STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JERZY JOZEFIK,

Petitioner,

vs.

H & S SWANSON'S TOOL COMPANY,

Respondent.

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) Case No. 02-4728

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RECOMMENDED ORDER

On April 7, 2003, a formal administrative hearing in this case was held in Largo, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jerzy Josefik, pro se,

9605 Southwest 27th Avenue Ocala, Florida 34476

For Respondent: Grant D. Peterson, Esquire

Ignacio J. Garcia, Esquire Haynsworth Baldwin

Johnson & Greaves, LLC

600 North Westshore Boulevard, Suite 200

Tampa, Florida 33609-1117 STATEMENT OF THE ISSUE

The issue in the case is whether the Petitioner was harassed on the basis of national origin or discriminated against on the basis of a disability.

PRELIMINARY STATEMENT

By Charge of Discrimination filed on September 27, 1999, Jerzy Josefik (Petitioner) alleged he was the subject of discrimination and harassment on the basis of national origin and disability while employed by H & S Swanson's Tool Company (Respondent). By Notice of Dismissal and Right to Sue dated October 28, 2002, the Florida Commission on Human Relations (FCHR) advised the Petitioner that the case had been dismissed. The Notice also advised the Petitioner of his right to pursue the claim in a hearing before the Division of Administrative Hearings (DOAH) or in court. The Petitioner filed a Petition for Relief, which the FCHR forwarded to DOAH for further proceedings.

At the hearing, the Petitioner testified on his own behalf.

The Respondent presented the testimony of three witnesses and had Exhibits numbered 1 through 10 and 12 through 14 admitted into evidence.

The one-volume Transcript of the hearing was filed on April 24, 2003. The Respondent filed a Proposed Recommended Order.

FINDINGS OF FACT

1. The Petitioner began employment with the Respondent in the summer of 1994 and was terminated from his employment on July 28, 1999.

2. The Respondent operates a machine shop where different types of large metal parts are fabricated according to customer order.

3. The Petitioner was employed as a "mill operator" in the "caterpillar" department. As a mill operator, the Petitioner was required to load metal parts into machines for further processing, check the quality of his work, and return the parts to a container of finished parts.

4. At all times material to this case, the Respondent had a policy prohibiting employee harassment on the basis of numerous grounds including "national origin." The policy provided that any employee who believed that such harassment was occurring should report it immediately to a supervisor or to another company official.

5. The non-harassment policy was included in the employee handbook. The Petitioner received the handbook when the Respondent employed him and was aware of the policy.

6. The Petitioner, of Polish origin, asserted that at various times he was harassed on the basis of national origin; specifically, he was sometimes addressed as "pollock" by some co-workers.

7. Although the evidence establishes that employees, perhaps including the Petitioner, occasionally referred to each other by ethnic slurs (i.e., "pollock," "speedy Gonzalez," and

   "buddha") the testimony regarding such incidents was anecdotal, and the times and dates of such references are uncertain.

8. The evidence fails to establish that the Petitioner was subjected to a hostile work environment or was harassed on the basis of national origin. Other than as set forth herein, the evidence fails to establish that the Petitioner or any other employee ever advised a supervisor or a manager that co-workers were making ethnic references or that any employee felt harassed by the behavior.

9. In March 1998, a note was taped to the men's restroom door reading "Polish Department – Jerry's [sic] Office." The Petitioner reported the note to his supervisor. A meeting was held with the Petitioner's co-workers on March 16, 1998, where the Respondent's managers advised the employees that such behavior was not acceptable and that similar events in the future would result in disciplinary action against the perpetrators.

10. The Petitioner also asserts that he was discriminated against on the basis of an alleged disability.

11. In December 1998, the Petitioner had a total replacement of his right hip. He was medically cleared to return to work on March 1, 1999, with restrictions of not working more than 10 hours per day for two weeks and not lifting more than 20 pounds.

12. The Petitioner reported for work on March 4, 1999, but was sent home by his supervisor because there was no work that met his restrictions, particularly the weight restriction. Generally the metal parts involved in the Respondent's manufacturing process weighed in excess of 20 pounds.

13. By March 18, 1999, the restrictions were lifted and the Petitioner returned to work without incident until July 1999.

14. On July 6, 1999, the Petitioner received a written warning from a plant supervisor who determined that the Petitioner was not properly inspecting parts being produced in the Petitioner's machine. An excessive number of parts were not within acceptable fabrication tolerances and had to be "re- worked." The warning specifically provided that failure to improve the quality and inspection of parts would result in termination of employment.

15. On July 27, 1999, the Petitioner reported hip pain to his physician and was again placed on a restricted workload that included no lifting of weight in excess of 20 pounds and no "twisting" until the physician determined that the pain had been resolved. Based on the medical restrictions and his experience, the Respondent was unable to locate work suitable for the Petitioner. The Petitioner's employment was terminated because

    there were no jobs available that complied with the Petitioner's medical restrictions.

16. Review of the Petitioner's performance evaluations establishes that he was generally an average worker who was sometimes warned about becoming too involved in other employees' activities. His evaluations of August 1996 and September 1998 contained references to such involvement and indicated that he should "spend less time worrying" about other employees.

17. The 1996, 1997, and 1998 performance evaluations suggested that the Petitioner obtain additional training in order to advance his career. The Respondent offered a program to fund such training, and notices regarding the training were posted on a bulletin board accessible to employees, but the Petitioner did not take advantage of the program.

18. At the time of the July 1999 medical restrictions, the Petitioner's skill set did not qualify him to perform tasks other than as a mill operator using the machine for which he was originally employed.

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Sections 120.569 and 120.57(1), Florida Statutes.

20. The Petitioner asserts that he was subjected to a hostile work environment on the basis of national origin. The evidence fails to support the assertion.

21. In a case such as this involving an alleged hostile work environment due to harassment on the basis of national origin, the Petitioner must prove that: he belongs to a protected class; he was subjected to harassment; the harassment was based on his national origin; and the harassment was sufficiently severe or pervasive to alter a term of the employment and create an abusive work environment. Mortenson v.

    City of Oldsmar, 54 F.Supp. 2d 1118 (M.D. Fla. 1999).

    
    

22. The Petitioner has established by his testimony that he is a member of a protected class (national origin). As to whether he was subjected to harassment on the basis of the national origin, it has been held that mere utterance of an ethnic or racial epithet that engenders offensive feelings in an employee does not constitute harassment. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Rogers v. E.E.O.C., 454 F.2d 234 (5th Cir. 1973).

23. Additionally, the Petitioner has failed to establish that the harassment was sufficiently severe or pervasive as to alter a term of employment and create an abusive work environment. In determining whether a work environment is sufficiently hostile or abusive to violate an employee's civil

    rights, the circumstances must be fully examined, including the frequency of the questioned conduct, whether it is physically threatening or humiliating or a mere offensive utterance, and whether it interferes with an employee's work performance.

    Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993). Here, there is limited evidence as to the frequency of the conduct. There is no evidence that the conduct was physically threatening. The Petitioner did not appear to be offended by the verbal references used by co-workers. The evidence suggested that the Petitioner joined in making such references towards other co- workers. There is no evidence that the references interfered with the Petitioner's work performance.

24. Assuming that the Petitioner had established a prima

    
    

    facie case of a hostile work environment, the Petitioner must also establish that the employer knew or should have know of the existence of continuing harassment and failed to take prompt action to end it. Burlington Industries, Inc. v. Ellerth, 524

    U.S. 742 (1998); Breda v. Wolf Camera & Video, 222 F.3d 886 (11th Cir. 2000). Other than the bathroom sign incident, the evidence fails to establish that the company knew or should have known about the alleged harassing conduct. There is no evidence

    that employees of the company were sufficiently troubled by the behavior between co-workers to complain to supervisors or managers.

25. On the one occasion (the sign on the bathroom door), where the company was made aware of the behavior, the employer quickly scheduled a meeting with company employees and clearly warned them that similar occurrences in the future would warrant disciplinary action against the perpetrators.

26. The Petitioner further asserts that his employment was terminated on the basis of a disability. The evidence fails to support the assertion.

27. In order to prevail on this point, the Petitioner must establish that he has a disability recognized by the Americans with Disabilities Act (ADA), that he is qualified with or without accommodation to perform the essential tasks of the job, and that he was discriminated against on the basis of the disability. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

28. In this case, the Petitioner has failed to establish that he has a disability. Under the ADA, a disability is a "physical or mental impairment that substantially limits one or more major life activities." 42 U.S.C. 12102(2)(a). Temporary and non-chronic impairments of short duration with little or no long-term or permanent impact are not disabilities protected by

the ADA. An inability to lift more than 20 pounds for a period of time does not limit the Petitioner from engaging in major life activities. See Coker v. Tampa Port Authority; 962 F.Supp. 1462 (M.D. Fla. 1997).

RECOMMENDATION

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

RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petition for Relief filed by Jerzy Josefik in this case.

DONE AND ENTERED this 30th day of May, 2003, in Tallahassee, Leon County, Florida.

WILLIAM F. QUATTLEBAUM

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 30th day of May, 2003.

COPIES FURNISHED:

Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Jerzy Jozefik

9605 Southwest 27th Avenue Ocala, Florida 34476

Grant D. Petersen, Esquire Ignacio J. Garcia, Esquire

Haynsworth Baldwin Johnson & Greaves LLC 600 North Westshore Boulevard, Suite 200

Tampa, Florida 33609-1117

Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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: 02-004728

Orders for Case No: 02-004728