11-000274 Willis Littles, Jr. vs. City Of Ormond Beach Status: Closed Recommended Order on Wednesday, October 5, 2011.

Summary: Petitioner, a black male, failed to demonstrate that his discharge from employment was caused by anything other than his poor performance over an extended period of time.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIS LITTLES, JR. , )

)

Petitioner, )

)

vs. ) Case No . 11 - 0274

)

CITY OF ORMOND BEACH , )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on April 20,

2011 , in Ormond Beach , Florida, before Lawrence P. Stevenson, a

duly - designated Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: David W. Glasser, Esquire

Law Office of David W. Glasser

116 Orange Avenue

Daytona Beach , Florida 32 11 4

For Respondent: Mark E. Levitt , Esquire

Bona M. Kim, Esquire

Allen, Norton & Blue, P.A.

1477 West Fairbanks Avenue, Suite 100

Winter Park , Florida 3 2789

STATEMENT OF THE ISSUE

The issue is whether Respondent , the City of Ormond Beach

( the "C ity ") , committed unlawful employment practice s contrary

to s ection 760.10, Florida Statutes (200 9 ) , 1 / by discriminating

against Petitioner b ased on h is race or by discharging

Petitioner from his employ ment in retaliation for engaging in

protected conduct.

PRELIMINARY STATEMENT

On or about June 17 , 2010 , Petitioner Willis Littles, Jr.

("Petitioner") filed with the Florida Commission on Human

Relations ("FCHR") a n Employment Complaint of Discrimination

against the City . Petitioner alleged that he had been

discriminated against pursuant to c hapter 760, Florida Statutes ,

and Title VII of the Federal Civil Rights Act as follows:

I am an African American. I was unfairly

disciplined, subjected to different terms

and conditions because of my race.

Additionally, I was terminated in

retaliation for complaining about the

discriminatory treatment. During my

employment with the City of Ormond Beach I

reported disparate treatment from Mr. Larry

Haigh (Supervisor) to the Department Head

(Mr. Kevin Gray). Mr. Haigh treated the

white employees more favorably than the

black employees. I also reported this to

the Human Resources Manager (Lorenda

Volkee). Mr. Gray told me he was placing me

on a 180 day performance ev aluation. Five

months later (July 2009), I was terminated.

The reason given was I didnÓt call in or

respond to a call out to work. This is not

a true statement. Mr. Haigh never told me I

had to come to work he said I had pager

duty.

The FCHR investig ated Petitioner's Complaint. In a letter

dated December 13 , 2010 , the FCHR issued its determination that

there was no reasonable cause to believe that an unlawful

employment practice occurred .

On January 1 8 , 2010 , Petitioner timely 2 / filed a Petition

for Relief with the FCHR . On January 21, 2011 , the FCHR

referred the case to the Division of Administrative Hearings

(" DOAH " ) . The case was scheduled for hearing on April 20, 2011,

on which date the hearing was convened and completed .

At the hea ring, Petitio ner testified on his own behalf and

presented the testimony of DeWitt Fields, Eric Riley, and

Richard Hernandez, all of whom were at one time or another

Petitioner's co - workers with the City. PetitionerÓs Exhibits 1

through 5 were admitted into evidence. Respondent presented the

testimony of Lawrence Haigh, Petitioner's direct supervisor, and

Kevin Gray, who at the time of Petitioner's dismissal was the

City's environmental systems manager. Respondent's Exhibits 21

through 25, 30 through 34, and 36 were admitted into evidence.

The two - volume transcript of the proceeding was filed on

May 11, 2011. On May 20 , 2011, Respondent filed a Motion for

Extension of Time, seeking an extension of the time for filing

proposed recommended orders to June 3 , 2011. The motion was

granted by order dated May 25 , 2011. Respondent filed a

P roposed R ecommended O rder on June 3 , 2011 . Petitioner 's

P roposed R ecommended O rder was filed after the close of business

on June 3, 2011 , and therefore was not recorded on the DOAH

docke t until June 6, 2011. Respondent did not object to this

technically late filing, and the undersigned has considered both

parties' P roposed R ecommended O rders in the drafting of this

recommended order.

FINDINGS OF FACT

1. The City is an employer as that t erm is defined in

s ubs ection 760. 02(7) , Florida Statutes.

2. Petitioner , a black male, was employed by the City on

August 28, 2001 , and assigned to the streets section of the

public works department. On October 1, 2003, Petitioner was

transferred to th e stormwater maintenance section of the public

works department, where he work ed until his dismissal on July 8 ,

2009.

3. At the time of his dismissal, Petitioner's job

classification was Maintenance Worker II. He reported directly

to stormwater supervi sor Larry Haigh, who in turn reported

directly to environmental systems manager Kevin Gray. At most

times, there were eight or nine employees in the stormwater

section , including Darren D'Ippolito, a Maintenance Worker IV

who worked as second in command t o M r. Haigh and therefore had

supervisory authority over Petitioner . Mr. Gray described

Mr. D'Ippolito as a "lead worker" who reported directly to

Mr. Haigh.

4 . Mr. Haigh described the stormwater section's duties as

follows:

We try to keep anything fro m flooding,

whether it's roads, houses, parking lots,

businesses. And we keep all the drains

clear and clean during rainstorms,

hurricanes. We sandbag City buildings,

doorways, you know, keep water out. We take

care of streets that are -- that have

flood ing issues. We go back and find out

why they have those issues, and then we fix

those issues.

5 . Petitioner's primary assignment in the stormwater

section was to operate the reach - out mower, which is a large

tractor with an extended boom that is used to mow and remove

vegetation from the slope angles on swales and ditches

throughout the City. The reach - out mower is in daily use

because the City has a contract with the Florida Department of

Transportation to maintain local rights - of - way.

6. The reach - out mower has an enclosed, air - conditioned

cab with a radio, and is therefore considered a desirable

assignment within the stormwater section. Many other

assignments in the section involve working outside in all manner

of weather.

7. The City had no form al job title for "reach - out mower

operator." The mower was merely one of the many duties to which

a Maintenance Worker II could be assigned .

8. During the course of his employment with the City,

Petitioner was placed on performance probation three times. The

last such probation, called a "conditional evaluation" by the

City, was put in place on December 31, 2008 , as the result of an

unsatisfactory annual evaluation.

9. The City's employee performance evaluation document is

broken into eight categories: appearance; attendance;

interpersonal skills; communication skills; achievement of

objectives and job knowledge; use and care of equipment; work

productivity; and compliance with rules and regulations. In

each category, the supervisor rates the employee o n a scale of

one to five, with "one" meaning below the acceptable standards

and "five" meaning that the employee exceeds standards. A score

of "three" means that the employee meets the acceptable

standard. A score of "two" means that the employee's

perfo rmance falls between meeting standards and below standards.

A score of "four" means that the employee's performance falls

between meeting standards and exceeding standards. The

employee's overall performance score is calculated by adding the

point totals for all eight categories (giving double weight to

the scores for "achievement of objectives and job knowledge" and

"work productivity"), then dividing the total score by ten.

The overall performance is then judged according to the

following scale:

5.0 0 to 4.41 Outstanding

4.40 to 3.71 Excels

3.70 to 2.91 Meets Standards

2.90 to 1.91 Improvement Needed

1.90 to 0 .0 0 Unsatisfactory

10. On his December 31, 2008 , evaluation, Petitioner

received the following scores and comments:

Appearance: 5

"Willis i s always neat and clean and in the

uniform provided to him."

Attendance: 1

"Willis has used 65 hours of unscheduled

personal leave time during this ratings

period. This abuse of unscheduled personal

leave has become a pattern since FY 05/06,

FY 06/07 a nd FY 07/08."

Interpersonal Skills: 1

"Willis does not relate to other coworkers

effectively and makes little effort to

establish rapport. Wills [sic] seems to let

his emotions affect interpersonal

relationships. Willis needs to work on

getting along better with his coworkers."

Communication Skills: 2

"Willis' verbal or written communications

usually contain necessary information, but

most of the time are not accurate. We have

been working with Willis to try and change

this problem."

Achievement o f Objectives & Job Knowledge: 2

"Willis understands the goals and objectives

of this Department. Willis only handles

what he is assigned to do. If Willis is on

the Reach - out mower, he's fine. If not,

Willis requires constant direction and

supervision. "

Use and Care of Equipment: 4

"Willis generally maintains equipment and

promptly reports any deficiencies to his

supervisor."

Work Productivity: 1

"Willis has no initiative whatsoever. This

has been a problem in the past and has not

changed. Willis will only do work assigned

to him and nothing more. Willis handles few

tasks without direct supervision."

Complian ce with Rules and Regulations: 3

" Willis is in violation of the City's

attendance policy. "

11. Petitioner's score for his overall perfor mance was

2.2, which placed him in the category of "Improvement Needed."

Mr. Gray placed Respondent on a 180 - day "conditional evaluation"

probation, during which Petitioner would receive a written

evaluation every 30 days. In a memorandum to Petitioner d ated

December 31, 2008, Mr. Gray explained the process as follows:

Willis, on December 31, 2008, you were

provided with your Annual Employee

Performance Evaluation. In your evaluation

five (5) areas of "improvement needed" or

"below standards" were noted:

1. Attendance Pattern for use of

unscheduled personal leave abuse.

2. Interpersonal Skills Pattern of

inability to relate to co - workers.

3. Communication Skills Pattern of

insufficient verbal communication skills.

4. Achievement of Objectiv es & Job

Knowledge Pattern of non - "Reach - out Mower"

related activities.

5. Work Productivity Pattern of lack of

initiative to complete any work not

specifically assigned but warranted.

During this 180 day conditional you will be

evaluated by thr ee (3) different superiors

every thirty (30) days. The first

evaluation will be completed by a

Maintenance Worker IV, the second will be

completed by the Stormwater Supervisor and

the third evaluation will be completed by a

Maintenance Worker IV. This su ccession will

be followed for the remaining three (3) --

thirty (30) day evaluations.

It is imperative that you realize that

during your six (6), thirty (30) day

evaluation period [sic] the supervisor

responsible will be required to visually

observe your w ork habits and demeanor

regarding the above listed five (5) areas of

concern. I will be reviewing all six (6),

thirty (30) day evaluations prior to

presenting them to you. During the

evaluation process the immediate supervisor

responsible for that evalua tion will be

present, along with myself. If during any

of the evaluation periods you feel the need

to discuss any areas of concern, please feel

free to notify your immediate supervisor and

myself.

Additionally, it is to be noted that if

during any one (1 ) of the six (6) Employee

Performance Evaluations you receive a rating

of "Unsatisfactory" [it] may result in

additional disciplinary action, up to and

including termination.

12. At the hearing, Mr. Gray testified that he appointed

three evaluators at Pe titioner's request because Petitioner did

not believe that his immediate superiors, Mr. Haigh and

Mr. D'Ippolito, would give him a fair evaluation. Petitioner

requested that a second Maintenance Worker IV, Ray Back, be

appointed to evaluate his performanc e. 3 /

13. Petitioner testified that Mr. Haigh and Mr. D'Ippolito

were best friends from high school. Mr. D'Ippolito persistently

"nitpicked" Petitioner's job performance whenever Petitioner was

not on the reach - out mower. Mr. D'Ippolito would tell Mr. Ha igh

that Petitioner's work was too slow, and criticize him for

"petty stuff" such as failing to sweep out the shop or take out

the garbage. Petitioner believed that he was taken off the

reach - out mower at the time of his evaluation to afford his

superiors an opportunity to hypercriticize his performance.

14. Petitioner felt that Mr. D'Ippolito was harassing him

by following him around and watching him perform his work

assignments. In fact, it was part of Mr. D'Ippolito's

supervisory job to observe Petiti oner's performance.

15 . Petitioner believed that Mr. D'Ippolito's attitude

towards him was rooted in racial prejudice, though he never

heard Mr. D'Ippolito say anything that could be construed as

racist. At the hearing, a former stormwater section empl oyee,

DeWitt Fields, testified that he heard Mr. D'Ippolito use the

word "nigg er " repeatedly.

16. Mr. Fields, who is black and worked for the City

during 2006 and 2007 , stated that he had a meeting with

Mr. Haigh and Mr. Gray to complain about Mr. D'Ipp olito's

apparent belief that because he was a supervisor, he c ould say

anything he pleased. Mr. Haigh said to Mr. Fields, "You're

black. Don't you use that word?" Mr. Fields denied using the

word. Mr. Fields was unsure whether Mr. D'Ippolito was

discip lined . Mr. Fields testified that he resigned from the

City because of his perception that he had been wronged by the

racism in the stormwater department.

17. Neither party questioned Mr. Haigh or Mr. Gray about

Mr. Fields' allegations regarding Mr. D'Ipp olito. 4 / Mr. Fields

testified that another Maintenance Worker II, Richard Hernandez ,

a Caucasian Hispanic male, witnessed Mr. D'Ippolito use the word

"nigger" and that Mr. Hernandez provided a written statement to

his superiors, but neither party question ed Mr. Hernandez about

those events when he testified at the final hearing .

Petitioner's failure to seek corroboration of Mr. Fields' story

from witnesses who were present and testifying at the hearing ,

coupled with Mr. Fields' status as a disgruntled for mer City

employee who only vaguely explained the circumstances of his

departure , leads the undersigned to discount the credibility of

Mr. Fields' allegations.

18. Petitioner had no first - hand knowledge of the incident

involving Mr. Fields. Petitio ner simply observed that

Mr. D'Ippolito seemed to treat Petitioner and another black

employee, Greg Lewis, differently than he treated the white

employees. For example, when a storm was approaching,

Petitioner and Mr. Lewis were always assigned to make sa ndbags

or perform other manual jobs such as "digging and fetching."

Petitioner stated that he was not given the same opportunities

as white workers to learn to run the backhoe or perform other

non - manual tasks.

19. However, Petitioner also conceded that he spent

upwards of 90 percent of his working hours operating the reach -

out mower. Within the stormwater section, this was considered a

plum assignment. Mr. Gray testified that other employees,

including Mr. Lewis and Mr. Hernandez, had requested the rea ch -

out mower assignment . 5 / The tone of Petitioner's testimony, not

to mention the substance of Mr. Haigh 's testimony 6 / and the

written performance evaluations, establish that Petitioner was

unhappy whenever he was required to do anything other than

operat e the reach - out mower.

20 . Petitioner claimed that he hear d Mr. Haigh make a

racist remark in the workplace. In August 2008, during the NFL

preseason, Mr. Haigh was holding forth to some employees in the

front of the shop regarding the Jacksonville Jagua rs game he had

watched the previous evening. Mr. Haigh was unaware that

Petitioner was close enough to hear his comments. According to

Petitioner, Mr. Haigh stated that he did not see any football

that night, just "a bunch of monkeys running up and down the

field."

21 . Mr. Haigh flatly and credibly denied ever having made

such a statement.

22 . Petitioner testified that he complained to Mr. Haigh

about Mr. D'Ippolito's harassment and nitpicking of his job

performance, but that Mr. Haigh did nothing to ad dress the

problem because of his longstanding friendship with

Mr. D'Ippolito . Petitioner testified that he complained to

Mr. Gray about the fact that Mr. Haigh and Mr. D'Ippolito were

treating him differently because he was black, and that Mr. Gray

accuse d him of "playing the race card." Petitioner stated that

on one occasion, Mr. Gray told him that he needed to "man up"

and handle matters on his own.

23 . Petitioner testified that, unlike many of the other

employees in the stormwater section, he did not "sit and just

run my mouth." Petitioner said what needed to be said regarding

the work at hand, but he did not engage in much social chat with

his co - workers. Petitioner believed that his natural reticence

led to Mr. Haigh's finding that Petitioner lacke d rapport with

his fellow employees.

24 . In May 2009, just before the Memorial Day weekend, a

large "no name" storm approach ed Volusia County. On May 21,

2009, Volusia County enacted a countywide state of emergency.

25 . On Wednesday, May 20, 2009, pri or to the formal

declarations of emergency, the City began preparations for the

storm . The stormwater section began preparing sandbags for

residents, checking "hot spots" in the City's drainage system to

be sure the drains were open and clear, taking leve ls on lakes

and ponds, using the pump station to lower the level on the City

creek to ensure adequate water storage, and fueling the City's

vehicles and equipment for use during and immediately after the

storm. Mr. Gray testified that the stormwater secti on performed

the "main thrust" of the City's emergency preparations.

26 . On either Thursday, May 21 or Friday, May 22, 2009, 7 /

Mr. Gray convened a meeting of all employees in the stormwater

section. Mr. Gray told all the employees that they should

expec t a call to come to work over the Memorial Day weekend. He

instructed the employees to check their rain gear and to be sure

their cell phones and pagers had fresh batteries.

27 . Each employee of the stormwater section , including

Petitioner, was issued a pager. During routine periods,

employees took turns having "pager duty" for seven days at a

time. The employee on pager duty received an extra dollar per

hour for being on call, and was the first person called in to

respond to problems occurring outside of normal working hours.

During emergencies such as major storms, everyone in the

stormwater section was placed on pager duty. If an employee was

paged, he w as expected to call in and then to report to work

unless excused by his superior. 8 / Petitioner w as well aware of

the City's pager policy, as he had earlier agitated for a more

equitable distribution of "pager duty" and the extra pay that it

entailed. 9 /

28 . At the meeting, Mr. Gray specifically invoked the

universal pager duty requirement for the up coming weekend.

Every employee of the stormwater section w as required to carry

his pager and to call in to work if paged.

29 . On Saturday, May 23, 2009, the rainfall continued

unabated, causing the City to enact its own local state of

emergency. Mr. Hai gh paged all of the stormwater employees.

When they returned his call, he told them all to come in to

work. All of the stormwater section's employees, including

Petitioner, worked that Saturday. At the end of the day,

Mr. Gray told the stormwater employ ees "to go home, get some

sleep, but to have their pagers on in the event we had to go

into the next mode."

30 . Petitioner testified that he had never heard Mr. Gray

say that the stormwater employees should expect to work on

S aturday . He came in only bec ause an employee in a different

section told him that employees were expected to work on

Saturday. Petitioner further testified that he and Mr. Lewis

worked late on Saturday. By the time Petitioner returned to the

station and prepared to go home, no supe rvisors remained at the

workplace. Petitioner stated that no one told him to report to

work on Sunday or told him that he had pager duty on that day.

31 . On Sunday, May 24, 2009, Mr. Haigh again paged all of

the stormwater employees, including Petitioner . All of the

employees except Petitioner answered the first page and came in

to work. Mr. Haigh paged Petitioner several more times and

received no response. Mr. Haigh also telephoned Petitioner's

home, where he lived with his parents. Petitioner's fat her

answered the phone and told Mr. Haigh that Petitioner had not

come home on Saturday night and he did not know where Petitioner

was. Later in the day, Mr. Haigh sent Mr. Lewis to Petitioner's

house to see if Petitioner was home. Petitioner did not res pond

to any of Mr. Haigh's pages and did not report to work on

Sunday.

32 . Petitioner testified that after the long work day on

Saturday, he went out of town to relax on Sunday, spending the

day with his fiancée in Daytona Beach. Though he did not

realiz e it at the time, Petitioner did not have his pager with

him on Sunday.

33 . The Memorial Day holiday was observed on Monday,

May 25, 2009. It was a holiday for City employees. At 7 a.m.,

Mr. Haigh began paging all of the stormwater employees for the

t hird time. Every employee except Petitioner responded to the

page, and all of those who responded came in to work with the

exception of Mr. Hernandez, who asked Mr. Haigh if he could be

excused from reporting in order to take care of a family matter.

Mr. Haigh gave Mr. Hernandez permission to stay home.

34 . Petitioner testified that he had a telephone

conversation with Mr. Lewis on Monday morning. Mr. Lewis told

Petitioner that he was at work. Petitioner stated that this was

his first inkling that stor mwater employees had been called in

to work on Sunday or Monday.

35 . At about 10:30 a.m., Petitioner phoned Mr. Haigh, who

made it very clear that he was upset with Petitioner for failing

to call in or show up on either Sunday or Monday. Mr. Haigh

aske d Petitioner whether he had noticed that it rained 20 inches

over the weekend. Petitioner stated that he had been in

Daytona, and it didn't seem that bad there.

36. Mr. Haigh stated that Petitioner told him a story

about having to help a relative put h er furniture on blocks

because her house was about to flood. Petitioner testified that

his aunt's house was indeed flooded during the storm, but he did

not help with her furniture and denied having told this story to

Mr. Haigh. Mr. Haigh's testimony is c redited on this point.

37. Petitioner asked Mr. Haigh if the stormwater employees

were working. Mr. Haigh answered in the affirmative, but told

Petitioner not to bother coming in because they were wrapping

things up at the station. Mr. Haigh then repo rted to Mr. Gray

that Petitioner had failed to return numerous pages and did not

report to work on Sunday.

38 . Petitioner testified that it was only after his

conversations with Mr. Lewis and Mr. Haigh on Monday that he

realized he did not have his pager. He speculated that he

either misplaced it or lost it on the job Saturday . He never

found it.

39 . Mr. Gray made the decision to recommend that

Petitioner's employment with the City be terminated. In a

June 24, 2009 , memorandum 10 / to Assistant City Manag er Theodore

MacLeod, Mr. Gray wrote as follows , in relevant part :

. . . Since his Conditional Evaluation,

Mr. Littles has been assigned to operate the

"Reach - Out Mower" and does a satisfactory

job most of the time. The problem that has

arisen is when he i s not mowing. Several

years of evaluations reflect that his

interpersonal skills when working with other

employees are less than satisfactory.

Mr. Littles consistently receives low marks

on:

1. Attendance

2. Interpersonal Skills

3. Communication Skil ls

4. Achievement of Objectives & Job

Knowledge

5. Work Productivity

During Mr. Littles' seven plus years of

employment he has been placed on a thirty

(30) day, a sixty (60) day and a one hundred

eighty (180) day conditional Performance

Evaluation statu s for several or all the

above listed areas.

The latest incident happened when he was

unavailable during the recent storm and in

direct violation of Administrative Policy

53, Compensation During Declared Emergency.

Expectations for duty, including report ing

requirements before, during and after the

emergency event are quite clear and conveyed

to all Public Works employees.

On May 23, 2009, the City of Ormond Beach

enacted a local state of emergency for the

May 2009 Unnamed Storm. The administrative

poli cy states employees are required to

report or call in during a declared

emergency.

On Sunday, May 24, 2009, Larry Haigh,

Stormwater Supervisor attempted to call

Mr. Littles at his home at 9:29 a.m. and

spoke to his father , Mr. Littles, Sr. , who

stated "he didnÓt come home last night. Try

his pager." Mr. Haigh then attempted to

contact Mr. Littles via pager to report to

work. Mr. Haigh made three attempts (9:30

a.m., 10:08 a.m. and 3:27 p.m.) to contact

Mr. Littles. Mr. Littles did not respond to

any [o f] the pages. Mr. Littles was issued

a new battery for his pager on Friday,

May 22, 2009.

Mr. Littles finally made contact with

Mr. Haigh on Monday, May 25, 2009 , at 9:57

a.m....

The Public Works staff is repeatedly

informed that they must answer all af ter -

hour calls and/or pages, especially during

hurricane season or in this case the

Declared Emergency. Mr. Littles is paid to

carry the after - hour pager under GEA

contract. [ 11 / ]

In addition, Mr. Littles repeatedly avoids

the chain of command procedures and bypasses

Mr. Haigh and responds directly to myself

without informing Mr. Haigh, who is his

immediate supervisor. My response to

Mr. Littles in almost all cases is "have you

checked with Larry" or "you need to check

with Larry."

Mr. Littles is current ly on a conditional

status for substandard evaluations and since

this is the fifth month of that time, it is

felt that there should be marked improvement

in the five (5) items listed above.

Mr. Littles in my opinion and the opinion of

his immediate superv isors has shown little

or no improvement in any area except for

attendance.

Recently, during the May 2009 storm event,

Mr. Littles and another employee were sent

to an address that had received structure

flooding to assist the homeowner in

correctly sand bagging her property . When

Mr. Haigh went to follow up on the operation

with the homeowner, the homeowner made the

comment "if these guys are temporary labor,

I would not ever bring them back."

On another recent occasion, Mr. Littles

disabled one of the fuel keys the department

uses for miscellaneous and diesel fueling at

the Fleet Facility. Mr. Littles is fully

aware of the proper fueling operations but

in this instance he punched in numbers that

were not required, which resulted in the key

being disabl ed. In this emergency, this key

was necessary for the fueling of the

numerous stormwater pumps in operation.

When Mr. Haigh asked the question, "who

punched the numbers in the fuel system,"

Mr. Littles stated he didnÓt know.

Mr. Haigh contacted Peggy Co oper, Fleet

Systems Specialist to have the key

reactivated and requested information on who

had placed the personal fuel key with the

miscellaneous key. It appeared that it was

Mr. Littles who had punched in the numbers

5957 on May 27, 2009 , and was the l ast

person to use the fuel keys. [ 12 / ]

There are several additional instances that

are troubling to me regarding Mr. Littles

and should not be occurring from a seven

year employee. His job knowledge and

ability to perform his duties at this point

should be satisfactory at minimum.

I am therefore requesting that Mr. Littles

employment with the City of Ormond Beach be

terminated.

40 . At the hearing, Mr. Gray testified that he made the

decision to recommend termination despite the fact that

Petitioner still had one month to go on his 180 - day conditional

evaluation period. Mr. Gray noted that the last evaluation in

June 2009 was the worst of the five that Petitioner received

during his probation, and that Petitioner's failure to report on

Sunday, May 24 , was the final straw.

41 . Mr. Gray stated that if an employee were not on

probation, failure to respond to a superior's page would call

for a verbal or written reprimand if it were a first offense.

However, Petitioner was on his third probation in seven year s.

Moreover, Petitioner had already received a written warning for

failing to respond to radio and pager messages from Mr. Haigh on

December 24, 2008. 13 /

42 . Mr. Gray testified that he discussed the

recommendation with Mr. M a cLeod, the City official who w ould

make the final decision on Petitioner's termination. Mr. Gray

testified that they did not talk about Petitioner's allegations

of racial discrimination because he was unaware of any such

allegation s .

43 . After receiving Mr. Gray's written recommendat ion,

Mr. MacLeod informed Petitioner of his right to a

predetermination conference at which he could present any

information in his own defense. The predetermination conference

was held on July 2, 2009. Petitioner attended the conference,

accompanied by his GEA - OPEIU representative Mike Haller.

Attending with Mr. MacLeod was the City's interim Human

Resources Director, Jayne Timmons. Petitioner was afforded the

opportunity to defend his actions over the Memo rial Day weekend

and as to the other incidents discussed in Mr. Gray's

recommendation memorandum.

44 . After the conference, Mr. MacLeod made the decision to

support Mr. Gray's recommendation. By letter dated July 7,

2009, Mr. MacLeod informed Petitioner that his employment with

the City was termin ated, effective July 8, 2009. The letter

informed Petitioner of his right to appeal the determination to

the City's Human Resources Board or, in the alternative, to

utilize the grievance procedures under the GEA - OPEIU's

collective bargaining agreement wit h the City.

45 . Petitioner did not appeal to the Human Resources

Board, nor did he file a grievance under the collective

bargaining agreement.

46 . At the hearing, Petitioner sought to explain the

incident referenced in Mr. Gray's termination letter rega rding

the disabling of the fuel key. He essentially blamed the

problem on Mr. Lewis, who had either forgotten his key or could

not get his key to work. Petitioner lent his fuel key to

Mr. Lewis, who could not make it work. Petitioner then tried,

and cou ld not make it work. The next thing Petitioner heard

about the matter, Mr. Haigh was accusing him of intentionally

disabling the fuel pump.

47. Even if Petitioner's story regarding the fuel key is

accepted, it does not establish that his superiors were w rong to

discipline him . Petitioner concedes that he was involved in the

incident that disabled the fuel key. When Mr. Haigh first

looked into the matter, Petitioner denied knowing anything about

it, which necessitated further investigation. Petitioner's lack

of candor alone warranted discipline, particularly because it

led to the waste of Mr. Haigh's time and that of Peggy Cooper,

the fleet systems specialist who determined that Petitioner was

the culprit.

48. Petitioner testified that he was placed on the 180 - day

probation shortly after he went to City Hall to complain "about

how I was unfairly treated, and all these bad evaluations that I

had been getting from year to year, and I'm seeing guys that. .

. pretty much, ain't doing anything. They just get ting by. [I

called it] favoritism from Mr. Haigh." 14 / He implied that the

probation was in retaliation for his complaint.

49. As noted at Finding of Fact 22 , supra , Petitioner

claimed that he brought his allegations of racial discrimination

to Mr. Gray, who accused him of "playing the race card" and

advised him to "man up." Mr. Gray credibly denied that

Petitioner raised any issues of discrimination with him until

Petitioner turned in his written comments on the December 31,

2008 , evaluation. Petitione r's comments included the following:

"For the last seven years I've been working with the City of

Ormond Beach, I have experienced nothing but harassment, hostile

& offensive blatant discriminatory behavior on the part of

management . . ." Petitioner als o requested a meeting with the

City's H uman R esources D irector and the C ity M anager to discuss

his comments.

50. Mr. Gray testif ied that he did not read Petitioner's

statement as alleging racial discrimination, given Petitioner's

history of complaining a bout general "favoritism" in the

stormwater section, but that he nonetheless forwarded

Petitioner's meeting request to the C ity M anager and the H uman

R esources D irector. At that point, the matter was out of

Mr. Gray's hands. Mr. Gray had no idea what res ulted from the

meeting or whether it ever occurred. 15 /

51. Mr. Gray recalled Petitioner coming to him to complain

about Mr. D'Ippolito, but not because of any racial animus.

Petitioner's complaint, as also voiced to Mr. Haigh, involved

the fact that Mr. D 'Ippolito was "spying" on him . The testimony

at the hearing, including Petitioner's, established that

Petitioner refused to accept that Mr. D'Ippolito had supervisory

authority over him and was supposed to be watching his work.

The attempts by Mr. Gray a nd Mr. Haigh to explain this fact to

Petitioner fell on deaf ears.

52. Mr. Gray also recalled that Petitioner complained to

him about favorable treatment received by Mr. Hernandez. The

gist of Petitioner's complaint was that Mr. Hernandez would not

get d irty. Petitioner complained that other workers, including

Mr. Hernandez, came in from their day's work as clean as when

they went out, whereas Petitioner was required to do the dirty

jobs.

53. Mr. Gray testified that he had no response to this

complaint. Some jobs in stormwater require the worker to get

dirty and others do not. Moreover, said Mr. Gray, some workers

are able to "work clean" and others are not. Finally, Mr. Gray

was somewhat puzzled by the complaint because Petitioner's

regular assignmen t, operating the reach - out mower, was one of

the "cleanest" jobs in the stormwater section. Mr. Gray noted

that performing maintenance on the machine involved oil and

grease, but that the operational aspects of the reach - out mower

did not involve getting dirty.

54. At the hearing, Petitioner testified that his

complaint to Mr. Gray about Mr. Hernandez was not confined to

the question of getting dirty. Petitioner stated that after

receiving his own poor evaluation in December 2008, he

complained to Mr. Gr ay about Mr. Hernandez receiving an

outstanding evaluation in spite of having spent all year on the

job doing nothing but studying to become a police officer.

Petitioner testified that Mr . Hernandez was assigned to operate

the Vac - Con, a machine that clea rs storm drains, and that the

Vac - Con truck just sat in front of the public works department

while Mr. Hernandez studied. Petitioner stated that Mr. Haigh

was aware that Mr. Hernandez was studying on the job and did

nothing about it . Mr. Hernandez sat th ere reading in front of

the other employees and took his books with him when riding out

on a job. Petitioner did not know whether Mr. Hernandez was

ever disciplined for studying on the job.

55. Mr. Hernandez testified that when he was in the police

acade my he did bring his books in and read them on the job.

Mr. Haigh was unaware that Mr. Hernandez was studying on the job

until Petitioner and a co - worker complained to someone at City

Hall. At that point, Mr. Haigh counseled Mr. Hernandez to

"knock it off " and confine his studying to the lunch hour.

Mr. Hernandez complied with Mr. Haigh's instruction and that was

the end of the matter. Mr. Hernandez' version of these events

is more credible than Petitioner's.

56. At the hearing, Petitioner attempted to make a case of

disparate treatment as between himself and Mr. Hernandez,

focusing on the fact that Mr. Hernandez did not come into work

on Monday , May 2 5 , 2009 , and received no discipline, whereas

Petitioner's failure to come to work the previous day was d eemed

the "final straw" and cause for his dismissal.

57. In making this case, Petitioner disregards the fact

that Mr. Hernandez answered Mr. Haigh's page and requested that

he be allowed to remain at home. Unlike Petitioner,

Mr. Hernandez was excused fro m reporting to work. Mr. Haigh was

not pleased that Mr. Hernandez asked for the day off, but had no

cause to discipline Mr. Hernandez. Mr. Haigh pointed out, "I

knew where he was," meaning that he could call Mr. Hernandez in

to work if the situation chan ged. Mr. Haigh had no idea where

Petitioner was or how to contact him.

58. Mr. Hernandez' employee performance evaluation for

2008 resulted in an overall score of 4.5, "outstanding" on the

City's scoring scale. On each of the eight evaluation criteria,

Mr. Hernandez received either a "4" or "5." His superiors

included no negative comments or suggestions for improving his

performance. Given Mr. Hernandez' overall job performance, it

is understandable that the episodes complained of by Petitioner

did not result in formal discipline of Mr. Hernandez or greatly

affect his performance evaluation.

59. The evidence at the hearing amply established that

Petitioner was at best a marginal employee for the City.

Mr. Haigh testified that the other employees in th e stormwater

section did not like to partner with Petitioner because he would

not work. For most of the day, Petitioner operated the reach -

out mower alone, but when he came into the office to make out

his daily reports, Petitioner did not get along with h is fellow

employees. Mr. Haigh testified that it was hard to make sense

of Petitioner's written reports.

60. Mr. Haigh stated that when Petitioner was not on the

reach - out mower, he required direction at all times. If a

supervisor did not tell him wha t to do, Petitioner would do

nothing. Mr. Haigh described his shock when a homeowner

complained to him about the poor job a presumed "day laborer"

had done, only to realize that the homeowner was talking about

Petitioner.

61. At the time of his dismissal , Petitioner was five

months into the third performance - related probation of his seven

years with the City. After the events of the Memorial Day

weekend, it was not unreasonable for Mr. Gray to conclude that

further efforts to improve Petitioner's job per formance were

futile.

62. Petitioner offered no credible evidence that t he

City 's stated reasons for his termination were a pretext for

race discrimination.

63. Petitioner offered no credible evidence that t he City

discriminated against him because of hi s race in violation of

s ection 760.10, Florida Statutes.

64. The greater weight of the evidence establishes that

Petitioner was terminated from h is position with the C ity due to

poor job performance throughout the seven years of his

employment .

65. The greater weight of the evidence establishes that

the C ity did not retaliate against Petitioner for his complaint

to Mr. Gray about discrimination. The evidence established that

Mr. Gray properly forwarded Petitioner's complaint to the C ity

M anager and H um an R e sources D irector. Though the record was

unclear as to the outcome of the City's investigation, the fact

remains that Petitioner continued to work for the City for

another six months after his complaint. Aside from Petitioner's

intuitions regarding s ome kind of "strategy" to fire him, there

was no evidence that Petitioner's supervisors were acting in

less than good faith in their attempts to shepherd him through

the probationary period and encourage him to improve his

performance and save his job. Th e evidence established that

Petitioner was the author of his own misfortune.

CONCLUSIONS OF LAW

66 . The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

67 . The Florida Civil Rights Act of 1992 (the " Florida

Civil Rights Act " or the " Act " ), c hapter 760, Florida Statutes,

prohibits discrimination in the workplace .

68 . Subsection 760.10 , Florida Statutes, states the

following , in relevant part :

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire any individual, or otherwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges of employment, because of s uch

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

* * *

(7) It is an unlawful employment practice

for an employer, an employment agency, a

joint labor - management committee, or a labor

organization to disc riminate against any

person because that person has opposed any

practice which is an unlawful employment

practice under this section, or because that

person has made a charge, testified,

assisted, or participated in any manner in

an investigation, proceedi ng, or hearing

under this section.

69. The City is an "employer" as defined in s ubsection

760.02(7) which provides the following:

"Employer" means any person [ 16 / ] employing

15 or more employees for each working day in

each of 20 or more calendar weeks in the

current or preceding calendar year, and any

agent of such a person.

70 . Florida courts have determined that federal case law

applies to claims arising under the Florida's Civil Rights Act,

and as such, the United States Supreme Court's model for

empl oyment discrimination cases set forth in McDonnell Douglas

Corp. v. Green , 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668

(1973), applies to claims arising under Section 760.10, Florida

Statutes. See Paraohao v. Bankers Club, Inc. , 225 F. Supp. 2d

1353, 1 361 (S.D. Fla. 2002); Fla . State Univ . v. Sondel , 685 So.

2d 923, 925 n.1 (Fla. 1st DCA 1996); Fla . Dep Ó t of Cm t y . Aff . v.

Bryant , 586 So. 2d 1205 (Fla. 1st DCA 1991).

71 . Under the McDonnell analysis, in employment

discrimination cases, Petitioner has the burden of establishing

by a preponderance of evidence a prima facie case of unlawful

discrimination. If the prima facie case is established, the

burden shifts to the employer to rebut this preliminary showing

by producing evidence that the adverse action was taken for some

legitimate, non - discriminatory reason. If the employer rebuts

the prima facie case, the burden shifts back to Petitioner to

show by a preponderance of evidence that the employer 's offered

reasons for its adverse employment decision wer e pretextual.

See Texas Dep Ó t of Cmty . Aff . v. Burdine , 450 U.S. 248, 101 S.

Ct. 1089, 67 L. Ed. 2d 207 (1981).

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

employment discrimination under c hapter 760, Florida Statutes,

Petitioner must establish that: (1) he is a memb er of the

protected group; (2) he was subject to adverse employment

action; (3) t he City treated similarly situated employees

outside of h is protected classifications more favorably ; and

(4) Petitioner was qualified to do the job and /or was performing

h is job at a level that met the employerÓs legitimate

expectations . See , e.g. , Jiles v. United Parcel Service, Inc. ,

360 Fed. Appx. 61, 64 (11 th Cir. 2010); Burke - Fowler v. Orange

County , 447 F. 3d 1319, 1323 (11th Cir. 2006); Knight v. Baptist

Hospital of Miami, Inc. , 330 F.3d 1313, 1316 (11 th Cir. 2003);

Williams v. Vitro Services Corp . , 144 F.3d 1438, 1441 (11th Cir.

1998); McKenzie v. EAP Management Corp. , 40 F. Supp. 2d 1369,

1374 - 75 (S.D. Fla. 1999).

73 . Petitioner has failed to pr ove a prima facie case of

unlawful employment discrimination.

74 . Petitioner established that he is a member of a

protected group, in that he is a black ma le . Petitioner was

subject to an adverse employment action in that he was

terminated from his positi on as a Maintenance Worker II with t he

City . Petitioner was qualified to perform the job of

Maintenance Worker II . The evidence established that

Petitioner's job performance had ranged from acceptable to

unsatisfactory throughout the term of his employme nt .

75 . As to the question of disparate treatment, the

applicable standard was set forth in Maniccia v. Brown , 171 F.3d

1364, 1368 - 1369 (11th Cir. 1999):

" In determining whether employees are

similarly situated for purposes of

establishing a prima facie case, it is

necessary to consider whether the employees

are involved in or accused of the same

or similar conduct and are disciplined in

different ways." Jones v. Bessemer Carraway

Med. Ctr ., 137 F.3d 1306, 1311 (11th

Cir.), opinion modified by 151 F.3d 1321

(1998) ( quoting Holifield v. Reno , 115 F.3d

1555, 1562 (11th Cir. 1997)). "The most

important factors in the disciplinary

context are the nature of the offenses

committed and the nature of the punishments

imposed." Id . (internal quotations and

citat ions omitted). We require that the

quantity and quality of the comparator's

misconduct be nearly identical to prevent

courts from second - guessing employers'

reasonable decisions and confusing apples

with oranges. See Dartmouth Review

v. Dartmouth College , 889 F.2d 13, 19 (1st

Cir.1989) ("Exact correlation is neither

likely nor necessary, but the cases must be

fair congeners. In other words, apples

should be compared to apples.").

(Emphasis added.) [ 17 / ]

76 . The only specific evidence Petitioner offered o f

disparate treatment was t he City 's treatment of Mr. Hernandez,

who was subjected to no discipline whatever for missing work on

the same weekend that Petitioner's absence was considered the

"final straw" leading to his termination. However, unlike

Petiti oner, Mr. Hernandez answered Mr. Haigh's page summoning

him to work, and received permission to stay home and take care

of a family matter. Also, Mr. Hernandez did not have

Petitioner's general history of lackluster job performance or

his specific history of failing to respond to pages and radio

calls from his superiors. As to this point of comparison , there

was no "nearly identical" misconduct on the part of

Mr. Hernandez and Petitioner. In fact, Mr. Hernandez committed

no misconduct at all.

77. Petiti oner also complained that Mr. Hernandez received

an excellent 2008 evaluation despite having spent the entire

year doing nothing but studying for the police exam, with the

full knowledge of Mr. Haigh. The more credible evidence

established that Mr. Hernan dez studied on the job for a time but

was ordered to "knock it off" as soon as Mr. Haigh became aware

of it. This single instance of misbehavior by a generally

excellent employee does not compare to the checkered career of

Petitioner as a City employee.

7 8. Petitioner's general complaint that the white

employees received better work assignments than the black

employees was belied by the fact that Petitioner spent more than

90 percent of his working days operating the reach - out mower,

one of the most covet ed assignments in the stormwater section.

79 . Having failed to establish this element, Petitioner

has not established a prima facie case of employment

discrimination.

80 . Even if Petitioner had met the burden, t he City

presented evidence of legitim ate, non - discriminatory reasons for

Petitioner's termination. The precipitating event leading to

Petitioner's dismissal was his failure to report on Sunday,

May 24, 2009 , but this was merely the last in a long series of

performance issues that had resulte d in Petitioner's being

placed on three separate "conditional evaluation" probation

periods during his employment with the City. Petitioner was

well into a 180 - day probation period when he failed to respond

to Mr. Haigh's numerous pages during the May 200 9 storm.

Petitioner violated a known polic y of his employer regarding

pagers , and not for the first or even the second time. When he

finally reported to Mr. Haigh on Monday morning, Petitioner was

less than forthcoming in trying to justify his failure to

respond to Mr. Haigh's repeated pages.

8 1 . In order to prove a prima facie case of retaliation

under c hapter 760, Florida Statutes, Petitioner must establish

that: (1) he engaged in statutorily protected activity; (2) an

adverse employment action occ urred; and (3) the adverse action

was causally related to Petitioner's protected activity. See

Gupta v. Florida Board of Regents , 212 F.3d 571, 587 (11th Cir.

2000); Raney v. Vinson Guard Service, In c. , 120 F.3d 1192, 1196

(11th Cir. 1997); Russell v. KSL Hotel Corp . , 887 So. 2d

372, 379 (Fla. 3d DCA 2004).

8 2 . Petitioner has failed to prove a prima facie case of

retaliation.

8 3 . Petitioner established that he is a member of a

protected group, in that he is a black ma le . Petitioner engaged

in statutori ly protected activity, in that he complained of

"discrimination" in the comments he made to his annual

performance evaluation of December 31, 2008. 18 / Petitioner was

subject to an adverse employment action insofar as he was

terminated.

8 4 . Petitioner di d not establish a causal relationship

between the adverse employment action and his protected

activity. The Eleventh Circuit Court of Appeals construes the

"causal link" requirement broadly: " a plaintiff merely has to

prove that the protected activity and the negative employment

action are not completely unrelated." EEOC v. Reichhold

Chemicals, Inc. , 988 F.2d 1564, 1571 - 1572 (11th Cir. 1993). See

also Pennington v. City of Huntsville , 261 F.3d 1262, 1266 (11th

Cir. 2001); Olmsted v. Taco Bell Corporatio n , 141 F.3d 1457,

1460 (11th Cir. 1998).

8 5 . However, even under this generous standard, Petitioner

failed to establish a causal relationship between the

termination of his employment and h is comments on his

evaluation. When Mr. Gray reviewed Petitioner' s comment that he

had been subject to "discrimination" and wanted a meeting with

the city manager and the human resources director, he

immediately forwarded the request to the appropriate City

personnel. While the record did not establish the outcome of

P etitioner's meeting with the C ity M anager and the H uman

R esources D irector, Petitioner did not allege that no meeting

occurred.

86 . Six months passed between the evaluation comments and

Petitioner's dismissal , an amount of time significant enough to

mil itate against finding a causal link between the comments and

Petitioner's dismissal. See Miller - Goodwin v. City of Panama

City Beach , 385 Fed. Appx. 966, 974 (11th Cir. 2010), ( citing

Drago v. Jenne , 453 F.3d 1301, 1308 (11th Cir. 2006) ) (three -

month peri od between a protected activity and an adverse

employment action not sufficiently proximate to show causation

on a retaliation claim) .

87 . Even if it were concluded that Petitioner established

a prima facie case of retaliation, the C ity produced abunda nt

evidence that the adverse employment action was taken for a

legitimate, non - discriminatory reason. See Conclusion of Law

80, supra .

9 2 . Petitioner wholly failed to prove that the C ity 's

reasons for dismissing h im were pretextual.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

issue a final order finding that the City of Ormond Beach did

not commit any unlawful employment practices and dismissing the

Petit ion for Relief filed in th is case .

DONE AND ENT ERED this 5 th day of October , 2011 , in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings

The DeSo to Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5 th day of October , 201 1 .

ENDNOTES

1 / Citations shall be to Florida Statutes (200 9 ) unless otherwise

specified. Section 760.10, Florida Statutes, has been unchanged

since 1992.

2 / On January 28, 2011, the City filed a Motion to Dismiss the

Petition B ased on Untimeliness, noting that January 18, 2011 ,

was the 36th day following December 13, 2010, and that the

Petition therefore was not timely filed under s ection 760.11(7),

Florida Statutes. At the hearing, it was established that

January 17, 2011, the 35th day after December 13, 2010, was

Martin Luther King, Jr. Day, a state holiday. Because the

Petition could not have been filed on the 35th calendar day

following the FCHR 's finding of no reasonable cause, the

undersigned ruled that the filing on the 36th day was timely.

3 / Mr. Back submitted the first conditional probationary

evaluation of Petitioner on February 13, 2009. Mr. D'Ippolito

submitted the second conditional probationary evaluation of

Petitioner on March 13, 2009. In light of Petitione r's

allegations regarding Mr. D'Ippolito, it is notable that

Mr. D'Ippolito's evaluation was significantly more positive

about Petitioner's job performance than was that of Mr. Back.

Mr. D'Ippolito gave Petitioner an overall score of 3.70 versus

an overal l score of 3.0 by Mr. Back. Mr. D'Ippolito wrote:

Willis has shown noticeable improvement in

several areas during this rating period.

The effort that Willis is showing now is the

same effort that we will need to see from

now on. Willis has a tendency t o go back

into putting in little effort when it comes

to section goals and objectives once he is

off probation. The number one goal for

Willis would be to continue his good efforts

and not fall into old, effortless habits of

the past.

When asked at th e hearing about the positive evaluation by

Mr. D'Ippolito and the relatively negative evaluation by

Mr. Back, Petitioner stated, "I saw all through that." He

stated that the evaluation scores were part of a larger

"strategy," aimed apparently at getting r id of Petitioner.

The February and March 2009 conditional probationary

evaluations were the only ones actually entered into evidence.

Mr. Gray testified that all of Petitioner's probationary

evaluations were acceptable except for the last one, which h ad

an overall score of 2.4. This evaluation was completed in June

2009 by Mr. D'Ippolito and reflected Petitioner's failure to

appear for work during the May 2009 storm days, discussed in

detail infra .

4 / The City correctly argued that the events invo lving

Mr. Fields were well outside the 365 - day time limit established

by s ection 760.11, Florida Statutes. The undersigned allowed

Mr. Fields' testimony as part of Petitioner's effort to show a

longstanding pattern of administrative indifference to

allega tions of racial discrimination.

5 / After Petitioner's termination, Mr. Hernandez was assigned to

operate the reach - out mower.

6 / In particular, Mr. Haigh testified that a major reason for

assigning Petitioner to the reach - out mower was it enabled

Peti tioner to work alone and kept him away from the other

employees, with whom Petitioner did not get along. Mr. Haigh

added that Petitioner did a good job with the mower and seemed

to enjoy it.

7 / Mr. Gray recalled that the meeting was held on Thursday

a fternoon. Mr. Haigh testified that the meeting was held on

Friday afternoon. Despite their differing recollections as to

the date of the meeting, the two men agreed as to what occurred

at the meeting.

8 / The City's Administrative Policy 53, "Compensati on During

Declared Emergency," required all City employees to report to

work during an enacted state of emergency.

9 / The evidence established that Petitioner was an inveterate

complainer about various aspects of the job, and it cannot be

doubted that hi s persistent disgruntlement played some role in

his negative performance evaluations. However, the evidence did

not establish that Petitioner's complaints had to do with

allegations of racial discrimination until, at the earliest, his

written comments on the December 31, 2008 , evaluation. Even

then, it required an inference to determine that the

"discrimination" cited in the comment was racial discrimination.

See Findings of Fact 49 and 50, infra .

10 / When questioned about the one month gap between the events

of the Memorial Day weekend and his recommendation that

Petitioner's employment be terminated, Mr. Gray stated that the

storm fell in the middle of a grading period in Petitioner's

180 - day probation and he wanted to wait for the next written

evaluat ion before taking final action .

11 / The GEA, or General Employees Association, is the Ormond

Beach local of the Office and Professional Employees

International Union (OPEIU).

12 / On June 19, 2009, Petitioner received a separate employee

counseling for m that notified him of "disciplinary action

pending investigation" regarding the incidents with the fuel key

and the resident who needed assistance with sandbagging.

13 / At the hearing, Petitioner attempted to downplay this

incident, but even in his versi on of events Petitioner conceded

that he did not have his radio with him. Mr. Haigh's written

warning noted that Petitioner had been counseled in the past

about failing to respond to radio messages while on the job.

14 / Despite his clear resentment of many, if not most, of his

co - workers, Petitioner steadfastly maintained that he got along

"with pretty much everybody" and that the allegations that he

lacked rapport with his fellow workers were overblown.

15 / Mr. Haigh likewise testified that Petitioner 's comment on

the December 31, 2008 , evaluation was the first indication he

had that Petitioner believed discrimination was occurring in the

stormwater section. Mr. Haigh testified that Petitioner "never

made a racial comment in the whole time he was in m y

department." Mr. Haigh asked Petitioner what he meant by his

written comment, but Petitioner said nothing. Mr. Haigh said,

"Willis doesnÓt explain things." At the hearing, Petitioner

offered no information regarding the outcome of his meeting with

the city manager and human resources director.

16 / "Person" includes "any governmental entity or agency."

S. 760.02(6), Fla. Stat.

17 / The Eleventh Circuit has questioned the "nearly identical"

standard enunciated in Maniccia , but has recently reaffirmed its

adherence to it. Escarra v. Regions Bank , 353 Fed. Appx. 401,

404 (11th Cir. 2009); Burke - Fowler , 447 F.3d at 1323 n.2.

18 / Because of the ambiguity of Petitioner's "discrimination"

claim, the City contends that Petitioner never engaged in a

statuto rily protected activity in that he never complained of

racial discrimination during the relevant time period. The

undersigned has concluded that it is fair, though not necessary,

to infer that Petitioner intended his comment to address racial

discriminati on. In other words, for purposes of meeting the

retaliation criteria of s ection 760.10(7), the undersigned finds

it fair to infer that Petitioner was engaged in protected

activity, but also finds that it was reasonable for Mr. Gray not

to make the same in ference.

COPIES FURNISHED :

Bona M. Kim, Esquire

Allen, Norton & Blue, P.A.

1477 West Fairbanks Avenue, Suite 100

Winter Park, Florida 32789

Mark E. Levitt, Esquire

Allen, Norton & Blue, P.A.

1477 West Fairbanks Avenue, Suite 100

Winter Park, Flor ida 32789

David W. Glasser, Esquire

Law Office of David W. Glasser

116 Orange Avenue

Daytona Beach, Florida 32114

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry K ranert, 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.