07-001579 Walter Booth vs. City Of Gainesville Status: Closed Recommended Order on Thursday, July 19, 2007.

Summary: Respondent did not discipline Petitioner because of his race or age. Recommend that the Petition for Relief be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WALTER BOOTH , )

)

Petitioner , )

)

vs. ) Case No. 07 - 1579

)

CITY OF GAINESVILLE , )

)

Respondent . )

)

RECOMMENDED ORDER

Administrative Law Judg e Don W. Davis of the Division of

Administrative Hearings (DOAH) held a formal hearing in this cause

in Gainesville, Florida, on June 21, 2007. The following

appearances were entered:

APPEARANCES

For Petitioner: Walter Booth, pro se

2810 Northeast 13th Street

Gainesville, Florida 32609

For Respondent: Daniel M. Nee, Esquire

City of Gainesville

200 East University Avenue, Suite 425

Gai nesville, Florida 32601 - 5456

STATEMENT OF THE ISSUE

The issue for determination is whether Petitioner was

subjected to an unlawful employment practice by Respondent due to

Petitioner's race in violation of Section 760.10, Florida

Statutes.

PRE LIMINARY STATEMENT

Petitioner filed a Charge of Discrimination against

Respondent with the Florida Commission on Human Relations (FCHR)

on August 15, 2007, alleging his suspension from employment with

Respondent for a period of five days without pay w as disparate

treatment taken against him as the result of Petitioner's race.

On or about February 19, 2007, the FCHR issued its

determination: No Cause.

On or about March 25, 2007, Petitioner filed a Petition for

Relief with the FCHR. Subsequ ently, on or about April 5, 2007,

the case was forwarded to DOAH for formal proceedings.

During the final hearing, Petitioner testified in his own

behalf, presented testimony of one other witness and offered five

exhibits of which four were admitted i nto evidence. Respondent

presented testimony of two witnesses and 17 exhibits which were

admitted into evidence.

No transcript of the final hearing was provided. Both

parties were offered the opportunity to file proposed findings

of facts and proposed c onclusions of law. Both parties availed

themselves of that opportunity. The Proposed Recommended Order

of each party has been reviewed and considered in the

preparation of this Recommended Order.

References to Florida Statutes are to the 2006 Edition

unless otherwise noted.

FINDINGS OF FACT

1. Respondent employed Petitioner, an African - American

male, on May 6, 1996, as a Code Enforcement Officer. Almost ten

years later, on March 28, 2006, Respondent suspended Petitioner

for five days for violati ng City of Gainesville Personnel Policy

19, Rule 19 , by providing a false sworn affidavit attesting that

a particular property was in compliance with an Order of the

Code Enforcement Board when the property was not in compliance.

Additionally, the Petitio ner received a written warning and

counseling regarding a violation of City of Gainesville

Personnel Polic y 19, Rule 13 , which consisted of neglecting to

perform a required re - inspection of a property for a period of

several months.

2. Petitioner’s w ork as a Code Enforcement Officer

involved “responsible inspection work enforcing compliance with

the City Codes and Ordinances pertaining to zoning, housing,

landscaping, street graphics, lot clearance, junk vehicles, and

related codes and ordinances.”

3. On December 30, 2004, Petitioner received a complaint

regarding violations of the housing code at 220 S outh E ast 1 st

Street, Gainesville, Florida. After inspecting the property

further on January 5, 2005, Petitioner issued the owner a notice

of vio lation allowing the owner until February 5, 2005 to remove

non - operational vehicles and junk, trash and debris from the

property.

4. Petitioner re - inspected for compliance on May 16, 2005,

when he found the property to be in non - compliance with the

n otice. Respondent states that Petitioner referred the case to

the City of Gainesville Code Enforcement Board, and it was

docketed as case number CEB2005 - 106.

5. The City of Gainesville Code Enforcement Board is a

quasi - judicial board created by the City of Gainesville pursuant

to Florida Statutes C hapter 162 and City Code of Ordinances

C hapter 2. The Code Enforcement Board is charged with hearing

cases of alleged violations of the City’s Code.

6. The Code Enforcement Board heard the case on Ju ne 9,

2005, found the owner guilty of the violation, and allowed the

owner until July 13, 2005 to bring the property into compliance.

7. On August 11, 2005, Petitioner made notes in the file

to the effect that the matter had gone to the Code Enforcement

B oard and that he would “inspect for compliance with [the] order

when time is up.” No other case - related activity was noted by

the Petitioner in the time period between the Enforcement Board

hearing on June 9, 2005, and Petitioner’s alleged January 4,

2006 inspection which led to the Affidavit of Compliance issued

by Petitioner on January 6, 2006.

8. On January 4, 2006 Petitioner noted in the file that

the property was in compliance and later executed the Affidavit

of Compliance before a licensed Notary Pu blic after being duly

sworn. Petitioner swore under oath in that Affidavit that the

corrective action ordered by the Board had been taken .

9. In February 2006, a new complaint regarding the above -

referenced property was made to the Code Enforcement Divis ion.

The new complaint was reported by multiple sources.

10. Code Enforcement Supervisor David Watkins investigated

the February 2006 complaint. Watkins found the property not in

compliance and deduced that Petitioner filed the affidavit a

month earlie r with the knowledge that the compliance sworn to in

the Affidavit had not been achieved. Watkins’ determination is

corroborated by photographic evidence presented at the final

hearing and establishes that the property was not in compliance

at the time of Petitioner’s affidavit.

11. Watkins summarized his investigation and findings in a

detailed Supervisory Report. He also learned from an interview

with the owner of the 220 S outh East 1 st Street property that

the owner did not believe he had come into compliance with the

order .

12. Petitioner’s false affidavit misrepresenting the facts

of case number CEB2005 - 106 permitted the violator to evade the

penalty prescribed by the Code Enforcement Board of $250 a day

for a period of 175 days or an accumulated fine of $43,750.

13. Petitioner was issued an Employee Notice on March 28,

2006 for violation of City of Gainesville Personnel Policies and

Procedures, Policy 19, Rules 19 and 13, resulting in a five - day

suspension without pay.

14. Policy 19, Rule 19 , prohibits “immoral, unlawful, or

improper conduct or indecency, whether on or off the job which

would tend to affect the employee’s relationship to his/her job,

fellow workers’ reputations or goodwill in the community.” The

minimum disciplinary action p rovided for a first violation of

Rule 19 is instruction and five day suspension or dismissal.”

Policy 19, Rule 13 prohibits “productivity or workmanship not up

to required standard of performance.” The minimum disciplinary

action provided for a first vio lation of Rule 13 is “written

instruction & cautioning.”

15. Pursuant to the established procedure, Petitioner

challenged the suspension through the three - step grievance

process and was afforded the opportunity to present evidence and

argument to the divi sion manager, department head, and the City

Manager’s Office. The disciplinary action was sustained at each

level .

16. Petitioner compared his case to a case handled by a

white code enforcement officer where that officer was not

disciplined. In response to Petitioner’s allegations, Watkins

reviewed the case referenced by Petitioner to determine possible

existence of violations similar those committed by the

Petitioner. No evidence was discovered by Watkins to support

Petitioner’s allegation s .

17. The allegations raised by Petitioner against his

fellow code enforcement officer were not supported at the final

hearing through proof of execution of a false affidavit by a

similarly situated white employee. The City has had no cases of

similar offenses with in the memory of current management and no

record of past cases.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction over the parties to, and the subject matter of

these proceedings. §§ 120.56(9) and 120.57(1), Fla. Sta t.

19. Chapter 760, Florida Statutes, the "Florida Civil

Rights Act of 1992," provides security from discrimination based

upon race, color, religion, sex, national origin, age, handicap,

or marital status.

20. The adverse effectuation of an employe e’s

compensation, conditions and privileges of employment on the

basis of race is an unlawful employment practice.

21. The burden of proof rests with Petitioner to show a

prima facie case of employment discrimination. After such a

showing by Petitio ner, the burden shifts to Respondent to

articulate a nondiscriminatory reason for the adverse action.

If Respondent is successful and provides such a reason, the

burden shifts again to Petitioner to show that the proffered

reason for adverse action is pre - textual. School Board of Leon

County v. Hargis , 400 So. 2d 103 (Fla. 1st DCA 1981).

22. Also, provisions of Chapter 760, Florida Statutes, are

analogous to those of Title VII of the Civil Rights Act of 1964,

42 U.S.C. Sections 2000e, et seq . See Depar tment of Corrections

v. Chandler , 582 So. 2d 1183 (Fla. 1st DCA 1991). Petitioner

must show that: (a) he belongs to a racial minority; (b) he was

subjected to an adverse employment action; (c) he was qualified

for his position; and (d) Respondent treated similarly situated

employees outside the protected class more favorably. Holifield

v. Reno , 115 F.3d 1555, 1562 (11th Cir. 1997). Petitioner has

not met his initial burden of proof and cannot show that

Respondent's suspension of Petitioner from employme nt was a

pretext for intentional discrimination because he did not show

that Respondent treated "similarly situated" employees outside

his protected class more favorably. See Abel v. Dubberly , 210

F.2d 1334, 1339 (11th Cir. 2000) where the court stated, " absent

some other similarly situated but differently disciplined

worker, there can be no disparate treatment."

23. Petitioner offered no evidence of other similarly

situated but differently disciplined workers. Respondent's

policy is applied in a co nsistent manner to all employees

without regard to the employee's race.

24. The testimony and other evidence produced by

Petitioner are not sufficient to establish that racial

discrimination by Respondent toward Petitioner occurred.

Petitioner failed t o show that Respondent’s basis for his

termination was pre - textual in any way.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That a Final Order be entered dismissing the Petition for

Rel ief.

DONE AND ENTERED this 1 9 th day of July , 2007 , in

Tallahassee, Leon County, Florida.

S

DON W. DAVIS

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 1 9 th day of July , 2007 .

COPIES FURNISHED :

Daniel M. Nee, Esquire

City of Gainesvill e

200 East University Avenue, Suite 425

Gainesville, Florida 32601 - 5456

Walter Booth

2810 Northeast 13th Street

Gainesville, Florida 32609

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee , 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 da ys from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issu e the Final Order in this case.