Petition for Writ of Certiorari to Review Quasi-Judicial Action: Board of Local Government: EMPLOYMENT – City is unable to demonstrate that the Human Relations Board departed from the essential requirements of law in overturning the hearing officer’s Recommended Order to dismiss sexual harassment complaint – Board properly conducted a de novo review of the record in concluded that there was reasonable cause to believe that Henault was retaliated against – administrative proceedings were governed by Interlocal Agreement – any procedural irregularities were waived by the City – Petition denied.  City of Pinellas Park v. Henault, No. 03-5004CI-88A (Fla. 6th Cir. App. Ct. April 1, 2004).

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

CITY OF PINELLAS PARK,

                        Petitioner,

vs.                                                                                            Appeal No. 03-5004CI-88A

                                                                                                UCN522003AP005004XXCIXX

TIMOTHY HENAULT,

                        Respondent.

________________________________________/

           

ORDER DENYING PETITION FOR CERTIORARI

 

            THIS CAUSE came before the Court on the Petition for Writ of Certiorari, filed by the City of Pinellas Park (City), the Response, filed by the Timothy Henault (Henault), and the City’s Reply thereto.  Upon consideration of the same and being otherwise fully advised, the Court finds that the Petition must be denied as set forth below.

            The City filed its Petition following the entry of the Order Overturning Administrative Law Judge’s Recommendation for Dismissal and for Finding of Reasonable Cause, on April 21, 2003, by the City of St. Petersburg, Human Relations Review Board (Board). [1]   In conducting a de novo review of the record, including the findings of fact, conclusions of law, and recommendation of the Administrative Law Judge, Judge Quattlebuam, [2] to dismiss Henault’s Complaint, the Board found that there was reasonable cause to believe Henault was retaliated against by the City in terminating his employment after complaining of sexual harassment.  In overturning Judge Quattlebaum’s Recommended Order, the City directed that the case be remanded for a determination of damages to be awarded to Henault.  In reviewing the administrative action taken in the proceedings below, this Court must consider whether the City was afforded procedural due process, whether the essential requirements of law were observed and whether the Board’s Order is supported by competent substantial evidence.  See Haines City Community Development v. Heggs, 658 So.2d 523, 530 (Fla. 1995)(setting forth the standard of certiorari review of administrative action). 

            Accordingly, the record shows that Henault began working for the City in October 1990, as an Automotive Service Worker.  He was promoted to the position of Automotive Mechanic I on April 15, 1992, and promoted to the position of Automotive Mechanic II on December 8, 1993, the position Henault held until his termination on February 6, 1996.  Following his termination, Henault filed a Charge of Discrimination (Charge), on June 14, 1996, alleging that during his employment, he was subjected to sexual harassment and, after he filed a grievance, was subjected to a hostile work environment and ultimately fired in retaliation for filing the grievance.  Henault brought the Charge against the City pursuant to Title VII, of the Civil Rights Act of 1964, and Chapter 70 of the Pinellas County Code, which “prohibits discrimination in employment on the basis of race, color, religion, sex, national origin, age, disability and marital status.”  As stated on the face of the Charge, Henault filed his complaint with the St. Petersburg Human Relations Division (Division). 

            More specifically, Henault’s position was that his termination was retaliation for complaining in May 1995, along with several co-workers, about sexually harassing behavior from a male co-worker, Ben Lanahan (Lanahan).  The record shows that, following the sexual harassment complaint, a meeting was held with Lanahan, his immediate supervisor, Ben Lacy, and other City personnel.  As stated in the Violation Information, filed by the City on June 23, 1995, Lanahan admitted that “he had touched various co-workers on their private body parts and exposed himself sexually to them during work hours” and that this behavior had “been occurring over a minimum period of several months.”  The City ultimately decided to suspend Lanahan for two weeks without pay. [3]  

            On November 6, 1996, the City filed its position statement with the Division’s Compliance Supervisor, outlining Henault’s disciplinary record.  The City maintained that Henault’s termination was warranted for a series of continuous violations of the City’s Rules and Regulations, to wit: (1) August 2, 1995, first violation of Group II offense, “[d]riving a motor vehicle while on duty without a valid State of Florida driver’s license, or failing to report the loss or suspension of a driver’s license when required to drive on duty”; [4] (2) January 12, 1996, second violation of a Group II offense, “[l]eaving the job during regular work hours without permission” and “[u]nauthorized use of City vehicles, property and/or equipment”; [5] and, (3) January 26, 1996, Group III offense, “[d]eliberately misusing, destroying or damaging any City property or the property of any employee” and “[t]heft or removal from City locations without proper authorization of any City property or property of any employee.” [6]

            On July 5, 2000, [7] a Human Relations Officer from the Division sent a letter to the City advising it that “[a]s a result of the investigation of this matter, it has been determined that Reasonable Cause exists to believe that the Respondent did commit a discriminatory practice as alleged in the Charge of Alleged Discrimination.”  The letter further directed that “Chapter 15 of the St. Petersburg Code, as amended, requires that an effort to be made to conciliate the issues when it is determined that Reasonable Cause exists to believe that a violation occurred.”  (emphasis original).  Henault accepted the Division’s Invitation to Participate in Conciliation, on July 11, 2000, and the City accepted the same Invitation on August 1, 2000.  

            Conciliation failed and, on May 18, 2001, the Division issued its Complaint, which set forth the Division’s jurisdiction, venue, Henault’s allegations and prayer for relief.  The matter was then referred back to the Pinellas County Attorney’s Officer that, on September 28, 2001, referred the Henault case, along with two others, to the Division of Administrative Hearings to be heard by an administrative law judge.  The letter specifically provides that,

These cases are based upon complaints of violations of Pinellas County Code Chapter 70.  There [sic] were investigated by personnel from the St. Petersburg Community Affairs Office, in accordance with the Interlocal Agreement between Pinellas County and the City of St. Petersburg.  Although the violations fall under Chapter 70 of the Pinellas County Code, the procedures for the administrative hearing will be those outlined at Section 15-45 of the St. Petersburg Municipal Code.  A copy of the pertinent provisions of the St. Petersburg Municipal Code have been included with each complaint.  (emphasis added).     

 

            On February 5 and 6, 2002, Henault’s Complaint was tried before Judge Quattlebaum, after which both parties submitted proposed findings of fact and conclusions of law.  On May 1, 2002, Judge Quattlebaum entered his Recommended Order finding that Henault failed to state a prima facie case of retaliation and recommended that Henault’s Complaint be dismissed by the City.  At the conclusion of the Recommended Order, the parties are given a “Notice of Right to Submit Exceptions” which states: “All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order.  Any exceptions to the Recommended Order should be filed with the agency that will issue the Final Order in this case.  (emphasis added).

            On May 31, 2002, Henault filed his Exceptions to Recommended Order and the City filed its Response thereto on July 1, 2002. [8]   In its Response, the City objected, for the first time, to the Division’s authority to process Henault’s complaint, specifically arguing that the Board did not have the authority to conduct a de novo review of the Recommended Order, as provided by the City’s Code, Section 15-45(g)(1).  The City took no further action and the Exceptions came before the Board on February 7, 2003.

            From the outset, the Chair of the Board outlined the history of the case and asked “[d]oes anyone see this case differently?,” upon which no objection was made by the City.  Henault then presented his oral argument, followed by the City’s oral argument, at the beginning of which the City stated “[o]bviously we have a little bit of a disagreement about the standard of review.”  At the conclusion of oral argument, the Board voted to overturn the Recommended Order. [9]   The Board reconvened on April 9, 2003, to clarify its position on Henault’s claim of retaliation.  As set forth in the Board’s Order, entered April 21, 2003, the Board concluded that, “there is Reasonable Cause to believe that the Charging Party was Retaliated against” and remanded on the case for a determination of damages. 

            The key issue raised by the City is whether the Board’s application of the de novo review standard in Section15-45(g)(1) of the City’s Code, rather than the certiorari review provided for in Section 70-77(g)(14) of the County’s Code, to the Recommended Order departed from the essential requirements of law.  Under the facts of this case, the Court finds that there has been no violation of a clearly established principle of law.  See Heggs, 658 So.2d at 528.

            As set forth above, from the initial filing of Henault’s Charge through the Board’s consideration of Henault’s Exceptions and the final entry of Board’s Order, the proceedings were governed at each stage by Chapter 15, of the St. Petersburg City Code, pursuant to the Interlocal Agreement entered into between Pinellas County and the City of St. Petersburg on March 12, 1996.  In the Interlocal Agreement, the County delegated “authority for the investigation, processing, conciliation and enforcement of complaints brought under Chapter 70 of the Pinellas County Code which relate to discrimination in employment and public accommodations, to the City of St. Petersburg for that portion of Pinellas County south of Ulmerton Road.”  By its plain language, the Interlocal Agreement was a procedural agreement and applied to the processing of Henault’s Charge, filed against the City three months later.  Hence, case law addressing whether procedural statutory changes are applicable to pending actions are not relevant to this case.  See e.g. Lawrence v. State, 691 So.2d 1068, 1072 (Fla. 1997)(citing Windom v. State, 656 So.2d 432, 439 (Fla. 1995), cert. denied, 516 U.S. 1012 (1995)).  Even, assuming arguendo, that the 1996 Interlocal Agreement wasn’t applicable, then the previous Interlocal Agreement, entered June 26, 1984, which contained similar language, would have governed the proceedings.  There is nothing in the record to suggest that the outcome would have been any different if the Charge had been processed under the 1984 Agreement.

            Further, as the City was on notice from the inception of these proceedings that Chapter 15 governed the processing of Henault’s complaint but did not object until July 1, 2002, the Court finds that any procedural irregularities perceived by the City were waived.  See Dubowitz v. Century Village East, 385 So.2d 1116, 1117 (Fla. 4th DCA 1980)(stating that “a party who fails to make a timely objection to what he perceives to be procedural irregularities will be deemed to have waived the same by acquiescence”).  The Court finds that, with the exception of the indifference to the timelines provided by the Code, [10] the Division followed the Code as mandated by the Interlocal Agreement.  Indeed, the City does not argue that the Division failed to follow the Code and the Court finds that the Division properly acted in their administrative capacity pursuant to the lawfully enacted provisions in Chapter 15. 

            Additionally, the Court finds that certiorari review pursuant to Chapter 70 was impossible under the facts of this case since Judge Quattlebaum never issued a final order as outlined by Section 70-77(g)(13), and, as set forth in the “Notice of Right to Submit Exceptions,” had no intention of doing so.  In the City’s Response to Henault’s Exceptions, the City simply objected to a de novo review, but never suggested that the cause be remanded to Judge Quattlebaum for a final order.  Accordingly, the Court finds that the City was accorded due process and that the essential requirements of law were observed in the proceedings below.  However, in reaching this conclusion, the Court notes that the interchangeable use of the terms “hearing examiner” and “administrative law judge” did create some confusion in the proceedings below which, the Court would suggest, may need further clarification by the Division in such future proceedings.   

              Lastly, the Court finds that there is competent substantial evidence in the record to support the Board’s Order.  See DeGroot v. Sheffield, 95 So.2d 912, 916 (Fla. 1957)(defining competent substantial evidence as such evidence “sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached”).  In reading the transcripts of the hearings before the Board, it is apparent that the Board deliberated the issues presented by the transcript, the exceptions, and the briefs that were filed.  The record supports the Board’s conclusion that the sequence of events following Henault’s complaint of sexual harassment against Lanahan were causally connected to Henault’s termination and that a prima facie case of retaliation by the City had been established.

            Therefore, it is,

            ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is hereby denied.

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of April 2004.

 

           

           

                                                                                    

           

                                                                        ___________________________________

                                                                        JOHN A. SCHAEFER

                                                                        Circuit Judge, Appellate Division

 

 

 

 

 

Copies furnished to:

 

Deborah C. Brown, Esquire

501 East Kennedy Blvd., Suite 1400

Tampa, FL 33602

 

J. Robert McCormack, Esquire

2555 Enterprise Road, Bldg. 15

Clearwater, FL  33763



[1] The Board is not a party to these appellate proceedings.  As further explained below, the Board processed Henault’s employment retaliation complaint, and ultimately entered its Order, pursuant to the Interlocal Agreement entered into between the City of St. Petersburg and Pinellas County.

[2] It is unclear why the Board chose to utilize an “administrative law judge” provided by the Division of Administrative Hearings versus a “hearing examiner” provided by the Human Relations Division, as delineated by the City of St. Petersburg Code (Code), Section 15-45(f).  Nonetheless, Judge Quattlebaum was not acting in his capacity as an administrative law judge in hearing Henault’s complaint, rather as a hearing examiner pursuant to Section 15-45(f).

[3] Although not central to the issues raised in the Petition, the Court finds these undisputed facts relevant, as they were clearly consider by the Board in overturning the Judge Quattlebaum’s recommendation for dismissal. 

[4] Henault drove a City vehicle without a valid driver license from March 28, 1995, to August 1, 1995. 

[5] Henault, along with a co-worker, left his job in a City vehicle to pick up breakfast from McDonald’s. 

[6] The City discovered a lion’s head in Henault’s yard which was allegedly City property.  Henault has always denied that he stole City property.

[7] There is no explanation in the record as to why it took almost 4 years to complete this investigation.  The Code, Section 15-45(b)(1), states that the “[u]pon receipt of the charge, the Human Relations Officer shall commence an investigation and the investigation shall be completed within 60 days.  (emphasis added).  Indeed, with few exceptions, the Court finds that the time parameters set forth in the Code were not followed.

[8] The exceptions were not timely filed under the 15-day parameter set forth in the Recommended Order, but were timely pursuant to the Code, Section 15-45(f)(g).

[9] Neither party sought to have the City consider additional testimony and/or evidence at the review hearing as provided for by the Section 15-45(g)(2).

[10] The Court notes that neither party objected to the Division’s tardiness in processing Henault’s Charge.