10-001178 Jarrod Rappaport vs. City Of Gainesville Status: Closed Recommended Order on Friday, July 16, 2010.

Summary: No racial discrimination was involved in terminating a white police officer who used excessive force against a black citizen who legally parked in a handicapped-parking space at Wal-Mart at 11:15 p.m.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JARROD RAPPAPORT, )

)

Petitioner, )

)

vs. ) Case No. 10-1178

)

CITY OF GAINESVILLE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot,

the assigned Administrative Law Judge of the Division of

Administrative Hearings, on May 19, 2010, by video

teleconference with sites in Gainesville and in Tallahassee,

Florida.

APPEARANCES

For Petitioner: Jarrod Rappaport, pro se

402 Northwest 48th Boulevard

Gainesville, Florida 32607

For Respondent: Daniel M. Nee, Esquire

City of Gainesville

200 East University Avenue, Suite 425

Gainesville, Florida 32601-5456

STATEMENT OF THE ISSUE

The issue presented is whether Respondent City of

Gainesville committed an unlawful employment practice when it

terminated Petitioner's employment.

PRELIMINARY STATEMENT

On or after September 4, 2009, Petitioner Jarrod Rappaport

filed an employment complaint of discrimination with the Florida

Commission on Human Relations alleging that Respondent City of

Gainesville had discriminated against him based upon his race.

In that complaint form, he identified September 17, 2008, the

date on which he was fired, as the date on which the most recent

discrimination against him took place. On February 5, 2010, the

Commission determined that there was no reasonable cause to

believe that an unlawful employment practice occurred.

Petitioner then filed with the Commission a Petition for

Relief, which expanded his claim by alleging that the

discrimination was based upon both his race and his sex. This

cause was transferred to the Division of Administrative Hearings

on March 10, 2010, for an evidentiary hearing.

Petitioner testified on his own behalf, and the City

presented the testimony of Felicia Stallworth, Sergeant John

Lance Yarbrough, Sergeant Jorge Campos, and Lynne McClary.

Additionally, Joint Exhibit numbered 1 and the City's Exhibits

numbered 1-6 were admitted in evidence.

The Transcript of the final hearing was filed on June 11,

2010. Although both parties were afforded the opportunity to

file proposed recommended orders, only the City did so. Those

documents have been considered in the entry of this Recommended

Order.

FINDINGS OF FACT

1. Petitioner is a white male.

2. Petitioner's employment as a police officer was

terminated by Respondent City of Gainesville on September 17,

2008.

3. On the evening of June 26, 2008, Petitioner was

voluntarily working an extra duty assignment at the Super Wal-

Mart store on Northeast 12th Avenue in Gainesville. Wal-Mart

had been experiencing problems with juveniles entering the store

in large groups and causing disturbances and property damage.

4. At approximately 11:15 p.m., Ms. Felicia Stallworth, a

black female, pulled into a handicapped-parking space and hung

her handicapped-parking decal from her rear-view mirror. She

was accompanied by two children: her twelve-year-old son and

her seven-year-old niece. At the time, Petitioner, who was in

uniform and wearing his badge, was engaged in conversation with

the occupants of a vehicle parked in another handicapped-parking

space.

5. Stallworth and the children exited her vehicle and

began walking to the store's entrance. Because Stallworth was

talking on her cell phone while she was walking, she heard

Petitioner say something but did not know what he said. She

stopped walking and asked him what he wanted.

6. Petitioner rudely and loudly demanded to see her

documentation to prove she was entitled to park in a

handicapped-parking space. Stallworth complied by walking back

to her vehicle, sitting in the driver's seat with the driver's

door open, and retrieving her handicapped-parking registration

from her glove compartment.

7. While she was doing so, Petitioner, who was standing

just outside the car door, was shining a flashlight into her car

so that it was shining in her face. She told him several times

to move the flashlight because she could not see, but he ignored

her and continued to shine it in the same manner.

8. Concerned for the safety of the children who were

standing at the back of the car on the passenger side, she

instructed the children to get back in the car so as to be out

of the path of passing vehicles. Petitioner rudely and loudly

told them to stand in front of the car instead. The children

complied.

9. Stallworth retrieved the registration and handed it to

Petitioner. She also handed him her placard. She then

attempted to get out of the car so she could put her purse on

the hood of the car so she could find her driver's license.

10. As she stood up, Petitioner crossed his arms in front

of his chest in a blocking motion and, using them, shoved her

forcefully against her car and then down into the driver's seat.

Her glasses were knocked askew, and the side of her face and

earlobe began to burn, likely from being scraped against the

doorframe.

11. After she was shoved back into her car, Stallworth was

able to find her driver's license in her purse, and she handed

it to Petitioner. When Petitioner finished examining her

placard, her placard registration, and her driver's license, he

handed the documents back to Stallworth and told her to have a

nice day.

12. Petitioner walked to the door of the store, turned and

looked at Stallworth, and stood there, apparently laughing at

her. Some of the numerous witnesses to this encounter between

Petitioner and Stallworth came up to her, inquired as to how she

was, and walked into the store with her.

13. Petitioner followed Stallworth while she was in the

store. When Stallworth left the store, she saw Petitioner walk

behind her car, write down her license tag, and then get into

his vehicle. Stallworth thought he was "running her tag" and

became afraid of what he might do to her next.

14. She called a relative who worked for the Alachua

County Sheriff's Office and asked that person to come to Wal-

Mart and watch her leave. After calling, she went back into the

Wal-Mart to wait. When she came out again, she and Petitioner

did not interact.

15. Before Petitioner shoved her against and then into her

vehicle, Stallworth had made no threatening remark or gesture

that would cause Petitioner to have any concern for his safety.

16. After Stallworth returned to her home, her back

started hurting, and her face and earlobe still burned. She

telephoned the City of Gainesville Police Department and

complained about Petitioner's unacceptable treatment of her.

17. The complaint was forwarded to Sergeant Lance

Yarbrough, the Sergeant on the midnight shift. At 1:45 a.m.,

when he had "cleared" the matter he was working on, he called

Stallworth. She described what had happened, including

Petitioner's demeanor and her injuries. She told Yarbrough she

had obtained the names and telephone numbers of some of the

witnesses who had seen the entire encounter.

18. After attending to some additional duties, Yarbrough

arrived at the Wal-Mart at 3:00 a.m. to talk to Petitioner about

his use of force on a disabled person. Petitioner's version of

what had happened essentially matched Stallworth's, including

admitting he had "pinned" her to her vehicle. By the end of

their conversation, Petitioner had become confrontational about

defending what he had done and demanded of Yarbrough, "Do you

have a problem with that?" Yarbrough answered Petitioner in the

affirmative.

19. Yarbrough tried to obtain a copy of Wal-Mart's video

surveillance tape, but a copy of the tape could not be made by

Wal-Mart employees at that hour.

20. After he left Petitioner, Yarbrough, a white male,

completed an Administrative Investigation Referral Form

regarding Petitioner's treatment of Stallworth, which he

considered a violation of the City's Policies and Procedures

Number 19, Rule 19. That Form is, essentially, a referral to

the police department's internal affairs office. He filed that

form on June 27, 2008, in his name and in Stallworth's name.

Stallworth filed her own form on that same date.

21. Wal-Mart has a policy of releasing copies of its video

surveillance tapes only to law enforcement officers conducting

official business. Internal Affairs investigator Sergeant Jorge

Campos, a white male, contacted Wal-Mart and arranged to obtain

a copy of the video of Wal-Mart's parking lot showing

Petitioner's encounter with Stallworth.

22. When he later called Wal-Mart to make sure the copy

was ready, he was told that another police officer had come to

pick it up, and the copy had been given to him. Campos

requested an additional copy and when he went there to pick up

that copy, the Wal-Mart loss prevention employees showed Campos

the video and also a video of Petitioner picking up the copy of

the video that had been made for Campos. Since Petitioner had

come there in a police car and in uniform, they had assumed that

Petitioner was obtaining the copy of the video for official

purposes.

23. In fact, Petitioner never reported to the police

department that he was conducting an investigation and that he

had obtained evidence of his encounter with Stallworth.

Further, he never turned over to the police department his copy

of the video so it could be preserved as evidence in the

evidence room, as required by department policy. Petitioner did

not obtain the video for law enforcement purposes, therefore,

but rather for personal purposes.

24. Campos watched the copy of the surveillance video he

had obtained from Wal-Mart in conjunction with his

investigation. He also interviewed and obtained sworn

statements from Yarbrough, from Stallworth, and from all of the

identified witnesses who were willing to speak with him about

what they saw.

25. During the course of the internal affairs

investigation, it was discovered that Petitioner had also

repeatedly contacted Stallworth's personal physician, allegedly

in his capacity as a police officer, to ascertain what

Stallworth's disability was that would have made her eligible

for a handicapped placard. Eventually, Petitioner did speak

with a doctor in that office who disclosed Stallworth's

disability.

26. Campos attempted to interview Petitioner, but

Petitioner called in sick and did not appear for the scheduled

appointment. Campos' further attempts to interview Petitioner

were unsuccessful.

27. At the conclusion of his investigation, Campos

prepared his report and consulted with the Chief of Police as to

an appropriate disposition of the matter. It was concluded that

Petitioner had violated Rule 19 regarding his encounter with

Stallworth by his (1) excessive use of force, (2) obtaining a

video recording under the color of a law enforcement officer for

personal use, and (3) obtaining medical information under the

color of a law enforcement officer without proper legal service.

It was determined that Petitioner's employment should be

terminated.

28. Policy 19, Rule 19 prohibits "[i]mmoral, unlawful, or

improper conduct or indecency, whether on or off the job[,]

which would tend to affect the employee's relationship to

his/her job, fellow workers' reputations or goodwill in the

community." The range of penalties for the first offense is

from instruction plus 5 days' suspension up through dismissal,

and for the second offense is dismissal.

29. Petitioner exercised his right to file a grievance

regarding his termination and participated in a multi-level

grievance process within the City. His grievance was

unsuccessful, and he was terminated from his employment as a

police officer.

30. At no time during Petitioner's conversation with

Sergeant Yarbrough, during the internal affairs investigation,

or during the City's grievance process did Petitioner raise any

allegation of disparate or discriminatory treatment of him by

the City due to his race or his sex.

31. Sergeants Yarbrough and Campos are, like Petitioner,

white males.

CONCLUSIONS OF LAW

32. The Division of Administrative Hearings has

jurisdiction over the subject matter hereof and the parties

hereto. §§ 120.569, 120.57(1), and 760.11(6), Fla. Stat.

33. Section 760.10(1)(a), Florida Statutes, provides that

it is an unlawful employment practice for an employer to

discharge or otherwise discriminate against an individual on the

bases, inter alia , of race or sex. Petitioner asserts that he

was discriminated against by the City when he was terminated for

these reasons. Petitioner has failed to present any evidence in

support of his allegations.

34. Petitioner bears the burden of proof established by

the Supreme Court of the United States in McDonnell Douglas v.

Green , 411 U.S. 792 (1973), and in Texas Dep't of Cmty. Affairs

v. Burdine , 450 U.S. 248 (1981). Under this well-settled case

law, Petitioner bears the initial burden of establishing by a

preponderance of the evidence a prima facie case of

discrimination. If a prima facie case is established, the

burden to go forward shifts to the employer to articulate a

legitimate, non-discriminatory reason for the employment action.

The employee then has the burden of showing that the business

reason is pretextual and that a discriminatory reason more

likely than not motivated the decision.

35. In order to establish a prima facie case, Petitioner

must prove that (1) he is a member of a protected class, (2) he

was qualified for his position, (3) he suffered an adverse

employment action, and (4) he was treated less favorably than

similarly-situated employees who were not members of his

protected class. Holifield v. Reno , 115 F.3d 1555 (11th Cir.

1997). Petitioner has failed to do so.

36. Petitioner argues that if he were a black female, he

would not have been fired. His argument is premised upon his

allegation in this proceeding that he was discriminated against

based upon his race and/or sex. However, only Petitioner's

allegation of discrimination based upon his race can be resolved

in this proceeding.

37. Petitioner's allegation of discrimination based upon

his sex has not been timely raised. Petitioner was terminated

from his employment on September 17, 2008, and he did not raise

the allegation of discrimination based upon his sex until

March 2010. Therefore, Petitioner did not timely raise that

allegation before the Commission within the 365-day limitation

of Section 760.11(1), Florida Statutes.

38. Petitioner's failure to raise that issue before the

Commission prevented the Commission from considering that issue

before it issued its Determination: No Cause, which

determination represents the "proposed final agency action"

herein, pursuant to Chapter 120, Florida Statutes. Accordingly,

neither the Commission nor the Division has jurisdiction over

Petitioner's allegation of sexual discrimination. See Ward v.

Fla. Dep't of Juvenile Justice , 212 F. Supp. 2d 1349 (N.D. Fla.

2002); Cox v. Univ. of Fla. , DOAH Case No. 03-4672 (RO: June 15,

2008; FO: Dec. 2, 2008); Young v. Dep't of Bus. and Prof. Reg. ,

DOAH Case No. 03-1140 (RO: July 1, 2003; FO: Feb. 26, 2004);

Luke v. Pic 'N' Save Drug Co., Inc. , DOAH Case No. 94-0294 (RO:

Aug. 25, 1994; FO: Dec. 8, 1995); Austin v. Fla. Power Corp. ,

DOAH Case No. 90-5137 (RO: June 20, 1991; FO: Oct. 30, 1991).

39. As to his claim that he was treated unfairly due to

his race, Petitioner has failed to establish even a prima facie

case of discrimination by failing to prove the fourth element of

the analysis. Petitioner offered no evidence in support of his

claim. He assumes that because Stallworth is black, the

witnesses to the incident that were willing to give statements

concerning what they observed were black, and the Wal-Mart is

located in an African-American community according to

Petitioner, then, the City only fired him to appease the black

community. No evidence was offered, however, as to the race of

those persons making the decision to terminate him to suggest

any foundation for Petitioner's assumption, and the two

Sergeants who investigated Petitioner's treatment of Stallworth

are white.

40. Assuming arguendo that Petitioner had established a

prima facie case, which he has not, his claim still fails

because the City has articulated a legitimate, non-

discriminatory reason for its actions, and Petitioner has failed

to meet his burden of showing that the reason the City gave is a

pretext for discrimination.

41. The evidence is convincing that Petitioner violated

the City's personnel policies three times regarding his

mistreatment of Stallworth, who was compliant with his rude

orders and who was legally entitled to park where she had

parked. First, Petitioner's excessive use of force in shoving a

handicapped person against and then into her vehicle for trying

to stand up is unwarranted and inexplicable. Second, his

obtaining of the video by pretending to be doing so in his

official capacity by appearing in full uniform and in his patrol

vehicle when he was obtaining it for his personal use is

contrary to the honesty expected of a law enforcement officer.

Third, his obtaining medical information by pretending to be

doing so in his official capacity indicates that he intended

retribution against Stallworth who had parked legally and then

had complained to the City about Petitioner's treatment of her.

42. Each of Petitioner's three improper acts was witnessed

by and/or became known to numerous citizens who could expectedly

view Petitioner as a dishonest police officer and, perhaps, one

who might be physically dangerous to the public. Each of these

three acts alone was sufficient to warrant dismissal.

43. Petitioner in his presentation at final hearing

maintained that his actions were justified and proper. The

primary thrust of his presentation was to attempt to show that

the City had not properly conducted its investigation, allegedly

violating Petitioner's rights under Sections 112.532 and/or

112.533, Florida Statutes. No evidence was offered, however,

that any alleged deficiency was racially-motivated.

44. In summary, this record is devoid of any evidence that

anyone made a negative comment, in writing or verbally, about

Petitioner's race. This record is devoid of any evidence that

any decision-maker made any decision regarding Petitioner's

employment with consideration of his race. This record is

devoid of any evidence indicating that Petitioner was treated

differently than any similarly-situated person of a different

race.

45. An employer may terminate an employee for a good

reason, for a bad reason, for a reason based upon erroneous

information, or for no reason at all, as long as the termination

is not based upon a discriminatory reason. See Dep't of Corr.

v. Chandler , 582 So. 2d 1183 (Fla. 1st DCA 1991), and the cases

cited therein. The City has articulated a good reason for

Petitioner's termination, and Petitioner has not shown by any

direct evidence, statistical evidence, or even circumstantial

evidence, that the reason was pretextual or discriminatory.

46. In its proposed recommended order, the City includes a

request for attorney's fees, arguing that Petitioner's claim is

frivolous, unreasonable, and without foundation in law or fact.

The City relies upon a federal civil action and a cite to a non-

existent section in Chapter 760, Florida Statutes. Section

760.11(5), Florida Statutes, authorizes a court to award

attorney's fees in a civil action and does not, therefore, apply

to this administrative proceeding. Section 760.11(6) does apply

to administrative proceedings but only those in which the

Florida Commission on Human Relations has determined there is

reasonable cause to believe that a discriminatory practice has

occurred; it does not, therefore, apply to this proceeding.

47. Section 760.11(7), Florida Statutes, does apply to

administrative proceedings in which the Commission has

preliminarily determined that there is not reasonable cause to

believe that a discriminatory practice has occurred, as in the

case at bar. That Section, however, does not authorize an

administrative law judge to award attorney's fees. Rather, it

provides that the Commission has discretion to award attorney's

fees to a prevailing party, apparently in conjunction with its

final order authority in this type of proceeding.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered finding that

Petitioner failed to meet his burden of proof and dismissing the

Petition for Relief filed in this cause.

DONE AND ENTERED this 16th day of July, 2010, in

Tallahassee, Leon County, Florida.

S

LINDA M. RIGOT

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of July, 2010.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Daniel M. Nee, Esquire

City of Gainesville

200 East University Avenue, Suite 425

Gainesville, Florida 32601-5456

Jarrod Rappaport

402 Northwest 48th Boulevard

Gainesville, Florida 32607

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.