Michael Ruff, duly-designated Administrative Law Judge of the Division of Administrative Hearings. The hearing was conducted in Jacksonville, Florida, on June 20, 2002. The appearances were as follows:
For Petitioner: Gregory L. Stubbs, pro se
For Respondent: Robert M. Burdick, Esquire
The issue to be resolved in this proceeding concerns whether the Petitioner was the victim of discrimination by the Respondent because of an alleged disability and whether the
Respondent retaliated against the Petitioner for filing a complaint of discrimination with the Equal Employment Opportunity Commission (EEOC).
This cause arose when the Petitioner, Gregory L. Stubbs, filed a Charge of Discrimination with the EEOC alleging that the Department of Transportation (Department) had discriminated against him on the basis of race and an alleged disability, by reducing his pay after re-assignment from his original position of Welder to a Weight Inspector position. The charge was filed on approximately February 9, 1999.
On May 13, 1999, the EEOC advised the Petitioner that it could not investigate his charge because it was not filed within the time required by law. On September 21, 2000, the Petitioner filed a complaint with the EEOC alleging that the Department had retaliated against him for filing the 1999 Charge of Discrimination. On or about December 26, 2000, the Petitioner also filed a Charge of Discrimination with the Florida Commission on Human Relations (Commission) contending that the Department had wrongfully terminated him from employment as retaliation against him for filing the first EEOC charge.
The Commission notified the Petitioner on February 19, 2002, that it had determined that there was no reasonable cause to believe an unlawful employment practice had occurred. The
Petitioner initiated this proceeding thereafter by filing a Petition for Relief requesting formal proceedings pursuant to Section 760.11(7), Florida Statutes. The Petition contains allegations that the Department retaliated against the Petitioner and discriminated against him because of an alleged disability. The matter was transferred to the Division of Administrative Hearings and ultimately assigned to the undersigned Administrative Law Judge.
The hearing came on as noticed on June 20, 2002, in Jacksonville, Florida. The Petitioner presented the testimony of two witnesses, including his own testimony, and had fifteen exhibits admitted into evidence. The Department called two witnesses and had sixteen exhibits admitted into evidence. Upon the conclusion of the proceeding the parties were give the opportunity to file Proposed Recommended Orders, after obtaining a Transcript. The Proposed Recommended Orders have been considered in the rendition of this Recommended Order.
The Petitioner Gregory L. Stubbs, was employed by the Respondent Department as a maintenance yard Welder for approximately five and one-half years. In 1993, he suffered a back injury on the job, resulting in chronic pain. On
January 28, 1997, the Petitioner accepted a position with the Department's Office of Motor Carrier Compliance (MCC) as a
Weight Inspector. The Weight Inspector position accepted by Mr. Stubbs was an open, advertised position at the time, for which the Department accepted applications and conducted interviews, including that of Mr. Stubbs. He applied for the position, was interviewed and selected for the position.
When Mr. Stubbs was offered the Weight Inspector position, he was advised that appointment to the position would amount to a demotion from his current position with the Department, in the sense that he would have to accept a base rate of pay of 5 percent less than he had been earning. He voluntarily accepted that position and the reduction in pay. The pay for the position was set when the position was released for hire and was not changed because Mr. Stubbs elected to apply for the position and became the selected candidate hired for the position.
Weight Inspectors work at fixed-scale weigh stations where trucks are weighed. Mr. Stubbs was assigned to the "Northbound scales" on Interstate 95 near Yulee, Florida in Nassau County. Weight Inspectors are responsible for enforcing the motor vehicle weight laws, writing citations for violations, as well as writing citations for fuel tax violations and enforcing the dimensional limits on motor vehicles. The job involves weighing and measuring vehicles, writing citations, answering the telephone, operating a computer and checking
vehicle tags and registration numbers. The job does not involve any heavy lifting, loading or any physically demanding tasks.
Weight Inspectors employed by MCC work alone at the scale houses, except when a new inspector is present for training. Mr. Stubbs was able to perform these duties and, when present for work, performed them well.
Mr. Stubbs was supervised by Sgt. Robert Bryan.
Sgt. Bryan participated in interviewing Mr. Stubbs and in selecting him for the position. During the interview process Sgt. Bryan informed Mr. Stubbs of the Weight Inspector's job duties. Mr. Stubbs never informed Sgt. Bryan that he would have any trouble performing the job duties. Mr. Stubbs also did not tell Sgt. Bryan, at that time, that he had trouble with his back or that he would have trouble reporting for work on time.
Sgt. Bryan later learned that Mr. Stubbs had trouble with his back, but did not consider the problem to restrict Mr. Stubbs' ability to perform the Weight Inspector job.
Weight Inspectors are required to report for work on time. The failure to report for work timely, results in closure of the scale facility. When a Weight Inspector has to be late or is unable to report for work before the beginning of a shift, he is required to advise the supervisor before the scheduled time for the shift. This requirement is contained in the Department's published Conduct Standards. Copies of the
Department's published Conduct Standards are provided to all Weight Inspectors that work for MCC, including the Petitioner. Department employees are advised that unexcused tardiness or absences will be grounds for disciplinary action and the Petitioner was so informed.
On October 19, 1997, Sgt. Bryan counseled Mr. Stubbs about failing to notify him of an absence from work. Sgt. Bryan stressed the need for Mr. Stubbs to contact him as soon as he became aware that he would not be able to timely report for work. On October 12, 1998, Sgt. Bryan counseled Mr. Stubbs for failing to report to work on time. Sgt. Bryan again stressed the need for Mr. Stubbs to timely report to work.
On December 31, 1998, Mr. Stubbs acknowledged receipt of a Memorandum from Lt. Vicki D. Thomas concerning tardiness and the use of leave. Lt. Thomas is the Jacksonville Field Office supervisor for MCC and is Sgt. Bryan's immediate supervisor. Lt. Thomas' Memorandum requires Weight Inspectors to contact both the main MCC office and the inspector who they are scheduled to relieve whenever they will be tardy or absent. On January 13, 1999, Sgt. Bryan again counseled Mr. Stubbs about failing to report to work as scheduled
In 1998, Mr. Stubbs filed a grievance through his union, the American Federation of State, County and Municipal Employees (AFSCME). The subject of the grievance was the
reduction in pay Mr. Stubbs' sustained by accepting employment with MCC. He sought re-instatement of the pay he had received as a Welder. Lt. Thomas received the AFSCME grievance on August 17, 1998, and responded to it by noting that the grievance was untimely and that Mr. Stubbs had voluntarily accepted the Weight Inspector position and attendant reduction in pay. Although the grievance was unsuccessful Mr. Stubbs continued his employment with MCC.
On or about February 9, 1999, the Petitioner filed a Charge of Discrimination with the EEOC alleging that the Department had discriminated against him on the basis of race and disability by reducing his pay when he accepted the Weight Inspector position. On May 13, 1999, the EEOC advised the Petitioner that it could not investigate his charge because it was not filed within the time required by law. A copy of the EEOC Dismissal and Notice of Rights was provided to the Department. A copy of the EEOC Notice was also sent to Mr. Stubbs at the Department's address. This copy was mistakenly opened by the Department and then forwarded to Mr. Stubbs. Sgt. Bryan became aware of the complaint when the letter was opened in the Department offices, but the complaint was not a factor in his supervision of Mr. Stubbs.
On April 2, 1999 through June 25, 1999, the Petitioner was absent from work. He exhausted all of his sick leave and
was authorized additional, unpaid leave under the Family Medical Leave Act. On June 25, 1999, Mr. Stubbs returned to his Weight Inspector assignment. He was scheduled to work on July 2, 7, 8, 9, 13 and 16, 1999. He did not report for work on those days.
On July 8, 1999, he failed to advise Sgt. Bryan that he would not be reporting for work. Sgt. Bryan checked with other supervisors to see if Mr. Stubbs had advised anyone else that he would be absent, and learned that Mr. Stubbs had not contacted them. Lt. Thomas issued a written reprimand to the Petitioner for these absences. The reprimand was issued because he was absent from work without authorized leave and failed to follow the Department's rules concerning advance approval for leave.
Neither the Petitioner's prior complaint to the EEOC or his back problem motivated Lt. Thomas to issue the reprimand.
On July 20, 1999, Sgt. Bryan spoke with Mr. Stubbs about a cash penalty that Mr. Stubbs had collected on a "load report." Weight Inspectors who collect cash penalties are required to convert the cash funds to a money order or cashier's check within 48-hours after the date the report is issued. Weight Inspectors are allowed to use work time to convert cash penalties to money orders or cashier's checks. Sgt. Bryan asked the Petitioner about the cash because the load report involved was apparently issued six days earlier. The Petitioner told Sgt. Bryan that he had not converted the cash to a money order,
that he had the cash with him and that he believed the inquiry was ridiculous. Sgt. Bryan then had to go to Mr. Stubbs's doctor's office to retrieve the cash penalty. Mr. Stubbs received a suspension for his handling of the cash penalty and related behavior. Lt. Thomas investigated the allegations contained in the suspension letter and believed them to be correct. She prepared the letter for signature. Neither Mr. Stubbs' prior complaint to the EEOC or his back problem motivated Lt. Thomas to issue the suspension.
During the period from July 21, 1999 to August 6, 1999, the Petitioner was repeatedly absent and late to work. At 12:25 p.m., on August 1, 1999, the Petitioner advised Lt. Thomas that he had not worked as scheduled on July 31, 1999, and had not reported for work on the morning of August 1, 1999. On August 26, 1999, the Petitioner received a suspension for his unauthorized and excessive absences. Lt. Thomas investigated the allegations contained in the suspension letter, believed them to be correct and prepared the letter for signature. Neither the Petitioner's prior complaint to the EEOC or his back problem motivated Lt. Thomas to issue the suspension. The Petitioner was advised that any further violations of the Department's Conduct Standards would result in more severe discipline, up to and including dismissal.
The Petitioner was scheduled to work from October 11 through October 15, 1999, but did not report for work on those days. He did not contact Sgt. Bryan or Lt. Thomas to advise them that he would not be at work. Lt. Thomas and Sgt. Bryan checked with other MCC supervisors and staff but were not advised that Mr. Stubbs had contacted anyone. Sgt. Bryan and Lt. Thomas did not hear from Mr. Stubbs from October 11 through October 15, 1999, and had not authorized his absences. The Department dismissed Mr. Stubbs from employment for those unauthorized absences. The Petitioner was apparently ill during that period but did not provide the Department with a doctor's note until approximately six weeks after the absences. The doctor's note does not indicate that the Petitioner was unable to call his supervisors to report his anticipated absence. The Petitioner did not establish that he was unable to report to his supervisors as required.
The Department's discipline of the Petitioner and the ultimate decision to dismiss him from the Department were not motivated by Mr. Stubbs' prior complaint to the EEOC.
Although some of his absences from work may have resulted from his back injury, the evidence does not establish that all of his absences were related to his injury. He was absent for material amounts of time in excess of his available leave. In 1999, he exhausted his accrued leave and used twelve
weeks of unpaid leave under the Family Medical Leave Act. After returning from family medical leave, he continued to be absent for a significant period of time. There was no showing that additional leave would enable Mr. Stubbs to return to work on a regular basis. Additionally, he failed to notify his superiors in advance of his absences as required and instructed.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Sections 120.569 and 120.57(1), Florida Statutes (2001).
The Petitioner maintains that the Department has violated the provisions of Sections 760.01 through 760.11, Florida Statutes.
Intentional discrimination can be proven by two means, either by direct evidence of discriminatory intent or through circumstantial evidence. See McDonnell-Douglas Corporation v. Green, 411 U.S. 792 (1973). The complainant or petitioner has the burden of establishing a prima facie case of discrimination. McDonnell-Douglas Corporation v. Green, 411 U.S. 802. A prima facie case may be established by showing that the complainant belongs to a protected class and suffered some adverse employment action under circumstances that create an inference that the employer was motivated by discrimination. See
generally Price-Waterhouse v. Hopkins, 490 U.S. 228 (1989); McDonnell-Douglas Corporation v. Green, 411 U.S. 802 n.13. If a complainant successfully establishes a prima facie case of discrimination, the employer must then advance a legitimate, non-discriminatory reason for its action. See McDonnell-Douglas Corporation v. Green, supra; Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 254 (1981).
If the employer offers a legitimate, non- discriminatory reason for the employment action, the complainant must then prove by a preponderance of the evidence that the legitimate reasons offered by the employer were not its true reasons, but were a pretext for discrimination. This requires proof that both the reasons given were false and that discrimination was the real reason for the employer's actions. St. Mary's Honor Center v. Hicks, 509 U.S. 520, 515-517 (1993).
The Petitioner maintains that he suffered adverse employment action because of his disability. A prima facie case of handicap or disability discrimination under the Florida Civil Rights Act, requires a showing that: (1) the complainant is handicapped; (2) the complainant performed or is able to perform his assigned duties satisfactorily; and (3) despite his satisfactory performance, the complainant was terminated from employment. Clark v. Jackson County Hospital, 20 FALR 1182, 1184 (FCHR 1997). If the complainant is unable to make a prima
facie case of handicap discrimination, the burden of producing rebuttal evidence does not shift to the employer. Brand v.
Florida Power Corporation, 633 So. 2d 504, 512 (Fla. 1st DCA 1994).
The Petitioner's complaint to the Commission did not expressly include claims of discrimination on the basis of his alleged disability. These claims were asserted in the Petition for Relief that was filed after the Commission issued its No Cause Determination. The claim of disability discrimination was not filed within the time allowed under Chapter 760, Florida Statutes. However, even if the claim was timely filed, it would fail on its merits.
The Commission has historically defined "handicap" as a condition that prevents normal functioning in some way. Clark
v. Jackson County Hospital, 20 FALR at 1183. The First District Court of Appeal defined "handicap" by reference to Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Section 794. The Rehabilitation Act uses the following definition of an individual with a handicap: a person with (1) a physical or mental impairment which substantially limits one or more of a person's major life activities; (2) a record of such impairment; or (3) who is regarded as having such an impairment. This definition applies to claims of discrimination on the basis of handicap under the Florida Civil Rights Act and generally
parallels the definition used by the Commission. Brand v. Florida Power Corporation, 633 So. 2d at 510, n.10.
Applying these criteria to the evidence presented, it is doubtful that the Petitioner even meets the threshold of a person with a handicap. Mr. Stubbs testified that his back condition is chronic and causes him a lot of pain. However, there is no evidence that he is substantially limited in any major life activity and the Department certainly did not regard him as so limited. However, even if he is a handicapped person within the definition of the Act, the Petitioner did not prove the other portions of his prima facie case.
The Petitioner did not prove that he performed his job satisfactorily. To the contrary, Mr. Stubbs regularly violated the Department's requirements concerning the use of leave and advance notice of absences. He was repeatedly and progressively cautioned and disciplined for violating these rules, culminating in his termination for failing to report to work and failing to advise his supervisor of his need to be absent. There is no evidence that the Department applied these rules to him any differently than any other Weight Inspector.
Even if the Petitioner had established a prima facie case, the Department articulated a legitimate, non- discriminatory reason for his termination. The Petitioner regularly violated the Department's requirements concerning the
use of leave and advance notice of absences. After a legitimate, non-discriminatory reason for the alleged adverse action is articulated, the complainant has the burden of establishing, by a preponderance of the evidence, that the proffered evidence is a mere pretext for discrimination.
McDonnell-Douglas Corporation, 411 U.S. at 804. This requires proof both that the reasons given were false and that discrimination was the real reason for the employer's actions. St. Mary's Honor Center, 509 U.S. 515.
Mr. Stubbs wholly failed to meet this burden. There is no competent evidence that the reasons advanced by the Department for its decisions were pretextual. Mr. Stubbs presented no competent evidence that his supervisors were not disciplining him for exactly the reasons given. Mr. Stubbs was regularly advised of the Department's expectations concerning absences and reporting to work, from the time he began work as a Weight Inspector. He received numerous counseling sessions and progressive discipline. Despite the Department's continuing efforts to allow Mr. Stubbs an opportunity to reform, he failed to report to work on October 11 through October 15, 1999 and failed to contact his supervisors to report his absence.
Although Mr. Stubbs' contends he was absent for medical reasons, there is nothing in the record that would indicate any reason why he could not have contacted his
superiors and advised them of his inability to work. The employer's proffered reason may not be proven to be pretextual merely by questioning the wisdom of the reason, at least where the reason is one that might motivate a reasonable employer.
See Combs v. Plantation Patterns, 106 F.3d 1519, 1543 (11th Cir. 1997). The reason for Mr. Stubbs' dismissal offered by the Department is clearly reasonable. The preponderant evidence establishes that Mr. Stubbs was terminated for violating Department rules when he knew that the violation could result in his termination.
Mr. Stubbs also claims that the Department retaliated against him for filing a complaint with the EEOC. A prima facie case of retaliation requires a showing that the employee engaged in a statutorily protected activity, that an adverse employment action occurred and that the adverse action was causally related to the protected activity. See Little v. United Technologies,
103 F.3d 956, 959 (11th Cir. 1997). The alleged acts of retaliation are the disciplinary actions after May 1999, and the ultimate termination.
When an employer's conduct is lawful, a complaint concerning the conduct must be filed with a good faith, reasonable belief that the employer was engaged in unlawful employment practices. Otherwise, the complaining person will not have engaged in a statutorily protected activity that could
be the subject of retaliation by the employer. See Harper v. Blockbuster Entertainment Corporation¸ 139 F.3d 1385, 1388 (11th Cir. 1998). This requires more than an honest and bona fide belief that the employer's conduct was unlawful. The allegations and record must demonstrate that the employee's belief that the employer was acting unlawfully was objectively reasonable. See Harper v. Blockbuster Entertainment Corporation¸ 139 F.3d 1388. Here there is no reason to conclude that the manner of the Department's hiring of Mr. Stubbs as a Weight Inspector was unlawful. Mr. Stubbs may have subjectively believed that the Department had unlawfully reduced his pay when he accepted the Weight Inspector position; however, there is no evidence in the record that will support the conclusion that this belief was objectively reasonable. The record indicates that the pay for the position was set before Mr. Stubbs was ever considered for the position. The position was an open, advertised opportunity for which the Department accepted applications. The record indicates that Mr. Stubbs knowingly and voluntarily accepted the Weight Inspector position and its attendant five percent reduction in pay. Although he claims that he took the job under duress there is no evidence of duress in the record. The retaliation claim fails because Mr. Stubbs did not establish that he engaged in any statutorily protected activity nor that there was any discriminatory animus.
Even assuming arguendo that Mr. Stubbs made a prima facie showing of retaliation, the Department articulated a legitimate, non-retaliatory reason for its actions. After an employer articulates a legitimate, non-retaliatory reason for its actions, the complainant must prove that the proffered reason was a pretext for discriminatory retaliation. EEOC v.
Richhold Chemicals, Inc., 988 F.2d 1564, 1572 (11th Cir. 1993). Mr. Stubbs presented no competent evidence that the reasons advanced by the Department for its decisions were pretextual.
The record indicates that the Department based its discipline of Mr. Stubbs on its Conduct Standards that are applied equally to all Weight Inspectors.
The Department did not violate the provisions of Chapter 760, Florida Statutes, by disciplining and ultimately dismissing Mr. Stubbs. The Department did not retaliate against him for filing his complaint with the EEOC. The Department did not discriminate against him on the basis of his alleged handicap. The record reflects that the Department actually accommodated Mr. Stubbs in 1997 by hiring him into a position that would not present the same physical requirements that Mr. Stubbs apparently faced as a Welder. Mr. Stubbs' later troubles resulted from his unexplained failures to report for work and his failures to contact his supervisors in advance of his absences.
