02-003786 Oghenerhoro Bamawo vs. Department Of Corrections Status: Closed Recommended Order on Thursday, September 18, 2003.

Summary: Petitioner did not prove that he was subjected to a hostile work environment; that his termination from employment was based on discrimination because of race and/or nationality; or was in retaliation for exercising his rights under Section 760.10, F.S.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OGHENERHORO BAMAWO, )

)

Petitioner, )

)

vs. ) Case No. 02 - 3786

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on July 25, 2003, in Miami, Florida, before Patricia Hart

Malono, a duly - designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Oghenerhoro Bamawo, pro se

North Florida Evaluation and

Treatment Center

1200 Northeast 55th Boulevard

Building 11

Gainesville, Florida 32641 - 2759

For Respondent: Gary L. Grant, Esquire

Depar tment of Corrections

2601 Blairstone Road

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Whether the Petitioner was discriminated against on the

basis of his race, color, or national origin in violation of

Section 760.10, Florida Statutes (2000). 1

PRELIMINARY STATEMENT

The Petitioner, Oghenerhoro Bamawo, filed a Charge of

Discrimination with the Florida Commission on Human Relations

("FCHR") on May 2, 2001, in which he alleged that he had been

discriminated against on the basis of his race, his color, and

his national origin by the Florida Department of Corrections

("Department"). Mr. Bamawo alleged that, during the time he was

employed by the Department as a correctional officer, he was

treated differently from other, similarly - situated, "Anglo"

employees and was subjected to a hostile work environment that

culminated in his termination from his employment. In a

Determination: No Cause dated August 22, 2002, the FCHR found

that there "is no reasonable caus e to believe that an unlawful

employment practice has occurred."

In a notice sent to Mr. Bamawo and the Department, the FCHR

advised Mr. Bamawo of his right to file a Petition for Relief,

which Mr. Bamawo did on September 23, 2002. In the Petition for

Rel ief, Mr. Bamawo alleged that he "was not provided with the

same terms and conditions of employment or the same work

assignments as were similarly - situated employees of different

races, color, and national origin." The FCHR transmitted the

Petition for Rel ief to the Division of Administrative Hearings

for assignment of an administrative law judge. Pursuant to a

Notice of Hearing, the final hearing in the case was scheduled

for November 21, 2002.

Mr. Bamawo's attorney subsequently moved to withdraw as

couns el; the motion was granted; and the hearing was continued.

The final hearing was ultimately conducted on July 25, 2003. At

the hearing, Mr. Bamawo testified on his own behalf and called

Carolyn Mompremier as a witness; Petitioner's Exhibits 1

through 3 w ere offered and received into evidence. The

Department presented the testimony of Jeffrey Wainwright and

Scott Pardue, and Respondent's Exhibits 1 through 3 were offered

and received into evidence.

No transcript of the proceeding was filed with the Divisi on

of Administrative Hearings. The parties timely filed proposed

findings of fact and conclusions of law, which have been

considered in the preparation of this Recommended Order. 2

FINDINGS OF FACT

Based on the oral and documentary evidence presented at t he

final hearing and on the entire record of this proceeding, the

following findings of fact are made:

1. Mr. Bamawo is a black male from Nigeria.

2. Mr. Bamawo began working for the Department at the Dade

Correctional Institution ("DCI") as a correction al officer in

March 1993. At the times material to this proceeding,

Mr. Bamawo was a career service employee whose duties included

the care, custody, and control of inmates of the institution.

Mr. Bamawo normally worked the third shift, from 2:00 p.m. to

10:00 p.m.

3. During most of the time Mr. Bamawo was employed at DCI,

Captain Scott Pardue, as the third shift supervisor, directly

supervised Mr. Bamawo.

4. According to Mr. Bamawo, he and Captain Pardue did not

"see eye - to - eye" even though Mr. Bamawo tried to get along with

Captain Pardue.

5. The first incident that Mr. Bamawo considers

discriminatory occurred in 1995, when Captain Pardue formally

disciplined Mr. Bamawo for writing graffiti. 3 Mr. Bamawo denies

that he wrote the graffiti, and he made a verbal complaint to a

superior officer identified as "Colonel Thompson."

6. Mr. Bamawo also asserts that, in 1995, an Anglo

corrections officer was promoted to sergeant, and Mr. Bamawo was

required to follow his orders. Mr. Bamawo asserted that he made

many complaints to Captain Pardue about this sergeant but that

Captain Pardue did nothing.

7. Also in 1995, Captain Pardue made two remarks to

Mr. Bamawo that Mr. Bamawo considered offensive: On one

occasion, Captain Pardue apparently was looking at a p icture of

an African woman in a National Geographic magazine when he asked

Mr. Bamawo if "you people live in houses or sleep in trees";

Mr. Bamawo believed Captain Pardue was making a derogatory

comment about Mr. Bamawo's being a native of Africa. Another

occasion was at Thanksgiving, when Mr. Bamawo brought a can of

corn to a covered - dish lunch; Mr. Bamawo opened the can of corn

and set it on the table with the other food, and Captain Pardue

asked if this was the way people in Africa ate corn. These

rema rks caused Mr. Bamawo to be humiliated and embarrassed in

front of his co - workers.

8. Mr. Bamawo asserts that Captain Pardue refused to

approve his requests for time off the job but would approve time

off for Anglo officers. When Captain Pardue refused

M r. Bamawo's requests for time off, Mr. Bamawo asked other

captains for approval, and, when they refused to approve his

requests for time off, Mr. Bamawo called in sick.

9. Mr. Bamawo recalls that, on one occasion, he was forced

to miss an appointment beca use Captain Pardue ordered him to

work overtime.

10. According to Mr. Bamawo, Captain Pardue accused

Mr. Bamawo of being a minute late on one occasion and penalized

him, although Mr. Bamawo recalls that Captain Pardue did not

penalize others for being lat e.

11. It was Mr. Bamawo's perception while he worked at DCI

that, countless times, Captain Pardue changed the work

assignments of Anglo officers when they requested a change, but

that Captain Pardue never changed Mr. Bamawo's work assignment

when he requ ested a change. Mr. Bamawo believed that he was

given the assignments that no one else wanted.

12. On March 21, 2000, Mr. Bamawo was involved in an

altercation with Sergeant Frankie Tindall. Mr. Bamawo called

Sergeant Tindall "bitch" and threatened to " blow away" Sergeant

Tindall when Sergeant Tindall questioned Mr. Bamawo about trash

that littered his post. 4

13. On April 23, 2000, Captain Pardue designated

Correctional Officer Orol as third - shift supervisor in DCI's

north annex "Yard One"; Mr. Bamawo w as one of three other

correctional officers assigned to Yard One at the time. As

designated supervisor, Mr. Orol had the authority to assign

tasks to the three other officers.

14. Mr. Bamawo protested Captain Pardue's choice of

Mr. Orol because Mr. Orol had been out of the academy only six

months; Mr. Bamawo felt that he should have been designated

supervisor because he was the senior officer on the shift.

Captain Pardue told Mr. Bamawo that he felt more confident with

Mr. Orol in the position of supervi sor. Mr. Bamawo told Captain

Pardue that he was going to file a grievance.

15. At some point during the daylight hours of the third

shift on April 23, 2000, Mr. Orol told Mr. Bamawo to complete a

check of the perimeter fence, which Mr. Bamawo considered a

difficult job to do in the daylight because it was very hot

work. Mr. Bamawo refused the order and told Mr. Orol that he

would do the fence check when the sun went down. After a time,

Mr. Orol called Mr. Bamawo on the radio and told him again to

check the perimeter fence; Mr. Bamawo again refused, using a

radio shorthand phrase meaning, "Do it yourself."

16. Captain Pardue was monitoring the radio transmission

and heard the exchange between Mr. Bamawo and Mr. Orol. Captain

Pardue thought that Mr. Bama wo had responded to Mr. Orol in a

"nasty" tone of voice, and, fearing that Mr. Bamawo and Mr. Orol

might get into a confrontation, Captain Pardue radioed

Mr. Bamawo and told him to come to the control room.

17. Captain Pardue took Mr. Bamawo into a copy r oom and

confronted him about his attitude toward Mr. Orol. Mr. Bamawo

again complained about Captain Pardue's choice of Mr. Orol as

supervisor rather than Mr. Bamawo. During the discussion,

Mr. Bamawo became agitated, turned, and walked away from Captain

Pardue. Captain Pardue called to him and told him to come back;

Mr. Bamawo turned back and approached Captain Pardue with his

fists clenched, called Captain Pardue "bitch," and said he would

"bust" Captain Pardue. 5

18. At this point, Captain Pardue, fea ring for his safety,

called Jeffrey Wainwright, who was the acting warden of DCI.

After talking with Captain Pardue and Mr. Bamawo, Mr. Wainwright

reassigned Mr. Bamawo to the women's facility across the street

from DCI. Mr. Bamawo threatened to file a d iscrimination

complaint if Mr. Wainwright did anything to him as a result of

the incident with Captain Pardue.

19. Mr. Bamawo was terminated from his employment with the

Department on May 4, 2000. Mr. Bamawo appealed his termination

to PERC, which found that the Department had just cause to

terminate him based on the incidents of March 21 and April 23,

2000.

20. Mr. Bamawo testified that, through the years, Captain

Pardue made "countless" derogatory remarks about Mr. Bamawo's

race and national origin. A t first, according to Mr. Bamawo, he

thought that Captain Pardue was joking, but that, eventually, he

saw hate behind Captain Pardue's remarks. 6

21. Mr. Bamawo also claims that Captain Pardue gave him

bad work assignments; refused to give him days off; an d used

rookie officers like Mr. Orol to "agitate" him. Mr. Bamawo

believes that he was terminated in retaliation for having

threatened to file a grievance against Captain Pardue for

unprofessional conduct because Captain Pardue designated

Mr. Orol as the supervisor on April 23, 2000, and allowed him to

give orders to more senior correctional officers.

22. Other than his complaint to "Colonel Thompson" about

the graffiti incident in 1995, Mr. Bamawo did not complain

during the years he worked at DCI, eithe r verbally or in

writing, that Captain Pardue made racist remarks or derogatory

remarks about his national origin or that Captain Pardue

discriminated against him in any respect.

23. Mr. Bamawo stayed in his job as a correctional officer

at DCI because he liked the job, thought everyone was friendly,

and liked working with the inmates. He had no problem with

anyone on the job except Captain Pardue and Sergeant Tindall. 7

Summary

24. The evidence presented by Mr. Bamawo is not sufficient

to support a find ing that his termination by the Department was

motivated by discriminatory intent or retaliatory. Mr. Bamawo

failed to present any evidence to support a finding that the

Department has ever imposed a lesser penalty on anyone not a

black or a person of Afr ican origin for having threatened a

Department sergeant or captain with violence. Mr. Bamawo has

failed to present sufficient evidence to support a finding that

his termination was retaliatory because he had not, at the time

he was terminated, filed an em ployment discrimination complaint;

rather, Mr. Bamawo had merely threatened Mr. Wainwright that he

would file such a complaint if disciplinary action were taken

against him for the April 23, 2000, incident involving Captain

Pardue.

25. The evidence presen ted by Mr. Bamawo is not sufficient

to support a finding that he was subjected to continual

harassment based on his race or national origin such that his

ability to function as a correctional officer was impeded.

Although Mr. Bamawo, as a black man of Afr ican origin, is a

member of two protected classes, he did not present evidence

sufficient to establish that he was treated differently from

other correctional officers with respect to pay, assignments,

time off, or any other aspect of his employment with t he

Department, and he did not present sufficient evidence to

support a finding that he was forced to endure an abusive and

hostile work environment at DCI.

26. The evidence submitted by Mr. Bamawo is sufficient to

establish that, in 1995, Captain Pardue m ade a remark about

Africans sleeping in trees and a remark about the manner in

which Africans served canned corn, but, even though Mr. Bamawo

was humiliated and embarrassed by these boorish remarks, these

two isolated instances of derogatory comments based on race and

national origin are not indicative of a pervasively hostile or

abusive work environment.

CONCLUSIONS OF LAW

27. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pu rsuant to Sections 120.569 and 120.57(1),

Florida Statutes (2003).

28. Section 760.10, Florida Statutes, part of the Florida

Civil Rights Act of 1992, provided as follows:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or t o fail or refuse to

hire any individual, or otherwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges or employment, because of such

individual's race, color, religion, sex,

national origin, age, handic ap, or marital

status.

* * *

(7) It is an unlawful employment practice

for an employer, an employment agency, a

joint labor - management committee, or a labor

organization to discriminate against any

person because that person has opposed any

practice whi ch is an unlawful employment

practice under this section, or because that

person has made a charge, testified,

assisted, or participated in any manner in

an investigation, proceeding, or hearing

under this section.

29. Florida courts routinely rely on de cisions of the

federal courts construing Title VII of the Civil Rights Act of

1964, codified at Title 42, Section 2000e et seq. , United States

Code, ("Title VII"), when construing the Florida Civil Rights

Act of 1992, "because the Florida act was patterned after

Title VII." Harper v. Blockbuster Entertainment Corp. , 139 F.3d

1385, 1387 (11th Cir. 1998)(citing, inter alia , Ranger Ins. Co.

v. Bal Harbor Club, Inc. , 549 So. 2d 1005, 1009 (Fla. 1989), and

Florida State University v. Sondel , 685 So. 2d 923, 925 , n. 1

(Fla. 1st DCA 1996)) .

Termination with Discriminatory Intent

30. Mr. Bamawo has the burden of proving by a

preponderance of the evidence that he was the victim of

employment discrimination, and he can establish a prima facie

case of discrimination either through direct evidence of

discrimination or through circumstantial evidence within the

framework of the analysis first articulated in McDonald Douglas

Corp. v. Green , 411 U.S. 792, 802 - 04 (1973). See Holifield v.

Reno , 115 F.3d 1555, 1561 - 62 (11t h Cir. 1997).

31. In this case, Mr. Bamawo has presented no direct

evidence that he was discriminated against because of his race

and national origin, and he must, therefore, rely on the

presumption set forth in McDonald Douglas to establish a prima

facie case of racial discrimination. Mr. Bamawo must show that

"(1) he belongs to a racial minority [and/or is foreign - born];

(2) he was subjected to adverse job action; (3) his employer

treated similarly situated employees outside his classification

more favo rably; and (4) he was qualified to do the job."

Holifield , 115 F.3d at 1562. If Mr. Bamawo succeeds in

establishing a prima facie case of discrimination, the

Department then must come forward with evidence to establish a

nondiscriminatory basis for the a dverse employment action, at

which point the McDonald Douglas "presumption of discrimination

disappears . . . , and the plaintiff once again bears the burden

of production. In order to satisfy this burden a plaintiff must

demonstrate that the employer's g iven reason was pretextual."

LeBlanc v. TJX Cos., Inc. , 214 F. Supp. 2d 1319, 1325 - 26 (S.D.

Fla. 2002).

32. Based on the findings of fact herein, Mr. Bamawo is a

member of two groups that fall within the protections provided

by Section 760.10(b), Florida Statutes, in that he is a black

man of African origin; he, therefore, has satisfied the first

prong of the McDonald Douglas analysis. There is no dispute

that Mr. Bamawo was terminated from his employment with the

Department, and he, therefore, has satis fied the second prong of

the McDonald Douglas analysis. Finally, the Department did not

contest Mr. Bamawo's qualifications to perform the job of

correctional officer, and Mr. Bamawo, therefore, has satisfied

the fourth prong of the McDonald Douglas analy sis.

33. Based on the findings of fact herein, Mr. Bamawo has

nonetheless failed to establish a prima facie case of

discrimination because his evidence does not satisfy the third

prong of the McDonald Douglas analysis. There is no dispute

that Mr. Bamawo was terminated from his employment with the

Department as a direct result of the incident of March 21, 2000,

in which Mr. Bamawo threatened Sergeant Tindall, and of the

incident of April 23, 2000, in which he threatened Captain

Pardue. Mr. Bamawo did not , however, submit proof that the

Department had meted out discipline less severe than termination

to any other correctional officers who had committed the same or

similar acts. See Jones v. Winn Dixie Stores, Inc. , 75

F. Supp. 2d 1357, 1364 (S.D. Fla. 199 9)("A claim of

discriminatory discipline requires a showing that the misconduct

for which the plaintiff was disciplined was 'nearly identical'

to that engaged in by an employee outside the protected class

and who has not been disciplined."). Mr. Bamawo ha s, therefore,

failed to prove by a preponderance of the evidence that the

Department was motivated by discriminatory intent when it

terminated him from his employment in May 2000.

Retaliatory Discharge

34. The court in Goldsmith v. City of Atmore , 996 F. 2d

1155, 1162 - 63 (11th Cir. 1993), observed that "[t]he burden of

proof in Title VII retaliation cases is governed by the

framework established in McDonnell Douglas Corp. v. Green ,

411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973)." The

court describe d that burden as follows:

In order to prevail, the plaintiff must

first establish a prima facie case by

showing (1) statutorily protected

expression, (2) adverse employment action,

and (3) a causal link between the protected

expression and the adverse acti on. . . .

Once a prima facie case has been

established, the defendant may come forward

with legitimate reasons for the employment

action to negate the inference of

retaliation. . . . If the defendant offers

legitimate reasons for the employment

action, the plaintiff then bears the burden

of proving by a preponderance of the

evidence that the reasons offered by the

defendant are pretextual.

Goldsmith , 996 F.3d at 1163 (citations omitted).

35. Based on the findings of fact herein, Mr. Bamawo has

failed to e stablish a prima facie case sufficient to permit an

inference that his termination was retaliatory. Mr. Bamawo had

not engaged in "statutorily protected expression" at the time of

his termination. Mr. Bamawo did nothing more than threaten to

file an empl oyment discrimination complaint if he was

disciplined for the April 23, 2000, incident involving

Captain Pardue.

Hostile Work Environment

36. Mr. Bamawo alleges also that he was the subject of

continuing discrimination in the form of derogatory comments and

disparate treatment in work assignments and in the conditions of

his employment with the Department. The court in Terry v.

Ashcroft , 336 F.3d 128, 147 - 48 (2d Cir. 2003), discussed all of

the elements that must be proven to establish discrimination

bas ed on a hostile work environment:

In order to prevail on a hostile work

environment claim under Title VII, a

plaintiff must show that "the harassment was

'sufficiently severe or pervasive to alter

the conditions of the victim's employment

and create a n abusive working environment.'"

Alfano v. Costello , 294 F.3d 365, 373

(2d Cir. 2002)(quoting Perry v. Ethan Allen,

Inc. , 115 F.3d 143, 149 (2d Cir. 1997)); see

also Oncale v. Sundowner Offshore Serv.,

Inc. , 523 U.S. 75, 78 (1998) (stating that a

hostile w ork environment is created "[w]hen

the workplace is permeated with

discriminatory intimidation, ridicule, and

insult that is sufficiently severe or

pervasive to alter the conditions of the

victim's employment and create an abusive

working environment."). We have explained

that "[t]his test has objective and

subjective elements: the misconduct must be

'severe or pervasive enough to create an

objectively hostile or abusive work

environment,' and the victim must also

subjectively perceive that environment to be

abusive." Alfano , 294 F.3d at 374 (quoting

Harris v. Forklift System., Inc. , 510 U.S.

17, 21 (1993). Among the factors to

consider when determining whether an

environment is sufficiently hostile are "the

frequency of the discriminatory conduct; its

se verity; whether it is physically

threatening or humiliating, or a mere

offensive utterance; and whether it

unreasonably interferes with an employee's

work performance." Harris , 510 U.S. at 23.

In determining whether a hostile environment

exists, we must look at the "totality of the

circumstances." Richardson , 180 F.3d at

437 - 38 [ Richardson v. New York State Dep't

of Corr. Serv. , 180 F.3d 426 (2d Cir.

1999)]. "As a general rule, incidents must

be more than 'episodic; they must be

sufficiently continuous and concerted in

order to be deemed pervasive.'" Alfano , 294

F.3d at 374 (quoting Perry , 115 F.3d at

149). . . .

See also Miller v. Kenworth of Dothan, Inc. , 277 F.3d 1269 (11th

Cir. 2002); Caruso v. City of Cocoa , 260 F. Supp. 2d 1191, 1218,

1221 - 22 (M.D . Fla. 2003); Gonzalez v. Florida Dep't of Highway

Safety & Motor Vehicles , 237 F. Supp. 2d 1349 - 50 (S.D. Fla.

2002), aff'd without opinion , 2002 WL 1676549 (11th Cir. 2002);

Lawrence v. Wal - Mart Stores, Inc. , 236 F. Supp. 2d 1314, 1323 - 26

(M.D. Fla. 2002) ; LeBlanc , 214 F. Supp. 2d at 1331 - 32.

37. It is settled in Florida that, i n order to prove

discrimination as a result of a hostile work environment,

Mr. Bamawo must show:

(1) that he belongs to a protected group;

(2) that he has been subject to unwelcome

harassment; (3) that the harassment [was]

. . . based on a protected characteristic of

the employee, such as national origin;

(4) that the harassment was sufficiently

severe or pervasive to alter the terms and

conditions of employment and create a

discrim inatorily abusive working

environment; and (5) that the employer is

responsible for such environment under

either a theory of vicarious or of direct

liability.

Miller , 277 F.3d at 1275.

38 . Based on the findings of fact herein, Mr. Bamawo has

satisfied t he first element of a claim of hostile work

environment because he is black and of African origin.

Mr. Bamawo has also satisfied the second and third prongs of a

claim of hostile work environment because he has proven by a

preponderance of the evidence th at, in 1995, Captain Pardue made

two inappropriate comments to him based on his race and national

origin and that these comments were embarrassing and

humiliating.

39. Based on the findings of fact herein, Mr. Bamawo has

not, however, satisfied the fourth prong of a claim of hostile

work environment. Although there is no dispute that

Mr. Bamawo's employment by the Department was terminated on

May 4, 2001, Mr. Bamawo has failed to prove by a preponderance

of the evidence that Captain Pardue's treatment of him

constituted harassment that is "so severe or pervasive" that the

"terms and conditions of his employment" were altered. Id.

40. In evaluating the proof sufficient to establish the

fourth prong of a claim of hostile work environment, courts

examine bo th the objective and the subjective severity of the

harassment. In determining the objective severity of

harassment, courts consider "(1) the frequency of the conduct;

(2) the severity of the conduct; (3) whether the conduct is

physically threatening or h umiliating, or a mere offensive

utterance; and (4) whether the conduct unreasonably interferes

with the employee's job performance." Id. at 1276.

41. Based on the findings of fact herein, Mr. Bamawo has

failed to prove by a preponderance of the evidence that he was

subjected to a work "environment 'that a reasonable person would

find hostile or abusive.'" Id. (quoting Harris , 510 U.S. at

21 - 22). Mr. Bamawo has proven only that, in 1995, Captain

Pardue made two offensive comments to him based on his rac e and

national origin. Mr. Bamawo complains that Captain Pardue made

"countless" derogatory remarks to him, that Captain Pardue gave

him work assignments that no one else wanted, that Captain

Pardue refused to approve his requests time off, that Captain

P ardue refused to designate him as supervisor because Captain

Pardue thinks "Africans are dumb," but these complaints are not

sufficiently specific to establish that Mr. Bamawo was subjected

to harassment that was "severe or pervasive." In a Title VII

empl oyment discrimination case, "[c]onclusory allegations

without specific supporting facts have no probative value."

Hillburn v. Murata Elecs. N. Am, Inc. , 181 F.3d 1220, 1228 (11th

Cir. 1999)(internal citation omitted).

42. In addition, Mr. Bamawo worked a t the Department from

1993 until he was terminated in May 2001 because he liked the

job and the people with whom he worked. Mr. Bamawo did not,

therefore, suffer harassment that "altered the terms and

conditions of his employment and created a discriminat orily

abusive work environment." Miller , 277 F.3d at 1275.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations enter a final order dismissing the Petition for Rel ief

of Oghenerhoro Bamawo.

DONE AND ENTERED this 18th day of September, 2003, in

Tallahassee, Leon County, Florida.

S

___________________________________

PATRICIA HART MALONO

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallah assee, 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 18th day of September, 2003.

ENDNOTES

1 / All citations to the Florida Statutes are to the 2000 e dition

unless otherwise noted.

2 / On August 20, 2003, Mr. Bamawo filed a pleading entitled

Petitioner Seeking an Order Requiring Respondent to Cease and

Desist of [sic] Providing Fasle [sic] Information to the Public

Base[d] on Newly Discovered Evidence. In this pleading,

Mr. Bamawo refers to, among other things, statements given

during a criminal investigation. The undersigned does not have

jurisdiction to enter cease and desist orders and, therefore,

cannot provide the relief requested by Mr. Bamawo.

3 / This is the only time Captain Pardue recalls imposing formal

discipline on Mr. Bamawo, although he did verbally counsel and

reprimand him on occasion.

4 / A full account of this incident can be found in the Hearing

Officer's Recommended Order in Case No. CS - 2000 - 170, dated

July 12, 2000, and in the Final Order of the Public Employees

Relations Commission ("PERC") entered September 8, 2003. See

Respondent's Exhibits 1, 2, and 3. As noted in the Order

Denying Motion for Summary Recommended Order of Di smissal and

Granting Motion in Limine, entered June 23, 2003, the findings

of fact included in the Final Order of PERC are accepted in this

proceeding pursuant to the doctrine of collateral estoppel.

At the final hearing in the instant case and in pl eadings

and documents submitted after the final hearing, Mr. Bamawo

contended that Sergeant Tindall was lying about the March 21,

2000, incident and that Sergeant Tindall's version of events was

concocted and merely a pretext for discrimination. The PERC

Hearing Officer heard the testimony of Mr. Bamawo and Sergeant

Tindall and, for the most part, credited Sergeant Tindall's

version of events over that of Mr. Bamawo. The undersigned

will, consistent with the doctrine of collateral estoppel, defer

to that determination. On the other hand, the determination of

whether the incident was merely a pretext for discrimination is

reserved for the FCHR.

5 / A full account of this incident can be found in the Hearing

Officer's Recommended Order in Case No. CS - 2000 - 170, dated

July 12, 2000, and in the Final Order of the Public Employees

Relations Commission ("PERC") entered September 8, 2003. See

Respondent's Exhibits 1, 2, and 3.

6 / Mr. Bamawo testified that, during the incident with Captain

Pardue on April 23, 2 000, Captain Pardue called him an "African

monkey" and a "big black gorilla" and stated that "Africans are

dumb." Captain Pardue denied having ever said these things to

or about Mr. Bamawo. Having considered the evidence and

assessed the credibility of t he witnesses' testimony, Captain

Pardue's testimony is credited over that of Mr. Bamawo with

respect to these remarks.

7 / Mr. Bamawo testified that, during the March 21, 2000,

incident involving Sergeant Tindall, that Sergeant Tindall

insulted him and ca lled him a "dirty individual."

COPIES FURNISHED:

Oghenerhoro Bamawo

North Florida Evaluation and

Treatment Center

1200 Northeast 55th Boulevard

B uilding 11

Gainesville, Florida 32641 - 2759

Gary L. Grant, Esquire

Department of Corrections

2601 Blairstone Road

Tallahassee, Florida 32399

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahasse e, Florida 32301

Denise Crawford, Agency Clerk

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 d ays 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.