Investigator hired by Cape Coral found claims by fired city manager unsubstantiated

An investigator hired by the City of Cape Coral found claims of racism and anti-gay actions claimed by the recently-fired city manager against council members are unsubstantiated.

GrayRobinson, a statewide Florida law firm that specializes in municipal law, was hired and approved by the city council to document and investigate claims made by the former city manager.

Sacha Dyson, a shareholder of the firm, conducted the investigation and interviewed city officials, but the former city employee making the claims, Rob Hernandez, wouldn’t speak to them.

Dyson investigated 17 claims by Hernandez, finding a few to have partial merit. Hernandez declined to participate in the investigation, but his lawyer, Benjamin Yormak, explained that Hernandez was firm in his intention to sue the city.

Yormak provided The News-Press with the following statement:

"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)," Yormak wrote.

He previously stated that litigation is moving forward.

Yormak filed a discrimination charge with the U.S. Equal Employment Opportunity Commission in March, where it will remain for a minimum of 180 days before proceeding in federal court in September.

"We look forward to presenting Mr. Hernandez’s claims before an impartial jury of his peers," he added.

When asked if the city plans to take any other action regarding the Hernandez case, city spokesperson Melissa Mickey said only that there still may be a lawsuit from the former city manager.

City council fires Rob Hernandez

The former city manager sent a letter on Feb. 14, after his contract was not renewed, accusing several councilmembers, including the mayor, of racist and anti-LGBTQ conduct against city employees and residents.

Hernandez, hired in August 2020, presented his accusations in a nine-page letter sent to the city, 13 days after a majority of the council voted not to renew his contract.

Hernandez's letter indicated that he could be owed as much as $1.16 million. The city has already paid Hernandez almost $100,000, the amount equivalent to the remainder of his contract.

The city denied the accusation and refused to comply with Hernandez's demands.

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What were the parameters of the investigation?

Dyson identified several key city department directors to interview, including the city council members, and Hernandez, a total of 27 individuals.

Hernandez and Councilmember Robert Welsh, the latter not named in the original letter, did not participate.

The report mentioned several attempts to schedule with Hernandez until he eventually refused to speak.

In addition to the interviews, a variety of documents, emails, and recordings made available to the investigators were used to draw the conclusion set in the final report, the report said.

The investigation found that a majority of the claims in Hernandez's original letter could not be proven, because of a lack of specific evidence, context, or testimony.

The city shared the report with the public Monday afternoon.

Here's what was found:

Racism claims re: economic and business development position

Hernandez said he faced constant scrutiny from councilmembers over his hiring of T. Sharon Woodberry, a Black woman, as the city's Economic and Business Development Officer.

She accepted the role in late May 2022.

He claimed that discriminatory employment practices were leveled against Woodberry, the level of inquiry into her qualification, background, and job performance was unprecedented, and that several council members wanted a less experienced white woman from the city to fill the position.

The report said because Hernandez did not participate in the investigator's interviews, they were unable to verify:

∎ any claims about when and how discriminatory employment practices occurred to the economic and business development officer,

∎how the inquiry into the position interfered with his duties,

∎and how and when racial stereotypes were used.

"The preponderance of the evidence establishes that neither the City Council nor any of its members took action with respect to the employment of the EDO or engaged in an unlawful employment practice as that term is defined under Title VII or the Florida Civil Rights Act," the report said.

Woodberry was one of six candidates, alongside a former city employee, Nita Whaley, who worked in the economic development office.

The report revealed that after Hernandez did not get his contract renewed, he contacted Woodberry and said she was part of the reason he was not renewed.

"He said that council members, without identifying any names, had used 'dog whistle' words and saidthat the EDO director did not fit," the report said.

Hernandez made the comments while still employed by the city.

Whaley did not make the list of finalists, and she left the city in December.

Gray Robinson substantiated a claim from Hernandez that several council members questioned and inquired about the hiring of Woodberry and her performance.

Councilmembers Tom Hayden, Dan Sheppard, and newly elected Bill Steinke followed the process outlined in the city charter for information on Hernandez's selection process, according to the report.

Mayor John Gunter and Hayden had concerns about Woodberry's performance because she was not present at community events or meetings, and Gunter noticed the contrast with Whaley, who was described as more outgoing and extroverted, the report said.

"He did not, however, ask or suggest to Mr. Hernandez that the EDO should be removed from her position or otherwise disciplined," the report said.

Hayden said he believed that Whaley should have been allowed to take the role on an interim basis.

"The preponderance of the evidence also establishes that Ms. Whaley wanted the director position, wasopenly campaigning for it with others, was unhappy about the decision not to select her, and was critical of the EDO," the report said.

Hernandez seemed to have the same concern over Woodberry's performance as he approved an extension of her probation period on Nov 21, 2022, according to the report.

The report also said Woodberry never reported any inappropriate action or comment from any member of the council.

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Allegations regarding LGBTQ+ discrimination and Pride event

Hernandez also claimed there was a pattern of stereotypical and discriminatory behavior by some of the council members.

His claims include Mayor John Gunter wanting to remove a lesbian employee from having contact with the public; Sheppard demanding rules of decorum that would only apply to Cape Pride, an annual LGBTQ festival; and both objecting to correcting pay inequities for a member of the executive leadership team because of sexual orientation.

The report found a majority of the accusations unsubstantiated. Two incidents of purported discrimination toward employees based on sexual orientation were identified but found not substantial.

For the employee, Gunter had inquired over the appearance of a public-facing employee because of their piercings and multi-colored hair, but he did not demand said employee terminated or mention any employee's sexual orientation, according to the report.

"While Mayor Gunter believes that the City should have an appearance policy, that opinion is not unlawful and is wholly unrelated to an employee's sexual orientation," the report said.

As for the pay inequities, Robinson Gray found it's up to the city manager's office to remedy them because the council has no control over the pay for employees that report to Hernandez.

"Their approval or disapproval has no impact on these employees and their pay," the report said. "Moreover, there is no evidence that Mayor Gunter or Councilman Sheppard objected to any pay increase to the assistant city manager or that they commented that the assistant city manager was unqualified for the position or that her performance did not warrant an adjustment."

The funding for Pride is a point of contention for many residents as they complained and sought information on whether taxpayer funds were used.

Gunter, who attended Pride in 2022, said he inquired about what the city provided for the parade after receiving complaints.

"(Hernandez) does not assert that Mayor Gunter sought to change the donations or resources committed for the 2023 parade," the report said.

Sheppard said the former city manager told him that no taxpayer funds were used for the event, but that a public record request indicated that was inaccurate.

"Ultimately, after Councilman Sheppard's inquiries, Mr. Hernandez finally confirmed that taxpayer dollars were used in the form of in-kind donations," the report said.

Both said they were trying to properly answer questions posed by residents.

The report says that Sheppard asked for an investigation after residents provided photos of believed offensive conduct. The report notes that the photos were manipulated to make it appear that inappropriate activity happened.

Sheppard also inquired about decorum rules, but there's no substantiated evidence that he demanded rules of decorum for only the Pride Parade or how decorum rules would only apply to the Pride Parade.

The report said there's no evidence that Sheppard took any action that discriminated against a city employee based on sexual orientation.

"Whether Councilman Sheppard does or does not support the LGBT community, the Pride Parade, orthe use of City resources in support of the Pride Parade are all questions beyond the scope of this report," the report said. "Those are political questions subject to the political process."

Allegations regarding contract expiration and retaliation

Hernandez also claims his contract was not renewed after he did not follow through with the council's alleged discriminatory requests.

The council has no obligation to renew his contract as Mr. Hernandez's performance evaluation was done by a different council, with the councilmember's votes and criticism falling in line with their vote, the report said.

"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, the report said.

That letter alleges that councilmembers' actions violated Title VII of the Civil Rights Act of 1964, Florida Civil Rights Act, and Florida’s Private Whistleblower Act.

However, the report said Hernandez is not protected under the private whistleblower as it only applies to private corporations.

The report also couldn't substantiate that Hernandez engaged in any protected activity under Title VII or the Florida Civil Rights Act.

"None of the individuals reported that Mr. Hernandez ever complained about discrimination or any unlawful employment practice to any of the council members," the report said.

What's next?

Gunter commended the investigator's work and findings but warned that the matter was not settled.

“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 in an email statement. "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."

He ended by saying Hernandez was not the right person for the role.

"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," Gunter said.

Luis Zambrano is a Watchdog/Cape Coral reporter for The News-Press and the Naples Daily News. You can reach Luis at Lzambrano@gannett.com. Follow him on Twitter @Lz2official.

This article originally appeared on Fort Myers News-Press: Cape Coral investigation finds claims by fire city manager unfounded