STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RHONDA K. LENFEST, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1216

)

ORANGE COUNTY EMERGENCY )

SERVICES DEPARTMENT, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, DONALD R. ALEXANDER, on July 14, 1983, in Orlando, Florida.

APPEARANCES

For Petitioner: Homero Leon, Jr., Esquire

Greater Orlando Area Legal Service, Inc.

Post Office Box 1790 Orlando, Florida 32802

For Respondent: John A. Gehrig, Jr., Esquire

Post Office Box 3068 Orlando, Florida 32802

BACKGROUND

This matter was spawned when petitioner, Rhonda K. Lenfest, filed a complaint with the Florida Human Relations Commission on December 17, 1979, alleging that respondent, Orange County Emergency Services, Inc., had violated Chapter 23, Florida Statutes, when it discharged her from employment . A on the basis of her handicap (paraplegic). On March 29, 1983, the Commission entered an order finding no reasonable cause to believe that an unlawful employment practice had occurred.

On April 11, 1983, petitioner requested a formal hearing pursuant to Subsection 120.57(1), Florida Statues, to contest the Commission's action. The matter was referred by the Commission to the Division of Administrative Hearings on April 11, 1983, with a request that a hearing officer be assigned to conduct a formal hearing. By notice of hearing dated May 10, 1983, the final hearing was scheduled for July 14, 1983, in Orlando, Florida.

At the final hearing petitioner testified on her own behalf and presented the testimony of Frederick D. Smith, Dr. John M. Cox, Ray Lenfest, Charles E. Willis, Mark Johnson, Henry S. Saldana, Rayford Ballard, Ralph S. Bailey and Ann

1. Martin, and offered petitioner's exhibits 1-15; all were received except

   exhibits 7, 9, 14, 14A and 1413. Respondent presented the testimony of John Spurlock, Brady John Pawson, Patrice Riggal and Thomas L. Stanley and offered respondent's exhibits 1-11; all were received except exhibits 2, 3 and 5.

   Additionally, a ruling on the admissibility of exhibit 6 was reserved.

   
   

   The transcripts of hearing (two volumes) were filed on August 22, 1983. Proposed findings of fact and conclusions of law were filed by the parties on September 6, 1983, and have been considered by the undersigned in the preparation of this order. Findings of fact and conclusions of law not included in this order were considered irrelevant to the issues, immaterial to the results reached, or were not supported by competent and substantial evidence.

   
   

   The issue herein is whether petitioner was unlawfully terminated from her position with respondent by reason of her handicap.

   
   

   Based upon all of the evidence, the following findings of fact are determined:

   
   

   FINDINGS OF FACT

   
   

   1. Petitioner, Rhonda K. Lenfest, was hired by respondent, Orange County Emergency Services, Inc., on June 13, 1979, in the position of emergency medical services communicator. Her employer is under the control and supervision of the Orange County oar of County Commissioners.

      
      

   2. Lenfest received a gunshot wound to the abdomen in late 1974 or early 1975. As a result, she is paraplegic and required to use a wheelchair.

      
      

   3. Lenfest was one of seven communicators employed by respondent. The duties of a communicator included communication by radio to emergency vehicles and hospitals from respondent's headquarters in the Orange County Courthouse. The communications center was staffed twenty-four hours per day, seven days per week. Those employees with the most seniority got the best shifts, and any last minute changes in shifts caused by illness or vacation were generally filled by those with the least seniority. The seniority basis was fully explained to Lenfest when she was initially hired.

      
      

   4. When first hired, Lenfest was under the impression that her supervisor would schedule her shift work so that twice a week therapy sessions could be continued, and arrangements made to provide care for her seven year old child. She was initially assigned to the 9:00 a.m. - 5:00 p.m. and 8:00 a.m. - 4:00

      p.m. shifts. However, during the last four months of her employment she was frequently required to man the 1:00 a.m. - 7:00 a.m. shift when she was the only employee manning the communications center. This as due to a number of shift schedules caused by vacations, illnesses and schedule changes requested by other employees, and Lenfest having the lowest seniority.

      
      

   5. At various times, Lenfest was observed sleeping on the job. This was confirmed by several independent witnesses. She attributed this to bad shift hours, lack of sleep, and an "understanding" that napping at work was permissible.

      
      

   6. According to activity logs introduced by petitioner, she was late to work seventeen times between June 13 and November 10, 1979, which was more than any other employee in her section. She attributed this to a difficulty in finding a parking place around the courthouse. On each occasion that she was late, the on-duty employee could not leave his or her shift until Lenfest

      reported to her station, was briefed as to any existing problem areas, and actually assumed her duties. County personnel policy provides that "(e)xcessive, or habitual lateness will not be tolerated", and that "if such occurs, disciplinary measures . . . will be implemented." Lateness is defined as "not being able to start duty on time."

      
      

   7. On Saturday, November 10, 1979, Lenfest's immediate supervisor, John Spurlock, presented her with a supervisor counseling form dated October 30, 1979. It indicated she was being counseled for "sleeping on the job, security of building, not paying attention to records and logs, on county phones long periods of time for personal use, being late for work and attitude". At the bottom of the form, Spur lock noted that "(i)f these problems listed above can be solved Rhonda will be the same good worker that she was in the beginning." This was the sixth or seventh occasion on which Lenfest had been counseled.

      
      

   8. After being presented with the form, Lenfest called her supervisor "a damn liar, immature", "no good", and "lower than a snake's belly". The comments were loud enough for other persons in the area to hear. Spurlock attempted to calm Lenfest, but after these efforts were unsuccessful, he told her she could go home for the day. He then asked her to sign the counseling form. Lenfest said "you make me sick" and tore up the form into four pieces. Spurlock then told her "unless you can prove otherwise, you (can) consider yourself fired."

      
      

   9. On November 11, 1979, Lenfest was informed by telephone that she should contact her overall supervisor prior to returning to work. She failed to contact him the next working day (November 12) and did not report to work.

      
      

   10. On November 14, 1979, Lenfest was formally terminated by her manager with such termination to be effective on November 13.

       
       

   11. Under the Orange County personnel policy manual, a temporary employee is always on probation. Once an employee achieves permanent status he or she is on probation for the first six months. While on probation, an employee can be terminated without any notice or cause. Lenfest became a permanent employee on October 27, 1979, but still was on probation when she was terminated less than a month later. Therefore, Lenfest had no recourse to the grievance procedures afforded permanent status employees of the County. Her reclassification to permanent status had been made two days earlier than another employee so that she would have seniority over that employee.

       
       

   12. A non-handicapped employee, Ralph S. Bailey, was fired by respondent in 1979 for excessive tardiness. After talking with the personnel department and explaining what had occurred, he was rehired within a few days. Another non-handicapped employee, Brady Parsons, was counseled in 1979 for sleeping on the job.

       
       

   13. Respondent received no federal funds for the purpose of providing, aiding, assisting in or defraying the expenses of employment.

       
       

       CONCLUSIONS OF LAW

       
       

   14. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

       
       

   15. Subsection 23.167(1)(a), Florida Statutes, provides in part as follows:

       1. It is an unlawful employment practice for an employer:

          1. To discharge . . . any individual

             . . . because of such individual's . . . handicap. . .

             
             

             According to the amended petition filed in this cause, Lenfest contends (1) that her employer violated the foregoing statute by discharging her from employment by reason of her being handicapped, (2) that her employer subjected her to a "discriminatory working environment" and that other non-handicapped employees were not counseled nor terminated for similar conduct, and (3) that her employer "failed to reasonably accommodate her handicap by scheduling her hours in such a manner that she was unable to have therapy and by refusing to allow her to spend part of the work day out of a wheelchair." For these alleged violations, petitioner seeks reinstatement, back pay and attorney fees pursuant to Subsection 23.167(13) Florida Statutes.

             
             

   16. Petitioner seeks relief not only under Chapter 23 but also under the provisions of the federal Rehabilitation Act of 1973 (29 U.S.C. 790 et seq.). However, she failed to demonstrate the applicability of the law, the jurisdiction of the commission or the undersigned to consider the same, or even if its provisions have been violated. Moreover, the federal law itself provides that its sanctions are inapplicable except where the primary objective of federal financial aid to the County is to provide employment. Here no such showing was made and the Rehabilitation Act of 1973 is deemed to be inapplicable. See, Zorick v. Tynes, 372 So.2d 133, 138 (Fla. 1st DCA 1979)

       
       

   17. In a discrimination case such as this, the complainant "has the burden 9f proving by the preponderance of the evidence a prima facie case of discrimination." Texas Dept. of Community Affairs v. Burdine, 101 S. Ct. 1089, 1093 (1981) If the complainant succeeds in proving a prima facie case of discrimination, the burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the employee's rejection. Burdine 101

       S. Ct. at 1093.

       
       

   18. Here petitioners has failed to establish a prima facie case of discrimination. The record fails to demonstrate, as petitioner alleges, that she was fired solely because of her handicap, that see was treated differently from other non-handicapped employees, or that respondent failed to reasonably accommodate her. Even if petitioner had met her preliminary burden, the employer nonetheless articulated a legitimate, nondiscriminatory reason for her termination. Indeed, the record is clear that her dismissal was based primarily upon her conduct on November 10, 1979, when she received a counseling notice from her supervisor. At that time she was grossly insubordinate and rude, thereby justifying respondent's action. This merely culminated a series of other transgressions which occurred during her five-month tenure with respondent. Accordingly, it is concluded that petitioner was not fired because of her handicap, that such termination was based on a legitimate, nondiscriminatory reason, and that her complaint should fail.

       
       

   19. The objection to respondent's exhibit 6 is sustained.

RECOMMENDATION

Wherefore, in consideration of the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the petition of Rhonda K. Lenfest be DENIED.

DONE and ENTERED this 20th day of September, 1983, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 1983.

COPIES FURNISHED:

Homero Leon, Jr., Esquire Greater Orlando Area Legal

Service, Inc.

P. O. Box 1790

Orlando, Florida 32802

John A. Gehrig, Jr., Esquire

P. O. Box 3068

Orlando, Florida 32802

Robert Woolfork, Executive Director

The Florida Commission on Human Relations Building F, Suite 240

325 John Knox Road Tallahassee, Florida 32303

Docket for Case No: 83-001216

Orders for Case No: 83-001216