16-005774 Selwyn Titus vs. Miami-Dade County Status: Closed Recommended Order on Tuesday, July 25, 2017.

Summary: Petitioner failed to prove prima facie case of retaliation for his opposing employment discrimination due to lack of proof that he was earlier engaged in statutorily protected activity and the adverse employment action, years later, was causally related.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SELWYN TITUS,

Petitioner,

vs. Case No. 16 - 5774

MIAMI - DADE COUNTY,

Respondent.

_______________________________/

RECOMMENDED ORDER

On May 12, 2017 , Robert E. Meale, Administrative Law Judge

of the Division of Administrative Hearings (DOAH), conducted the

final hearing by videoconference in Miami and Tallahassee,

Florida.

APPEARANCES

For Petitioner: Selwyn Don Titus , pro se

Apartment 601

14030 Biscayne Boulevard

Miami, Florida 33181

For Respondent : William X. Candela, Esq uire

Dade County Attorney's Office

111 Northwest 1st Street, Suite 2810

Miami, Florida 33128

STATEMENT OF THE ISSUE

P ursuant to section 760.10(7 ) , Florida Statutes (2015) , t he

issue is whether Respondent has unlawfully discriminated against

Petitioner in employment for opposing unlawful employment

discrimination.

PRELIMINARY STATEMENT

By Charge of Discrimination filed January 26 , 2016 ,

Petitioner alleged that, at all material times, Respondent has

employed him as a Heavy Equipment Operator in the Water and

Sewer Department. The Charge of Discrimination alleges a

serious of incidents involving Petitioner's employment that,

with one exception, occurred outs ide of the st atute of

limitations. The alleged incident within the statute of

limitations involved Respondent's denial, in April 2015, of

Petitioner's appeal of a reprimand that he had received for

causing minor damage to a mail box while operating a piece of

heavy equipment while discharging his duties as a Heavy

Equipment Operator .

T he alleged retaliation in the form of the denied appeal

is clear, but Petitioner's alleged opposition to unlawful

employment discrimination committed by Respondent is not.

For the most part, based on the Charge of Discrimination,

Petitioner's chief problem with Respondent is that, in

March 2011 and October 2012, he applied for a promotion to the

position of Pipefitter Supervisor -- a position that, by rule,

allegedly requir es a Water Distribution Level III license

(License). Although Petitioner allegedly possessed the License,

Respondent allegedly denied his applications and instead

appointed three other persons to the three openings, even though

none of them possessed a Li cense. Instead, Respondent allegedly

reported Petitioner's License in an improper manner to the

Florida Department of Environmental Protection. Petitioner

allegedly complained of this practice, but Respondent allegedly

declined to change the practice, so Petitioner allegedly filed a

complaint with the Florida Department of Environmental

Protection, allegedly resulting in a fine for Respondent's

failure, for over one year, to employ a person with a Li cense as

a Pipefitter Supervisor with duties including the responsibility

as the lead heavy equipment operator. From this point, the

Charge of Discrimination alleges a series of retaliatory acts,

but, as noted above, only one falls within the statute of

l imitations.

On August 18, 2016, the Florida Commission on Human

Relations issued a Notice of Dismissal.

On September 16, 2016, Petitioner filed a Petition for

Relief concerning the alleged incidents set forth above. In the

Petition for Relief, Petitio n er alleges that he is a black

Seventh - Day Adventist from Trinidad who was 50 and 51 years old

when applying for the openings as a Pipefitter Supervisor , and

the three persons hired as Pipefitter Supervisors are white

Hispanics who are from Cuba, are not S eventh - Day Adventists, and

are much younger than Petitioner. In the Petition for Relief,

Petitioner alleges that Respondent's failure to promote him to

Pipefitter Supervisor was due to discrimination on the basis of

race, religion, national origin , and ag e .

During a status conference on January 4, 2017, the parties

acknowledged that Petitioner had commenced a legal action, on

identical grounds, in federal court. The Administrative Law

Judge then assigned to the case entered an Order on the same

date essen tially giving Respondent until the end of the day to

file a motion to dismiss and Petitioner until the end of the

following day to file a response. On January 4, 2017,

Respondent filed a Motion to Dismiss Petition for Lack of

Jurisdiction , and, on the fol lowing day, Petitioner filed a

response in opposition . On January 5, 2017, the Administrative

Law Judge entered an Order granting the motion.

On March 30, 2017, the Florida Commission on Human

Relations entered an Order Remanding Petition for Relief from an

Unlawful Employment Practice, noting that, if a jurisdictional

defect exists, it lies in Petitioner's filing of a complaint in

federal court after filing the Petition for Relief that

commenced the present administrative proceeding. On April 17,

2017, the case was transferred to the undersigned Administrative

Law Judge.

At the start of the hearing, Respondent filed a Motion in

Limine. The Administrative Law Judge has granted the motion, so

the lone act of alleged retaliation involves an action that

occ urred in April 2015.

At the final hearing, Petitioner called three witness es and

offered into evidence the following exhibits : Petitioner

Exhibits 1, 4 - 5, 7 - 9, 11 - 15, 17, 21, 26, and 30 - 35 . Respondent

called no witnesses and offered into evidence no exhibits. All

exhibits were admitted except Petitioner Exhibits 7 - 9, 13 - 14,

and 17, which were proffered .

Respondent filed a highlighted transcript on June 27, 2017,

and filed a proposed recommended order on July 5, 2017 .

Petitioner did not file a prop osed recommended order.

FINDINGS OF FACT

1. Petitioner is black and originally from Trinidad. He

appears to be at least 50 years of age. Petitioner faile d to

prove that he is a Seventh - Day Adventist, but this omission is

immaterial for the reasons set forth below .

2. At all material times, Respondent has employed

Petitioner as a Heavy Equipment Operator. Several years a go,

after, on three occasions, Respondent declined to promote

Petitioner to Pipefitter Supervisor . Petitioner co mplained to

Respondent and later to the Florida Department of Environmental

Regulation that Respondent had hired for this position three

persons who lacked a Water Distribution Level III license and

instead improperly used Petitioner's license to satisfy a

requirement of the agency for the employment of a p erson holding

such a license. It may be inferred that Respondent did not

welcome these complaints, regardless of their merits.

3. Petitioner's proof as to his attempts to secure a

position as a Pipefitt er Supervisor is sketchy, but, regardless

of any evidentiary shortcomings, it appears that, at the time,

he opposed Respondent 's actions, not as actions of unlawful

employment discrimination, but as a violation of an agency rule

and improper use of Petitio ner 's license.

4. The sole potentially retaliatory act identified by

Petitioner occurred , several years later, when , in April 2015,

Respondent refused to sustain Petitioner's appeal of a reprimand

that he received for causing $25 worth of damage to a thir d

party's mailbox while operating heavy equipment within the scope

of his duties as a Heavy Equipment Operator. However, the

evidence fails to prove that the refusal to sustain the a ppeal

was retaliatory .

5. Petitioner did not deny that his operation o f heavy

equipment damaged the mail box. Although $25 is a modest

amount of damage, heavy equipment is inherently dangerous and

its negligent operation may require punishment, even when the

damage is slight, in order to deter future negligence that might

r esult in more serious damage or loss of life. Petitioner

unpersuasively links the de nied appeal of the ensuing reprimand

to his job - related complaints several years earlier. Even if

Pet itioner had established that these complaints constituted

opposition to unlawful employment discrimination, which he did

not, Petitioner cannot link the evidently reasonable punishment

of a reprimand for negligent operation of heavy equipment , years

later, to Respondent's decisions not to promote him to

Pipefitter Supervisor.

6. As it is, Petitioner proved only that he is a member of

several protected classes; several years ago, he complained that

Respondent hired unqualified persons as Pipefitter Supervisors

and used Pe titioner's license to satisfy a state agency's rule;

several years later, while operating heavy equipment for

Respondent, Petitioner damaged a mailbox; and, as a consequence,

Respondent reprimanded Petitioner and denied his appeal of the

reprimand.

CONCL USIONS OF LAW

7 . DOAH has jurisdiction of the sub jec t matter.

§§ 120.569, 120.57(1), and 760.11(7), Fl a. Stat. (2015 ). In

general, the Florida Commission on Human Relations acquires

jurisdiction over alleged violations that occurred within

365 days of the date of the filing of the complaint of

discrimination. § 760.11(1).

8. Section 760.10(7) provides:

It is an unlawful emplo yment practice for an

employer . . . to discriminate against any

person because that person has opposed any

practice which is an unlawful employment

practic e under this section . . . .

9 . Section 760.10(1)(a) and (b) provides that it is an

unlawful employment practice for an employer, on the ground of

race, color, religion, sex, pregnancy, national origin, age,

handicap, or marital status, to discriminate against any

individual with respect to compensation, terms, conditions, or

privileges of employment or to limit, segregate, or classify

employees in any way that would deprive or tend to deprive any

individual of employment opportunities or adversely affect any

individual's status as an employee.

10 . A prima facie showing of unlawful retaliation requires

proof of three elements: 1) the petitioner was engaged in

statutorily protected activity; 2) the petitioner suffered

adve rse employment action; and 3) the adverse employment action

was causally related to the protected activity. Blizzard v.

Appliance Direct, Inc. , 16 So. 3d 922, 926 (Fla. 5th DCA 2009).

If the petitioner proves a prima facie case, the burden shifts

to the respondent to show a legitimate, nondiscrim in atory reason

for the adverse employment action. Upon such a showing, the

petitioner must respond by showing that the respondent's reason

was pretextual. Id.

11 . As noted above, Petitioner's proof fails to sat isfy

the first and third elements. Years ago, when he complained of

Respondent's failure to promote him, hiring of three persons

lacking the required license, and improper use of Petitioner's

license, Petitioner was not engaged in protected activity

becau se the proof does not establish that Respondent's actions

had anything to do with Petitioner's race, national origin, age,

or religion. Years later, after Respondent damaged a mail box

while operating heavy equipment, the proof does not establish

that Resp ondent's decision not to set aside the ensuing

reprimand was in retaliation for his earlier complaints, even if

they had been statutorily protected , which they were not . At

least as persuasive as Petitioner's unproved, more elaborate

theory is the simpler explanation that Petitioner received a

reprimand for damaging a mail box while operating heavy

equipment, and Respondent declined to sustain Petitioner's

appeal of the reprimand.

RECOMMENDATION

It is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing the Petitio n for Relief filed on

September 16 , 2016.

DONE AND ENTERED this 25 t h day of July, 2017 , in

Tallahassee, Leon County, Florida.

S

____________________________________

Robert E. Meale

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of July, 2017 .

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

(eServed)

William X. Candela, Esquire

Dade County Attorney's Office

111 Northwest 1st Street, Suite 2810

Miami, Florida 33128

(eServed)

Selwyn Don Titus

Apartment 601

14030 Biscayne Boulevard

Miami, Florida 33181

(eServed)

Cheyanne Costilla, Gen eral Co unsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

(eServed)

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.