STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LINDA MISHKO, )

)

Petitioner, )

)

vs. ) CASE NO. 87-2551

) MANPOWER TEMPORARY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Consistent with the Notice of Hearing furnished to the parties by Hearing Officer W. Matthew Stevenson, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, in Stuart, Florida on August 13, 1987. The issue for consideration was whether the Respondent is guilty of an unlawful employment practice, specifically, discrimination on the basis of a handicap (hearing).

APPEARANCES

Petitioner: Linda Mishko pro se

47 Southeast Erie Terrace Stuart, Florida 33497

Respondent: Roy T. Mildner, Esquire

Goldman, Bruning & Angelos, P.A. 10020 South Federal Highway Port St. Lucie, Florida 33452

BACKGROUND INFORMATION

On or about June 25, 1986, Petitioner filed a complaint with the Florida Commission on Human Relations, (Commission), against Manpower Temporary Services, (Manpower), of Stuart, Florida alleging that it had participated in an unlawful discrimination against her on the basis of her hearing impairment, a handicap. The matter was referred to an investigator for the Commission who, on May 19, 1987, submitted a report concluding there was no reasonable cause to believe Respondent had discriminated against the Petitioner because of her handicap. Thereafter, on May 22, 1987, the Executive Director of the Commission entered a Determination of No Cause in this matter which was communicated to Petitioner or May 26, 1987.

Thereafter, on June 8, 1987, Petitioner filed a Petition for Relief, again with the Commission, requesting a formal hearing and on June 11, 1987, the file was transmitted to the Division of Administrative Hearings for appointment of a Hearing Officer. Mr. Stevenson set the case for hearing but prior to the hearing date, the file was transferred to the undersigned who conducted the hearing.

At the hearing, Petitioner testified in her own behalf and introduced Petitioner's Exhibit 1. Respondent presented the testimony of Gin Malodobry, the office manager for Manpower's Stuart office and introduced Respondent's Exhibits A through D.

No transcript of the proceedings was provided and neither party submitted proposed Findings of Fact.

FINDINGS OF FACT

1. Petitioner, Linda Mishko, suffers a severe hearing impairment.

   
   

2. In December, 1985, Petitioner contacted the Respondent to apply for a temporary position of employment. Petitioner was asked to take a transcription test which she passed without any mistakes. This is not necessarily inconsistent with her handicap, however, since medical evidence indicates she is able to hear higher frequency voices, (women), more easily than lower frequency voices (men). The transcription test dictation was by a woman and she was able to satisfactorily understand what was being said. However, she has difficulty hearing lower men's voices.

   
   

3. After the test was graded, Petitioner was asked if she would take a transcribing job. She indicated she preferred not to and instead, was referred to Grumman Aerospace, (Grumman), in Stuart where she was employed to do strictly word processing.

   
   

4. Petitioner reported to Grumman on January 3, 1986. The documentation relating to her assignment reveals that the assignment was clearly noted to be for one month.

   
   

5. Petitioner worked at Grumman from January 3, through May 5, 1986 and all performance ratings rendered on her during that time indicated that she was an excellent worker. She was told by Grumman personnel, and Respondent's office manager confirms this, that had they been able to do so, they would have hired her on a permanent basis. However, funding did not permit it and in May, 1987, Petitioner was released when the job for which she had been hired as a temporary employee was completed.

   
   

6. Petitioner is convinced that she was discharged because of her handicap and contends that she was told this by her supervisor at Grumman. There is no evidence to support this contention, however. A witness who Petitioner contends would have testified to it refused to appear even though Petitioner was granted a recess during the hearing to call her again. According to Petitioner, the witness was afraid for her job, but there is no evidence that this was the case.

   
   

7. After being released by Grumman, Petitioner was shortly thereafter called by Ms. Malodobry to take a temporary job at an attorney's office. Initially, Ms. Mishko declined to accept the job because she was afraid she would not be able to understand a man's voice in dictation. After thinking about it for a while, however, she decided she needed the work and agreed to attempt the job.

   
   

8. Immediately upon reporting to the attorney's office, she advised him of her handicap but agreed to try to satisfy him. After 10 minutes or so of finding it difficult to understand his voice on the transcription tape, she left the job and did not return.

9. Petitioner admits that Respondent, Manpower Temporary Services, has not discriminated against her in any way. She contends that the discrimination against her was committed by Grumman which, she believes, discharged her because of her handicap, and that Manpower is involved in a conspiracy with Grumman to cover it up. She contends that the favorable written comments on the Grumman records of her employment are lies, Ms. Malodobry is lying, and in fact anyone who doesn't support her theory of discrimination and conspiracy is lying.

   
   

10. Petitioner admits she has no evidence of conspiracy, however, and that she filed her complaint based on her "feeling". There is no evidence that Manpower in any way discriminated against her or is in any way participating with Grumman to cover up the latter's supposed discrimination against her. In fact, there was no discrimination by Grumman. Ms. Mishko was terminated at the end of the period for which she was hired and her departure had no relationship whatever to her handicap.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

12. Subsection 760.10(1)(a), Florida Statutes, makes it an unlawful employment practice for an employer to discharge or fail to hire any individual with respect to employment because of that individual's handicap.

    
    

13. Petitioner carries the burden of proof to establish that an unlawful employment practice has occurred, Florida Department of Transportation v. J. W.

    C. Company, Inc., 396 So.2d 772 (Fla 1DCA).

    
    

14. In Texas Department of Community Affairs v. Burdine, 450 U.S. 242, 101

    S. Ct. 1029 (1921), the United States Supreme Court held that the burden rests upon the employee to prove, by a preponderance of the evidence, a prima facie case of employment discrimination. If the employee succeeds, the burden then shifts to the employer to establish some legitimated nondiscriminatory, valid business purpose for the employee's discharge or non- hiring.

    
    

15. Here, Petitioner has failed to present a prima facie case of discrimination against the Respondent and admits that Respondent did not discriminate against her. Her complaint against Respondent is that it covered up Grumman's alleged discrimination; a matter not in issue in this case. The evidence is overwhelming that the reason for her termination had nothing to do with her handicap.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that the Petition for Relief filed by Linda Mishko be dismissed with prejudice.

RECOMMENDED this 1st day of September, 1987, at Tallahassee, Florida.

ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 1987.

COPIES FURNISHED:

Ms. Linda Mishko

47 Southeast Erie Terrace Stuart, Florida 33497

Roy T. Mildner Esquire

GOLDMAN, BRUNING & ANGELOS, P.A.

10020 South Federal Highway Port St. Lucie, Florida 33452

Donald A. Griffin Executive Director Florida Commission on

Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1925

Dana Baird, Esquire General Counsel Florida Commission on

Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1925

Docket for Case No: 87-002551

Orders for Case No: 87-002551