18-001884 City Of Clearwater vs. Scott Rhodes Status: Closed Recommended Order on Thursday, September 6, 2018.

Summary: The City proved that Respondent violated City policies and procedures; termination of Respondent's employment is warranted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF CLEARWATER,

Petitioner,

vs. Case No. 18 - 1884

SCOTT RHODES,

Respondent.

_______________________________/

RECOMMENDED ORDER

O n June 6, 2018, Administrative Law Judge Hetal Desai of the

Division of Administrative Hearings (DOAH) held a final hearing

in Clearwater , Flor ida .

APPEARANCES

For Petitioner: Ow en Kholer, Esquire

City of Clearwater

1125 South Osceola Avenue

Clearwat er, Florida 33756

For Respondent: Scott Rhodes, pro se

10332 Viridan Drive

Port Richey, Florida 34668

STATEMENT OF THE ISSUE

The issue is whether Respondent, Scott Rhodes, should be

terminated from employment with Pet itioner, City of Clearwater

(City), for violating City policies as alleged in the City's

Termination and Dismissal Notice dated February 16, 2018.

PRELIMINARY STATEMENT

On February 16, 2018, the City issued a Termination and

Dismissal Notice ( Dismissal No tice) to Respondent, terminating his

employment with the City effective February 20, 2018. Pursuant to

the CityÓs Civil Service Board Rules and Regulations , Mr. Rhodes

timely appealed his termination and requested a hearing to contest

the City's action. O n April 12, 2018, the matter was referred by

the C ity to DOAH to conduct a hearing. The final hearing was

noticed for June 6, 2018.

A telephonic pre - hearing conference was held on Ma y 30, 2018,

and the burden of proof, the sequence of presentations and

ev identiary issues were discussed. During the conference ,

Respondent disclosed for the first time his intent to offer

exhibits at the hearing that had not been previously disclosed.

The parties agreed to exchange all exhibits and the City filed its

exhibi t s with DOAH.

At the June 6 hearing, the City presented testimony of five

witnesses: Allan Craig, a former worker in the City Solid Waste/

Recycling Department (Solid Waste); Joseph Farrar, RespondentÓs

supervisor in Solid Waste; Michelle Kutch, the City Ós Human

Resources (HR) Benefits and Employee Relations Manager; Dieunice

Deris, the CityÓs HR Manager for Diversity and Equity Services;

and Earl Gloster, the CityÓs Director of Solid Waste and General

Services. The CityÓs Exhibits P1 th r ough P10 were ac cepted in

evidence. Mr. Rhodes testified on his own behalf, and offered one

exhibit, R1, that was accepted into evidence without objection.

The Transcript of the hearing was filed on August 6, 2018. A

notice of filing was issued the same day directing t he parties to

file their respective proposed recommended orders (PROs) by

August 16, 2018. The City timely filed its PRO; Respondent did

not. The CityÓs PRO was considered in preparing this Recommended

Order.

FINDING S OF FACT

Parties and Jurisdiction

1. The City is a government employer governed by a City

Council . A City Manager oversees the CityÓs operation s .

2. Pursuant to the Code of Ordinances of the C ity of

Clearwater (City Code) , the Clearwater Civil Service Board has

adopted policies and rule s regulating all aspects of the civil

service employee positions within the City. 1 /

3. Mr. Rhodes began his employment with the City as a Solid

Waste worker on September 6, 2004. He worked in the same position

until his termination effective February 20, 2018.

4. Approximately 85 percent of the current Solid Waste staff

is African - American. Mr. Rhodes describes himself as Ðwhite Ñ and

Ð not black . Ñ

5. At all times relevant , Mr. Rhodes Ó supervisor was Joseph

Farrar , who is Caucasian . Mr. Farrar Ós ultim ate supervisor is

Earl Gloster, an African - American. Mr. Gloster is the department

head of Solid Waste and reports directly to the City Manager.

Mr. RhodesÓ Disciplinary History

6 . Prior to his termination, Mr. Rhodes had been inv olved in

a number of i ncidents with co - workers requiring counseling or

discipline.

7. In late November 2011 and early 2012, Mr. Rhodes reported

he was being harassed by a co - worker in Solid Waste , Feth

Benbelgacem. His complaint was investigated by the CityÓs HR

Department and a report was issued . Although the City found Mr.

Benbelgacem had violated the CityÓs Workplace Violence Policy, t he

report concluded :

No one was able to corroborate the specific

claim that Mr. Rhodes made that

Mr. Ben b elgacem [threatened him]. . . . A

number of those interviewed feel that

Mr. Rhodes has animosity because

Mr. Ben b elgacem is permitted to operate the

equipment which causes Mr. Rhodes to Ðnitpick Ñ

Mr. Benbelgacem Ó s work performance, thereby

instigating their interaction. Th is beh av ior

on the part of Mr. Rhodes has been reported to

the supervisors and although Mr. R h odes has

been directed to cease the behavior and worry

about himself, the behavior allegedly

continues.

* * *

Although Mr. Rh o d es has been instructed by his

superv isors to stop delegating and criticizing

tasks relating to Mr. Benbelgacem, the

behavior seems to continue and should it not

stop, the supervisor should address it th r ough

the Performance and Beh avior Process.

8 . In November 2016, Mr. Farrar issued Respon dent a coaching

and counse ling form for Ð v iolence in the w orkplaceÑ based on a

verbal altercation Mr. Rhodes had with an African - American

co - worker. The form signed by Mr. Rhodes states :

Outcome of Meeting: Mr. Rhodes understands

that verbal misconduct is as serious as

physical conduct. Verbal attacks can lead to

physical confrontations just as this situation

did. In the future, verbal attacks on a

co - workerÓs family or loved ones will not be

tolerated.

9 . At some point after the November 2016 cou nseling, when

someone did something he did not like, Mr. Rhodes would either

tell that person that he was going to give that person a specific

number of lashes or he would direct a co - worker to distribute a

specific number of lashes to that person .

1 0 . M r. Rhodes also t old his co - workers to Ðkiss the ring , Ñ

implying they were subservient to him.

11. Mr. Rhodes would talk about certain co - workers being on

his Ðhit list.Ñ When asked who was on his Ðhit list , Ñ Mr. Rhodes

named the same African - American co - worker involved in the November

2016 incident.

12 . I n early 2017, Mr. Far rar overheard Mr. Rhodes saying he

would give certain co - workers lashes . Mr. Farrar believed these

comments were inappropriate and could have been interpreted as

racially offensiv e. He also overheard Mr. Rhodes talking about

his Ðlist.Ñ

1 3 . As a result, Mr. Farrar met with Mr. Rhodes and

instructed him to stop making such remarks . Although Mr. Farrar

did not specifically tell Mr. Rhodes these comments violated any

specific poli c y, he did tell Mr. Rhodes Ðthat he needed to watch

what he was saying around newer people because they might not know

how to take it the way people that had been around him do.Ñ

14 . At the final hearing, Mr. Rhodes admitted he told other

employees he wo uld give them lashes, they were on his hit list,

and they should kiss the ring, but claimed he was joking.

1 5 . In April 2017, Mr. Farrar placed Mr. Rho des on a

ÐDevelopment PlanÑ after repeatedly being warned by

Mr. Farrar about failing to properly cl ock in and out, and

accruing unauthorized overtime.

1 6 . The Development Plan was to remain in effect from

April 28 to October 28, 2017 , and required Mr. Rhodes to meet

personally with Mr. Farrar on ÐPaydayÑ Fridays and comply with the

CityÓs timeclock re gulations.

1 7 . Mr. Rhodes defied orders to meet with Mr. Farrar and

otherwise failed to adhere to the Development Plan .

18. As a result , Mr. Rhodes received a one - day suspension

( referred to as a Ðdecision - making leave dayÑ ) and was referred to

the E mployee Assistance Program. The Development Plan was also

revised and extended to remain in effect until March 2018.

1 9 . Meanwhile, Mr. Rhodes continued to make the same type of

inappropriate remarks referring to ÐlashesÑ and the Ðh it list.Ñ

In Octobe r or November 2017, Mr. Farrar had a second meeting with

Mr. Rhodes and again instructed him to stop making these types of

remarks.

The Terminating Incident

20 . On January 17, 2018, Mr. Farrar received a complaint

from Allan Craig, an Afri can - American S olid Waste worker, that

Mr. Rhodes claimed he was the Ðemperor of all black people.Ñ

According to Mr. Farrar , Mr. Craig reported the incident j ust

after it was made and was visibly shocked . Mr. Farrar referred

the incident to the CityÓs Office of Divers ity and Equity Services

(ÐODESÑ), a division within the HR department tasked with handling

and investigating complaints of the CityÓs anti - dis crimination

policies, as well as potential employee v iolations of state and

federal employment laws.

21. Mr. Crai g testified that on the day in question,

Mr. Rhodes did not like something an African - American co - worker

said. In turn, Mr. Rhodes told Mr. Craig to give this co - worker

Ð50 lashes ,Ñ which Mr. Craig understood to be a whipping.

Mr. Craig, said, Ðno, we [ ha ve] to stick together.Ñ It is unclear

to whom Mr. Craig is referring when he said ÐweÑ -- ÐSolid Waste

workersÑ or ÐAfrican - Americans.Ñ Regardless, i n response,

Mr. Rhodes made the statement, ÐIÓm the emperor of black people.Ñ

Mr. Craig did not respond , but instead immediately left the

worksite to report the comment to Mr. Farrar .

22. Although Mr. Rhodes corroborates Mr. CraigÓs version of

events, he d isputes saying ÐIÓm the emperor of black people.Ñ

Instead he claims he told Mr. Craig ÐI am the empe ror of Solid

Waste Ñ ; and after Mr. Craig said, Ðno, we [have] to stick

together,Ñ Mr. Rhodes replied , ÐAllan, even black people have to

answer to somebody.Ñ

23. Mr. Rhodes saying, ÐIÓm the emperor of black peopleÑ is

more believable than him saying ÐAll an, even black pe ople have to

answer to somebody.Ñ The undersigned rejects Mr. Rhodes Ó version

of events for a number of reasons . 2/

2 4 . First, Mr. Rhodes statements do not seem to flow

naturally. Second, Mr. CraigÓs demeanor was more credible, and

his version of the facts leading up to the ÐemperorÑ statement was

consistent wit h the testimony of the other witnesses .

2 5 . Moreover, Mr. Deris, the ODES investigator, testified

that Mr. Rhodes admitted to making the statement, ÐI am the

emperor of black peopleÑ when questioned during the investigation .

2 6 . Mr. Gloster testified that during the pre - termination

meeting he had with Mr. Rhodes , ÐI asked him specifically as to

the comment that was made . . . that he was the emperor over all

black people, and he said, yes, that he said it.Ñ

2 7 . Even assuming Mr. RhodesÓ version is correct, it is

equally offensive; it still implies African - Americans at Solid

Waste need to answer to him. B ased on the competent and credible

evidence, t he undersigned finds that Mr . Rhodes made the

statement, ÐI am the emperor of black people , Ñ and this statement

was reasonably offensive to Mr. Craig .

Grounds for Dismissal

28 . Based on the ODES investigation and after meeting with

Mr. Rhodes, Mr. Gloster made the decision to ter minate Petitioner.

Thereafter, the City issued the Dismissal Notice citing numerous

violations of City policy and regulations :

• City Policy 3201.2, Equal Employment Opportunity

Policies (EEO);

• City Policy 3704.1, Workplace Violence Prevention

Policy ; and

• Relevant portions of the CityÓs Performance and Behavior

Management Program Manual (PBMP), which set standards

for City workers in the areas of personal

responsibility, excellence, and integrity.

2 9 . Chapter 13, se ction 3 , of t h e Civil Servi ce Board Rul es

and Regulati ons outline s the grounds for disci pline , including

terminations. That section provides in pertinent part:

Reasons for Suspension, Demotion, and

Dismissal -- Whenever practical, employees will

be given reasonable opportunity to bring their

per formance and/or behavior up to acceptable

standards pursuant to the procedures and rules

of the CityÓs performance and behavior

management programs. However, employees may

be subject to disciplinary action up to and

including immediate dismissal for the

f ollowing acts , including but not limited to

specifically cited examples :

* * *

( e ) Commitment of a flagrant offense,

including harassment or discrimination or

abusive conduct or language toward coworkers,

City officers, or the public.

* * *

(l ) Failure to conform to the dictates of

corrective action, including but not limited

to failure or inability to comply with an

agreed - upon Ðdevelopment plan,Ñ or when the

City believes that an employee is willful in

refusing to adhere to establish rules,

regulations, or guidelines. (emphasis added).

Violation of EEO Policy

30 . The CityÓs EEO policy states in relevant part:

It is the policy of the City of Clearwater

that no person shall be unlawfully

discriminated against with regard to

recruitme nt, selection, appointment, training,

promotion, retention, discipline or other

aspects of employment because of any

consideration of race, color, religion,

national origin, age, disability, marital

status, or gender (including conditions of

pregnancy and sexual harassment), or genetic

or family medical history information as

defined by the Genetic Information

Nondiscrimination Act.

3 1 . Mr. RhodesÓ ÐlashesÑ comments could reasonably be

interpreted as a reference to slavery, and be racially offensive

to A frican - American (and other) employees. As such, Mr. Rhodes

continued references to Ðlashes,Ñ even after being warned,

violated the CityÓs EEO policy .

32 . Mr. Rhodes statement that he , a white person, was the

Ðemperor of black peopleÑ clearly violates the CityÓs EEO policy.

Violation of the CityÓs Workplace Violence Prevention Policy

3 3 . The CityÓs Workplace Violence Prevention Policy states

in relevant part:

Policy : The City of Clearwater wi ll not

tole rate v i olence, threats, harassment,

intim id ation, and other disrupti ve behavior in

our workp l ace [ .] All reports of incidents

w i ll be taken ser iously and will be dealt with

appropriate l y. I ndividuals who commit such

acts may be removed from t he premises and ma y

be subject to discip l inary action, crimina l

pe na lties, or both .

Definitions: Wo r kp l ace violence is any

physica l assault, threatening behavior, or

ve rbal abuse occurring in the workplace. Such

behavior can include ora l or written

statements, gestures, or expressions that

communicate a direct or indirect threat of

physical harm.

34 . Although there was no evidence anyone believed

Mr. RhodesÓ ÐlashesÑ or Ðhit - listÑ statements wer e real

threats of violence, these statements could be considered a

form of intimidation, disruptive behavior, and verba l abuse

under the policy.

3 5 . T hese comments , however, when taken in the context

of RespondentÓs history of verbal altercations with

co - workers, and coupled with the fact he was told that these

statement s may be mis interpreted , constitute violation s of

the CityÓs Workplace Violence Prevention Policy .

Violation of the CityÓs Employee Standards

3 6 . The PBMP contains the following relevant standards and

instructions:

INTEGRITY STANDARDS

The following standards represent Integrity

issues of such a seriou s nature that immediate

formal discipline, up to and including

termination, may be recommended.

Violation of the City Workplace Violence

Policy.

Violation of the City Equal Employment

Opportunity (EEO) Policy.

* * *

EXCELLENCE STANDARDS

We wil l present a professional image through

actions, dress, speech and behavior.

We will strive for excellence and continuously

learn and make improvements.

We will learn from mistakes, modify behavior

and recommend procedural changes to improve

operations an d processes.

3 7 . Again, Mr. RhodesÓ statements described above when

considered cumulatively and in context clearly violate the

standards for employee integrity .

3 8 . Mr. Rhodes Ó continu ed use of these comments, even after

being repeatedly counsele d , vi olates the standard s for

professional image through actions and speech ; continuously

learning and improving; and modifying behavior.

CONCLUSIONS OF LAW

3 9 . DOAH has jurisdiction over the subject matter and the

parties pursuant to City Code , Chapter 2, Ar ticle IV, Division 2 ,

which authorizes the Civil Service Board to contract with DOAH to

provide a hearing officer (administrative law judge) "to review

employee appeals resulting from alleged adverse employer action,"

including dismiss al. See Clearwater C ity Code, section s 2.285(1)

and (2) .

40 . Section 2.285(2) and (3) of the City Code address es the

procedural standards for the employee appeal hearing . It provides

the undersigned "shall utilize a procedure similar to that set out

in F.S. §§ 120.57(1) and 120.58," except that the Ð[t]echnical

rules of evidence shall not apply," and each party "shall have the

right to be heard publicly," to be "represented by a person of his

choice," and "to present evidentiary facts." 3/

41 . At the conclusion of the hearin g, the City Code requires

the undersigned to transmit a recommended order, composed of

proposed findings of fact and legal conclusions, to the Civil

Service Board. See City Code section 2.285(4). The C ity C ode

makes no provision for the filing of excepti ons to the proposed

order, but both parties may appear before the Civil Service Board

when it considers the hearing officerÓs proposed order.

42 . The City Code is silent as to the burden or standard of

proof in an ap peal by a discharged employee. The def ault standard

of proof in administrative proceedings is Ð a preponderance of the

evidence. Ñ See § 120.57(1)(j), Fla. Stat. This is consistent

with the burden imposed in other types of cases where an employer

seeks to terminate an employee. See, e.g. , All en v. Sch. Bd. of

Dade Cnty. , 571 So. 2d 568, 569 (Fla. 3d DCA 1990). Accordingly,

the City has the burden of proving by a preponderance of the

evidence that Mr. Rhodes should be terminated.

4 3 . The preponderance of the evidence standard requires the

pro of against Respondent to be the greater weight of the evidence,

or evidence that Ðmore likely than notÑ tends to prove the

allegations. Gross v. Lyons , 763 So. 2d 276, 280 n.1 (Fla. 2000).

44 . As indicated in the findings of facts, the overwhelming

evi dence at the hearing established Respondent violated his

Development Plan and made inappropriate comments to his

co - workers , that could reasonably be interpre ted as threatening

and racist a nd which constitute violations of City policies.

45 . Based on his argument and testimony at trial, Mr. Rhodes

believed it was okay to continue making these comments because his

co - workers never told him they were offended and that he was just

joking . This Ðjust jokingÑ defense carries no weight. First, it

was totally reasonable and prudent for Mr. Craig to not respond or

escalate the situation , and instead report the conduct to his

supervisor. Second, despite the racial connotations, Mr. Rhodes

never denied hav ing racial animus . Finally , the fact others had

not previo usly complained about his behavior does not make it

acceptable, nor does it change the discriminatory tone of the

comments. See Reeves v. C.H. Robinson Worldwide, Inc. , 594 F.3d

798, 803 (11th Cir. 2010).

46. In Reeves , the court noted in a Ðhostile work

environmentÑ context, behavior tolerated by some e mployees can

still be construed a s un acceptable work place behavior . The test

is whether a Ðreasonable personÑ would be offended by the

behavior .

The real social impact of workplace behavior

often depend s on a constellation of

surrounding circumstances, expectations, and

relationships which are not fully captured by

a simple recitation of the words used or the

physical acts performed. Thus, we proceed

with common sense, and an appropriate

sensitivity to social context, to distinguish

between general office vulgarity and the

conduct which a reasonable person in the

plaintiff's position would find severely

hostile or abusive.

Id. at 811 (citations omitted).

In other words, context matters. Mr. Farrar war ned Mr. Rhodes to

stop and specifically noted his comments may not be accepted by

newer employees. Once Mr. Craig object ed to the reasonably

offensive statements , the City took the necessary steps to ensure

the workplace was free from humiliating and degr ading comments.

4 7 . Mr. Rhodes also argued his termination was too harsh a

penalty because he had not been previously discipline d

specifically for violating the EEO or Workplace Violence

Prevention policies. This argument fails because the City policy

ex plicitly allows for immediate termination (i.e., without

imposing progressive discipline ) for violations of these policies.

48 . Moreover, Mr. Rhodes ignores the reality that he was on

a Development Plan at the time of his ter mination for not

following di rections of his supervisor , had received a Ðco a ching

and counselingÑ form for improper interactions with a co - worker ,

and had been instr ucted by his supervisor at least twice to stop

making inappropriate comments. The fact that he conti nued to make

offens ive comments also supports termination over less severe

measures .

4 9 . T here was no evidence the CityÓs decision to terminate

Mr. Rhodes was arbitrary or an abuse of discretion.

50 . The established facts are sufficient to warrant

Respondent's terminatio n.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Civil Service Board make a

determination that the charges in the Dismissal Notice are

sustained, and that Respondent be terminated as a City employ ee.

DONE AND ENTERED this 6 th day of September , 2018 , in

Tallahassee, Leon County, Florida.

S

HETAL DESAI

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahasse e, 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 6 th day of September , 2018 .

ENDNOTE S

1 / The Clearwater Civil Service Boa rd Rules and Regulations were

originally approved by the City Council on May 17, 1965, and most

recently revised November 13, 2017. All references to the Florida

Statutes, City Code and City policies, rules and regulations are

to the 2017 versions.

2 / In a case such as this wh ere the facts are in dispute, Ðthe

administrative law judge . . . has the opportunity to hear the

witnessesÓ testimony and evaluate their credibility. Yerks v.

Sch. Bd. of Broward C n ty. , 219 So. 3d 844, 848 (Fla. 4th DCA

2017); see Ft. Myers Real Estate H oldings, LLC v. DepÓt of Bus. &

ProfÓl Reg. , 146 So. 3d 1175 (Fla. 1st DCA 2014)(J. Wetherell

concurring)(Ð[I]t is solely the function of the ALJ to assess the

persuasiveness of the evidence as a whole.Ñ).

3/ Although the City Code suspends the technical rules of

evidence, the undersigned did not consider the witness statements

contained in the ODES investigative report (City Exhibit 6) or the

investigation of the Complaint of Scott Rhodes (RespondentÓs

Exhibit 1) . These statements were not r eliable sour ce s of

evidence given their hearsay nature. See § 120.57(1)(c), Fla.

Stat.; e.g. , Carter v. State , 951 So. 2d 939, 943 - 44 (Fla. 4th DCA

2007)(holding a police investigative report was Ðclassic hearsayÑ

and Ð[did] not fit within the business or public reco rds exception

to the hearsay ruleÑ); Rivera v. Bd. of Trs. of TampaÓs Gen. EmpÓt

Ret. Fund , 189 So. 3d 207, 212 - 13 (Fla. 2d DCA 2016). Instead,

the findings of fact are based on RespondentÓs admissions,

Mr. DerisÓ testimony regarding the ODES investigati on ,

Mr. GlosterÓs testimony as to the results and actions taken based

on the ODES investigative report and finding s, Mr. Rhodes Ó

testimony regarding his 2012 complaint , and the ultimate findings

of these reports relied upon by the City in taking action .

COPIES FURNISHED:

Owen Kohler, Esquire

City of Clearwater

112 South Osceola Avenue

Clearwater, Florida 33756

(eServed)

Scott Rhodes

10332 Viridian Drive

Port Richey, Florida 34668

Rosemarie Call, City Clerk

City of Clearwater

Post Office Box 4748

Cl earwater, Florida 33758 - 4748

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

Civil Service Board regulations do not authorize the filing of

exceptions to this Recommended Order. The Recommended Order will

be considered by the Civil Service Board at a meeting to be

noticed at a later time and place. At that meeting, the Civil

Service Board will make a determination on the disposition of this

matter and thereafter send its order and proposed penalty, if any,

to the City Manager. See § 2.285(4), Code of Ordinances .