimination and Petition for

Relief in violation of Section 760.10(1), Florida Statutes.

PRELIMINARY STATEMENT

On or about February 5, 2001, the Petitioner executed a

Charge of Discrimination against t he Respondent. The charge was

filed with the United States Equal Employment Opportunity

Commission (EEOC) on or about February 12, 2001. In his Charge

of Discrimination, the Petitioner asserted that he had been

subjected to "age discrimination" when the Respondent's Mayor

"demoted me from the position of Maintenance Supervisor in

October 2000 and replaced me with Nivaldo Rodriguez, who is in

his twenties." On July 26, 2001, the EEOC issued a "Dismissal

and Notice of Rights," in which it stated, in pertin ent part:

"Based upon its investigation, the EEOC is unable to conclude

that the information obtained establishes violations of the

statutes." On August 24, 2001, the Petitioner filed a Petition

for Relief with the Florida Commission on Human Relations

( FCHR). The Petition for Relief asserted that the Petitioner in

this case had been subjected to age discrimination. The

Petition for Relief also asserted age discrimination claims on

behalf of two other petitioners who were former employees of the

Respond ent. 1

At the final hearing in this case, the Petitioner testified

on his own behalf and also presented the testimony of three

additional witnesses. The Petitioner also offered one exhibit,

which was received in evidence. The Respondent presented the

test imony of two witnesses and offered eleven exhibits, all of

which were received in evidence.

At the conclusion of the hearing, neither party wished to

order a transcript. The parties were allowed ten days from the

date of the hearing within which to file t heir proposed

recommended orders. Thereafter both parties filed timely

Proposed Recommended Orders. The parties' proposals have been

carefully considered during the preparation of this Recommended

Order.

FINDINGS OF FACT

1. The Petitioner was born in 1 953. At the time of the

events which form the basis for his claim, he was more than

forty years old. The Petitioner was born in Cuba and spent most

of his life in Cuba. The Petitioner came to the United States

of America approximately two years before t he events which form

the basis for his claim. The Petitioner speaks fluent Spanish,

but does not speak English.

2. In October of 1999, the Petitioner was hired by the

City of Hialeah Gardens as a laborer in the Parks Department at

a pay rate of $6.50 per hour. The Petitioner is still employed

by the City of Hialeah Gardens as a laborer in the Parks

Department at a pay rate of $6.50 per hour. The Petitioner's

pay rate has never been changed during his employment with the

City of Hialeah Gardens.

3. Duri ng his employment with the City of Hialeah Gardens,

the Petitioner has never held either the position of

"Maintenance Supervisor" or the position of "Assistant Parks

Director." During his employment with the City of Hialeah

Gardens, the Petitioner has nev er been demoted from either the

position of "Maintenance Supervisor" or the position of

"Assistant Parks Director."

4. The Mayor of the City of Hialeah Gardens has the sole

authority and responsibility to make employment decisions. The

Mayor appointed Ni valdo Rodriguez (Rodriguez) to the position of

Assistant Parks Director. At the time of the appointment,

Rodriguez was in his late twenties. At the time of the

appointment, Rodriguez spoke fluent English and Spanish. At the

time of the appointment, Rodr iguez was a friend of the Mayor and

the Mayor was aware of his qualifications for the position. The

Mayor appointed Rodriguez to the position of "Assistant Parks

Director" because he thought he was qualified for the position.

The Mayor also thought that the Petitioner was not qualified for

the position because, among other things, the Petitioner did not

speak English. It is necessary to be able to speak English in

order to fulfill all of the duties of the position of "Assistant

Parks Director."

5. The M ayor had credible non - discriminatory reasons to

appoint Rodriguez as "Assistant Park Director," and not to

appoint the Petitioner to that position. There is no credible

evidence that the Mayor's reasons for appointing Rodriguez were

pretextual. Age was n ot a factor in the decision to appoint

Rodriguez rather than the Petitioner.

6. The evidence regarding the Respondent's hiring and

termination practices does not establish any pattern of age

based discrimination.

CONCLUSIONS OF LAW

7. The Division of Adm inistrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. Section 120.57(1), Florida Statutes.

8. The basic legal principles applicable to a case of this

nature were described as follows in Donald R. v. Seminole

Community College , DOAH Case No. 99 - 2483 (Final Order issued

September 17, 1999):

12. Section 760.10(1), in relevant part,

makes it an unlawful employment practice for

Respondent to discriminate against

Petitioner because of Petitioner's age.

Chapte r 760, entitled the Florida Human

Relations Act (the "Act"), adopts the legal

principles and judicial precedent set forth

under Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C., Section 2000e

et seq. (the "ADA").

13. The law affords no p rotection from

discrimination unless Respondent engages in

an adverse employment action. Morisky v.

Broward County , 80 F.3d 445 (11th Cir.

1996); Bristow v. Daily Press , 770 F2d 1251

(4th Cir. 1985). Respondent engaged in an

adverse employment action whe n Respondent

did not hire Petitioner for either of the

positions for which Petitioner applied. The

remaining issue is whether Respondent

engaged in the adverse employment action

because of Petitioner's age.

14. Petitioner submitted no direct

evidence o f age discrimination. In the

absence of such evidence, Petitioner must

provide sufficient inferential evidence of

age discrimination. Texas Department of

Community Affairs v. Burdine , 450 U.S. 248

(1981); McDonnell Douglas v. Green , 411 U.S.

792 (1973).

14. [sic] The initial burden of proof is

on Petitioner. Florida Department of

Transportation v. J.W.C. Company, Inc. , 396

So. 2d 778 (Fla. 1st DCA 1981); Balino v.

Department of Health and Rehabilitative

Services , 348 So. 2d 349 (Fla. 1st DCA

1977). P etitioner must satisfy its burden

of proof by a preponderance of the evidence.

Section 120.57(1)(g).

15. Petitioner must establish a prima

facie case of discrimination. Rosenbaum v.

Southern Manatee Fire and Rescue District ,

980 F.Supp 1469 (M.D. Fla. 1997); Andrade v.

Morse Operations, Inc. , 946 F.Supp 979, 984

(M.D. 1996). Petitioner must show by a

preponderance of evidence that: he is a

member of protected class; he suffered an

adverse employment action; he received

disparate treatment from other similarly

situated individuals in a non - protected

class; and that there is sufficient evidence

of bias to infer a causal connection between

his age and the disparate treatment. Id.

Failure to establish the last prong of the

conjunctive test is fatal to a claim of

discrimination. Mayfield v. Patterson Pump

Company , 101 F.3d 1371 (11th Cir. 1996);

Earley v. Champion International Corp. , 907

F.2d 1077 (11th Cir. 1990).

16. Petitioner made a prima facie showing

that he is a member of a protected class and

that he suffered an adverse employment

action. However, Petitioner failed to make

a prima facie showing that he received

dissimilar treatment from individuals in a

non - protected class; that there was any bias

against Petitioner; or that, even if

evidence of bias did exist, it was

sufficient to infer a causal connection

between Petitioner's age and the alleged

disparate treatment. (Emphasis in

original.)

9. Application of the foregoing legal principles to the

facts in this case leads to the conclusion t hat this case should

be dismissed because of the absence of any persuasive evidence

of any age - based discrimination against the Petitioner. To the

extent that the Petitioner's claim for relief is based on an

assertion that he was improperly demoted, the c laim fails,

because the evidence clearly shows that the Petitioner was never

promoted to any position other than his initial position as a

laborer. To the extent that the Petitioner's claim for relief

is based on an assertion that the promotion of Rodrigu ez, rather

than the Petitioner, was based on age discrimination, the claim

fails because there were legitimate non - discriminatory reasons

for promoting Rodriguez, and there is no persuasive evidence of

any age - based discrimination.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of

law, it is RECOMMENDED that the Florida Commission on Human

Relations issue a final order dismissing the petition in this

case and denying all relief sought by the Petitioner.

DONE AND ENTERED this 3rd day of January, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

MICHAEL M. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 48 8 - 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 3rd day of January, 2002.

ENDNOTE

1/ The claims of the other two petitioners were docketed as

separate cases a t the Division of Administrative Hearings; Boada

v. City of Hialeah Gardens , DOAH Case No. 01 - 3463, and Martinez

v. City of Hialeah Gardens , DOAH Case No. 01 - 3464. Hearings were

previously held in the Boada and Martinez cases before

Administrative Law Jud ge Robert Meale.

COPIES FURNISHED:

J. Frost Walker, III, Esquire

Law offices of Charles A. Citrin

100 West Sunrise Avenue

Coral Gables, Florida 33133

Charles A. Citrin, Esquire

City of Hialeah Gardens

10001 Northwest 87th Avenue

Hialeah Gardens, Flori da 33016

Gary A. Costales, Esquire

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

2151 Le Jeune Road, Suite 200

Coral Gables, Florida 33134

Cecil Howard, General Counsel

Florida Commission on Human Relations

325 John Knox Road

Building F, Suite 240

Tallahassee, Florida 32303 - 4149

Denise 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 excepti ons within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.