09-004009 Robert Fernandez vs. Sprint/United Management Co. Status: Closed Recommended Order on Tuesday, January 12, 2010.

Summary: Petitioner engaged in statutorily protected activities (EEOC complaint and lawsuit alleging discrimination) but failed to show that relocation was a retailiatory adverse employment action.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT FERNANDEZ, )

)

Petitioner, )

)

vs. ) Case No. 09-4009

)

SPRINT/UNITED MANAGEMENT CO., )

)

Respondent. )

)

RECOMMENDED ORDER

As previously scheduled, a hearing by telephone was held

before Administrative Law Judge Eleanor M. Hunter of the

Division of Administrative Hearings on October 7, 2009, in

Tallahassee, Florida.

APPEARANCES

For Petitioner: Stanley Kiszkiel, Esquire

Stanley Kiszkiel, P.A.

9000 Sheridan Street, Suite 92

Hollywood, Florida 33024

For Respondent: Heather R. Gil, Esquire

6450 Sprint Parkway

Mail Stop KSOPHN0304-3B461

Overland Park, Kansas 66215

STATEMENT OF THE ISSUE

Whether Respondent retaliated against Petitioner by

requesting that he not physically work at Respondent's Fort

Myers site in violation of the Florida Civil Rights Act and, if

so, what relief should Petitioner be granted.

PRELIMINARY STATEMENT

Petitioner was terminated from employment by Respondent on

March 1, 2006. Alleging discrimination based on his national

origin, Hispanic, Petitioner filed a complaint with the Equal

Employment Opportunity Commission (EEOC) which, in December

2006, found no cause to believe the allegations were true.

Petitioner filed a lawsuit against the Respondent in March

2007, alleging discrimination. The case was settled on

March 27, 2008, when the parties jointly stipulated to the

dismissal of the case with prejudice. As part of the

stipulation, Petitioner agreed not to work physically at

Respondent's Fort Myers facility.

In this case, Petitioner alleges that Respondent's request

that he be removed from the Fort Myers site before he agreed to

the stipulation constituted retaliation for filing the lawsuit.

The Florida Commission on Human Relations (FCHR) entered a no

cause determination on June 22, 2009, and transmitted the

Petition for Relief to the Division of Administrative Hearings

(DOAH) on July 28, 2009.

At the final hearing, Petitioner testified on his own

behalf and offered no exhibits, except to provide a more legible

copy of Respondent's Exhibit 4. Respondent presented the

testimony of two witnesses, Bill Flint and John Glover, and

offered Respondent's Exhibits 1-13, all of which were admitted

into evidence except Respondent's Exhibit 13.

The Transcript was filed October 22, 2009. After a brief

extension of time requested by Respondent, Proposed Recommended

Orders were filed on December 2 and 3, 2009.

FINDINGS OF FACT

1. Petitioner, Robert Fernandez (Petitioner or

Mr. Fernandez), worked for Respondent, Sprint United Management

Company (Respondent or Sprint) for approximately six years until

he was terminated from employment on March 1, 2006. At that

time, he was a switch operations manager, supervising switch

technicians at Sprint's Fort Myers facility.

2. When one of the technicians resigned, Mr. Fernandez

took him and three others for a four-hour, going-away lunch

during which four of the five men, including Mr. Fernandez,

drank three or four pitchers of beer. Mr. Fernandez paid the

food and alcohol bill with a Sprint credit card. Two of the men

drove Sprint vehicles after consuming beer.

3. Sprint determined that Mr. Fernandez violated policies

in the Code of Conduct in the Sprint Employee Guide, the

Standard Shift Change and Unmanning Procedures for Switch Sites,

and the Vehicle Administrative Procedures. On March 1, 2006,

Sprint terminated Mr. Fernandez's employment.

4. Mr. Fernandez charged Sprint with discrimination based

on his national origin, Hispanic. The Lee County Division of

Equal Opportunity investigated the charge of discrimination and

found no cause to believe that the allegations were true, a

determination that was adopted by the EEOC.

5. In March 2007, Mr. Fernandez filed a lawsuit against

Sprint alleging discrimination.

6. In October 2007, Mr. Fernandez was employed by Nortel,

a vendor for Sprint, as a network integration engineer. He was

assigned to work at a Sprint site in Birmingham, Alabama for two

weeks, in Fort Myers for two weeks, then in Miami and Deerfield

in late 2007 and early 2008.

7. In February 2008, attorneys for Mr. Fernandez and

Sprint were engaging in settlement discussions. In February

2008, Nortel also assigned Mr. Fernandez to work at the Sprint

facility in Fort Myers. Sprint managers and directors contacted

their human resources department and then their legal department

concerning their desire to have Mr. Fernandez removed from the

Fort Myers site, claiming that his presence was disruptive.

8. In an email dated February 12, 2008, Bill Flint,

Sprint's area director of field services, was provided,

apparently at his request, a summary of current and planned

Nortel projects for Mr. Fernandez. The email from John Glover,

at Nortel included the following offer to replace Mr. Fernandez

"If this is still a concern we will have to search for a

replacement candidate with the appropriate skillsets to tackle

these activities. That may take some time." Mr. Glover also

noted that Mr. Fernandez's supervisors rated him as "doing a

great job."

9. On February 13, 2009, Mr. Flint wrote Mr. Glover, "I am

waiting on a reply from our legal department. No action

necessary until they advise." Then, on February 28, 2008,

Mr. Flint wrote Mr. Glover, "Sorry for the delay in getting back

with you concerning this matter. Sprint has one request

regarding Robert Fernandez -- Do not assign him to any project

that requires him to physically work at the Fort Myers, Florida

site.

10. Mr. Glover forwarded Mr. Flint's request to

Mr. Fernandez's supervisors, stating, "Gentlemen, So I have

finally received the request back regarding Robert Fernandez.

Can we please align our resourcing so that Robert is not

required to work in the Fort Myers office. This will be

sufficient for Sprint and I think we have more that enough work

elsewhere to keep him gainfully employed."

11. Nortel immediately reassigned Mr. Fernandez to work at

the Miami/Deerfield Sprint sites.

12. On March 17, 2008, an attorney for Sprint acknowledged

acceptance of an agreement with Mr. Fernandez's attorney to

settle the lawsuit with Mr. Fernandez's agreement not to work

the Sprint Fort Myers facility. The Joint Stipulation for

Dismissal was filed with the court on March 27, 2008.

13. Mr. Fernandez continued to work for Nortel with no

demotion or reduction in compensation at Sprint's

Miami/Deerfield area sites from February through December 2008,

when Notel's work with Sprint ended. He has been unemployed and

has suffered significant economic loses since that time.

ULTIMATE FINDINGS OF FACT

14. Sprint was given the opportunity to have Nortel

terminate Mr. Fernandez's employment with Nortel, but did not do

so.

15. Sprint's legal department was, in late February and

early March 2008, negotiating an agreement with Petitioner's

attorney to have him removed from the Fort Myers site. Although

that agreement was not yet final, and filed with the court when

he was reassigned, the evidence supports a conclusion that the

agreement, not retaliation, was the basis for Mr. Fernandez's

reassignment.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction over the subject matter and parties to this

proceeding, pursuant to Sections 760.11 and 120.569, Florida

Statutes (2009), and Subsection 120.57(1), Florida Statutes

(2009).

17. In this de novo proceeding, the Petitioner has the

burden to prove the allegations in the Petition by a

preponderance of the evidence. § 120.57(1)(K) and (j), Fla.

Stat. (2009).

18. Section 760.10, Florida Statutes (2009), provides in

relevant 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 of employment, because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

* * *

(7) It is an unlawful employment practice

for an employer . . . to discriminate

against any person because that person has

opposed any practice which 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.

19. Because the provision of Section 760.10(7), Florida

Statutes, is "almost identical to its federal counterpart, 42

U.S.C. § 2000e-3(a), Florida courts generally follow federal

case law to consider similar state claims. Hinton v.

Supervision Int'l, Inc. , 942 So. 2d 986, 989 (Fla. 5th DCA

2006)." Blizzard v. Appliance Direct, Inc., 16 So. 3d 922, 926

(Fla. 5th DCA 2009).

20. To establish a prima facie case of retaliation under

Subsection 760.10(7), Florida Statutes (2009), Petitioner "must

demonstrate: (1) that he or she engaged in statutorily protected

activity; (2) that he or she suffered adverse employment action;

and (3) that the adverse employment action was causally related

to the protected activity." See Anduze v. Florida Atlantic

University, 151 Fed. Appx. 875 (11th Cir) (2005), cert denied,

547 U.S. 1193, 126 S. Ct. 2865, 165 L. Ed. 2d 896 (2006).

21. By making his complaint to the EEOC in 2006, and

filing a lawsuit alleging discrimination in 2007, Petitioner

engaged in statutorily protected activities establishing

therefore, the first element of a prima facie case.

22. The second element, an adverse employment action, is

not demonstrated by Respondent's request, on February 28, 2008,

that Petitioner be relocated to a different work site in advance

of the March 17, 2008, date when attorneys for the parties

agreed to the relocation as a part of the settlement of the

lawsuit, and the March 27, 2008, filing of the agreement with

the court.

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 finding that Sprint/United Management

Company did not retaliate against Robert Fernandez in violation

of the Florida Civil Rights Act of 1992, as amended, and

dismissing his petition for relief.

DONE AND ENTERED this 12th day of January, 2010, in

Tallahassee, Leon County, Florida.

S

ELEANOR M. HUNTER

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 12th day of January, 2010.

COPIES FURNISHED :

Stanley Kiszkiel, Esquire

Stanley Kiszkiel, P.A.

9000 Sheridan Street, Suite 92

Hollywood, Florida 33024

Mary Jean Fell, Esquire

Sprint/United Management Company

2001 Edmund Halley Drive

Reston, Virginia 20191

Heather R. Gill, Esquire

6450 Sprint Parkway

Mail Stop KSOPHN0304-3B461

Overland Park, Kansas 66215

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

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.