09-000691 Brunel Dangervil vs. Miami-Dade County Status: Closed Recommended Order on Monday, July 20, 2009.

Summary: Petitioner failed to demonstrate Respondent engaged in an unlawful employment practice on the basis of race and national origin in violation of the Civil Rights Act.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRUNEL DANGERVIL, )

)

Petitioner, )

)

vs. ) Case No. 09-0691

)

MIAMI-DADE COUNTY, )

)

Respondent. )

)

RECOMMENDED ORDER

This case came before Administrative Law Judge June C.

McKinney of the Division of Administrative Hearings for final

hearing on May 7, 2009, in Miami, Florida.

APPEARANCES

For Petitioner: Erwin Rosenberg, Esquire

Post Office Box 416433

Miami Beach, Florida 33141

For Respondent: William X. Candela, Esquire

Dade County Attorney's Office

Stephen P. Clark Center

111 Northwest First Street, Suite 2810

Miami, Florida 33128

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent engaged in an

unlawful employment practice against Petitioner on the basis of

race and national origin in violation of the Civil Rights Act.

PRELIMINARY STATEMENT

On November 20, 2008, Petitioner Brunel Dangervil

(hereinafter “Dangervil” or “Petitioner”) dual-filed a

discrimination charge with the Florida Commission on Human

Relations (hereinafter “FCHR”) and the Equal Employment

Opportunity Commission (hereinafter “EEOC”) alleging that

Respondent Miami-Dade County (hereinafter “County” or

“Respondent”), through its agent Joe Wolfe, had discriminated

against him because of his race and national origin causing the

termination of Petitioner’s employment.

The EEOC investigated the case but was unable to decide

whether Respondent had violated Dangervil’s civil rights.

Thereafter, the FCHR issued a "Right to Sue" letter on

January 29, 2009. Dangervil elected to pursue administrative

remedies, timely filing a Petition for Relief with the FCHR on

or about February 8, 2009.

The FCHR transmitted the Petition for Relief to the

Division of Administrative Hearings (hereinafter “DOAH”) on

February 10, 2009, and the undersigned was assigned to hear the

case. The final hearing was scheduled for May 7, 2009, and this

proceeding followed.

At the formal hearing, the parties offered one Joint

Exhibit which was accepted into evidence. Petitioner testified

on his own behalf and presented the testimony of two witnesses,

Joseph Wolfe and Maxito Francois (testimony by transcript).

Respondent called as witnesses Joseph Wolfe and David

Thibaudeau. Respondent also offered Respondent’s Exhibits 1

through 6 which were received into evidence.

A Transcript of the proceeding was filed June 10, 2009.

The deadline for the filing of post-hearing submittals was set

for June 22, 2009.

Respondent timely filed a Proposed Recommended Order (PRO),

which has been duly-considered by the undersigned in the

preparation of this Recommended Order. Petitioner has not filed

a PRO as of the entry of this Recommended Order.

Unless otherwise indicated, citations to the Florida

Statutes refer to the 2008 Florida Statutes.

FINDINGS OF FACT

1. Respondent has a department General Services

Administration (hereinafter “GSA”) responsible for providing

security to County departments and facilities. GSA provides

security services by contracting with private vendors. Two of

the private security vendors are Delad Security (hereinafter

2. In 2005, GSA, on behalf of Respondent, entered into a

contract with Delad and Forrestville to assign security guards

at County posts. The “General Terms and Conditions” of the

contract provide in pertinent part:

1.16 Responsibility As Employer

The employee(s) of the successful Bidder

shall be considered at all times its

employee(s) and not employee(s) or agent(s)

of the County or any of its departments.

. . . The County may require the

successful bidder to remove any employee it

deems unacceptable. . .

3. Even though Delad and Forrestville as vendor companies

provide security officers through a contract with Miami-Dade

County, only the vendor companies have the authority to

terminate one of its employees. Dangervil secured his security

officer position by applying for employment through the vendor

companies who set his schedule, administered his leave time,

paid his salary and taxes, monitored his actions to ensure

compliance with the terms and conditions of the contract, as

well as provided his job duties and assignments.

4. Dangervil is a black male whose national origin is

Haitian.

5. On June 27, 2007, Dangervil was working for Delad

assigned to the 140 West Flagler Building for his security post.

His job duties were patrolling the parking lot and checking the

floors in the building.

6. Joseph Wolfe (hereinafter “Wolfe”), a white male, is

the GSA supervisor responsible for County facilities. On

June 27, 2007, he reported to the 140 West Flagler Building

location to look into a complaint about a possible disturbance

on the 16th floor during a code compliance hearing. When he

arrived on the 16th floor, Wolfe met Dangervil who was dressed

in a uniform Wolfe determined had a sweat-stained shirt.

7. Wolfe began to ask Dangervil a series of questions

regarding his being assigned to the disturbance location, but

was unable to ascertain why Dangervil was there. Dangervil did

tell him "I don't work here." Wolfe determined that Dangervil

was not properly prepared for the security detail and that

Dangervil lacked the requisite ability to effectively

communicate using the English language.

8. After the incident, Wolfe contacted a Delad supervisor

who confirmed that Dangervil had been instructed thru the chain

of command to go to the hearing location for his post June 27,

2007.

9. Section 3.41 of the security contract with Delad

provides an English proficiency qualification for security

personnel and states in relevant part:

* * *

C) Ability to Communicate in English

. . . all Contractor Security personnel must

be fully literate in the English language ,

(e.g., able to read, write, speak,

understand, and be understood). Oral

command of English must be sufficient to

permit full communication. . . .

The contract further allows a security guard to be removed from

the contract if s/he has difficulty understanding or speaking

English.

10. Wolfe subsequently wrote a Guard Infraction Report

against the security vendor directing that Dangervil be removed

from the Delad contract with the County stating:

I was dispatched to location ref a code

compliance hearing and protesters carrying

signs criti[c]izing Dade County. Upon

arrival to the 16th floor I met with S/O

Dangervil, Brunel. Dangervil was unable to

tell me why he was there, stating, "I don't

work here." Then he asked someone on their

way to attend hearing to help me as if he

thought they were a county employee. It was

determined the officer was not pro[p]erly

briefed prior to being sent to the detail.

The officer was allowed to work with what

appeared to be a sweat stained uniform

shirt.

Dangervil's removal from the Miami-Dade contract did not affect

Dangervil's employment status with Delad.

11. On October 26, 2007, GSA dispatched Wolfe to the Opa

Locka Elderly Facility, a County public housing facility, to

investigate a complaint that a Forestville security officer did

not want to work his assigned post.

12. David Thibaudeau (hereinafter “Thibaudeau”), Wolfe's

supervisor and GSA Deputy Chief, and GSA Supervisor Sanchez also

reported to the Opa Locka Elderly Facility after receiving a

call from the dispatch center. There had been several reports

from security vendors that officers were being assaulted and

Thibaudeau and Sanchez went to the location to help resolve the

problem regarding the security officer assigned to the post and

the supervisor refusing to work at the post.

13. On duty at the location was Dangervil, the assigned

security officer. Upon arriving, Thibaudeau had a conversation

with Dangervil, Wolfe, and two Forrestville supervisors. The

Forrestville supervisor explained that Dangervil did not want to

work the post and was going to leave. Dangervil explained to

Thibaudeau that he didn't want to work the location because he

heard bad things happened at the location. 1 Subsequently,

Thibaudeau instructed the Forrestville Supervisor to work the

post since Dangervil was leaving. The supervisor also refused

to work the facility but ultimately agreed when Thibaudeau

explained that he would have to call their company to get the

project manager to resolve the issue.

14. Wolfe recognized that Dangervil was the same Delad

security officer he had dealt with in June 2007 at the 140 West

Flagler incident. Dangervil had been placed on a “do not hire”

list by Wolfe because of the previous incident that took place

at the 140 building.

15. Wolfe wrote up a second Guard Infraction Report which

directed that Dangervil be removed from the Forrestville

contract. The report narrative stated:

While conducting an inspection of the post

during an afternoon to mid shift change I

recogni[z]ed the on coming [sic] midnight

shift officer as being previ[o]usly removed

from the contract by me while he was

employed by Delad security. Prior to being

removed again S/O Dangervil refused to stay

at post because of the previous incidents.

Dangervil was not removed from the contract because he was

Haitian or Black.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

17. The Florida Civil Rights Act of 1992 (Act), is

codified in Sections 760.01 thorough 760.11, Florida Statutes,

and Section 509.092, Florida Statutes. § 760.01(1), Fla. Stat.

18. A "discriminatory practice," as defined in the Act,

"means any practice made unlawful by the Florida Civil Rights

Act of 1992." § 760.02(4), Fla. Stat.

19. Section 760.01 of the Act explains that the general

purpose of the Act is to:

. . . [S]ecure for all individuals within

the state freedom from discrimination

because of race, color, religion, sex,

national origin, age, handicap, or marital

status and thereby to protect their interest

in personal dignity, to make available to

the sate their full productive capacities,

to secure the state against domestic strife

and unrest, to preserve the public safety,

health, and general welfare, and to promote

the interests, rights, and privileges of

individuals within the state." [Emphasis

added.]

20. Petitioner has the burden of proving that Respondent

discriminated against him as alleged in the Petition by a

preponderance of the evidence. See Balino v. Department of

Health and Rehabilitative Services , 348 So. 2d 349, 350 (Fla.

1st DCA 1977), and Department of Transportation v. J.W.C. Co. ,

Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981).

21. The preponderance of the evidence standard requires

proof by "the greater weight of the evidence," Black's Law

Dictionary 1201 (7th ed. 1999), or evidence that "more likely

than not" tends to prove a certain proposition. See Gross v.

Lyons , 763 So. 2d 276, 289 n.1 (Fla. 2000).

22. In order to prove discrimination violative of Chapter

760, Florida Statutes, Petitioner may demonstrate his case

through direct evidence of discrimination or circumstantial

evidence of discrimination. Denny v. City of Albany , 247 F.3d

1182 (11th Cir. 201); Holifield v. Reno , 115 F.3d. 1555, 1561

(11th Cir. 1997). Direct evidence of discrimination, which is

"composed of only the most blatant remarks, where intent could

be nothing other than to discriminate," Schoenfeld v. Babbitt ,

168 F.3d 1257, 1266 (11th Cir. 1999), is not at issue in this

case. There is no direct evidence that any action by the

Respondent was motivated by Petitioner's race or national

origin.

23. In order to prove a prima facie case of unlawful

employment discrimination under Chapter 760, Florida Statutes,

by indirect or circumstantial evidence, Petitioner must

establish that: (1) he is a member of a protected class; (2) he

was subjected to an adverse employment action; (3) his employer

treated similarly situated employees outside of his protected

class more favorably than he was treated; and (4) he was

qualified to do the job. See Knight v. Baptist Hospital of

Miami , 330 F.3d, 1313, 1315-1316 (11th Cir. 2003) and Burke-

Fowler v. Orange County, Fla. , 447 F.3d 1319, 1323 (11th Cir.

2006).

24. In this matter, Petitioner relied upon circumstantial

evidence in an attempt to establish his claim(s) that Respondent

committed an unlawful employment practice against him. However,

Petitioner has failed to prove a prima facie case of unlawful

employment discrimination.

25. Petitioner established that he is a member of a

protected group, in that he is a Haitian black male. However,

Petitioner did not establish that Respondent subjected him to an

adverse employment action.

26. Section 760.10, Florida Statutes, provides, in

relevant part:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire an 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.

27. Respondent argues that it is not the employer in this

matter. As in Williams v City of Montgomery , 742 F.2d 586, 589

(11th Cir. 1984), the undersigned finds that Dangervil's

employers are Delad and Forestville since Respondent retained no

control over the traditional rights, and the vendor companies

hired, paid his wages and taxes, retained the power for

termination, provided leave, made job assignments and monitored

his work.

28. Even if Respondent were the employer, Petitioner

failed to show an adverse employment action occurred. The

evidence failed to prove why Dangervil left Delad's employment

and ended up re-employed with Forestville. Respondent's action

of placing Petitioner on the “do not hire” list was not an

adverse employment action because the vendor security companies

were not required to terminate Petitioner's employment just to

reassign Dangervil to other contracts other than Miami Dade

County.

29. Additionally, Petitioner did not establish that

Respondent treated similarly situated employees outside of his

protected class more favorably than he was treated. Petitioner

presented no evidence that his national origin played any role

in his removal from the contracts. No evidence was presented to

demonstrate any non-Haitian or non-Black employee was treated

any differently or better than Petitioner. 2 Having failed to

establish this element, Petitioner has not established a prima

facie case of employment discrimination.

30. Further, even if Petitioner had met the burden,

Respondent presented evidence of legitimate, non-discriminatory

reasons for removing Petitioner from vendor contracts, thereby

rebutting any presumption of national origin or race

discrimination. The evidence presented by Respondent

established that Petitioner was removed from County contracts

for violating policies, and that Dangervil could have continued

working for Delad and Forestville just not on Respondent's

contracts. Accordingly, Petitioner also failed to prove that

Respondent's reasons for removing him from the contracts were

pretextual.

31. Based on the findings of fact herein and a

consideration of totality of circumstances, there is

insufficient evidence, whether direct or circumstantial, that

Respondent took any action against Petitioner based on his race

or national origin. Petitioner failed to establish that

Respondent committed an unlawful employment practice against him

within the meaning of the Florida Civil Rights Act of 1992.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby RECOMMENDED that the Florida Commission on

Human Relations issue a final order finding that Respondent did

not commit any unlawful employment practices and dismissing the

Petition for Relief.

DONE AND ENTERED this 20th day of July, 2009, in

Tallahassee, Leon County, Florida.

___________________________________

JUNE C. McKINNEY

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 20th day of July, 2009.

ENDNOTES

1 / Petitioner's testimony that he didn't refuse to work at the

Opa Locka facility is rejected as not credible due to the

combination of Wolfe and Thibaudeau testifying that they were

both being called to the location because the assigned security

officer refused to work his post and the fact that the

Forestville supervisor ultimately worked the assignment.

2 / Petitioner attempted and failed to demonstrate similarly

situated individuals were discriminated against with the

questioning of Respondent's witness about Michele Franklin and

Yanic St. Charles. Additionally, Petitioner asserted that the

case of Maxito Francois was a case that demonstrated that the

County discriminated against the class of black males born in

Haiti, but no discrimination was found in that case (Recommended

Order Mar. 17, 2009; Final Order issued June 4, 2009).

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Erwin Rosenberg, Esquire

Post Office Box 416433

Miami Beach, Florida 33141

William X. Candela, Esquire

Dade County Attorney's Office

Stephen P. Clark Center

111 Northwest First Street, Suite 2810

Miami, Florida 33128

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.