STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLARENCE E. BURTOFT, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3758

)

SOUTHERN LINEN SERVICE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing in the above case was held before the Division of Administrative Hearings by its duly designated Hearing Officer, DONALD R. ALEXANDER, on February 29, 1984 in Daytona Beach, Florida.

APPEARANCES

For Petitioner: Clarence E. Burtoft, in pro se

507 Leslie Drive

Port Orange, Florida 32019

For Respondent: Kenneth R. More field

Post Office Box 8213-A Orlando, Florida 32856

BACKGROUND

On November 4, 1983, the Florida Commission on Human Relations issued its "Determination-No Cause" in which it found there was no reasonable cause to believe that respondent, Southern Linen Service, had discriminated against petitioner, Clarence E. Burtoft, on the basis of handicap (back surgery).

Thereafter, petitioner filed a "petition for relief" on December 1, 1983 wherein he again reiterated his claim and alleged that he had been unlawfully terminated from his job with respondent. The petition was forwarded by the Commission to the Division of Administrative Hearings on December 6, 1983 with a request that a Hearing Officer be assigned to conduct a formal hearing.

By notice of hearing dated February 6, 1984, the final hearing was scheduled for February 23, 1984 in Orlando, Florida. Upon the request of respondent the matter was rescheduled to February 29, 1984 in Daytona Beach, Florida.

At the final hearing petitioner testified on his own behalf and presented the testimony of James Hobgood, a supervisor at respondent's Daytona Beach plant. Respondent presented the testimony of Kenneth R. Morefield, a management consultant, and Andrew Vissicchio, respondent's regional manager.

There is no transcript of hearing. The parties did not file proposed findings of fact and conclusions of law.

The issue herein is whether petitioner is entitled to relief under Chapter 760, Florida Statutes, for being terminated from his job with respondent.

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

FINDINGS OF FACT

1. Petitioner, Clarence E. Burtoft, was hired by respondent, Southern Linen Service, in November, 1982 as assistant general manager at its Daytona Beach plant. Prior to this employment, he had back surgery performed in Augusta, Georgia but the effects of such surgery did not interfere with his job duties.

   
   

2. After being on the job for approximately three days, he was told by the regional manager that labor costs needed to be reduced, and that one employee must be laid off. He was also told to shift two female employees from one department to another. There is a dispute between the parties as to what the actual instructions were, and whether they were in fact carried out by Burtoft. Nonetheless, the employer construed Burtoft's actions as not complying with its instructions, and Burtoft was accordingly terminated the following day and told he was not the right man for the job. The back surgery was not related in any respect to the termination and Burtoft himself acknowledged as much.

   
   

3. Burtoft's complaint is that his job records at Southern Linen Service contain a notation that he was fired for refusing to follow instructions. He only wants that adverse information removed. 1/ He is not contending that his employer unlawfully discriminated against him, or requesting that his job be reinstated with full back pay. Indeed, it was only after he visited the State employment office that he filed this complaint upon that office's encouragement. At no time was he ever told by any Florida Commission on Human Relations representative that its jurisdiction extended only over certain employment practices, and that any complaint must necessarily be founded on some form of discrimination.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

5. Subsection 760.10(1)(a), Florida Statutes, provides ,as follows:

   
   

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

      1. To discharge or to fail or refuse to hire any individual or otherwise to discriminate against any individual with respect to compensation, terms, conditions or privileges of employment, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.

         The evidence clearly shows, and respondent concedes, that no unlawful employment practice within the purview of the foregoing statute has occurred. It is concluded, therefore, that the complaint must fail.

         
         

6. Respondent's motion to dismiss filed on December 22, 1983 is denied. Rule 22T-9.08, Florida Administrative Code, as amended on June 16, 1983, specifically permits the filing of the instant complaint.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petition for relief filed by Clarence E. Burtoft be

DENIED.

DONE and ENTERED this 2nd day of March, 1984, 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 2nd day of March, 1984.

ENDNOTE

1/ During the course of the hearing, respondent agreed to remove the adverse information from Burtoft's record if he would agree not to appeal any adverse order entered in this proceeding. Burtoft so agreed.

COPIES FURNISHED:

Mr. Clarence E. Burtoft

507 Leslie Drive

Port Orange, Florida 32019

Mr. Kenneth R. Morefield Post Office Box 8213-A Orlando, Florida 32856 General Counsel

Fla. Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303

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AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

CLARENCE E. BURTOFT,

Petitioner,

FCHR CASE NO. 83-0969

vs. DOAH CASE NO. 83-3758

FCHR ORDER NO. 84-015

SOUTHERN LINEN SERVICE,

Respondent.

/

ORDER DISMISSING PETITION FOR RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE AND COMPLAINT OF DISCRIMINATION

1. Panel of Commissioners

   
   

   The following three Commissioners participated in the disposition of this matter:

   
   

   Commissioner Reese Marshall, Panel Chairperson;

   Commissioner Elvira M. Dopico; and Commissioner Robert R. Joyce, Jr.

   
   

2. Appearances

   
   

   No appearance was entered at the hearing on behalf of Petitioner or Respondent.

   
   

3. Preliminary Matters

   
   

   Clarence E. Burtoft, Petitioner herein, filed a Complaint of Discrimination with this Commission pursuant to the Human Rights Act of 1977, alleging that Southern Linen Service, Respondent herein, unlawfully discriminated against Petitioner on the basis of handicap, by discharging him from its employ.

   
   

   In accordance with the Commission's rules, the allegations of discrimination set forth in the Complaint of Discrimination were Investigated and a report of said investigation was submitted to the Executive Director. On November 4, 1983, the Executive Director issued his Determination finding no reasonable cause to believe that an unlawful employment practice had occurred in violation of the Human Rights Act of 1977. On November 28, 1983, the Petitioner filed a Petition for Relief from an Unlawful Employment Practice.

   The petition was referred to the Division of Administrative Hearings for the conduct of a formal proceeding pursuant to Florida Administrative Code Rule 22T-8.16(1). The formal proceeding was held on February 29, 1984, in Daytona Beach, Florida, before Donald R. Alexander, Division of Administrative Hearings Hearing Officer. The Hearing Officer entered a Recommended Order in this matter on March 2, 1984.

   
   

   Neither party filed exceptions to the Recommended Order.

   
   

   Pursuant to notice, a hearing was held on June 22, 1984, in Tallahassee, Florida, before the aforementioned Panel of Commissioners. The Panel conducted its deliberation of this matter and determined the action to be taken upon the petition.

   
   

4. Findings and Conclusions

Having considered the Recommended Order, and being particularly mindful of the record in this proceeding, the Panel finds that the Hearing Officer's Findings of Fact are supported by competent substantial evidence and that the Hearing Officer's Conclusions of Law, based upon such findings, are a correct application of law.

In so holding, we note that the Hearing Officer found that "(a)t no time was (Petitioner) ever told by any Florida Commission on Human Relations representative that its jurisdiction extended only over certain employment practices, and that any complaint must necessarily be founded on some form of discrimination." While we do not reject such finding inasmuch as it is based on Petitioner's testimony at the hearing, Petitioner's Complaint of Discrimination, the initial document commencing the investigatory process, clearly reflects that Petitioner was filing a complaint because he believed he had been terminated because the employer perceived him to be handicapped, an area over which this Commission has subject matter jurisdiction. 1/ Section 760.10(1), Florida Statutes (1983).

It is therefore,

ORDERED that the Hearing Officer's Findings of Fact are adopted, the Hearing Officer's Conclusions of Law are adopted and the Hearing Officer's recommendation is adopted.

Accordingly, the Petition for Relief from an Unlawful Employment Practice and the Complaint of Discrimination are hereby DISMISSED with prejudice.

Petitioner is advised of his right to petition the Florida District Court of Appeal for review of this Order within thirty (3O) days of the date that this Order is filed with the Clerk of the Commission. Section 120.68, Fla. Stat. (1983); Fla. R. App. P.9.110(b).

It is so ORDERED.

DATED this 9 day of July, 1984.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS

BY:

Commissioner Reese Marshall, Panel Chairperson;

Commissioner Elvira M. Dopico; and Commissioner Robert P. Joyce, Jr.

FILED this 19th day of July, 1984, in Tallahassee, Florida.

BY:

ENDNOTE

1/ A copy of this complaint was transmitted to the Hearing Officer by the Clerk of the Commission.

Copies Furnished:

Clarence E. Burtoft, Petitioner (C.M. # N/A)

Kenneth R. Morefield, Representative for Respondent (C.M. #N/A) Aurelio Durana, Legal Advisor for Commission Panel.

The Honorable Donald R. Alexander, DOAH Hearing Officer.

Docket for Case No: 83-003758

Orders for Case No: 83-003758