08-004911 Albert L. Prevatt, Sr. vs. County Of Volusia Status: Closed Recommended Order on Monday, August 3, 2009.

Summary: Recommend that the Petition for Relief be denied in its entirety.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALBERT L. PREVATT, SR., )

)

Petitioner, )

)

vs. ) Case No. 08-4911

)

COUNTY OF VOLUSIA, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon proper notice this cause came on for formal hearing

before P. Michael Ruff, a duly-designated Administrative Law

Judge of the Division of Administrative Hearings, on April 22,

2009, in Deland, Florida. The appearances were as follows:

APPEARANCES

For Petitioner: Clifford J. Geismar, Esquire

Law Offices of Clifford J. Geismar, P.A.

Crealde Executive Center

2431 Aloma Avenue, Suite 150

Winter Park, Florida 32792

For Respondent: Nancye R. Jones, Esquire

County of Volusia

123 West Indiana Avenue

Deland, Florida 32720

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concern whether

the Petitioner was terminated from employment with the

Respondent because of his race. The Petitioner alleges that the

Respondent discriminated against him by engaging in disparate

treatment and retaliation, in violation of Section 760.10,

Florida Statutes (2007).

PRELIMINARY STATEMENT

This cause arose on March 26, 2008, when the Petitioner

filed a complaint with the Florida Commission On Human Relations

(Commission) in which he alleged that the Respondent had

unfairly disciplined and suspended him because of his race

(white) and then retaliated against him, for objecting to his

treatment, by terminating his employment. A determination of no

cause was issued by the Commission on or about September 18,

2008.

The Petitioner filed a Petition for Relief from the alleged

unlawful employment practice on September 26, 2008 and filed an

amended petition on October 20, 2008. The matter was referred

to the Division of Administrative Hearings and the undersigned

Administrative Law Judge to conduct a formal proceeding and

submit a Recommended Order to the Commission.

The formal hearing was duly noticed and held on April 22,

2009. The Petitioner filed a Motion to Dismiss before the

hearing, alleging that the Respondent had not stated a prima

facie case for relief. The motion was denied without prejudice

at the outset of the formal hearing.

The cause came on for hearing and the Petitioner presented

the testimony of five witnesses and had five exhibits admitted

into evidence. The Respondent presented the testimony of one

witness and had four exhibits admitted into evidence. The

Respondent advanced a motion in the nature of a motion for

directed verdict or for dismissal at the conclusion of the

Petitioner's case. The motion was taken under advisement and

the remainder of the hearing was conducted and concluded.

Upon conclusion of the hearing a transcript of the

proceeding was ordered and filed with the Division on May 14,

2009, the parties agreed to an extended time schedule for

submission of proposed recommended orders, which were timely

submitted. The proposed recommended orders have been considered

in the rendition of this Recommended Order.

FINDING OF FACT

1. The Petitioner, Albert L. Prevatt, Sr., was employed

with the Respondent, the Volusia County Department of

Corrections (Department), as a Certified Correctional Officer.

In July 2007, inmate Ronald Williams filed a complaint against

the Petitioner, alleging that he had made a racial slur or

comment directed toward Williams. A number of other inmates

purportedly were present in the cell block at the time of the

alleged racial comment and completed written witness statements

as to what they had heard or observed.

2. Cindy Clifford was the Director of the Department of

Corrections and ordered an Internal Affairs investigation

concerning the matter. Investigator Captain Ken Modzelewski was

assigned to conduct the investigation into the inmate's

allegation. The Petitioner was notified of the investigation

and notified to appear for an interview to address the matter.

The Petitioner was given notice of the Correctional Officers'

Bill of Rights with his initial notice of the internal

investigation.

3. The Petitioner failed to attend the interview and

failed to notify the Internal Affairs Unit or any of his

supervisors that he would not appear for the interview. In

fact, the Petitioner had suffered a dental emergency while at

work on the day of the interview, which his supervisor was aware

of. The Petitioner admitted however that he did not inform his

supervisor of his scheduled Internal Affairs interview that day.

The Petitioner also did not contact the Internal Affairs Unit

after the fact to explain his failure to appear.

4. The Petitioner went on vacation until August 12, 2007,

and was unavailable for an interview. This tolled the statutory

45 day requirement for an Internal Affairs investigation to be

completed. Upon his return, a second interview was scheduled

for August 23, 2007. This was to be the Petitioner's

opportunity to address the inmate's racial comment allegations.

He was notified in writing of the date and time and again did

not appear for the interview at the scheduled time.

5. After the Petitioner failed to appear for the second

interview scheduled, Captain Modzelewski drafted a memorandum to

Director Clifford, dated August 23, 2007. In that memorandum he

requested that the Internal Affairs investigation be

re-assigned due to the Petitioner's two acts of insubordination

in failing to appear at the scheduled interviews. Captain

Modzelewski noted in the memorandum that the actions by the

Petitioner constituted sustained acts of insubordination, was a

pattern of behavior he had exhibited in a previous Internal

Affairs investigation and subjected the Petitioner to

disciplinary action up to and including termination.

6. The investigation was re-assigned to Captain Nikki

Dofflemyer, who is an officer with the Internal Affairs Unit of

the Department. She interviewed the Petitioner on September 4,

2007. The Petitioner at that time admitted saying to inmate

Williams, "You can grab a rope and call the Pope." The

Petitioner also provided a note to Captain Dofflemyer from

inmate Anthony Pletcher which purported to clear him of

Williams' allegations concerning the purported racial slur or

comment.

7. The Petitioner asked Captain Dofflemyer to interview

Pletcher. Captain Dofflemyer interviewed Pletcher, who was then

no longer in custody. At the interview on September 5, 2007,

she obtained the name of another inmate, Shawn Jones, who

purportedly was contacted by the Petitioner to write a letter

exonerating the Petitioner. Pletcher told Captain Dofflemyer

that the Petitioner had, in fact, made the racial comment, but

had asked Pletcher to write the exculpatory note. Pletcher

stated that the note was untrue but that the Petitioner asked

him to write it because the Petitioner was in trouble.

8. Captain Dofflemyer interviewed inmate Jones on

September 6, 2007, while Jones was still in custody. According

to Jones the Petitioner entered the unit where Jones was housed

on September 11, 2007, in the "Branch Jail." This was not the

Petitioner's normal duty station. The Petitioner was off-duty

at the time. Although off-duty, the Petitioner was in uniform

and he had the inmate removed from his cell so the Petitioner

could speak with him. The conversation with the inmate was

interrupted by the Lieutenant in charge of the Branch Jail, who

removed the Petitioner from the premises.

9. The Petitioner was advised that he was not to go to the

Branch Jail where inmate Jones was housed, until the

investigation was complete. That was not the Petitioner's work

assignment area anyway and so this action did not preclude him

from doing his job as a corrections officer.

10. An interview with the Petitioner was scheduled by

Captain Dofflemyer, for the Petitioner to explain his actions of

September 11, 2007. The Petitioner was given a written notice

and directed to appear for the interview, but failed to do so.

11. The Petitioner filed a grievance with Director

Clifford, in which he alleged he was being subjected to a

hostile work environment by being escorted out of the

correctional facility and directed not to return, pending the

outcome of the investigation. Director Clifford responded to

the grievance and determined that the directive to the

Petitioner to refrain from entering the Branch Jail during the

investigation was appropriate and did not constitute the

imposition of a hostile work environment.

12. The Internal Affairs investigation was concluded and a

final report to Director Clifford was made on October 10, 2007.

The investigation sustained charges of: three counts of

insubordination, tampering with a witness, use of violent,

profane, provocative or offensive language, perjury in an

official proceeding, and/or knowingly giving false statements to

supervisors or other officers. Because the violations were

sustained, according to the Internal Affairs investigation Final

Report, Director Clifford issued a Notice of Intent to Terminate

the Petitioner. The notice provided him three days to respond

to all charges, pursuant to the Code of Ordinances of Volusia

County and the Volusia County Merit Rules and Regulations. The

Petitioner did not provide any additional evidence or

information to cause the Director to change her decision that

termination was an appropriate disciplinary action for the

violations of policies and laws that had been sustained as a

result of the investigation. The Petitioner was given a Notice

of Dismissal, dated November 12, 2007, which again set forth the

basis for the action.

13. Based upon the conclusion that criminal laws had been

violated, after consultation with the State Attorney's office,

Captain Modzelewski submitted a complaint affidavit for review

and possible criminal charges to the State Attorney. Ultimately

the State Attorney's office elected not to pursue the charges.

14. The Petitioner exercised his right to an

Administrative Review of the termination, and also filed a

Petition for Writ of Certiori with the Circuit Court, which was

denied. He then pursued this formal proceeding.

15. Subsequent to the Petitioner's termination, in March

2008, a letter was received by the Respondent from the Florida

Department of Law Enforcement (FDLE), notifying the Department

that the Petitioner had made certain allegations against the

Department of Corrections. There is no evidence to show the

Petitioner made any complaints against the Department to the

FDLE, or any other agency, prior to his termination or that the

Respondent was ever aware of any such complaints.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2008).

17. Section 760.10, Florida Statutes (2007), prohibits

discrimination against any person with respect to compensation,

terms, conditions or privileges of employment, because of that

person's race or gender. Florida courts have determined that

Federal case law applies to claims arising under the Florida

Civil Rights Act, Chapter 760 Florida Statutes; therefore, the

United States Supreme Court's instructive decision regarding

burden of proof set forth in McDonnell-Douglas Corp. v. Green ,

411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2nd 668 (1973), applies

to employment discrimination claims arising under the above-

cited section. See Florida Department of Community Affairs v.

Bryant , 586 So. 2d 1205 (Fla. 1st DCA 1991).

18. Under the McDonnell-Douglas proof analysis, the

Petitioner has the burden of establishing a prima facie case of

unlawful discrimination. The standard of proof is by

preponderance of the evidence. In order to do that the

Petitioner must establish that the Respondent acted with a

discriminatory motive. That can be established either by direct

or circumstantial evidence of discriminatory intent. Direct

evidence of discriminatory intent is usually established through

comments made by employers or supervisors that show

discriminatory motive and are related to the employment decision

at issue, both causally and temporally. Carter v. City of

Miami , 807 F.2d 578 (11th Cir. 1989). No evidence was presented

by the Petitioner of any discriminatory remarks or comments made

by Director Clifford, the person ultimately responsible for the

termination decision nor by any other supervisory personnel.

19. In order to prove intentional discrimination, the

Petitioner must establish that the Respondent intentionally

discriminated against him by terminating him because of his

race. There is no basis in the law for a court or

Administrative Law Judge to question or second-guess a decision

to terminate a Petitioner, unless there is evidence of

discriminatory intent underlying that termination. As stated in

the case of Chapman v. A.Iansport , 229 F.3d 1012, 1031 (11th

Cir. 2000):

Federal courts do not sit as a super-

personnel department that reexamines an

entity's business decisions . . . No matter

how mistaken the firm's managers, the (Civil

Rights Act) does not interfere. Rather our

inquiry is limited to whether the employer

gave an honest explanation of its behavior

(citations omitted).

An "employer may fire an employee for a

good reason, a bad reason, a reason based on

erroneous facts, or for no reason at all as

long as its action is not for a

discriminatory reason." NIX v. WLCY

Radio/Rahall Communications , 738 F.2d 1181,

1187 (11th Cir. 1984).

The Racial Discrimination Claim

20. The Petitioner maintains that he was terminated

because of racial discrimination, asserting that the Respondent

engaged in disparate treatment and retaliation. In order to

establish a prima facie case of racial discrimination based on

disparate treatment, the Petitioner must show: (a) that he

belongs to a protected class; (b) that he was subjected to an

adverse employment action; (c) that he was qualified for his

position; and (d) that the Respondent treated similarly-situated

employees outside the protected class more favorably. See

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

21. If a prima facie case is established, the burden then

shifts to the Respondent, as the 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 then

shifts back to the Petitioner to show, by a preponderance of the

evidence, that the Respondent's stated reasons for its adverse

employment decision were pretextual See Texas Department of

Community Affairs v. Burdine , 450 U.S. 248, 101 S. Ct. 1089, 67

L. Ed. 2nd 207 (1981).

22. Even if the trier of fact determines that the reasons

put forward by the Respondent justifying its employment action

taken are untrue, the ultimate burden of persuasion still

remains with the Petitioner to prove the ultimate question of

whether the Respondent intentionally discriminated against the

Petitioner, as to one or more of the statutorily recognized

types of discrimination. Simply disbelieving the employer's

version of events or reasons is not enough; the fact-finder must

also believe the explanation by the Petitioner of intentional

discrimination. See St. Mary's Honor Center v. Hicks , 509 U.S.

502, 522 (1993).

23. In cases involving alleged racial bias and the

application of discipline for violation of work rules, the

Petitioner, who must be a member of the protected class, must

demonstrate: (1) That he did not violate the work rule, or (2)

that he engaged in misconduct similar to that of a person

outside of the protected class and that the disciplinary

measures enforced against him were more severe than those

enforced against other persons, outside the protected class, who

engaged in similar conduct. McCalister v. Hillsborough County

Sheriff , 211 F. Appx. 883 (11th Cir. 2006), Jones v. Gerwens ,

874 F.2d 1534, 1540 (11th Cir. 1989). A petitioner is

similarly-situated to another employee only if "the quantity and

quality of the comparator's misconduct (are) nearly identical. .

. " Burke-Fowler v. Orange County, Fla. , 447 F.3d 1319, 1323

(11th Circuit 2006); citing Maniccia v. Brown , 171 F.3d 1364,

1368 (11th Cir. 1999).

24. Petitioner has established that he is a member of a

protected group, a white male. He also established that he was

subjected to an adverse employment action because he was

terminated from his job. He presented no evidence, however,

that his race played a part in his termination. There is no

persuasive evidence to show that any similarly-situated employee

outside his protected class, who engaged in nearly identical

conduct, was treated more favorably by the Respondent with

respect to disciplinary action.

25. The Petitioner presented evidence that he asserts

established that his termination was the result of disparate

treatment. The evidence offered showed that there were two

instances when an African-American employee of the Department

violated a rule or policy and was subjected to a lesser

punishment. In one case, the employee committed one act of

insubordination and nothing more, and received a written

reprimand. This is not comparable to the Petitioner's multiple

acts of insubordination, as well as numerous other sustained

serious violations.

26. In the second situation, an African-American employee

admitted to failing to properly document rounds made while on

duty and received a penalty less than that received by the

Petitioner. Here again, the misconduct committed by the

African-American officer was not "nearly identical" to that of

the Petitioner.

27. The Petitioner also presented evidence that three

Hispanic officers were accused of sexual battery by an inmate.

All allegations against these officers, however, were determined

to be unfounded or unsubstantiated after an Internal Affairs

investigation. Thus no disciplinary action was taken against

them. Clearly, this case is not comparable to the Petitioner's

for purposes of a disparate treatment claim. In other words,

those three officers were found not to have committed the

violative conduct at all, so they could not be similarly-

situated to the Petitioner. Since the Petitioner has failed to

establish this element, he has not established a prima facie

case of employment discrimination.

28. Assuming arguendo that a prima facie case had been

made, the Respondent presented evidence of legitimate, non-

discriminatory reasons for terminating the Petitioner. The un-

rebutted evidence presented by the Respondent established that

the Petitioner was terminated for multiple violations of

Department policies and Volusia County rules and regulations.

29. The Petitioner contends that he was not afforded the

opportunity of a "valid" investigation and that the Corrections

Officers Bill of Rights was violated. The Petitioner claims

that had the investigation been performed differently, a

different conclusion might have been reached.

30. The Respondent initiated its investigation based on a

written complaint from an inmate, not an uncommon occurrence in

a correctional setting. From the inception of the

investigation, however, the Petitioner's own actions determined

the outcome. He repeatedly failed to appear, or provide an

explanation for failing to appear, for his interviews, which

were being conducted in an attempt to get his "version of the

events in question." He went on vacation during the

investigation, precluding the investigation from being timely

completed. When he was finally interviewed, he provided the

names of a witness and former inmate who he claimed would

exonerate him, only to have that witness further implicate the

Petitioner when the witness was interviewed. He then contacted

a witness, an inmate, while in uniform off-duty, in a place

where he had no right to be. This created an appearance of an

attempt to tamper with or influence the testimony of the

witness.

31. The Respondent offered legitimate, non-discriminatory

reasons for the actions involved in the investigation. The

Petitioner's claims that this demonstrates discrimination

against him are no more than subjective beliefs by the

Petitioner. The preponderant evidence indicates that the

Respondent did not commit an unlawful employment practice.

The Retaliation Claim

32. The Petitioner contends he was retaliated against for

either filing a grievance alleging a hostile work environment or

for submitting a complaint to the FDLE regarding the Department

of Corrections, on January 16, 2008.

33. In order to establish a prima facie case for

retaliation, a petitioner or plaintiff must show that he engaged

in a statutorily protected activity, that an adverse employment

action occurred, and that the adverse action was causally-

related to the petitioner or plaintiff's protected activities.

See Little v. United Technologies , 103 F.3d 956, 959 (11th Cir.

1997) and Wentz v. Maryland Casualty Company , 869 F.2d 1153,

1155, (8th Cir. 1989).

34. By the time the Petitioner filed a grievance claiming

that his banishment from one of the facilities of the Department

created a hostile work environment, he had already committed all

the acts of misconduct which were the basis for his termination.

He presented no evidence, direct or circumstantial, that he was

terminated for filing a grievance.

35. Concerning the purported complaint to FDLE, the

unrefuted evidence was that the Petitioner's letter to FDLE was

dated January 16, 2008, and that the department of Corrections

was not notified of it until March of 2008. The Petitioner was

terminated in November 2007, well before the Petitioner had

contacted FDLE, by his own admission. Notwithstanding this time

and notice issue, there was no evidence that the action taken

was in retaliation for any complaint made by the Petitioner.

36. The Petitioner thus did not establish a causal link

between any claimed protected activity and the adverse

employment action taken against him. He has not proven any

claim here, because he cannot establish a connection between any

protected activity and his termination. He did not prove that

the county's reason for termination was pretextual.

37. Even assuming a prima facie case of retaliation could

be made, the burden shifts to the Respondent to produce a

legitimate, non-retaliatory reason for the adverse employment

decision. E.E.O.C. v. Reichhold Chems., Inc. , 988 F.2d 1564

(11th Cir., 1993) and U.H.L. v. Zalk Josephs Fabricators, Inc. ,

121 F.3d 1133, 1136, (7th Cir. 1997). Even if the Petitioner

had established a prima facie case of retaliation, the

Respondent came forward with a legitimate, non-discriminatory

reason for the Petitioner's termination. As previously stated,

the Petitioner was terminated for multiple, serious violations

of the Department's rules and policies. The preponderant

evidence shows that the Respondent believed the violations,

which it knew were sustained by the results of the Internal

Affairs investigation, and thus determined that they justified

termination. These are legitimate, non-discriminatory reasons

for the Petitioner's termination.

38. Once this burden of going forward with a legitimate

non-discriminatory reason was met, it became incumbent upon the

Petitioner to prove that the proffered reason was a pretext for

what actually amounted to discrimination based on retaliation.

Even if a causal link between the protected activity and the

adverse employment action was established, this simply enabled

the Petitioner to overcome the initial hurdle of having to make

a prima facie case of retaliation. It did not relieve him of

the burden of overcoming the legitimate reason articulated by

the Respondent, which he failed to do. See Simmons v. Camden

County Board of Education , 757 F.2d 1187, 1189 (11th Cir. 1985)

39. In summary, the Petitioner has not proven intentional

discrimination. The Petitioner has not established that the

termination of employment was based on any discriminatory intent

based upon the Petitioner's race, nor based upon any intent to

effect retaliation against the Petitioner. Rather, it was

because of the legitimate determination made by the Respondent

that the Petitioner had violated the work rules and policies

mentioned above, and that such was an appropriate cause for

termination. Whether or not that view of the results of the

investigation was true, there was absolutely no proof that the

reason the termination of employment was effected was in any way

related to discrimination based on race, or based upon

retaliation, for the reasons found and concluded above.

RECOMMENDATION

Having considered the foregoing findings of fact,

conclusions of law, the evidence of record, the candor and

demeanor of the witnesses and the pleadings and arguments of the

parties, it is, therefore,

RECOMMENDED that a Final Order be entered by the Florida

Commission on Human Relations denying the Amended Petition for

Relief in its entirety.

DONE AND ENTERED this 3rd day of August, 2009, in

Tallahassee, Leon County, Florida.

S

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of August, 2009.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry Kranert, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Nancye R. Jones, Esquire

County of Volusia

123 West Indiana Avenue

Deland, Florida 32720

Clifford J. Geismar, Esquire

Law Offices of Clifford J. Geismar, P.A.

Crealde Executive Center

2431 Aloma Avenue, Suite 150

Winter Park, Florida 32792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.