STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TERRY L. TILLOTSON, )

)

Petitioner, )

)

vs. )

) CASE NO. 92-5925

JOHNSON CONTROLS WORLD )

SERVICES, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was conducted in this proceeding on April 6, 1993, in Melbourne, Florida before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Carol B. Bess, Esquire

Cullimore & Bess

3815 North U.S. 1, Suite 106

Cocoa, Florida 32926

For Respondent: Dorothy F. Green, Esquire

James G. Brown, Esquire Richeson & Brown, P.A.

135 North Magnolia Avenue Orlando, Florida 32802

STATEMENT OF THE ISSUE

The issue for determination in this proceeding is whether Respondent engaged in an unlawful employment practice.

PRELIMINARY STATEMENT

This matter was referred to the Division of Administrative Hearings on October 2, 1992, for assignment of a Hearing Officer

and assigned to Hearing Officer Joyous D. Parrish on October 6, 1992. A formal hearing was scheduled for January 29, 1993, pursuant to a Notice of Hearing issued on October 29, 1993. After several continuances, a formal hearing was scheduled for April 6, 1993. The matter was transferred to the undersigned on March 10, 1993.

At the formal hearing, the parties submitted four joint exhibits which were admitted pursuant to the stipulation of the parties. Respondent submitted 21 exhibits for admission in evidence. Petitioner testified in his own behalf and presented the testimony of two witnesses. Respondent presented the testimony of

four witnesses. The witnesses and exhibits are identified in the transcript of the formal hearing filed with the undersigned on May 13, 1993.

Respondent timely filed proposed findings of fact and conclusions of law on July 23, 1993. Respondent's proposed findings of fact are addressed in the Appendix to this Recommended Order. As of the date of this Recommended Order, Petitioner has not filed proposed findings of fact and conclusions of law.

FINDINGS OF FACT

1. The U.S. Government owns Cape Canaveral Air Force Station in Cape Canaveral, Florida. The Air Force Station covers approximately 60 to 89 square miles.

   
   

2. Respondent provides launch base support services to the U.S. Air Force at Cape Canaveral. Respondent employs approximately 1,800 people at Cape Canaveral.

   
   

3. The Air Force requires security clearances and Space Human Assurance and Reliability Program ("SHARP") certification for 80 to 90 percent of Respondent's employees. Security clearances for employees at the Air Force Station are determined by the Defense Investigative Services, United States Department of Defense. SHARP certifications are determined by an independent board based on Air Force Regulations and investigations conducted by federal government investigators.

   
   

4. After supplying applications for security clearance and SHARP certification, Respondent has no role in the investigation and ultimate determination regarding clearance and certification for new employees. Respondent does not review applications for either a security clearance or certification. Members of the SHARP Board are not Respondent's employees, are appointed by the Air Force Base Commander, and are otherwise independent of Respondent.

   
   

5. An employee awaiting security clearance and certification must be escorted by an individual with escort authority when the new employee is in an area requiring either security clearance or certification. Escort authority and access entry are determined by the Air Force. Authority to assign and approve an escort for a new employee awaiting security clearance

   and certification is limited to one or two individuals at each work location.

   
   

6. Respondent terminates any new employee who fails to obtain required security clearance and certification within 12 months of the date of hire. Such an employee is retained during the pendency of his or her appeal, if any.

   
   

7. Respondent's policy serves a legitimate interest. The policy is designed to limit the additional cost in manpower, time, and resources required to escort new employees within the launch base support project who have no security clearance or certification. Respondent's policy is consistently and fairly applied.

   
   

8. On October 2, 1989, Petitioner was employed as a structural painter by Respondent on Respondent's launch base support project at Cape Canaveral. Petitioner was employed subject to the condition that he obtain all security clearances and certifications required by the Air Force.

9. Petitioner's application for certification was denied. Petitioner appealed to the SHARP Board and attended an appeal hearing on October 10, 1990. The SHARP Board denied Petitioner's appeal and informed Petitioner of its decision at the appeals hearing. Respondent was not notified by the SHARP Board or the Air Force of the reason for the denial.

   
   

10. Mr. Everett Watson, Respondent's Facility Security Manager, was notified by the Air Force sometime after October 22, 1990, that Respondent's SHARP certification had been denied. Mr. H.D. Stanfill, Petitioner's Department Manager, and Mr. Ron Smith, Petitioner's Supervisor, received notice of the denial on November 2, 1990.

    
    

11. Mr. Stanfill and Mr. Smith terminated Petitioner in accordance with Respondent's policy. By letter dated November 13, 1990, Petitioner was notified of his termination effective November 30, 1990. The termination was based solely on Petitioner's failure to obtain his SHARP certification within 12 months of his date of hire.

    
    

12. Petitioner was not considered for any other positions on the launch base support project. All painter positions require SHARP certification. Other available positions for which Petitioner was qualified require SHARP certification. Petitioner neither applied for nor requested any other position on the launch base support project.

    
    

13. Petitioner is an alcoholic. Petitioner was diagnosed in 1986 as suffering from alcoholism and drug abuse. Petitioner's alcoholism is the only handicap at issue in this proceeding. Petitioner was in an alcohol rehabilitation program prior to his employment by Respondent.

    
    

14. Petitioner did not disclose his alcoholism to Respondent at the time of employment. In response to a specific question on his job application, Respondent stated that he had no physical or mental disabilities which would require special accommodations to permit him to perform the type of work for which he was applying. Petitioner did not consider himself handicapped at the time he applied for employment.

    
    

15. Petitioner has a history of arrests and criminal charges. Petitioner was twice arrested for driving under the influence ("DUI") before his employment with Respondent. Petitioner had also been arrested for other offenses including assault and trespass. Petitioner was arrested for a third DUI offense in September, 1990, after his SHARP certification had been rejected but before the final appeal hearing on October 10, 1990.

    
    

16. Petitioner enrolled in an employee assistance program ("EAP") after his SHARP certification was denied but before his appeal hearing. Petitioner was not referred to the EAP by his supervisor or anyone employed by Respondent. Respondent did not know Petitioner was in an EAP until after Petitioner was terminated.

    
    

17. Petitioner enrolled in the Sunrise Substance Abuse Program at Wuesthoff Hospital. Petitioner was referred to the treatment program by his EAP counselor. Pursuant to EAP policy, Respondent was not notified that Petitioner had enrolled in either the EAP or treatment program.

    
    

18. After his arrest for DUI in September, 1990, and before his appeal hearing for his SHARP certification, Petitioner requested transfer to Respondent's project on Kwajalein Atoll in the Republic of the Marshall Islands.

    Kwajalein is self- contained. It has its own project manager, its own personnel office in Huntsville, Alabama, and offices in Kwajalein. Final approval of transfers to Kwajalein are made in Huntsville.

    
    

19. Kwajalein Atoll is a remote island more than 2,000 miles from Honolulu, Hawaii. Housing is available in the form of communal barracks. Medical facilities are limited. Prospective employees with a history of alcohol abuse must document two years of abstinence before they will be considered for Kwajalein.

    
    

20. Respondent's policy and procedures required the request for transfer to be approved by Petitioner's department manager. Mr. Stanfill was new to the department at the time of the request. Mr. Stanfill did not know Petitioner personally. Mr. Stanfill discussed the transfer with Petitioner's supervisor.

    
    

21. Mr. Stanfill refused to approve the transfer. Mr. Stanfill based his decision on information gained from Petitioner's supervisor and Mr. Stanfill's own military experience in remote locations similar to Kwajalein.

    
    

22. Mr. Stanfill has received transfer requests in addition to Petitioner's. Mr. Stanfill has refused to approve transfers in cases other than Petitioner's.

    
    

23. Other employees have been terminated for failure to receive security clearances. At least two employees, in addition to Petitioner, have initially failed to obtain SHARP certification. Like Petitioner, both of the employees were retained through the SHARP appeal process. One employee was terminated after he failed to obtain his SHARP certification following his appeal. The other employee was retained because he was granted SHARP certification after his appeal.

    
    

24. Petitioner completed the Sunrise Substance Abuse Program in February, 1991. In early 1993, Petitioner was arrested for DUI. Petitioner is not currently in a rehabilitation program.

    
    

25. SHARP policy requires that an individual who has a history of alcohol abuse or alcohol related incidents following a rehabilitation program to successfully complete a rehabilitation program and abstain from alcohol abuse for two years. Respondent's policy does not permit the retention of uncertified employees for two years.

    
    

    CONCLUSIONS OF LAW

    
    

26. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto. The parties were duly noticed for the formal hearing.

    
    

27. Petitioner has the initial burden of proof. Petitioner must make a prima facie showing that Respondent engaged in an unlawful employment practice by discharging Petitioner because of his handicap. Petitioner must prove by a preponderance of the evidence that he was handicapped and otherwise qualified to perform his duties and responsibilities. See citations infra.

    
    

28. Petitioner is handicapped. While Petitioner's alcoholism did not have an adverse affect on his job performance, it substantially limited one or more of his major life activities and prevented normal functioning through enjoyment of his full and normal sensory, mental, or physical faculties. Davis v. Humana

    Of Florida, 15 FALR 231, 238 (1992); Mackie v. Runyon, 804 F.Supp. 1508, 1510 (M.D. Fla. 1992); Fenesey v. GTE Data Services, 3 FALR 1764-A (1981).

    
    

29. At the time of his termination, Petitioner was not otherwise qualified to perform the duties and responsibilities required of him at either Cape Canaveral or Kwajalein. Petitioner failed to obtain SHARP certification within

    12 months of his date of hire. Petitioner was hired subject to the requirement that he obtain SHARP certification within 12 months in accordance with Respondent's established policy. Petitioner failed to satisfy the conditions of his employment. Cf. Egan v. Department of the Navy, 484 U.S. 518 (1988)Guillot

    v. Garrett, 970 F.2d 1320, 1325 (4th Cir. 1992); Jamil v. Secretary, Department Of Defense, 910 F.2d 1203 (4th Cir. 1990); Peterson v. Department of the Navy, 687 F.Supp. 713, 715 (D.N.H. 1988); (all holding that a private employer does not commit an unlawful employment practice by discharging an employee if the position is subject to any requirement imposed in the interest of national security and the employee has failed to meet that requirement).

    
    

30. Respondent's policy serves a legitimate interest in avoiding unreasonable expenses associated with escorting uncertified employees within an expansive project site. Respondent's policy is fairly applied and was fairly applied to Petitioner.

    
    

31. At the time of his request for transfer to Kwajalein, Petitioner was not otherwise qualified to perform the duties and

    responsibilities required of him at Kwajalein. Respondent's policy requires prospective employees with a history of alcohol abuse to document two years of abstinence before they will be considered for Kwajalein.

    
    

32. Respondent's policy serves a legitimate interest in minimizing turnover and promoting job satisfaction. Kwajalein is a remote island more than 2,000 miles from Honolulu, Hawaii. Housing is available in the form of communal barracks. Medical facilities are limited. Respondent's policy is fairly applied and was fairly applied to Petitioner.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Human Relations Commission enter a Final Order

finding that Respondent committed no unlawful employment practice and denying

the remedies requested by Petitioner.

RECOMMENDED this 27th day of July, 1993, in Tallahassee, Florida.

DANIEL MANRY

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 27th day of July, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5925

Petitioner's Proposed Findings Of Fact.

Petitioner submitted no proposed findings of fact. Respondents' Proposed Findings Of Fact.

All of Respondent's proposed findings of fact are accepted except proposed findings that Respondent did not know of Petitioner's handicap at the time of the request for transfer and at the time of the termination.

COPIES FURNISHED:

Ronald M. McElrath Executive Director

Florida Commission On Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana Baird General Counsel

Florida Commission On Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Sharon Moultry Clerk

Florida Commission On Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Carol B. Bess, Esquire Cullimore & Bess

3815 North U.S. 1, Suite 106

Cocoa, Florida 32926

Dorothy F. Green, Esquire James G. Brown, Esquire Richeson & Brown, P.A.

135 North Magnolia Avenue Orlando, Florida 32802

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.

================================================================= AGENCY FINAL ORDER

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

STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

TERRY L. TILLOTSON,

Petitioner,

EEOC Case No. n/a

1. FCHR Case No. 91-1723

   DOAH Case No. 92-5925

   JOHNSON CONTROLS WORLD FCHR ORDER No. 95-037 SERVICES, INC.,

   
   

   Respondent.

   /

   
   

   FINAL ORDER DISMISSING PETITION FOR RELIEF FROM AN UNLAWFUL

   EMPLOYMENT PRACTICE

   
   

   1. Panel of Commissioners

      
      

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

      
      

      Commissioner Keith James, Chairperson;

      Commissioner Whitfield Jenkins; and Commissioner Laura Santos.

      
      

   2. Preliminary Matters

      
      

      Terry L. Tillotson, Petitioner herein, filed a complaint of discrimination with this Commission pursuant to the Human Rights Act of 1977, as amended, Sections 760.01-760.10, Florida Statutes (1991), alleging that Johnson Controls World Services, Inc, Respondent herein, unlawfully discriminated against him on the basis of handicap (alcoholism).

      In accordance with the Commission's rules, the allegations of discrimination were investigated and an Investigatory Report was submitted to the Executive Director who issued his determination finding no reasonable cause to believe that an unlawful employment practice occurred. Petitioner requested redetermination of the initial no cause finding and that request was denied.

      
      

      Thereafter, Petitioner filed a Petition for Relief from an Unlawful Employment Practice and the case was transferred to the Division of Administrative Hearings (DOAH) for the conduct of a formal proceeding.

      
      

      Pursuant to notice, the formal proceeding was held in Melbourne, Florida, before DOAH Hearing Officer Daniel Manry who issued a Recommended Order of dismissal.

      
      

      Public deliberations were held on March 23, 1995, in Tallahassee, Florida, before the aforementioned panel of Commissioners, at which deliberations the panel determined the action to be taken upon the petition for relief.

      
      

   3. Exceptions to the Recommended Order

      
      

      Both parties filed exceptions to the Recommended Order. Because Respondent's exception is dispositive of this cause, we will only address that exception. Respondent objects to paragraph 26 of the conclusions of law in which the hearing officer states that "[t]he Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties there to.

      
      

      "Respondent requests that the following conclusion of law be substituted for paragraph 26:

      
      

      The Florida Commission on Human Relations and the Department of Administrative Hearings do not have jurisdiction over Petitioner's claim in this case. The Commission takes administrative notice of the finding of facts and the decision in Lord v. Electrical Workers Local Union No. 2088, 646 F.2d 1057 (5th Cir. Unit B. 1981). Cape Canaveral Air Force Station is U.S. Government property ceded by the State of Florida in 1955. Id. at 1060.

      Because it is a federal enclave, the laws of the State of Florida adopted after the cession are without any force or effect. Id. at

      1059-60. The Florida Human Rights Act of 1977 is inapplicable to employment decisions made at Cape Canaveral Air Force Station, Florida.

      
      

      After a thorough review of the record in this matter and applicable law, we grant Respondent's exception to the Recommended Order. An enclave is by definition, "[a"] country or part of a country within the boundaries of another country." Webster's II New Riverside University Dictionary (Houghton Mifflin Press 1988). A federal enclave may differ from federal property and federal facilities. These latter entities may be located within the State of Florida and, hence, may be subject to the State's jurisdiction.

   4. Findings of Fact

      
      

      With respect to the jurisdictional issue, we adopt paragraphs one through twelve of the hearing officer's findings of fact.

      
      

   5. Conclusions of Law

      
      

      With respect to the jurisdictional issue, we reject paragraph 26 of the hearing officer's conclusions of law and adopt Respondent's substituted paragraph 26 as set forth above.

      
      

   6. Dismissal

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

Each party is advised of the right to petition the Florida District Court of Appeal for judicial review of this Final Agency Order. Such Notice of Appeal must be filed within 30 days of the date that this order is filed with the clerk of the Commission. Section 120.68, Florida Statutes 1993), and Fla. R. App. P. 9.110(b).

FOR THE FLORIDA COMMISSION ON RELATIONS:

BY:

Commissioner Keith James; Panel Chairperson;

Commissioner Whitfield Jenkins; and Commissioner Laura Santos.

FILED this 13th day of July, 1995, in Tallahassee, Florida.

Sharon Moultry

Clerk of the Commission

COPIES FURNISHED:

Carole S. Bess, Esquire Cullimore & Bess

3815 N. U.S. 1-Suite 106

Cocoa, Florida 32926

Dorothy F. Green, Esquire Richeson & Brown, P.A. Post Office Box 3006 Orlando, Florida 32802

Daniel Manry, DOAH Hearing Officer Dana Baird, Legal Advisor

Docket for Case No: 92-005925

Orders for Case No: 92-005925