ALLEN R. GERRELL, JR.,
vs.
Respondent.
) Case No. 04-4457
A formal hearing was conducted in this case on February 18, 2005, in Tallahassee, Florida, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings.
For Respondent: Marshall G. Wiseheart, Esquire
The issue is whether Respondent committed an unlawful employment practice contrary to Section 760.10, Florida Statutes, by discriminating against Petitioner based on an alleged handicap.
On October 30, 2003, Petitioner Allen R. Gerrell, Jr. (Petitioner) filed an Employment Charge of Discrimination against Respondent Department of Environmental Protection (Respondent). Petitioner alleged that Respondent had discriminated against him by terminating his employment based on his alleged disability, a back impairment.
On November 29, 2004, the Florida Commission on Human Relations (FCHR) issued a Determination: No Cause, finding no reason to believe that an unlawful employment practice occurred. On December 8, 2004, Petitioner filed a Petition for Relief with FCHR.
On December 14, 2004, FCHR referred the case to the Division of Administrative Hearings. A Notice of Hearing dated December 30, 2005, scheduled the hearing for February 25, 2005.
When the hearing commenced, the parties offered a Joint Composite Exhibit, which included ten documents. The Joint composite Exhibit was accepted as evidence.
During the hearing, Petitioner testified on his own behalf and presented the testimony of one additional witness.
Petitioner offered two exhibits, which were accepted as evidence. Respondent did not present the testimony of any witnesses or offer any exhibits as evidence.
The parties did not file a transcript of the proceeding. On March 1, 2005, Petitioner filed a letter, which is hereby accepted as a Proposed Recommended Order. On March 7, 2005, Respondent filed its Proposed Recommended Order.
Citations hereinafter shall be to Florida Statutes (2004) unless otherwise specified.
Respondent is an employer as that term is defined in Section 760.10, Florida Statutes.
Respondent employed Respondent in January 1990.
Respondent reassigned Petitioner to the Division of Recreation and Parks in 1993. At the time of his dismissal in October 2003, Petitioner was working as a park ranger at the St. Marks GeoPark in Wakulla County, Florida.
Petitioner is a history aficionado. He enjoys researching Florida and Civil War history. He has authored a 200-page book entitled The Civil War in and Around St. Marks,
Florida. He has written an article entitled "Forts in St. Marks during the War Between the States."
Petitioner enjoys participating in history interpretations for the public. Several times in the past decade, Respondent nominated him for an award for his activities in history interpretations.
Petitioner has constructed colonial-era equipment and musical instruments. Although they are his personal property, Petitioner has used them in displays for the public at state parks. Petitioner researched the historical accuracy of his projects both at home and at work.
Petitioner had surgery in 2000 for a cervical herniated disc. After the surgery, Respondent made accommodations for Petitioner in the form of lighter duty assignments during his recovery period in keeping with his doctor's request.
In a letter dated August 28, 2000, Petitioner's doctor set forth the specific type of work that Petitioner could and could not perform. The doctor released Petitioner to perform desk work, telephone duties, and visitor services but no maintenance duties.
At all times relevant here, Thomas Nobles was Petitioner's immediate supervisor. Mr. Nobles and Petitioner have known each other since high school. However, they did not have a good relationship at work. In 2001, Petitioner filed gender discrimination charges against Mr. Nobles. Respondent conducted an investigation and exonerated Mr. Nobles.
Mr. Nobles wrote several counseling memoranda and one reprimand, which criticized Petitioner's work performance. Among other things, Mr. Nobles warned Petitioner not to visit a music store in Tallahassee during work hours.
In a memorandum dated July 19, 2002, Mr. Nobles discussed his concern over Petitioner's work habits that allegedly caused damage to a state-owned vehicle and other property and Petitioner's inability to complete paperwork. Petitioner responded to each of Mr. Nobles' criticisms in a memorandum dated July 28, 2002.
On September 20, 2002, Mr. Nobles wrote a memorandum to document an earlier conversation with Petitioner regarding Mr. Nobles' concern that Petitioner was not keeping the park neat. In the memorandum, Mr. Nobles instructed Petitioner not to bring "personal projects" to work, specifically referring to a mandolin that Petitioner had been sanding in the park office.
In a memorandum dated October 22, 2002, Mr. Nobles criticized Petitioner for reading a book about musical instruments. Mr. Nobles warned Petitioner not to let personal projects take priority over the park's appearance and cleanliness.
On February 25, 2003, Petitioner called his office to provide his employer with the date of his second neck surgery, which was scheduled for March 5, 2003. During the telephone
call, Petitioner asserted that he required further surgery due to his work-related injury. However, Petitioner never filed a workers' compensation claim; he believed that he was not eligible for workers' compensation due to a preexisting condition.
After Petitioner's March 2003 surgery, Respondent returned to work. In a letter dated April 10, 2003, Petitioner's doctor released him to work running a museum. On or about May 7, 2003, Petitioner's doctor released him to light- duty work assignments, including no more than one hour of lawn maintenance at a time.
In a letter dated July 29, 2003, Mr. Nobles' doctor once again restricted Petitioner's work assignments. Petitioner was not supposed to use heavy machinery or operate mowers, edgers, or similar equipment for prolonged periods of time. The doctor recommended that Petitioner avoid repetitive gripping and lifting. There is no evidence that Respondent failed to provide Petitioner with these accommodations.
In the meantime, on July 23, 2003, Mr. Nobles requested Respondent's Inspector General to investigate a posting on the eBay Internet site involving a replica of a 1800s guitar, advertised as being made of wood from the Gregory House, a part of Torreya State Park in Gadsden County, Florida. The Inspector General subsequently commenced an investigation.
Petitioner posted the advertisement for the guitar under his eBay site name. Petitioner makes replica mandolins and guitars and occasionally sells them on eBay. Petitioner bragged to at least one co-worker in 2003 that he had made a lot of money selling musical instruments on eBay.
One of Petitioner's friends made the "Gregory House" guitar out of discarded roof shingles. Petitioner merely posted the advertisement on his internet site because his friend did not know how to use a computer.
During the Inspector General's investigation, Petitioner admitted that he had accessed eBay at work but denied he had used it for bidding. An inspection of the hard drive of the computer at Petitioner's office revealed that someone using Petitioner's eBay password had accessed eBay four times from April-July 2003. Around the general time and date of one of those occasions, someone placed an eBay bid on the "Gregory House" guitar.
Additionally, the computer at Petitioner's office had been used to access numerous musical instrument and/or woodworking Internet sites other times from April-July 2003. Petitioner was at work on most, but not all, of the days. A park volunteer admitted that she sometimes used the office computer to access eBay.
Respondent's policy prohibits an employee from accessing the Internet for personal use if that use adversely affects the employee's ability to perform his job. Personal use of the Internet should be "limited to the greatest extent possible."
Petitioner was aware of Respondent's Internet policy.
Nevertheless, he used the Internet for personal reasons at work to access eBay and sites related to his woodworking business after he had been counseled not to let personal projects interfere with his park duties. This caused him to not be available to do park business and, therefore, adversely affected his ability to do his job. Petitioner violated Respondent's Internet use policy.
Respondent terminated Petitioner's employment on September 25, 2003, for alleged rule violations, conduct unbecoming a public employee, and perjury. Petitioner appealed to the Florida Public Employees Relations Commission (PERC), contending that Respondent lacked cause to discipline him. PERC appointed a Hearing Officer to conduct a hearing and issue a Recommended Order.
The PERC Hearing Officer conducted a public hearing on October 28, 2003. The Hearing Officer issued the Recommended Order on November 10, 2003. In the instant case, the parties
stipulated that they would not re-litigate issues previously litigated at the PERC hearing.
The PERC Hearing Officer found as follows: (a) Respondent had cause to discipline Petitioner for violating the computer use policy; and (b) Respondent had discretion to discipline Petitioner by terminating his employment. On November 24, 2003, PERC entered a Final Order adopting the Hearing Officer's Recommended Order.
The greater weight of the evidence indicates that Respondent did not allow employees, other than Petitioner, to read books unrelated to work during office hours. In fact, Respondent did not terminate Petitioner for any of the following reasons: (a) because he read history books at work; (b) because he might file a workers' compensation claim for a work-related injury; (c) because he filed a gender discrimination against Mr. Nobles; or (d) because Respondent intended to eliminate his position. Rather, Respondent dismissed Petitioner for using the office computer for personal reasons. Respondent has fired other employees for the same reason.
At the time of his dismissal, Petitioner believed that he was physically incapable of performing the duties of his position. However, there is no evidence that Respondent failed to provide Petitioner with appropriate accommodations as requested by Petitioner's doctors.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this case pursuant to Sections 120.569, 120.57(1), and 760.11, Florida Statutes.
It is an unlawful employment practice for an employer to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s disability or handicap. See § 760.10(1), Fla. Stat.
It is an unlawful employment practice for an employer to discriminate against any person because the person opposed an unlawful employment practice or has filed a charge of an unlawful employment practice. See § 760.10(7), Fla. Stat.
The provisions of Chapter 760, Florida Statutes, are analogous to those of the Americans With Disabilities Act (the "ADA"), 42 U.S.C. Section 12101, et seq. Cases interpreting the ADA are, therefore, applicable to Chapter 760, Florida Statutes. See Razner v. Wellington Regional Medical Ctr., Inc., 837 So. 2d 437, 440 (Fla. 4th DCA 2002).
A petitioner in a discrimination case has the initial burden of proving a prima facie case of discrimination. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817,
36 L.Ed.2d 668 (1973).
If the petitioner proves a prima facie case, the burden shifts to the respondent to proffer a legitimate
non-discriminatory reason for the actions it took. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). Respondent's burden is one of production, not persuasion, as it always remains Petitioner's burden to persuade the fact-finder that the proffered reason is a pretext and that Respondent intentionally discriminated against Petitioner. See Burdine, 450 U.S. at 252-256.
To prove a prima facie case of handicap discrimination, Petitioner must establish the following elements: (a) he was a disabled person within the meaning of the Florida Civil Rights Act and the ADA; (b) he was able to perform his assigned duties satisfactorily; and (c) Respondent did not accommodate Petitioner's disability and/or discharged Petitioner despite his satisfactory performance. Swenson-Davis v. Orlando Partners, Inc., 16 F.A.L.R. 792, 798 (FCHR 1992).
A person is disabled when: (a) he or she has a physical or mental impairment that substantially limits one or more major life activities; (b) he or she has a record of having an impairment; or (c) he or she is regarded as having an impairment. 42 U.S.C. § 12102(2); 29 C.F.R. § 1630.2(g)(I).
A qualified individual with a disability must establish that he or she is able to perform the essential
functions of the job with or without reasonable accommodation. LaChance v. Duffy's Draft House, Inc., 146 F.3d 832, 835 (11th Cir. 1998). "The employee retains at all times the burden of [persuasion] . . . that reasonable accommodations were available." Moses v. American Nonwovens, Inc., 97 F.3d 446, 447 (11th Cir. 1996).
An employer unlawfully discriminates against a qualified individual with a disability when the employer fails to provide "reasonable accommodations" for the disability-- unless doing so would impose undue hardship on the employer. See 42 U.S.C. § 12112(b)(5)(A); 29 C.F.R. § 1630.9(a).
In this case, Petitioner was physically impaired at the time of his dismissal. According to his own testimony, his disability prevented him from performing his job. However, Respondent accommodated Petitioner's disability and discharged him only after it became clear that Petitioner was not going to perform satisfactorily, despite the accommodations. Additionally, there is no evidence that Petitioner treated similarly situated, non-disabled employees more favorably than Petitioner in regard to enforcement of the computer policy. Consequently, Petitioner has not proved a prima facie case of discrimination based on his disability.
To prove a prima facie case of retaliation, Petitioner must show the following: (a) he engaged in a statutorily
protected expression; and (b) he suffered an adverse employment action such as dismissal. See Harper v. Blockbuster
Entertainment Corp., 139 F.3d 1385, 1388 (11th Cir. 1998). Petitioner met his burden in this regard.
To the extent that Petitioner proved his prima facie case of discrimination based on a handicap or retaliation, Respondent presented a legitimate, non-discriminatory reason for terminating Petitioner's employment. The greater weight of the evidence indicates that Respondent fired Petitioner because he abused the policy on computer use.
There is no persuasive evidence that Petitioner's disability and/or his prior gender discrimination complaint against Mr. Nobles were involved in Respondent's decision to terminate Petitioner. Consequently, Petitioner has not proved that firing him for violating Respondent's computer policy was a pretext for handicap discrimination or an act of retaliation.
That FCHR enter a final order dismissing the Petition for Relief.
DONE AND ENTERED this 28th day of March, 2005, in Tallahassee, Leon County, Florida.
SUZANNE F. HOOD
Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 2005.
Allen Gerrell, Jr. 10750 Kilcrease way
Marshall G. Wiseheart, Esquire Department of Environmental
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.
