STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDWIN R. BOLLINGER, )

)

Petitioner, )

)

vs. ) Case No. 00-0405

) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, DIVISION OF LAW ) ENFORCEMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case before Larry J. Sartin, an Administrative Law Judge of the Division of Administrative Hearings, in Tallahassee, Florida, on April 25, 2000.

APPEARANCES

For Petitioner: Edwin R. Bollinger, pro se

6372 Alderwood Plaza

Woodbury, Minnesota 55125

For Respondent: Marshall G. Wiseheart

Assistant General Counsel

Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000 STATEMENT OF THE ISSUE

The issue in this case is whether Respondent, the

Department of Environmental Protection, violated the Florida

Civil Rights Act of 1992 as alleged in a Petition for Relief filed by Petitioner, Edwin R. Bollinger, with the Florida Commission on Human Relations.

PRELIMINARY STATEMENT

On or about March 12, 1996, Petitioner, Edwin R. Bollinger, filed a Charge of Discrimination with the Florida Commission on Human Relations. Mr. Bollinger alleged that Respondent, the Department of Environmental Protection, had discriminated against him on the basis of "disability" and "age."

On or about October 12, 1999, the Florida Commission on Human Relations issued a Determination: No Cause in which it was concluded that there was "no reasonable cause to believe that an unlawful employment practice has occurred." Mr. Bollinger filed a Petition for Relief challenging the Determination: No Cause and seeking a formal administrative hearing.

The Petition for Relief was filed with the Division of Administrative Hearings on January 25, 2000, for the conduct of proceedings on behalf of the Florida Commission on Human Relations. The Petition was designated Case No. 00-0405 and was assigned to the undersigned. The formal hearing was scheduled for April 25 and 26, 2000.

At the formal hearing Mr. Bollinger testified on his own behalf. Fourteen exhibits were offered for identification by Mr. Bollinger. All were accepted into evidence except

Petitioner's Exhibits 6 and 7. The Department of Environmental Protection presented the testimony of James Leftheris. Three exhibits offered by Respondent were accepted.

A Transcript of the hearing was filed on May 9, 2000. Proposed orders were, therefore, required to be filed on or before May 30, 2000. Mr. Bollinger filed a pleading on May 23, 2000. Respondent filed a Proposed Recommended Order on May 30, 2000. Mr. Bollinger's pleading and Respondent's Proposed Recommended Order have been fully considered in entering this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Edwin R. Bollinger, is a Caucasian male, born March 18, 1936. At the time of the alleged unlawful employment practice at issue in this case, Mr. Bollinger was 58 to 59 years of age.

2. Mr. Bollinger was employed by the State of Florida from at least 1982 until his termination in May 1995. At all times relevant to this matter, Mr. Bollinger was employed by Respondent, the Department of Environmental Protection (hereinafter referred to as the "Department"), or, prior to its absorption into the Department, the Department of Natural Resources.

3. Prior to July 1994 Mr. Bollinger served as a park officer in the Florida Park Service of the Department. Mr.

   Bollinger was stationed at Bill Baggs Cape Florida State Recreation Area located in Dade County, Florida. Two other park officers were working with Mr. Bollinger in July 1994: Antonio Sanchez and Kathy Martinez.

4. Effective July 1, 1994, all Florida Park Service officers were reclassified as law enforcement officers and were transferred to the Department's Division of Law Enforcement (hereinafter referred to as the "Division"). The position of park officer was abolished. Colonel Mickey Watson was the Director of the Division at all times relevant to this matter.

5. Captain Carl Nielsen, Mr. Bollinger's immediate supervisor, met with Mr. Bollinger, Ms. Martinez, and Mr. Sanchez on July 1, 1994, to swear them in as law enforcement officers within the Division. Captain Nielsen explained the nature of the new positions to the three officers, gave them a copy of the position description for the positions, and gave them new manuals. In particular, Captain Nielsen explained that the new positions would require the enforcement of the laws and rules that governed the parks on a full-time basis and the devotion of their efforts to full-time law enforcement.

6. On February 3, 1995, Captain Nielsen placed Mr.

   
   

   Bollinger, Ms. Martinez, and Mr. Sanchez on performance improvement plans (hereinafter referred to as "PIPs") because of

   deficiencies in their performance since their reclassification. Ms. Martinez and Mr. Sanchez successfully completed their PIPs.

7. On May 10, 1995, Mr. Bollinger was dismissed from his position with the Department for failure to perform his duties satisfactorily. The dismissal was recommended by Captain Nielsen and approved by Colonel Watson. Mr. Bollinger was 59 years of age at the time of his dismissal. Colonel Watson, Captain Nielsen, and Mr. Sanchez were in excess of 40 years of age at the time of Mr. Bollinger's dismissal. Ms. Martinez was less than 40 years of age at the time of Mr. Bollinger's dismissal.

8. Mr. Bollinger challenged his dismissal before the Public Employees Relations Commission (hereinafter referred to as "PERC"). On June 22 and 23, 1995, and July 5, 1995, a hearing was conducted by a PERC Hearing Officer. A Recommended Order was entered on August 2, 1995, finding that just cause existed for Mr. Bollinger's dismissal. The Recommended Order included the following conclusion:

   In conclusion, the Agency has proven by a preponderance of the evidence that Bollinger did not meet his performance standards, after he was informed of the deficiencies, given assistance in improving the deficiencies, and had an amply opportunity to improve his deficiencies. See Croce v. Department of Corrections, 3 FCSR 239 (1988), affirmed, 553 So.2d 1181 (Fla. 4th DCA 1989)(unsatisfactory performance on one or few job duties which are critical factors for the effective functioning of an agency can support

   discipline for unsatisfactory performance). Thus, Bollinger's unsatisfactory performance of his duties supports just cause for discipline.

   
   

   Page 19, Respondent's Exhibit 1. The Recommended Order was subsequently adopted by PERC by Final Order entered on or about January 23, 1996.

9. The evidence failed to prove that Mr. Bollinger's age played any role in his dismissal by the Department.

10. In June of 1990 Mr. Bollinger underwent extensive surgery on his right shoulder, chest, and neck due to squamous cell carcinoma right parotid gland. Mr. Bollinger returned to work on November 12, 1990. Although the following description of the results of Mr. Bollinger's initial and subsequent surgery was written after Mr. Bollinger's termination from employment with the Department, it adequately describes his condition during the times relevant to this proceeding:

    This produced a deformity of the chest wall as well as more deformity of the supraclavicular area of the right side of his neck as well as a large scar in that area. The surgery included dissection of the facial nerve which was not completely successful because of the entanglement of the tumor around the nerve. [Mr. Bollinger] was left with a facial nerve palsy. He also complains of some loss of hearing, loss of motion of the shoulder and loss of motion of his neck.

    
    

    Petitioner's Exhibit 11.

11. After returning to work after his surgery, Mr.

    
    

    Bollinger informed his immediate supervisor that he could perform his responsibilities without limitation but requested that he be permitted time to switch his firearm qualification from his right hand to his left hand. He also made informal requests for reduced beach patrol, foot patrol, and water patrol so that he could minimize his exposure to the sun. The evidence failed to prove that these informal requests were not granted.

12. Mr. Bollinger did not inform Captain Nielsen that his physical condition would in any way prevent him from satisfying the PIP imposed on him by Captain Nielsen prior to his dismissal. Mr. Bollinger also did not make any request to the Department for any accommodation for his physical condition other than noted, supra.

13. Despite the consequences of the surgery performed on Mr. Bollinger, he continued to carry out his duties with the Department from 1990 to 1994 when he was discharged for reasons unrelated to his medical condition.

14. The evidence failed to prove that Mr. Bollinger's disability played any role in his dismissal by the Department.

15. The evidence failed to prove that the Department's actions were a pretext for discrimination based upon Mr. Bollinger's age or disability. There was no evidence that the Department's dismissal of Mr. Bollinger was grounded on

    discriminatory animus or that discriminatory reason motivated

    
    

    the Department in its actions toward Mr. Bollinger.

    
    

    CONCLUSIONS OF LAW

    
    

    1. Jurisdiction.

       
       

16. The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, this proceeding. Section 120.57, Florida Statutes (1999).

    1. The Burden and Standard of Proof.

       
       

17. In a discrimination case such as this the employee carries the burden of establishing that an unlawful employment practice has occurred. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1978). In

    this regard, the instructive language found in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089 (1981) bears repeating. There the Court held that the terminated employee carries the burden of proving by a preponderance of evidence a prima facie case of discrimination. If the employee succeeds, the burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the employee's termination. Should the employer meet this burden, the employee must then prove by a preponderance of evidence that the legitimate reasons offered by the employer were not its true reasons, but were instead a pretext for discrimination. See

    also Jones v. Bessemer Carraway Medical Center, 137 F.3d 1306

    
    

    (11th Cir. 1998).

    
    

18. In order for an employee to meet his initial burden of establishing a prima facie case, the employee must prove the following:

    1. That he is a member of a protected class.

       
       

    2. That he was qualified for his job.

       
       

    3. That he was subjected to an adverse employment action, such as discharge from employment; and

    4. That the employer treated similarly situated employees, who are not members of the protected class, more favorably.

19. If the employee meets this initial burden, the burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the termination.

    1. Mr. Bollinger's Charge of Discrimination.

    
    

20. In his Petition for Relief, Mr. Bollinger alleged that the Department dismissed him from his position as a law enforcement officer on account of his disability and age. Such a charge, if true, would constitute an unlawful employment practice in violation of Section 760.10(1)(a), Florida Statutes (1995).

21. Mr. Bollinger was required to present a prima facie

    
    

    case that he was discriminated against by the Department on the basis of either his age or his handicap.

22. Mr. Bollinger met his burden of proving a prima facie case. Mr. Bolinger proved the following:

    1. He is a member of a protected class based both on his age and handicap;

    2. He is qualified to do his job;

       
       

    3. He was subjected to an adverse employment action: he was discharged; and

    4. Similarly situated employees who are not members of the same protected class as Mr. Bollinger, were not discharged:

    Ms. Martinez and Mr. Sanchez do not suffer from a disability; and Ms. Martinez is less than 40 years of age.

23. Having met his initial burden of proof, the burden shifted to the Department to articulate a legitimate, nondiscriminatory reason for Mr. Bollinger's termination. The Department met this burden. It proved that Mr. Bollinger failed to fulfill his PIP, that he was not meeting performance standards, and that Mr. "Bollinger's unsatisfactory performance of his duties supports just cause for [his termination]."

24. The Department having met its burden in this case, Mr.

    
    

    Bollinger was required to prove by a preponderance of the evidence that the legitimate reasons offered by the Department

    were not its true reasons, but were instead a pretext for discrimination. Mr. Bollinger failed to meet this burden.

25. Based upon the foregoing, it is concluded that Mr.

Bolinger failed prove that the Department has committed an unlawful employment practice in violation of Section 760.10(1)(a), Florida Statutes (1995).

RECOMMENDATION

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

RECOMMENDED that a final order be entered by the Florida Commission on Human Relations finding that Edwin R. Bollinger failed to prove that the Department of Environmental Protection committed an unlawful employment practice in violation of Section 760.10(1)(a), Florida Statutes (1995), and dismissing, with prejudice, Mr. Bollinger's Petition for Relief.

DONE AND ENTERED this 15 day of June, 2000, in Tallahassee, Leon County, Florida.

LARRY J. SARTIN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 2000.

COPIES FURNISHED:

Edwin R. Bollinger 6372 Alderwood Plaza

Woodbury, Minnesota 55125

Marshall G. Wiseheart, Assistant General Counsel Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399-3000

Sharon Moultry, Agency Clerk

Florida Commission on Human Relations

325 John Knox Road, Building F Tallahassee, Florida 32303-4149

Dana A. Baird, General Counsel Florida Commission on Human Relations

325 John Knox Road, Building F Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of 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: 00-000405

Orders for Case No: 00-000405