STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES H. MILLER,

Petitioner,

vs.

DEPARTMENT OF TRANSPORTATION,

Respondent.

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) Case No. 03-0976

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RECOMMENDED ORDER

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 Gainesville, Florida, on June 19, 2003. The appearances were as follows:

APPEARANCES

For Petitioner: Charles H. Miller, pro se

15408 Northwest 25th Terrace Gainesville, Florida 32609

For Respondent: Robert M. Burdick, Esquire

Department of Transportation

605 Suwannee Street, Mail Stop 58

Tallahassee, Florida 32399-0458 STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concerns whether the Respondent discriminated against the Petitioner because of his alleged disability.

PRELIMINARY STATEMENT

On May 6, 2002, the Petitioner, Charles H. Miller, filed a Charge of Discrimination with the Florida Commission on Human Relations (Commission), alleging that the Department of Transportation (Department) had discriminated against him on the basis of disability by allowing supervisory level employees to make fun of his disability and transferring and dismissing him without good cause. On February 10, 2003, the Commission notified the Petitioner that it had determined that there was no reasonable cause to believe that an unlawful employment practice had occurred. The Petitioner then initiated this proceeding by filing a Petition for Relief requesting formal administrative proceedings pursuant to Section 760.11(7), Florida Statutes.

The Petition contains allegations that the Department discriminated against the Petitioner because of an alleged disability and later retaliated against the Petitioner by making a derogatory statement to the Agency for Workforce Innovation in connection with the Petitioner's application for unemployment compensation benefits. The matter was transmitted to the Division of Administrative Hearings (Division) for assignment of an administrative law judge and a formal hearing.

A formal administrative hearing was held in this case in Gainesville, Florida, on June 19, 2003, before the undersigned. The Petitioner presented the testimony of six witnesses and had

three exhibits admitted into evidence. The Department called two witnesses and had two exhibits admitted into evidence. At the conclusion of the hearing, the parties were directed to file proposed recommended orders within 25 from the date the transcript was filed with the Division. All statutes are to Florida Statutes (2002) unless otherwise indicated.

FINDINGS OF FACT

1. The Petitioner, Charles H. Miller, was employed by the Respondent, Department of Transportation, for approximately 15 years.

2. In October 1999, Mr. Miller injured his ankle in a

   
   

   work-related accident. He experienced chronic pain and mobility limitations as a result of the accident and continually received medication and psychological and/or physical therapy to help relieve the symptoms of his condition. Mr. Miller wore a brace on his injured foot and took various narcotic pain relievers.

   On May 2, 2001, Petitioner began seeing Lewis Fabrick, Ph.D., a licensed clinical social worker. Dr. Fabrick determined that Mr. Miller was suffering from depression, anxiety and stress that resulted partly from the pain from the physical injury and partly from the side effects of the medication. However, the Department was not aware of the nature or extent of Mr. Miller's mental or emotional issues.

3. Prior to December 2000, Mr. Miller reported directly to Thomas Malerk, the State Materials Engineer. At that time,

   Mr. Miller was acting as the data center manager and supervised several other employees. Around November 2000, Mr. Malerk assigned another employee to supervise Mr. Miller and eliminated Mr. Miller's supervisory responsibilities. Mr. Miller's pay and benefits were not affected by this change. Mr. Malerk took this action to correct problems with the data center that had resulted in complaints about Mr. Miller and the data center.

   Mr. Miller's physical condition was not a factor in Mr. Malerk's decision to change Mr. Miller's job.

4. In December 2000, Mr. Miller complained to the Department's ombudsman that coworkers were making fun of his ankle brace and physical limitation. Mr. Miller alleged that Mr. Malerk had joked about Mr. Miller needing a boot on the other foot to match and that the personnel officer, John Cooper, would pretend to "draw like a cowboy" in a manner that ridiculed Mr. Miller's condition. Mr. Miller also alleged that another co-worker, Gale Page, was harassing him by making fun of his physical limitations. Neither Mr. Cooper or Mr. Page had any supervisory responsibility over Mr. Miller.

5. After receiving Mr. Miller's complaint, the ombudsman contacted Mr. Cooper and Mr. Malerk to inform them of Mr. Miller's concern.

6. At approximately the same time, Mr. Miller also told Mr. Cooper that he was being harassed by Mr. Page, Mr. Malerk, and Mr. Cooper. When Mr. Cooper asked Mr. Miller to specifically identify the harassment that had occurred,

   Mr. Miller only specifically reported that Mr. Page had made fun of his walk or his leg. Mr. Cooper then informed Mr. Malerk of Mr. Miller's complaint and approached Mr. Page. Mr. Cooper told Mr. Page that he should refrain from making comments about Mr.

   Miller's condition. When Mr. Malerk learned of Mr. Page's remark to Mr. Miller, he reprimanded Mr. Page and requested that he apologize or otherwise clear the matter. Mr. Malerk also discussed the matter with Mr. Miller. Mr. Malerk apologized to Mr. Miller for anything he might have said that was insensitive and asked Mr. Miller if he had made any inappropriate remarks.

   Mr. Miller told Mr. Malerk that they did not have a problem and that he considered the matter with Mr. Page closed.

7. Other than the incident with Mr. Page, and the accompanying accusations involving Mr. Malerk and Mr. Cooper, neither Mr. Cooper or Mr. Malerk had any reason to believe that any Department employee might be harassing Mr. Miller or making jokes about his injury or condition. Contrary to Mr. Miller's claim, the evidence does not indicate that either Mr. Malerk or Mr. Cooper even made fun of Mr. Miller's condition. Mr. Miller

   and Mr. Malerk have known each other since 1997 and were friendly with each other.

8. On May 22, 2001, the Department dismissed Mr. Miller.

   
   

   The decision to dismiss Mr. Miller was based upon a number of violations of the Department's conduct standards, including Mr. Miller's insubordination, absence without authorized leave, display of an uncooperative or antagonistic attitude, and a violent outburst by Mr. Miller on May 21, 2001, when he was advised of the Department's intention to dismiss him. The issues relating to Mr. Miller's dismissal were fully litigated in a proceeding before the Public Employees Relations Commission, which culminated in a Recommended Order and Final Order upholding the Department's decision to dismiss Mr. Miller for violation of the Department's conduct standards. Mr. Malerk was responsible for requesting Mr. Miller's dismissal. Mr.

   Malerk requested Mr. Miller's dismissal for the violations of the Department's conduct standards that were included in the dismissal letter and was not motivated to request his dismissal in any part by Mr. Miller's physical problems.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes (1997).

10. Mr. Miller claims that the Department has violated the provisions of the Florida Civil Rights Act of 1992, Section 760.01-760.11. Federal case law interpreting Title VII is applicable to cases arising under the Florida Civil Rights Act. See Florida State University v. Sondel, 685 So. 2d 923 (Fla. 1st DCA 1996). Mr. Miller claims both intentional discrimination in connection with his dismissal and discrimination by harassment.

11. Intentional discrimination can be proven by two methods, either by direct evidence of discriminatory intent or through circumstantial evidence. See McDonnell-Douglas Corporation v. Green, 411 U.S. 792 (1973). The complainant has the burden of establishing a prima facie case of discrimination. McDonnell-Douglas Corporation v. Green, 411 U.S. at 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, 411 U.S. at 802 n.13. If the 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, supra.; Texas Department of Community Affairs v.

    Burdine, 450 U.S. 248, 254 (1981).

12. 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 both that the reasons given were false and that discrimination was the real reason for the employer's action. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 515-517 (1993).

13. Mr. Miller contends 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. Clark

    
    

    v. Jackson County Hospital, 20 FALR 1182, 1884 (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).

14. 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 has 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 510, n.10.

    
    

15. Applying these criteria to the evidence presented, Mr. Miller may not meet the threshold of being a person with a handicap. Mr. Miller has suffered from chronic pain and from some emotional distress arising from his injury, the side effect of his pain medication, and other issues. However, there is no evidence that he is substantially limited in any major life activity and the Department did not regard him as so limited. However, even if he is a handicapped person within the definition of the Act, Mr. Miller did not prove the other portions of his prima facie case.

16. Mr. Miller did not prove that he performed his job satisfactorily. To the contrary, Mr. Miller was dismissed from his employment for repeated and significant violations of the Department's conduct standards. There is no evidence that the

    Department applied its conduct standard to him any differently than to any other Department employee.

17. Even if Mr. Miller had established a prima facie case, the Department articulated a legitimate, nondiscriminatory reason for his termination. Mr. Miller violated the Department's requirements concerning insubordination, use of leave, and acceptable workplace behavior. These facts were already established before the Public Employees Relations Commission.

18. Collateral estoppel precludes identical parties from re-litigating the same factual issues that have already been decided. See Department of Health & Rehabilitative Services v. B.J.M., 656 So. 2d 906 (Fla. 1995). The essential elements of the doctrine are that the parties and issues are identical and were fully litigated and determined in a proper, prior proceeding. Department of Health & Rehabilitative Services v. B.J.M., 656 So. 2d at 910. Here, both Mr. Miller and the Department were parties to the proceeding before the Public Employees Relations Commission. The purpose of that proceeding was to permit Mr. Miller to factually and legally challenge the just cause upon which the Department contended it was entitled to dismiss him. See Sections 110.227 and 447.207, Florida Statutes (2001). Because the factual issues concerning the Department's proffered reasons for transferring and dismissing

    Mr. Miller were fully litigated in the prior proceeding, by the same parties, Mr. Miller may not re-litigate those issues.

19. 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 reason is mere pretext for discrimination. McDonnell-Douglas Corporation, supra. This requires proof both that the reasons given were false and that discrimination was the real reason for the employer's action. St. Mary's Honor Center, supra.

20. Mr. Miller failed to meet this burden. There is no competent evidence that the reasons advanced by the Department for its decisions were pretextual. Mr. Miller presented no competent evidence that the actions taken or requested by

    Mr. Malerk were not taken for exactly the reasons given. An employer's proffered reasons 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 reasons for Mr. Miller' dismissal offered by the Department are reasonable. The proceedings before the Public Employees Relations Commission establish that Mr. Miller was terminated for knowingly violating Department rules when he knew that the violation could result in his termination.

21. Mr. Miller's claim of handicap discrimination by the Department based upon the alleged harassment is analyzed in accordance with Title VII hostile work environment cases. See McCaw Cellular Communications of Florida, Inc. v Kwiatek, 763 So. 2d 1063, 1065 (Fla. 4th DCA 1999). To prevail on a claim of harassment based upon handicap discrimination, a plaintiff must show that he or she: (1) is a qualified individual with a disability; (2) was subject to unwelcomed harassment; (3) the harassment was based on his or her disability; (4) the harassment was sufficiently severe or pervasive to alter the conditions of his or her employment and to create an abusive working environment; and (5) that the employer knew or should have known of the harassment and failed to take prompt and effective remedial action. See McCaw Cellular Communications of Florida, Inc v. Kwiatek, 763 So. 2d at 1066, and Razner v. Wellington Regional Medical Center, Inc., 2002 WL 31557360 (Fla. 4th DCA 2002).

22. The only proven event of unwelcome harassment of Mr. Miller is inappropriate comments of Mr. Page that were brought to the Department's attention in December 2001. That one incident is not sufficient to support a claim of discrimination based upon harassment. Mr. Page was not

    Mr. Miller's supervisor and the Department took prompt remedial action to avoid any repetition.

23. Mr. Miller also claims that the Department retaliated against him by making a derogatory statement to the Agency for Workforce Innovation. However, there is no substantial evidence that would establish that any derogatory statement was made or that any such statement was motivated in any way by Mr. Miller's physical or emotional condition.

24. The Department did not violate the provisions of the Florida Civil Rights Act of 1992 by dismissing Mr. Miller.

Mr. Miller did not experience harassment in the workplace of a sufficient degree that would rise to the level of discrimination by the Department. The Department did not discriminate against Mr. Miller on the basis of his alleged handicap.

RECOMMENDATION

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,

RECOMMENDED

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 4th day of September, 2003, in Tallahassee, Leon County, Florida.

S

P. MICHAEL RUFF 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 4th day of September, 2003.

COPIES FURNISHED:

Charles H. Miller

15408 Northwest 25th Terrace Gainesville, Florida 32609

Robert M. Burdick, Esquire Department of Transportation

605 Suwannee Street, Mail Stop 58

Tallahassee, Florida 32399-0458

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

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk 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: 03-000976

Orders for Case No: 03-000976