01-003838 Timothy Henault vs. City Of Pinellas Park Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Friday, January 28, 2005.

Summary: Employment termination was not retaliation for sexual harassment complaint made by Petitioner.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TIMOTHY HENAULT, )

)

Petitioner, )

)

vs. ) Case No. 01 - 3838

)

CITY OF PINELL AS PARK, )

)

Respondent. )

__________________________)

RECOMMENDED ORDER

On February 5 and 6, 2002, a formal administrative

hearing in this case was held in St. Petersburg, Florida,

before William F. Quattlebau m, Administrative Law Judge,

Division of Administrative Hearings.

APPEARANCES

For Petitioner: J. Robert McCormack, Esquire

Persante & McCormack, P.A.

2555 Enterprise Road, Unit 15

Clearwater, Florid a 33763

For Respondent: Deborah S. Crumbley, Esquire

Thompson, Sizemore & Gonzalez, P.A.

109 North Brush Street, Suite 200

Tampa, Florida 33602

STATEMENT OF THE ISSUE

The issue in the case is whe ther the Respondent’s

suspension and eventual termination of the Petitioner from

employment were in retaliation for complaints of sexual

harassment made by the Petitioner against a co - worker.

PRELIMINARY STATEMENT

Timothy Henault (Petitioner) filed a compl aint of

retaliation by the City of Pinellas Park (Respondent) with the

Human Relations Division of the City of St. Petersburg, which

conducted an investigation and then forwarded the matter to

the Division of Administrative Hearings for formal hearing.

D uring the formal hearing, the Petitioner testified on

his own behalf, presented the testimony of two witnesses, and

had Exhibits numbered 1, 5 - 7, 10, 12 - 13, 15, and 19 - 20

admitted into evidence. The Respondent presented the

testimony of seven witnesses an d had Exhibits numbered 1 - 7,

7A, 9 - 12, 14 - 19, 21 - 22, and 24 admitted into evidence. One

Joint Exhibit was also admitted into evidence.

A Transcript of the hearing was filed on March 11, 2002.

Both parties filed Proposed Recommended Orders, which were

c onsidered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner began employment with the Respondent

in October 1990 as an Automotive Service Worker in the

maintenance department. At various times during his

employment, ther e were between nine and eleven employees in

the maintenance department. The Petitioner's responsibilities

included mechanical work on the Respondent's police vehicles.

2. At all times material to this case, the Petitioner's

immediate supervisor was Ch ris Marinari. Ben Lacy, the

Maintenance Division Director, supervised Mr. Marinari.

3. At all times material to this case, Benjamin Lanahan

was employed in the maintenance department and worked at the

same facility as the Petitioner.

4. Mr. Lanahan occa sionally exhibited inappropriate

behavior around the mechanic's shop, including exposing his

sexual organs to co - workers and grabbing at their groins or

buttocks. Mr. Lanahan exhibited such behavior in the presence

of, and towards, the Petitioner.

5. T he Petitioner was offended by the behavior and on

several occasions told Mr. Marinari of his objection to the

behavior. Mr. Marinari apparently regarded the conduct as

mutual "horseplay" and although he may have verbally

instructed Mr. Lanahan to refrain from the behavior, he took

no official action on Petitioner’s verbal complaints.

6. The Petitioner received periodic evaluations

throughout his employment. The Petitioner did not note his

concern about Mr. Lanahan's behavior in the employee comment

secti on of the evaluation form, but noted his apparent

increasing satisfaction with the workplace.

7. On April 15, 1992, the Petitioner was promoted to

Auto Mechanic I. On December 8, 1993, the Petitioner was

promoted to Auto Mechanic II.

8. There is no evidence that the Petitioner filed any

written complaints with his employer regarding Mr. Lanahan's

behavior prior to his termination from employment.

9. In May 1995, the Petitioner apparently became

dissatisfied with Mr. Marinari’s response to his compla ints

about Mr. Lanahan’s behavior and took his complaint to

Mr. Lacy.

10. The Petitioner asserts that Mr. Lacy threatened to

terminate his employment if he "made waves." Mr. Lacy denies

that he threatened the Petitioner's employment.

11. The Respo ndent's sexual harassment policy authorizes

an employee to contact the Director of Human Resources if an

employee believes that a supervisor has not adequately

addressed a complaint. The Petitioner received a copy of the

policy as set forth in the personn el rules.

12. The Petitioner did not report the alleged threat by

Mr. Lacy until 1996, when Mr. Lacy recommended to the City

Manager that the Petitioner's employment be terminated for the

reasons addressed herein. The greater weight of the evidence

fa ils to establish that Mr. Lacy made the alleged threat to

terminate the Petitioner's employment based on the complaint

of harassment.

13. Mr. Lacy investigated the Petitioner’s complaint

and, determining it to be valid, issued a written disciplinary

rep ort against Mr. Lanahan in June 1995.

14. Mr. Lacy and the Respondent’s Director of Human

Resources recommended to the city manager that Mr. Lanahan’s

employment should be terminated. The city manager did not

accept the recommendation, and instead susp ended Mr. Lanahan

for two weeks without pay and required him to go to

counseling.

15. The Respondent also offered counseling to employees

at the facility who had been subjected to Mr. Lanahan’s

behavior.

16. In August 1995, the Petitioner realized tha t, when

attempting to cash a check, his driver's license had expired.

He advised Mr. Marinari, who told him to take emergency

vacation time to renew his license. The Petitioner renewed

his license.

17. Driving a city vehicle without a valid license is a

"Group II" violation of the Respondent's personnel rules, and

warrants a seven - day suspension without pay. The Petitioner

received the suspension. He did not file a grievance at that

time.

18. The Petitioner eventually learned that some city

governme nt employees who worked in other departments and were

found to be driving with invalid licenses apparently received

lesser penalties for the infraction.

19. The Petitioner then filed a grievance regarding his

suspension, but the filing deadline had passe d and it was

dismissed. The Petitioner’s grievance did not raise the

alleged threat by Mr. Lacy to terminate his employment for

complaining about Mr. Lanahan.

20. There is no evidence that the Petitioner's

supervisors were aware of what other superviso rs were doing at

the time they suspended the Petitioner for driving without a

valid driver's license. There is no evidence that the

Petitioner’s suspension was related in any way to his

complaint regarding Mr. Lanahan’s behavior.

21. The Petitioner sugge sts that the Respondent, which

maintained a database of relevant information in order to

remind employees of license expiration dates, inaccurately

informed him that his license was valid when it had expired.

The evidence establishes that the Petitioner p rovided the

inaccurate database information to the Respondent. There is

no evidence that the Respondent knew or should have known that

the Petitioner's license had expired.

22. In September 1995, the Petitioner asked to be placed

on "flextime" so that he could leave work early in the

afternoon and pick up a child from school. Initially his

request was denied because there were already two other

employees working flextime, and the supervisor was concerned

about the small shop not being fully staffed at normal hours.

Within a few days, one of the other employees was returned to

a regular work schedule and arrangements were made to allow

the Petitioner to work a flexible schedule from 6:30 a.m. to

3:00 p.m.

23. At the time the flextime request was approv ed, the

Petitioner was advised that because he would start his workday

an hour before the maintenance shop was otherwise staffed or

supervised, it was necessary that he remain on task in order

to complete work assignments.

24. At some point around this time, the Petitioner found

a piece of city equipment (an “A/C leak detector”) under the

seat of his truck. He complained to Mr. Marinari, who

questioned the Petitioner’s co - workers but was unable to

determine how the equipment came to be in the Petitioner ’s

truck. There was no disciplinary consequence to the incident.

25. During the time the Petitioner worked a flex

schedule, the building maintenance supervisor also arrived for

work at about 6:30 a.m. The building manager became aware

that the Petition er and the other co - worker on flextime would

routinely leave the shop in a city vehicle shortly after

arriving and “punching the clock” at 6:30 a.m.

26. The building manager reported the practice to

Mr. Marinari, who in turn told Mr. Lacy.

27. On Janu ary 12, 1996, Mr. Marinari and Mr. Lacy

arrived at the shop early enough to precede the Petitioner,

and waited to see what would happen. The supervisors observed

the Petitioner and the other co - worker arrive at about 6:30

a.m., clock in, almost immediatel y leave in a city vehicle,

and then return with food at about 7:00 a.m. and eat

breakfast.

28. While the Petitioner and the co - worker went to get

breakfast, the maintenance shop was unattended and unsecured.

29. Prior to January 12, 1996, the supervi sors were

unaware that the flextime employees were taking a city vehicle

to get breakfast while being "punched in" on the time clock.

30. The Petitioner asserts that leaving work in a city

vehicle for breakfast was a common practice. The evidence

fails t o support the assertion.

31. The supervisors confronted the employees at the time

the practice was discovered.

32. Both employees were subsequently disciplined for the

incident. The co - worker was suspended for a period of seven

days without pay.

3 3. Because the Petitioner had committed two "Group II"

offenses within an eighteen - month period, Mr. Lacy recommended

to the City Manager that the Petitioner's employment be

terminated. The City Manager declined to follow the

recommendation and instead s uspended the Petitioner for a

period of thirty days without pay.

34. During the thirty - day suspension period, Mr.

Marinari learned that the Petitioner had a statue in his

backyard that was presumed to be city property. The source of

Mr. Marinari's inform ation is unclear.

35. Mr. Marinari advised Mr. Lacy of the matter. Mr.

Lacy investigated the report by driving by the Petitioner's

house with the director of the city parks department, where

they determined that the statue was similar to one kept at a

city storage area. The matter was referred to the city police

department.

36. After investigation, a police investigator

determined that the statue was city property. The

investigator attempted to discuss the matter with the

Petitioner, who suggested other city employees had placed it

there at some earlier time.

37. The Petitioner declined to identify the individuals

he believed were responsible, and asserted that the whole

incident was a conspiracy by people trying to "get him." The

evidence fails to establish that other city employees placed

the statue in the Petitioner's backyard.

38. The statue was in the Petitioner’s possession for an

undetermined period of time. There is no evidence to suggest

that someone involved in a “conspiracy” to hav e the

Petitioner’s employment terminated placed the statue in his

yard.

39. There is no evidence that the Petitioner reported to

law enforcement officials the initial appearance of the statue

in his yard. There is no evidence that the Petitioner

attem pted to identify or return the statue to the owner.

40. The Petitioner asserts that the police investigator

suggested that the Petitioner should resign to avoid

prosecution for possession of stolen city property. The

investigator denies the assertion. The greater weight of the

evidence fails to support the assertion.

41. Misuse of city property is a "Group III" offense,

and pursuant to the personnel rules, is punishable by

termination of employment. The supervisor recommended

termination to the cit y manager. The Petitioner was suspended

for five days pending an administrative hearing. Subsequent

to the hearing, the city manager accepted the recommendation

and terminated the Petitioner's employment effective

February 6, 1996.

42. There is no c redible evidence that the termination

of the Petitioner’s employment was a result of his complaints

about Mr. Lanahan’s behavior.

CONCLUSIONS OF LAW

43. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding.

44. This case was filed pursuant to Title VII of the

Civil Rights Act of 1964 as amended (42 U.S.C. 2000, et.

sec. ), Pinellas County Code Chapter 70, and an Interlocal

Agreement between Pinellas County and the City of Pinellas

Park.

45. In this case, the Petitioner asserts that

disciplinary actions taken by the Respondent against him are

in retaliation for his complaints about a co - worker’s

inappropriate workplace behavior.

46. The standard of proof in an alleged case of

retaliation depends on the nature of the evidence. Where

there is direct evidence of retaliation against an employee

for participation in activities sanctioned by law or based on

a complaint regarding prohibited practices, the Petitioner

must prove by a preponderance of that evidence that his

activities were a significant factor in the termination

decision by the company.

47. Where, as is the case here, there is no direct

evidence, the Petitioner must establish a prima facie case for

retaliation under the shifting burden analysis set forth in

McDonnell Douglas Corp. v. Green , 411 U.S. 792, (1973) and

Texas Department of Community Affairs v. Burdine , 450 U.S.

248, (1981).

48. In order to establish a prima facie case of

retaliation, the Petitioner must prove (1) that he was engaged

in a protected activity; (2) that an adverse participation and

the protected activity and the adverse employment action

occurred; and (3) that there was a causal connection between

his participation and the protected activity and the advers e

employment action. Tipton v. Canadian Imperial Bank , 872 F.2d

1491 (11th Cir. 1989); Simmons v. Camden County Board of

Education , 757 F.2d 1187 (11th Cir. 1985).

49. If a prima facie case of retaliation is established,

the Respondent must articulate a valid, non - discriminatory

reason for its decision to terminate the Petitioner. If the

Respondent is able to do so, the burden of proof shifts back

to the Petitioner, to show that the Respondent’s articulated

non - discriminatory reason is "pretextual" and to sustain his

ultimate burden of persuasion of retaliatory intent.

50. In this case, the evidence fails to establish a

prima facie case of retaliation by the Respondent against the

Petitioner. There is no credible evidence that the

Petitioner’s termina tion was causally related to his

complaints. The mere sequence of events is insufficient to

establish a prima facie case of retaliation.

51. Even assuming that such causal relation had been

established, the Respondent has articulated valid reasons for

termination of the Petitioner’s employment. The incidents set

forth herein are sufficient to warrant the disciplinary

actions of which the Petitioner now complains.

52. As to the termination, the Petitioner’s refusal to

provide information to the polic e investigator regarding the

manner in which the city statue came in his possession

warranted termination. There is no credible evidence that the

termination of employment was related in any manner to the

Petitioner’s complaints about Mr. Lanahan’s behavi or.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Human Relations Division, City

of St. Petersburg, enter a final order dismissing the complaint

of employment retaliation filed by Timothy Hen ault against the

City of Pinellas Park.

DONE AND ENTERED this 1st day of May, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Bui lding

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 1st day of May, 2002.

COPIES FURNISHED:

J . Robert McCormack, Esquire

Persante & McCormack, P.A.

2555 Enterprise Road, Unit 15

Clearwater, Florida 33763

Deborah S. Crumbley, Esquire

Thompson, Sizemore & Gonzalez, P.A.

109 North Brush Street, Suite 200

Tampa, Florida 33602

William C. Falkner, E squire

Pinellas County Attorney's Office

315 Court Street

Clearwater, Florida 33756

Stephanie N. Rugg

City of St. Petersburg

175 Fifth Street, North

St. Petersburg, Florida 33701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to sub mit written exceptions 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.