02-001902 Norris L. Fails vs. City Of Clermont Status: Closed Recommended Order on Friday, October 11, 2002.

Summary: City showed a legitimate non-discriminatory reason for the Petitioner`s discharge. The Petitioner was unable to show it was pretextual.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NORRIS L. FAILS, )

)

Petitioner, )

)

vs. ) Case No. 02 - 1902

)

CITY OF CLERMONT, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held purs uant to notice in the above -

styled case by Stephen F. Dean, assigned Administrative Law

Judge of the Division of Administrative Hearings, on July 16,

2002, in Tavares, Florida.

APPEARANCES

For Petitioner: Norris L. Fails, pro se

810 Orange Brook e Court

Clermont, Florida 34711

For Respondent: Robert D. Guthrie, Jr., Esquire

City of Clermont

Post Office Box 3026

Orlando, Florida 32802

STATEMENT OF THE ISSUE

Whether Respondent’s dismissal of Petitioner was an

unlawful empl oyment practice.

PRELIMINARY STATEMENT

This case arose when the Petitioner filed a claim of

employment discrimination with the Florida Commission on Human

Relations. The Petitioner was notified after more than 180 days

of his right to withdraw his Peti tion and file a Petition for

Relief to proceed with an administrative hearing as provided for

under Section 760.11(4)(b) and (8), Florida Statutes.

Thereafter, the case file and original complaint were forwarded

by the Commission to the Division of Admini strative Hearings by

letter dated May 7, 2002.

Upon receipt of the file, an Initial Order was issued

requesting information upon which to set the case for hearing.

When no response was received from the parties, the matter was

set for hearing on June 28, 2002, in Tallahassee, Florida.

Thereafter, a Motion for Continuance was received from

Respondent’s counsel asking that the matter be rescheduled

because of a conflict and asking for a change in venue. The

Motion was granted and the case reset for July 16 , 2002, in

Tavares, Florida. The case was heard as re - noticed.

At hearing, the Petitioner testified in his own behalf and

introduced no exhibits. The Respondent presented the testimony

of its Chief of Police, Randall A. Story, and introduced

Respondent’s Exhibits numbered 1 through 10 into evidence, with

Exhibits numbered 1, 2, and 3 to be filed late.

The Respondent filed proposed findings that were read and

considered.

FINDINGS OF FACT

1. The Petitioner, Norris L. Fails, is an African American

and was employed by the City as a police officer for seven and

one - half years.

2. The Respondent, City of Clermont (City), is a Florida

municipal corporation and operates a police department which

employed Fails as a police officer. Fails was terminated by the

City in December 2000.

3. Fails asserts that the City terminated him because of

his race. The City disputes this allegation.

4. The City asserts that Fails was terminated for

violation of City Personnel Policies and Standards Governing

Police O fficers for violating the rule prohibiting police

officers from associating with "undesirables, including

convicted felons."

5. The Respondent presented evidence that the Petitioner

had been counseled regarding associating with convicted felon,

Latisha Rhodes, on three separate occasions, twice in July 2000,

and once in November 2000. Petitioner acknowledged the

association and his discipline.

6. The Respondent presented evidence that the Petitioner

was in a car stopped by Officer Mathis of Groveland Police

Department in December of 2000. The driver of the car in which

Petitioner was riding, Christopher Taylor, was the subject of a

“be on the lookout for” notice. Christopher Taylor was stopped

because of his erratic driving and arrested that evening for

driving under the influence. He subsequently plead guilty to

the offense. The Petitioner identified Taylor to the arresting

officer, who recognized the Petitioner as a Clermont police

officer, when Taylor was not forthcoming with appropriate

identifi cation. The car Taylor was driving belonged to Latisha

Rhodes.

7. Petitioner testified regarding his employment and

discharge. Petitioner did not deny that he was in the car with

Taylor. He denied knowledge of the “be on the lookout for”

notice. He a sserted that he had been treated differently than a

white officer who had done similar things.

8. The City offered the testimony of Police Chief

Randall A. Story. Shift command sergeants regularly remind

patrol officers and investigators to che ck the bulletin board

for persons wanted by city and other police agencies. The

notice on Christopher Taylor was posted from mid - October 2000,

until after the date of Fails termination. The notice on Taylor

contained a picture of Taylor and was attached to a bright

orange business card of State Wildlife Officer Bouchard who had

requested officers be on the look out for Taylor.

9. It is not credible that the Petitioner would not have

been aware of this notice. The Petitioner should have exercised

excepti onal discretion when he became aware Taylor was driving

Rhodes’ car, having been warned about associating with Rhodes.

10. The Respondent documented that the only white officer

accused of associating with undesirables was Brian Connolly, and

he had been terminated. See Respondent’s Exhibit 4.

11. The Petitioner presented testimony that other white

officers were not terminated for their misconduct.

12. The Petitioner alleged that Officer Robbins, a white

male, had associated with a convicted felon, J erry Jones.

However, the Chief of Police denied knowing about this alleged

association and no evidence was presented that the Department

was aware of their association.

13. The Petitioner alleged that Officer Saunders, a white

female, had abused her posi tion as a police officer in an

incident in Sanford, Florida. This incident was investigated

and it was determined that Saunders’ husband, a former Leesburg

policemen, had caused the problem. The Respondent had no basis

to discipline Officer Saunders.

14 . The Petitioner alleged that Officer Jerry Osteen, a

white male, had improperly touched a woman while on duty. The

Respondent had investigated the allegations and suspended

Officer Osteen.

15. The Petitioner alleged that Respondent had wrongfully

termi nated Geraldine Young, an African American female. The

Respondent terminated Young for uttering two forged instruments.

16. The Respondent had good cause for terminating the

Petitioner. The Petitioner did not show credible evidence that

Petitioner’s gr ounds for discharge were other than for the

reasons stated.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction over the subject matter and parties in this case.

18. The Petitioner alleges that his discharge was

inconsistent from the discipline imposed upon white police

officers and that his discharge was racially motivated. Section

760.10, Florida Statutes, prohibits discrimination on the basis

of race in employment practices.

19. The Petitioner has the burden of proof in t his case to

show that he was discriminated against on the basis of race.

To establish a prima facie case of unlawful discrimination, the

Petitioner must show that (1) he is a member of a protected

class and (2) suffered an adverse employment action. See

McDonnell Douglas v. Green , 411 U.S. 792 93 S.Ct. 1817 (1973);

St. Mary's Honor Center v. Hicks , 509 U.S. 502, 113 S.Ct. 2742

(1993). In the case at bar, it is clear that the Petitioner was

a member of a protected class (African American) and that he

suf fered an adverse employment action.

20. The Respondent presented evidence that showed that the

Petitioner had been reprimanded for associating with an

undesirable person, Latiesha Rhodes. After multiple reprimands,

the Petitioner was in Latiesha Rhodes’ car while it was being

driven by Christopher Taylor, who was the subject of a “be on

the lookout for” notice posted for two months in the

Petitioner’s squad room. Further, Taylor was arrested for

driving under the influence by an officer from another

juri sdiction, to whom he identified Taylor. Therefore, the

Petitioner knew who Taylor was and knew, or should have known,

he was being sought by law enforcement. Further, as a law

enforcement officer, the Petitioner knew, or should have known,

that Taylor wa s impaired and prevented him from driving. The

Respondent had good cause for discharging the Petitioner.

21. The Respondent articulated a legitimate, non -

discriminatory reason f or its action. McDonnell , supra and

St. Mary's , supra . In other words, aft er a prima facie case is

established, if the employer produces evidence of a legitimate,

non - discriminatory reason for its actions, the prior presumption

of discrimination is rebutted and eliminated. See McDonnell ,

supra .

22. The burden was upon the Peti tioner to show that his

discharge was for reasons other than those actually asserted by

the Respondent. Another case involving a white officer who the

department knew was associating with undesirable persons

resulted in the discharge of the officer. In a third case of

improper associations, the Petitioner failed to show that the

department was aware of the matter.

23. Regarding other types of discipline by the department,

evidence was presented by the department that it had

investigated and determined th at there was no basis for

discipline or had imposed discipline. In the one other case of

discipline of an African American officer, the department had

good cause for its actions. In sum, the Petitioner did not

carry his burden to show that the department ’s actions were

racially based or pretextual.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED:

That the Petitioner’s Petition be denied.

DONE AND ENTERED this 11th day of October, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9 675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of October, 2002.

COPIES FURNISHED :

Norris L. Fails

810 Orange Brooke Cour t

Clermont, Florida 34711

Robert D. Guthrie, Jr., Esquire

City of Clermont

Post Office Box 3026

Orlando, Florida 32802

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee , Florida 32301

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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 should be filed with the agency that

will issue the final order in this case.