10-009727 Venis Charlot vs. County Of Miami Dade Aviation Department Status: Closed Recommended Order on Thursday, April 26, 2012.

Summary: Petitioner failed to establish a prima facie case of discrimination, based on national origin, against Respondent. Recommend dismissal of discrimination complaint.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VENIS CHARLOT , )

)

Petitioner , )

)

vs. ) Case No. 10 - 9727

)

COUNTY OF MIAMI - DADE AVIATION )

DEPARTMENT , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was he ld in this case

by live presentation on September 13 and 14, 2011, in Miami,

Florida, and on October 28 , 20 11 , by video teleconference with

connecting sites in Miami and Tallahassee, Florida, before

Errol H. Powell, an A dministrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Mayra Lizette Gonzalez - Kadzinski, Esquire

Law Offices of International Immigration

and Labor Services

Suit e 510

3550 Biscayne Boulevard

Miami, Florida 33137

For Respondent: Eric Alberto Rodriguez, Esquire

Office of Dade County Attorney

Suite 2810

111 Northwest First Street

Miami, Florida 33128 - 1930

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent committed

an unlawful employment act by discriminating against Petitioner

on the basis of national origin in violation of the Florida Civ il

Rights Act of 1992, as amended. 1 /

PRELIMINARY STATEMENT

Venis Charlot filed an employment discrimination complaint

against the County of Miami - Dade (County) Aviation Department

(Department ) on the basis of national origin (Haitian) and

retaliation (for filing a previous discrimination complaint wit h

the Equal Employment Opportunity Commission (EEOC) ) with the

Florida Commission on Human Relations (FC HR). Initially, t he

FCHR determined that reasonable cause existed to believe that an

unlawful employment practice had occurred and issued a

" Determination: Cause" and a " Notice of De termination: Cause" on

June 3, 2010 . Mr. Charlot filed a timely Petition for Relief for

an unlawful em ployment practice. On October 18, 2010 , FCHR

referred this matter to the D ivision of Administrative Hearings.

Subsequently, on November 8, 2010, FCHR issued a Rescission of

Dismissal, rescinding the " Determination: Cause " and " Notice of

Determination: Cause " and issuing a determination of "NO CAUSE."

At hearing, Mr. Charlot tes tified on his own behalf ,

presented the testimony of four witnesses, and entered 17

exhibits (Petitioner's Exhibits numbered 2 through 9, 11 through

17, 22, 23A, and 25) into evidence. The Count y presented the

testimony of six witnesses and entered 18 exh ibits (Respondent's

Exhibits numbered 1 , 1A, and 2 through 17 ) into evidence.

A t ranscript of the hearing was ordered. At the request of

the parties, the time for filing post - hearing submissions was set

for more than ten days following the filing of the t ranscript.

The Transcript, consistin g of six volume s, was filed on

January 13, 2012. The County requested additional time to file

post - hearing submissions, to which Mr. Charlot did not object.

Subsequently, Mr. Charlot requested additional time to file post -

hearing submissions, to which the County did not object. The

parties timely filed their post - hearing submissions , which were

considered in the preparation of this Recommended Order.

FINDING S OF FACT

1. Mr . Charlot is a Black m ale of Haitian descent.

2. Mr. Charlot was employed by the County in the Department

for almost 16 years before he was terminated in December 2008 .

3. The Department operates Miami International Airport

(Airport).

4 . At the time of his termination and all times material

hereto , Mr. Charlot 's classification was an Airport Automotive

Equipment O perator II , operating heavy machinery in maintenance

work at the Airport .

5. At all times material hereto, the majority of the

Department's employees were Hispanic, including the supervis ors.

Mr. Charlot's Dismissal before the Aviation Director

6 . By letter dated December 12, 2008, the Aviation

Director, José Abreu, dismissed Mr. Charlot from employment with

the Department and the County, effective the close of business on

December 4, 200 8, upholding the "recommendation by management"

for dismissal. Mr. Abreu indicated, among other things, that, in

upholding the recommendation, he considered the Disciplinary

Action Report (DAR) and Mr. Charlot's work history. Furthermore,

Mr. Abreu indic ated, among other things, that his decision on

termination was based in part upon Mr. Charlot's violations of

the County's Personnel Rules, Chapter VIII, Section 7, Paragraphs

(I ), (R) , and (BB), related to Mr. Charlot's arrest on grand

theft charges; and that the basis for his (Mr. Abreu's) final

decision was based upon Mr. Charlot's disregard for County

Personnel Rules. Additionally, Mr. Abreu indicated that, because

Mr. Charlot failed to attend the meeting at which Mr. Charlot

would have been able to ap peal management's recommendation, he

(Mr. Abreu) had no additional factors to consider in making his

decision.

7 . Consequently, Mr. Charlot was dismissed from employment

with the Department and the County, effective close of business

on December 4, 2008.

8 . The DAR dated September 25, 2008, was considered by

Mr. Abreu. The DAR notified Mr. Charlot that he was charged with

violating the County's Personnel Rules, Chapter VIII, Section 7,

Paragraphs (I), (R), and (BB), which provides: (I) t hat the

employee has been guilty of conduct unbecoming an employee of the

County whether on or off duty, provided allegations shall be

specific and shall describe the conduct w hich is the basis of the

charge ; (R) t hat the employee has misappropriated County funds,

appropr iated County property for personal use, or illegally

disposed of County property; and (BB) t hat the employee has

violated any of the provisions of the Act or the Rules.

9 . T he DAR dated September 25, 2008, set forth revised

facts. Those revised facts sta te that, on September 24, 2008,

Mr. Charlot was re - arrested , arraigned, and formally charged with

a third degree felony for theft of County property based upon an

incident occurr ing on August 5, 2008; and that, also, as a result

of the formal charge, the C ounty automatically placed Mr. Charlot

on suspension without pay.

10 . Additionally , the revised facts recite facts stated in

a DAR dated August 6, 2008, issued as a result of the incident

occurring on August 5, 2008, which cited the same violations of

the County's Personnel Rules . In essence, the DAR facts state

that, on August 5, 2008, Mr. Charlot was on an overtime

assignment, from 11:00 p.m. through 7:00 a.m., repairing asphalt;

that his duty was to operate the scrubber/sweeper, sweeping

around the sit e prior to the asphalt being placed; that , at

approximately 3:00 a.m., Mr. Charlot advised Kendall Davis that

he would return and left the worksite; that, shortly thereafter

and according to an Airfield Security Incident Report, a law

enforcement officer o bserved Mr. Charlo t on Airport property, not

at the worksite, with two bags of copper wire, weighing

approximately 140 pounds; that Mr. Charlot left the worksite and

was found committing a crime against the County by stealing

County material ; that Mr. Char lot was in an area in which he was

not authorized and found in a vehicle no longer in service and

not able to be driven; and that the DAR was warranted because of

Mr. Charlot's actions of taking County material, leaving the

worksite and not performing his assigned duties while on County

time.

11 . Further, the facts in the DAR dated September 25, 2008,

stated that Mr. Charlot was arrested on May 11, 2006, for petty

theft, but had failed to advise the Aviation Director or anyone

in the chain of command about the arrest . Also, the facts stated

that his failure to so advise of the arrest was a violation of

Department's Rules which placed an obligation on County employees

to notify their Department Director or his/her designee of an

arrest, whether on or off du ty, within a reasonable amount of

time, not to exceed three calendar days , of the arrest. A copy

of the Department's policy regarding arrests was included with

the DAR . Additionally, a copy of the disposition of the charge

was included with the DAR , whic h showed that Mr. Charlot was not

prosecuted.

12 . The DAR dated September 25, 2008, concluded tha t the

DAR was warranted based on Mr. Charlot ' s actions of taking County

material, being formally charged with a third degree felony,

leaving the worksite, not performing his assigned task while on

duty, and failing to report a prior arrest to the Department.

13 . Mr. Charlot's responded to the DAR dated August 6,

2008, and his response was also included with the DAR dated

September 25, 2008 . The response state d, among other things,

that the State Attorney's Office had decided t hat the evidence

was insufficient to charge Mr. Charlot with committing a crime

and took no action on the charge; that Mr. Charlot was on his

lunch break, with his identification, and it was not uncommon for

employees to take a lunch break away from the worksite ; and that

Mr. Charlot advised Mr. Davis that he (Mr. Charlot) was taking

his lunch break and would return. Also, the response included

affidavits from several employees stating th at it was normal for

employees to take lunch breaks away from the worksite and

attesting to Mr. Charlot's performance as an employee and to his

character.

Mr. Charlot's Appeal of the Termination through Arbitration

14 . Having been terminated from his emp loyment by

Mr. Abreu, Mr. Charlot appealed the termination through

arbitration . On September 29, 2009, the appeal was heard by a

Hearing Examiner of the American Arbitration Association. The

Hearing Examiner issued a written recommendation on November 22 ,

2009. The Hearing Examiner 's recommendation was to sustain

Mr. Charlot's dismissal .

Mr. Charlot's Dismissal before the County Manager

15 . After arbitration, t he Hearing Examiner's

recommendation was considered by the County Manager.

16 . By letter date d December 3, 2009, the County Manager

sustained and confirmed Mr. Charlot's dismissal from employment

with the County.

The Incident on August 6, 2008

17 . Mr . Charlot was arrested and charged with burglary on

August 6 , 2008 . He obtained counsel. T he Sta te Attorney's

Office decided to nolle prose, and the charge against Mr. Charlot

was dismissed . He returned to work.

18 . However, s ubsequently, i n Sep tember 20 08, Mr. Charlot

was re - arrested and arraigned on a third degree felony count of

grand theft rega rding the incident on August 6, 2008. On

September 24, 2008, the State Attorney's Office filed an

information charging Mr. Charlot with the third degree felony

count of grand theft.

19 . The evidence is insufficient to demonstrate that the

County played a part in or influenced the action by the State

Attorney's Office to re - arrest Mr. Charlot, arraign him on a

different crime, and file an information against him on the

different crime.

20 . By letter date d September 25, 2008, Mr. Abreu advised

Mr. Charlot, among other things, that he was suspended

indefinitely in accordance with the "Code of Miami - Dade County,

Section 2 - 42, Paragraph (22) , which provides: 'For the automatic

suspension of any person from the County service immediately upon

being indicted by any grand jury or upon having an information

filed against him by any prosecuting official, such suspension to

continue until any such indictment or information shall have been

disposed of by a trial and conviction or acquittal of the accused

or by any dis missal or quashing or reversal of the same.'" The

letter further advised Mr. Charlot that, if the charges were

reduced or dropped, it was his (Mr. Charlot's) responsibility to

immediately advise Human Resources ; and that, even if the charges

we re r educed or dropped, the Department may still pursue any

administrative action deemed necessary.

21 . The evidence de monstrates that Mr. Charlot's immediate

suspension was in accordance with the County's Code.

22 . Mr. Charlot was unable to afford the continuation of

representation by counsel. He entered into a plea agreement , and

the charge was nolle prossed. 2 /

Prior Disciplinary Action Against Mr. Charlot

23 . In October 2004, Mr. Charlot was suspended for three

days for an incident that occurred on July 2, 2004. He served

the three - day suspension from October 13 through 15, 2004.

Mr. Charlot received a DAR in July 2004 for the incident, which

stated, among other things, that his minor child was with him on

a sweeper during his work hours. Also, the DAR indicat ed

previous disciplinary action taken against Mr. Charlot in

November 2003 and December 2002, resulting in a five - day

suspension and a three - day suspension, respectively; and

indicated that the County would not tolerate continuous violation

of its rules.

2 4 . The evidence is insufficient to demonstrate that the

County's disciplinary action, regarding the incident on July 2,

2004, was unreasonable or discriminatory.

25 . In November 2003, Mr. Charlot received a five - day

suspension for an incident that occurr ed on October 11, 2003. He

served the five - day suspension from November 18 through 22, 2003.

Mr. Charlot received a DAR on October 14, 2003, which stated,

among other things, that he failed to report to work during his

scheduled work shift hours and fail ed to notify his supervisor

that he would not be reporting to work. Also, the DAR indicated

previous disciplinary action taken against Mr. Charlot for

leaving work prior to the scheduled end of his shift, without

swiping out of his shift, resulting in a t hree - day suspension.

26 . The evidence is insufficient to demonstrate that the

County's disciplinary action, regarding the incident on

October 11, 2003, was unreasonable or discriminatory.

27 . In December 2002, Mr. Charlot received a three - day

suspension for an incident that occurred on November 26, 2002.

He served the three - day suspension from January 15 through 17,

2003. Mr. Charlot received a DAR on December 2, 2002, which

stated, among other things, that he left the worksite in his

personal vehicle d uring his regularly scheduled shift hours,

without swiping out and without notifying his supervisor. In a

memorandum dated Decembe r 30, 2002, the Assistant Aviation

Director, among other things, advised Mr. Charlot of the

suspen sion and further advised Mr . Charlot that, should he need

to leave the worksite to re spond to personal matters, he was

required to swipe out and to ensure that his supervisor wa s

notified.

28 . As to the incident on November 26, 2002, at hearing

Mr. Charlot testified that school per sonnel at the school that

his child was attending contacted him regarding his child

experiencing a d iabetic episode; and that he immediately departed

the worksite for the school to give his child an insulin

injection. His testimony is credible. Further, no evidence was

presented to indicate that the County failed to consider his

explanation at the time of the disciplinary action.

29 . The evidence is insufficient to demonstrate that the

County's disciplinary action, regarding the incident on

November 26, 2002, was unreasonable or discriminatory.

30 . In July 1998, Mr. Charlot received a written reprimand

for various incident s occurring i n May 1998. He received a DAR

on May 26, 1998, regarding the incidents. The written reprimand

indicated, among other th ings, that Mr. Charlot engaged in

insubordin ate behavior and took an unauthorized break.

Additionally, the written reprimand advised him that further such

incidents would result in progressive disciplinary action up to

and including termination.

31 . The evidence is insufficient to demonstrate that the

County's disciplinary action, regarding the incidents in May

1998, was unreasonable or discriminatory.

Alleged Employees Similarly - Situated to Mr. Charlot

32 . Mr . Charlot asserts that there are other Depart ment

employees who are similarly - situated to him and who are Hispanic.

33 . The other employees are Robert Chacon, Rodolfo deArmas,

and Ricardo Mendez. No dispute exists that all of the other

employees are Hispanic.

(a) Robert Chacon

34 . Robert Chacon w as employed with the Department for

approximately 20 years. Since 2008, he has been an Airport

Maintenance Mechanic.

35 . The evidence demonstrates , among other things, that, in

2009, Mr. Chacon was suspended due to an incident not associated

with the Dep artment and which occurred outside of the workplace;

that in 2001, he was issued a DAR, which he grieved, but lost;

that he was a supervisor, but was demoted and is no longer a

supervisor; and that he has been suspended four times. The

evidence fails to d emonstrate the details of or the circumstances

of the suspensions, the DAR, or the demotion.

36 . Furthermore, the evidence demonstrates that Mr. Chacon

has not been charged with stealing from the Department.

(b) Rodolfo deArmas

37 . Rodolfo deArmas has b een employed with the Department

since 1984. He has been an Equipment Operator II for more than

15 years.

38 . The evidence demonstrates that, in 1991, Mr. deArmas

was charged with a criminal offense which was not associated with

the Department and for wh ich he was not convicted ; and that he

has been subject to two disciplinary actions. The evidence fails

to demonstrate the details of or the circumstances of the

criminal offense or the disciplinary actions.

(c) Ricardo Mendez

39 . Regarding Ricardo Mendez , the evidence demonstrates that

the Department charged Mr. Mend ez with violating the County's

Personnel Rules and that one of the Rules was the same one

Mr. Charlot was charged with violating , i.e., Personnel Rules,

Chapter VIII, Section 7, Paragraph (R) ; and that Mr. Mendez was

dismissed and terminated in 200l for the violation. Among the

a lleged facts associated with Mr. Mendez's violation of Personnel

Rules, Chapter VIII, Section 7, Paragraph (R) were that

Mr. Mendez submitted more hours of work than h e had actually

worked and was paid for more hours than he had actually worked.

40 . Furthermore, the evidence demonstrates Mr. Mendez

appealed his termination through arbitration, as did Mr. Charlot.

However, the evidence demonstrates that, unlike in Mr. Charlot's

situation, a hearing examiner found facts favorable to Mr. Mendez

and recommended reinstatement of Mr. Mendez. The County

reinstated Mr. Mendez.

CONCLUSIONS OF LAW

41 . The Division of Administrative Hearings has

jurisdiction over the subject m atter of this proceeding and the

parties thereto, pursuant to sections 760.11 and 120.569, Florida

Statutes (2011), and subsection 120.57(1), Florida Statutes

(2011).

42. The standard of proof is preponderance of the evidence.

§ 120.57(1)(j), Fla. Stat. (2011).

43. These proceedings are de novo. § 120.57(1)(k), Fla.

Stat. (2011).

44. S ection 760.10 , Florida Statutes (2009), 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 of employment, because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

st atus.

(b) To limit, segregate, or classify

employees or applicants for employment in any

way which would deprive or tend to deprive

any individual of employment opportunities,

or adversely affect any individual's status

as an employee, because of such i ndividual's

race, color, religion, sex, national origin,

age, handicap, or marital status.

45. In the instant case, Mr. Charlot must rely upon

circumstantial evidence to prove discriminatory intent by the

County. For such cases, a three - step burden and order of

presentation of proof have been established for unlawful

employment practices. McDonnell Douglas Corp. v. Green , 411 U.S.

792 (1973 ) ; Aramburu v. The Boeing Co. , 112 F.3d 1398, 1403 (10th

Cir. 1997); Combs v. Plantation Patterns , 106 F.3d 1519, 1 527 -

1528 (11th Cir. 1997).

46 . The initial burden is upon Mr. Charlot to establish a

prima facie c ase of discrimination. McDonnell Douglas , 411 U.S.

at 802; Aramburu , 112 F.3d at 1403; Combs , 106 F.3d at 1527 - 1528.

Mr. Charlot establishes a prima facie c ase of discrimination by

showing four factors: (1) that he belongs to a protected group;

(2) that he was subjected to an adverse employment action; (3)

that his employer treated similarly situated employees outside

the protected group differently or more favorably; and (4) that

he was qualified to do the job. McDonnell Douglas , supra ;

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

Aramburu , supra ; Combs , supra . See K endrick v. Penske Transp.

Serv s . , 220 F.3d 1 220 (10th Cir. 2000) (similarly si tuated

employees need not be outside the protected group).

47 . Further, as to similarly situated employees,

Mr. Charlot must show that he and the other employees (the

comparator employees) are " similarly situated in all relevant

respects." Holifield v. Reno , 115 F.3d 1555, 1562 (11th Cir.

1997) . In making such a determination, consideration must be

given to " whether the employees are involved in or accused of the

same or similar conduct and are disciplined in different ways."

I d.

48 . The comparator em ployees " must be similarly situated in

all material respects, not in all respects." McGuinness v.

Lincoln Hall , 263 F.3d 49, 53 (2d Cir. 2001); Shumway v. United

Parcel Serv., Inc. , 118 F.3d 60, 64 (2d Cir. 1997). " In other

words, . . . those employees m ust have a situation sufficiently

similar to plaintiff's to support at least a minimal inference

that the difference of treatment may be attributable to

discrimination." McGuinness , 263 F.3d at 54. Similarly situated

" only requires similar misconduct fro m the similarly situated

comparator." Anderson v. WBMG - 42 , 253 F.3d 561, 565 (11th Cir.

2001). The employees need not have the disciplines administered

by the same supervisor to be similarly situated. Id . An

employee who is discharged subsequent to the complaining employee

can be examined as to whether they are similarly situated.

McGuinness , 263 F.3d at 53.

4 9 . Once Mr. Charlot establishes a prima facie case, a

presumption of unlawful discrimination is created. McDonnell

Douglas , supra ; Aramburu , su pra ; Combs , 106 F.3d at 1528. The

burden shifts then to the County to show a legitimate,

nondiscriminatory reason for its action. McDonnell Douglas ,

supra ; Aramburu , supra ; Combs , supra .

50 . If the Coun ty carries its burden, Mr. Charlot must then

prove , by a preponderance of the evidence, that the reason

offered by the County is not its true reason, but only a pretext

for discrimination. McDonnell Douglas , 411 U.S. at 804;

Aramburu , supra ; Combs , supra.

51 . However, at all times, the ultimate burden of

persuasion that the County intentionally discriminated ag ainst

him remains with Mr. Charlot . Texas Dep't of Com ty . Affairs v.

Burdine , 450 U.S. 248 (1981).

52 . Applying the prima facie standards, the evidence

demonstrates that Mr. Charlot satisfied th e fir st two prongs of

the test. Mr. Charlot demonstrated that he belongs to a

protected class (national origin -- Haitian) and that he was

subjected to an adverse employment action (termination of

employment).

53. However, the evidence fails to demonstrate that

Mr. Charlot satisfied the third prong of the test. He failed to

demonstrate that other employees, whether inside or outside the

protected group, were similarly situated ; or that the County

treated similarly situated employees, whether inside or outs ide

the protected group, differently or more favorably. Anderson ,

253 F.3d at 565; McGuinness , 263 F.3d at 54; Kendrick , supra ;

Holifield , 115 F.3d at 1562; Shumway , 118 F.3d at 64 .

54. Assuming Mr. Charlot had established a prima facie

case, the County has demonstrated a legitimate, nondiscriminatory

reason for its employment action of terminating him. The County

demonstrated that he had a DAR dated September 25, 2008, for

violating the County's Personnel Rules; and that he had prior

disciplinary action for violating the County's Personnel Rules.

55. Further, Mr. Charlot failed to demonstrate that the

County's reason for terminating him was not the true reason, but

a pretext for discrimination.

56. Additionally, Mr. Charlot appealed his termination

thr ough arbitration; an independent hearing examiner recommended

Mr. Charlot's termination; and the County followed the

recommendation and terminated him.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that th e Florida Commission on Human

Relations enter a final order dismissing the discrimination

complaint of Venis Charlot.

DONE AND ENTERED this 2 6 th day of April , 2012 , in

Tallahassee, Leon County, Florida.

S

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 6 th day of April , 2012 .

ENDNOTE S

1/ The issue of retaliation was withdrawn.

2/ No party argued in the instant case that the Mr. Charlot was

convicted. The details of the plea agreement are contained in

the Discussion/Analysis of the H earing Examiner's written

recommendation, which was admitted int o evidence, without

objection. The Hearing Examiner stated that the plea agreement

was 50 hours of community service.

COPIES FURNISHED:

Mayra Lize tte Gonzalez - Kadzinski, Esquire

Law Office s of International Immigration

and Labor Services

Suite 510

3550 Biscayne Boulevard

Miami, Florida 33137

[e-mail]

Eric Alberto Rodriguez, Esquire

Office of Dade County Attorney

Suite 2810

111 Northwest First Street

Miami, Florida 33128 - 1930

[e-mail]

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

Larry Kranert, General Counsel

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tall ahassee, 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

w ill issue the Final Order in this case.