07-003030 Gwendolyn Boyd vs. City Of North Miami, Florida Status: Closed Recommended Order on Tuesday, March 4, 2008.

Summary: Petitioner failed to prove an unlawful employment practice. She did not produce evidence to establish that the Respondent`s legitimate, non-discriminatory reasons for failing to give her a raise were pretextual.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GWENDOLYN BOYD, )

)

Petitioner, )

)

vs. ) Case No. 07 - 3030

)

CITY OF NORTH MIAMI, FLORIDA, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

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

on Novem ber 27 and 28, 2007, by video teleconference, with the

parties appearing in Miami, Florida, before Patricia M. Hart, a

duly - designated Administrative Law Judge of the Division of

Administrative Hearings, who presided in Tallahassee, Florida.

APPEARANCES

For Petitioner: Wendy A. Delvecchio, Esquire

Conrad & Scherer, LLP

633 South Federal Highway

Fort Lauderdale, Florida 33302

For Respondent: Lynn Whitfield, Esquire

City of North Miami

776 Northeast 125th Street

Miami, Florida 33161

STATEMENT OF THE ISSUE

Whether the Respondent discriminated against the Petitioner

on the basis of national origin, in violation of t he Florida

Civil Rights Act of 1994, Section 760.10(1), Florida Statutes

(2005). 1

PRELIMINARY STATEMENT

On June 29, 2007, Gwendolyn Boyd filed with the Florida

Commission on Human Relations ("FCHR") a Petition for Relief

from an Unlawful Employment Practic e, in which she alleged that

the City of North Miami ("City") had denied her a salary

increase based on impermissible considerations of her national

origin. The FCHR transmitted the Petition to the Division of

Administrative Hearings for assignment of an administrative law

judge. After one continuance, the final hearing was held

pursuant to notice on November 27 and 28, 2007.

At the hearing, Ms. Boyd testified in her own behalf and

presented the testimony of Clarence Patterson; Josaphat

Celestin; John Del lagloria; Hans Ottinot; and Rebecca Jones.

Petitioner's Exhibits 1 through 12, 14 through 22, and 24

through 26 were offered and received into evidence; Petitioner ’s

Exhibit 26 is the transcript of the deposition of Carlos Perez,

which was admitted into e vidence in lieu of live testimony. The

City did not offer any testimony; Respondent's Exhibits 1 and 2

were offered and received into evidence.

The parties also submitted a Pre - Hearing Stipulation which

included a number of facts admitted by the parties a nd requiring

no proof. Among the admitted facts were the stipulations that

Ms. Boyd had established a prima facie case of employment

discrimination based on national origin; that the City had

established a legitimate, non - discriminatory reason for its

act ion; and that the only issue to be determined in this

administrative action is whether the City's legitimate, non -

discriminatory reason was "legitimate" or "pretextual."

The four - volume transcript of the proceedings was filed

with the Division of Administr ative Hearings on January 15,

2008. The parties timely filed proposed findings of fact and

conclusions of law, which have been considered in the

preparation of this Recommended Order.

STIPULATED FACTS

Facts admitted by the parties and included in their P re - Hearing

Stipulation

1. The City of North Miami ("City") hired

Gwendolyn Boyd as its Police Chief on

January 14, 2002.

2. At the time the City hired Ms. Boyd, the

Police Chief salary grade was 39, which

ranged from $70,948.00 to $105,164.00.

3. Ms. Boyd is African - American.

4. On September 23, 2003, the City Council

voted to terminate its City Manager, Irma

Plummer.

5. At the same September 23, 2003, meeting,

the City Council voted to accept Mayor

Josaphat Celestin's recommendation to engage

Ms. Boyd and the City's Interim City

Manager.

6. Mayor Celestin is Haitian - American.

7. On October 23, 2003, Ms. Boyd entered

into a written agreement, termed a "Letter

of Understanding," with the City to serve as

the Interim City Manager for a period of

thirty (30) days effective October 24, 2003.

8. Mayor Celestin executed Ms. Boyd's

October 23, 2003, Letter of Understanding on

behalf of the City.

9. The Letter of Understanding between the

City and Ms. Boyd provided that when she

returned to her posi tion of Police Chief,

she would receive $2,313.20 weekly (roughly

$120,000 a year) and yearly increases of 5 %

on her anniversary date.

10. Subsequent to the execution of the

Letter of Understanding between Ms. Boyd and

the City, Director of Personnel

Ad ministration, Rebecca Jones, sent a

memorandum dated October 27, 2003, to

Mayor Celestin advising him that the amount

to be paid to Ms. Boyd upon her return to

her position as Police Chief exceeded

Ms. Boyd's current pay range and, therefore,

she could not be paid that amount.

11. According to Ms. Jones ’ memorandum,

Ms. Boyd, as Police Chief, was at the top of

her pay range 39 - 9, and she would not be

entitled to merit increases and would only

receive cost - of - living adjustments until the

City Manager would upgrade her

classification.

12. At its meeting on January 27, 2004, the

City Council selected Mr. Clarence Patterson

as its City Manager.

13. Mr. Patterson is African - American.

14. Mr. Patterson assumed his official

duties as City Manager on February 24, 2004.

15. On February 25, 2004, Ms. Boyd returned

to the position as Police Chief.

16. On March 9, 23, and 30, 2004, the City

Commission [Council?] voted to approve new

pay plans for the City Manager and the

Deputy City Manager, as well as the new ly

created position of Chief of Staff.

17. During March 2004, the Deputy City

Manager was a Caucasian Male, and the Chief

of Staff was a Haitian - American Female.

18. Mayor Celestin continued in office

until Mayor Kevin Burns was sworn in on

May 24, 200 5.

19. Mr. Patterson provided an affidavit

which states that he decided not to upgrade

Ms. Boyd's classification upon becoming the

City's City Manager because her pay range

was already higher than most other

department heads' pay ranges.

20. On Septemb er 9, 2004, during the budget

process for [the] 2004 - 2005 year, a pay

grade classification and title change was

proposed by John Dellagloria, City Attorney,

for a number of positions within the City

Attorney's office including: Deputy City

Attorney, Parale gal/Legal Secretary and

Legal Secretary. The reason for the

requested pay grade change was to regain

parity between the City Attorney's Office

and the City Manager's Office [sic] with

regard to salaries.

21. During the City Council meeting on

September 21, 2004, the [City] Council

initially approved the Deputy City

Attorney's pay grade change, but deferred to

the City Manager, and the pay grade was not

changed at that time.

22. Patricia Saint Vil - Joseph was hired as

the City's Deputy City Attorney on

N ovember 15, 1999.

23. On October 26, 2004, Mayor Celestin

proposed to the City Council that Ms. Saint

Vil - Joseph be appointed as the Interim City

Attorney.

24. At its October 26, 2004, meeting, the

City Council approved the hiring of

Ms. Saint Vil - Jose ph as the Interim City

Attorney and further advised the Mayor to

follow the same procedure/percentage

increase for compensation as used when the

Chief of Police was hired as the Interim

City Manager. (see transcript of City

Council meeting[.])

25. On Oct ober 27, 2004, Ms. Saint Vil -

Joseph entered into a Letter of

Understanding with the City, to be effective

November 1, 2004, regarding the position of

Interim City Attorney.

26. Ms. Saint Vil - Joseph's Letter of

Understanding provided for the increase of

h er salary from $37.66 per hour (roughly

$78,332 a year) to $58.93 per hour (roughly

$122,574 a year).

27. Ms. Saint Vil - Joseph's Letter of

Understanding further provided that "upon

selection of a new City Attorney, or upon

the Council removing Joseph fro m the

position of Interim City Attorney, Joseph

shall return to her current position of

Deputy City Attorney, and shall return to

her current pay grade."

28. On April 26, 2005, Mayor Celestin

proposed that the Deputy City Attorney's pay

grade be upgraded and that Ms. Saint Vil -

Joseph, upon returning to the position of

Deputy City Attorney, retain the same salary

she received as the Interim City Attorney.

The upgrade was approved by [the City]

Council by a vote of 4 - 0 and the City

Manager did not oppose t he motion. The

range for salary grade 42 was $82,201 to

$121,700.

29. On May 2, 2005, Ms. Saint Vil - Joseph

returned to her former position of Deputy

City Attorney. Because she was making more

as the Interim City Attorney, her pay had to

be adjusted dow nward so that she could

remain within her new pay grade.

30. In October 2005, two years after

entering into the Letter of Agreement

[ Letter of Understanding?] with the City,

Ms. Boyd received an upgrade in her salary

to grade 41, which ranged from $82,28 4 to

$121,742. Ms. Saint Vil - Joseph's new pay

grade was changed to 42, which ranged from

$86,340 to $127,857.

31. The parties have stipulated to the

factual findings by the Florida Commission

on Human Relations that:

(1) Ms. Boyd was able to establis h a

prima facie case of national origin

discrimination because:

a. Ms. Boyd is a member of a protected

class, national origin (African American);

b. Ms. Boyd did not get an increase in

salary as promised;

c. Ms. Boyd was qualified for the

position as evidenced by the fact that she

had already been in the position for at

least one year; and

d. The City did treat similarly

situated employees outside Ms. Boyd's

protected class more favorable as evidenced

by the fact that Ms. Saint Vil - Joseph did

re ceive a salary increase.

(2) The City's articulated

"legitimate, non - discriminatory reason" for

not allowing Ms. Boyd to retain the salary

amount paid while she served as Interim City

Manager was that the increased salary

exceeded the Police Chief's pay grade, and

that, at the time, Ms. Boyd was already

making more than most of the City's

department heads.

32. The remaining factual issue to be

resolved is whether the City's articulated

legitimate, non - discriminatory reason is (1)

legitimate or (2) pret extual.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

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

following findings of fact are made:

1. According to the Charter of the City of North Miami

("City Chart er"), the City has a "council - manager" form of

government. All powers of the City are vested in an elected

City Council, including the power "to enact legislation, adopt

budgets, and determine policies." The City Council also

appoints the City Manager to administer the City's government. 2

2 . The City Council consists of four council members and a

mayor. The mayor presides at the City Council meetings and is

"recognized as the head of the city government for all

ceremonial purposes . . . and shall have a voice and vote in the

proceedings of the council, but shall have no regular

administrative duties." 3

3 . The City Manager "shall be the chief administrative

officer of the city, responsible to the council for the

administration of all city affairs placed in the manager's

charge by or under" the City Charter. Among those powers is the

power to "[d]irect and supervise the administration of all

departments, offices and agencies of the city, except as

otherwise provided by the charter or by law." 4 The City's Police

Department is an administrative department of the City, and the

Police Chief, as head of the Police Department, supervises and

controls the department "subject to the city manager." 5

4 . The City Attorney is the head of the City's Department

of Law and is appointed by the City Council. The City

Attorney's salary is fixed by the council and included in the

budget. 6 The Department of Law is not an administrative

department subject to the direction and supervision of the City

Manager. 7

5 . The City M anager is responsible for proposing salary

increases to the City Council for the department heads under his

supervision, which includes the Police Chief. The heads of the

various administrative departments are responsible for proposing

salary increases to the City Manager for the employees under

their supervision.

6 . The City Attorney is responsible for proposing salary

increases to the City Council for the employees under his

supervision, which includes the Deputy City Attorney.

7 . The salaries of all C ity officers and employees,

including the City Manager and the City Attorney, must be within

the ranges provided in the City's pay plan. If someone is hired

at a salary outside the salary range for the position in the pay

plan, or if someone is promoted o r given a salary increase that

is outside the salary range in the pay plan for the position,

the pay plan must be amended by the City Council to re - classify

the position or to increase the maximum salary for the position.

8 . Ms. Boyd was hired as the City 's Police Chief in

January 2002 at a pay grade of 39 - 9, the maximum salary for the

position. Consequently, she had received only cost - of - living

raises since January 2002.

9 . In October 2003, after the City Council appointed

Ms. Boyd as Interim City Manag er, John Dellagloria, then the

City Attorney, prepared a Letter of Understanding at the

direction of Mayor Celestin to address Ms. Boyd's salary and

benefits while serving as Interim City Manager. Ms. Boyd spoke

with Mr. Dellagloria as he was preparing th e Letter of

Understanding and told him that she wanted him to include a

provision increasing her salary upon her return to her position

as Police Chief. After talking with Mayor Celestin,

Mr. Dellagloria included a provision specifying the salary that

Ms. Boyd would receive when she left the position of Interim

City Manager and returned to her position as Police Chief.

10 . Mayor Celestin and Ms. Boyd executed the Letter of

Understanding on October 23, 2003.

11 . Mayor Celestin's signature on the Letter of

Understanding signified his intention that Ms. Boyd would

receive a salary increase when she returned to her position as

Police Chief. Mayor Celestin understood, however, that he could

prepare letters of understanding that implemented resolutions of

the City Council that he did not have the power to bind the City

by his signature on a document in the absence of a City Council

resolution or other directive. The City Council action

appointing Ms. Boyd Interim City Manager did not include

anything related t o her salary when she returned to her position

as Police Chief.

12 . The salary increase included in the Letter of

Understanding for Ms. Boyd when she returned to her position as

Police Chief exceeded the maximum salary range specified in the

City's pay pl an for her pay grade of 39 - 9. Rebecca Jones, the

City's Director of Personnel, noticed this when she prepared the

Personnel Action Form to send to the City Manager for his

approval of the salary agreement with Ms. Boyd when she became

Interim City Manager . Ms. Jones advised Mayor Celestin that the

raise could not be given without the City Council's approval of

an amendment in the pay plan, but she did not discuss her

conclusion with Ms. Boyd as Interim City Manager; Ms. Jones

considered that improper beca use the matter concerned Ms. Boyd.

13 . After he executed the October 23, 2003, Letter of

Understanding, Mayor Celestin was advised by someone in the

Legal Department that he did not have the authority to increase

the salary for the head of an administrati ve department such as

the Police Chief. He was told that this authority was vested in

the City Manager because the City Manager directly supervised

the Police Chief.

14 . Clarence Patterson was appointed City Manager by the

City Council in January 2004. He took office in late

February 2004, and Ms. Boyd returned to her position as Police

Chief at the salary she had received before she was appointed

Interim City Manager.

15. During the time she served as Interim City Manager,

Ms. Boyd served on the screen ing committee for applicants for

the position of City Manager. The committee was to review the

qualifications of the applicants and determine those candidates

who were minimally qualified for the position. Ms. Boyd

presented the report of the committee a t the January 27, 2004,

meeting of the City Council, and reported that the committee had

found only one highly - qualified candidate.

16. Only two candidates attended the January 27, 2004,

meeting, Nadine Pierre Louis and Clarence Patterson;

Mayor Celestin supported Ms. Louis, and Mr. Patterson was backed

by another City Council member. When asked by the City Council

if these two candidates were qualified for the position,

Ms. Boyd reported that they were not: Ms. Louis did not have

the required municipal job experience, and Mr. Patterson did not

meet the educational requirements.

17. Ms. Louis and Mr. Patterson were offered to the City

Council for a vote; Mayor Celestin walked out of the council

room and did not vote; Mr. Patterson was selected by vote of the

City Council. Mr. Patterson was aware that Mayor Celestin did

not support his candidacy.

18. Shortly after Mr. Patterson began as City Manager,

Ms. Jones brought the October 23, 2003, Letter of Understanding

between Mayor Celestin and Ms. Boyd to hi s attention. He

reviewed the city charter and advised Mayor Celestin that he did

not have the authority to give Ms. Boyd a salary increase. Only

the City Manager has that authority under the charger.

19 . Mr. Patterson also discussed the matter of the sa lary

increase referenced in the third paragraph of the October 23,

2003, Letter of Understanding with Ms. Boyd. He told her that

Mayor Celestin did not have the authority to e ffect such a

salary increase, and he also told her that he was not going to

reco mmend to the City Council that it increase her pay grade to

accommodate the salary increase promised by Mayor Celestin.

Having reviewed the pay grades of the administrative department

heads, Mr. Patterson did not consider a raise for Ms. Boyd

appropriate at the time.

20 . Because he had been advised that the Police Chief was

directly supervised by the City Manager and that only the City

Manager had the authority to recommend a salary increase for the

Police Chief , Mayor Celestin did not propose to the City Council

that it either increase Ms. Boyd's salary as Police Chief or

amend the City's pay plan to increase the pay grade for the

Police Chief so that Ms. Boyd could receive the salary increase

included in the Letter of Understanding dated October 23, 2003 .

Mayor Celestin did, however, assure Ms. Boyd several times that

he would "take care of it."

21 . At the last meeting of his tenure as mayor,

Mayor Celestin propose d to the City Council that Ms. Saint Vil -

Joseph receive a salary increase so that she coul d retain the

same salary when she returned to her position as Deputy City

Attorney that she received while serving as Interim City

Attorney.

22. Mr. Patterson did not oppose the proposal because the

salary increase for Ms. Saint Vil - Joseph was not a "pay raise"

as such, but, rather , implemented a prior decision of the City

Council to achieve parity between the Deputy City Attorney and

Deputy City Manager. 8 An amendment in the pay plan to increase

the pay grade for the Deputy City Attorney was passed by th e

City Council by a vote of 4 to 0, and the Personnel Action form

dated May 2, 2005, reflecting a change of pay grade for the

position of Deputy City Attorney was approved by Hans Ottinot,

City Attorney; Ms. Jones, personnel directory; and

Mr. Patterson, C ity Manager.

23. Ms. Saint Vil - Joseph is a Haitian American.

24. In October 2005, Ms. Boyd's pay grade was increased

from 39 to 41, and she received a concomitant salary increase.

25 . Ms. Boyd presented the following testimony as evidence

that the City' s legitimate, non - discriminatory reason for

failing to increase her pay grade and salary when she returned

to her position as Police Chief in February 2004 was a pretext

for discrimination on the basis of national origin: 9

Q.[by Ms. Whitfield] And that's really your

issue here, isn't it? You believe that he

[Mayor Celestin] violated his letter of

understanding with you, correct?

A. He violated his letter of understanding

and he's discriminated against me because of

the clashes that we had pertaining to the

hiring of Haitian African, the clash that we

had over his referring to some of my

directors are racist, and because I would

not void a ticket that was given by another

white officer, and the fact that I would not

hire some of the people that he --

Q. Well, let me ask you this. When all of

that happened, was that before he signed a

letter of understanding with you or after?

A. It was afterwards.

Q. Was is [sic] before you went back to

being police chief or after?

A. It was during the period.

Q. So it was during that period?

A. It was before I returned to my position

as police chief.

Q. Okay. So when? When was it?

A. There were several incidents. A couple

of police applicants who he referred, one

was a personal friend and I had to find out

why they were turned down. Another incident

pertaining to the -- he thought we weren't

doing enough to hire Haitian applicants and

wanted me to do away with the --

Q. Let me ask you this. You were both the

interim city manager and the police chief at

the same time?

A. No. I was not.

Q. Okay. Who was head of the police

department then?

A. I had my two assistant chiefs to

alternate service as the acting police

chief.

Q. So as acting police chief, they would be

responsible for making recommen dations and

hiring decision to take to the city manager?

A. No. What they would do, if [sic] they

would do the complete background process and

they will [sic] decide on who was qualified

and who was not, and because a couple of

people did not get hired the mayor asked me

about this and I had to meet with the

assistant chief to find out why those

individuals were disqualified. And they

were for valid reasons, but the mayor did

not want to believe me. He thought we were

just not doing enough to hire Hait ian

Africans and made a suggestion -- or made

the remark that he was going to bring Guy

Eugene (phonetic_. who is a police

lieutenant, Haitian police lieutenant with

Miami, that maybe he would want my job as

police chief.

Q. Do you have any documentation or

anything else to corroborate what you're

telling use was said by Mayor Celestin about

your hiring of Haitians or not hiring of

Haitians?

A. Only the testimony of my staff at the

police department.

Q. My question is, do you have any

documentation he re --

A. I didn't write that down. I didn’t --

discussions every day because I was trying

to just get through the interim period and

returning to be police chief.

CONCLUSIONS OF LAW

26 . The Division of Administrative Hearings has

jurisdiction over th e subject matter of this proceeding and of

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

Florida Statutes (200 7 ).

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

Civil Rights Act of 1992, as amended, provides in pertinent

part:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire any individual, or otherwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges or employment, b ecause of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

28 . Florida courts routinely rely on decisions of the

federal courts construing Title VII of the Civil Rights Act of

1964, codified at Title 42, Se ction 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

Insurance 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) .

29 . Ms. Boyd has the burden of proving by a preponderance

of the evidence that she was the victim of employment

discrimination on the basis of her national origin as an African

American , and she can establish discrimination either through

direct evidence of discrimination or through circumstantial

evidence, which is evaluated w ithin the framework of the burden -

shifting analysis first articulated in McDonnell Douglas Corp.

v. Green , 411 U.S. 792, 802 - 04 (1973). See Logan v. Denny's

Inc. , 259 F.3d 558, 566 - 67 (11th Cir. 2001).

30. To establish discrimination through circumstanti al

evidence, as set forth in McDonnell Douglas , Ms. Boyd must

establish a prima facie case of discrimination by producing

evidence to show that (1) she is the member of a protected

class; (2) she suffered an adverse employment action; (3) she

was qualified to do the job; and (4) she was treated differently

than a similarly - situated person outside the protected class .

See Haas v. Kelly Servs. Inc. , 409 F.3d 1030, 1035 (8th Cir.

2005); Chapman v. AI Transp. , 229 F.3d 1012, 1024 (11th Cir.

2000). As noted ab ove in the Stipulated Facts, the parties have

stipulated that Ms. Boyd has established a prima facie case of

discrimination on the basis of her national origin. 10

31. Since the parties stipulated that Ms. Boyd established

a prima facie case of discriminati on on the basis of national

origin, the burden shifts to the City to produce evidence

articulating "a legitimate, non - discriminatory reason" for the

adverse employment action. Id. As noted above in the

Stipulated Facts, the parties have stipulated that t he City has

articulated a "legitimate, non - discriminatory reason" for its

failure to give Ms. Boyd an increase in her pay grade and salary

so that she would receive the same salary when she returned to

her position as Police Chief as she received during th e months

she served as Interim City Manager.

32. Since the parties stipulated that the City articulated

a "legitimate, non - discriminatory reason " for its failure to

raise Ms. Boyd's salary when she returned to her position as

Police Chief, the burden shif ts to Ms. Boyd to produce evidence

that the reason articulated by the City was a pretext for

discrimination. Jones v. School Dist. of Philadelphia , 198 F.3d

403, 410 (3d Cir. 1999). Ms. Boyd can establish that the reason

given by the City for its failure to act was merely a pretext

for discrimination (1) by presenting evidence that casts doubt

on the reason articulated by the City and supports the

conclusion that the reason offered was a fabrication or (2) by

presenting evidence sufficient to support an i nference that

Ms. Boyd's termination was more likely than not motivated by

discrimination. See Fuentes v. Perskie , 32 F.3d 759, 762

(3d Cir. 1994). The evidence offered to establish that the

reason offered by the City for failure to increase Ms. Boyd's

p ay grade and salary was pretextual "must demonstrate such

weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions in the employer's proffered reasons for its

action that a reasonable fact finder could rationally find them

unworthy o f credence, and hence infer that the employer did not

act for [the asserted] non - discriminatory reasons." Id .

33. Based on the findings of fact herein, Ms. Boyd has

failed to produce evidence that the City's articulated reason

for its failure to increase Ms. Boyd's pay grade was a pretext

for discrimination and has, therefore, failed to prove by a

preponderance of the evidence that the City engaged in an

unlawful employment practice. Mayor Celestin was the only

person in the City government that indicate d to Ms. Boyd that he

intended for her to maintain the salary she received as Interim

City Manager when she returned to her position as Police Chief.

Mayor Celestin was also the only person in the City government

to whom Ms. Boyd attributed a discriminato ry motive for his

failure to bring before the City Council the issue of a raise in

her pay grade and an increase in her salary.

34. There is, however, no question that, under the City

Charter, Mayor Celestin did not have the authority to bind the

City wit h any promise in the Letter of Understanding of

October 23, 2003, that was not supported by a directive from the

City Council. The evidence is uncontroverted that the City

Council did not authorize Mayor Celestin to promise Ms. Boyd

that she would retain the same salary she was receiving as the

Interim City Manager when she returned to her position as Police

Chief. The City Charter clearly provides that the Mayor of the

City has no administrative duties but serves as the presiding

member of the City Counc il. Although Mayor Celestin could have

brought the matter before the City Council, he was not bound to

do so by the October 23, 2003, Letter of Understanding, and his

failure to do so cannot be attributed to the City, regardless of

his motives.

35. In an y event, the reasons Ms. Boyd gave for her belief

that Mayor Celestin's failure to bring the pay - grade/salary

issue before the City Council was attributable to a motive to

discriminate against her because she is African American are

uncorroborated, too vag ue and non - specific to be credible or

persuasive, and wholly insufficient to render suspect the non -

discriminatory reason for the City's failure to increase the pay

grade for the Police Chief and increase Ms. Boyd's salary in the

winter and spring of 2004.

36. According to the greater weight of the evidence,

Mayor Celestin did not take the matter of the increase in pay

grade and salary for the Police - Chief position to the City

Council because he had been told both by the City's Legal

Department and by Mr. Patterson that he had no authority to

propose salary increases for the heads of administrative

departments. Pursuant to the City Charter, the City Manager is

responsible for supervising and directing administrative

department heads, including the Police C hief, and it was his

responsibility to propose to the City Council an increase in the

pay grade for the Police Chief's position and an increase in

Ms. Boyd's salary. The reason offered by Mr. Patterson for his

failure to make such a proposal to the City C ouncil, that

Ms. Boyd was making as much or more than other administrative

department heads, is not so weak, implausible, inconsistent,

incoherent, or contradictory as to support the inference that

the only reason for his action was discriminatory.

37. Fu rthermore, the evidence presented by Ms. Boyd was

devoid of any possible discriminatory motive for Mr. Patterson's

refusal to propose an increase in the Police Chief's pay grade

and Ms. Boyd's salary. Rather, Ms. Boyd's evidence regarding

Mr. Patterson's possible motive for his refusal to take the pay -

grade/salary increase to the City Council was that she did no

support him for the position of City Manager when she was a

member of the selection committee. Even if Mr. Patterson's

actions were based on such a motive, it would not be an

unlawful, discriminatory employment practice within the

prohibitions of Section 760.10, Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Comm ission on Human

Relations enter a final order dismissing the Petition for Relief

from Unlawful Employment Practice filed by Gwendolyn Boyd.

DONE AND ENTERED this 4th day of March , 200 8 , in

Tallahassee, Leon County, Florida.

S

___________________________________

PATRICIA M. HART

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 4th day of March , 200 8 .

ENDNOTES

1 / All references to the Florida Statutes are to the 2005

edition unless noted otherwise.

2 / Petitioner's Exh. 4, Art. I, § 2.

3 / Petitioner's Exh. 4, Art. II, §§ 5 and 8.

4 / Petitioner's Exh. 4, Art. III, § 25.

5 / Petitioner's Exh. 4, Art. III, §§ 27 and 28.

6 / Petitioner's Exh. 4, Art. VII, §§ 84 and 85.

7 / See Petitioner's Exh. 4, Art. III, §§ 25, 27, and 28.

8 / On October 5, 2003, before Mr. Patterson became City manager,

the City Council voted, at the request of Mr. Dellagloria, to

bring the salary of the City Attorney into parity with the

salary of the City Manager. According to Mr. Patterson's

recollection, the decision to bring the salary of the Deputy

City Attorney into parity with the sala ry of the Deputy City

Attorney was made during the tenure of Hans Ottinot, who served

as City Attorney from approximately March 2005 to June 2005.

9 / Transcript, volume IV, pages 475 - 78 and as summarized by

Ms. Boyd in her Proposed Recommended Order at page 15,

paragraph 75.

10 / The parties stipulated to the finding of the FCHR that

Ms. Boyd had established a prima facie case of discrimination

based on national origin. The parties apparently felt they were

bound by the FCHR's findings. See Transcript , volume IV,

pages 479 - 80. The findings of the FCHR are not, however,

binding in an administrative hearing conducted pursuant to

Section 120.57(1), Florida Statutes, because such a hearing is a

de novo proceeding, in which the findings of fact are base d

exclusively on the evidence contained in the record of the

proceeding. See § 120.57(1)(f), (j), and (k), Fla. Stat.

Absent the stipulation of the parties limiting the issue

presented for decision herein and based exclusively on the

record of this proce eding, a different finding/conclusion may

have been reached regarding Ms. Boyd's having established a

prima facie case of discrimination based on national origin.

COPIES FURNISHED:

Wendy A. Delvecchio, Esquire

Conrad & Scherer, LLP

633 South Federal Hig hway

Fort Lauderdale, Florida 33302

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Vennie Lynn Whitfield, Esquire

City of North Miami

776 Northeast 125th Street

North Mia mi, Florida 33161

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 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.