SYLVESTER R. BROWN,
vs.
Respondent.
) Case No. 02-4175
Pursuant to notice, this cause came on for administrative hearing before P. Michael Ruff, duly-designated Administrative Law Judge of the Division of Administrative Hearings, in Tallahassee, Florida, on April 29, 2003. The appearances were as follows:
For Petitioner: Sylvester R. Brown, pro se
For Respondent: Joseph B. Donnelly, Esquire
Assistant Attorney General Department of Legal Affairs The Capitol, Plaza Level 01
The issues to be resolved in this proceeding concern whether the Petitioner, Sylvester Brown, was subject to
discrimination in employment for the reasons alleged in the Petition.
The Petitioner, Sylvester Brown, filed a complaint with the Florida Commission on Human Relations (Commission) alleging that his termination by Florida State University was motivated by age discrimination, race discrimination, disability discrimination and retaliation. The Commission's Office of Employment Investigation conducted an investigation into the Petitioner's allegations and found no reasonable basis to conclude Petitioner had been subject to discrimination. The Commission filed a Notice of Determination of No Reasonable Cause on September 10, 2002, based on the findings of the investigation and pursuant to Section 760.11(3), Florida Statutes, and 60Y-5.004, Florida Administrative Code. Upon the Petitioner's timely request for a hearing, pursuant to Sections 120.569, 120.57(1) and 760.11(7), Florida Statutes, this case was referred to the Division of Administrative Hearings and assigned to the undersigned.
The cause came on for hearing as noticed. At hearing, the Petitioner testified in the narrative and put on one witness, his sister. The Petitioner, upon the Respondent's stipulation, introduced into evidence two exhibits. The Respondent presented two witnesses and introduced 17 exhibits into evidence. The
Proposed Recommended Orders submitted have been considered in the rendition of this Recommended Order.
The Petitioner, Sylvester Brown, was terminated from his position as Laborer, position number 51343, within the Facilities Operation and Maintenance Department of Florida State University (FSU) on October 7, 1999, for violation of a Last Chance Agreement and absence without authorized leave. The Petitioner had been employed by FSU for 24 years.
Petitioner's Disciplinary Violations Leading to Termination
Attendance is a critical element of the Laborer's job because departmental productivity depends on the reliable availability of employees. The Petitioner received a copy of Rule 6C2-4.070, Guidelines for Disciplinary Action, Rules of the Florida State University Administrative Code on January 29, 1988, which provided notice to the Petitioner of FSU's standard of conduct and the associated penalties for violation.
The Petitioner was cited for numerous disciplinary infractions prior to his dismissal. The Petitioner's work history documents a consistent trend of absences which grew progressively worse over time. A list of documentation in evidence, exhibiting disciplinary action taken by FSU against the Petitioner includes:
A three day suspension for Absence Without Authorized Leave (AWOL) and Excessive Absences, dated January 3, 1997.
A written reprimand for Excessive Absences and AWOL, dated August 6, 1996.
An oral reprimand for excessive absences, dated April 26, 1996.
1996.
A written reprimand for AWOL, dated February 29,
A written reprimand for AWOL, dated August 14, 1991.
A written reprimand for excessive tardiness, dated
June 5, 1989.
A written reprimand for excessive tardiness, dated February 22, 1989.
A written reprimand for excessive tardiness, dated July 8, 1988.
A written reprimand for AWOL, dated May 25, 1988.
The Petitioner was cited for excessive tardiness in an official written reprimand dated July 8, 1988, and the Petitioner was again reminded that his performance hindered the department's ability to perform its function.
An oral reprimand for excessive tardiness, dated January 28, 1988.
An oral reprimand for misuse of state property and equipment, dated July 11, 1985.
A written reprimand for misuse of state property and equipment dated March 21, 1984.
A written reprimand for excessive absences, dated February 7, 1984.
A written reprimand for AWOL and misuse of state property and equipment dated, January 25, 1983.
A three day suspension for AWOL, dated July 27, 1981.
A written reprimand for AWOL, dated July 13, 1981.
The Petitioner was directed in an August 14, 1991, written reprimand to phone his supervisor as close to 8:00 a.m. as possible on days he would be unable to report to work.
The Petitioner was reminded in the February 29, 1996, written reprimand of the policy requiring employees to provide supervisors with advanced notice or documentation for leave to be authorized.
The Petitioner was informed on April 26, 1996, that his absences, both excused and unexcused, exceeded established attendance and leave standards. Specifically, from January through April, the Petitioner used 33 hours of annual leave, 31 hours of sick leave, and 29 hours of leave without pay.
FSU notified the Petitioner that his absences and sick leave totaling 33 hours during the period from April 26, 1996 to August 6, 1996, were deemed excessive and in contravention of
departmental standards. The Petitioner was also cited for six hours of being absent without authorized leave.
The Petitioner's chronic absenteeism did not improve.
The period from August 6, 1996 through January 3, 1997, witnessed 46 hours of sick leave or unauthorized leave on the Petitioner's part.
An inventory of the Petitioner's absences following his suspension from January 7-9, 1997 until August 22, 1997, catalogued 56 hours of sick leave, 16 hours of leave without pay and two hours of absence without authorized leave. This amount of leave was "considered to be excessive and completely unacceptable." [Id.] Further, the university did not receive any medical excuses for the Petitioner's use of sick leave during this period. [Id.]
Counseling was provided to the Petitioner by FSU regarding the use of sick leave on August 17, 1998. An examination of the Petitioner's attendance revealed that he used
63 hours of sick leave from February 20, 1998 through
August 6, 1998. [Id.] The university's standard for the same period of time was 33 hours of sick leave. [Id.]
The Petitioner was further advised by FSU that he would not be compensated for three consecutive absences or three absences within a 30-day period without proper medical documentation.
FSU assessed the Petitioner's attendance from January 8, 1998 through August 6, 1998, by comparing the
standard allocated for sick leave to the Petitioner's actual use of sick leave. The sick leave standard for employees for the period under review was 44.16 hours whereas the Petitioner expended 67 hours of sick leave. [Id.]
The record establishes that the Petitioner was warned
17 times in writing through reprimands, memorandums, and counseling notices dating back to 1981 that absenteeism was punishable under university employee disciplinary standards.
Tardiness and absenteeism are, in fact, grounds for dismissal under the FSU Handbook for Employees. The Petitioner was warned twice in writing that failure to rectify his recurring absenteeism could result in his dismissal. Petitioner's Termination
The FSU's Guidelines for Disciplinary Action are based on the concepts of progressive and cumulative discipline. The Disciplinary Guidelines outline standards to apply for punishable offenses to ensure similar treatment.
Ms. Susannah Miller, Manager of Employees Relations at FSU, testified that the Petitioner's personnel file revealed the worst case of absenteeism she has seen at FSU. Excessive absences is defined in the Guideline for Disciplinary Action as "an attendance record of recurring absences, even though all or
a majority of the absences were necessary and excused." Dismissal is allowed as proper punishment for an employee's fourth violation of the excessive absence rule. FSU notified the Petitioner of its intention to terminate him for excessive absences, effective on or shortly after October 12, 1998.
In lieu of firing the Petitioner, FSU elected to allow the Petitioner to enter into a "Last Chance Agreement" (LCA) with FSU to avoid dismissal. Ms. Miller stated that Last Chance Agreements allow a final opportunity for employees to improve their performance. Ms. Miller further testified that to her knowledge FSU has never retained any employee that violated a Last Chance Agreement.
The Last Chance Agreement required the Petitioner to
(1) obtain prior written approval of requests for annual leave or leave without pay; (2) follow departmental policy and call-in between 8:00 and 8:30 a.m. and speak personally with his supervisor or proper designee if he was sick and unable to report to work; and (3) agree that violation of any LCA provision would result in immediate termination for cause.
The Petitioner violated the Last Chance Agreement when he did not report for work on August 27, 1999, because he neither obtained prior approval for the absence nor followed the call-in procedure. The Petitioner also failed to provide any documentation justifying his absence.
The Petitioner was in violation of the Last Chance Agreement on August 31, 1999, when he was tardy without permission and failed to follow the call-in procedure. The Petitioner's breach of the Last Chance Agreement is even more egregious because he collected his paycheck prior to work and could have easily informed his supervisor or the designee that he needed leave that day.
In addition to violating the terms of the Last Chance Agreement, the Petitioner was also AWOL on August 27 and
August 31, 1999. AWOL is "failure to obtain approval prior to any absence from work" and is punishable by dismissal for the third occurrence. The Petitioner admitted that he violated the Last Chance Agreement.
On September 15, 1999, FSU informed the Petitioner of its decision to terminate him for violating the Last Chance Agreement and absence without authorized leave. The Petitioner was dismissed on October 7, 1999. Petitioner's Step One Grievance was denied on December 13, 1999.
FSU's decision to terminate the Petitioner for violation of the Last Chance Agreement and absence without authorized leave was upheld by the State University System of Florida in its Step Two Grievance decision.
Petitioner's Injury
The Petitioner's Position Description reveals that lifting is an integral part of a laborer's duties.
The Petitioner's 1995 Position Description allocates
85 percent of the job's essential function to lifting, moving and arranging university property and requires that the laborer be able to lift 30 pounds.
The Petitioner sustained a back injury at work on September 4, 1997. The Petitioner's job duties changed as a result of the injury and he was tasked with inspecting fire extinguishers from September 10 through November 12, 1997. A physical capacity assessment performed on the Petitioner indicated that he was capable of performing at a medium demand level. The Department of Labor defined medium demand as capable of lifting 50 pounds and pushing and pulling 50 pounds.
The Petitioner was temporarily re-assigned to the Grounds Section of the Facilities, Operations and Maintenance Department on December 23, 1997. The Petitioner testified that his job function involved re-cycling.
The Petitioner's assignment in the Grounds Section was light duty and he was informed that his job duties could be modified after his physician reviewed the physical capacity assessment. Dr. Alexander, the Petitioner's physician, declared the Petitioner fit for medium demand duty with a 35-pound lifting limit on March 24, 1998.
Robert Pullen, American Disabilities Act Coordinator at FSU, was directed by Carolyn Shackleford, under the University's Reasonable Accommodation Policy, to ensure that the Petitioner's job activities with the Grounds Section did not exceed the 35p-pound lifting threshold. The Petitioner never contacted Mr. Pullen's office regarding reasonable accommodation.
Mr. Pullen determined that the Petitioner's duties did not violate the lifting restriction and were in full compliance with the accommodation policy. The Petitioner testified that he could lift 35 pounds repetitively.
The record reflects no evidence of age discrimination committed by the Respondent against the Petitioner. The record indicates no evidence that the Petitioner was terminated due to his race. The Petitioner presented no evidence or testimony regarding retaliation by FSU.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Sections 120.57(1) and 120.569, Florida Statutes.
The Florida Civil Rights Act of 1992, Chapter 760, Florida Statutes, guards against discrimination in the workplace. The Act, among other things, forbids the discriminatory firing of an employee.
Specifically, Section 760.10(1)(a), Florida Statutes, states that it is an "unlawful employment practice for an employer to discharge any person because of such person's race, color, religion, sex, national orgin, age, handicap, or marital status." In addition, Section 760.10(7) forbids an employer to retaliate against an employee. FSU, the Respondent, is an "employer" as defined in Section 760.02(7).
Florida courts have determined that federal case law applies to claims arising under Florida's Civil Rights Act and, as such, the United States Supreme Court's model for employment discrimination cases set forth in McDonnell Douglas Corporation v. Green, 411 U.S. 792. 93 S. Ct. 1817, 36 L.Ed. 2d 668 (1973) applies to claims arising under Section 760.10, Florida Statutes. Florida Department of Community Affairs v. Bryant,
586 So. 2d 1205 (Fla. 1st DCA 1991), The Florida State University v. Sondel, 685 So. 2d 923 (Fla. 1st DCA 1997), Razner v. Wellington Regional Medical Center, Inc., 837 So. 2d 437 (4th DCA 2003), Chanda v. Engelhard/ICC, 234 F.3d 1219, 1221 (llth Cir. 2000)
The McDonnell shifting burden analysis is as follows:
(1) the Petitioner must prove a prima facie case of discrimination by the preponderance of the evidence; (2) if the Petitioner proves a prima facie case, the burden shifts to the defendant who must "articulate some legitimate,
nondiscriminatory reason for the employee's rejection" to rebut the Petitioner's presumption of a prima facie case, McDonnell, 411 U.S. at 803, 93 S. Ct. at 1824.
The Petitioner retains the ultimate burden of persuasion in an employment discrimination case. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L.Ed. 2d 207 (1981).
The Petitioner presented neither direct evidence of discriminatory intent nor statistical evidence demonstrating a pattern of such intent. Thus, only circumstantial evidence, if any, can be applied to analyze the Petitioner's claim under the McDonnell framework. Early v. Champion Int'l Corp., 907 F.2d 1077, 1081 (11th Cir. 1990).
Disability Claim
The Petitioner failed to prove his claim of disability discrimination under Chapter 760, Florida Statutes. In order to prove a prima facie case of disability discrimination under Chapter 760, Florida Statutes, or 42 U.S.C. 21101 et seq, The Americans With Disabilities Act, the Petitioner must demonstrate that he (1) has a disability; (2) is qualified to perform the essential functions of the position either with or without reasonable accommodation; (3) identified a reasonable accommodation to his employer; and (4) was unlawfully discriminated against because of his disability. Schwertfager
v. City of Boynton Beach, 42 F.Supp. 2d 1347, 1357 (S.D.Fla. 1999).
The Petitioner's medical history and the care FSU took to address the Petitioner's limitation demonstrates the Petitioner has a disability within the meaning of the ADA. 42
U.S.C. Section 12102(A)(C).
However, the Petitioner is not qualified to perform an essential function of the laborer position, namely attendance. Attendance has been held to be an essential part of a job and "moreover, there is ample support for the notion that regular and predictable attendance is an especially essential function of a government job." Schwertfager v. City of Boynton Beach, 42 F.Supp. 2d 1347, 1362 (S.D.Fla. 1999). Punctuality is considered to be an essential job function as well. Earl v.
Mervyns, Inc., 207 F.3d 1361, 1366 (11th Cir. 2000). The Respondent's Employee Handbook and associated Guidelines for Discipline, as well as the Petitioner's job description, reprimands, and counseling all emphasize the essential nature of attendance for the laborer position.
Furthermore, the Petitioner fails to make a prima facie showing because the Respondent did provide him with a reasonable accommodation in conformity with 42 U.S.C. Section 12112(b)(4). The Petitioner was accommodated for the limits imposed by his 35-pound lifting requirement by being re-assigned
to perform duties at an appropriate level. The Petitioner testified that he could lift 35 pounds repetitively. 42 U.S.C Section 12111(9) states that job re-structuring and modified work schedules are reasonable accommodations.
The disability discrimination claim is likewise deficient under the reasonable accommodation prong of the prima
facie test because the Petitioner failed to request an accommodation from the Respondent. The "employer's duty to reasonably accommodate a disabled employee is not triggered unless the employee specifically demands an accommodation." Schwertfager, supra. Robert Pullen, ADA Coordinator at FSU, never received a demand from the Petitioner for an accommodation. Any reasonable accommodation provided to the Petitioner was a result of the Respondent's own initiative as opposed to a demand on the Petitioner's part.
Finally, the Petitioner's claim fails the prima facie test because there is no evidence the Respondent unlawfully fired him because of his disability. To the contrary, the evidence proves the Petitioner was fired for absence without authorized leave and violation of the Last Chance Agreement. As a result, the Petitioner does not meet the burden of proof.
Even assuming the Petitioner did prove a prima facie
case of disability discrimination, the Respondent's stated reasons for the Petitioner's dismissal, absence without
authorized leave and violation of a last chance agreement, are legitimate, nondiscriminatory reasons for the firing supported in the record, which were not shown by the Petitioner to be mere pretexts for discrimination, by a preponderance of the evidence. McDonnell, supra. The record contains ample evidence of the Petitioner's chronic absenteeism, including absences without authorized leave, as well as the Petitioner's breach of the conditions of the Last Chance Agreement. This body of evidence rebuts any presumption of discrimination created by a prima facie case.
Race Discrimination Claim
To prove a prima facie case of race discrimination based on circumstantial evidence, the Petitioner must prove (1) he is a member of a protected class; (2) he was subjected to adverse employment action; (3) his employer treated similarly situated employees outside of his class more favorably; and (4) he was qualified to do the job. Clermont v. Frenchman's Creek Country Club, Inc., 2001 AWL 273144 (S.D.Fla)
The Petitioner is a member of a protected class.
Termination is considered adverse employment action because it is an ultimate decision regarding employment. Mattern v Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997); Gupta v. Fla. Bd. Of Regents, 212 F.3d 571, 587 (11th Cir. 2000).
In an employment discrimination case involving race, it is necessary to consider whether there are other employees accused of similar conduct who are disciplined differently. Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999). Courts "require that the quantity and quality of the comparator's misconduct be nearly identical to prevent courts from second guessing employers' reasonable decisions and confusing apples with oranges." Id. No comparison can be drawn here because no evidence was introduced relating to how FSU treated similarly situated employees. Thus, the Petitioner cannot sustain his burden of establishing a prima facie case.
The Respondent also correctly argues that the Petitioner has not proved a prima facie case because the Petitioner was not qualified to be a laborer. Attendance is an essential element of the laborer's duties and the Petitioner failed to meet this threshold requirement as well. Schwertfager, supra.
Even if the Petitioner could establish a prima facie
case of race discrimination, the Respondent's stated reasons for terminating the Petitioner, absence without authorized leave and violation of the Last Chance Agreement, are legitimate, nondiscriminatory reasons for terminating the Petitioner, and the Petitioner failed to prove by the preponderance of the evidence that the Respondent's reasons are pretexts for
discrimination. Texas Department of Community Affairs v. Burdine, supra.
Age Discrimination Claim
The Petitioner's claim of age discrimination is insufficient under the law. 29 U.S.C. Sections 623, 760.10(1)(a). A prima facie case of age discrimination requires the Petitioner to demonstrate that he (1) was a member of a protected age group; (2) was subject to adverse employment action; (3) was qualified to do the job and; (4) was replaced by a younger individual. Williams v. Vitro Services Corporation, 144. F.3d 1438, 1441 (11th Cir. 1998).
The Petitioner is in a protected age group under the Age Discrimination in Employment Act, 29 U.S.C. Section 623. Also, the Petitioner was subjected to adverse employment action because he was terminated. Gupta v. Fla. Bd. Of Regents, supra.
However, the Petitioner's attempt to build a prima facie case is deficient because there is no evidence that would support a finding that the Petitioner was replaced by a younger person. The Petitioner offered no evidence for this crucial element.
Furthermore, the Petitioner's prima facie showing is also found wanting because he is not qualified: his attendance violations prevented him from performing an essential element of his job. Schwertfager v. City of Boynton Beach, supra.
The record simply does not support a finding of a prima facie case of age discrimination in the Petitioner's favor, but, even if the burden was met, the Respondent's legitimate, nondiscriminatory reasons for terminating the Petitioner rebuts any presumption of age discrimination. In addition, the Petitioner failed to prove the Respondent's reasons for firing him are pretextual by a preponderance of the evidence. Texas Department of Community Affairs v. Burdine, supra.
Retaliation Claim
The Petitioner has not proven his claim of retaliation under Section 760.10(7), Florida Statutes and 42 U.S.C. Section 2000e-3(a). A prima facie case of retaliation contains three elements: (1) The Petitioner engaged in an activity that Title VII protects; (2) The Petitioner suffered an adverse employment action; and (3) The Petitioner shows a causal connection between participation in a protected activity and the adverse employment decision.
Title VII, 42 U.S.C. Section 2000e-3(a), protects two types of employee conduct. First, an employee is protected if he opposes any unlawful employment practice. McLean v. City of St. Petersburg, 194 F. Supp. 2d 1290, 1297 (M.D.Fla. 2002). Second, an employee is protected from retaliation if he makes a charge, testifies, assists, or participates in any manner in an
investigation, proceeding, or hearing under this subchapter. Id. These provisions are known as the ”opposition clause" and "participation clause," respectively. Id.
There is no evidence to support a contention that the Petitioner opposed any unlawful employment practice of the Respondent's that would offer him protection under the opposition clause. In fact, the record reflects that the Petitioner did not oppose any employment practice of the Respondent's, save for the requirement to be present at work on time.
In a similar vein, the Petitioner cannot avail himself of the participation clause, either. The record is devoid of any evidence indicating that the Petitioner was involved or otherwise engaged in any investigation, proceeding, or hearing involving unlawful employment practices at FSU.
Therefore, because the factual record concerning retaliation is bare, the Petitioner cannot show the requisite causal connection and his prima facie case fails.
Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore,
That a Final Order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety.
DONE AND ENTERED this 15th day of July, 2003, in Tallahassee, Leon County, Florida.
P. MICHAEL RUFF Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 2003.
Sylvester R. Brown
Joseph B. Donnelly, Esquire Assistant Attorney General Department of Legal Affairs The Capitol, Plaza Level 01
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
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.
