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Report: Former city manager’s allegations of discrimination, retaliation, unsubstantiated

By VALARIE HARRING - | May 15, 2023

Rob Hernandez

Investigative Report_50374628v1

An independent investigator hired by the city of Cape Coral to review workplace allegations made by the city’s former top administrator has concluded that the claims are unsubstantiated.

Sacha Dyson, of GrayRobinson, concluded that the non-renewal of former city manager Rob Hernandez’s contract and his subsequent termination did not violate protections under state and federal law, nor did the city discriminate against any employee or retaliate through its actions.

“As set forth in the, findings, based on the preponderance of the evidence, I conclude that the non-renewal and termination of Roberto Hernandez was not in violation of Title VII, the FCRA, or the FWA,” the report’s conclusion states. “He did not engage in protected activity during his employment with the City. His contract was not renewed and he was terminated for legitimate, nondiscriminatory reasons, which Mr. Hernandez has not rebutted nor do the statements of the twenty-five witnesses interviewed support that these reasons were false and that the real reason was discrimination or retaliation. Mr. Hernandez failed to build a relationship of trust and respect with the council members, he failed to communicate effectively, and he was not responsive to the needs of the council members. His actions after the non-renewal decision, including those in the managers’ meeting and in his conversations with the EDO (city’s Economic Development Office), were inappropriate. Accordingly, I find that there has been no violation of law or policy in the non-renewal and termination of Roberto Hernandez.

“Based on my investigation and the preponderance of the evidence, I further find that no action has been taken or recommended to be taken against any employee because of his or her race or any other protected characteristic or protected activity. I have not been able to substantiate that the work environment is in violation of any equal employment opportunity policy or based on a protected characteristic or any protected activity. Instead, actions were taken for legitimate, nondiscriminatory, nonretaliatory reasons. “

According to the report, Hernandez was one of two of 27 individuals Dyson sought to interview who did not participate in the process, formally declining through his attorney due to pending litigation.

“Therefore, I concluded my investigation based on the information available to me,” Dyson wrote in the report, which is dated May 12 and was sent to Deputy City Attorney Brian Bartos via email and U.S. mail.

Hernandez’s attorney, Benjamin H. Yormak of Yormak Employment & Disability Law, said the findings were not unanticipated given that the city chose the investigative firm. It also paid for the report. He added it changes nothing in terms of the lawsuit Hernandez will continue to pursue against the city.

“I doubt any reader is surprised there’s no finding against the City given that the mayor and council handpicked an employment defense attorney to investigate claims made against them (like a defendant being allowed to select their own judge and jury),” he said via email in response to a Breeze request for comment. “We look forward to presenting Mr. Hernandez’s claims before an impartial jury of his peers.”

Mayor John Gunter released a short statement Monday afternoon saying that while the matter continues on other fronts, the findings are a vindication.

“While this legal matter may not yet be over, I want to express my gratitude to the firm we hired for their thorough investigation into the claims made by former City Manager Roberto Hernandez,” Gunter said. “As Mayor, I stand by the decision to terminate Mr. Hernandez. The outcome of the investigation clearly states that there is no evidence to support the allegations made by Hernandez regarding any improprieties by City Council. The City of Cape Coral deserves to have someone exceptional in the role of City Manager because excellence must start at the top, and Hernandez just wasn’t that person.”

Cape Coral Council voted 5-3 on Feb. 1 to not renew Hernandez’s rolling three-year contract with the city.

Two weeks later, on Feb. 14, Yormak sent the city a damages and settlement letter outlining the allegations that GrayRobinson subsequently was contracted to investigate. Advising the city that the enumerated violations of various federal and state civil rights acts could result in damages in excess of $1,165,000, the letter asked for $550,000, a neutral job reference and a public apology for professionally disparaging remarks made by council members concerning Hernandez’s employment.

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

Dyson wrote that she identified each of the allegations in made in the Feb. 14 letter to the city and interviewed 25 individuals over three days to reach her findings. She said she also reviewed a variety of documents including emails, performance evaluations, personnel files and documents, recordings of council meetings and other records.

“I have made my factual findings and conclusions based on the information available to me, including my review of documents and interviews of those individuals who agreed to participate in this investigation,” she wrote. “These findings are not based on rumor, gossip, subjective belief, collective thought, assumptions, presumptions, or conclusions based on secondhand information. They are based on the preponderance of the evidence after consideration of the totality of the evidence, including the personal knowledge of the witnesses. In assessing the evidence, I analyzed the documents and conducted witness interviews. I used reasoning, common sense, my knowledge of the law, and my experience as an investigator to evaluate the evidence, make deductions, and reach the conclusions set forth in this report. In determining the credibility of witnesses, I considered several factors, including whether a witness’s account was corroborated by other evidence; whether the witness’s account was plausible and reasonable under the circumstances; whether the witness had the means and opportunity to know the facts; whether the witness made contradictory or inconsistent statements; the witness’s history for telling the truth; and possible bias or motive to tell the truth.”

Among the allegations Dyson found to be unsubstantiated were claims of racial bias or stereotyping or improper inquiries or actions based upon race on the part of members of Council. Also unsubstantiated were allegations of intolerance of LGBT employees or community by members of Council and allegations of discriminatory behavior towards city employees based on sexual orientation.

She also found the allegations that Hernandez’s resistance to the discriminatory views of certain council members contributed to Council’s decision to not renew his contract to be unsubstantiated as well as the assertion that he was retaliated against in violation to various federal and state employee protections including Florida’s Private Whistleblower Act.

“There was no obligation to renew Mr. Hernandez’s contract. He served at the pleasure of council. On February 1, 2023, the City Council decided not to renew his contract. There is no evidence that any council member requested or advocated for discriminating against any employee nor is there any evidence that Mr. Hernandez refused to engage in discrimination or otherwise complained of discrimination prior to his nonrenewal. Moreover, as explained above, Mr. Hernandez’s performance evaluation was for a different period of time and completed by a different council. The individuals who voted not to renew Mr. Hernandez’s contract did not provide a favorable performance evaluation. The reasons articulated by the council members on February 1, 2023, for Mr. Hernandez’s non-renewal were consistent with their evaluations of Mr. Hernandez’s performance in August 2022 as well as their explanations during my investigation as to why they did not renew Mr. Hernandez’s contract. Therefore the allegations that ‘certain members of the City Council’ held discriminatory views, that Mr. Hernandez ‘resisted discriminatory views,’ and was terminated for his objection are wholly, unsupported by any evidence. Mr. Hernandez refused to participate in an interview to explain these allegations.”

Hernandez has also filed a complaint with the U.S. Equal Employment Opportunity Commission. It also 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.

In late March, the EEOC gave the city 30 days to respond to allegations of discrimination and retaliation

That complaint still pending.

Editor’s note: This story has been updated to include comment from Mr. Hernandez’s attorney.