STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT LANDERS, )

)

Petitioner, )

vs. ) CASE NO. 88-4908

) BOARD OF COUNTY COMMISSIONERS, ) BROWARD COUNTY, FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer from the Division of Administrative Hearings, on July 11, 1989, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Robin L. Kozin, Esquire

8101 Biscayne Boulevard

Suite 500

Miami, Florida 33138

For Respondent: James Thomas, Esquire

Governmental Center Suite 423

115 South Andrews

Fort Lauderdale, Florida 33301 STATEMENT OF THE ISSUES

Whether Respondent has committed an unlawful employment practice by terminating Petitioner's employment based upon Petitioner's handicap, and whether Respondent has committed an unlawful employment practice by committing retaliatory discrimination.

PRELIMINARY STATEMENT

Petitioner Robert Landers filed a Petition for Relief from an Unlawful Employment Practice with the Florida Commission on Human Relations. After the Commission determined that there was no reasonable cause to believe that an unlawful employment practice had occurred, Petitioner filed a Petition which the Commission referred to the Division of Administrative Hearings for the conduct of a formal proceeding.

Petitioner Robert Landers testified on his own behalf, and Petitioner's Exhibits numbered 1 and 2 were admitted in evidence. Respondent Board of County Commissioners, Broward County, Florida, presented the testimony of Norman Sitter, Joseph Charles Randazzo, Patrick Sweet, John Graham, and Robert Harper. Additionally, Respondent's Exhibit numbered 1 was admitted in evidence.

Both Petitioner and Respondent have submitted post hearing proposed findings of fact in the form of proposed recommended orders. A ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner Robert Landers was employed by Broward County from February 10, 1987, until August 4, 1987, as a probationary employee in the County's Utilities Division. His job classification was Engineering Inspector II. Prior to his employment, he submitted a resume to Broward County. That resume represented that his health was "excellent". On the Broward County employment application form he represented that he had "fully recovered" from an automobile accident in 1963. He successfully passed Broward County's standard pre- employment physical examination.

   
   

2. Petitioner is proud of the fact that he possesses a Broward County Master Plumber Certificate. The position of Engineering Inspector II in the Broward County Utilities Division does not require such a certificate.

   
   

3. Petitioner served his six-month probationary period under the successive supervision of three field supervisors -- Robert Harper, John Graham, and Patrick Sweet. At the end of his probationary period each of these three supervisors individually evaluated Petitioner's job performance as unsatisfactory.

   
   

4. At the midpoint of his probationary period, Petitioner was counseled regarding his performance and was advised that he needed to get along with people better, that he needed to get out of his vehicle in order to make inspections at the job sites, and that he needed to use the required Broward County Specifications Manual rather than relying on his past knowledge of various plumbing codes. Petitioner's job required use of engineering code concepts, and Petitioner did not gain sufficient familiarity with the Broward County Specifications Manual to properly perform his job.

   
   

5. During the six-month probationary period, Petitioner failed to follow proper procedures and failed to properly perform his job duties on several occasions. He went home without permission; he allowed a contractor to lay defective piping; he verbalized his reluctance to utilize the Broward County Specifications Manual and took the position that his way of doing things was better; he obtained permission to go to a medical appointment in advance and then changed the appointment time without notifying anyone that he would be going at a time other than a time for which he had permission so that no other employee covered his duties while he was absent; he complained about specific assignments and questioned the necessity of doing tasks assigned to him; he kept his paper work in the wrong location; and his claims for overtime overstated the actual amount of overtime worked on two occasions.

   
   

6. Petitioner was terminated from his employment with Broward County at the end of his probationary period for his failure to meet minimum requirements for his job classification.

   
   

7. Petitioner has not applied for any other employment positions with Broward County following his termination.

   
   

8. During his probationary period, Petitioner was diagnosed as having diabetes.

9. Petitioner does not walk with an observable limp.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes.

    
    

11. Section 760.10(1)(a), Florida Statutes, makes it an unlawful employment practice for an employer to discharge an individual because of that individual's handicap, and Section 760.10 makes it an unlawful employment practice for an employer to discriminate against a person because that person has made a charge or claim that he has been subjected to discrimination. Petitioner has failed to establish even a prima facie case that Respondent Broward County has discriminated against him by terminating his employment at the end of his probationary period or by retaliating against him.

    
    

12. Petitioner's claim of handicap discrimination is two-fold: that he suffers from diabetes and that he walks with a limp. No authority has been cited, nor has any been found, for the proposition that diabetes is a handicap protected by the Human Rights Act of 1977, Sections 760.01-760.10, Florida Statutes. As to Petitioner's claim that he is handicapped because he walks with a limp, all three of his supervisors testified that they were unaware that Petitioner walked with a limp, the Chief Inspector for the Broward County Utilities Division testified that he was not aware that the Petitioner walked with a limp, and Petitioner had no observable limp at the Final Hearing in this cause. Accordingly, Petitioner has failed to prove that he has a handicap and has, a fortiori, failed to prove that he has been discriminated against on the basis of his handicap.

    
    

13. Similarly, Petitioner failed to present any evidence that he is the victim of retaliatory discrimination. At the time that Petitioner's employment was terminated by Broward County, the personnel action form completed to reflect his termination was notated that Petitioner was not recommended for rehiring. There is no suggestion that that comment was placed on that form at a time subsequent to the time when Petitioner's employment was terminated or subsequent to the time Petitioner contacted the Florida Commission of Human Relations. Since there is no evidence that Petitioner has sought any position with Broward County following his termination of employment, there is necessarily no evidence that Broward County has retaliated against Petitioner in any way as a result of Petitioner's claim that his termination was based on handicap discrimination.

    
    

14. In short, Petitioner has failed to present any evidence that he has been discriminated against based upon any handicap or that he has been discriminated against in retaliation for his complaints of discrimination. On the other hand, Respondent Broward County has proven legitimate non- discriminatory reasons for terminating its employment of Petitioner at the end of Petitioner's probationary period.

RECOMMENDATION

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

RECOMMENDED that a Final Order be entered finding that Respondent Broward County has not committed an unlawful employment practice against Petitioner and

dismissing the Petition for Relief from an Unlawful Employment Practice filed in this cause.

DONE and ENTERED this 22nd day of August, 1989, at Tallahassee, Florida.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 1989.

APPENDIX TO RECOMMENDED ORDER IN DOA NO. 88-4908

1. Petitioner's Proposed Findings of Fact numbered 1-3, 5, and 7 have been adopted either verbatim or in substance in this Recommended Order.

   
   

2. Petitioner's Proposed Findings of Fact numbered 4 and 10 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony or conclusions of law.

   
   

3. Petitioner's Proposed Findings of Fact numbered 6, 8, and 9 have been rejected as being contrary to the weight of the evidence in this cause.

   
   

4. Respondent's Proposed Findings of Fact numbered 1-8 have been adopted either verbatim or in substance in this Recommended Order.

   
   

5. Respondent's Proposed Finding of Fact numbered 9 has been rejected as not constituting a finding a fact but rather as constituting conclusions of law.

COPIES FURNISHED:

James Thomas, Esquire Governmental Center Suite 423

115 South Andrews

Fort Lauderdale, FL 33301

Robin L. Kozin, Esquire 8101 Biscayne Boulevard

Suite 500

Miami, FL 33138

Donald A. Griffin, Executive Director Human Relations Commission

325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925

Dana Baird, General Counsel Human Relations Commission

325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925

Margaret Jones, Clerk Human Relations Commission

325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925

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AGENCY FINAL ORDER

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

STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

ROBERT LANDERS, EEOC Case n/a

Petitioner, FCHR Case No. 87-6113

v. DOAH Case No. 88-4908

BOARD OF COUNTY COMMISSIONERS FCHR Order No. 89-044 BROWARD COUNTY, FLORIDA,

Respondent.

/

FINAL ORDER DISMISSING PETITION FOR RELIEF FROM AN UNLAWFUL

EMPLOYMENT PRACTICE

Preliminary Matters

Petitioner Robert Landers filed a complaint of discrimination with the Commission pursuant to the Human Rights Act of 1977, as amended. Sections 760.01-760.10, Fla. Stat. (1987). Petitioner alleged Respondent Board of County Commissioners, Broward County, Florida, unlawfully discriminated against him on the basis of retaliation.

The allegations of discrimination set forth in the complaint were investigated. On September 12, 1988, the Executive Director found no reasonable cause to believe an unlawful employment practice occurred.

On September 21, 1988, Petitioner filed a Petition for Relief from an Unlawful Employment Practice, requesting that a formal proceeding be conducted on the claim. The petition was referred to the Division of Administrative Hearings (DOAH). Fla. Admin. Code Rule 22T-8.016(1). On August 22, 1989, DOAH Hearing Officer Linda M. Rigot entered a Recommended Order of Dismissal.

Public deliberations were held on October 27, 1989, in Orlando, Florida, before this panel of Commissioners.

Findings of Fact

Having considered the hearing officer's findings of fact and being particularly mindful that the Commission may not reverse such findings without a complete record and in the absence of either party providing the Commission with a written transcript of the formal proceedings, the panel will not disturb the hearing officer's findings of fact. Section 120.57(1)(b)10, Fla. Stat. (1987); Fla. Admin. Code Rule 22T-8.025. The hearing officer's findings of fact are hereby adopted.

Conclusions of Law

We agree with the hearing officer's analysis of the legal issues and conclusions based upon the factual findings except as follows. In her Recommended Order the hearing officer found that:

No authority has been cited, nor has any been found, for the proposition that diabetes is a handicap protected by the Human Rights Act of 1977, Sections 760.01-760.10, Florida Statutes. Recommended Order, page 5.

As this conclusion is erroneous, it is rejected by the panel. Retton v.

Department of Corrections, 9 FALR 2423, FCHR Order No. 86-045 (December 18, 1986), held that a person with diabetes qualified as a handicap individual under Fenesy v. GTE Data Services, Inc., 3 FALR 1764-A, FCHR Order No. 81-0042 (August 11, 1981). Therefore, the panel modifies the hearing officer's conclusions to reflect the correct status of the law.

Dismissal

The Petition for Relief from an Unlawful Employment Practice and the complaint of discrimination are DISMISSED with prejudice.

The parties have the right to seek judicial review of this Order. The Commission and the appropriate district court of appeal must receive a notice of appeal within 30 days of the date this Order is filed with the clerk of the Commission. Explanation of the right to appeal is found in Section 120.68, Florida Statutes, and in Florida Rules of Appellate Procedure 9.110.

DONE AND ORDERED this 27th day of November 1989. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

BY:

Commissioner Robert L. Billingslea, Chairperson;

Commissioner Elena Flom; and Commissioner Ronald P. Townsend.

FILED this 1st day of December 1989 in Tallahassee, Florida.

Margaret A. Jones

Clerk of the Commission

Copies Furnished:

Robert Landers, Petitioner (C.M.# P593151085

James Thomas, Attorney for Respondent (C.M.#P593151086 Danica W. Parker, Legal Advisor for Commission Panel Linda P. Rigot, DOAH Hearing Officer

FILED this day of 1st day of December 1989 in Tallahassee, Florida.

Margaret A. Jones

Clerk of the Commission

Copies Furnished:

Calvin Wright, Petitioner (C.M.# P593151081

Donald J. Bradley, Attorney for Respondent (C.M.# P593151083 Donald D. Conn, DOAH Hearing Officer

Danica W. Parker, Legal Advisor for Commission Panel

Docket for Case No: 88-004908

Orders for Case No: 88-004908