BRETT

J. SCHNEIDER, ESQ.
BSCHNEIDER@WSH‐LAW.COM
May 24, 2018

Via EEOC Electronic Filing Portal

Linda Byars
US Equal Employment Opportunity Commission
Miami Tower
100 South East 2nd Street
Suite 1500
Miami, Florida 33131‐2135

Re: Steve Robert v. City of Boca Raton Police Dept.
EEOC Charge No.: 510‐2018‐02357

Dear Ms. Byars:

This law firm represents the Respondent, the City of Boca Raton (the “City”),
in connection with the above‐referenced charge of discrimination filed by Charging
Party, Steve Robert (the “Charge”). For your convenience, the Charge is attached
hereto as Exhibit 1. The following is the City’s statement of position in response to
the Charge.1 This position statement contains confidential information and the City
requests that the EEOC keep it and any attachments confidential and not share its
contents with Charging Party unless required to do so by law.

PRELIMINARY STATEMENT

In his Charge, Charging Party claims the City violated Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e, et. seq. (“Title VII”), when it asked Charging

1 The statement of facts and position set forth herein are based upon an investigation of the facts at

the time of this position statement. By submitting this statement, the City in no way waives its right
to present new or additional facts or arguments based upon subsequently acquired information or
evidence. Further, this position statement, while believed to be true and correct, does not
constitute an affidavit and is not intended to be used as evidence of any kind in a court proceeding
in connection with this or any other charge, but is intended solely for the purpose of the EEOC’s
investigation.

1200 North Federal Hwy., Suite 312, Boca Raton, FL 33432 | 561-835-2111 | www.wsh-law.com
Lynda Byars
May 24, 2018
Page 2

Party to resign from his position as a probationary police officer with the City’s
Police Department (the “Department”) due to his race (Black), while allegedly
similarly situated White probationary police officers were not asked to resign. As
set forth herein, Charging Party’s allegation is completely without merit and should
be summarily dismissed.

Charging Party cannot establish a prima facie case of race discrimination

under Title VII because he cannot establish that the City treated similarly situated
employees outside of his protected classification more favorably than it treated him.
Though Charging Party claims that he never had any performance issues and he
never received any counseling outside of a single Memorandum of Counseling
issued in May 2017, the record clearly demonstrates otherwise. On numerous
occasions during his probationary employment, Charging Party failed to comply
with Department policies, both in his performance in the field and administratively.
As a result, Charging Party was repeatedly counseled, both verbally and in writing,
for these deficiencies. Charging Party’s field and administrative performance
became so poor that on May 13, 2017, while Sergeant Anthony Wollschlager
counseled Charging Party about his poor performance, he also asked Charging Party
whether he was experiencing a personal or family situation which contributed to his
serious performance deficiencies. As a result of his ongoing poor performance, the
City determined that Charging Party would not complete his probationary period.
Rather than terminate Charging Party’s employment, the City offered Charging Party
the opportunity to resign his employment. Charging Party thereafter resigned,
effective May 31, 2017.

Charging Party’s claim that other probationary officers committed more

egregious infractions and were not subjected to the same discipline is without merit.
Neither officer identified by Charging Party (i.e., Officers Derek McQuiston and
Travis Rafalko) made the same, repeated administrative and field errors as did
Charging Party and, accordingly, neither is a similarly situated comparator.

Moreover, even if Charging Party could establish a prima facie case of

discrimination (which he cannot), the City had legitimate, non‐discriminatory
reasons for asking Charging Party to resign, which are clearly not pretextual. In
particular, Charging Party repeatedly failed to submit timely reports, submitted
reports with errors, lost records, failed to timely follow up on requests, and made
mistakes in the field which demonstrated a lack of knowledge of Department
policies and procedures, despite having received training on said policies and
procedures. As such, the Charge should be dismissed.

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May 24, 2018
Page 3

STATEMENT OF FACTS

A. Background Information Regarding the City.

The City is an equal opportunity employer. It has adopted and operates

under express, written policies which strictly prohibit discrimination and
harassment based upon race, color, creed, religion, national origin, sex, sexual
orientation, gender identity or expression, age, political affiliation, disability, or any
other characteristic or basis protected under federal or state law, in all aspects of its
personnel policies, programs, practices and operations. A copy of the City’s Equal
Employment Opportunity Policy (contained within the Personnel Rules and
Regulations, Art. 3) is attached hereto as Exhibit 2. The City further exhibits its
commitment to maintaining a work environment free of discrimination and
harassment by encouraging all employees to report incidents of alleged
discrimination and harassment, and ensures that all complaints are promptly
investigated. See id. All persons who violate the Policy are subject to disciplinary
action, up to and including termination of employment.

B. Charging Party’s Employment with the City.

On January 4, 2016, Charging Party was hired by the City as a probationary

police officer. See Exhibit 3. From January 25, 2016 until July 12, 2016, Charging
Party attended the Police Academy. Upon completing the academy, Charging Party
commenced working as a full time probationary patrol officer, effective July 14,
2016.2 See Employee Status Form, attached hereto as Exhibit 5. Throughout his
brief employment with the City, Charging Party demonstrated continual poor
performance, for which he was regularly counseled. These deficiencies are
summarized below.

i. Performance Deficiencies:

On March 9, 2016, Charging Party contacted Investigator Will Morales (who

was not his supervisor) to advise that he was not feeling well and would be taking
off the following day (March 10, 2016). See Records Re. March 10, 2016 Incident,
attached as hereto as Exhibit 6. This was in violation of Department Policy, which
required Charging Party to personally notify his supervisor if he was unable to
report for scheduled duty. See Departmental Standards Directive 22.100, p.20 (Sick

2 Pursuant to the collective bargaining agreement between the City and the Fraternal Order of

Police, Lodge 35 (the “CBA”), all new police officers are considered probationary employees for a
period of one (1) year following their completion of the police academy. Article 12 of the CBA,
which addresses probationary status, is attached hereto at Exhibit 4.
Lynda Byars
May 24, 2018
Page 4

Leave) (attached hereto as Exhibit 7). On March 10, 2016 (while supposedly home
sick), Charging Party was pulled over for speeding by Officer John Brock. See Exhibit
6. At the time, he stated that he was driving to pick up his family from the airport.
After Officer Brock reported the incident to Charging Party’s then‐supervisor,
Sergeant Chris Suarez, Sergeant Suarez counseled Charging Party that he should
have requested Sergeant Suarez’s authorization for the time off and, if Charging
Party was indeed sick, he should not have been driving around the City.3 Charging
Party was further counseled for failing to notify Sergeant Suarez that he was pulled
over for speeding by a fellow officer.

On January 13, 2017, Charging Party improperly handled a “plain smell”
search on several people following a traffic stop. See Correspondence Re. “Officer
Robert 1/13/2017 Coaching,” attached hereto as Exhibit 8. Specifically, Charging
Party failed to follow Department procedures when he told all of the occupants of
the vehicle to exit the vehicle without searching any of them, after he detected the
plain smell of marijuana inside a vehicle. Id. Eventually, after Charging Party
allowed all of the subjects to sit on the curb for some time, Charging Party searched
the subjects. Id. Charging Party was thereafter coached on proper procedures and
protocol for handling traffic stops and searches. Id.

On January 30, 2017, Charging Party was verbally counseled by his then‐
supervisor, Sergeant Yvette Vasquez‐Bello, for attempting to skip Department‐
required roll call to go on duty directly from his extra duty details in violation of
Departmental Standards Directive 41.100, p.12 (attached hereto as Exhibit 9)
(providing that it is an officer’s responsibility to attend shift briefings/meetings on
time) and Departmental Standards Directive 26.100, p.3 (attached hereto as Exhibit
10) (requiring officers to report for duty, roll call, and inspection at the time and
place specified by their supervisor). Sergeant Vasquez‐Bello reminded Charging
Party of the necessity of attending roll call, and instructed Charging Party not to
select any more extra duty detail assignments that would interfere with his
regularly‐scheduled shift.

On March 14, 2017, while assigned to a burglary suppression detail, Charging
Party took an unauthorized break, traveled outside of his assigned area, failed to
answer his radio, and logged out of his computer to intentionally conceal his
unauthorized location. See Memo Re March 14, 2017 Incident, attached hereto as
Exhibit 11. Charging Party was thereafter counseled by Sergeant Seth Dubinsky for

3 “If injured or ill, the employee shall remain at his/her residence during his/her normal duty

hours, except to consult a physician, attend a medical facility, or obtain prescriptions.”

Departmental Standards Directive 22.100, p.20, attached hereto as Exhibit 7.
Lynda Byars
May 24, 2018
Page 5

violating the following policies: 1) Departmental Standards Directive 22.100, p.11

(requiring employees to remain in assigned zones until cleared, requiring officers to
keep their radios turned on, requiring employees to take their breaks in their
assigned zone or adjacent zone, and requiring officers to advise Communications of
their exact location upon arrival at meal or break period); 2) Departmental
Standards Directive 26.100, p.2 (requiring employees to remain in their zone or
area to which they are assigned unless otherwise directed or authorized); 3)
Standard Operating Procedure 81.02, p.3 (requiring employees to keep the
Communications Section advised and updated on their current status and location,
and to acknowledge and give their location when called), and; 4) Departmental
Standards Directive 41.237, p.4 (requiring employees to log into the Visual MCT
program). See respective policies, attached hereto as Exhibits 7, 10, 12, and 13.

On April 29, 2017, Charging Party handled a domestic battery investigation
which involved developing probable cause to arrest a male for punching his wife in
the face. See Memorandum of Counseling, attached hereto as Exhibit 14. Because
the male had left the scene and was not expected to return, Charging Party was
instructed to leave a probable cause affidavit in the road patrol bin so that dayshift
units could attempt to arrest the male the following day. Id. Charging Party
improperly failed to sign the probable cause affidavit and failed to inform his
supervisor, or the watch commander, that he had an active case that needed follow
up. Id.; see also, Departmental Standards Directive 05.905, p.6 (Domestic and Dating
Violence) (which requires officers, upon determining that a domestic violence crime
was committed but where the suspect has left the scene, to “make every attempt to .
. . [p]repare a probable cause affidavit and complete other appropriate paperwork
for referral to the State Attorney’s Office in accordance with Department policy; e.g.,
routing to the Investigative Services Bureau for follow up, if the offender cannot be
located”), attached hereto as Exhibit 15.

On April 30, 2017, Charging Party failed to obtain a statement from a victim in
a domestic assault case in violation of Departmental Standards Directive 05.905, p.4
(requiring any statements of the victim, suspect and/or witnesses to be recorded).
See Exhibit 15. Sergeant Dubinsky spoke with Charging Party about his error, which
required two other officers to return to the scene to obtain the victim’s statement.

ii. Report Writing Deficiencies:

Charging Party also made a litany of mistakes in connection with report

writing and timely submission of reports, which are summarized below.

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May 24, 2018
Page 6

 On January 27, 2017, Charging Party submitted a traffic citation which

cited the incorrect statute or sub‐section. See Composite Exhibit 16.

 On January 27, 2017, Charging Party failed to submit a report
regarding an incident (No. 2017‐1379). See Correspondence Re.
“Missing Report 2017‐1379,” attached hereto as Exhibit 17. This was
in violation of Department Policy, which requires reports to be
submitted by the end of the tour of duty during which the activities
were performed. See Departmental Standards Directive 82.02, p.4
(Reporting), attached hereto as Exhibit 18.

 On February 3, 2017, Sergeant Vasquez‐Bello counseled Charging party
generally about his untimely report writing and follow up deficiencies.

 On February 6, 2017, Charging Party had to prepare a correction letter
after he cited an incorrect subsection within a citation (Citation No.
A5600CE). See Exhibit 19.

 On February 24, 2017, Assistant State Attorney Lynn O. Mindlin
contacted Charging Party to request that he submit an amended
Probable Cause Affidavit, because had spelled the defendant’s name
incorrectly in his prior draft. See Correspondence Re. “Desimone,”
attached hereto as Composite Exhibit 20. Because Charging Party
failed to timely update the correct spelling on that Affidavit, Ms.
Mindlin was forced to contact him again on March 10, 2017 and April
24, 2017. Id. Ultimately, Ms. Mindlin contacted Records Management
Supervisor Adria Holbert to express her “frustration” that she had not
received an amended Affidavit from Charging Party, which “could
jeopardize the case.” Id. The corrected Supplemental Report (with the
correct spelling) was not received by the court clerk until June 2, 2017.
Id.

 On February 27, 2017, during an audit of 2016 Uniform Traffic
Citations, the Department discovered that Charging Party had failed to
submit proper documentation for two (2) citations that he had issued
(No. A55WLME and A55WLNE). See Exhibit 21; see also, Exhibit 18.
Because he was unable to locate the missing citations, Charging Party
was required to submit VOID requests to the Records Department,
thereby voiding the citations altogether. Id.

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May 24, 2018
Page 7

 On March 23, 2017, Department Records Clerk Ellen Kress discovered

that Charging Party had failed to submit Report No. 2017‐3359, dated
March 5, 2017. See Correspondence Re. “Missing Report 2017‐3359,”
attached hereto as Exhibit 22. Because Charging Party did not respond
to Ms. Kress’ request, on March 31, 2017, Ms. Kress notified Charging
Party’s then‐supervisor, Sergeant Yvette Vazquez‐Bello, who spoke to
Charging Party about the error. Id.

 On March 27, 2017, Records Clerk Grace Rosa contacted Charging Party
because he had failed to submit both a written victim statement and a
defendant’s sworn statement regarding Case no. 17‐3668, despite
having indicated that he received statements from these individuals.
See Correspondence Re. E‐file Case #17‐3668, attached hereto as
Composite Exhibit 23. On March 30, 2017, after Charging Party failed
to respond to Ms. Rosa’s request, Ms. Rosa sent additional
correspondence to Charging Party. Id. On April 3, 2017, Charging
Party responded to Ms. Rosa, stating that he did “not have a statement
for this case.” Id. This required Records Supervisor Debbie Callahan to
remind Charging Party of his prior statement (confirming that he had,
indeed, obtained a victim statement) and to state, “This will need to be
corrected . . . ASAP.” Id. After twelve (12) days elapsed without a
response from Charging Party, on April 17, 2016 Ms. Callahan followed
up with Charging Party and warned him, “Please see that this is
addressed ASAP or I will have to take it up the chain of command.”
Id. (emphasis added). Incredibly, despite his previous statement that
he did not obtain a statement from the victim, on April 18, 2017,
Charging Party responded to Ms. Callahan that he “was finally able to
locate that witness statement.” Id.

 On March 30, 2017, Sergeant Vazquez‐Bello had a coaching session
with Charging Party about overdue cases that he was assigned for
follow up.

 On April 18, 2017, Ms. Kress contacted Charging Party after discovering
that he had failed to submit a report regarding case number 2017‐
5505. See Correspondence Re. “Missing Report 2017‐5505 Traffic
Stop,” attached hereto as Exhibit 24; see also, Exhibit 18. After
Charging Party failed to respond, on May 4, 2017, Ms. Kress sent a
second request to Charging Party regarding the status of the missing
Lynda Byars
May 24, 2018
Page 8

report and, additionally, requested a missing report regarding a second

case (number 2017‐6168). Id.

 On April 28, 2017, Sergeant Jeremy Codling conducted a coaching
session with Charging Party regarding a late‐submitted accident report
which contained numerous errors. The report, which Charging Party
submitted on April 19, 2017, pertained to an accident which had
occurred on April 15, 2017. Once again, Charging Party was in
violation of Departmental Standards Directive 82.02, p.4 (Exhibit 18),
which requires reports or forms relating to daily activities to be
completed and submitted by the end of the tour of duty during which
the activities were performed. Sergeant Codling counseled Charging
Party about the importance of submitting reports in a timely manner.

 On May 6, 2017, Sergeant Codling had a coaching session with Charging
Party, wherein he addressed several of Charging Party’s errors and
performance issues, including a mishandled trespass report,4 four
overdue follow‐up investigations,5 a second missing report notice, an
email from the State Attorney’s Office to the Records Department
regarding problems with a report prepared by Charging Party, and the
mishandled domestic violence call. Sergeant Codling informed
Charging Party that because he was already given verbal coaching by
Sergeant Vasquez‐Bello, he would likely issue written discipline to
Charging Party.6

 On May 10, 2017, Sergeant Codling again had to speak with Charging
Party about the mishandled domestic violence call (that they had
discussed on May 6, 2017), because Charging Party had still not filed
the report.

4 The mishandled trespass report generated two (2) emails from the Records Department for

failing to submit the report. When Charging Party submitted the report, the narrative was missing,
requiring an additional counseling session.

5 Of the four (4) overdue investigations, one (1) was due as far back as January of 2017.

6 This Counseling session came after Lieutenant Nelson Gullot spoke with his supervisors (on May

3, 2017) about his concern with Charging Party’s poor decision making, late reports, and
mishandling of a domestic dispute case.
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May 24, 2018
Page 9

 On May 12, 2017, Sergeant Codling prepared a Memorandum of

Counseling to Charging Party regarding two (2) specific issues. See
Exhibit 14. First, Charging Party was counseled for the incident he
investigated on April 15, 2017, for which he submitted a late report on
April 19, 2017 in violation of Departmental Standards Directive 82.02
(Reporting). See Exhibit 18. Because the late‐submitted report
contained multiple errors in need of correction by Charging Party, the
report was not finally approved until April 28, 2017. Id. Charging
Party was also counseled for the April 29, 2017 domestic battery
investigation (described above in Sec. B(i)), which Charging Party had
failed to process in accordance with Departmental Standards Directive
05.905 (Domestic and Dating Violence). See Exhibit 14; see also Exhibit
15. Charging Party was specifically advised that “Future policy
violations of this nature could result in more severe discipline, up to
and including termination.” Id.

 On May 12, 2017, Charging Party again failed to timely submit an
accident report regarding Case No. 2017‐006531.7 See Exhibit 25; see
also, Exhibit 18.

 On May 16, 2017, Charging Party submitted an incomplete package to
the state attorney for a warrant arrest, with Case No. 32‐2017‐
006169.8 See Exhibit 26; see also, Exhibit 18.

 On May 19, 2017, after Charging Party submitted a crash report that
needed to be returned multiple times for the same corrections to be
made, Sergeant Wollschlager counseled Charging Party regarding his
ongoing poor performance and failure to comply with Department
administrative procedures. See Exhibit 27. In light of Charging Party’s
ongoing and rampant performance deficiencies, Sergeant Wollschlager
asked Charging Party whether he was experiencing any personal
problems that could be contributing to his poor performance and
offered Charging Party the opportunity to participate in the Employee
Assistance Program (“EAP”). Id. However, Charging Party did not offer

7 The report was not completed by the end of Charging Party’s shift, and needed corrections. See

Exhibit 25; see also, Exhibit 18.

8 Charging Party failed to submit the Notice to Appear page with the package. See Exhibit 26; see

also, Exhibit 18.

Lynda Byars
May 24, 2018
Page 10

a reason for his poor performance in the field or his poor

administrative functioning, and refused any assistance. Id.

 On May 20, 2017, Charging Party turned in a late report regarding Case
No. 2017‐007269.9 See Exhibit 28; see also, Exhibit 18.

C. The City Requested Charging Party’s Resignation.

By May of 2017, Charging Party’s poor performance became so egregious that

Captain Steven Meyer felt it necessary to inform Deputy Chief Michele Miuccio about
the situation. Thereafter, Captain Meyer and Deputy Chief Miuccio met three (3)
additional times in May and discussed Charging Party’s performance deficiencies
and his lack of improvement.10 By May 30, 2017, it was clear that Charging Party
did not have the skills and attention to detail necessary to complete his probation
with the City and to continue to serve as a police officer. Based on the information
provided to her by Captain Meyer, Deputy Chief Miuccio determined that Charging
Party could not successfully complete probation. After consulting with, and
obtaining the approval of, Chief of Police Daniel Alexander, Deputy Chief Miuccio
authorized Captain Meyer to notify Charging Party that he would not be completing
his probationary period and that he could resign in lieu of being
terminated. Charging Party was provided with such notice on May 31, 2017 and he
opted to resign, effective May 31, 2017. See Letter of Resignation, attached hereto as
Exhibit 29.

LEGAL ARGUMENT

I. CHARGING PARTY CANNOT ESTABLISH A PRIMA FACIE CASE OF
RACE DISCRIMINATION.

Charging Party alleges that he was discriminated against based on his race
(Black), but Charging Party does not allege that anyone at the City ever made even
the faintest reference to his race. As such, he has no direct evidence of
discrimination. A complainant may establish a circumstantial, prima facie case of
discrimination under Title VII by showing: (1) he is a member of a protected class;

9 Charging Party made the arrest during the shift on May 19, 2017. See Exhibit 28; see also, Exhibit

18.
10
Captain Meyer and Deputy Chief Miuccio met on or about May 8, 15, 19, and 30.
Lynda Byars
May 24, 2018
Page 11

(2) he was subjected to an adverse employment action; and (3) his employer treated
similarly situated employees outside of his protected classification more favorably.
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Maniccia v. Brown, 171 F.3d
1364 (11th Cir. 1999); Holifield v. Reno, 115 F.3d 1555 (11th Cir. 1997).

For the purposes of this position statement, the City does not dispute that
Charging Party can show the first and second elements of a prima facie case.
However, as to the third element, Charging Party’s allegation that others outside of
his protected group (Officers Derek McQuiston and Travis Rafalko) “committed
more egregious infractions and were not disciplined to the same degree” is simply
untrue. As set forth in Sections B(i) and (ii) herein, Charging Party was counseled
multiple times for failing to timely submit his reports, for losing records, for
submitting incomplete records, for other report‐writing errors/deficiencies, for his
failure to follow Department policy, and for his failure to timely follow up.

By contrast, Officers Rafalko and McQuiston were counseled/coached for far
fewer infractions. During Officer Rafalko’s time on probation, he was coached on
January 26, 2017 (for failure to take appropriate action while trying to apprehend a
suspect) and on March 14, 2017 (for the incident in which he and Charging Party
logged out of their computers and took an unauthorized break outside of their
assigned area). Unlike Charging Party, Officer Rafalko successfully completed his
probation on June 26, 2017 without additional incident, counseling or reprimand.
Officer Rafalko did not demonstrate the same/similar performance deficiencies
(with report‐writing errors and untimely submission, failure to follow up)
demonstrated by Charging Party.

During Officer McQuiston’s time on probation, he was coached/trained on
May 17, 2017 (for a mishandled criminal charge). Officer McQuiston was also issued
a formal letter of reprimand on June 21, 2017, after he was involved in a traffic
crash. Id. Despite the seriousness of this incident (for which he was formally
reprimanded by the City), Officer McQuiston’s performance deficiencies are not the
same, in either substance or quantity, as those exhibited by Charging Party. Unlike
Charging Party, Officer McQuiston successfully completed his probationary period
on November 14, 2017.

Charging Party argues that because Officers McQuiston and Rafalko were
probationary officers who committed “similar” infractions, the City’s failure to
terminate these Officers (or to request their resignation) indicates that his own
(allegedly forced) resignation was discriminatory. However, in a wrongful
termination claim, “the comparison between employees should not focus on job
status.” Moore v. State of Alabama, 989 F. Supp. 1412, 1419 n. 6 (M.D. Ala.
Lynda Byars
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Page 12

1997), aff'd, 178 F.3d 1303 (11th Cir. 1999) (citing Rohde v. K.O. Steel Castings,
Inc., 649 F.2d 317, 322 (5th Cir. Unit A June 1981)); see also Derasmo v. City of
Gainesville, 1998 WL 798639 (N.D. Fla. 1998) (recognizing that probationary and
permanent employees are considered similarly situated if they are accused of the
same offense and treated differently). For the purpose of establishing a prima facie
case, “‘[w]hat is relevant is that two employees are involved in or accused of the
same offense and are disciplined in different ways.’” Pearson v. Macon‐Bibb County
Hosp. Authority, 952 F.2d 1274, 1280 (11th Cir. 1992) (quoting Rohde, 649 F.2d at
322). Here, neither Officer McQuiston nor Officer Rafalko were accused of
repeatedly failing to submit timely reports, repeatedly submitting reports with
errors, losing records, or failing to timely follow up to requests for information. By
contrast, these are errors that Charging Party repeatedly made and for which
Charging Party received continual coaching, counseling and discipline. Charging
Party failed to improve his poor performance despite the support he received from
the Department.

Simply put, Charging Party has failed to identify any employee—whether
probationary or not— whose performance was as poor as Charging Party’s, but who
was not asked to resign in lieu of termination. As such, Charging Party cannot
establish a prima facie case of race discrimination and his charge should therefore
be dismissed.

II. THE CITY REQUESTED CHARGING PARTY’S RESIGNATION FOR
LEGITIMATE, NON‐DISCRIMINATORY REASONS, WHICH CHARGING
PARTY CANNOT ESTABLISH WERE PRETEXT FOR DISCRIMINATION.

Even if Charging Party could establish a prima facie case of discrimination
based upon race (which he cannot), the Charge should be dismissed because City
clearly had legitimate, non‐discriminatory reasons for its decision to request
Charging Party’s resignation. See Armstrong v. Flowers Hosp., Inc., 33 F.3d 1308,
1313‐14 (11th Cir. 1994) (if a complainant is able to set forth a prima facie case of
discrimination, the burden then shifts to the employer to articulate a legitimate,
nondiscriminatory reason for its employment decision).

Charging Party was asked to resign because he had significant, continuous
difficulty performing the administrative functions of his job. Charging Party was
frequently late submitting his reports (in violation of Departmental Standards
Directive 82.02), which he often submitted with errors and/or in incomplete form.
Charging Party was clearly unable to perform in accordance with Department
standards and was unable to comply with simple administrative requirements (such
as submitting reports and forms related to daily activities by the end of his tour of
Lynda Byars
May 24, 2018
Page 13

duty). These issues, as a matter of law, constitute legitimate, non‐discriminatory

reasons for requesting Charging Party’s resignation. See Gonzalez v. State of Florida
Department of Management Services, 124 F.Supp.3d 1317 (S.D. Fla. 2015) (State
agency's proffered reasons for terminating Cuban employee, including that
employee failed to perform assigned duties and ignored requests from his managers
regarding budget issues, were not pretext for national origin discrimination
under Title VII); Mason v. Clayton County Board of Education, 2008 WL 11406167
(N.D. Ga. 2008) (Plaintiff could not establish pretext because her attendance and
punctuality issues were well‐documented and “certainly would motivate a
reasonable employer to discipline her”).

The employer’s burden to articulate a legitimate, non‐discriminatory reason
for its employment decisions is one of production, not persuasion. Standard v.
A.B.E.L. Servs., Inc., 1616 F.3d 1318, 1331 (11th Cir. 1998). This burden is
“exceedingly light.” Turnes v. Amsouth Bank, N.A., 36 F.3d 1057, 1060‐61 (11th Cir.
1994) (citations omitted). As detailed above, the City coached, counseled, and
disciplined Charging Party, and ultimately requested his resignation, because of his
well‐documented performance problems. In light of the substantial evidence
produced by the City, Charging Party would be required to prove that the reasons
offered by the City were not the true reasons for its decision (to request his
resignation), but rather, were a pretext for discrimination. A showing of pretext
requires “more than a mere mistake on the part of the employer; pretext means a
lie, specifically a phony reason for some action.” Tincher v. Wal‐Mart Stores, Inc., 118
F.3d 1125, 1129‐30 (7th Cir. 1997). The inquiry into pretext “centers upon the
employer’s beliefs, and not the employee’s own perceptions of
his performance.” Holifield, 115 F.3d at 1565. Moreover, a claimant may not
establish pretext “merely by questioning the wisdom of the employer's reason,” as
long as the articulated reason is “one that might motivate a reasonable
employer.” Combs v. Plantation Patterns, 106 F.3d 1519, 1543 (11th Cir. 1997).

Here, there is no evidence whatsoever that the City’s stated reasons for
requesting Charging Party’s resignation were pretextual. Charging Party’s
assertions that he never received any counseling (including verbal counseling)
cannot be accepted in light of the substantial evidence to the contrary.
Furthermore, the record demonstrates that any reasonable employer, in the same
position as the City, would take the same action regarding a probationary employee.

CONCLUSION

It is evident from the objective facts set forth above that Charging Party has
failed to proffer any evidence to establish any discriminatory animus on the part of
Lynda Byars
May 24, 2018
Page 14

the City. As such, the instant Charge should be dismissed with a determination of no
reasonable cause.

I trust that the foregoing adequately responds to your inquiry. In the event
that you have any questions or need any additional information, please do not
hesitate to contact me.

Very truly yours,

Brett J. Schneider

Enclosures