STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PETER BALLANCE, )

)

Petitioner, )

)

vs. ) CASE NO. 92-3910

)

TOWN OF PALM BEACH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on June 18, 1993, and on August 27, 1993, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Jonathan R. Kaplan, Esquire

Lubin & Gano, P.A.

Second Floor, Flagler Plaza 1217 South Flagler Drive

West Palm Beach, Florida 33401

For Respondent: John C. Randolph, Esquire

Jones, Foster, Johnson, et al.

505 South Flagler Drive

P.O. Drawer "E"

West Palm Beach, Florida 33402 STATEMENT OF THE ISSUE

The issue presented is whether Respondent Town of Palm Beach committed an unlawful employment practice by discharging Petitioner Peter Ballance from employment due to Petitioner's handicap, and, if so, what relief should be given Petitioner.

PRELIMINARY STATEMENT

Petitioner Peter Ballance filed with the Florida Commission on Human Relations an Amended Charge of Discrimination alleging that the Town of Palm Beach had discharged Petitioner from his position as a mechanic due to Petitioner's handicap (stuttering) and due to his national origin (England). Respondent Town of Palm Beach denied those allegations. The Commission determined that there is no reasonable cause to believe that an unlawful employment practice has occurred. Pursuant to Petitioner's request, a redetermination was made, which resulted in the Commission's Notice of Redetermination that there is no reasonable cause to believe that an unlawful employment practice has occurred.

Thereafter, Petitioner filed a Petition for Relief alleging that he had suffered discrimination due to his handicap of stuttering (sometimes referred to by Petitioner as a speech impediment or communications disorder) and alleging that Petitioner's national origin (referred to by Petitioner as either England or the United Kingdom) also contributed to Respondent's discriminatory treatment of him. That Petition was transmitted by the Commission to the Division of Administrative Hearings on June 29, 1992, for the conduct of a formal proceeding.

At the commencement of the final hearing, Petitioner specifically announced that he is not claiming any discriminatory treatment based on his national origin and that he only claims that he has been treated unfairly based upon his speech impediment.

Petitioner testified on his own behalf and presented the testimony of Ronald E. Walker. Respondent Town of Palm Beach presented the testimony of William Michael Sharpe, Lloyd W. McCoy, Albert P. Dusey, William Carl Krouse, and David Lee Kyzar. Additionally, Petitioner's Exhibits numbered 1-11, 13, and 15-20 were admitted in evidence, as were Respondent's Exhibits numbered 1-7.

FINDINGS OF FACT

1. In response to a newspaper advertisement, in May of 1990, Petitioner Peter Ballance submitted to Respondent Town of Palm Beach his employment application, together with an extensive resume, seeking a position as a Mechanic III with the Town's Public Works Department. On May 31, 1990, Petitioner was interviewed for that position by an interview panel of four persons: David Kyzar, Lloyd McCoy, William Krouse, and Leonard Greene.

   
   

2. At the beginning of his interview, Petitioner spoke in a whisper. He explained that he stuttered and speaking in a whisper made it easier for him to communicate without stuttering. Within the first few minutes of his interview Petitioner relaxed and began speaking in a normal tone. The members of the interview team had no difficulty communicating with Petitioner, and Petitioner had no difficulty communicating with them. No member of the interview team had any concern about Petitioner's stuttering since one employee with a severe stutter already worked in the Town's Public Works Department, and one employee with a stutter worked as one of the Town's police officers. Further, the members of the interview team understood that the position for which Petitioner was applying would not require much verbal communication.

   
   

3. During the interview, Petitioner spoke of his extensive qualifications. The position of Mechanic III is the Town's highest level mechanic position. According to both the job description and the discussion during the interview, a Mechanic III is expected to work with little or no supervision, is able to handle any repair job, and can perform the highest level of preventive maintenance on the Town's vehicles. During the interview Petitioner represented himself to be able to work on all vehicles based upon his 30 years' experience working on all types of engines and vehicles. Essentially, Petitioner represented that he could repair anything.

   
   

4. Petitioner specifically advised that he did not like working in a flat rate shop. A flat rate shop uses a book which rates each job as to time so that the shop can give a customer a quote as to how much that job will cost. The book gives the maximum and minimum time periods for that job. Since it does not take mechanics the length of time to do the job which the flat rate book indicates is the appropriate time, the mechanic is actually paid for more time

   than the job took. It is easy, therefore, for a mechanic to be paid for 70 hours of work, for example, when he actually only worked a regular 40 hour work week. Petitioner explained that he thought the use of flat rates was an unethical practice and that Petitioner liked to take his time in repairing engines because he liked doing quality work. Petitioner's dislike of flat rate shops posed no problem to the interview team since the Town does not operate a flat rate shop.

   
   

5. The interview team discussed with Petitioner his experience with diagnostic equipment. Petitioner specifically represented during the interview, as well as on his resume, that he is proficient in operating the Sun Interrogator II, an engine analyzer. Petitioner's experience with that machine was important since the Town used the Sun Interrogator II in its shop.

   
   

6. Petitioner was the most qualified applicant for the position. All members of the interview team were favorably impressed with Petitioner's extensive mechanical ability and with how he handled himself during the interview. He was hired as a Mechanic III in the Town's Public Works Department.

   
   

7. Petitioner began his employment on June 14, 1990, a Thursday. On that Thursday and Friday and for the following full week, Petitioner worked under Mike Sharpe, the mechanic foreman responsible for overseeing the operation of the Town's vehicle maintenance shop. Sharpe was Petitioner's immediate supervisor, and Sharpe's own immediate supervisor was David Kyzar, the vehicle maintenance supervisor and a member of Petitioner's interview team. Kyzar's immediate supervisor was Lloyd McCoy, the division manager who served on Petitioner's interview team with Kyzar. McCoy's immediate supervisor was Al Dusey, the Director of the Public Works Department of the Town of Palm Beach.

   
   

8. During that first partial week and first full week while Petitioner's immediate supervisor Mike Sharpe was supervising his work, Sharpe began to question Petitioner's ability to perform his duties. Sharpe found that Petitioner took an inordinate amount of time to perform any job assigned to him and specifically noted that Petitioner did not know how to hook up the Sun Interrogator II. Sharpe gave Petitioner the manual for the Interrogator and thereafter observed Petitioner using the manual, not as a reference book, but, rather, Petitioner was following the manual step-by-step as he worked. Sharpe assumed that Petitioner was nervous at his new job since Petitioner's demonstrated lack of skill was contrary to the extensive experience Petitioner had represented, both verbally and in writing, that he had. Yet, Sharpe was concerned enough about Petitioner's apparent lack of ability that Sharpe contacted Kyzar who was on vacation to explain to Kyzar his concerns about Petitioner's performance.

   
   

9. Starting the following Monday, Petitioner's second full week of employment, it was Sharpe's turn to be on vacation, and Kyzar returned from his vacation to oversee the operation of the vehicle maintenance shop while Mike Sharpe was on vacation. Sharpe continued to be concerned enough about Petitioner's performance that he called Kyzar from North Carolina where he was vacationing to ask Kyzar how Petitioner was doing. Kyzar explained that he was sharing the same concerns that Sharpe had, that is, Petitioner's extreme slowness in performing any task and Petitioner's apparent lack of skill.

   
   

10. Kyzar began making personal notations which he kept in his desk regarding Petitioner's work. For example, he made a notation when a job which would normally take 20 to 30 minutes took Petitioner, a supposedly highly

    skilled mechanic, 4 hours to complete. Kyzar wrote such a memo almost every day. When he did so, Kyzar would speak with Petitioner about Petitioner's extreme slowness and poor performance in a position demanding a high level of skills.

    
    

11. Petitioner responded to Kyzar by accusing Kyzar of picking on Petitioner because of his stutter. Kyzar repeatedly told Petitioner that Petitioner's stutter was not a problem but Petitioner's performance was.

    
    

12. It was important to Petitioner to discuss with people his stuttering. During Petitioner's first two days of employment before Kyzar went on his one- week vacation, Kyzar took Petitioner through the orientation procedures for new employees. He introduced him to other employees; he took him on a tour of the facilities and showed him where vehicles to be repaired would be located; he made sure that Petitioner filled out the new employee forms required by the Town, and he went over Petitioner's job duties. During those two days, Petitioner on several occasions wanted to discuss with Kyzar Petitioner's speech impediment, and Kyzar listened to Petitioner's explanation and discussed it with Petitioner. After Kyzar returned from vacation and began supervising the vehicle maintenance shop while Sharpe was on vacation, Petitioner came to Kyzar's office several times to discuss Petitioner's stutter and also pulled Kyzar aside in the shop several times to discuss Petitioner's stutter. Kyzar eventually told Petitioner he did not have time to keep discussing Petitioner's stutter when Petitioner's stutter was not a problem.

    
    

13. During Kyzar's supervision, Petitioner became critical and vocal regarding the fact that Petitioner did not like the brands of products being used by the Town to repair its vehicles and also did not like some of the procedures followed in the vehicle maintenance shop or followed by the Town. Kyzar's explanation to Petitioner, for example, as to why a governmental entity would have to purchase Goodyear tires rather than Michelin tires did not satisfy Petitioner.

    
    

14. All persons are hired by the Town of Palm Beach as probationary employees. Petitioner's probationary period was six months. At the end of Petitioner's first month of employment, Kyzar, his supervisor, and his supervisor's supervisor met and discussed the sharp contrast between the representations made on Petitioner's resume and during Petitioner's interview and Petitioner's actual performance. It was clear to them that Petitioner did not possess the skills necessary to perform repairs at the level of a Mechanic III and, accordingly, did not possess the skills which Petitioner had represented, both verbally and in writing, that he possessed.

    
    

15. Petitioner was terminated from his employment by the Town of Palm Beach on July 16, 1990. The sole reason for Petitioner's termination was his poor level of performance and apparent inability to perform the job for which he had been hired. Although the Town's vehicle maintenance shop was not a flat rate shop, the Town expected, and had a right to expect, that Petitioner would perform his duties within a reasonable time. Since Petitioner was either unable or unwilling to accomplish his repair jobs within a reasonable time, the Town had good cause for terminating Petitioner's employment if there had been a requirement for good cause in order to terminate a probationary employee.

    
    

16. Petitioner's speech impediment did not cause or contribute to Petitioner's discharge. His speech impediment did not interfere with any of his communications relative to his employment with the Town of Palm Beach.

17. Neither the Town of Palm Beach nor any of its employees discriminated in any way against Petitioner as a result of his stutter.

    
    

18. Petitioner testified for a number of hours on two separate days during the final hearing in this cause. Even with the extra stress experienced by many people while testifying and otherwise participating in an evidentiary hearing, Petitioner's stutter did not interfere with his communication. In fact, Petitioner's stutter was barely noticeable and infrequent.

    
    

19. Although Petitioner testified that he is able to work on any vehicle due to his extensive experience, he also testified that he should not have been expected to repair domestic vehicles as well as European vehicles since he had worked primarily on foreign vehicles both before and after he moved to the United States in 1983. Although there may be a difference between the nuts and bolts used in foreign cars and those used in domestic cars, there is no difference between foreign cars and domestic cars as far as the procedure for hooking up the Sun Interrogator II and no difference as to the mechanical work to be performed. Accordingly, Petitioner's testimony that he was a little slow because of his unfamiliarity with domestic cars is rejected since it is without factual basis and is contrary to the representations made by Petitioner to the Town in Petitioner's resume, during Petitioner's interview, and during the final hearing in this cause.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

21. Section 760.10(1)(a), Florida Statutes, provides, inter alia, that it is an unlawful employment practice for an employer to discharge or otherwise to discriminate against any individual with respect to employment because of such person's national origin or handicap. After the Executive Director of the Florida Commission on Human Relations entered a determination that there was no reasonable cause to believe that the Town had committed an unlawful employment practice as to Petitioner and had entered a redetermination of no reasonable cause, Petitioner filed his Petition for Relief, and that Petition was referred to the Division of Administrative Hearings. At the commencement of the final hearing Petitioner waived his claim and dropped his allegation that the Town had discriminated against him based upon his national origin. Accordingly, the only dispute remaining between the parties is whether the Town committed an unlawful employment practice by discriminating against Petitioner based on his handicap. Petitioner has failed to meet his burden of proof.

    
    

22. Despite Petitioner's reliance on Kelley v. Bechtel Power Corp., 633 Fed. Supp. 927 (S.D. Fla. 1986), later cases make it clear that the Florida Commission on Human Relations does follow the federal statutory and case law in determining violations of Florida's Human Rights Act of 1977. See, Fla. Dept. of Community Affairs v. Bryant, 586 So.2d 1205 (Fla. 1st Dist. 1991); Dept. of Corrections v. Chandler, 582 So.2d 1183 (Fla. 1st Dist. 1991). In order to prove a prima facie case Petitioner must show that he is a member of a protected class. Petitioner has not proven that he is. It is generally accepted that if Petitioner were unable to speak, he would have a handicap which would offer him the protections of the Florida Human Rights Act of 1977. Petitioner is, however, able to speak quite well. Although he has a stutter which he characterizes as a communications disorder, as a communications disability, and/or as a speech impediment, Petitioner has cited no authority, and none has

    been found, for Petitioner's position that having a stutter is a handicap entitling Petitioner to the protections of that statute. Although Petitioner appears to take the position that he has a severe stutter, that was not apparent. During his lengthy testimony on two separate days and during the times that he interjected himself into other stages of the final hearing, Petitioner's stutter occurred highly infrequently and did not interfere with his ability to communicate. Since Petitioner has failed to prove that he has a handicap recognized by the law to be such, he has failed to present a prima facie case.

    
    

23. Even if Petitioner had presented a prima facie case, then the Town would have the burden of presenting evidence to show the existence of a legitimate, nondiscriminatory reason for terminating Petitioner's employment. The Town has done so. Despite Petitioner's representations that he is well qualified to perform the duties of a Mechanic III, Petitioner was either unable or unwilling to perform those duties. Petitioner was counseled during his employment with the Town regarding his slowness and apparent inability to properly complete the tasks assigned to him within a reasonable period of time, but Petitioner did not improve. Accordingly, the Town terminated Petitioner's employment during his probationary period due to his inability to perform his job. The Town has met its requirement of articulating, and has exceeded its burden by proving, the existence of a legitimate, nondiscriminatory reason for its action.

    
    

24. Had Petitioner proven a prima facie case which would have then required the Town to articulate a nondiscriminatory reason for its action, Petitioner would have then been required to meet a burden of persuasion that the offered reason was a pretext and that a discriminatory reason more likely motivated the Town in its actions. Petitioner has failed in proving that the nondiscriminatory reason, Petitioner's unwillingness or inability to perform his duties timely, was a pretext and that his stutter more likely motivated the Town to terminate Petitioner.

    
    

25. The only evidence offered by Petitioner that his stutter motivated the employer is his testimony that Kyzar was unwilling to discuss Petitioner's stutter as often as Petitioner wanted Kyzar to discuss it. Petitioner therefore believed that Kyzar did not like him because he was a stutterer. That testimony is not credible.

    
    

26. Accordingly, the totality of the evidence shows that Petitioner represented himself to be qualified for a highly skilled position, was hired for that position, failed to perform at the level required, and was terminated. Petitioner has failed to prove that the Town acted with discriminatory intent when it terminated Petitioner's employment.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that the Town of Palm

Beach did not commit an unlawful employment practice by discharging Petitioner and dismissing the Petition for Relief filed in this cause.

DONE and ENTERED this 7th day of December, 1993, 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 7th day of December, 1993.

COPIES FURNISHED:

Jonathan R. Kaplan, Esquire Lubin & Gano, P.A.

Second Floor, Flagler Plaza 1217 South Flagler Drive

West Palm Beach, Florida 33401

John C. Randolph, Esquire Jones, Foster, Johnson, et al.

505 South Flagler Drive

P.O. Drawer "E"

West Palm Beach, Florida 33402

Sharon Moultry, Clerk Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32302-4149

Dana Baird, General Counsel Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32302-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 92-003910

Orders for Case No: 92-003910