The attached documents pertain to an

investigation of employment
discrimination based on sex, including
allegations of sexual harassment.

Under Florida law, any information

that personally identifies the alleged
victim in an allegation of sexual
harassment is confidential and
exempt from disclosure under the
Florida Public Records Act and the
Constitution of the State of Florida.
The knowing or willful violation of
this law is a punishable misdemeanor
of the first degree.
Fla.Stat. Sec. 119.071(2)(n);
Fla.Stat. Sec. 119.10(2)
 Kelly Austin, Director
City of Tampa Human Resources &Talent Development
306 East Jackson Street, SN
Jane Castor, Mayor Tampa, Florida 33602
........~
Office (813) 274-8041
Fax: (813) 274-726S

TO:

FROM: Kelly K. Austln, Director of Human Resources & Talent Developme~

DATE: March 28, 2022

SUBJECT: Final Disposition - Human Resources Investigation

The purpose of this memorandum is to provide you with a summary of the Investigation
that began on August 12, 2021, the process that was followed during the course of this
investigation and the options available to you based upon the conclusion reached by
Thomas Gonzalez, outside counsel to Human Resources, as documented In the attached
memorandum, dated March 24, 2022. It is important to remind you that all relevant
documents will become public record at the conclusion of this matter, however,
Information that Identifies you personally will be redacted in response to requests for
public record received by the City, If any.

As required by City of Tampa Personnel Manual 81.1 A (4)(e), Human Resources must
Investigate allegations of unlawful discrimination. As a City of Tampa employee, you are
covered under this policy. Since the allegations brought forward by you involved your
supervisor, an elected official who Is not subject to the City's personnel policies, the City
retained an Independent law firm to conduct a factual Investigation.

By way of background, on or around October 14, 2020, Human Resources became aware
of a workplace interaction that occurred between you and your supervisor to which you
began reporting on May 1, 2019. You were Interviewed twice by Human Resources and
during these Interviews, you relayed broad statements about your supervisor's conduct at
work that you felt were unprofessional. Upon further discussions, you recalled an Incident
that caused you great discomfort regarding an interaction which occurred at your home.
You Informed us you were receiving outside assistance to "find your voice" and to speak
directly to your supervisor about his conduct. Human Resources concurred with this

----------------------------------·---· - --- ---···.

 approach with the caveat that should you not be comfortable doing so, Human Resources
would speak with your supervisor on your behalf. You reported that you spoke to your
supervisor on November 12, 2020 and believed the matter to be closed.

On August 9, 2021, Human Resources became aware that you were out of the office, and
the absence was going to be for an extended period and a well-being call was conducted.
Human Resources contacted you again on August 12, 2021. During this call you relayed
specific examples of Inappropriate comments made by your supervisor to Include sexual
jokes and gestures and you Indicated that you wished to file a formal complaint. You
stated that you felt belittled and stressed In your working environment and requested to
be placed In a new position.

Recognizing the possibility of a hostile work environment, Human Resources arranged a

temporary assignment for you supporting the Parks and Recreation Department In an
administrative capacity. Additionally, recognizing that the City of Tampa's personnel
policies do not apply to an elected official, the complaint was provided to the Legal
Department for review and guidance. At that time, given the subject of the complaint was
a City councllmember and the Oty Attorney represents the City Council as a body, in order
to avoid any appearance of bias and to ensure an Independent Investigation, it was
appropriate and advisable to obtain outside counsel to conduct an Independent
investigation.

On August 13, 2021, Human Resources received a phone call and a follow up letter from
your supervisor asking that you be relocated to a different position, citing It may be In your
best interest to be placed in a less stressful environment based on his new role as Chairman
of City Council. While your most recent performance evaluation was rated outstanding and
did not reflect any of the Issues cited In his request, his request was honored as you had
previously asked to be moved. Human Resources was supportive of the transfer,
notwithstanding the fact that you are an appointed unclassified at will employee subject
to discharge at any time. You remained assigned to Parks and Recreation until such time
you applied and were awarded a position in Nelshborhood & Community Affairs on
November 14, 2021. After the City Attorney's office engaged Independent outside counsel
to conduct the investigation, Trenam Law began Its Investigation on September 14, 2021.

Trenam Law's final report (copy attached) was Issued on January 27, 2022, and Included
Interviewing twenty people, covering many allegations. This report was then submitted to
Human Resources outside counsel for review and findings. Prior to issuing his
memorandum, Mr. Gonzalez allowed your supervisor, through legal counsel, to submit a
final written response. Mr. Gonzalez's findings Included a violation of City of Tampa policy
B1.1 which expressly prohibits Inappropriate behavior or harassment on the job because
of sex or any other protected characteristic. While you did not make any allegations of

--------------------·-·- ····--- ... . ·-·

sexual advances, requests for sex, or touching by your supervisor, the investigation
produced evidence that your supervisor created a hostile working environment by
comments and conduct, which a reasonable person of your sex would find offensive. This
Is a violation of City of Tampa policy 81.1. It also Indicated City of Tampa policy 81.2 was
violated by some of the comments and conduct attributed to your supervisor. Based upon
the findings In this matter, you may file a charge of discrimination with the EEOC or the
Florida Commission on Human Relations. If such a charge Is flied, the City must respond to
or settle the matter. Additionally, allegations of sexual harassment have been recognized
as potentially violating the Florida Ethics Code.

While It was determined your supervisor violated the City of Tampa policies B1.1 and B1.2,
as noted above, an elected official Is not considered an employee subject to the policies of
the Personnel Manual. Had your supervisor been a City employee, these findings would
have required disciplinary action up to and Including dismissal from employment by the
City. The City Is required by law to Investigate all allegations of discrimination even when
It has no authority over the alleged harasser. Please note, the City has a no retaliation
policy as provided for in 81.1. Should you experience any actions you consider to be
retaliatory based upon the complaint and Investigation of your complaint, you are
encouraged to contact Human Resources with those concerns. Additionally, after you have
had an opportunity to consider the findings contained In the attached documents, the City
requests to meet with you to discuss appropriate remedial measures.

For your records attached to this letter Is the memorandum Issued by Mr. Gonzalez, which
includes: January 27, 2022, Trenam Report of Investigation (Attachment A); February 23,
2022, Response by Ryan Barack (Attachment B); February 24, 2022, Affidavit (Attachment
C); March 7, 2022, correspondence by Ryan Barack (Attachment D). We recognize the
courage necessary to bring allegations of this nature forward and consider the
Investigation Into your former supervisor's conduct and comments hereby closed.
 MEMORANDUM

TO: John Bennett, Chief of Staff

Kelly Austin, Director of Human Resources

FROM: Thomas M. Gonzalez

(Outside Counsel to Human Resources)

DATE: March 24, 2022

RE: Memorandum on Investigation of Allegation of Sexual Harassment'

SUMMARY

This memorandum reports the results of an internal investigation of an allegation of

employment discrimination based on sex made by a City of Tampa employee against her
supervisor. The employee was formerly a legislative aide to a member of City Council who is the
supervisor against whom the allegations were made. Investigations of such allegations are by City
personnel policies to be conducted by the human resources department pursuant to the City's
personnel policies. Because the employee was supervised by a member of City Council who is not
subject to those policies, the City retained an independent law finn to conduct a factual
investigation. The investigators interviewed or attempted to interview all persons identified by the
employee or the supervisor as having relevant information and submitted a report of the
information obtained. The report was made available to the supervisor for response. The supervisor
submitted a written response to the investigators' report. This memorandum summarizes the
opinion of the undersigned based on the information obtained by the investigators, the supervisor's
response to the allegations, and the employee's personnel record. The opinions expressed in this
report do not represent an adjudication of disputed facts or a legal opinion based on adjudicated
facts . The conclusion of the reviewer is that the employee was subjected to a hostile environment
based on her sex. The employee did not make any allegation of any sexual advances, requests for
sex, touching, or any other explicitly or implicitly sexual conduct and none has been found.
Conduct of that kind is not necessary to prove the existence of a hostile work environment based
on sex. This investigation has produced evidence the employee's supervisor created a hostile
working environment by comments and conduct which a reasonable person of the employee's sex
would find offensive and which the employee did in fact find offensive.

REPORT OF INVESTIGATION

It is the policy of the City to provide equal opportunity in employment for all qualified
persons and to prohibit discrimination in employment because of race, color, religion, national
origin, sex, sexual orientation, gender identity or expression, age disability, familial status or
marital status. City personnel policy B 1.1 A(4 )(d) expressly prohibits inappropriate behavior or
harassment on the job because of sex or any other protected characteristic. City personnel policy
B l.1A(4)(e) requires the human resources department to investigate allegations of unlawful

1 Fla. Stat. § 119.07 l(n) provides that personal identifying infonnation of the alleged victim in an allegation of sexual

harassment is confidential and exempt from disclosure.

discrimination. The Claimant is a former legislative aide to city council member, now chair,
Orlando Gudes.

The Claimant came to the human resources department to report conduct which she
considered to be sexual harassment. She did not allege any alleged sexual advances, requests for
or pressure to provide sexual favors, touching or any other conduct of an explicitly or implicitly
sexual nature. She alleged that she was harassed because of her sex by the creation and
maintenance of a hostile work environment in which statements and conduct offensive to women
were severe and pervasive. The Claimant was informed of her right to have her complaint
investigated and she elected to do so.

Because Mr. Gudes is an elected official, the City retained the law finn ofTrenam Law to
conduct the investigation of the Claimant's allegations in place of the human resources department.
Upon completion of their investigation the investigators submitted their Report of Investigation
into Sexual Harassment Allegations ("Report''), which is attached to this memorandum marked
"Attachment A." Although not an ordinary part of an internal investigation, copy of the Report
was made available to Mr. Gudes (through his counsel, Ryan Barack) so that he could provide any
response he wished to make to the Report. A copy of the response submitted on Mr. Gudes' behalf
("Response") is attached to this memorandum marked "Attachment B. Based on infonnation
received after Mr. Gudes submitted his response, he was asked to provide a supplement to his
;~~onse. That supplement ("Supplement") is attlached to this memorandum marked "Attachment

The Report, Response, and Supplement and the Claimant's personnel records have been
reviewed. This memorandum represents the City's disposition of the City's internal investigation
of an alleged violation of the City's policy prohibiting discrimination. The Claimant is referred to
here as the "Claimant" and Mr. Gudes the "Respondent." That has been done to provide
consistency with the terminology used by the investigators and adopted by Mr. Gudes in the
Response to the Report. The Claimant has made no claim for a remedy and there is no burden of
proof that she must meet. Mr. Gudes is referred to herein as the Respondent for the same reason
that the employee is referred to as the Claimant. He is a Respondent only in the sense that he is the
supervisor named by the employee alleging inappropriate conduct.

I. The authority of the City to investigate the complaint

In his Response Mr. Gudes questions the authority of the city attorney, mayor, or "their
designees" to "oversee" the conduct of a member of city council or to discipline that official in the
event he is found to have committed discriminatory conduct. 2 I therefore begin my discussion by
emphasizing that this memorandum concludes the internal investigation of a complaint of unlawful
employment discrimination filed by a City employee pursuant to City policies. Mr. Gudes was
indisputably that employee's supervisor and so his conduct as a supervisor is put at issue by the
complaint. But the focus of the investigation is an allegation of unlawful discrimination. Neither
the investigation of those allegations nor this memorandum is in any way intended, nor should it
be taken, as an assertion or exercise of any authority to oversee the conduct of a member of the
city council. The issue of what if any action can or may be taken by the City of Tampa upon a

2Mr. Gudes' wrote: "Under the Tl!mpa Home Rule Charter 3:nd Florida law neither the pty Attorney nor the Mayor,
nor theu- designees, has any authority to oversee the conduct of a member of the city council. Similarly, they do not
have the ability to discipline a member of council."
2
determination that it has committed employment discrimination through the actions of a supervisor
who is an elected official is irrelevant to, and beyond the scope of, the investigation the City was
required to conduct.

Mr. Gudes speaks of the mayor and city attorney as separate entities from the city council,
arguing that the mayor has no authority to control or punish Mr. Gudes' behavior. That assertion
is not disputed but in the context of enforcing the City's employment policies, investigating
allegations of unlawful discrimination, and the City's potential liability, any distinction between
the legislative and executive branches is irrelevant. This investigation has been conducted by the
City pursuant to City personnel rules and regulations. The City Charter, in section 4.01, provides
that "responsibility for the proper administration of the city government shall be solely that of the
mayor." Section 4.01(6) specifically requires the mayor to promulgate personnel rules and
regulations "as the mayor deems necessary and proper." One of those rules and regulations
prohibits discrimination. Another provides that human resources will investigate complaints
alleging a violation of that prohibition. Any and all actions taken by the mayor, the city attorney
or any person by either of those officials to carry out the investigation were the acts of the City,
not the individuals performing those acts. The City, and therefore the mayor and city attorney,
were required to conduct this investigation. They had the authority to do so. Fulfilling that
obligation does not alter the relationship between city council and the administration or the
authority of one over the other.

i
i
Regardless of the fact that the Claimant was ~ired by Mr. Gudes, worked under his
xclusive supervision, and was dependent on him alone lor her continued employment, she was at
11 times relevant to her complaint an employee of the City. 3 As an employee of the City, and
except as otherwise provided in the City Charter, the Claimant is subject to and protected by the
City's personnel rules and regulations set forth in the City's Personnel Manual.

Policy B 1.1 A(4)(e) of the Manual, provides in relevant part:

The Human Resources Department conducts management investigations regarding

allegations of violations (see BI. I, B 1.2, B23.1, B23.2) and is responsible for the City's
response to complaints filed with local, state or federal agencies. 4

Policy B 1.1 A( 4)( d) provides:

Inappropriate behavior or harassment on the job because of race, color, religion, national
origin, sex, sexual orientation, gender identity or expression, age, disability, familial
status, or marital status, is prohibited by state and federal law and/or this directive of the

1 In his Response Mr. Gudes demonstrates the amount of control he exercised over the Claimant's employment by
including in his Response a description of his contact with human resources when "it was not working out" with the
Claimant. Mr. Gudes "did not want to tenninate" the Claimant because she had a daughter and needed insurance for
a serious health condition. He therefore asked human resources to transfer the Claimant back to the position in which
she was employed before coming to work for Mr. Gudes. Had human resources not accommodated the request (and
it had no obligation to do so), the Claimant would have been tenninated, without any recourse. Although the transfer
allowed the Claimant to remain a city employee, it resulted in a reduction of her compensation in excess of$20,000
per year. As will be discussed below the degree to which Mr. Gudes alone controlled the Claimant's employment and
wor~ing environment is a factor I have considered and taken into account in assessing the Claimant's allegations.
4 Policy 823.1 is the City's Code of Ethics. Policy 823 .2 protects whistleblowers. The Claimant has not alleged a

violation of either policy and so they were not considered in this investigation.
3
 City of Tampa. This includes actions ranging from blatant physical touching to subtle
coercion through touching or in any manner seeking sexual favors. Sexual advances and
other offensive verbal or physical conduct which is discriminatory will not be condoned
when such interferes with the individual's work perfonnance, is either explicitly or
implicitly made a term or condition of employment or other job related decisions.

Neither of the primary laws prohibiting discrimination, Title VII nor the Florida Civil
Rights Act ("FCRA"), provides for individual liability. 5 Any complaint of discrimination filed by
an employee of the City under either of these laws would be a complaint against the City. Mr.
Gudes correctly argues that he is not subject to the provisions of Policy Bl. I, which prohibits
discrimination based on sex and all other protected characteristics. He cannot however argue that
the Claimant is not entitled by law and City policy to a workplace free of the discriminatory
conduct prohibited in those policies and laws, regardless of the position held by her supervisor.
Neither can he dispute the facts that: (1) Title VII and the FCRA apply to the City, (2) for purposes
of either of those laws, the Claimant is an employee within the meaning of the laws and the City
of Tampa is her employer, (3) Mr. Gudes was the Claimant's supervisor and his actions therefore
are attributable to the City, and (4) the City is obligated by law to investigate an alleged violation
of Title VII or the FCRA. 6 A City employee working for City Council or a member of Council is
entitled to complain of unlawful discriminatory conduct, without fear of retaliation, to the same
extent and in the same manner as any other City employee.

Tte discipline an employer may impose on a person fou~d to have committed unlawful
discrimin tion is no part of an internal investigation of the allega ion that such conduct occurred.
Both Tit! VII and the FCRA protect employees not only fror discrimination committed by
supervisory employees but also by non-supervisory co-employees and third parties such as
customers or members of the public. The City is required by law to investigate all allegations of
discrimination, even when it has no authority over the alleged harasser. When an employer is put
on notice that unlawful discrimination has occurred, it must do what it can to end the conduct if it
is ongoing, and prevent its reoccurrence. The issue of what an employer may do is not part of, nor
does it affect, the investigation.

On a related matter, City policy Bl .2 of the Personnel Manual provides that "employees
shall not engage in offensive verbal or physical conduct directed against an employee, a citizen,
or any other person or member of the public based on race, color, religion, national origin, sex,
sexual orientation, gender identity or expression, age, disability, familial status or marital status."
The policy expressly provides, "Employees are also forbidden from such conduct while off duty,
if such conduct adversely affects the employee's ability to perform his or her City duties" and a
single violation "shall be grounds for immediate dismissal in the absence of extenuating
circumstances." Some of the comments and conduct attributed to Mr. Gudes would violate Bl.2.
Just as clearly, Mr. Gudes is not an employee and therefore not subject to the prohibition. Policy

s Mr. Gudes also wrote that "there are questions about the applicability of certain laws to legislative aides." He does
not identify the "certain laws" to which he refers. He cannot contend that Title VII and the FCRA do not protect
legislative aides to the same extent that they protect all other employees of the City.
6 Briefly stated, an employer is always liable for the conduct ofa supervisor if the discriminatory conduct results in a

tangible hann to the employee such as discipline, transfer, or tennination; it may not be liable for harassment that does
n<;>t include a tangible empl«:>yment action committed ,by a supervisor, or is committed by co-employees or non-
employees, unless the employer has notice of the unlawful conduct and fails to investigate and, if necessary correct,
the allegations.
4
B 1.2(6) provides that complaints "concerning employee violations will be thoroughly investigated
by the Human Resources Department for immediate corrective action as warranted." Because Mr.
Gudes is not an employee, he cannot be investigated by the City for a violation of B 1.2 and he has
not been. However, section Bl.2 clearly establishes the City's standard for assessing the
acceptability of workplace conduct and statements.

II. The Respondent's Response to the Allegations

Because Mr. Gudes was represented I provided a copy of the Report to his attorney so that
Mr. Gudes could respond to the Report's findings. I made it clear that the investigation was not
and would not be completed until I had received and reviewed Mr. Gudes' response and wrote this
memorandum. I specifically informed Mr. Barack that neither the Report nor the Response would
be a public record until the investigation was completed. I received Mr. Gudes' response, authored
and sent to me by Mr. Barack, on February 23, 2022. The Response is in the form of a letter. The
closing of the letter does not indicate an enclosure but in the body of the correspondence, the
Response informs:

Respondent has prepared a separate statement where he discusses that he made the
mistake of hiring a longtime friend to [work for him] and failed to recognize the change
to the dynamic of the relationship as a result. He also sincerely apologizes to the former
[employee] for his words that caused her discomfort. Respondent also acknowledges that
there are v.lays he can improve on effectively communicating with ~nd managing others,
and to assi t him in the learning process he has engaged the servic( s of Executive Coach,
Gena Cox, Ph.D. It is his hope that through this process he can furt er develop his own
leadership and workplace sensitivity so that he can better serve his constituents and the
City. (This statement is referred to hereinafter as the "Statement.").

On February 24, 2022, the Claimant executed an affidavit in which she recounted that on
February 23, 2022, at I :05 p.m., she received a telephone call from a reporter. A copy of the
affidavit is attached to this memorandum marked "Attachment C." In her statement, the Claimant
testifies that the reporter informed her he was writing a story about "the Orlando Gudes matter"
and that "a lot of people are asking why the investigation is taking so long and the delay seemed
to be a political tactic by the Castor Administration." The "people" who were asking why the
investigation was taking so long could not have included Mr. Gudes because I assume he knew
why the investigation had not been completed. His attorney, Mr. Barack, had not yet submitted his
Response and the investigation could not be completed. In fact, the time for providing that
Response had been extended to the date it was actually filed at the request of Mr. Barack. Mr.
Barack transmitted the Response to me attached to an email that I received on February 23, 2022,
at 3:37 p.m., more than two hours after the reporter called the Claimant.

The Claimant testified in her affidavit that after informing her of what a "lot of people"
were asking about the delay involved in completing the report, the reporter asked the Claimant,
who would have no knowledge of the subject, if she wanted to make a comment. The reporter told
her that "Mr. Gudes issued a statement." The Claimant swears that when she asked, "He did?," the
reporter asked the Claimant if she wanted him to read it to her. The reporter then said "Quote,"
and purported to read from a statement and said, "Unquote." The content of the read statement was
"to the effect that," th;e Claimant "was a fri<,md of mine when she took her position and I made a

5
mistake when I didn't transition that friendship into a working relationship." The Claimant asked
the reporter if her name was in the statement and the reporter replied, "only one time."

I spoke to Mr. Barack after I was informed by the city attorney's office of the reporter's
contact with the Claimant. The Claimant had called the City to express her concern. I asked that
the Claimant be asked to provide an affidavit and she did. The affidavit was sent to me and I in
turn provided Mr. Barack a copy of the sworn statement and asked for Mr. Gudes' response,
specifically asking for comment on whether Mr. Gudes or anyone acting on his behalf had revealed
the Claimant's identity and whether the release of the statement and disclosure of the Claimant's
identity could constitute retaliatory conduct that violated Title VII and the FCRA. The response,
dated March 7, 2022 is attached to this determination marked as "Attachment D."

Mr. Barack began the response by repeating his opinion that neither myself, the city
attorney, or the mayor had "any basis ... to make any determination or disposition in any way
regarding Chair Gudes." As the letter expressly acknowledges, that opinion had already been
expressed to the City and it has not been challenged. The assertion's repetition was not responsive
to my request for comment. Mr. Barack then represented that "Chair Gudes has not yet issued a
formal statement" but he had been contacted by the reporter who later contacted the Claimant.
According to Mr. Barack, the reporter, "using [the Claimant's] name," asked about her complaint.
Mr. Barack wrote that "there is nothing inappropriate or retaliatory with Chair Gudes responding
to this inquiry ... that specifically mentioned [the Claimant] by name, with his oral statement that
he made a mistake." Mr. Br,rack wrote that "Chair Gudes did anticipate that the Ci~y would have
released his full statement 1ry now and encourages the City to do so." I
The response to the affidavit includes the assertion the media knew about Claimant's
complaint before Mr. Gudes was informed of it. Mr. Barack specifically alleges that on August 18,
2021, "long before" Mr. Gudes was informed of the complaint, the reporter who contacted the
Claimant made a public records request for documents about a complaint made by the Claimant
against Chair Gudes. Mr. Barack's response to the affidavit noted that the Claimant has not
reported to Mr. Gudes since August 2021, "and he has no ability to impact her employment with
the City."

I am unaware of any disclosure or confirmation of the Claimant's identity made by the

City. Because Mr. Barack did not provide the source of his information, I cannot respond to his
assertion more specifically. I am, however, certain that when I provided the Report to Mr. Barack
so that Mr. Gudes could review and respond to him, I impressed upon him the fact that the Report
and its contents were not public record because the investigation was not concluded and would be
ongoing until I considered the Response and wrote this memorandum. Additionally, I was present
at the meeting at which the City Attorney informed Mr. Gudes that the complaint had been filed
and would be investigated by an independent investigator. I was asked to speak to Mr. Gudes about
retaliation and did so. I specifically noted that retaliation against a person making a complaint of
discrimination is unlawful even if the complaint is not sustained. I also informed Mr. Gudes that
retaliation would include any action taken by him or anyone trying to help him to place pressure
on the Claimant to drop her charges or cause her to be shunned.

I take Mr. Barack's response to the affidavit as a denial of the Claimant's sworn statement
that the reporter reap a statement to her af\er informing the Claimant Mr. Gudes had issued such a
statement and used the words "quote" and "unquote." I take his statement that Mr. Gudes has not
6
issued a "fonnal" statement, and his assertion that an "oral statement" was appropriate, as an
admission that he did provide the reporter with the content of his statement. I note the following.
First, there are no means by which the Claimant would know, two hours before I received the
Response, that Mr. Gudes had prepared a statement, much less disseminated it to a reporter. The
statement that "Chair Gudes did anticipate that the City would have released his full written
statement by now and encourages the City to do so" is impossible to accept. The telephone call to
the Claimant took place before Mr. Barack sent the Response (including the "full" statement) to
the City. It is conceivable that Mr. Barack did not tell Mr. Gudes that he had asked for additional
time to provide the Response, that the detennination would not be written before the Response
was provided, or that the Response had not been sent to me by the time the reporter called the
Claimant. There can be no doubt, however, that Mr. Barack certainly would have infonned Mr.
Gudes of those facts before writing his March 7, 2022 letter, in which Mr. Barack spoke of Mr.
Gudes' "anticipation" that the statement would have been released "by now." 7 There was no basis
for Mr. Gudes' expressed belief that the statement was or could have been made public before he
provided it, orally or in writing, to the reporter.

Mr. Barack did not respond to the Claimant's sworn statement that the reporter told her
Mr. Gudes had issued a statement, asked her if she wanted him to read it, and then began the
reading of the statement with the word "quote" and ended it with the word "unquote"). Mr. Barack
wrote that Mr. Gudes has not yet "released a fonnal written statement" and he only responded to
the reporter's question with the "oral statement" that "he made a mistake." Mr. Barack does not
respond to the Claimant's sworn alltgation that she asked the reporter if Mr. Gudes had user: her
name in the statement and was told, "only one time." In fact, the statement that was subn itted
begins with a reference to "the repo1 regarding my fonner Legislative Aide." The Claimant is of
course the only former aide Mr. Gudes has. The statement does include the statement that he made
a mistake hiring a friend. It also addresses and attempts to minimize and explain the finding of the
Report.

Mr. Barack's statement that Mr. Gudes has "no ability to impact [the Claimant's]
employment with the City" (and therefore could not commit retaliation against the Claimant)
demonstrates a disregard for applicable law. The law is clear that an employer can be guilty of
unlawful retaliation against an employee even after the employment relationship has ended. For
example, the act of an former employer disclosing to a prospective employer of the employee that
the employee had filed a complaint of discrimination against the former employer is an act of
retaliation that could create liability both for the fonner employer as well as any prospective
employer who does not hire the employee after receiving the information.

More importantly, it is clear that the Statement appears to have never been intended to be
part of the Response that Mr. Gudes was given the opportunity to make. The Statement adds
nothing to the specific responses made by his legal representative. It merely seeks to "spin" the
Response and the Report itself. The Statement includes the following non-specific and
contradictory statements:

7 I note that as recent.ly as March 15, 2022, Mr. Barack has emailed me to express Mr. Gudes demand that the City's

"bizarre" investigation be concluded.

7
 "While I disagree with the entirety of the findings in the report .... I do accept
responsibility for comments that I made, while not sexual harassment, were not
appropriate for the workplace." (emphasis added).

"I made the mistake of hiring a friend and not establishing boundaries for the
relationship because the dynamic had changed." (emphasis added).

"These circumstances led me to make comments that were not appropriate in the
workplace but would not be uncommon among old friends, which is what I
considered us at the time." (emphasis added).

"Many of the accusations are false and there are certain remarks that I have been
accused of making that I have denied and must continue to categorically deny."
"However, I admit that some of the statements are true, though unfortunately taken
out of context." (emphasis added).

"Additionally, I believe there are ways I can improve on effectively communication with
and managing others, and to assist me with this, I have decided to engage the services of
an Executive Coach, Gena Cox, Ph.D., at my own expense. It is my hope that through
this process I can further develop my own leadership skills and workplace sensitivity

~~~- l
so that I can be at my best to better serve my constituents and this City." (emphasis

The statement concludes with Mr. G des' acceptance of responsibility "for comments I
made" and apologies for "his words that caused [the Claimant] discomfort." In fact, the Report
cited at least 19 specific statements or conduct. The Response addressed each of them. In the
Response, Respondent denies all or part of thirteen of the statements he is alleged to have made.
He excuses two of the statements by the fact that he and the Claimant were friends before she
began working for him and he had not yet put down boundaries, or the words were taken out of
context. He fully admits only: (1) telling the Claimant that she was overly sensitive (although he
could not say ifhe made this comment to her as many as twenty times, as the Claimant said), (2)
telling the city attorney that she was "overly sensitive" and "sensitive to criticism" (in the
interview, Respondent answered that he has said words to the city attorney "to the effect" that she
should "toughen up"), (3) referring to a deputy city official as "fox" to her face and in front of
others (in the investigation he admitted to also calling her "foxy" but withdrew that admission in
the Response and added the explanation that "Fox" is the woman's nickname and he "has asked
the individual if she is offended by the name and she has said she is not and has not asked him to
stop"), and (4) using a vulgar term for the vagina when he was explaining to the Claimant that he
was not looking at her crotch (although in the Response he claims that he actually used a different
vulgar term for the organ, the same term the Claimant's boyfriend had used when he informed Mr.
Gudes that the Claimant had been offended by Mr. Gudes' workplace behavior.

The final words of Mr. Barack's response to the Claimant's affidavit are: "Chair Gudes
wishes all City employees, including [the Claimant's name], success in their endeavors," like his
encouragement to release the statement he had already released, these statements are at best
dismissive. In the Response, after referring to Mr. Gudes' statement, Mr. Gudes' representative
wrote the follo~ing on his behalf:

8
 Notwithstanding the foregoing, I believe that it is important to emphasize that that the
Report fails to present a complete picture of Respondent's position, contradicts itself, and
makes what are at best described as strange and inconsistent credibility assessments.
Below I will provide a background on the relationship of Claimant and Respondent,
discuss the problems with the Report's "Credibility Assessments," discuss the
allegations, and then explain why this not sexual harassment.

It is my opinion that any part Mr. Gudes (or anyone acting on his behalf or assisting) played
in facilitating a telephone call from a reporter informing the Claimant that he was going to write a
story about the "Gudes matter," that "people" were asking why the investigation is taking so long
and attributing that delay to the administration's "politics," asking her if she wanted to reply to
that assertion, informing her that Mr. Gudes already had made a statement, and then reading Mr.
Gudes' statement that identified her as the Claimant and characterized the Claimant as having
made a false claim could constitute retaliation. The Claimant has not alleged retaliation and so
there has been no investigation of such an allegation. I do, however, credit the Claimant's
description of the event, for the reasons I have stated above, over the explanation provided by Mr.
Gudes' representative and have considered Mr. Gudes' actions, and the release of the content of
the statement, in assessing his Response to the allegations.

III. The Response

The Response begins with a description o±the "relationship between Claimant and
Respondent," pointing out that they have been very cl e friends for over 6 years and that they and
mutual friends often socialized, made "inside jokes" a d "teasing comments," used profanity and
"discussed adult themes." He characterizes his hiring of a "longtime friend" and failing to
"recognize the change in the dynamic of the relationship" caused by the hiring as a "mistake."

He apologizes to the Claimant "for his words that caused her discomfort." He does not
identify those words. In his Statement, he writes that "many of the accusations are false." In fact,
he denies all inappropriate comments attributed to him. He writes in his statement that "there are
certain remarks that I have denied and must continue to categorically deny." In fact, the Report
contains no mention of"categorical" denials. Respondent is reported as answering most allegations
with a statement that he "could not recall" making the statement. The Report also notes the
Respondent's few express denials. The Response treats all of the these answers as denials. It
characterizes as 'bizarre" the interviewers' resolutions of credibility. The Report does not make
any resolutions of credibility.

The Respondent "admit[s] that some of the statements are true," but qualifies them as
"unfortunately taken out of context." He describes the missing context only in one instance. He
acknowledges that there are "ways he can improve on effectively communicating with and
managing others," but does not describe any situation in which his management or communication
skills affected his conduct in dealing with the Claimant. He writes that he has engaged an executive
coach who will help him "further develop [his] own leadership skills and workplace sensitivity"
but he does not admit to lacking sensitivity or creating a hostile environment because of that lack.
To the contrary. he portrays himself as a champion of women appointed to City positions. Finally,
and "[n]otwithstanding" the expressions of accepted responsibility, regret, and needed change, Mr.
Gudes' repr~sentative emphasizes that the Report fails to provide a "complete picture of the

9
Respondent's position, contradicts itself, and makes what are best described as strange and
inconsistent credibility assessments." In fact, the Respondent admits no inappropriate conduct.

Prefacing responses to the investigators' findings with the Statement that mischaracterizes
the contents of the Report but does not specify any statement or conduct attributed to the
Respondent which he believes to have been inappropriate does not provide a basis on which the
investigators' conduct may be questioned. With respect to the Respondent's specific responses to
specific allegations, I have observed the following:

I. The Respondent addressed the Claimant as "Celie." The Claimant claims she was
referred to as "Celie" by the Respondent, 5 or 6 times, once when ordered to bring the Respondent
a drink of water. Celie is of course a character created by Alice Walker in the novel, "A Color
Purple." The specific aspect of the character which caused the Claimant to perceive the use of the
name as derogatory was the character's abusive treatment by her husband. Respondent does not
deny the use of the name in the work setting. He contends that there is nothing "sexual or harassing
with the use of these character names" and in fact in the "friend group" that existed before the
Respondent hired the Claimant (who was already working at the City before the Respondent's
election) included the Claimant and the Respondent, "they teasingly referred to the female
members of the group as "Celie," and the males as "Mr." The Respondent claims that texts among
the members of the friend group prove that the term was not used in a demeaning manner, but
rather a friendly manner, amongst friends.

Lhis response demonstrates that the Respondent and h) representative misapprehend the
concepl1of sex-based harassment and ignore the difference betkeen conduct which is acceptable
in a social setting among friends and that which would create a hostile work environment. The
Claimant makes no allegation that the Respondent made sexual advances toward her. The "Celie"
reference is not the only statement or conduct the Respondent defends himself by noting the
absence of any accusation that he committed any sexual impropriety. But sex harassment is not
always about "sex" and it includes more than explicitly or implicitly sexual commentary or
conduct. The E.E.O.C. explains the concept as follows:

Harassment does not have to be of a sexual nature, however, and can include offensive
remarks about a person's sex. For example, it is illegal to harass a woman by making
offensive comments about women in general.

The Respondent's second misconception is failing to see the distinction between referring
to someone as Celie in a social setting and the use of that name in a work setting, by a supervisor
who by himself can terminate the employee without cause. A previous relationship between a
supervisor and employee does not create a license to harass the employee after she is hired. It is
not necessary to establish "new boundaries" after an employer hires a friend. Insofar as laws
prohibiting discrimination are concerned, the boundaries' existence predate the employment
relationship. The Respondent denies that he referred to the Claimant as Celie as he sat with his feet
up on his desk and ordered her to bring him water. He says that after the Claimant complained
about the reference, he did not use it "toward her" again. The Claimant alleges that he did continue
the reference even after she objected, until an intern heard the Respondent refer to the Claimant
by that name and complained about its' use. The intern, who has no relationship to the City,
corroborated hearing the statement as well as the Claimant and she complaining about it.
 2. Both the Claimant and the intern told the investigators that the Respondent made
the comment that he "would never share a bank account with a woman.,, In the opening to his
Response, Respondent recasts the comment and argues that it could not be seen as harassment
because a statement that "someone would not have a joint bank account with a romantic partner-
without more- is . . . simply a stated preference." In the body of the Response Respondent writes,
"Respondent believes this incident did not occur, but even if it did there is nothing sexually
harassing or derogatory about stating a personal preference to not have joint bank accounts." No
one has alleged, and he does not admit to making a statement about "romantic partners" or "joint
bank accounts." The comment attributed to the Respondent is that he would not share a bank
account with "a woman." According to the investigators, when he was interviewed about the
comment, he said he did not "recall" making this comment or a "similar one." He now says that
he "believes this incident did not occur" and explains that he "could not imagine speaking about
his bank account in front of an intern." As he does with several of the findings, Respondent now
argues that his stated inability to recall having made a statement he was questioned about was
intended as a denial that he made the statement. I do not disagree that saying one does not or cannot
recall making a statement is the equivalent of a denial. But answering an interviewer's question
by saying that one does not remember making a particular statement is not a "categorical" or "full"
denial. When another person provides evidence that the Respondent did make a statement, the
interviewer must determine whether the person professing an inability to recall is forgetful of an
event that happened. The Respondent does not challenge the truthfulness· of the intern who told
the investigators that the Respondent made the comment and the Claimant objected.

3. C[omments in the workplace about the Claimant's daugh) r's breasts accompanied
by a hand gestur~. The Claimant alleges that Respondent remarked to hefdaughter that she needed
to stand up straight because she "had really big boobs and if (she] kept standing like that your
boobs will be down to here." The statements were corroborated by the Claimant's daughter who
said that the comments were made directly to her not the Claimant as Respondent alleges. While
she could not recall the exact words Respondent used, she remembers Respondent uttering the
word "boobs" and his making a hand gesture suggesting breasts. In the interview Respondent is
reported to have said that he "did not recall" saying anything to the daughter about her posture and
"did not recall" any comment about the daughter's breasts, but does remember telling the Claimant
that "she needed to have her daughter sit up straight." In the Response, the Respondent says that
he "did not make a comment about Claimant's daughter's breasts or make a hand gesture." He was
"reinforcing the statements made by [Claimant] to help explain to her daughter why good posture
was important." He refutes the Claimant's daughter's statement that she felt uncomfortable in
Respondent's presence and began to wear baggy clothing by pointing out that when the Claimant
and her daughter were allowed to use the pool at Respondent's "other property," the daughter wore
a bathing suit, and alleging that "the daughter wore baggy clothing [not because she was
uncomfortable around the Respondent but] because, unfortunately, [information redacted]."
(emphasis added).

The redaction included a footnote inviting the undersigned to contact Mr. Barack "if I
required additional information." The information to which the Response refers was not provided
to the investigators. The offering of information that is intended to rebut a statement made by the
Claimant's daughter, by describing what Respondent contends is the actual reason the Claimant's
daughter wore baggy clothing (i.e., to demonstrate that the daughter is untruthful] which redacts
the staterpent of that reason buf includes the word "u.nfortunately" before the redaction provides

11
no basis for reassessing the investigators' determinations of credibility. In fact, it appears to be an
implicit threat to disclose some fact that the daughter would not want disclosed.

The Respondent's representative is certainly aware that anything submitted in response to

the complaint will become public record, regardless of whether the information was provided in
writing or delivered at a later date. So there is no difference between inviting a request and putting
the material in the letter. Prior to sending the Response, Mr. Barack called and asked me if he
should send the Response to me or the city attorney. I therefore want to make clear that I did not
and will not request the information. The interviewers concluded that that the Respondent would
have remembered whether he made a comment about his aide's daughter's breasts and therefore
should have been able to deny making it. That he did so after the fact does not provide any basis
for discounting the corroborated statement of the Claimant.

4. Comments about the Obama family. The Claimant alleges that the intern
approached her in the summer of 2019 and reported that she and the Respondent had been
discussing a book written by Michelle Obama. The intern reported that the Respondent made a
comment about an Obama daughter's "hot body" and expressed the opinion that he "bet she [the
Obama daughter] was wild," The intern was interviewed and corroborated the Claimant's account.
The Claimant claims that she confronted Respondent, who replied that the intern was a "young
girl and misunderstood" what he said. In the interview, Respondent said he "cannot recall" having
a conversation with the intern in which he commented on any member of the Obama family. In
the Response, Respondeit now "emphatically denies" making "derogatory stattents regarding
any female members of he Obama family." He adds that the alleged comment as not directed
toward the Claimant or aid in her presence. That fact is not relevant to an in estigation of an
allegation of a hostile work environment. Again, the Respondent misses the mark in his defense.
A hostile work environment is not defined only by what is objectionable to the person to whom
the speech or conduct is directed. An employee affected by a discriminatory work environment.

5. The making of a homophobic slur about a City employee. The Claimant alleges that
the Respondent referred to a City employee with a homophobic slur and said that the employee
was "in the same club as the mayor. She's in the ********** club." Respondent notes his
"understanding" that the Claimant is not a lesbian, the fact that the comment was not made to or
about the Claimant, and his mindfulness of the experiences of the LGBTQ+ community. He argues
that "even as alleged," the comment made in reference to a City employee is not evidence of
harassment. None of these assertions is relevant to the allegations if the Respondent did not make
the statement and he now says he "did not make these statements" (in his interview he is said to
have replied, "no, I don't recall"). More importantly, a comment on one's sexual orientation is a
comment "based on sex." The Supreme Court has recently made clear that for purposes of Title
VII, the term "sex" includes orientation, preference and identification. The fact that a comment
was not made about or directed to her does not make it irrelevant to consideration of a claim of a
hostile environment. To the contrary it must be taken into account in assessing frequency,
pervasiveness, and severity.

6. Comments made at a retirement party about a retiring City official. Claimant alleges
that Respondent made inappropriate remarks about the official' s body and sex life. Claimant
claims to have confronted Respondent. The intern told the interviewers that the Claimant told her
about t_he incident the day aft~r it happened. A state.ment that is consistent with testimony may b.e
introduced to rebut a charge ofrecent fabrication. Respondent acknowledges discussing the official
12
during working hours following their attendance at the retirement party. He says now that the
conversation was not "about" the official's body. In his interview the Respondent said he
commented that the official was "a beautiful woman. She has a big butt." Respondent agrees that
the Claimant told him that the remarks were inappropriate and he said, "okay, no problem." The
Respondent admits that the discussion involved the official's physique but alleges that "nothing
was said of a sexual nature." He concludes his response by alleging that "this comment [which he
says occurred in a casual discussion at the end of a work day] about another individual does not
represent sexual harassment."

7. Comments about the mayor and her wife. The Claimant claims that at a fundraiser,
the Respondent made a comment about the mayor and her wife. The Report records Respondent's
denial ("He said he did not say anything that Claimant could have misconstrued as this."). The
interviewers found the Claimant to be credible and the Respondent to have an incentive to deny
the allegation. It is noteworthy that the interviewers gave full expression to Respondent's very
strong denial. There is no mention of any inability to recollect an event. The obvious differences
between the denial of this allegation as compared with a professed inability to recall events
occurring after or in the same time must be considered in assessing the Claimant's claims.
Remarkably, the Respondent faults the investigators' determination that the Respondent had an
incentive to deny the alleged statement, noting that the Claimant also had a strong motivation to
"lie about salacious statements allegedly regarding the mayor because she knows those statements
will get attention." The Respondent has not provided any evidence which would prove that the
Claimant filed a false charge of ditcrimination solely for the purpose of "getting attentionj'

8. Comments about t e Claimant's dress. The Claimant alleges that the Res ondent
made comments about a gown she had worn to an Outback Bowl party. The comments were made
at the workplace and included references to her body and the need to have liposuction "because
she was a little fat around (her] middle section." In the Report, Respondent is described as saying
that "he did not recall" saying he "thought she would have worn something sexier" and "denied"
ever saying anything about Claimant needing liposuction. In the Response, Respondent says that
"he has been advised" that the Claimant has misrepresented a conversation she had with a mutual
friend of the Claimant and Respondent. I have no way of assessing this allegation, as the Response
does not identify the source of this information and he apparently did not provide the information
to the interviewers (in his interview he did not recall the comment but "at times Claimant would
not dress "appropriately for the office" and he suggested she talk to a mutual friend.) It is of course
possible that there was more than one conversation about the Claimant's dress. The interviewers
found that the Claimant's allegation that Respondent discussed her dress to be more likely true
than not based on Respondent's inability to recall and made no determination about the truth of
the comment about liposuction based on his denial. The Respondent's evaluation of the Claimant
covering the period of May 1, 2019 to May 1, 2020 (which Respondent signed on August 9, 2020),
rated Claimant as outstanding in several categories and noted, '"'[the Claimant] dresses very
professional for work and when out in the community"). The Claimant alleges that the comments
were made "around January 6, 2020," some six months after Claimant came to work for
Respondent.

9. The comment about an activist who was to give an invocation at city council. The
Claimant alleges that she suggested that Respondent meet with and invite a female activist to
conquct the invocation at ~ city council meeting. Respondent allegedly responded by asking why
he should meet the activist, using coarse and graphic language to refer to sex acts the activist was
13
not providing to Respondent. Respondent denies making the comments. The interviewers did not
make any determination of credibility. Respondent argues that because the interviewers were
unable to detennine truthfulness. "the credibility determination should be made in favor of the
Respondent." He provides no legal authority to support this assertion. Were this the rule to be
applied in internal investigations of allegations of discrimination then any victim in a "s/he said.
s/he said" situation would never have recourse to an internal complaint system. This memorandum
addresses an investigation. As with investigations conducted by the E.E.O.C. or any other agency
looking into complaints of sexual harassment. there is no burden of proof.

I 0. Claimant answering the door of his home wearing boxer shorts. The Claimant
alleges that when she went to the Respondent's house to deliver work-related papers, Respondent
answered the door wearing no shirt and boxer-style undergarments and told her to come in the
house. Claimant claims that she said to the Respondent. "I am your employee." Respondent
recalled the occasion and said he was wearing shorts. With respect to the Claimant's statement that
she was the Respondent's employee. Respondent told the investigators that the Claimant made "a
comment" and he put long pants on. The Claimant does not remember the Respondent putting on
long pants. The Response includes the assertion that "because the Claimant was not performing
her job duties timely, she often had to bring documents by for his signature ... during off time."
This incident is dated as having occurred between January 6 and March l. 2020. In the evaluation
covering the year that included these dates the Claimant was rated as excellent in the category of
attitude toward job. The evaluation included the comment, ""[Claimant] frequently exceeds
expectation and is willing to stay late hourtuntil work is complete.•• She was rated as excellent in
the category of disciplinary history. The e aluation included the comment, "She can be counted
on in my absence and is very timely."

In assessing a claim of discrimination, an employee's poor performance is not a defense to

the charge unless it can be shown to have been addressed before the alleged discrimination took
place. The Response includes the following description of the Claimant's performance:

Claimant failed to understand the nature and demands of [her position]. Claimant
struggles with her work performance and several individuals talked to Respondent about
her not answering phones, returning phone calls, responding to emails, etc. Respondent
attempted to address these issued with Claimant but when he tried, she would become
combative and refuse to do work assignments. She would also fail to respond to
telephone calls or communicate with Respondent. Realizing that Respondent and
Claimant's relationship needed to change, Respondent worked harder to treat her as an
employee and not as a friend.

The 2019-2020 evaluation includes the comments that the Respondent, "would like for
[Claimant] to improve her level of sensitivity and not allow constructive criticism to [a]ffect her
personally." But the overall rating on the evaluation was 55 points out of 60. There is no record of
any attempts made to correct the Claimant's performance or of the Claimant's insubordinate
refusal to perform work assignments. There was no obligation for the Respondent to create such a
record but when the employee's performance is used as a defense to a charge of discrimination the
absence of a record does undercut the person's assertions. ·Similarly, There no record of the steps
Respondent allegedly took after realizing that he had to treat her "as an employee." Finally, it does
not matter that the Clairqant had to bring paper,s requiring a signatur~ to the Respondent's house
because she so frequently failed to timely complete her duties. What matters is that for whatever
14
reason Respondent allowed the practice to take place and in doing so he made his residence a part
of the workplace in which the Claimant was to be protected from harassment.
The Respondent takes exception at the fact that the interviewers did not resolve the
differences between the Claimant's allegation that Respondent was wearing boxer shorts and his
contention that he wore some other kind of shorts. Whatever Respondent had on when Claimant
arrived at his house (by his account the Claimant referred to his "drawers") he admits discussing
her objection and put on trousers.

11. The shower comment. Claimant alleges that the Respondent called her at home and
her daughter answered. The daughter told Respondent that the Claimant was in the shower. The
Respondent allegedly replied, "tell your mother to be sure she takes a good one." In the interview,
Respondent said he "does not recall" telling the Claimant's daughter to tell her mother to be sure
she took a good shower. In fact he "does not recall" any occasion on which the Claimant's daughter
said that her mother was in the shower. The Claimant's daughter does not recall the exact words
but does recall the telephone call and remembers that the Respondent said something "along the
lines" of what the Claimant alleges. The Response notes that "At best, depending upon the tone
and circumstances, a comment like this would represent a level of frustration with an employee
who was repeatedly not available to her supervisor during the workday, but it is not sexual
harassment." This incident is dated April 2020. The evaluation signed on August 9, 2020 noted
that the Claimant "is completely reliable and dependable." She was rated excellent in this category,
signifying that she was "highly reliable and dependable in the absence of supervision."

12. The encounter between the Claima) and Respondent in June or July 2020. The
Claimant alleges that on one occasion, when Respbndent drove to her home to pick up work-
related papers, after having observed earlier in the day that her boyfriend's car was parked at her
house, Respondent leaned out of his car, sniffed the air and said, "it smells like a man has been up
there." Respondent told the interviewers that "on the day in question" he "smiled up and down" at
the Claimant and said "mmmm." According to the Respondent, the Claimant asked him what he
was smiling about and he replied, "nothing." In the Response, Respondent "denies saying [the
statement attributed to him by Claimant] or anything resembling this statement." He adds that,
"There was a time that Respondent was looking for Claimant because she was not at the office and
was not answering her phone." Respondent had to call a mutual friend, who called the Claimant
and told her that Respondent was looking for her. The Respondent says that it was "after this
incident that the Respondent acknowledged that he had not transitioned their interactions from
longtime family friend to employee." He infonned Claimant "he would no longer be lenient when
work was not done appropriately."

This last sentiment is not expressed in the evaluation the Respondent signed on August 9,
2020, which is understandable given that even though the instrument was signed on that day, the
evaluation covered the period through April of 2020. But the Respondent provides no explanation
for why the Claimant would fall from a rating of 55 on a scale of 60 as of May I, 2020 to being an
assistant whose supervisor had to call a mutual friend in order to have her talk to him. Respondent
does not explain why, under his version of the event, he would see the event as warranting a
warning that he would no longer be "lenient." To the extent that he refers to the fact, noted by the
interviewers but ignored in the Response, that Claimant told "multiple people" her version of the
incident and even went to the human resources department to complain about Mr. Gudes' behavior
(but specifically asked, human resources not to do anything because she feared for her job), the
warning does not assist a trier of fact in assessing credibility.
15
 13. Discussion of the June/July 2020 incident. The Claimant alleges that after her
boyfriend told the Respondent he had offended the Claimant by the conduct described above, the
Respondent spoke to the Claimant and used an offensive term for female genitalia. The Claimant
alleges that the Respondent said, "I told you before, I was a police officer. I was not trying to
smell your t* **." In his interview, Respondent says that the Claimant "did complain about the
incident and he might have mentioned "t***" when he told her he was a cop and not looking at
her in that way." In the Response, Respondent now recognizes that it was the Claimant's boyfriend
who told him the Claimant was upset because she believed he was looking at her "p* * **."
Respondent told her that he "was not looking at her crotch." He reiterated this in a noteworthy
conversation with the Claimant in which according to him he responded to the conveyed complaint
by asking her, "why would you tell your boyfriend that I was looking at your 'p****?' You know
I wasn't." He added that he "didn't look anywhere near that." He ended this conversation by
saying, "you and we will just be employer and employee moving forward." The Respondent
believes that his recitation of context should have resulted in a finding that he was truthful. This
conversation took place between a supervisor and his only subordinate.

14. Calling a city council member a "p**** m***********." The Claimant alleges
that the Respondent called a city council member a "p**** m***********." The statement was
allegedly made in front of the Claimant's daughter who remembered the use of the word f'i'** but
not the remaining words.

l 15. Women "keeping their mouths shut" comlent. Claimant alleges that in a
conv rsation in which several employees were discussing af~o-worker's marriage, in which an
employee said that it was none of her business what her fiance spent on a ring, Respondent
commented, "that's the type of woman I like, one that doesn't talk much and keeps their mouth
shut." The Respondent was unable to recall the conversation during his interview but upon learning
from the Report that it involved discussion of a ring, remembered the conversation as one that did
not involve the Claimant because she was not there. He offers the testimony of another employee
who he claims was there and says she was not offended but does not remember any the
conversation recited by the Claimant. He does not identify this source or claim that the witness
had been identified to the investigators. The Respondent argues that this unknown witness and the
Respondent constitute "two of the three people present" at a conversation who did not hear what
Claimant heard. It is difficult to question the assessments of the investigators who have not been
provided information the Respondent believes to be decisive, about a conversation that is
obviously not the same one the Claimant talked about if she was not there. More importantly, a
hostile work environment is not defined by asking individual employees if they are offended by a
certain statement. A statement that an employee is not offended made in answer to a question
posed by the Respondent himself to the employee who might very well be intimidated by the
questioner is of no value to analysis of a charge. Had this witness been identified and was willing
to speak to the investigators, the value of this new evidence could have been considered.

16. A comment about menopause. The Claimant says that the Respondent said to her,
in front of another employee, as part of the same conversation just discussed ( concerning the
wedding ring), "what's wrong with you, are you going through menopause or something?" The
woman who witnessed the statement being made corroborated the Claimant's account. In his
interview Responde~t said he could not re~all ever asking or qu~stioning whether someone was
going through menopause. In the Response he denies making the statement and argues that it is
16
illogical for a conversation to tum from wedding rings to asking a person, "what's wrong with
you?" The Response does not provide any basis for discounting the statement of the employee,
who was interviewed by the investigators, who heard the Respondent make the statement.

17. Comment about the city attorney. The Claimant alleges that the Respondent called
the city attorney an "overly sensitive woman." The Respondent admits saying the city attorney
was "overly sensitive." He places the comment in a time when the city attorney "offered legal
opinions that "many in the co~unity and on the City Council strongly disagreed with." The
Claimant says that the Respondent also told her that the "mayor put women in high ranking
positions [and] as a result, the City Council members have to watch what they say." In his interview
the Respondent "does not recall if he directly said that the mayor put women in high ranking
positions and that male members had to watch what they say as a result." He admitted making a
statement "to the effect that Ms. Grimes needs to toughen up." In his Response the Respondent
denies making the statement.

18. Calling an employee "fox" or "foxy." The Claimant alleges that Respondent called
a "deputy city official" "fox" or "foxy." In his interview, Respondent admitted the allegation. In
his Response, Respondent denies calling the employee "foxy," admits that he called her "Fox,"
and says that was her nickname. He says now that that he asked the employee (presumably after
his interview) if she was bothered by it. She said she was not. As with other post-interview
infonnation that was not provided during the interviews, I am unable to assess this response. The
assertion thatl'Fox" was the employee's nickname is relevant blt was not offered to the
interviewers. he fact that the employee was not offended is not relevant. A hostile work
environment an be created by conduct which was not "directed' tow rd the complaining party.

19. Multiple references to Claimant's oversensitivity. The Claimant alleges that the
Respondent told her "multiple times" that she was overly sensitive. In the interview the
Respondent is said to have admitted telling the Claimant she was overly sensitive. In the Response
he admits telling Claimant she was "too sensitive." He says that he also made several comments
about the Claimant's work product and "expressed frustration about the lack of focus from h er"
and noticed that Claimant "was missing from work more frequently, not answering her phone
when she was working from home, not following up on constituents, and making more frequent
mistakes." Neither the Claimant's only evaluation or any other record memorializes these changes
in perfonnance, almost all of which are striking departures from the employee reflected in the
evaluation signed in August of 2020. Respondent offers no explanation for this radical change in
conduct.

IV. Determination

A hostile working environment which violates laws protecting against employment

discrimination exists when "the workplace is penneated with discriminatory intimidation, ridicule,
and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment
and create an abusive working environment." Harris v. Forklift Systems. Inc., 114 S.Ct. 367
(1993). In the case of harassment based on sex, the offending conduct need not be overtly sexual
in nature. Moll v. Telesector, 760 F.3d 198, 203 (2d Cir. 2014). To determine whether a hostile
environment exists, the long established rule requires examination of four factors to determine
whether harassmel)t objectively altered aµ employee' s work enyironment: (1) the frequency of the
conduct, (2) the severity of the conduct, (3) whether the conduct is physically threatening or
17
humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes
with the employee's job performance. The conduct should be judged from the perspective of a
reasonable person in the alleged victim's position, "considering all the circwnstances," and the
analysis should consider conduct "in context, not as isolated acts." Mendoza v. Borden. Inc., 195
F.3d 1238, 1246(11 th Cir. 1999) (en bane).

To apply that law to the Claimant's allegations, one must begin with her employment
history with the City. The Claimant was employed by the City before she was asked to become a
legislative aide to a member of council. The position she held was included in the bargaining unit
represented by the Amalgamated Transit Union and therefore enjoyed the benefits of the collective
bargaining agreement between that union and the City which included a prohibition of termination
except for cause and the right to appeal any discipline she received to binding arbitration. She was
a classified employee and therefore could appeal discipline and discharge to the civil service board.
The Claimant enjoyed a substantial increase in compensation when she accepted the Respondent's
invitation to become his legislative aide but she also walked away from any protection of her
employment. All legislative aides are at-will employees, whose employment may be terminated at
any time, without cause and with no recourse. She was no longer a classified employee or a
member of the benefit.

There are few at-will employees of the City. Legislative aides are the only at-will
employees who are not members of the mayor's staff, hold a high management position, or are
employed as assistant cty attorneys. Legislative aides are hired, supervised, andtay be terminated
only by the council me1 ber for whom they serve. The power that a council merr ber exercises over
his aide is best illustrat d by an incident he recounts in his Response. His repres ntative writes that
he approached human resources to tell it that "it was not working out with the Claimant" but he
did not want to fire her "because she had a daughter, had serious health concerns that required her
insurance, and had recently purchased a home." He therefore asked if the Claimant "could be
transferred back to Parks and Recreation." The Civil Service Law expressly provides that when an
unclassified employee has been appointed from the classified service, said employee may be
removed and does not have the right to be reinstated to a classified position. The Respondent
intimates that the administration's accommodation of his request is the only reason the Claimant
is still employed by the City.

To terminate the Claimant the Respondent was not required to demonstrate cause or
previous discipline. He describes the Claimant as "failing to understand the nature and demands
of Legislative Aide," and "struggled with her performance." He writes that several unidentified
individuals spoke to him about the Claimant's "not answering phone calls, responding to emails,
etc." and that he had attempted "on several occasions" to address these issues but when he tried
"she became combative and refused to do work assignments." His response to this behavior was
to "work harder to treat her as an employee and not as a friend." None of these behaviors was
documented. What was documented was an evaluation of the Claimant's first year as a legislative
aide, signed by the Respondent in August of 2020, that awarded the Claimant 55 out of 60 points
and included the comment that the Claimant was "doing excellent work."

The absolute power that the Respondent had over the Claimant's employment and the fact,
which he notes in his defense, that no one in City government has the authority to oversee his
conduct, is the necessary starting po,int for assessing the ,Claimant's allegations of a hostile
environment and for resolving credibility (in the context of an investigation, not as an adjudicated
18
fact). Also important is the manner in which the Respondent has responded to this investigation.
The Respondent had no legal obligation to respond to the allegations. But he did. In addition to
meeting with the independent investigators, he submitted a written Response to the Report
provided to him before the investigation was completed. He denied any and all parts of an
allegation that could be construed as being based on sex. Certainly if the denial was warranted,
that fact alone would not be noteworthy. But included with these denials was a gratuitous
statement-that I do believe was disseminated or allowed to be disseminated to at least one
member of the press-in which the Respondent took responsibility for "the comments I made that
were not appropriate for the workplace," admitted to making "jokes and comments that were not
appropriate for the workplace but would not be uncommon among old friends," and apologized to
the Claimant for his "words that caused her discomfort." None of his admissions involve a
comment that would fit within any of these categories. And notwithstanding his denial of any
wrongdoing except poor manners, the Respondent has retained, at his own expense, an expert who
will further develop his sensitivity.

The Statement that I believe was read to the Claimant clearly was intended to convey the
impression that the Claimant was an overly sensitive person who would "lie about salacious
statements allegedly regarding the mayor because she knows those comments will get attention."
The Respondent noted that he has no authority over the Claimant apparently to show that he cannot
retaliate against her. As noted above, that is not the law. The Respondent's explanation (as
conveyed by his attorney)-that he anticipated his Response to the Claimant's allegations would
have been made public before it~ad been delivered to the City- is also relevant to an atessment
of credibility. So too is the infor ation the Respondent provided, the findings and obser ations of
the interviewers, and the substa1 ce of the explanations given by the Respondent. Based pon that
body of knowledge, I conclude that the Claimant, having been corroborated by witnesses against
several of Respondent's denials and having no reason to believe she would gain by making false
statements, is more credible.

Based on my acceptance of the factual allegations, I believe there is reason to believe that
the Claimant suffered harassment based on her sex. I believe that an objectively reasonable woman,
working under conditions similar to those of the Claimant would find it offensive to be referred to
as Celie in the workplace, especially if the name was used as a work order was given. I believe a
reasonably objective woman would find it objectionable for her supervisor to tell her daughter that
she should stand up straight because of the size of her breasts, to comment on a public figure' s
daughter's body and opine to an intern that the daughter must be "wild," to make pejorative
comments about an employee because of her orientation, to comment about the physique of a
retiring city employee (even the Bowdlerized version of the comments, that he said, "that's a
beautiful woman. She has a big butt," to ask an employee, no matter what the employee has or has
not done, "What's wrong with you, are you going through menopause or something?," and
virtually all of the other comments which the Claimant alleges were said. My conclusion is based
on evidence that the statements made were not the entire body of comments. I base this conclusion
on the fact that the Claimant claims that on at least twenty occasions, the Respondent told her that
she was "oversensitive" when she complained about a comment he made or his conduct. The
Respondent acknowledges saying this multiple times but cannot provide a number. He admits to
making jokes and comments that were inappropriate to the work place but has not identified them.
In his Response the Respondent acknowledges the Claimant objecting to a statement. ("After
Claimant obje~ted to the name, Respondent did not use it ~oward her again"; Afler arguing with

19
the Claimant about whether he was wearing boxer underwear or shorts "he went down the hall and
put on pair of pants and came back in."

The Respondent responds to a complaint about his conduct conveyed by the Claimant's
boyfriend by asking the Claimant why she told her boyfriend that he was "looking at your p• • • • .
You know I wasn't." This is the amended version. In his interview the Respondent said that he
used the word t••• .

The Respondent believes that if an employee consents to inappropriate conduct then a

hostile work place is avoided. That is not the law. One cannot validly consent to unlawful behavior
and no matter how many women in a particular workplace take no offence to workplace conduct,
if a reasonable woman would find the conduct offensive on the basis of sex or gender, it can be
unlawful. The Respondent notes that some of the comments were not directed to the Claimant. A
hostile work environment is not created only by what is said to a particular woman.

V. Remedial measures

This memorandum reports the results of an investigation of an allegation of discrimination

based on sex . City policies do not provide a remedy for discrimination which violates the City's
prohibition of that conduct. Should the Claimant choose, she may file a charge of discrimination
with the E.E.O.C. or the Florida Commission on Human Relations. If such a charge is filed, the
City must respond to or settle the matter. Additionally, allegations of sexual harassment have been
recognized as potentially violating the Florida Ethics Code.

As the Respondent has noted, although the Claimant is a City employee and Respondent
was the Claimant's supervisor, there is no official in City government that has any authority over
a member of City Council. (I note that while denying the allegations against him, the Respondent
already has admitted making comments and jokes that are inappropriate in the workplace and has
at his own expense retained an expert to assist him in increasing his sensitivity). However, as noted
above, upon determining that its employee has been the victim of unlawful employment
discrimination, an employer must do what is within its control to do. The Claimant was removed
from her position working for the Respondent and currently works in another department and
therefore is not subject to the environment she found offensive. She did, however, suffer a loss in
her compensation in excess of $20,000.00. The City may take whatever action it chooses with
respect to her compensation, assignment, and terms and conditions of employment.

VI. Conclusion

It is my conclusion that the Claimant has provided evidence demonstrating that she suffered
harassment based on her sex.

.,_

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 I I I I

I I .:. I, t

Attachment A
CONFIDENTIAL AND ATTORNEY-CLIENT PRIVILEGED

TO: Gina K. Grimes, Esq., Tampa City Attorney

FROM: Fredrick H. L. McClure; Alicia H. Koepke

DATE: January 27, 2022

SUBJECT: Report of Investigation into Sexual Harassment Ailegations

I. Background and Summary of Investigation

A. Assignment

On September 14, 2021, Tampa City Attorney, Gina Grimes, Esq. ("Ms. Grimes"), hired
Fredrick McClure and Alicia Koepke of Trenam Law ollectively, "we" or "us") to conduct an
independent investigation of sexual harassment alleg tions made by a City of Tampa employee
l
{"Claimant") against a Tampa City Council member (" espondent"). Ms. Grimes requested we
summarize the steps we undertook to investigate Clai ant's allegations and provide our factual
findings in a report. Ms. Grimes stated that a legal conclusion as to whether Respondent
engaged in actionable se�ual harassment is not necessary for purposes of this report.

a. Summary of Complaint and RHponse

Claimant's complaint, which she made verbally to us during our Interviews of her, is that
while she served as Respondent's Legislative Aide ("LA") during a period of approximately
twenty-six months, Respondent:

• Made approximately eight statements of a sexual nature; 1

• While making three such statements made sexual gestures;
• Made approximately four 2 gender-derogatory statements about women;
• Referred to her as "Celie," a character from The Color Purple, five'to six times {one of
those times while ordering her to get him water);

1 Comments addressing solely a woman's appearance, without more, are not included In this category. Likewise,
the shower comment, addressed below, Is not included In this category.
2 One of the gender-derogatory statements is also a statement of a sexual nature; ln other words, it Is counted

under both categories for purposes of this summary.

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• Told her once that he thought she would wear something sexier, he thought he hired
someone who would wear braids and he thought she could use a little liposuction
because she had fat around her middle section;
• Asked, on one occasion in front of another employee, if Claimant was going through
menopause;
• ·once, k'nowing she was going to his house to provide· tilm work-related documents,
answered his door wearing only his boxer shorts; and
• Treated her and other women more ha rshly than he treats men.

With respect to the last allegation as it relates to her specifically, Claimant stated that
Respondent was harsh towards her throughout her employment (i.e., yelling or barking at her
at least weekly about work issues, criticizing her and making her feel like she could do nothing
right), but stated that his harsh treatment of her noticeably worsened after she confronted him
about an incident that occurred in the summer of 2020, when she alleges Respondent (knowing
he~ boyfriend had been to her house that day) leaned out of,~s car, sniffed towards her groin
ar a and said "it smells like you had a man in there today" (so etimes referred to herein as the
"s iffing incident").

Claimant does not allege that Respondent inappropriately touched her or made sexual
advances towards her at any time.

Respondent denies ever making any sexual jokes, comments, statements or gestures to
Claimant or in her presence, although he admits he might have mentioned "twat" when telling
Claimant that he was not "looking at [her] in that kind of way." He claims not to recall two of
the arguably gender derogatory statements (the bank account and keeping mouth shut
comments), admits he may have made one gender derogatory statement (about Ms. Grimes
being an overly sensitive woman) and adamantly disputes the fourth gender derogatory
statement (the one that is also a sexual statement, in which he allegedly indicated he did not
need to meet with a woman who was not engaging in sexual activity with him). He admits that
he called Claimant "Celie" a few times and admits that he answered his door once wearing only
shorts, but claims they were "boy shorts" as opposed to boxer shorts. He denies saying
anything to Claimant about liposuction or surgery. He denies talking differently to women
versus men when it comes to work. With respect to the remaining allegations, for the most
part he claims not to recall whether he made the statements. 3

1
Specifically, Respondent said he does not recall: (i) asking or questioning whether Clalmant was going through
menopause, (ii) making a comment to Claimant and another City employee that he likes women who keep their
mouth shut, (Iii) telling Claimant that he thought she would wear something sexier, (iv) making any statement or
comment to the intern about Michelle, Sasha or Malia Obama's bodies, (v) having a conversation with Oaimant's

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C. Witnesses and Documents

Over the course of our Investigation, we interviewed twenty individuals. 4 We also

requested, obtained and reviewed written documentation from the City Attorney's office and
witnesses relating to the investigation. The documents provided ·background information only,
as none of the statements that form the basis of Claimant's complaint were alleged to have
been made by Respondent in writing.

One individual expressly declined our request to interview her and another individual
failed to respond to our multiple requests to interview her; neither individual is presently
employed by the City of Tampa or Tampa City Council.

D. Summary of Credibility Assessments

I
Gen rally speaking, Claimant appeared to be credible for a feJ reasons. To start, her
demeanor ind the conviction with which she made the allegations apJeared genuine . More
importantly, her allegation that Respondent made inappropriate statements was corroborated,
in a few instances, by other w itnesses who personally heard him make inappropriate
statements (specifically, a former intern for Respondent, Claimant's daughter and another City
employee). Moreover, Claimant appeared credible because she admitted facts to us that were
not favorable to her (e .g., relating to the nature of her relationship with her then boyfriend, the
manner in which she spoke to Respondent and the fact that she may not have been honest with
Respondent at times when he called and asked where she was) or were not favorable to her
sexual harassment complaint (e.g., she admits Respondent never inappropriately touched her
or made sexual advances towards her; she further admits his harsh treatment and criticism of
her work, as opposed to his gender-derogatory or sexual based behavior, was the primary
reason she took leave). furthermore, her primary goal in making the complaint, as she stated it
to us, is not for monetary gain (she has not made a demand for damages, to our knowledge) or
for Respondent to be removed from City Council, but instead to avoid having to work for
Respondent any longer. Finally, in assessing Claimant's credibility, we found significant that

teen aged daughter about Claimant being In the shower and/or taking a good shower (vi) whether he Invited
Claimant Into his home when he answered the door wearing only boxer or long boy shorts, (vH) saying anything to
Claimant's teenaged daughter about her posture, (viii) telling Claimant that a female police officer Is a "bulldagger"
and (ix) saying he would never share a bank account with a woman.
4 Nearly all of the Individuals we Interviewed requested that'their Identities not be disclosed due to their ongoing

employment with the City, desire to preserve their work relationships and/or the sensitivity of the allegations at
issue. Consequently, we have redacted the names of the lndlvlduals at issue.

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when we asked Respondent about Claimant's credibility-after telling him the allegations she
made against him-he still said he did not think Claimant is dishonest. 5

As noted above, Respondent denied or stated that he did not recall having made most
of the statements that form the basis of Claimant' s complaint, and denied having made any
sexual gestu·res. The gestures and statements Respondent flatly denied for the most part
consisted of behavior he allegedly engaged in solely in Claimant's presence. In other words, if
he engaged in the behavior, he knew Claimant would not have a corroborating witness to
dispute his denials. The only exception is his denia l that he spoke to Claimant's teenager
daughter about her "boobs," but Claimant's daughter stated that Respondent engaged In that
behavior and she appeared credible. With that one exception, when an allegation could be
corroborated by another witness, Respondent either admitted the allegation or claimed that he
could not recall if it occurred. Generally speaking, his claim that he could not recall whether the
specific allegations occurred indicated to us that Respondent believes there is a chance he
engaged in the behav~or alleged; otherwise, given the nature of the allegations, hit position as a
City Council membe and his educational background, we would expect him o be able to
definitively deny thos allegations.

That said, Respondent appeared credible when he expressed frustration with Claimant's
work performance. Some of his complaints about Claimant's work performance were
corroborated by the witnesses that Respondent asked us to interview. Of course, being
displeased with her work would not excuse any of the sexual or gender-derogatory allegations,
but might help to explain Respondent's allegedly harsh behavior in yelling or barking at
Claimant about work and criticizing her work.

Claimant admits that she found her job very stressful and told us that the increased
workload near the end of her employment as Respondent's LA contributed to her stress and
anxiety. She further admits that it was Respondent's criticism of her work, as opposed to the
sexual or gender-derogatory statements and gestures he had made in the past, which led her to
take leave. But, she adamantly-an-d·repeatedly ·stated- to·us-that-Respondentts-criticism-of-a nd ·---·
yelling at her increased after she complained about the sniffing incident, and she believes
Respondent was trying to force her to quit as a result of her complaints about and to him. 6
Claimant told us that a former City employee told her that Respondent said that he wished

s Respondent said that Claimant had been dishonest with him In the past about minor things, such as her lo cation
when he called her, but Claimant admitted that (she told us that she may not have been honest with Respondent
at times when he asked where she was, because she said she did not believe she should have to disclose to
Respondent where she was at any time, day or night).
6
Respondent said he never made Claimant's job difficult after she complained about his behavior.

.. .... . - . ... ....... -· ... -- . .

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Claimant would get another job because she was difficult to work with and too sensitive, but
that he did not want to fire Claimant because Claimant has a daughter. We were unable to ·
\ .
confirm with a degree of certainty that statement because that former City employee is ~he
witness who expressly declined to meet with us. But Respondent admitted that he might have
said that to the individual in question and possibly others.

Ill. Factual Findings

Below is a summary of the specific complaints (in date chronological order) that Claimant
made to us, Respondent' response to such allegations and, where the allegation is not admitted
by Respondent, whether Claimant's allegation appears to be more likely than not to be true
based on all of the interviews we conducted and documents we reviewed.

1. (May 2019) Celle

a. Claimant complained that Respondent called her "Celie," a character from ~he
Color Purple, ap1 roximately 5-6 times during the summer of 2019, startin in
May. On one oc asion, Claimant told us (and the intern later confirmed) tha an
intern overheard Respondent call Claimant "Celie" and heard Claimant object to
such name calling. Claimant said that she complained to Respondent the very
first time he called her that, but he continued calling her that until the intern
expressed that she objected to it. Claimant stated that on one occasion,
Respondent, with his feet up on a desk, said to her "Celie, bring me some water."
b. Respondent admits that he called Claimant "Celie," but alleges that he called her
that no more than twice and th_a t he said it in a joking, friendly manner. He
denies having said "Celie, bring me some water," or anything like that. He said
that Claimant did not object to him calling her Celie at first, but she objected the
second time he did so. He said his response to her objection was telling her that
she was oversensitive and "fine, I won't say it anymore."
c. Two friends of Respondent (who he asked us to interview) stated that
Respondent has called them "Celie" when referencing that they look out of place
or their hair looks out of place. But on at least one occasion, when saying "Celie,
bring me some water," to Claimant, Claimant alleges Respondent made no
reference to Claimant's appearance, and used the name calling to assert his
authority over her. Plus, one of Respondent's friends, the intern and Respondent
all confirmed that Claimant objected to Respondent calling her that.

.
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d. Given the testimony of all of the witnesses, and Respondent's partial admissions
on this issue, it is clear Respondent called Claimant "Celie", and it appears he did
so a handful of times as alleged.
2. (Early in the Summer of 2019) Bank Account Statement
a. Claimant and the intern stated that Respondent commented to them that he
would never share a bank account with a woman.
b. Respondent does not recall making that comment and does not recall if he made
a similar comment.
c. Given the testimony of Claimant and the intern, and the fact that Respondent
could not deny the allegation, it appears more likely than not that Respondent
made this statement.
3. (June 8, 2019) Boobs Comment and Gesture
a. Claimant stated that Respondent made the following comment to Claimant's
teenaged daughter in Claimant's presence: "[name of dtughterJ, you need to
stand up straight. You have really big boobs and if you eep standing like that
your boobs will be down to here," while making a gesture o signify breasts.
b. Respondent told us that he has never said anything to Claimant's daughter about
her breasts and also denies making a breast gesture while talking with Claimant's
daughter. He stated that he does not recall saying anything to Claimant's
daughter about her posture, and claims he only told Claimant that she needed to
have her daughter start sitting up. He does not recall referring to Claimant's
daughter's breasts or making a breast gesture while talking with Claimant.
c. Claimant disputes Respondent' statements to us on this issue. Moreover,
although Claimant's daughter does not recall the exact words Respondent used,
she confirmed that Respondent said directly to her something about her posture,
something about her "boobs'.' and made a gesture to signify breasts. She said his
statements and behavior made her uncomfortable, and she wore baggy jackets
around him after that as a result.
d. Given Claimant and her daughter's interviews,' it appears more likely than not
that Respondent made the statements and gesture alleged.

7
Claimant's daughter appeared credible in her demeanor and In terms of the statements she made. When she
could not recall a statement exactly, she was careful to say so, rather than simply agreeing with what her mother
said occurred. Also, we found her credible because when we asked her if her mother ever yelled or cussed while
talking to Respondent, she admitted her mother had.

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4. (July/August 2019) Obama Comments

a. Claimant stated that during the summer of 2019, Respondent's intern, a then 19-
or-20-year-old college student, Immediately approached her when she returned
to the office one day and told her that while she was gone, the intern told
Respondent tha_t she wa~ re;:i_di_ng Miehe.lie Oba.ma's bopk and could re.late to
her. Claimant stated that the intern told her that Respondent said "have you
seen Sasha Obama? She has a hot body. I bet she's wild." Claimant said she
confronted Respondent either the same day or the next day, when the intern
was not present, and Respondent said the intern was a young girl and
misunderstood what he was saying.
, b. Respondent said that he cannot reci31l having a conversation with the intern in
which he commented on Michelle, Natasha (known as Sasha} or Malia Obama's
bodies. Respondent's assertion that he does not recall making any statement to
the int1rn about the Obama women's bodies or even discusslnj the Obama
women with her does not appear credible, not only because it is ha d to imagine
that he would have no recollection of making such statements (es ecia!ly given
the fact that Claimant complained to him about having done so shortly
afterwards), but also because the intern (who appeared credible) confirmed that
he made statements along those lines (although she could not recall the exact
words he used) and said that his statements made her uncomfortable.
S. (Summer 2019) Bulldagger Club Comment
a. Claimant state~ that Respondent made a comment about a member of the
Tampa Police Department that "She's in the same dub as the mayor. She's in
the bulldagger club."
b. Respondent said "no, I don't recall," when asked whether he made this
statement. Notably, initially he said no, but then he said he did not recall. He
did not appear adamant in his denial (which we would expect him to be if he
never made any statements to that effect). Claimant, on the other hand,
appeared confident and adamant that he made the statement. As a result, we
think It Is more likely than not that Respondent made this alleged statement.
6. (Aug. S, 2019) Sex Comment re: City Official and Her Husband
a. Clalmant stated that on the evening of a City official's retirement party,
Respondent commented, "Did you see her husband? He looks like he can't bust a
grape. He has to put on a sling shot tp get up to fuck her because she's got a big
old ass."

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b. Respondent, on the other hand, said the statement he made to Claimant about
the City official was "that's a beautiful woman. She has a big butt. I know her
husband loves her." He stated that Claimant responded by saying that the City
official has not always been that big. Respondent denied saying anything sexual
about the City official or her husban_d. Respondeflt said that Claimant told him
that she thought his comments about the City official were inappropriate and he
said "okay, no problem."
c. On this allegation, Claimant appeared more credible than Respondent for three
reasons. First, the statements Respondent claims he made do not seem
plausible. It does not make sense that he would say that he knows the City
official's husband loves her after talking about how big her butt is without there
having been a comment by him connecting the subject of the City official's butt
to her husband's love for her. Second, Claimant stated that she complained to
the intern right aier Respondent made the comments that night, and the inlrn
recalls Claimant t lling her that Respondent said something about how the ity
official's husban handles her body. Third, it does not seem plausible t at
Claimant would (as Respondent alleges) complain about Respondent's
statements but then continue to engage in the conversation with him by
commenting on whether the City official used to be smaller (or bigger).
7. (Dec. 7, 2019} Sex Comment re: the Mayor and Her Wife
a. Claimant stated that Respondent made a big deal about the Mayor wearing a
gown during a casino fundraiser and commented, in reference to the Mayor and
her wife, "I wonder who is going to be eating whose pussy tonight."
b. Respondent denied ever making a comment about the Mayor's sex life. He said
he did not say anything that Claimant could have misconstrued as that.
c. This is a classic he-said-she-said situation. That said, Claimant's demeanor gave
no indication that she was lying about this when we questioned her about it on
multiple occasions, and overall she appeared to us to be credible. Naturally, If
he made the statement, Respondent would have a strong motive to deny it.
8. (Around Jan. 6, 2020) Wear Something Sexier & Liposuction Comments
a. Claimant stated that Respondent commented on a gown Claimant wore a few
days prior at a party for the Outback Bowl and said, "You· looked nice but I
thought you would wear something sexier. I thought I hired someone who
would wear braids more like [a mutual friend]." When Claimant responded that
she wasn't the mutual friend and wasn't going to get plastic surgery to look llke
her, Respondent responded, "You don't need to have surgery to look like her

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~,. TRENAt0, t . : '· ., .

because you're not fat like [her]. But you could use a little liposuction because
you have fat around your middle section."
b. Respondent said he did not recall telling Claimant that he thought she would
wear something sexier. (He said at times Claimant would not dress appropriately
for the office and he asked her why she _did not ask their mutual friend to get her
some office attire.) Respondent denied ever saying anything about Claimant
needing liposuction or anything about surgery.
c. The fact that Respondent does not recall telling Claimant that he thought she
would wear something sexier leads us to believe that Respondent believes it is
possible he did say that to her, and Claimant was adamant that he did.
Consequently, we believe this allegation is more likely than not true.
9. (Likely sometime after Jan. 6 but before March 1, 2020) Sexual Comments re; Female
Activist
a. Claimant stated that uponter suggestion that Respondent meet with and invite
a female activist to cond ct the invocation/prayer at a City Council meeting,
Respondent said "I'm not eeting with her. What do i need to meet with her
for? I'm not fucking her. She's not blowing me !with a gesture towards his
penis.} So I don't have to listen to her."
b. Respondent admits that Claimant recommended that he meet with the activist,
but denies ever having said anything like "I'm not fucking her, she's not blowing
me."
c. This is another classic he-said-she-said. Claimant was adamant that Respondent
made the comments, and Respondent was equally adamant that he did not say
it. In light of the fact we had no independent information supporting eit her of
their positions, we are unable to say which of their statements is more likely to
be true.
10. (April 2020) Answering the Door in Boxer Shorts
a. Claimant stated that on one occasion, knowing that she was coming over to his
house to drop off work-related papers, Respondent answered the door in only
his boxers . She said that he told her "just come in the house." (She said that she
did not perceive his invitation to come in as sexual.) Claimant said she told him
"I am your employee."
b. Respondent said he recalls the occasion and initially said he was wearing "long
boxers." He said that he does not recall asking or telling her to come into his
house. When asked If Claimant said "I'm your employee" or otherwise indicated
that was inappropriate, Respondent said that Claimant made a comment and he

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went and put some pants on. He then said he was wearing "long boy shorts,"
when he answered the door that day, not boxers. When asked about his "long
boy shorts," he stated that he does not wear underwear underneath the long
boy shorts, but said they have no opening in the front and he said they ran to his
mid-thigh. He confirmed he was not wearing a shirt.
c. Claimant said she does not know what "long boy shorts" means, and Respondent
was wearing what she thinks of as boxers. She said the article of clothing in
question went to Respondent' mid-thigh, had an elastic waist, and was loose to
his skin and short. She does not recall whether there was an opening in the
crotch area, as she tried not to look in that direction. She does not recall him
going to put pants on after she commented that she was his employee.
d. In light of the testimo ny of Claimant and Respondent, it is clear that Respondent
answered his door without a shirt and wearing only an undergarment. We
cannot say whether the more accurlte description of the undergarment is boxer
or long boy shorts. ·
11. (Sometime between approximately April a d June 2020). Shower Comment
a. Claimant stated that her teenaged daughter told her that Respondent called for
her while she was showering, and Claimant's daughter told Respondent that
Claimant was in the shower. Claimant said that her daughter told her that
Respondent said "tell your mother to be sure she takes a good one."
b. Respondent said that he does not recall telling Claimant's daughter to tell
Claimant to take a good shower and does not recall any conversation where
Claimant's daughter said Claimant was in the shower.
c. Claimant's daughter recalls the conversation although she does not reca ll the
exact words Respondent said. Claimant's daughter believes Respondent said
something along the lines of what Claimant recalls, and Claimant's daughter
recalls that her mother was angry when she told her mother about the
conversation. Claimant's daughter said that Respondent's shower statement
made her not want to be around him.
d. Claimant's daughter appeared credlble, even admitting that she could not recall
the exact words Respondent used. That, combined with the fact that
Respondent said he could not recall the conversation (as opposed to adamantly
denying he would ever say such a thing), leads us to believe Respondent more
likely than not made the statement.

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12. (June or July 2020) Sniffing Incident

a. Claimant stated that on one occasion when Respondent drove to Claimant's
home to pick up work-related papers, after having observed earlier in the day
that her boyfriend's car was parked at her house, Respondent leaned out of his
car, sniffed towards her groin area, and said "it smell$ like you had a man in
there today."
b. Respondent denies saying to Claimant that it smelled like a man had been up in
there (i.e., up in her) and denies leaning out of his car or making a sniffing noise.
He said that he has never made any reference as to whether Claimant has had
sex.
c. Respondent said that on the day in question he smiled up and down at Claimant
and said "mmmm" when she walked outside because Claimant's boyfriend had
just left her house and he thought their relationship was over. Respondent
stated in response to him smiling at her an~ saying "mmmm," Claimant said
"what are you smiling about?" and he said "no hing."
d. This is another she-said-he-said situation. With respect to this particular incident,
Claimant was very upset about it and told multiple people about it around the
time that she alleges it occurred. It does not appear that she was motivated by
vindictiveness towards Respondent in making the allegation because she even
asked Human Resources (HR) not to do anything about the incident when she
initially complained, as she said that she still hoped to be able to keep her job
and wanted to talk with Respondent about It. Given her demeanor and the fact
that she discussed the issue with so many witnesses around that time, it seems
more likely than not that Claimant is telling the truth. Moreover, it seems
unlikely that Respondent would drive by her house earlier in the day to try to
locate her for work reasons after she failed to answer his phone calls, observe
that her boyfriend's car was in the driveway, and return later in the day without
saying anything to Claimant about why she had failed to answer his phone calls.
13. (Nov. 2020) Twat Comment
a. In reference to the sniffing incident, Claimant stated that Respondent said to her
"I told you before, I was a police officer. I was not trying to smell your twat. I'm
not interested in your twat like that. I was making a joke. You are overly
sensitive."
b. Respondent said that Claimant did complain to him about the sniffing incident
and he might have mentioned "twat'' when he told her that he was a cop and
not looking at her in that kind of way.

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c. Given the fact that he largely admits this allegation and does not deny using the
word "twat," we think it more likely than not occurred as alleged by Claimant.
14. (Est. early 2021) Pussy Motherfucker Comment
a. Claimant said that Respondent called a male City Council member a "pussy
motherfucker" while on speakerphone during a call when he knew Claimant'.s
teenaged daughter was present in the car and could overhear.
b. · Respondent does not recall if he called the City Council member in question a
"pussy motherfucker."
c. Claimant's daughter recalls that Respondent made a comment about the Council
member in question that included "fuck," but she does not recall if Respondent
specifically called the Council member a "pussy motherfucker."
d. Given the fact that Claimant is adamant he said it, Respondent could not recall if
he did so and Claimant's daughter recalls that Respondent made a comment

j about the Council member that included "fuck," it app~ars more likely than not
that Respondent called the Council member a "pussy me therfucker."
15. Ju e/July 2021) Women Keeping Their Mouths Shut Comment
a. Claimant stated that Respondent commented, in response to another City
employee saying that she kept her mouth shut about what engagement ring she
wanted that "that's the type of woman I like, one that doesn' t talk much and
keeps their mouth shut."
o Respondent stated that he does not recall making a comment to Claimant and
another City employee about liking women who keep their mouth shut.
o The City employee who was part of this conversation with Claimant and
Respondent recalled that she said the price of her ring wasn't her business and
Respondent said "you're a good woman. That's how that was s~pposed to go."
That City employee does not recall Respondent saying that he likes a woman
who keeps her mouth shut, but said he may have said that. She thought his
comment was that she wasn't supposed to know or ask about the price of her
ring.
o Claimant said she remembers Respondent saying he likes a woman who keeps
her mouth shut. She does not recall him saying "that's how that Is supposed to
go" with respect to the City employee not knowing the price of her ring.
Claimant does not recall the price of the ring being part of the conversation.
o This allegation Is slightly more likely than not to have occurred, in our opinion.
Although the City employee was not able to confirm that Respondent said
exactly what Claimant alleged, Respondent was not able to deny it either.

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16. (July/July 2021) Menopause Question

a. Claimant said that Respondent said to her, in front of the same City employee
and as part of the same conversation involving that employee's engagement
ring, "what's wrong with you, are you going through menopause or something?"
b. Respondent. said thi:lt he does not recall ever asking or questioning whether
Claimant was going through menopause.
c. The City employee at issue confirmed that Respondent made this statement, and
we find her and Claimant credible with respect to this allegation, particularly
given the fact that Respondent was unable to deny it.
17. (July 2021) Ms. Grimes Overly Sensitive Woman Comment
a. Claimant said that Respondent called Ms. Grimes an "overly sensitive woman,"
and said if Ms. Grimes is going to be the City Attorney, she needs to "toughen
up." Claimant said that Respondent told her that the Mayor put women in high
rankilg positions; ?IS a result, the City Council members {all of 1hom are men)
have o watch what they say.
b. Resp ndent admits that he may have described Ms. Grimes as eing an overly
sensitive woman. When asked If he said Ms. Grimes needs to toughen up, he
admitted he "might have made a statement to that effect, yes." Respondent
said he does not recall if he directly said that the Mayor put women in high
ranking positions and that the male City Council members have to watch what
they are saying as a result.
c. Given his partial admissions, it appears Respondent made the statements
alleged.
18. (Throughout employment) Calling Employee "Fox" or "Foxy"
a. Routinely, throughout the time Claimant worked as Respondent' LA, she said
Respondent called a deputy city official "fox" or "foxy" to her face and in
Claimant's presence.
b. Respondent admits this allegation is true.
19. (Throughout employment) Overly Sensitive Comments
a. Multiple times, throughout the time Claimant worked as Respondent' LA,
Claimant said that Respondent told Claimant she was overly sensitive and that
he was just joking.
b. Respondent admits that he called Claimant overly sensitive on multiple
occasions, including when she complained about him calling her "Celie." When
asked if he called her oversensitive at least 20 times (which is what Claimant

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estimates), he said he did not know whether he called her that 20 times and
could not recall how many times he has called her that.

In addition to the specific allegations above, which Claimant indicated form the basis of
her sex_ual harass_m ent c;omplaint, Claimant statep that Re.~pondent would yell or bark at ber,
and call her outside of office hours. She said he talked rudely and was demanding of other
female aides and assistants as well, and called some of them outside of their work hours.
Claimant said that she believes Respondent treats women more poorly than he treats men in
general, speaking to women harshly and regularly bringing up their gender/sex, or sexual
preferences when talking to or about them. She also stated that Respondent takes credit for
women's accomplishments, such as claiming that he got certain female employees a raise or a
promotion.

Finally, Claimant had a{ew complaints about Respondent that appeared to be unrlated
to gender/sex, and therefor unrelated to her sexual harassment complaint, such a_ him
referencing that she had he Ith issues in a City Council meeting and him requestin her
assistance when he had a health issue.

With respect to the allegation that he is harsh in his treatment of women at work,
Respondent claims he does not ta lk differently to women versus men when it comes to work.
He said he talks loudly but he does not recall yelling or screaming at Claimant. The intern,
however, said that from her own personal observations Respondent treats women different
than men, and is more patronizing to women. She confirmed that Respondent would yell at
Claimant and say that she is too sensitive.

Respondent said that he thought of Claimant like a sister and admitted that it is possible
he allowed the family-like relationship that he believed he had with Claimant to spill into the
employment relationship such that the interactions were not differentiated. When describing
the group of friends they share, Respondent said they would curse and say all kinds of stuff, but
he couldn't say whether they make se><ual comments. He admitted that he does not recall
Claimant ever having said anything sexual in front of him.

Multiple people.expressed that Respondent has a direct and assertive personality. A LA

who works in close proximity to him said Respondent is "rough around the edges," "difficult to
work with" and "barks even when he isn't angry." The LA said Respondent is disrespectful to
members of staff, although she said he has always been rather respectful to her. Significantly,
that LA stated that Respondent is disrespectful to men in addition to women. For example, she

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said that Respondent was very disrespectful and insulting to two men, and he would challenge
one particular man on everything. She said that he Is rougher on women than he is on men, in
her experience, but pointed out that there are more women in the office than men. The LA
said that Responde nt has never said or done anything towards her or in her presence that she
thought was ina ppropriate; he was loud towards Claimant, but "nothing filthy," that she
overheard.

Another witness also felt that the manner in which Respondent spoke to her (not what
he said, but the wav he said it) during their sole work interaction was belittling or degrading
because he was t elling her what to do despite the fact that he was not her boss. That said, this
witness shared with us that her boss, a male, reported to her that he had a similar interaction
with Respondent when he first met him. That again reflects that Respondent comes across as
harsh to both men and women.

Yet another {female) witness sa1t she never heard Respondent say anything degrading
or out of line to any woman. She also xpressed that Respondent made dismissive comments
about her former boss, a male, even sa ing he has "got to go." This witness said Respondent
would attack her former (male) boss at meetings. The witness said Respondent had an attitude
and impatience towards her former boss, indicating that her former boss was not doing his job
to the degree Respondent expected. As for Respondent' interactions with this (fema le)
witness, the witness said that twice the Respondent called her when she did not do what he
wanted her to do, and in those conversations he was Intense and raised his voice. She
expressed that he thought he had given direction to her and expected it to be followed. That
said, she told us that in the end he listened to her when she offered her perspective and was
not rude about that.

Another (ma le) witness who works with Respondent said Respondent is passionate
about certain issues and forceful about those issues. This witness said Respondent, and other
Council members, are assertive with the City Staff. But this witness could not say that he has
observed Respondent as treating men and women differently when they appear before the City
Council.

Consequently, it appears that Respondent is assertive or intense, and can come across
as belittling or harsh to both sexes. Based upon our follow-up interview of Respondent, it
appears that he agrees with that assessment. Respondent concedes that he can be direct and
harsh because he is "passionate" about his work. When he wants something done, he wants it
done then, not days later. Consequently, when someone does not deliver what he considers to
be timely constituent service, he responds strongly.

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A
Respondent went on to express disbelief that Claimant would make sexual harassment
allegations against him "after all [he] has done for her." He expressed his belief that she only
did so because she feared Respondent would fire her because of her job performance.

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 KWALL BARACK NADEAU PLLC
LABOR AND EMPLO YMENT ATTORNEYS
304 S. BELCHER RD., SUITE C
CLEARWATER, FLORIDA 33765 Attachment B
(727) 441-4947
FACSIMILE (727) 447-3158
WWW.EMPLOYEERIGHTS.COM

February 23, 2022

Thomas M. Gonzales
Gray Robinson
401 E. Jackson Street
Suite 2700
Tampa, FL 33602

Re: Trenam Report

Dear Ms. Grimes:

It is my honor to represent Orlando Gudes. ts you are aware, Fredrick McClure and Alicia
Koepke of Trenam Law were retained to prepare a r port onan oral complaint made by Mr. Gudes'
fom1er Legislative Aide. The document refers to th Legislative Aide as Claimant and Mr. Gudcs
as Respondent, so for convenience I adopted that same convention in this letter.

Prior to meeting with Mr. McClure and Ms. Koepke, Respondent was only informed that
an oral complaint had been made by Claimant and that the allegations were associated with gender
discrimination and not sexual misconduct. While the scope of the complaint changed since that
initial complaint, it is impo1tant to emphasize that there is no allegation that Respondent ever made
a sexual advance or inappropriately touched Claimant or anyone else. Further, while the
Respondent did make some comments that, upon reflection, were inappropriate, as discussed
below they do not constitute sexual harassment. Even as alleged, many of the statements are not
"sexual" or "gender-derogatory" as characterized in this Report. For example, a statement that
someone would not have a joint bank account witb a romantic partner - without more - is in no
way a gender-derogatory statement, but simply a stated preference. Similarly, there is nothing
inherently sexual about stating a hope that someone has a good shower, and there was no additional
context alleged that made it so. These are just two examples of statements that should not even be
part of a sexual harassment complaint.

Respondent has prepared a separate statement where he discusses that he made the mistake
of hiring a longtime friend to be his Legislative Aide and failed to recognize the change to the
dynamic of the relationship as a result. He also sincerely apologizes to the former Legislative Aide
for his words that caused her discomfort. Respondent also acknowledges that there are ways he
can improve on effectively communicating with and managing others, and to assist him in the
learning process he has engaged the services of Executive Coach, Gena Cox. Ph.D. It is his hope
that through this process he can further develop his own leadership skills and workplace sensitivity
so that he can better serve his constituents and the City.

Notwithstanding the foregoing, I believe it is important that I write to emphasize that the
Report fails to present a complete picture of Respondent's position, contradicts itself, and makes
what are best described as strange and inconsistent credibility assessments. Below I will provide
a background on the relationship of Claimant and Respondent, discuss the problems with the
Report's "Credibility Assessments," discuss the allegations, and then explain why this is not sexual
harassment.

I. Relationship Between Claimant and Respondent

Claimant and Respondent have been ve1y close friends for over 6 years. The two actively
and frequently socialized as part of a group of other friends that regularly got together to eat, hang
out and have fun. In addition, Claimant typically spoke to Respondent's closest friend multiple
times per day and was considered one of her closest friends. The Report refers to these closest
mutual friends as friends of Respondent, as opposed to acknowledging that they were very close
friends of both Claimant and Respondent.

~
As close friend groups tend to do, there were insi~ jokes and teasing comments that
ccurred. There was also the use of profanity and discussi n of adult themes. This friendship
ltimately led to Respondent hiring Claimant as his Legislati e Aide after be was elected.

Claimant failed to understand the nature and demands of the position of Legislative Aide.
Claimant struggled with her work performance and several individuals talked to Respondent about
her not answering phones, returning phone calls, responding to emails, etc. Respondent attempted
to address these issues with Claimant but when he tried, she would become combative and refuse
to do work assignments. She would also frequently fail to respond to telephone calls or
communicate with Respondent. Realizing that Respondent and Claimant's relationship needed to
change, Respondent worked harder to treat her as an employee and not as a friend.

These work performance issues continued to escalate, culminating in an event which

ultimately led to Claimant's transfer to another position within the City. In the summer of 2021,
Claimant was supposed to arrange for the Buffalo Soldiers - a well-known African-American
community organization- to receive a commendation from the City. On the morning set for the
presentation, the Buffalo Soldiers were not present. When Respondent spoke with the
representative of the Buffalo Soldiers, he stated that they never received any follow-up from
Claimant. When Respondent reached out to Claimant, she lied about the exchange, not knowing
that Respondent had already talked to the representative of the Buffalo Soldiers. Respondent
became upset and told Claimant that he would handle it himself. Respondent set up another date
with the representative and Claimant became scared. She admitted to a mutual friend of Claimant
and Respondent that she thought she was going to be fired.

Claimant went on leave during the Council meeting when the presentation to the Buffalo
Soldiers was supposed to occur, without notifying Respondent. Respondent was later passed a
note that said she had left for leave and would be gone for a lengthy period of time.

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 Respondent then spoke to Human Resources and told Human Resources that it was not
working out with Claimant. Respondent stated that he did not want to fire her because she had a
daughter, had serious health c~ncems that required her insurance, and had recently purchased a
home. He asked if she could be transferred back to Parks and Recreation, where she had worked
prior to becoming Respondent's aide. Human Resources was able to accommodate the request
and Claimant was able to maintain uninterrupted employment with the City.

It is Respondent's understanding that either the Friday before her leave was set to end, or
sometime over that weekend, Claimant went into the office and tried to delete all of the files from
her work computer. Respondent's new aide was able to locate the files after searching for hours.
It appears that Claimant deleted the files but did not empty the "trash can" so Respondent's new
aide was able to retrieve the files.

Claimant stated that her only reason for coming forward with these allegations was because
she did not want to work for Respondent any longer (and this reason was used in her favor in
making credibility detemtlnations, as noted below). However, Claimant had already been

II. l
transferred as a result of her job performance and she was no longer working for Respondent.

The Flawed "Credibility Assessments" I

Tl e Report goes through great pains to make a credibility detfrmination in favor of the
Claimant nd against the Respondent. A primary reason for this is an assertion that because the
Claimant was found to have admitted to some unfavorable things, she is therefore
credible. However, no such similar logic is afforded to Respondent, who also admitted to several
things alleged in this investigation, which the Report deems unfavorable. Further, the Report
characterizes the Claimant's admissions in a strange way. For example, Claimant repeatedly lied
to Respondent about where she was when she should have been working, but the Report
characterizes this as a "minor thing." The Claimant's honesty about her dishonesty is then used to
deem her an honest person.

Another concern is that the claimed primary goal of the complaint was detem1ined to be to
avoid having to work for Respondent any longer. However, that could have been accomplished
without this extensive investigation and Claimant admits that it was Respondent's criticisms of her
work performance, as opposed to any alleged statements or gestures, which led to her taking leave
from her position as Respondent's Legislative Aide. In fact, Claimant had already been transfen-ed
after her work performance failed to meet expectations and Claimant has enjoyed unintenupted
employment with the City and away from Respondent as a result.

Another asserted basis for the credibility determination in Claimant's favor is that
Respondent found her not to be dishonest even after becoming aware ofthe allegations that are the
subject of the Report. The fact that Respondent stated that Claimant was an honest person, could
be used to support his own credibility. Indeed, for certain aspects - like his frustration with
Claimant's work perfonnance - the Report deems him credible. This inconsistency renders this
Report less per~asive.

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 Further, despite this lengthy section on credibility assessments, where credibility cannot be
found in Claimant's favor, the Report does not find Respondent credible but instead concludes that
it is a "he said/she said" situation. The purpose of a credibility determination is to avoid declaring
something a "he said/she said" situation, yet the Report only makes this credibility determination
when it is favorable to Claimant. In one extreme situation, both Respondent and a third-party
witness deny a statement being made and the Report nonetheless determines that it was made
because Claimant is believed over Respondent and a corroborating witness.

The Report also fails to characterize many of Respondent's denials as denials. As you
cannot recall a statement that was not made, "I do not recall making that statement" has the same
effect as "I deny making that statement." However, the Report repeatedly interprets Respondent's
statement that he cannot recall something happening as proof that they did happen. The Report
also accuses Respondent of only admitting to things when there was a witness present but denying
them when it was only him and Claimant present. However, because they fail to include "I do not
recall" as a denial, this is a mischaracterization of his version of events and shows another clear
bias of the Report to favor Claimant at every opportunity. It also ignores that be, at least partially,
admits to allegations where there were no witnesses, like his reaction to all'iving at Claimant's
house during the workday after he bad been unable to locate her and finding her boyfriend's car
there.

Credibility ~eterrninations are a part of the investigative process. Becausejofthis, the Equal
Employment Oppo tunity Commission has issued Enforcement Guidance discu~sing credibility,
indicating that the allowing factors should be considered:

• Inherent plausibility: Is the testimony believable on its face? Does it make sense?

• Demeanor: Did the person seem to be telling the truth or lying?

• Motive to falsify: Did the person have a reason to lie?
• Corroboration: Is there witness testimony (such as testimony by eyewitnesses, people who
saw the person soon after the alleged incidents, or people who discussed tbe incidents with
him or her at around the time that they occurred) or physical evidence (such as written
documentation) that corroborates the party's testimony?
• Past record: Did the alleged harasser have a history of similar behavior in the past?

The Report does not utilize these factors as recommended by the EEOC, instead relying on
its own factors and applying them inconsistently. For example, when discussing witnesses that
support Respondent's position, the Report refers to them as his friends, but when referring to
individuals who support Claimant, they are judged to be credible witnesses. Bizarrely, despite the
fact that the document acknowledged that Claimant admitted that she was not always credible, the
Report takes this to suggest that she was credible.

Finally, it is again important to note that Claimant and Respondent were friends prior to
and while she was working as his Legislative Aide. Respondent considered Claimant and her
boyfriend to be his good friends both before and during her employment. In addition, Claimant
and Respondent worked closely as she was his Legislative Aide. For these reasons, Respondent
. , .

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may have been too casual and friendly in his interactions in the workplace, which is something he
will remedy moving forward. However, these circumstances must be considered when evaluating
Claimant's allegations to understand the full context of these conversations.

III. Factual Findings

1. Claimant claims she was called "Celie" on occasion by Respondent in May 2019.

The use of the characters from The Color Purple, like "Celie" and "Mr.," was an inside
joke among Claimant's and Respondent's circle of friends. Like many other Americans, Alice
Walker's The Color Purple was an important cultural reference for Claimant, Respondent, and
their close friend group. On occasion they teasingly referred to the female members of the friend
group as Celie and the male members, including Respondent, as "Mr.," which is the name Celie
uses to refer to her husband.

Celie is the main character from The Color Purple. The movie role was played by Whoopi
Goldberg, who is one ofthis coW1try's most recognized celebrities. The character name was never
viewed as derogatory when said amongst friends, as several witnesses who were interviewed
corroborated. After the Claimant objected to the name, Respondent did not use it toward her again.
Respondent never demande[hat Claimant go get him water, while his feet were up on ~ desk.
There was nothing sexual or arassing with the use of these character names. I also belie e it is
generally accepted that whil Celie has a sad story as a child, she overcomes great adver_'ty and
is ultimately strong and triu hant.

There are text messages between Claimant and Respondent's circle of friends, where they
interchangeably refened to Respondent as "Mr." prior to Respondent being elected. These text
messages date back to 2018 and further corroborate that the term was not used in a demeaning
manner, but rather a friendly manner, amongst friends.

2. Claimant claims Respondent said in early swnmer 2019 that he would not share a
bank account with a woman.

Respondent bas no memory of this conversation. Further, Respondent does not speak of
his personal finances aroW1d people he is not very close to and could not imagine speaking about
his bank account with an intern. Respondent believes this incident did not occur, but even if it
had, there is nothing sexually harassing or derogatory about stating a personal preference to not
have joint bank accounts.

3. Claimant claims that in June 2019 Respondent made comments about her
daughter's posture, her daughter's breasts, and that he made a hand gesture.

Because the Respondent and Claimant often socialized with the same group of friends,
Claimant spoke with Respondent on several occasions about how she was worried about her
daughter's slouching and possibly developing a serious health condition. In addition, Claimant
would often bring her daughter when the friend group was socializing and would advise her to
straighten her back. It was as part of these discussions that Respondent commented on Claimant's

5
daughter's slouching as a health concern. This was corroborated by a witness that stated that
Claimant always complained about her daughter's posture. Respondent did not make a comment
about the Claimant's daughter's breasts or make a hand gesture, but was rather reinforcing the
statements made by Claimant to help explain to her daughter why good posture was important.

Claimant claims that she and her daughter were uncomfortable after this alleged statement,
and her daughter began to wear baggy clothing around Respondent after this incident. However,
after this alleged date, the Claimant asked the Respondent if she and her daughter could swim in
the pool at the Respondent's other property on multiple occasions. Neither showed any hesitation
or uncomfortableness in the Respondent's presence or being in swimming attire in the
Respondent's pool. Further, with respect to Claimant's daughter wearing baggy clothing around
Respondent after the above incident, Claimant's daughter frequently wore baggy clothing because,
unfortunately, [information redacted]. 1 A mutual friend of Claimant and Respondent has
corroborated this as well. Even as alleged, this does not constitute sexual harassment.

4. Claimant claims that in July or August 2019 that she was told by another person
that Respondent made a comment about Sasha Obama. Claimant admits that she did not hear the
comment.

Respondent has no memt of this conversation ever occu1Ting and emphatically den~es
making derogatory statements rei arding any female members of the Obama family. The Re rt
concludes that "it is hard to i agine that he would have no recollection of making s ch
statements," but he cannot recall statements that he did not make. This is another example of a
twisted interpretation of Respondent's denial into proof that it did occur. Regardless, this alleged
comment was not only not directed at the Claimant, but it was also not even heard by her. Even
as alleged, it does not constitute sexual harassment.

5. Claimant claims that in the Summer of 2019 Respondent made a comment about
another person using a pejorative slang term for a lesbian.

Respondent stated that he did not make these statements and he answered this question in
a similar manner to the way he answered the other questions that he denied by saying that he bad
no recollection of it. Again, you cannot have a recollection of something that did not happen and
a lack of recollection of a conversation is a denial. It is bizarre that the writers of the Repo11 felt
that he was not emphatic enough in bis denial. To be clear, Respondent fully denies this comment.

Again, this alleged comment was not directed at the Claimant, and it is my understanding
that the Claimant is not a lesbian. It should be noted that Respondent's daughter is gay, and he is
mindful of the experiences of the members of the LGBTQ+ community. Finally, even as alleged,
this does not constitute sexual harassment.

6. Claimant asserts that in the evening after a party in August 2019, Respondent made
a comment about the body of a former city employee. Again, this comment was not about the
Claimant or the Claimant's body.

Please contact me if you require additional information on this redactioJl.

6
 Respondent admitted making comments regarding the individual, but not saying the things
Claimant stated. Further, Respondent explained that he and the Claimant were having an informal
adult conversation during the late aftemoon after a party.

The assertions as to what is plausible or credible about this conversation are bizarre, as
when people are having a conversation it is common for both parties to take part in the
conversation. Under the Claimant's recitation, she did not participate in the entirely one-sided
conversation, which seems unlikely. Respondent admits that a conversation about this individual
occurred and that her physique was discussed but that nothing was said of a sexual manner,
however, Respondent's version of the conversation is dismissed as not plausible. As alleged, this
comment about another individual does not represent sexual harassment.

7. Claimant asserts that Respondent made a comment about the sex life of the Mayor
and her spouse in December 2019.

Respondent emphatically denies making this comment. Once again, this alleged comment
is one that was not about the Claimant or her sex life, but about a third party. It should be noted
that during the discussion of this assertion at Respondent's interview, Respondent discussed how
he has a daughter who is a lesbian, yet the Report leaves this out. This alleged comment about
another individual does not represent sexual harassment of Claimant.

Again, the asse1tions about credibil ty in the document are illogical. The Claimant has a
strong motivation to lie about salacious st tements allegedly regarding the Mayor because she
knows those comments will get attention. And on the contrary, Respondent has no incentive to
publicly discuss the sex life of the Mayor and denies having done so.

8. Claimant asserts that during a conversation aroW1d January 2020, Respondent

stated that she looked nice at a party, but he thought she would wear something sexier and that he
thought she would wear braids. She also asserts that in response to Claimant stating that she was
not going to get plastic surgery, Respondent said that she did not need plastic surgery, but she
could use a little liposuction.

Respondent was not a participant in this conversation with Claimant and denies that he
made these statements. Rather, Respondent has been advised that this appears to be a partial
recitation of a conversation that occurred between the Claimant and a mutual friend of the Claimant
and Respondent who is one of the witnesses in this matter.

The fact that the Claimant sought to insert Respondent into a conversation that she actually
had with another person suggests that the Claimant is not credible and that her memory of events
can be flawed.

Respondent did not participate in this conversation, did not make these statements, and,
even as alleged, it is not sexual in nature and does not constitute sexual harassment.

7
 9. Claimant asserts that during a conversation sometime after January 6111 but before
March 1, 2020, Respondent used profanity in stating that he was not having sex with an activist.
Again, this alleged comment was not about the Claimant.

Respondent is adamant that he did not say this, and Claimant is unsure when these
comments were supposed to have been made. Respondent regularly interacts with many people
in his role as an elected official and he often invites people to events just like this. It does not
make plausible sense that Respondent would respond that way to a suggestion for a person to do
the invocation.

This is an assertion that the Report deems a "classic he said/she said" and that the
investigators are unable to conclude who is being truthful. In that case, the credibility
determination should be made in favor of Respondent, and it is unclear why this is not true of all
of the allegations where there is no witness corroboration, as they would all similarly be reduced
to "classic he said/she said" situations if the same reasoning was consistently applied. As noted
above, the Report only finds that they are unable to reach a conclusion when a finding would favor
Respondent.

10. Claimant asserts that in April 2020, Respondent answered the door wearing boxer
shorts. Claimant admitted that there was nothing sextal about the interaction.

During his interview, Respondent related that e received a call from Claimant, stating that
she was on the way to deliver papers early in the morning. Respondent was lying down on the
sofa and knew that it should take Claimant about 20 minutes to arrive. She arrived sooner than
expected because when she called Respondent, she was closer than she let on. When she knocked
on the door, Respondent jumped up and hurried to the door. He opened the door and let Claimant
in the house. Respondent was wearing his compression shorts, that are similar to the knee length
shorts worn by bicyclists. Claimant said to Respondent that he was in his "drawers" and
Respondent stated that what he was not wearing "drawers," but shorts. He went down the hall and
put on a pair of pants and came back in with Claimant.

The term "boy shorts" is given significant discussion in the Report; however, this is a term
that was first used by the investigators and not a term initially used by Respondent. There appears
to be confusion over what type of shorts Respondent was wearing but then the Report makes no
determination regarding whether these were boy shorts or boxers, making no credibility
determination as to which recollection is more likely to be accurate and still somehow concludes
that they were "undergarments." This is another example of inconsistent application of the
investigators' own overall credibility assessment.

Unfortunately, because the Claimant was not performing her job duties timely, she often
had to bring documents to Respondent for signature, review and/or approval during off time.
Respondent never requested that Claimant visit him. Regardless, an allegation that Respondent
was wearing shorts and no shirt in his own house can hardly be deemed as sexual harassment,
particularly where the Claimant admits it was not sexual.

8
 11. Claimant asserts that sometime between approximately April and June 2020, when
Respondent was trying to reach Claimant, her daughter told Respondent that she was taking a
shower and Respondent told Claimant's daughter to tell Claimant to "take a good one."

Respondent denied that this conversation took place (the Report again refusing to
acknowledge that a failure to recall a statement being made is a denial). In June of 2020,
Respondent contracted Covid-19. During this time, Respondent was barely able to breathe and
was hospitalized on multiple occasions. Thus, it is very unlikely Respondent would have called
and had this type of conversation with Claimant's daughter.

Although Claimant is unsure of the date, Claimant's daughter is unsure of what was said,
and Respondent denies it occurred, the Report found Claimant's daughter to be credible in regards
to this statement. The Report states that her lack of recollection makes her credible and then - in
the very next sentence- states that Respondent's lack of recollection makes it more likely than not
that it occurred. This conclusion ,is illogical. The lack of recollection on the part of both
Claimant's daughter and Respondent should not lead to a finding that it is likely to have happened.

It should be noted that Claimant's daughter is unsure ofwhat was said, but even as reported,
the asserted statement to tell Claimant to have a good shower was not said to Claimant, was not
a[ut Claimant's daughter and is not sexual in any way. At fest, depending upon the tone and
ci cumstances, a comment like this would represent an expressi n of frustration with an employee
w o was repeatedly not available to her supervisor during he workday, but it is not sexual
h rassment.

12. Claimant alleges that in June or July 2020 Respondent sniffed the air near her and
said it smelled like she had a man in there today.

Respondent categorically denies saying this, or anything resembling this statement, to

Claimant. There was a time that Respondent was looking for Claimant because she was not at the
office and was not answering her phone. Respondent called a mutual friend of both Respondent
and Claimant to try to locate Claimant. The mutual friend texted Claimant and told her that her
boss was looking for her (and provided investigators with copies of the text messages).
Respondent needed work information and had to go to the Claimant's home to get it. He went to
the Claimant's home and Claimant's boyfriend's car was in the driveway during the
workday. Respondent called again and was asked to give the Claimant a few minutes. When the
Claimant finally came to the car the Respondent made the statements ("mmmm" and "nothing")
as indicated in the Report. Because the Respondent and the Claimant were longtime friends, he
was aware of the nature of Claimant's relationship with her boyfriend and was responding as a
friend would. It was after this incident that the Respondent acknowledged that he had not
appropriately transitioned their interactions from longtime family friend to employee. He
informed Claimant that he would no longer be lenient when work was not done appropriately.

Once again this was deemed a "he said/she said" situation but then credibility is
painstakingly resolved in Claimant's favor, including a finding that it is unlikely that Respondent
would not say anything about the situation. The fact that Respondent admits partially to

9
commenting on Claimant's relationship is given no weight, when it should, as he is admitting to
an unfavorable fact, even if not as unfavorable as Claimant alleges and it is not sexual harassment.

It is likely that this event did not occur when Claimant says it did because on or about June
17, 2020 Respondent contracted COVID and was quarantined. Respondent was also hospitalized
and suffered a number of serious complications. Respondent believes this incident occutTed just
a few weeks before Claimant's boyfriend approached him about the incident. This shows that the
Claimant's memory is not as clear as investigators believe it to be.

13. Claimant claims that in November 2020, while discussing the above incident,
Respondent used the word "twat."

Claimant's boyfriend, who is also a very long-term friend of Respondent, mentioned to

him one day that Claimant was upset because she believed he was looking at her "pussy."
Respondent said he was not looking at her crotch. The Claimant and Respondent's mutual friend
was also present during this conversation. Claimant's boyfriend then called Claimant and
Respondent said to her, using the language the Claimant's boyfriend had used, "Why would you
tell your boyfriend that I was looking at your 'pussy?' You know I wasn't." Claimant responded
that it was how she felt. Respondent said, "I didn't look anywhere near that." Respondent then
said, "I lauted at you and you know why I laughed." Respondent did n*get into why he laughed
when he sa her because he did not want her boyfriend to know that sh had told him about their
personal ac ions. Respondent then said to Claimant, "From this point fo ard, I will not joke with
you and we will just be employer and employee moving forward."

As noted, this entire conversation occurred in front of Claimant's boyfriend and Claimant
and Respondent's mutual friend. Later that evening, the mutual friend was with Claimant, and
they discussed this matter and how the comments were related to Claimant being with her on-
again/off-again boyfriend during work hours.

The Report leaves out all of this evidence and the majority of Respondent's version of the
facts, which provide the context necessary to understand the events that occurred, which were not
sexual harassment.

The level of detail provided by Respondent, the admission that the conversation that
happened did happen, and the witness corroboration should have resulted in the Report
determining he was being truthful.

14. Claimant alleges that in early 2021 Respondent called a male City Council member
a "pussy motherfucker" while on speakerphone in the car when Claimant's daughter was in the
car with her.

It is my recollection that Respondent was asked by investigators if he ever called a Council

Member a "pussy motherfucker" and Respondent said no. It was never asked of him if he said it
over the phone to Claimant while her daughter was present. Respondent admitted to using the
word "fuck" but not calling a Council Member a "pussy motherfucker." Even Claimant's daughter
does not recall hearing "pussy motherfucker," only that he used the word "fuck." But the
recollection of these two witnesses is dismissed and Claimant's version alone is accepted in the
Report as "more likely that not" to have occurred. Respondent admits that he likely used the word
"fuck" when talking to Claimant, . as he admits to using the word in regular
conversation. However, if Claimant would have said the phone was on speaker, and that her
daugl1ter was present, as one would expect someone to do if a phone conversation could be
overheard by another person, Respondent would not have cursed in her daughter's presence. In
any event, using the word "fuck" in conversation does not constitute sexual harassment.

15. Claimant asserts that in June or July 2021 Respondent said to another employee
that women should keep their mouths shut.

Respondent did not say that women should keep their mouths shut. Claimant's story was
not corroborated by the other employee who was present.

The Respondent was not asked during the interview about an engagement ring, therefore
he was unable to provide a complete answer to this question. The conversation regarding the
engagement ring was between another employee and Respondent and did not involve Claimant.
The other employee was not offended and does not recall any part of the conversation that Claimant
recited. Respondent told the other employee that she was a "good woman." Somehow, the Report
believed that Responient said women should keep their mouths shut, even thoughjwo of the three
people present do no recall those words ever being spoken. For no apparent reas n, this time the
Report determines on y that it was "slightly" more likely than not to have occurred. This is another
illogical credibility d termination made in the Report. And as alleged, this doe not constitute
sexual harassment.

16. Claimant asserts that in June or July 2021 Respondent asked her if she was going
through menopause.

Respondent does not recall asking Claimant if she was going through menopause.
Somehow Respondent's lack of recollection/denial was warped into a determination that be was
"unable to deny it." Respondent denies this statement was made by him. This conversation
allegedly occurred during the conversation regarding the other employee's engagement ring and
would not be sexual harassment of Claimant. It seems there is a big part of this conversation that
is missing. In the conversation as reported by the other employee and Respondent, Respondent
stated that she had a nice ring. The other employee stated she didn't know how much it cost.
Respondent said, "You're a good woman. That's how it's supposed to be." It would be illogical
for Respondent to then turn to Claimant and ask if she was going through menopause. That does
not flow with the conversa.tion that was occurring as Claimant was not a part of this conversation.

17. Claimant asserts that the Respondent stated in July 2021 that the City Attorney is
overly sensitive.

During the swnmer of 2021 there was substantial debate about civilian oversight of the
Tampa Police Department. The City Attorney's Office offered legal opinions that many in the
community and on the City Council strongly disagreed with. It was in this context that Respondent
admits to saying that the City Attorney was overly sensitive. Respondent further admits that he

11
had this conversation with the City Attorney, where he told her that she was sensitive to criticism.
Respondent also stated that he respected the City Attorney, the work that she has done, and
appreciated that the issue of civilian oversight of the police prompted emotional responses.
Further, Respondent's statement that he believes someone is overly sensitive is in no way gendered
nor is it sexual harassment.

Respondent denies stating that the Mayor put women in high ranking positions and that the
male City Council members have to watch what they are saying. Respondent has been very vocal
ofhis support ofseveral high-ranking women within the administration. For some of these women,
Respondent fought to get these individuals hired and praised the Mayor publicly for her
appointments of several of these people. This public praise was in the media, on Respondent's
social media page, and during press conferences. Many of these same people know that
Respondent unequivocally supports their efforts.

18. Claimant asserts that the Respondent called another employee "Fox" or "Foxy."

Respondent admits that there is an employee whom the Respondent has nicknamed Fox.
He calls her Fox to her face and in front of her boyfriend. Respondent considers the individual a
friend and has socialized with the employee and her boyfriend after hours on social occasions. Her
nickname is Fox, not Foxy. Rtspondent has asked the individual if she is offended by the pame
and she has said she is not and rhe has not asked Respondent to stop. I
Again, this is an interaction with a person other than the Claimant and cannot be
categorized as sexual harassment or even an unwanted statement as the employee is fine with the
interaction.

19. Claimant asserts that during her employment Respondent said that she was overly
sensitive.

Respondent admits that he has stated to Claimant that she was overly sensitive in the past.
These individuals were very close long-tenn friends outside of work. As noted, Claimant and
Respondent have been friends since at least 2016 and they and other members of their friends'
group have had a number of discussions about their lives.

Respondent made several comments about the Claimant's work product and expressed
frustration about the lack of focus from her. Respondent noticed that Claimant was missing from
work more frequently, not answering her phone when she was working from home, not following
up with constituents, and making more frequent mistakes. When Respondent would mention this
to Claimant, she would blow up and get very upset. Respondent would respond that she was too
sensitive because of this. This happened not only with Respondent, but when anyone commented
on her work performance, or lack thereof, Claimant would respond the same way. This was
documented by emails and text messages. Claimant was unable to accept constructive criticism.
Regardless, this comment is not sexual and is not harassing.

20. The Report refers to other unnumbered complaints.

12
 There are other unnumbered complaints in the Report. These are deemed to be uruelated
to gender/sex. For example, on Page 14, Paragraph 1, Line 3, Claimant asserts that Respondent
would "call her outside of office hours."

It was explained to Claimant during the interview for the position that the Legislative Aide
position did not operate during "normal business hours." TI1e position requires attending after-
hour events and meetings and being available to the elected official at odd times. This was
documented by Claimant's interviewer.

Even <luting the workday, Respondent bad to call Claimant at home on multiple occasions
because Respondent was unable to locate her during her specified work hours for that day. On
several occasions, Respondent located Claimant with her boyfriend, at the dog park with her dog,
or with friends when she was supposed to be working.

Because Claimant began to fall behind with work and miss important deadlines, Claimant
began going to Respondent's home outside of work hours to get his signature or give him
documents for the next day, because she wasn't able to complete the tasks during the day.

When Respondent became Chair, the workload increased. The aide for the Chair receives
an increase in pay during tl1at time, th1 is equivalent to about $8,000 or $9,000, added to her
salary. Respondent explained to Claima1 t that her workload would increase and that there would
be less room for mistakes. Claimant began to complain to others that her workload was
overwhelming, and she began to fall fur er behind.

Respondent discovered, after the fact, that Claimant had emolled in college and earned her
degree while working with Respondent. While Respondent understands that Claimant did not
have to disclose that she was attending college and Respondent respects the fact that she was trying
to better herself through education, it makes sense as to why she began to drastically fall behind,
become irritated with work, and miss important deadlines.

In Page 14, Paragraph 2, Line 4 Claimant asserts that Respondent "request[ed] her
assistance when be had a health issue."

Due to contracting Covid-19. and testing positive on June 17. 2020, the Respondent
developed several health conditions that were related to Covid-19. One in particular was the need
to begin taking - · Respondent struggled with administering the - to himself. Claimant
offered to help Respondent, made an appointment with her doctor, and said she would assist with
the use of th~ , as it was a device that the Claimant was familiar with. Once Respondent
felt comfortable doing it 011 his own, he no longer needed her assistance. A mutual friend of
Claimant and Respondent was present the first time Claimant helped with thellll and can attest
that Claimant was not "required" to help Respondent. Respondent is surprised and disappointed
that Claimant would now characterize this as anything other than an act of generosity between
friends who had medical issues.

13
 Finally, it should be noted that multiple witnesses stated that Respondent does not treat
women more harshly or differently than men and many witnesses could not recall any sexually
harassing or gender-derogatory statements being made.

IV. Legal Analysis

Under the Tampa Home Rule Cha1ter and Florida law neither the City Attorney nor the
Mayor, nor their designees, has any the authority to oversee the conduct of a member of the city
council. Similarly, they do not have the ability to discipline a member of council. Further, there
are questions about the applicability of certain laws to legislative aides. Consequently, nothing
herein should be construed as an admission that the City, the City Attorney or the Mayor has the
authority to oversee or discipline Respondent or that Claimant is protected by any applicable laws.
To the degree there are laws that apply, and the City did have the authority to act upon this Report,
nothing described by Claimant should result in a finding of sexual harassment.

To the extent this Report is used to detennine whether Respondent engaged in legally-
actionable sexual harassment, I am providing the following legal analysis which makes it clear
that his behavior, even if all of the allegations were accepted, does not rise to the level of unlawful
sexual harassment.

In order to prove a hostile work environmJt claim, an employee must show the following:
"(l) that she belongs to a protected group; (2) th;l she has been subjected to unwelcome sexual
harassment; (3) that the harassment was based on her sex; (4) that the harassment was sufficiently
severe or pervasive to alter the terms and conditions of employment and create a discriminatorily
abusive working environment; and (5) that a basis for holding the employer liable exists." Hulsey
v. Pride Restaurants, LLC, 367 F. 3d 1238, 1244 (11th Cir. 2004)(citations omitted).

The complained-of conduct must also be based upon sex. Shockley v. Barbee, 747 F. App'x
754, 757 (11th Cir. 2018)(affinning summary judgment on behalf of employer because employee
could not prove that alleged harassment was based on protected category); see also Whitehurst v.
Liquid Envtl. Sols., Inc., 45 F. Supp. 3d 1328, 1343 (M.D. Fla. 2014) ("The touchstone of a hostile
work environment claim is the presence of severe or pervasive harassment based on a protected
characteristic."). "[NJot all objectionable conduct or language amounts to discrimination ... only
conduct that is based on a protected category ... may be considered in a hostile work environment
analysis." Trask v. Secy, Dep 't of Veteran Affairs, 822 F.3d 1179, 1195 (11th Cir. 2016)(hold.i.ng
that "voluminous incidents of pharmacy management's alleged hostility [and] comments ... were
never related to the plaintiffs' protected characteristics"). Here the alleged conduct is not based
upon the Claimant's gender or sex so it would not be actionable.

Courts have explained that to be actionable

a hostile work environment must be both "objectively and subjectively offensive,

one that a reasonable person would find hostile and abusive, and one that the victim
in fact did perceive to be so." In assessing whether harassment is objectively severe
and pervasive, courts typically look to: (1) the frequency of the conduct; (2) the
severity of the conduct; (3) whether the conduct was physically threatening and

14
 humiliating or just a mere utterance; and (4) whether the conduct unreasonably
interferes with the employee's work perfo1mance. In considering these factors,
[courts) employ a totality of the circumstances approach, instead of requiring proof
of each factor individually.

Hulsey, 367 F. 3d at 1247-48 (internal citations omitted). The Supreme Court has held that the
discrimination laws are not designed to be a general civility code. Faragher v. City ofBoca Raton,
524 U.S. 775, 788 (1998) (quoting Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 80
(1998)). Generally speaking, simple joking, offhand comments, or isolated incidents will not
amount to discriminatory changes in the terms and conditions of employment. Id. Furthermore,
the "sporadic use of abusive language, gender-related jokes, and occasional teasing," which are
simply part of the "ordinary tribulations of the workplace," are not actionable. Id.

The Eleventh Circuit consistently bas held that "[m]ere 'sex talk,' without more, does not
rise to the level of objectively severe and pervasive harassment." Howard v. City of Robertsdale,
168 F. App'x 883, 889-90 (11th Cir. 2006) (upholding summary judgment for employer despite
supervisor's offensive comments about employees' bodies and sex lives and sexual jokes made in
front of other employees on a regular basis while citing for suppo1t cases from other circuits in
which sexual jokes were directed towards the plaintiff); see also Mendoza v. Borden, Inc., 195
.3d 1238, 1246-47 (11th Cir. l 999)(en banc)(finding for et~ployer and collecting cases in which
epeated sexual jokes and other conduct did not support a s xual harassment claim). Indeed, as
[ he Eleventh Circuit noted in Gupta v. Florida Board of Re• ents, "all of the sexual hostile work
environment cases decided by the Supreme Court have ·nvolved patterns or allegations of
extensive, long lasting, unredressed, and uninhibited sexual threats or conduct that penneated the
plaintiffs work environment." 212 F.3d 571, 583, 586 (11th Cir. 2000)(quoting Indest v. Freeman
Decorating, Inc., 164 F.3d 258, 264 (5th Cir. 1999)).

The conduct alleged is neither severe nor pervasive, and, for this reason would not be found
to be sexual harassment. At most, they are stray remarks and do not constitute a pattern of
extensive sexual threats. This is especially true given that many of the assertions related to
comments that were not directed at Claimant. See, e.g. Adams v. Austal, U.S.A., L.L. C., 754 F.3d
1240, 1255 (11th Cir. 2014) (finding that employee's harassment claims could not survive
summary judgment as a reasonable person would not consider work environment to be hostile
where slurs were merely overheard and not directed toward him).

Comparing the circumstances alleged to case law, the conduct alleged by Claimant does
not rise to the level of severity required to constitute a hostile work environment sexual harassment
claim. For instance, in Mendoza, the plaintiff alleged her supervisor constantly stared at her,
followed her around, and looked her up and down in a very obvious fashion. Mendoza, 195 F.3d
at 1238. On two occasions, he stared at her groin area and made a sniffing motion. On one occasion,
he rubbed bis hip against hers while touching her shoulder and smiling. On another occasion, he
said suggestively to plaintiff, "I'm getting fired up." The Eleventh Circuit concluded the district
court did not err in granting defendant judgment as a matter of law because the alleged conduct
was insufficient to sustain a claim for sexual harassment. Id. at 1253.

15
 In Guthrie v. Waffle House, Inc., the Eleventh Circuit held that an employee subjected to
having her rear grabbed multiple times; being subjected to "dirty" talk, including being told that
her coworker wanted to "f"'**" her and "lick" her "all over;" having a coworker speaking openly
about having sex in a van; and asking the employee out on dates 20 times, were all actions that fell
short of "conduct so severe as to alter or change the terms of [plaintiffs] work conditions, as
detennined by this court's case law." 460 F. App'x 803, 807 (11th Cir.2012).

Likewise, in Gupu,, the Eleventh Circuit held that touching an employee's hand and inner
thigh, lifting her ski11, repeatedly asking her out to lunch, telling her she is beautiful, pointedly
staring at her legs, and calling employee at home frequently at night and asking if employee was
in bed or talking to her boyfriend, was not sufficiently severe to create a hostile work environment.
Gupta, 212 F.3d at 587.

In Smart v. City of Miami Beach, a female firefighter claimed to have been subject to
various incidents of gender-based harassment, including discovering her missing bathing suit
returned to her locker "covered in a white substance that [she] presumed was semen." 933 F. Supp.
2d 1366, 1374-77 (S.D. Fla. 2013), aff'd, 567 F. App'x 820 (11th Cir. 2014) (overturning verdict
in favor of firefighter and granting city's judgment as a matter of law). The district court found
(and the Eleventh Circuit affinned) that this and the other incidents she experienced, "while
tappropriate, vulgar, and offensive, were not severe" and tts were "insufficient to maintain a
-rxual harassment hostile work environment claim under Ele rnth Circuit Jurisprudence." Id.

What these cases show is that, in order to be legally-actionable sexual harassment, the
behavior must be incredibly severe or pervasive, which nothing described in this Report comes
close to being. Simply put, the allegations, even if true, are not sexual harassment.

V. Conclusion

Respondent hired a long-term friend to be his Legislative Aide and during her employment
they continued to interact as friends. As friends do, they engaged in banter and occasional adult
conversations. Respondent has acknowledged this was a mistake and apologized to the former
Legislative Aide for his words that caused her discomfort. Respondent did not make sexual
advances or inappropriately touch Claimant or anyone else. Respondent made some comments
that upon reflection were inappropriate, but they do not constitute sexual harassment.

Please feel free to contact me if you have any further questions regarding this matter.

Ryan D. Barack
Board Certified Labor and Employment Attorney
RDB/jhn

16
 STATEMENT OF ORLANDO GUDES

While I disagree with the entirety of the findings in the report regarding my former Legislative
Aide, I do accept responsibility for comments that I made that, while not sexual harassment, were
not appropriate for the workplace.

I made the mistake of hiring a friend and not establishing new boundaries for the relationship
because the dynamic bad changed. I take full responsibility for not recognizing this change. I
considered her a long-time family friend and I regularly socialized with her, her boyfriend, and
several other individuals, both before and during her employment. In addition, she and I worked
closely as she was my Legislative Aide since my election. These circumstances led me to make
jokes and comments that were not appropriate for the workplace but would not be uncommon
among old friends, which is what I considered us to be at the time. I sincerely apologize to my
fonner Legislative Aide for my words that caused her discomfort.

Many of the accusations are false and there are certain remarks that I have been accused of making
that I have denied and must continue to categorically deny. However, I admit that some of the
statements are true, though unfortunately taken out of context. Additionally, I believe there are
ways I can improve on effectively communicating with and managing others, and to assist me with
this, I ha\t decided to engage the services of an Executive Coach, Gina Cox, PhD, at my own
expense. I is my hope that through this process I can further develop m own leadership skills and
workplace sensitivity so that I can be at my best to better serve my con tituents and this City.

Again, I accept responsibility for my actions and apologize for the comments. I intend to learn
from this experience, I intend to be a better person, and I intend to be a better Councilman and role
model in my community.

·--
.. - - --1r--- --"'-
··..........

Orlando Gudes
 I I I I

AFFIDAVIT OF

State of Florida
County of Hillsborough Attachment C

BEFORE ME, the undersigned authority, this day personally appeared who was
sworn and says:
1. This Affidavit is made upon personal knowledge.

2 . While at work on February 23, 2022, at 1:OS p.m., I received a call from Charlie Frago
("Frago"}, a reporter with the Tampa Bay Times.

3. Frago stated that he was writing a story about the Orlando Gudes ("Gudes"} matter, and
that a lot of people are asking why the investigation is taking so long and the delay seemed
to be a political tactic: by the Castor Administration.

4. Frago asked me if I wanted to make a comment.

S. Frago then informed me that Gudes issued a statement and I responded "He did?", in a
questioning manner.

6. Frago repliedtes he did, and said do you want me to read his statementL .

7 _j Frago said "Q ote" and read a statement from Gudes to jthe effect that ' was a
friend of mine when she took her position and I made a mistake when I didn't transition
that friendship into a working relationship', and then Frago said "Unquote".

8. I asked Frago whether my name was in the statement. Frago said only one time, and again
asked If I wanted to make a statement. I told Frago that I needed to get back to work and I
ended the call.

9. Affiant further sayeth not.

STATE OF FLORIDA
COUNTY OF HILLSBOROUGH

Sworn to (or affirmed). and subscribed befor e by means of i:l'physic:al presence or D online
notarization, this Zl/fll day of ftl,,,~.

(Print, Type, or Stamp Commissioned Name of Notary Public)

OR Produced tdentificatiori
Type of Identification Produced: _ _ _ __
 I I I I

KWALL BARACK NADEAU PLLC

LABOR AND EMPLOYMENT ATTORNEYS
304 S. BELCHER RD., SUITE C
CLEARWATER, FLORIDA 33765
(727) 441-4947
FACSIMILE (727) 447-3158 Attachment D
WWW.EMPLOYEERIGHTS.COM

March 7, 2022

Via Email (1homas.gonzalez(ci,gray-robi11s011 .com)

Thomas Gonzalez
GrayRobinson, P.A.
401 East Jackson Street, Suite 2700
Tampa, FL 33602

Re: Orlando Gudes

Dear Tom:

As I mentioned in my prior correspondence, I am unaware of any basis for you the City
Attorney, or the Mayor to make any determination or disposition in any way regarding Chair
Gudes. Under the Charter and Florida law, Chair Gudes does not report to the Mayor or the City
Attorney.

To be clear, Chair Gudes has not yet released a formal written statement. He was
~ l i e d by Charlie Frago who asked him about Ms. - • s complaint, using Ms.
- - • s name. There is nothing inappropriate or retaliato~air Gudes responding to
this inquiry from Mr. Frago, that specifically mentioned Ms. - - by name, with his oral
statement that he made a mistake. Chair Gudes did anticipate that the City would have released
his full written statement by now and encourages the City to do so.

It must be noted that the media knew that Ms. - made a complaint against Chair
Gudes before Chair Gudes was aware of the complaint. On August 18,-2021 Mr. Frago made a
public records request for documents about a complaint made by Ms. against Chair
Gudes which was long before Chair Gudes was advised by City staff that a complaint had been
made.

Finally, Ms. - has not reported to Chair Gudes since August 2021, and he has
no ability to i ~ employment with the City. Chair Gudes wishes all City employees,
including Ms. - - • success in their endeavors.
 I I I I

Please feel free to contact me if you have any additional questions regarding this matter.

Sincerely,

Ryan D. Barack
Board Certified Labor and Employment Attorney

RDB/jlm