STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHANNON M. SPENCE, )

)

Petitioner, )

)

vs. ) CASE NO. 94-6652

)

OCALA MANAGEMENT, INC., )

d/b/a QUALITY INN, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing in the above style case was held pursuant to notice by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, on April 27, 1995 in Ocala, Florida.

APPEARANCES

For Petitioner: James P. Tarquin, Esquire

Michael B. Staley, Esquire Post Office Box 906190 Ocala, Florida 34478

For Respondent: John Daley, Esquire

201 East Pine Street, 15th Floor Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue is whether the Respondent discriminated unlawfully against the Petitioner by discharging him because of a handicap contrary to Chapter 760, Florida Statutes, and, if so, the nature and extent of financial loss suffered by the Petitioner.

PRELIMINARY STATEMENT

The Petitioner filed a timely complaint against the Respondent with the Florida Commission on Human Relations alleging that the Respondent had discharged him because of a handicap contrary to Chapter 760, Florida Statutes. The Commission referred the case to the Division of Administrative Hearings on December 7, 1994, noticed for hearing on January 11, 1995, and heard as noticed.

The Petitioner testified in his own behalf, and introduced two exhibits. The Respondent called Mary Beth Allen, Jess Wall, Woodrow Bud Palmer and Art Wilkinson to testify, and introduced two exhibits. At the conclusion of the hearing, the Petitioner was given leave to file the deposition of Gary Long, who had been unable to attend the hearing. Mr. Long's deposition was filed on May 25, 1995, at which time the record was closed. The Petitioner also filed a document termed the statement of Dr. Dwight Landmann. The Respondent objected

to this statement because no leave was granted to file it, and because it was a letter from Petitioner's counsel which made certain statements about Petitioner's physical condition, and requested Dr. Landmann to acknowledge the statements by signing the letter. The Respondent's objection is sustained, and the "statement" will not be received.

The parties stipulated that the Division has jurisdiction over the subject matter and the parties, the Respondent is an employer, and that the Petitioner's average salary was $125-130/week while employed by the Respondent.

The parties did not order a transcript, but filed proposed findings of fact which were read and considered. The Appendix to this order states which of those findings were adopted and which were rejected and why.

FINDINGS OF FACT

1. The Petitioner, Shannon M. Spence, was employed from March 1993 until May 1, 1993 by the Respondent.

   
   

2. The Respondent is an employer as defined by Chapter 760, Florida Statutes.

   
   

3. The Petitioner, who earned on average $125/week, was employed by the Respondent as a bouncer and "bar backer", a person who assisted the bartender.

   
   

4. On or about April 29, 1993, the Petitioner suffered an on the job injury which was duly reported to the employer and for which the Petitioner was treated at a local hospital pursuant to arrangements made by the employer.

   
   

5. The Petitioner's injury was determined to be a right inguinal hernia, and the Petitioner was cautioned against lifting more than 25 pounds and standing for long periods of time.

   
   

6. The Petitioner reported for work the following day, and communicated to his supervisor his inability to lift and to stand for long periods of time. His supervisor, Jess Wall or J.W., placed the Petitioner on security detail for the parking lot and entrance. There were additional light duties available for security personnel within the employer's business in which the employee could have been placed.

   
   

7. The Petitioner's employment was terminated later that evening. The testimony is conflicting regarding whether the Petitioner was discharged because he was dating another employee, or because he was injured, or quit in sympathy with Jess Wall, who was also terminated on that evening.

   
   

8. The most credible evidence is that the Petitioner was discharged because of his injury, but was told it was because he was dating another employee. The prohibition against dating was a new rule, it was applied against the Petitioner without any prior warning, the female employee was not discharged, and the Petitioner was the only person discharged for this activity although there were others who dated employees.

   
   

9. The alternative theory that Petitioner quit in sympathy with the head bouncer, Mr. Wall, is specifically rejected for lack of credibility of the various witnesses.

10. The Petitioner subsequently settled his workman's compensation claim arising from this injury with the Respondent for $15,000. No details were received regarding the allocation of moneys for medical and wages.

    
    

11. The Petitioner is entitled to back wages from his discharge until the hearing on April 27, 1995, less any mitigation, including any portion of the settlement of his workman's compensation claim attributable to lost wages, occurring after surgical repair of the hernia when the Petitioner was reemployed. The Petitioner is entitled to reasonable costs and attorneys fees.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter presented herein, pursuant to Section 120.57(1), Florida Statutes.

    
    

13. Section 760.10(1), Florida Statutes, makes it an unlawful employment practice for an employer to discriminate against a person because of that person's handicap. Chapter 760, Florida Statutes, is patterned after Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000(e), et seq., ("Title VII"). Hargis v. School Board of Leon County, 400 So.2d 103, 108 n.2 (Fla. 1st DCA 1981). Federal precedent construing the similar provisions of Title VII are 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 (FCHR 1985).

    
    

14. The Supreme Court established and later clarified the burden of proof in disparate treatment cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). The FCHR has adopted this evidentiary model. Kilpatrick v. Howard Johnson Co., 7 FALR 5468, 5475 (FCHR 1985). McDonnell Douglas places upon the plaintiff the initial burden of proving a prima facie case of discrimination. Where a discriminatory discharge is claimed, the plaintiff must prove (1) the plaintiff is qualified for the position; (2) she was discharged; and (3) she was replaced by a person outside the protected class. Lee v. Russell County Board of Education, 684 F.2d 769 (11th Cir. 1982); Maggio v. Martin Marietta Aerospace, 9 FALR 2168 (FCHR 1986).

    
    

15. Proving a prima facie is not, however, the equivalent of a factual finding of discrimination. See Teamsters v. U.S., 431 U.S. 324, 358 and n.44 (1977). Discriminatory animus is inferred because experience has proved in the absence of any other explanation is more likely than not that those actions were bottomed on impermissible considerations. The presumption is that more often than not people do not act in a totally arbitrary manner, without any underlying reason, in a business setting. Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).

    
    

16. Once the plaintiff has succeeded in proving all of the elements necessary to establish a prima facie case, the employer must then articulate some legitimate, nondiscriminatory reason for the challenged employment decision. The employer is required only "to produce admissible evidence which would allow the trier of fact to conclude that the employment had not been motivated by discriminatory animus". Burdine, 450 U.S. at 257. The employer "need not persuade the court that it was actually motivated by the proffered reasons . . . it is sufficient if the [employer's] evidence raises a genuine issue of fact as to whether it discriminated against the Plaintiff". Id. at 254, 255. This burden is characterized as "exceedingly light". Perryman v. Johnson Products, Inc., 698 F.2d 1138 (11th Cir. 1983).

17. Once the employer articulates a legitimate reason for the action taken, the evidentiary burden shifts back to the plaintiff who must prove that the reason offered by the employer for its decision is not the true reason but is merely a pretext. The employer need not prove that it was actually motivated by the articulated nondiscriminatory reasons. Burdine, 450 U.S. at 257-58. In Burdine, the Supreme Court emphasized that the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. Id. at 253. The court confirmed this principle in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

    
    

18. In Price Waterhouse, the court examined the parties' respective burdens of persuasion where the plaintiff has proven with direct evidence that the employer was actually motivated by discriminatory animus. A plurality of the court held that in such a case, the employer must prove by a preponderance of the evidence that it would have made the same decision even if the discriminatory animus had not been a motivating part of its decision. The court cautions, however, that the holding does not alter the Burdine burden of proof allocation. An employer only bears the burden of persuasion after the plaintiff has proven discriminatory motivation. In a concurring opinion, Justice O'Connor explained that the application of this rule is limited to mixed-motive cases, that is, where the employer has created substantial uncertainty as to the causation by knowingly giving substantial weight to an impermissible criterion.

    
    

19. The facts in this case reveal that the Petitioner suffered an on the job injury, that the employer was aware of the injury, that the employer was aware of the employee's need for a reasonable accommodation, that the employer initially provided the required accommodation, that the employer discharged. The Petitioner introduced sufficient evidence to require the employer to articulate a nondiscriminatory reason for discharging the Petitioner. The

    employer asserts that it discharged the Petitioner because he was dating another employee, and /or that the Petitioner quit in sympathy with the head bouncer.

    The evidence presented regarding these nondiscriminatory reasons for discharge is rejected because the witnesses lack credibility. These suggested motivations are pretextual, and the employee was discharged because of the employee's injury and resulting handicap.

    
    

20. The Petitioner made $125/week. The Petitioner was discharged on May 1, 1993. The hearing was on April 27, 1995, or almost exactly 104 weeks from the date of Petitioner discharge. The Petitioner suffered $13,000 in lost wages. However, the Petitioner was candid about having returned to work after recovering from surgery to repair his hernia, and he was required to mitigate his damages. Evidence was not developed regarding his salary upon returning to work. The Respondent is permitted to reduce the amount owed Petitioner by any wages he received between May 1, 1993 and April 27, 1995. Further, the Respondent may reduce the amount owed Petitioner by any portion of the $15,000 workman's compensation settlement which is specifically designated as compensation for wages. Therefore, the Hearing Officer retains jurisdiction over the matter in order to take evidence on attorney's fees and costs to which Petitioner is entitled.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is,

RECOMMENDED:

That the Commission find that the Petitioner was unlawfully discriminated against by the Respondent, and that the Respondent be ordered to pay the Petitioner his lost wages from May 1, 1993 until April 27, 1995 less any amounts the Petitioner earned during this period and any amounts included in the workman's compensation settlement specifically provided for wages; that the Commission retain jurisdiction for the award of damages and attorney's fees and costs; and the Commission remand the matter for a determination of the attorney's fees and costs and to permit the Respondent to present any evidence in mitigation of its damages.

DONE and ENTERED this 20th day of June, 1995, in Tallahassee, Florida.

STEPHEN F. DEAN, 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 20th day of June, 1995.

APPENDIX

The parties filed proposed findings which were read and considered. The following states which of their findings were adopted and which were rejected and why:

Petitioner's Recommended Order Findings

Paragraph 1,2 Subsumed in Paragraph 1 and 2.

Paragraph 3-5 Subsumed in Paragraphs 3-5.

Paragraph 6-8 Subsumed in Paragraphs 6-9.

Paragraph 9 Subsumed in 3 and 11.

Respondent's Recommended Order Findings

Paragraphs 1-3 Paragraphs 1-3

Paragraph 4 Rejected because the date was April 29, 1993. Paragraph 5 Subsumed in Paragraphs 4,5.

Paragraph 6,7 Rejected as contrary to more credible evidence. Paragraph 8,9 Subsumed in Paragraphs 10,11.

COPIES FURNISHED:

James P. Tarquin, Esquire Michael B. Staley, Esquire

P.O. Box 906190 Ocala, FL 34478

John Daley, Esquire

201 E. Pine Street 15th Floor Orlando, FL 32801

Sharon Moultry, Clerk Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, FL 32303-4113

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. 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: 94-006652

Orders for Case No: 94-006652