06-000413 Cristina Quintero vs. City Of Coral Gables Status: Closed Recommended Order on Thursday, September 14, 2006.

Summary: Petitioner failed to prove that she was terminated on the basis of national origin.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHRISTINA QUINTERO, )

)

Petitioner, )

)

vs. ) Case No. 06 - 0413

)

CI TY OF CORAL GABLES, )

)

Respondent. )

____________________________)

RECOMMENDED ORDER

A hearing was held pursuant to notice on April 12, 2006,

and concluded on May 3, 2006, by video teleconference at si tes

in Miami and Tallahassee, Florida, before Florence Snyder Rivas,

a duly - designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Christina Quintero, pro se

4780 Northwest 2nd Street

Miami, Florida 33126

For Respondent: David C. Miller, Esquire

Akerman Senterfitt

Sun Trust International Center, 28th Floor

One Southeast Third Aven ue

Miami, Florida 33131

STATEMENT OF THE ISSUE

Whether Respondent terminated Petitioner’s employment in

violation of Chapter 760, Florida Statutes (2004), popularly

known as the Florida Civil Rights Act of 1992 (Florida Civil

Right s Act).

PRELIMINARY STATEMENT

On June 7, 2005, the Petitioner, Christina Quintero

(Petitioner), filed a complaint with the Florida Commission on

Human Relations (FCHR). In her complaint, Petitioner alleged

that the Respondent City of Coral Gables (Respo ndent or City) ,

had discriminated against her on the basis of age, national

origin, and disability in violation of the Florida Civil Rights

Act , when it terminated her employment in its police department

records office on July 16, 2004. The complaint was investigated

and on December 22, 2005, FCHR issued its determination of “no

cause . ” Petitioner thereafter filed a Petition for Relief,

invoking the jurisdiction of the Division of Administrative

Hearings. In the Petition for Relief, Petitioner alleged

di scrimination on the basis of national origin. Following

extensive discovery, the case came on for hearing on April 3,

2006. The date was selected to accommodate the schedules of the

parties and their witnesses. The parties had been encouraged to

request as much time as could possibly be necessary; one day was

requested and was granted. Unfortunately, following nine hours

of hearing on April 3, 2006, it became apparent that one day,

even a very long one, was insufficient time. Accordingly, the

undersign ed continued the hearing to the next available date

upon which the parties and videoconferencing facilities would be

available, May 3, 2006.

The identity of witnesses, exhibits, and attendant rulings

are contained in the one - volume transcript of the proce edings

filed with the Division of Administrative Hearings on May 30,

2006. Timely post - hearing submissions have been filed by the

parties and have been duly - considered.

All citations to the Florida Statutes are to Florida

Statutes (2004), unless otherwise specified.

FINDINGS OF FACT

1 . Petitioner is a n Hispanic female. Petitioner was

employed by Respondent in records for almost 15 years prior to

July 16, 2004, when she was terminated.

2 . Respondent is a municipal corporation located in Miami -

Dade Cou nty, Florida , and an employer within the meaning of the

Florida Civil Rights Act. Respondent provides a variety of

public services generally associated with cities of comparable

size, including a full service police department. At all

relevant times, His panics comprised approximately half of the

police department's workforce. Many of these individuals were

employed in supervisory capacities. Four Hispanics were

supervisors in Petitioner's chain of command.

3 . In her position in records, Petitioner was responsible

to timely and accurately process official police documents.

Such processing included the completion of forms and transmittal

documents and timely copying, filing and production of such

documents to appropriate individuals and authorities (doc ument

processing). Failure to discharge any of the foregoing

responsibilities is reasonably deemed by Respondent to be

incompetence, and a firing offense(s).

4 . In her position in records, Petitioner was also

responsible to comply with all directives o f supervisors and to

cooperate in internal affairs investigations. Cooperation in

this context includes providing sworn statements and/or

answering questions under oath as may be required by Respondent.

Failure to comply with directives and to cooperate in internal

affairs investigations are reasonably deemed by Respondent to be

insubordination, and firing offenses.

5 . On April 29, 2004, a member of the public presented

himself to records and requested a copy of an official police

record to which he was entitled to access, specifically a

traffic ticket. Records could not locate the document because

it had not been properly processed by Petit ioner, who was

responsible for doing so. Having become aware of a problem with

this particular document processing , Respondent thereupon took

reasonable steps to determine whether this was an isolated error

by Petitioner. In so doing, Respondent discovered and

documented a high volume of document processing errors with

respect to official police records for which Pet itioner was

responsible.

6 . In February 2004, one of Petitioner's supervisors – one

who happened to be Hispanic -- issued a written directive (the

February directive) to all records employees which required that

they disclose, on a weekly basis, any "back logs" of document

processing work. In direct violation of the directive,

Petitioner never disclosed existence of her backlog, which was,

by April 29, 2004, extremely large. Now on notice of the

backlog and deeply concerned about its potential effects on the

police department and the public it serves, and pursuant to

police department policy, an internal affairs investigation was

initiated under the leadership of the same Hispanic supervisor.

Over the course of the investigation, Respondent learned that

t he problem(s) revealed on April 29, 2004, were only the "tip of

the iceberg."

7 . The internal affairs investigation uncovered “hundreds

and hundreds” of additional document processing errors.

Virtually all of the errors discovered involved official police

records for which Petitioner was responsible. In the course of

the internal affairs investigation, Petitioner was directed to

give a sworn statement, and refused to do so, which refusal was

deemed to constitute insubordination.

8 . Petitioner’s errors a s documented in the internal

investigation demonstrated incompetence. Her failure to comply

with the February directive and to provide a sworn statement to

internal affairs investigators constituted insubordination. At

the conclusion of the internal affa irs investigation, Petitioner

was terminated for incompetence in the performance of her

document processing responsibilities and for insubordination.

Petitioner failed to discredit the factual underpinnings of

Respondent’s decision to terminate her employm ent; neither did

she establish any discriminatory basis upon which Respondent

terminated her employment.

9 . Respondent replaced Petitioner with a n Hispanic , who

remained employed by Respondent through and including the time

of the hearing.

CONCLUSIONS OF LAW

1 0 . The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding pursuant to Sections 120.569 and 120.57 (1), Florida

Statutes (2006).

11 . The Florida Civil Rights Act, among other things,

forb ids the discriminatory firing of an employee. Subsection

760.10(1)(a), Florida Statutes, states:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire any individual, or otherwise

discriminate again st any individual with

respect to compensation, terms, conditions,

or privileges of employment, because of such

individual’s race, color, religion, sex,

national origin, age, handicap, or marital

status.

12 . Respondent is an “employer” as defined in Sub section

760.02(7), Florida Statutes, which provides:

(7) “Employer” means any person employing

15 or more employees for each working day in

each of 20 or more calendar weeks in the

current or preceding calendar year, and any

agent of such person.

13 . FCHR and Florida courts look to federal discrimination

law for guidance when construing provisions of the Florida Civil

Rights Act. See Brand v. Florida Power Corp. , 633 So. 2d. 504,

509 (Fla. 1st DCA 1994). Accordingly, the United States Supreme

Cour t’s model for employment discrimination cases set forth in

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

applies to claims arising under the Florida Civil Rights Act.

See Florida Department of Community Affairs v. Bryant , 586 So.

2d 1205 (F la. 1st DCA 1991).

14 . Under the McDonnell Douglas analysis, Petitioner has

the burden of establishing by a preponderance of evidence a

prima facie case of unlawful employment discrimination. If the

prima facie case is established, the burden shifts to R espondent

employer to rebut this preliminary showing by producing evidence

that the adverse action was taken for some legitimate, non -

discriminatory reason. If the employer rebuts the prima facie

case, the burden shifts back to Petitioner to show by a

pre ponderance of the evidence that Respondent’s articulated

reason(s) for its adverse employment decision is pretextual.

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

248 (1981).

1 5 . The unlawful employment practice alleged in this case

is discrimination based on national origin. In order to prove a

prima facie case of discrimination on this basis, Petitioner

must prove that she: (1) belongs to a protected class; (2) was

treated differently or less favorably than similarly situat ed

employe es outside of her classification, or that she was

replaced by a person outside her protected class; (3) was

qualified for the position she held; and (4) that she suffered

an adverse employment action. See Maynard v. Board of Regents

of Division of Univers ities of the Florida Department of

Education, 342 F.3d 1281 (11th Cir. 2003); Kelliher v. Veneman ,

313 F.3d 1270, 1275 (11th Cir. 2002); Williams v. Vitro Services

Corporation, 144 F.3d 1438, 1441 (11th Cir. 1998); Anderson v.

Lykes Pasco Packing Co. , 503 So. 2d 1269, 1270 (Fla. 2d DCA

1986).

16 . Here, Petitioner failed to prove a prima facie case

because she proved only three of the four required elements.

Petitioner proved that she belonged to a protected class; was

qualified for the position she held; and suffered an adverse

employment action, i.e. termination. However, Petitioner did

not prove that Respondent treated similarly situated employees

outside of her classification differently or more favorably, or

that she was replaced by a person outside h er protected

classification. To the contrary, the evidence did not establish

that any similarly situated employee was treated more favorably

or would not be terminated under the facts and circumstances set

forth above. Likewise, the evidence did not esta blish that

Petitioner was replaced with a person outside her protected

classification; instead, the evidence established that the

person who replaced her was Hispanic.

1 7 . Assuming arguendo that Petitioner had established a

prima facie case, it would be n ecessary to consider t he second

McDonnell Douglas factor, which requires Respondent to provide a

legitimate, nondiscriminatory reason for its adverse employment

action. In this case, Respondent elected to put on a defense

and established by preponderant p ersuasive evidence that the

basis for its adverse employment action was inc ompetence and

insubordination. Petitioner did not demonstrate that these

articulated reasons given by Respondent for the adverse

employment action were pretextual.

18 . Petitione r failed to establish a prima facie case of

unlawful employment discrimination. Respondent was not

obligated to put on a defense. Nonetheless, Respondent elected

to rebut the presumption that would have arisen if the

Petitioner has put on a prima facie c ase. Respondent then

proved with preponderant, persuasive evidence that there were

legitimate, non - discriminatory reasons for Petitioner’s

termination. Petitioner failed to prove that Respondent’s

reasons for termi nating her employment were pretextual. In sum,

n ational origin played no role in the decision to terminate

Petitioner's employment; she was fired because of conduct

justifying her termination.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is:

RECOMMENDED that the FCHR enter its final order dismissing

the Petition for Relief.

DONE AND ENTERED this 14 th day of September, 2006, in

Tallahassee, Leon County, Florida.

S

FLORENCE SNYDER RIVAS

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 14 th day of September, 2006.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Christina Quintero

4780 Northwest 2nd Street

Miami, Florida 33126

David C. Miller, Esquire

Akerman Senterfitt

Sun Trust International Center, 28th Floor

One Southeast Third Avenue

Miami, Florida 33131

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 3230 1

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 O rder in this case.