10-010513 Michael B. Carter vs. City Of Pompano Status: Closed Recommended Order on Wednesday, January 25, 2012.

Summary: Petitioner failed to prove that he was subjected to any act of unlawful discrimination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARIN GS

MICHAEL B. CARTER , )

)

Petitioner, )

)

vs. ) Case No. 10 - 10513

)

CITY OF POMPANO , )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was con d ucted in this case

pursuant to s ections 120.569 and 120.57(1), Florida Statutes,

before Ed ward T. Bauer, an administrative law judge of the

Division of Administrative Hearings (DOAH), on June 28 and 29;

July 1; and October 12, 13, and 14 , 2011, by video

t eleconferen ce at sites in Lauderdale Lakes and Tallahassee,

Florida.

APPEARANCES

For Petitioner: Jamison Jessup, Qualified Representative

557 Noremac Avenue

Deltona , Florida 32738

For Respondent: Erin Gill Robles , Esquire

City of Pompano Beac h

Post Office Box 2083

Pompano Beach , F lorida 33061

STATEMENT OF THE ISSUE S

W hether Respondent committed the unlawful employment

practices alleged in the Charge of Discrimination filed with the

Florida Commission on Human Relations ("FCHR") and, i f so, what

relief should Petitioner be granted.

PRELIMINARY STATEMENT

On June 24 , 2010, Petitioner , an African - American male,

filed a Charge of Discrimination ( "C omplaint" ) with FCHR, which

alleged as follows :

I believe I have been discriminated against

pursuant to Chapter 760 of the Florida Civil

Rights Act, and/or Title VII of the Federal

Civil Rights Act . . . for the following

reasons(s):

I am an African American male. I have

worked for the said employer since January

1981. My title is Public Work s

Streets/Ground Superintendent. I am well

qualified for my position. I am the only

African American Superintendent. I was

informed by Michael Smith (W/M) and Robert

McCoughan [sic] (W/M) that a reorganization

of the departments was taking place. On

Ju ne 23, 2009, my responsibilities were

decreased within my department and all the

directors became distant to me and refused

to communicate with me. They also refused

to allow me to fill vacant positions which

is causing disruption in the work areas. No

o ther department was reorganized. No other

Superintendent is within my race. I still

have decreased responsibilities and this

discrimination is now effecting [sic] my

performance evaluations. I believe I am

being discriminated against by my employer

due t o my race.

On November 4 , 2010, following the completion of its

investigat ion of the c omplaint, FCHR issued a Notice of

Determination: No Cause . Petitioner elected to pursue

administrative remedies, timely fil ing a Petition for R elief

with FCHR on De cember 6, 2010. Subsequently, on December 9 ,

2010, FCHR referred the matter to DOAH for further proceedings.

During the final hear ing, Petitioner testified on his own

behalf and presented the testimony of Michael Smith, Arnold

McRay, Robert McCaughan, Li sa Willi ams, Roger Palermo, Bernard

King, Leonar d Mateya, Gladys Williams, Sherry Loochkartt,

Ernestin e Price, Patrick Sweny, Nathaniel Johnson, Jeffrey

Sneed, and Ron ald Rolle. In addition, the following pages of

Petitioner's exhibit book were admitted i nto evidence: 32; 38 -

40; 78; 277 - 280; 585; 615; 618; 619; 726; and 728. Respondent

presented the testimony of Rita Craig, Phyllis Korab, Michael

Smith, Robert McCaughan, Russell Ketchum, Kristie Newbold, 1 / and

Willie Hopkins . Respondent's Exhibits 1 - 6, 7, 9 - 17, 19 - 21, 23 -

24, 25, 26, 28 - 29, 31 - 32, 34 - 39 were offered and received into

evidence .

The Transcript of the first three days of the final hearing

was filed with DOAH on August 1 , 2011, and the remainder of the

Transcript w as filed on November 15 , 2 011.

Pursuant t o a succession of unopposed motions t o modify the

due date for the submission of proposed recommended orders, the

undersigned extended t he deadline to January 4, 2012 .

Petitioner and Respondent timely submitted proposed recommended

or ders, both of which have been considered in the preparation of

this Recommended Order . 2 /

Unless otherwise indicated, citations to the Fl orida

S tatutes refer to the 2010 Florida Statutes.

FINDINGS OF FACT

A. Background

1. At all times material to this proceeding, Petitioner ,

an African - American male, was employed in the Public Works

Department ("Public Works") of the City of Pompano Beach ("the

City" or "Respondent").

2. In or around 1995, Petitioner ÏÏ who had worked for the

City since 1981 ÏÏ was promo ted t o a superintendent position and

assigned to oversee two separate divisions wi thin Public Works :

the streets division and the grounds division.

3. Although Petitioner was described in personnel

documents as "Streets Superintendent," his functional title

within Public Works was "Streets and Grounds Superintendent."

4 . In September 2006, the City hired Robert McCaugh a n ÏÏ a

retired civil engineering officer with the United States Air

Force ÏÏ to serve as its new Director of Public Works , the top

posit ion wi thin the department . Mr. McCaughan is Caucasian.

5. At the time of his hire (and until June 22, 2009 , when

a reorganization occurred ) , Public Works was structured such

that four superintendents ÏÏ all Caucasian with the exception of

Petiti oner ÏÏ reported to Mr. McCaughan: Petitioner, who headed

the streets and grounds divisions and oversaw approximately 100

employees, including five supervisors ; Roger Palermo, the

superintendent of building maintenance , who had roughly 15

employees under hi s authority, including one supervisor ; Mark

Stevens, the superintendent of the fleet maintenance division ,

who oversaw approximately ten employees, including one foreman ;

and Steve R occo, the airpark manager , who had six employees

under his authority, incl uding one supervisor .

6. Soon after he began his employment with the City,

Mr. McCaughan became aware ÏÏ through the receipt of complaints

from various employees, which Mr. McCaugh a n accepted as

credible ÏÏ of issues wi th Petitioner's management technique s and

ability to behave amicably with others in the workplace. For

instance, Arnold McRay, who reported directly to Petitioner and

served as the grounds supervisor , complained to Mr. McCaughan

that Petitioner often exhibited a dictatorial management style

that made it difficult to get work done. Mr. McRay , who is

African - American, also reported that Petitioner would often talk

down to him and micromanage leave approvals.

7. In addition to Mr. McRay's comments, Mr. McCaughan also

received complai nts from two other supervisors under

Petitioner's authority: Russell Ketchum, the solid waste

supervisor, who advised that Petitioner exhibited a lack of

communication and engaged in behavior that ma de it difficult to

complete tasks ; and Dick Tench, the g rounds supervisor, who

indicated that Petitioner, on at least one occasion, interfered

with the discipline of an employee under his (Mr. Tench's)

supervision.

8. Significantly, Mr. McRay, Mr. Tench, and Mr. Ketchum

also complained that Petitioner had ord ered them not to speak

directly to Mr. McCaughan about work matters. Although

Petitioner , when asked, denied that he made such an order, it

was clear to Mr. McCaughan that Petitioner, in one way or

another, had created the distinct impression among the

co mplaining supervisors that work iss ues could only be addressed

with him (Petitioner) . 3 /

B. Reorganization of Public Works

9. Beginning in 2007, the City began to face a budgetary

crisis that resulted from declining tax revenues and increasing

costs. A s a result, a strict hiring freeze (that continued

through 2010) was instituted, in which most vacant positions

throughout the City remained unfilled. Petitioner, like all

other managers within the City, was prohibited from filling any

position that was not designated as essential. 4 /

10 . In late 2008 or early 2009, the City Manager at that

time, Keith Chadwell, considered a possible merger of Public

Works with the City's Parks and Recreation Department. Although

the merger concept was ultimately reje cted, Mr. McCaughan

decided, in an effort to improve efficiency, to move forward

with a reorganization of Public Works.

11 . Pursuant to the reorganization, which was implemented

on June 22, 2009, the grounds and solid waste divisions were

removed from Pe titioner's supervision, which reduced the number

of employees under his charge by approximately 80 percent (from

more than 100 employees to 20). As a consequence , three of the

four supervisors who previously reported to Petitioner ÏÏ

Mr. McRay, Mr. Te nch, and Mr. Ketchum , each of whom had lodged

complaints about Petitioner ÏÏ were reassigned to Mr. McCaughan's

direct supervision. Petitioner retained his status as a

superintendent, however, and suffered no loss of pay or

benefits.

12 . On June 22, 20 09, Mr. McCaughan informed Petitioner of

the reorganization, and, on the following day, provided

Petitioner with a detailed organizational chart that placed

Petitioner on notice that his supervisory duties had been

diminished in the manner described above.

13 . As part of the overall goal to enhance efficiency, Mr.

McCaughan also decided to change the manner in which clerical

services were provided within the streets, grounds, and solid

waste divisions. In particular, Mr. McCaughan created a central

poo l of clerical workers that served the three divisions as a

whole ÏÏ as opposed to the previous arrangement, where

superintendents such as Petitioner were each assigned assistants

of their own . Under the new system, management employees that

required clerica l help would contact the head secretary, Ruth

Bobbi, who in turn would assign the task to a member of the

secretarial pool.

14 . There is no credible evidence that the reorganization

of the clerical staff caused Petitioner to suffer any meaningful

deprivation of secretarial services. On the contr ary, the

evidence demonstrates that Petitioner was at all times

authorized to bring assignments to Ms. Bobbi to be distributed

to a secretary in the general pool.

C. Post - Reorganization Events

15 . N eedless to say, Petition er disagreed vehemently with

Mr. McCaughan' s reorganization of the Public Works Department .

Within a week of the restructuring, Petitioner filed a written

complaint with Phyllis Korab, the Interim City Manager at that

time, which a lleged that Mr. McCaughan and Michael Smith ÏÏ the

Director of Human Resources for the City, who had no authority

whatsoever over Petitioner ÏÏ had discriminated against him.

16. Because the City's Director of Human Resources was

specifically named in th e complaint, Ms. Korab decided to retain

an outside investigator to examine Petitioner's allegations.

Ms. Korab ultimately hired Ms. Rita Craig (of "The Cr aig

Group"), who had prev iously served as the head of the Florida

Commission on Human Relations.

17. At the conclusion of her investigation, Ms. Craig

recommended to the City that Petitioner's office be relocated

closer to Mr. McCaughan's office ÏÏ to improve communications ÏÏ and

away from employee s with whom Petitioner did not get along . 5 /

Mr. McCa ughan ultimately accepted the suggestion and moved

Petitioner's office to the public works administration building,

the location where his ( Mr. McCaughan's ) office was housed.

18. In early 2010, Mr. McCaughan conducted Petitioner's

annual performance evaluation, which was finalized on March 24,

2011, and reviewed by Petitioner one week later. In the

evaluation, Mr. McCaughan assessed Petitioner's overall

performance as "very effective," the second highest of five

possible ratings , and one ranking hig her than "fully effective,"

which the City equates to a "clearly satisfactory level of

achievement." In other words, Petitioner's overall performance

was rated as exceeding the City's requirements. 6 /

D. Ostracism

19. During his final hearing testimony in this proceeding,

Petitioner complained that some employees within the City

refused to speak with him after the reorganization of Public

Works. Petitioner's testimony on this issue, which was vague at

best , is credited only to the extent that Helen Gra y, the city

engineer, ceased communications with Petitioner following the

restructuring.

CONCLUSIONS OF LAW

A. Jurisdiction

20 . DOAH has personal and subject matter jurisdiction in

this proceeding pursuant to s ections 120.569, and 120.57(1),

Florida S tatutes.

B. Introduction

21 . The Florida Civil Rights Act of 1992 ( " the FCRA " ) is

codified in s ections 760.01 through 760.11, Florida Statutes,

and s ection 509.092, Florida Statutes .

22 . "The [FCRA] , as amended, was patterned after Title VII

of the Ci vil Rights Acts of 1964 and 1991 . . . as well as the

Age Discrimination in Employme nt Act . . . . Federal case law

interpreting [provisions of] Title VII and the ADEA is

[therefore] applicable to cases arising under [the FCRA] ." Fla.

State Univ. v. Sond el , 685 So. 2d 923, 925 n.1 (Fla. 1st DCA

1996); Joshua v. City of Gainesville , 768 So. 2d 432, 435 (Fla.

2000)("The [FCRA's ] stated purpose and statutory construction

directive are modeled after Title VII of the Civil Rights Act of

1964 "); Valenzu ela v. G lobeGround N. Am. , LLC , 18 So. 3d 17, 21

(Fla. 3d DCA 2009)("Because the FCRA is patterned after Title

VII o f the Civil Rights Act of 1964 . . . we look to federal

case law ") .

23 . Among other things, the FCRA makes certain acts

unlawful employment pract ices and gives the FC HR the authority ÏÏ

if it finds following an administrative hearing conducted

pursuant to s ections 120.5 69 and 120.57, that such an unlawful

emp loyment practice has occurred ÏÏ to issue an order "prohibiting

the practice and providing affi rmative relief from the effects

of the practice, including back pay." §§ 760.10 & 760.11(6),

Fla. Stat.

24 . To obtain such relief from the FCHR, a person who

claims to have been the victim of an "unlaw ful employment

practice" must, within 365 days of th e alleged violation, file a

complaint con taining a short and plain statement of the facts

describing the v iolation and the relief sought with the FCHR,

the EEOC , or " any unit of government of the state which is a

fair - employment - practice agency under 29 C. F.R. ss. 1601.70 -

1601.80." § 760.11(1), Fla. Stat.

25 . "[T] o preve nt circumvent ion of [ FCHR's ] investigatory

and conciliatory role, only those claims that are fairly

encompassed within a [timely - filed complaint] can be the subject

of [an administrative hearing conducted pursuant to Sections

120.569 and 120.57 ] " and any subsequent FCHR award of relief to

the complainant. Chambers v. Am . Trans Air, Inc. , 17 F.3d 998,

1003 (7th Cir. 1994) ; see also Batcher v. City of High Springs ,

FCHR Case No. 2011 - 358 ( Fla. FCHR Dec. 7, 2011)("[F]ailure to

include a particular charge in one's complaint filed with the

Florida Commission on Human Relations preclude[s] the inclusion

of the char ge in one's petition for relief"); Pamphile v. FedE x ,

FCHR Case No. 2010 - 1893 (Fl a. FCHR Nov. 3, 2011)(same as

Batcher ).

26 . With the preceding framework in mind, the entirety of

Petitioner's June 24, 2010, complaint reads as follows:

I am an African American male. I have

worked for the said employer since January

1981. My tit le is Public Works

Streets/Ground Superintendent. I am well

qualified for my position. I am the only

African American Superintendent. I was

informed by Michael Smith (W/M) and Robert

McCoughan [sic] (W/M) that a reorganization

of the departments was tak ing place. On

June 23, 2009, my responsibilities were

decreased within my department and all the

directors became distant to me and refused

to communicate with me . They also refused

to allow me to fill vacant positions which

is causing disruption in the work areas. No

other department was reorganized. No other

Superintendent is within my race. I still

have decreased responsibilities and this

discrimination is now effecting [sic] my

performance evaluations . I believe I am

being discriminated against by my employer

due to my race.

(emphasis added).

27 . Pursu ant to foregoing language , the only allegations

that are "fairly encompassed" within Petitioner's complaint are

that Respondent committed four discrete acts of racial

discrimination, namely : ( 1) a diminishment of Petitioner's

supervisory responsibilities, which occ urred as a result of the

June 22 , 2009, reorganization of th e streets and grounds

divisions ; (2) the refusal of "dire ctors" to communicate with

Petitioner ; (3) a prohibition against Pet itioner filling vacant

positions; and (4) the issuance of negative performance

evaluations. Notably, Petitioner's complaint contains no

language that can be interpreted reasonably as an allegation

that Respondent created a hostile work environment, 7 / nor does

the complaint in any manner allege that Petitioner is the victim

of unlawful retaliation ÏÏ i.e., that Petitioner engaged in a

protected activity and Respondent committed an adverse

employment action against him as a result. 8 / As such, the

undersigned must confine these proceedings to the four claims

raised in the compl aint, each of which is analyzed separately

below. See Helm v. Ancilla Domini College , 2012 U.S. Dist.

LEXIS 1661, *1 (N.D. Ind. Jan. 5, 2012)("Within its discussion

of [plaintiff's] disc rimination claims, the court individually

considers her allegations of discrete acts"); Ware v.

Billington , 344 F. Supp. 2d 63, 71 n.1 (D.D.C. 2004)(rejecting

plaintiff's argument that alleged adverse employment actions

should be considered in their totali ty; "This is not the law

. . . for analyzing a discrimination claim based on disparate

treatment . . . . Rather, each alleged adverse action must be

analyzed to determine if it constitutes an objectively tangible

harm") (internal quotation marks omitted).

C. Reduction of Supervisory Respon sibilities

1. Timeliness

28 . At the outset, it is necessary to address Respondent's

contention that Petitioner is time - barred from pursuing the

claim that the reduction in his supervisory duties constituted

a n adverse employment action. Spe cifically, Respondent argues

that contrary to the requirements of sec tion 760.11(1),

Petitioner's complaint was filed with FCHR on June 24, 2010,

more than 365 days after the re - organization of the public works

department a nd modification of Petitioner's duties, which

occurred on June 22, 2009 , and was communicated to Petitioner on

that date (and in greater detail on the following day). See §

760.11(1), Flat. Stat. ("Any person aggrieved by a violation of

ss. 760.01 - 760.10 may file a complaint with the commission

within 365 days of the alleged violation"); Fla. Admin. Code R.

60Y - 5.001(3) ("providing that "the date of filing shall be the

date of actual receipt of the complaint by the Clerk or other

agent of [FCHR]").

29 . A s there is no disput e that Petitioner's complaint

was filed with FCHR on June 24, 2010, more than 365 days after

Petitioner was informed of the reorganization, the claim is

untimely, see St. Petersburg Motor Club v. Cook , 567 So. 2d 488,

489 (Fla. 2d DCA 1 990)("The period for filing a complaint [with

FCHR], therefore, commenced at the time the decision was made

and communicated to the appellee regardless of the fact that the

effect of such decision . . . did not occur until later"),

unless the limitations p eriod was tolled by operation of s e ction

95.051, Florida Statutes. Greene v. Seminole Elec. Coop.,

Inc. , 701 So. 2d 646, 648 (Fla. 5 th DCA 1997)(holding that the

limitations period for the filing of a discrimination complaint

with FCHR can be equitably t olled, but only based on the acts or

circumstances enumerated in section 95.051).

30 . Section 95.051 provide s, in relevant part, as follows :

§ 95.051. When limitations tolled

(1) The running of the time under any

statute of limitations except ss. 95.2 81,

95. 35, and 95.36 is tolled by:

(a) Absence from the stat e of the person to

be sued.

(b) Use by the person to be sued of a false

name that is unknown to the person entitled

to sue so that process cannot be serve d on

the person to be sued.

(c) Co ncealment in the state of the person

to be sued so that process cann ot be served

on him or her.

(d) The adjudicated incapacity, before the

cause of action accrued, of the person

entitled to sue. In any event, the action

must be begun within 7 years after the act,

event, or occurrence givi ng rise to the

cause of action.

(e) Voluntary payments by the alleged

father of the child in paternity actions

durin g the time of the payments.

(f) The payment of any part of the

principal or interest of any obligatio n or

liability found ed on a written instrument.

(g) The pendency of any arbitral proceeding

pertaining to a dispute that is the subject

of the action.

(h) The period of an intervening bankruptcy

tolls the expiration pe riod of a tax

certificate. . . .

(i) The minority or previously adjudicated

incapacity of the person entitled to sue

during any period of time in which a parent,

guardian, or guardian ad litem does not

exist, has an interest adverse to the minor

or incapacitated person, or is adjudicate d

to be incapacitated to sue . . . .

31 . As none of the circumstances enumerated in section

95.051(1) are applicable in this proceed ing, Petitioner's

allegation regarding the diminishment of his supervisory

responsibilities is untimely.

32. Even if P etitioner's claim regarding the

reorganization of Public Works had been tim ely filed, he is

still not entitled to relief because his claim is without merit,

for the alternative ÏÏ and independently dispositive ÏÏ reasons set

forth below.

2. Merits

33 . Sect ion 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 any individual, or otherwise to

discriminate against any individual with

respect to compen sation, terms, conditions,

or privileges of employment, because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

34 . C omplainant s alleging unlawful discrimination may

prove their case using direct evide nce of discriminatory intent.

Direct evidence is evidence that, if believed, would prove the

existence of discriminatory intent without resort to inference

or presumption. Denney v. City of Albany , 247 F.3d 1172, 1182

(11th Cir. 2001); Holifield v. Reno , 115 F.3d 1555, 1561 (11th

Cir. 1997). Courts have held that "only the most blatant

remarks, whose intent could be nothing other than to

discriminate , " satisfy this definition. See Damon v. Fleming

Supermarkets of Fla., Inc. , 196 F.3d 1354, 1358 - 59 (11th Cir.

1999) (internal quotations omitted) . Often, such evidence is

una vailable, and i n this case, Petitioner presented none.

35 . A s an alternative to relying exclusively upon d irect

evidence, the law permits complainants to profit from an

inference of dis criminatory intent, if they can adduce

sufficient circumstantial evi dence of discriminatory animus,

such as proof that the charged party treated persons outside of

the pro tected class ( who we re otherwise similarly situated) more

favorably than the complain ant was treated . Such circumstantial

evidence, when presented, constitutes a prima facie case.

36 . In McDonnell Douglas Corp. v. Green , 411 U.S. 792,

802 - 803 (1973), the U.S. Supreme Court articulated a scheme for

analyzing employment discrimination clai ms where, as here, the

complainant relies upon circumstantial evidence of

discriminatory intent. Pursuant t o this analysis, Petitioner

has the initial burden of establishing by a preponderance of the

evidence a prima facie case of unlawful discriminatio n, which

requires proof that he (1) is a member of a protected class; (2)

was qualified for the position; (3) was subject to an adverse

employment action; and (4) was treated less favorably than other

similarly situated employees . Alvarez v. Royal Atl. Deve lopers ,

Inc. , 610 F.3d 1253, 1264 (11th Cir. 2010) ; Ramsey v. Henderson ,

286 F.3d 264, 268 (5th Cir. 2002).

37 . Failure to establish a prima facie case of

discrimination ends the inquiry. Ratliff v. State , 666 So. 2d

1008, 1012 n.6 (Fla. 1st DCA 1996 ) . If, however, the

complainant succeeds in making a prima facie case, then the

burden shifts to the accused employer to articulate a

legitimate, non - discriminatory reason for its complained - of

conduct. Alvarez , 610 F.3d at 1264. This intermediate burden

of production, not persuasion, is "exceedingly light." Turnes

v. Am s outh Bank, N.A. , 36 F.3d 1057, 1061 (11th Cir. 1994). If

the employer carries this burden, then the complainant must

establish that the proffered reason was not the true reason but

merely a pretext for discrimination. St. Mary's Honor Ctr. v.

Hicks , 509 U.S. 502, 51 6 - 518 (1993); Alvarez , 610 F.3d at 1264.

Despite these shifts in the burden of production, "the ultimate

burden of persuasion remains on the plaintiff to show that the

defendan t intentionally discriminated against her." Alvarez ,

610 F.3d at 1264; Wilson v. B/E Aerospace, Inc. , 376 F.3d 1079,

1088 (11th Cir. 2004).

38 . It is undisputed that Petitioner , an African - American,

is a member of a protected class . As such, Petition er satisfied

the first prong of a prima facie case of employment

discrimination.

39 . The second prong of the test has also been satisfied,

as sufficient evidence was presented from which the undersigned

can conclude that Petitioner possessed the basic s kills

necessary for the performance of the job. See Gregory v. Daly ,

243 F.3d 687, 696 (2d Cir. 2001 ) (holding that a plaintiff "need

only make the minimal showing that she possesses the basic

skills necessary for performance of [the] job" to satisfy the

r equirement that the plaintiff was qualified for the

position)(internal citations and quotations omitted).

40 . Turning to the third prong, the undersigned must

determine if the diminishment of Petitioner's supervisory

responsibilities constitutes an ad verse employment action.

Although an adverse action need not be an ultimate employment

decision ÏÏ e.g., termination, failure to hire, or demotion ÏÏ it

must meet a threshold level of substantiality. Grimsley v.

Marshalls of MA, Inc. , 284 Fed. Appx. 604, 608 (11th Cir. 2008) .

While evidence of direct economic consequences is not always

required, "to prove adverse employment action under Title VII's

anti - discrimination clause, an employee must show a serious and

material change in the terms, conditions, or pr ivileges of

employment." Id. at 608. Petitioner's "subjective perception

of the seriousness of the change is not controlling; rather this

issue is viewed objectively from the perspective of a reasonable

person under the circumstances." Id.

41 . A use ful and persuasive application of the "serious

and material change in the terms, conditions, or privileges of

employment" standard is provided by Byrne v. Alabama Alcoholic

Beverage Control Board , 635 F. Supp. 2d 1281 (M .D. Ala. 2009).

In Byrne , the plai n tiff alleged, inter alia, that the complete

removal of her supervisory responsibilities ÏÏ allege dly due to

her gender ÏÏ constituted an adverse employment action. In

rejecting the plaintiff's argument and entering summary judgment

for the employer, the court found it significant that no

modification of pay or benefits accompanied the reduction of

duties :

An "indispensable element" of Ms. Byrne's

prima facie case on her Title VII gender

discrimination claim alleging disparate

treatment is proof of an "adverse employment

action." Davis v. Town of Lake Park , 245

F.3d 1232, 1246 (11th Cir. 2001).

* * *

On the facts presented, the removal of Ms.

Byrne's supervisory responsibilities and the

shift of her post - reorganization duties to

those more clerical are not th e type of

serious and material changes contemplated by

Davis . See Davis , 245 F.3d at 1232 (noting

that changes in job duties generally do not

constitute an adverse employment action) . .

. . As observed in Davis , "[A]pplying the

adverse action requirement carefully is

especially important when the plaintiff's

claim is predicated on his disagreement with

his employer's reassignment of job tasks."

245 F.3d at 1244 . Such claims "strike at

the very heart of an employer's business

judgment and expertise," and, in particular,

with regard to public entities, their

responsibility o f "balanc[ing] limited

personnel resources with the wide variety of

critically important and challenging tasks

expected of them by the public." Id. Here,

it is undisputed that no economic harm

accompanied these changes in Ms. Byrne's job

tasks , and the c ourt finds that Ms. Byrne

has not presented an "unusual" set of

circumstances. Id. at 1245 ; see also id.

(citing as an example of an "unusual

instance[]" McNely v. Ocala Star - Banner

Corp. , 99 F.3d 1068, 1077 - 78 (11th Cir.

1996), in which the court held th at the jury

should have been permitted to consider as a

basis for the plaintiff's discrimination

claim that he was stripped of his

supervisory duties in the newspaper's camera

department and assigned to clean toilets as

a janitor).

Id. at 1292 - 93 (emphasi s added) ; Chavez v. Dakkota Integrated

Sys., LLC , 2011 U.S. Dist. LEXIS 58382 (W.D. Ky. May 27, 2011)

("Plaintiff has also argued that he suffered an adverse

employment action by and through the removal of her supervisory

duties . . . and the issuance of a low annual evaluation. It is

clear from the record that these action s do not constitute

adverse employment actions because they did not materially

affect or alter Plaintiff's employment. At the time these

actions were taken, Plaintiff did not suffer any reduced

benefits or i ncur any direct economic harm . ").

42 . Turning to the facts of the instant case, it is true,

as Petitioner asserts, that his supervisory responsibilities

were decreased significantly pursuant to the June 2009

reorganization. Howev er, as Petitioner remains at the same

level in th e hierarchy of Public Works ÏÏ a superintendent ÏÏ and

continues to enjoy the same pa y and benefits, the undersigned

concludes that the reduction of Petitioner's supervisory duties

does not constitute an adverse employment action. See Byrne , 635

F. Supp. 2d at 1292 - 93. As such, Petitioner's prima facie case

fails.

43 . Even assuming, arguendo, that Petitioner could

establish a prima facie case , Respondent has proffered a

legitimate, non - discriminatory reason f or the action ÏÏ to improve

efficiency within the public works department ÏÏ that Petitioner

has failed to refute as a mere pretext for discrimination. See

Combs v. Plantation Patterns , 106 F.3d 1519, 1538 (11th Cir.

1997)(holding that a plaintiff must show " such weaknesses,

implausibilities, inconsistencies, incoherencies, or

contradictions in the employer's proffered legitimate reasons

for its action that a reasonable factfinder could find them

unworthy of credence").

D. Performance Evaluations

44 . Turning to the issue of performance evaluations , only

Petitioner's March 24, 2010, evaluation occurred within 365 days

of the date he filed his complaint with FCHR. See § 760.11(1),

Flat. Stat. ("Any person aggrieved by a violation of ss. 760.01 -

760.10 may file a complaint with the commission within 365 days

of the alleged violation"). Accordingly, Petitioner's

evaluations from 2000 through 2009, which were not timely

challenged, will not be examined as possible adverse employment

actions.

45 . With respect to the March 24, 2010, evaluation,

Petitioner's claim fails for the simple reason that Mr.

McCaugh a n rated him "very effective" ÏÏ the second highest ranking

( ou t of five possibilities), which cannot be construe d as

anything but positive . See Watson v. Potter , 35 Fed. Appx. 261,

264 (7th Cir. 2002) (rejecting conte ntion that rating performance

as "very good" rather than "outstanding" constituted an adverse

action; "Moreover, [plaintiff] did not refute [defendant's]

position that a 'very good' rating is inde ed a positive

performance rating "). For this reason alone, Petitioner is

unable to demonstrate that the evaluation constitutes an adverse

employment action.

46 . Even assuming, arguendo, that the March 2010

evaluation can be characterized as negative, Petiti oner's claim

nevertheless fails due to the absence of any evidence that he

suffered a "connected tangible injury, such as a loss in

benefits, ineligibility for promotional opportunities , or . . .

formal discipline." Anderson v. UPS , 248 Fed. Appx. 97, 100

(11th Cir. 2007); Douglas v. Preston , 559 F.3d 549, 552 (D.C.

Cir. 2009)(observing that a performance evaluation only

constitutes an adverse employment action where it adversely

affects the employee's salary or chances for advancement) .

47 . For these r easons, Petitioner cannot establish a prima

facie case of discrimination based upon the March 24, 2010,

evaluation.

E . Refusal to Communicate

48 . Petitioner next alleges, as an additional adverse

employment action, that "all the directors became dista nt . . .

and refused to communicate" with him subsequent to the June 2009

reorganization.

49 . A s detailed in t he findings of fact above, the

credible evidence demonstrates that only one City employee ÏÏ

Helen Gray, the city engineer ÏÏ refused to communicat e directly

with Petitioner after the restructuring. Such a grievance ,

which is nothing more than a common workplace slight, falls

woefully short of an adverse employment action. See Harmon v.

Home Depot USA, Inc. , 130 Fed. Appx. 902, 904 (9th Cir.

2005) ( "Ostracism, however, is not an adverse employment

action"); Williams v. City of Kansas City, Mo. , 223 F.3d 749,

754 (8th Cir. 2000)(holding that defendant's "silent treatment

of [plaintiff] is at most ostracism, which does not rise to the

level of an actio nable adverse employment action"); Roberts v.

Segal Co. , 125 F. S upp. 2d 545, 549 (D.D.C. 2000)("The fact that

plaintiff believes she was getting the cold shoulder from her

co - workers does not constitute . . . an adverse personnel

action ") . Petitioner is therefore unable to establish a prima

facie case of discrimination based upon an alleged failure to

communicate by his co - workers.

F. Filling of Positions

50 . Petitioner's final allegation of discrimination is

tha t Respondent prohibited him from fill ing vacant positions

within his department from 2007 through 2010 .

51 . First, as Respondent correctly notes, Petitioner's

claim is untimely to the extent that he wishes to challenge acts

that occurred more than 3 65 days before June 24, 2010, the date

P etitioner filed his discrimination complaint with FCHR . See §

760.11(1), Fla. Stat. Accordingly, P etitioner's challenge must

be confined to any limitation on the filling of positions that

occurred on or after June 24, 2009. See id.

52 . Whi le it is true, as Petitioner alleges, that he was

prohibited from filling non - essential positions throughout 2009

and 2010, he fails to acknowledge that this limit ation was

imposed pursuant to a hiring freeze that applied to all

departments within the City of Pompano Beach. As there i s no

evidence whatsoever that Petitioner was treated differently than

any other department head or supervisor , he is unable to

establish a prima facie case of discrimination. See Alvarez v.

Royal Atl. Developers , Inc. , 610 F. 3d 1253, 1264 (11th Cir.

2010)(holding that that to establish a prima facie case of

discrimination, a complainant must demonstrate, inter alia, that

he or she was treated differently than other similarly situated

employees).

G. Unpleaded Discrete Acts of Discrimination

53 . In his Proposed Recommen ded Order, Petitioner

identifies three oth er discrete acts that he alleges constitute

unlawful discrimination: (1) the denial of clerical assistance;

(2) Mr. Smith's levying of "false allegations" against hi m

during the investigation by The Craig Group; and (3) Mr. Smith's

"failure" to provide him " the same deference " as afforded to

Mr. Herman.

54 . A s none of these claims were included in Petitioner's

June 24, 2010, discrimination complaint, they must be rejected.

See Batcher v. City of High Springs , FCHR Case No. 20 11 - 358

(Fla. FCHR Dec. 7, 2011). Further, and as discussed below, e ven

assuming that Petitioner's unpleaded claims c an be properly

considered on the merits, none rises to the level of an adve rse

employment action.

55 . Beginning with the issue of clerical support, there

was no credible evid ence that Petitioner was denied the

assistance he needed to perform his job functions. Instead, the

record evidence demonstrates that after the June 2009

r eor ganization, Petitioner began to receive support fr om the

clerical pool as a whole (as opposed to the previous system,

where Petitioner was assigned a particular member of the

clerical staff). While the new arrangement was undoubtedly not

to Petitioner' s liking, and arguably less convenient,

Respondent's restricting of the clerical staff does not rise to

the level of an adverse employment action. See Halloway v.

Milwaukee Cnty. , 180 F.3d 820, 826 (7th Cir. 1999)(holding that

plaintiff failed to establis h an adverse employment action from

the alleged failure to provide adequate support staff where the

alleged failure was no "more disruptive than a mere

inconvenience").

56 . As to the claim of false allegations, even assuming,

arguendo, that Mr. Smith pr ovided untruthful information

regarding Petitioner to The Craig Group during its

investigation, there is no evidence that P etitioner experienced

a significant change in his employment as a result Mr. Smith's

conduct. Indeed, Petitioner's principal complai nt in this

proceeding ÏÏ the partial removal of his supervisory

responsibilities ÏÏ occurred prior to the Craig Group's

investigation. As such, Mr. Smith's allegations against

Petitioner, even if untrue, do not rise to the level of an

adverse employment actio n. See Benningfield v. City of Houston ,

157 F.3d 369, 376 (5th Cir. 1998)("[Plaintiff] alleges that she

was falsely accused of attempting to sabotage the fingerprint

identification system. Assuming that these allegations are

true, mere accusations, witho ut more, are not adverse employment

actions"); Zhang v. Rolls - Royce, Seaworthy Sys., Inc. , 2012 U.S.

Dist. LE XIS 933 (E.D. Va. Jan. 5, 2012) (concluding that

employer's supposed false allegations against plaintiff, w hich

resulted in no changes in the terms or conditions of plaintiff's

employment , did not constitute an adverse employment action);

see also Mitchom v. Bi - State Dev. Agency , 43 Fed. Appx. 958,

958 - 59 (7th Cir. 2002)(holding that plaintiff, who suffered no

significant change in his employment stat us, did not sustain an

adverse employment action w here employer refused to purge a

" false accusation" from plaintiff's employment record).

57 . Fi nall y, Petitioner's contention that Mr. Smith

scrutinized him for certain behavior (e.g., treating

subordinate s poorly), yet defended William Herman in the wake of

similar misconduct, even if true, does not constitute an adverse

employment action. See McKinnon v. Gonzales , 642 F. Supp. 2d

410, 426 (D. N.J. 2009)(stressing that allegations of

"micromanaging" and "i ncreased scrutiny" do not constitute

materially adverse employment actions) . 9 /

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED th at the Florida Commission on Human

Relations enter a final order adopting the Findings of Fact and

Conclusions of Law contained in this Recommended Order.

Further, it is RECOMMENDED that the final order dismiss the

Petition for Relief.

DONE AND ENTERED this 25th day of January, 2012 , in

Tallahassee, Leon County, Florida.

S

_ __________________________________

Edward T. Bauer

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

File d with the Clerk of the

Division of Administrative Hearings

t his 25th day of January , 2012 .

ENDNOTES

1 / In its Proposed Recommended Order and witness list,

Respondent spells Ms. Newbold's given name "Kristie," as opposed

to the spellin g contained in the final hearing Transcript,

"Christy." As it is unclear which is correct, the undersigned

has deferred to the Transcript.

2 / Portions of the conclusions of law section of Petitioner's

Proposed Recommended Order, as well as paragraph s 34 through 37

of this Recommended Order, borrow heavily from the undersigned's

earlier o rder in King v. Department of Corrections , Case No. 10 -

4818 (Fla. DOAH July 22, 2011).

3 / Mr. Ketchum, Mr. McRay, and Mr. Tench also lodged complaints

regarding P etitioner with Ms. Phyllis Korab, who began her

employment with the City in 2005. Ms. Korab, who presently

serves as an Assistant City Manager, acted as the Interim Public

Works Director from April 2006 through September 2006 and as the

Interim City Manag er from May 2007 through July 2007 (and again

from June 2009 through December 2009).

4 / Notwithstanding the hiring freeze, on October 29, 2008, Mr.

McCaughan authorized Petitioner to fill three vacant positions.

5 / Ms. Craig's opinion regarding t he merits of Petitioner's

allegations of discrimination are of no moment in this

proceeding, and therefore will not be discussed.

6 / Petitioner also received an overall rating of "very

effective" in his 2011 evaluation.

7 / Even assuming that Petit ioner alleged the existence of a

hostile work environment, none of the supposed wrongs enumerated

in the complaint ÏÏ a reduction of supervisory duties, one or more

negative evaluations, a refusal to communicate by certain

directors, and a freeze on new hire s ÏÏ can be properly brought

under a hostile environment claim, which centers on acts of

discriminatory ridicule, intimidation, and/or insult. See

McCann v. Tillman , 526 F.3d 1370, 1379 (11th Cir. 2008)("As the

district court properly found, the remainder o f McCann's

allegations concern patterns of discrimination practiced against

black employees, which constitute discrete acts that must be

challenged as separate statutory discrimination and retaliation

claims. These cannot be brought under a hostile enviro nment

claim that centers on discriminatory intimidation, ridicule, and

insult")(internal quotations omitted); Patterson v. Johnson , 391

F. Supp. 2d 140, 146 (D.D.C. 2005)(holding that plaintiff could

not "sweep[] [his allegations of discrete acts of

discri mination] under the rubric of a hostile work environment

claim"); Ware v. Billington , 344 F. Supp. 2d 63, 71 n.1 (D.D.C.

2004)(noting that plaintiff's litany of alleged adverse

employment actions could not be pleaded correctly under a

hostile work environm ent theory); see also Holmes - Martin v.

Sebelius , 693 F. Supp. 2d 141, 165 (D.D.C. 2010)(concluding that

plaintiff's claims that her job responsibilities were reduced,

that she was publicly criticized, excluded from meetings,

received unrealistic deadlines, and received unwarranted

criticism in her performance evaluations were not sufficiently

severe or pervasive to support a hostile work environment

claim); Pearsall v. Holder , 610 F. Supp. 2d 87, 98 - 99 (D.D.C.

2009)(dismissing hostile work environment claim where plaintiff

alleged the assignment of an inferior office, the denial of

training, exclusion from meetings, and the underutilization of

his skills and experience).

8 / Petitioner could have easily alleged retaliation in his

compliant with FCHR by chec king the box next to "Retaliation,"

which is pre - printed on the form.

9 / Although not pleaded in his discrimination complaint or

addressed in the conclusions of law portion of his Proposed

Recommended Order, Petitioner offered extensive testimony

con cerning the City's relocation of his office, an act that

Petitioner suggests was discriminatory. It is well - settled,

however, that an office change ÏÏ even to an undesirable setting ÏÏ

does not constitute an adverse employment action. See Reiter v.

Metro. T rans. Authority of N.Y. , 224 F.R.D. 157, 169 (S.D.N.Y.

2004)(noting that loss of desirable office space does not, by

itself, constitute an adverse employment action); Obi v. Anne

Arundel Cnty. , 142 F. Supp. 2d 655, 674 (D. Md. 2001)(finding

that new office assignment, which caused plaintiff to feel

cramped and inconvenienced, did not constitute an adverse

employment action).

COPIES FURNISHED :

Jamison Jessup, Qualified Representative

557 Noremac Avenue

Deltona , Florida 32738

Erin Gill Robles , Esquire

City of Pompano Beac h

Post Office Box 2083

Pompano Beach , F lorida 33061

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.