19-005536 Selwyn Titus vs. Miami Dade County Status: Closed Recommended Order on Friday, March 13, 2020.

Summary: Petitioner failed to prove that Respondent discriminated against him when it failed to promote him. Concern regarding the Petitioner's disciplinary record made him dissimilar from winner and was a legitimate, non-discriminatory reason not to promote him.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

S ELWYN T ITUS ,

Petitioner ,

vs. Case No. 19 - 5536

M IAMI D ADE C OUNTY ,

Respondent .

/

R ECOMMENDED O RDER

This case was hear d by Administrative Law Judge Robert L. Kilbride of

the Division of Administrative Hearings at a final hearing on January 16,

2020, by video teleconference from sites in Tallahassee and Miami, Florida.

A PPEARANCES

For Petitioner: Selwyn Don Titus , pro se

14030 Biscayne Boulevard , Apartment 601

Miami, Florida 33181

For Respondent: William X. Candela, Esquire

Dade County Attorney's Office

111 Northwest 1st Street , Suite 2810

Miami, Florida 33128

S TATEMENT OF T HE I SSUE

The i ssue in this case is whether Respondent, Miami - Dade County

("MDC" or the "County") , discriminated against Petitioner ("Petitioner" or

"Titus") on the basis of his race, age, national origin, disability , or retaliation

in violation of the Florida Civil Righ ts Act ( " FCRA " ), when it did not hire or

promote him to the Technical Equipment Instructor ( " TEI " ) vacancy.

P RELIMINARY S TATEMENT

On November 6, 2018, Petitioner, Titus, filed a race, age, national origin,

disability , and retaliation discrimination charge with the Florida Commission

on Human Relations ( " FCHR " ) alleging that Respondent, MDC , did not hire

him for the Solid Waste TEI position in 2017 in violation of the FCRA. FCHR

inv estigated the case and issued a " No Reasonable Cause " determi nation on

Septe mber 13, 2019.

Dissatisfied with that decision, Petitioner filed a Petition for Relief and

requested an administrative hearing. FCHR transmitted the Petition for

Relief to the Division of Administrative Hearings ( " DOAH " ) and the

undersigned was assigned t o hear the case. The final hearing was scheduled

for January 16, 2020.

At the evidentiary hearing, Titus testified on his own behalf . The County

then presented the testimony of two witnesses, Michell e Sifontes and

Jesmar Olivo. PetitionerÔs Exhibits 1 thr ough 12 were admitt ed into evidence.

RespondentÔs Exhibits 1 through 26 were admitted into evidence.

A T ranscript of the proceeding w as filed on January 31, 2020. The

deadline for the filing of post - hearing submittals was February 14, 2020.

The parties timely filed proposed recommended o rders ( " PROs " ), which

were reviewed and considered by the undersigned in the preparation of this

Recommended Order.

All references to the Florida Statutes are to the version in effect on

the date of the incident. Referen ced to Respondent's exhibits will be

"C ty. (County) Ex." and Petitioner's Exhibits will be "Pet. Ex."

F INDINGS OF F ACT

Based on the evidence presented at the hearing and the record as a whole,

the following findings of fact are made:

1. MDC is comprised of 25 working departments , including the Miami -

Dade Water & Sewer Department ( " W&S " ) and the Miami - Dade Solid Waste

Department ( " Solid Waste " ). The County employs over 28 ,000 employees.

2. Petitioner, Selwyn Titus, is a black male who was born in Trinidad .

During the relevant time period, the County employed Titus as a W&S Heavy

Equipment Operator.

3. Michelle Sifontes ( " Sifontes " ) is a black female, who was also born in

Trinidad. Sifontes is the Solid Waste Chief of Human Resources at MDC and

has served in that c apacity for over 11 years . 1 As the Chief of Human

Resources, she is responsible for ensuring that the Solid Waste hiring and

recruitment complie s with the County 's hiring policies.

4. In late 2017, Solid Waste posted a job announcement for a TEI

vacancy. 2 C ty . Ex. 1, Career Employment Opportunity Bulletin . The job

announcement established the minimum qualifications for the position.

Applicants submitted resumes through th e Cou ntyÔs PeopleSoft program.

5. This position fell within the Solid Waste Human Resources Division

and is under SifontesÔ s chain of command.

6 . A TEI performs " specialized instructional work in the training of

commercial drivers and heavy equipment operators for waste collection and

disposal operation systems. " C ty . Ex. 7, Job Description Technical Equipment

Instructor .

1 Ms. Sifontes has been a Solid Was te employee for over 24 years. T . at p. 72 .

2 This 2017 TEI job announcement is identical to the previous 2016 TEI job announcement ,

which Titus had applied for, and been rejected, for the reasons stated infra.

Solid Waste Department Posts Previous 2016 Technical Equipment

Instructor Job Announcement

7. As background to the current dispute, it is important to note that in

2016 Titus had applied with MDC for the same job posting for TEI .

8 . Titus applied for the TEI position in 2016 and submitted his resu me via

the PeopleSoft program. Pet. Ex. 9 . Sifontes reviewed TitusÔ s resume and

determined that he met the minimum qualifications. Consequently, Titus

was interviewed by a three - member panel of Solid Waste supervisors.

9 . As a result of TitusÔs performance during the first interview related to

his 2016 application, the panel placed Titus in the second " band. " Because

Titus was placed in the second band, and no appl icant was placed in the first

band, Titus was considered as a finalist for the TEI vacancy posted in 2016.

10 . As the Chief of Human Resources , and because the TEI reports to her

and is under her supervision, Sifontes reviewed TitusÔs personnel file to

de termine if Titus should be sele c ted for the 2016 TEI vacancy.

11. Upon review, Sifontes noted that TitusÔs personnel file contained

information that he had been disciplined by W&S supervisors, and that Titus

received a Written Reprimand and Record of Coun seling in 2013. C ty . Ex. 26 .

12. Those disciplinary records speak for themselves. The undersigned

finds that the disruptive, aggressive, and unbecoming conduct by Titus

outlined in the CountyÔs Exhibit 26 was incompatible and unsuitable for a

person being considered for an instructional or training role with MDC.

13 . Sifontes considered the event s in the Written Reprimand " very

concerning [because] the behavior that was described È shouting and loud,

disruptive tone, argumentative with the supervisor È in light of the position

that we are hiring for È It just would not be a good business practice to

promote or hire someone with a record such as this. "

14 . As a result of this disciplinary information, Titus was not selected for

the 2016 TEI position, and hi s application was rejected by MDC.

Solid Waste Department Posts 2017 Technical Equipment Instructor Job

Announcement

15 . In the latter part of 2017, Solid Waste again posted an announcement

for a vacant TEI position. C ty. Ex. 1. The announcement set minim um

qu alifications for the position. Id .

16 . A total of 68 applicants, including Titus, applied for the TEI position

t hrough the PeopleSoft program. C ty . Ex. 6 . Titus met the minimum

qualifications for the position.

1 7 . Sifontes reviewed the list of appli cants who applied for the position

and recognized TitusÔs name. Sifontes recollected and considered her previous

experience with Titus, particularly the disciplinary issues she had uncovered,

and decided to eliminate Titus from further contention for the 2 017 TEI

vacancy. As a result, she did not permit him to interview for the position -- for

the same reasons she did not select him for the 2016 TEI vacancy.

18 . Sifontes explained that " based on the information that I reviewed

previously at the beginning of the year (2017) and the decision I made at that

time, [Titus] was not invited to an interview later that year. "

19 . Sifontes did not know TitusÔs age, religion, or alleged disability when

she made the decision not to pass Titus along for an i n terview fo r t he TEI

position. Similarly, Sifontes was not aware that Titus had filed a charge of

discrimination against W&S with FCHR or the Equal Emp loyment

Opportunity Commission ( " EEOC " ) when she rejected his name for the

se cond TEI opening in late 2017.

The Panel Selects Luis Monteil For The 2017 TEI Position As The Most

Qualified Applicant

20 . On Novemb er 21, 2017, a racially diverse three - member panel of Solid

Waste supervisors interviewed 11 applicants for the TEI positon. Cty . Ex. 8 .

21 . Jesmar Olivo ( " Olivo " ) was one of the panel members that interviewed

applicants for the TEI position. Olivo is employed with Solid Waste as a Solid

Waste Human Resource Manager with the Labor and Discipline secti on. She

reports to Sifontes.

22 . According to Olivo, the panel co nducted a structured interview. All of

the applicants were individually asked a series of pre - selected questions in

the same order and then scored on their answers. Olivo further explained

that the individual applicantsÔ resume s were not reviewed or consid ered

during the interview.

23 . Olivio recounted, " we [the interview panel] do not do the reviewing of

the applications. Once we are there [interviewing] itÔs determined that

whoever we are interviewing has me t the minimum qualifications. " She

further test ified that her decisions were based so lely on the interview

answers.

24 . Luis Montiel ( " Montiel " ), a Hispanic male, applied for the 2017 TEI

position. Montiel was employed as a W&S Heavy Equipment Operator.

Montiel met the minimum qualifications and was se lected to be interviewed.

25 . At the conclusion of the panel interviews, Montiel was the highest

scoring applicant. C t y . Ex. 20, In terview Score Sheet . As a result, Sifontes

reviewed MontielÔs personnel file. While doing so, she determined that he had

ne ver been disciplined. She ultimately selected Montiel for the 2017 TEI

position.

26 . At the evidentiary hearing, Titus took the position that he should have

been hired or promoted to the 2017 TEI position bec ause he was the "most

qualified . " This was the core and substance of his argument throughout the

hearing and arguments made by him thereafter.

27 . He also argued that the fact that he had been interviewed for the 2016

position " proved " that Respondent must have discriminated against him

when he was n ot promoted in 2017.

28 . It is understandable that such arguments would be made by any

individual unhappy with the selection of another person for a position he

desired and coveted. However apparent these arguments may seem, they are

unavailing and not pe rsuasive. Under the facts presented, there are several

reasons for this conclusion.

29 . First, Titus failed to identify anyone at Solid Waste who directly

discriminated or retaliated against him, nor did he present any d irect

evidence to that affect. More specifically, there was no evidence presented to

show that any blatant, direct , or overt statements, emails , or memos were

issued or made by management personnel or Sifontes , targeting him for

discrimination or failing to promote him because of his race, a ge, national

origin , or a disability. Damon v. Fleming Supermarkets of Fla., Inc ., 196 F.3d

1354, 1359 (11th Cir. 1999); Lee v. Miami - Dade Police Dep't , 2005 U.S. Dist.

LEXIS 22 890 (S.D. Fla. 2005 ) .

30 . Moreover, Titus failed to identify a similarly - situa ted comparator or

employee at MDC who was promoted to TEI and who had a disciplinary

record like his.

31 . Likewi se, he failed to prove that RespondentÔs consideration of his

disciplinary record was only a pretext for not hiring or promoting him. As will

b e discussed, this factor can be legitimately considered in cases involving

failure to hire or promote.

32 . Titus did not esta blish that the decision maker -- Sifontes -- was aware of

his age, disability, religion , or protected activity.

33 . Finally, there wa s not sufficient circumstantial evidence presented by

Titus under the burden shifting analysis outlined in McDonnell Douglas

Corporation v. Green , 411 U.S. 792 ( 1973), to carry his burden of proving a

circumstantial case of discrimination or retaliation.

C O NCLUSIONS OF L AW

34 . DOAH has jurisdiction of the subject matter and parties under the

Florida Civil Rights Act, and sections 120.569 and 120.57(1), Florida Statutes

(2019).

35 . The Florida Civil Rights Act of 1992 ( " Act " ), is codified in

s ections 760.01 t hrough 760.11, Florida Statutes, and s ection 509.092,

Florida Statutes.

3 6 . A " discriminatory practice, " is defined by the Act to include " any

practice made unlawful by the Florida Civil Rights Act of 1992. " § 760.02(4),

Fla. Stat.

37 . In this a dministrat ive hearing, Titus had the burden of proving his

case by a preponderance of the evidence. See Balino v. Dep ' t of H RS , 348 So.

2d 349, 350 (Fla. 1st DCA 1977).

Establishing a Prima Facie Case of Race, National Origin, Disability,

Religion , and Age Discrimin ation

38 . Sections 760.10 (1) (a) and (b) provide that it is an unlawful

empl oyment practice for an employer to discriminate on the ground of race,

color, religion, sex, pregna ncy , national origin, age, handicap, or marital

status against any individual wi th 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 indi vidual' s stat us as an

employee .

39 . The applicable law in this case is simple and straightforward. In order

to establish a prima facie case of discri mination, Titus must prove

four elements through direct or circumstantial evidence : (1) that he belongs

to a protected class; (2) that he was subjected to an adverse employment

action; (3) that he was qualified to perform the job in question ; and (4) that

the County treated " similarly situated " employees out side his class more

favorably. Lewis v. City of Union City, Ga. , 9 18 F.3d 1 213, 1220 - 21 (11th Cir.

2019). Here, Titus arguably met the first three prongs but did not establish

the fourth.

40 . More to the point, Titus was required to prove that the comparator

employee who go t the promotion, Montiel, was similarly situate d in all

material respects when he was hired for the 2017 TEI vacancy. Id . Of

particular consequence to this case is the determination by the undersigned

that Montiel was not similarly situated in all material respects to Titus.

41 . Unlike Titus, Montiel had not been previously disciplined. This was a

significant distinguishing factor between the two applicants.

42 . Moreover, the prior misconduct resulting in discipline for Titus raised

legitimate concerns for Sifontes about TitusÔs ability to serve as a T EI.

43 . There is a significant body of federal case law which emphasizes the

principle that disciplinary issues of an applicant may be considered and serve

as a legitimate basis to reject one candidate over another . See generally ,

Horn v. City of Clevelan d 674 Fed. Appx. 511 (6th Cir. 2017) (p ast

performance and prior discipline of an employee may be legitimate reasons

for not promoting); Radue v. Kimberely - Clark Corp. , 219 F.3d 612 ( 7th Cir.

2000) (j ob performance problems related to one employee and not an other,

make the two materially different, and not similarly situated); Holmes v. Am.

Drug Stores, Inc. , 2003 U. S. LEXIS 11992 ( N.D. Il . 2003) ( " [o] ne feature

distinguishing Stivers from Holmes is that Holmes was disciplined for using

profanity, whereas Stiv ersÔ disciplinary record was clean. " ).

44 . Likewise, proving that an employee is more qualified does not mean

that the employer discriminated or had a pretext for hiring another person.

Lee v. GTE Fla. Inc. 226 F.3d 1249 , 1253 (11 th Cir. 2000). Lee involve d sex

discrimination, but its comments regarding discrimination related to

promotional opportunities are worth noting:

In a failure to promote case, a plaintiff cannot

prove pretext by simply showing that she was

better qualified than the individual who re ceived

the position that she wanted. A plaintiff must show

not merely that the defendant's employment

decisions were mistaken but that they were in fact

motivated by sex. See Alexander v. Fulton County ,

207 F.3d 1303, 1339 (11th Cir. 2000). We have

explain ed that " a plaintiff may not establish that

an employer's proffered reason is pretextual merely

by questioning the wisdom of the employer's

reasons, at least not where È the reason is one

that might motivate a reasonable employer. "

Combs v. Plantation Patt erns , 106 F.3d 1519, 1543

(11th Cir. 1997), cert. denied, sub nom., Combs v.

Meadowcraft Co. , 522 U.S. 1045, 118 S. Ct. 685,

139 L. Ed. 2d 632 (1998); see also Damon v.

Fleming Supermarkets of Florida, Inc., 196 F.3d

1354, 1361 (11t h Cir. 1999), cert. deni ed, U.S. , 120

S. Ct. 1962, 146 L. Ed. 2d 7 93 (2000) (emphasizing

that courts " are not in the business of adjudging

whether employment decisions are prudent or fair.

Inste ad our sole concern is whether unlawful

discriminatory animus motivates a challenged

em ployment decision. " ) .

No Evidence o f Pretext

45 . Even if Titus had established a prima facie case of discrimination,

which he did not, he failed to prove that SifontesÔs decision not to select him

for TEI was a pretex t for unlawful discrimination. St. Mar yÔs Honor Ctr. v.

Hicks , 509 U .S. 502, 513 (1993) (i n order to prove pretext, a plaintiff must

demonstrate that the reason is not only false, but also that intentional

discrimination was the real reason).

46 . MDC had legitimate , non discriminatory reasons t o not hire or promote

Titus for the 2017 TEI position , not the least of which was it s legitimate

concern that he did not have the temperament, character , or disposition to be

placed in an instructional or training role.

47 . Likewise, the undersigned does n ot sit as a superior human resource

department to second guess the wisdom of MDC's employment decisions.

Fleming , 196 F.3d at 1354, 1359 .

48 . Finally, the decision maker, Sifontes, was the same race (black) and of

the same country (Trinidad ) as Titus. This seriously undercuts TitusÔs claim

of discrimination by Sifontes. B elser v. City of Decatur , 2007 U.S. Dist. LEXIS

105352 (N.D. Ga. Dec. 12, 2007) (granting summary judgment in Title VII

discrimination case because " the ultimate decision maker È was the sam e

race as plaintiff, which undercuts any evidence of discrimination " ) , citing

Holston v. Sports Auth., Inc. , 136 F. Supp . 2d 1319, 1335 (N.D. Ga.

2000) (because the race of plaintiff and decision maker are the same " the

employee faces a more difficult burd en in establishing that a discrimin atory

animus played a role " ).

Titus Cannot Establish a Prima Facie Case Of Retaliation 3

49 . Because Titus did not present any direct evidence of retaliation, his

claim of retaliation may still be proven by circumstantia l eviden ce.

50 . In order to prove a prima facie case of unlawful retaliation under

c hapter 760, Florida Statutes, by indirect or circumstantial evidence,

Petitioner must establish that: (1) he engaged in protected activity; (2) he was

subjected to an adver se employment action; (3) and that the protected

activity and adverse action are causally related. Johnson v. Miami - Dade C ty . ,

948 F.3d 1318 (11th Cir. 2020)

51 . Here, Titus failed to establish the third prong because the undisputed

evidence ref lects that the decision maker -- Sifontes -- had no knowledge of

TitusÔ s protected activity.

52 . In addition to that , there was no persuasive evidence that his

protected activity and the failure to promote were causally related. That is,

Titus did not prove that he was not promoted because of any protected

activity, nor did Titus show that his protected activity was a " but for cause " of

the alleged failure to promote. Palm B each C ty . School Board v. Wright , 21 7

So. 3d 163 (Fla. 4th DCA 2017) ( " Nassar requires Title VII re taliation claims

to employ the " but - for " causation standard. That standard must be applied

with equal force to FCRA claims . " ).

3 Section 760. 10(7) , Fl orida Statutes, provides :

It is an unlawful employment practice for an employer È to

discriminate against any person because that person has

opposed any practice which is an unlawful employment

practice under this section.

53 . Based on the findings of fact herein and a consideration of the totality

of the circumstances, there was insufficient evi dence or proof that MDC

discriminate d or retaliated against Titus. Titus failed to establish that the

County committed an unlawful discriminatory employment action against

him within the meaning of the FCRA.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that FCHR find in favor of Respondent and dismiss

Petitioner 's claim with prejudice. The undersi gned also recommends that

after considering the findings herein , FCHR determine the appropriate

disposition of RespondentÔs Amended Motion for Attorney Fees , filed

January 16, 2020.

D ONE A ND E NTERED this 13th day of March , 2020 , in Tallahassee, Leon

County, Florida.

S

R OBERT L. K ILBRIDE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Bui lding

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 13th day of March , 2020 .

C OPIES F URNISHED :

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399 - 7020

(eServed)

William X. Candela, Esquire

Dade County Attorney's Office

111 Northwest 1st Street , Suite 2810

Miami, Florida 33128

(eServed)

Selwy n Don Titus

Apartment 601

14030 Biscayne Boulevard

Miami, Florida 33181

(eServed)

Cheyenne Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399 - 7020

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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.