STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JERRY D. HICKS, )

)

Petitioner, )

)

vs. ) CASE NO. 93-1504

)

) BAYPOINT HOTEL ASSOCIATES, ) d/b/a MARRIOTT'S BAY POINT ) RESORT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter came on for hearing in Panama City, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger, on August 17, 1993.

APPEARANCES

For Petitioner: Jerry D. Hicks, pro se

1202 Parker Drive

Panama City, Florida 32401

For Respondent: Michael D. Giles, Esquire

1410 AmSouth Harbert Plaza 1901 Sixth Avenue North Birmingham, Alabama 35203

STATEMENT OF THE ISSUES

The issue addressed in this proceeding is whether Petitioner was the subject of an unlawful employment practice.

PRELIMINARY STATEMENT

On May 18, 1992, the Petitioner filed a charge of discrimination claiming that he was discharged because of a perceived handicap, specifically, a herniated disc in his back which required surgery. Sometime later, the Florida Commission on Human Relations issued a "Notice of Determination: No Cause" and a "Notice of Redetermination No Cause". Both Notices held that there was no reasonable cause to believe that an unlawful employment practice had occurred in Petitioner's case. Petitioner disagreed with the Commission's determinations and requested a formal administrative hearing. Petitioner's request for hearing was forwarded to the Division of Administrative Hearings.

At the hearing, Petitioner testified in his own behalf, offered the testimony of one witness and offered four exhibits into evidence. Respondent did not present any testimony or exhibits into evidence.

After the hearing, Respondent submitted a Proposed Recommended Order on September 16, 1993. Petitioner did not submit a Proposed Recommended Order. The Respondent's proposed findings of fact have been considered and utilized in the preparation of this Recommended Order except where such proposals were not supported by the evidence or were immaterial, cumulative or subordinate.

Specific rulings on the Petitioner's proposed findings of fact are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Baypoint Hotel Associates operates a hotel at Marriott's Bay Point Resort in Panama City, Florida.

   
   

2. Petitioner, Jerry D. Hicks, was employed by Respondent, Baypoint Hotel Associates, for approximately five and one

   
   

3. Petitioner worked as a bell captain at Respondent's Panama City Beach,

   Florida, hotel for approximately two and one

   termination of his employment with Respondent. The bell captain's job required some heavy lifting.

   
   

4. There was no dispute regarding the fact that Respondent is an employer within the meaning of the Florida Human Rights Act, and that all jurisdictional requirements have been met.

   
   

5. Petitioner requested, and was granted, a leave of absence from his job effective December 17, 1991, in order to have back surgery to repair a herniated disc. By electing to take a leave of absence, Petitioner understood that he was not guaranteed his bell captain's job upon his return. In fact, he was not guaranteed any job upon his return, but would be given preference should there be an opening in any employment position for which he was qualified. There was no evidence that Respondent's leave of absence policy was not consistently applied or applied in a discriminatory manner.

   
   

6. As a result of his surgery, Petitioner was unable to work from December 17, 1991, until April 9, 1992, when he was released by his doctor to return to work. No medical evidence was presented that Petitioner's "back problem" constituted a handicap or was perceived as a handicap by his employer.

   
   

7. During Petitioner's absence from work, his job duties were reassigned to two assistant bell captains.

   
   

8. After being released by his doctor to return to work, Petitioner informed Respondent's Human Resources Department, on or about the week of April 13, 1992, that he was ready to return to work, but that he would temporarily not be able to perform all of the duties, namely heavy lifting, of his former job as bell captain because of his surgery.

   
   

9. After Petitioner requested to return to his job as a bell captain, Respondent's Director of Human Resources informed Petitioner that his former job was no longer available because Respondent's management had reassigned the bell captain's duties to two assistant bell captains and that Respondent did not plan to refill the job of bell captain under a reorganization of that service area.

10. In lieu of returning Petitioner to his former job as bell captain, Respondent's human resource director informed Petitioner that he could interview for several available jobs at Respondent's hotel, including the jobs of telephone operator/supervisor, front desk clerk or reservation sales agent.

    
    

11. Petitioner testified that he was unwilling to consider any job that paid less money than he was paid in his former job as a bell captain.

    
    

12. By the time Petitioner informed Respondent's human resource director on April 28, 1992, that he was ready to interview for the reservation job; however, the reservations job had already been filled. Petitioner had waited an inordinate amount of time in advising Respondent of his interest in the reservations job and therefore lost his opportunity to apply. There was no evidence of any discrimination on the part of Respondent.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987).

    
    

14. Section 760.10(1), Florida Statutes, makes it an unlawful practice for an employer to discriminate against an employee because of that person's handicap. Chapter 760, Florida Statutes is patterned generally after Title VII of the Civil Rights Act of 1964, 42 USC Section 2000e et seq. (Title VII)

    Hargis v. School Board of Leon County, 400 So.2d 103, 108 n.2 (Fla. 1st DCA 1981). As such, federal precedent construing the similar provisions of Title VII should be accorded great deference. Pasco County School Board v. PERC, 353 So.2d 108, 116 (Fla. 1st DCA 1979); Wood v. K-Mart Corp., 10 FALR 6189 (Fla.

    1985).

    
    

15. In McDonnell Douglas Corp. v. Green (McDonnell Douglas), 411 U.S. 792,

    5 FEP Cases 965 (1973) and Texas Department of Community Affairs v. Burdine (Burdine), 450 U.S. 258, 25 FEP Cases 113 (1981), the U. S. Supreme Court established the basic allocation of burdens and order of presentation of proof in discrimination cases. The burden of proof was described by the U.S. Supreme Court in the Burdine decision as follows:

    
    

    First the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant, to articulate some legitimate, nondiscriminatory reason for the employee's rejection. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons by the defendant were not its true reasons, but were a pretext for discrimination.

    
    

    25 FEP Cases at 115 (citations omitted). These federal standards have been adopted by the Florida Commission on Human Relations and the Florida courts and are applicable to cases arising under Chapter 760, Florida Statutes. School

    Board of Leon County v. Hargis, 400 So.2d 103, 108 (Fla. 1st DCA 1981); Kilpatrick v. Howard Johnson Co., 7 FALR 5468, 5477 (1985); Jo Nees v.

    Delchamps, Inc., 8 FALR 4389 (1986).

    
    

16. In essence, McDonnell Douglas provides for three (3) steps which create a series of shifting burdens of proof that are "intended progressively to sharpen the inquiry into the elusive factual question of intentional discrimination." Burdine, 450 U.S. at 255 n. 8.

    
    

17. In the first step under McDonnell Douglas, the Petitioner must prove the existence of facts that establish a prima facie case of unlawful discrimination. McDonnell Douglas, 411 U.S. at 802. To establish such a prima facie case in an employment situation, the Petitioner must show:

    
    

    1. He/she is a member of a protected class; i.e., handicapped or perceived handicap.

       
       

    2. He/she was qualified and able to perform his/her duties and did perform such duties satisfactorily; and

       
       

    3. He/she was treated differently than other similarly situated individuals not within his/her protected group.

       
       

18. The Petitioner's burden is discharged only if he or she establishes such facts by a preponderance of the evidence. Burdine, 450 U.S. at 252-53.

    
    

19. The type of factual showing that will suffice to carry this burden will vary with the circumstances of each individual claim, McDonnell Douglas,

    411 U.S. at 802 n. 13. However, more is required than a mere showing that the Petitioner is a member of a protected group and was adversely treated. Locke v. Commercial Union Insurance Co., 676 F.2d 205, 206 (6th Cir. 1982). The Petitioner must prove facts from which a nexus can be inferred between the alleged adverse action and the Petitioner's protected group status. See Stock

    v. Horsman Dolls, Inc., 27 FEP Cases 1423, 1425 (D.S.C. 1981); Ortiz v. Ciba- Geigy Corp., 87 F.R.D. 723, 234-35 (N.D. Ill. 1980). Failure of the Petitioner to produce evidence from which this causal connection can be inferred precludes the Petitioner from making out a prima facie case. Bobbitt v. PBA, Inc., 31 FEP Cases 366, 367 (D. Minn. 1983).

    
    

20. If a Petitioner establishes a prima facie case, then the burden of coming forward with sufficient evidence to rebut a prima facie case shifts to the defendant. To meet this burden, the defendant needs only to articulate a legitimate, nondiscriminatory reason for its action through the introduction of admissible evidence. "[T]he employer's burden is satisfied if he simply explains what he has done' or 'produce(es) evidence of legitimate, nondiscriminatory reasons.'" Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24, 25 n. 2 (19978) (quoting language of dissent with approval).

21. However, the ultimate burden of proof does not shift to the defendant. As the U.S. Supreme Court has explained:

    
    

    The defendant need not persuade the court that it was actually motivated by the proffered reasons . . . . It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff. . . .

    * * *

    The plaintiff retains the burden of persuasion.

    
    

    Texas Dept. of Comm. Affairs v. Burdine, 450 U.S. 254-56 (citations omitted).

    
    

22. In this case, Petitioner believes that he was treated unfairly by Respondent during the term of his employment with Respondent, both before he went on a leave of absence from his job as bell captain and after he asked to be returned to his old job as the bell captain at Respondent's Panama City Beach Hotel. Specifically, Petitioner believes that Respondent discriminated against him because he was handicapped, or was perceived to have a handicap, when it failed to return Petitioner to his old job or to a job that paid as much or more than the job he held prior to his leave of absence.

    
    

23. Petitioner presented no evidence to prove that, at the time he requested to return to work with Respondent in April 1992, he suffered from a diagnosed, chronic disease or injury. Moreover, Petitioner failed to show that Respondent perceived him to be suffering from a diagnosed, chronic disease or injury.

    
    

24. Additionally, Petitioner has failed to establish a nexus between the Respondent's termination of Petitioner and Petitioner's illness. Since Petitioner did not establish a prima facie case, Petitioner's charge of discrimination should be dismissed.

RECOMMENDATION

It is accordingly, RECOMMENDED:

Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Florida Commission on Human Relations issue a Final Order dismissing Petitioner's complaint.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of October, 1993.

DIANE CLEAVINGER

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 29th day of October 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1504

The facts contained in paragraphs 1, 2 and 3 of Respondent's Proposed Findings of Fact are adopted in substance, insofar as material.

COPIES FURNISHED:

Jerry D. Hicks 1202 Parker Drive

Panama City, Florida 32401

Michael D. Giles, Esquire 1410 AmSouth Harbert Plaza 1901 Sixth Avenue North

Birmingham, Alabama 35203-2602

Dana Baird, General Counsel Commission on Human Relations

325 John Knox Road, Building F (Suite 240) Tallahassee, Florida 32399-1570

Ms. Sharon Moultry Clerk

Florida Commission on Human Relations Building F Suite 240

325 John Knox Road

Tallahassee Florida 32303-4149

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: 93-001504

Orders for Case No: 93-001504