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EEOC opens discrimination investigation

Cape Coral given 30 days to respond to retaliation complaint filed by former city manager

By VALARIE HARRING - | Mar 23, 2023

Rob Hernandez

The U.S. Equal Employment Opportunity Commission has given the city of Cape Coral 30 days to respond to allegations of discrimination and retaliation filed by the city’s former top administrator.

Former city manager Rob Hernandez alleges that Cape Coral City Council’s decision to not extend his employment contract with the municipality is due to his resistance to actions by some council members concerning minority and LGBT employees.

“Ultimately, my resistance to the discriminatory views of certain members of City Council contributed to the City Council’s decision not to renew my contract,” his statement of complaint reads. “On February 1, 2023, City Council voted not to renew my contract despite a more than favorable performance evaluation less than 90 days earlier, and one of the chief reasons given were some ‘poor decisions and performance.’ As seen above, what was being referred to as ‘poor decisions and performance’ was really my continued refusal to engage in discrimination against African-Americans, LGBT employees and LGBT citizens of Cape Coral. In sum, because I opposed and refused to participate in such illegal conduct, City Council retaliated by nonrenewing my contract.”

This constitutes a violate of his rights, the complaint contends.

“I allege that the Respondent retaliated against me when I engaged in statutorily protected conduct, and further allege that I have suffered negative employment action in violation of federal and state law,” Hernandez said in his Statement of Discrimination. “Specifically, the Respondent’s actions violated Title VII of the Civil Rights Act of 1964, as amended, and the Florida Civil Rights Act of 1992, as amended.”

The filing of the EEOC complaint now puts the allegations, which the city and individual members of Council have denied, back in the municipality’s hands for a formal response.

“This is your opportunity to raise any and all defenses, legal or factual, in response to each of the allegations of the charge,” the EEOC letter received by the city Wednesday states. “The position statement should set forth all of the facts relevant to respond to the allegations in the charge, as well as any other facts the Respondent deems pertinent to the EEOC’s consideration…

“The EEOC also requests that you submit all documentary evidence you believe is responsive to the allegations of the charge. If you submit only an advocacy statement, unsupported by documentary evidence, the EEOC may conclude that Respondent has no evidence to support its defense to the allegations of the charge.”

Hernandez’s allegation that his contract was not renewed because he objected to a series of civil rights violations concerning minority and LGBT employees, was initially raised in a damages and settlement letter sent to the city Feb. 14. The letter, sent two weeks after Council had voted 5-3 to not renew his three-year contract, asked for $550,000, a neutral job reference and a public apology for professionally disparaging remarks made by council members concerning his employment.

Council subsequently voted 5-3 to terminate Hernandez without cause.

The settlement letter was prepared by attorney Benjamin H. Yormak of Yormak Employment & Disability Law based in Bonita Springs, also named as Hernandez’s attorney in the EEOC complaint.

In the letter, Hernandez alleged the Feb. 1 action to not renew his contract was in retaliation for his statutorily protected protestations and a violation of Florida’s Private Whistleblower Act and presented the series of allegations now contained in the EEOC complaint.

Yormak had advised the city that should Mr. Hernandez’s allegations be deemed violations of various federal and state civil rights acts, the city could be required to pay backpay, reasonable attorney fees and costs and non-economic damages.

“All told, damages as to Mr. Hernandez could be in excess of $1,165,000,” Yormak wrote in the Feb. 14 notice to the city.

Reached via text message, Hernandez declined comment Thursday.

The city has a policy of not commenting on pending or existing litigation.