STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID J. SEDIVI,

Petitioner,

vs.

POLK COUNTY WORK FORCE DEVELOPMENT BOARD,

Respondent.

)

)

)

)

) Case No. 05-2969

)

)

)

)

)

)

RECOMMENDED ORDER

On November 30, 2005, an administrative hearing in this case was held in Orlando, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Craig A. McCarthy, Esquire

361 River Chase Drive Orlando, Florida 32807

For Respondent: Stacy L. Wilde, Esquire

Shuffield Lowman Gateway Center

1000 Legion Place, Suite 1700

Orlando, Florida 32801 STATEMENT OF THE ISSUE

The issue in the case is whether the Polk County Work Force Development Board (Respondent) discriminated against David J. Sedivi (Petitioner) on the basis of disability when the

Respondent terminated the Petitioner's employment. The Petitioner asserts that the termination was based on a disability. The Respondent asserts that the position for which the Petitioner was employed was eliminated for budgetary reasons and due to concerns expressed by program auditors that the Petitioner's job function was statutorily prohibited.

PRELIMINARY STATEMENT

By a complaint filed January 10, 2005, with the Florida Commission on Human Relations (FCHR), the Petitioner alleged that he was the subject of discrimination by the Respondent based on handicap.

By Determination of No Cause dated July 8, 2005, FCHR advised Petitioner that a "no cause" determination had been made and advised him of his right to file a Petition for Relief.

Petitioner filed a Petition for Relief, which FCHR forwarded to the Division of Administrative Hearings for further proceedings.

At the hearing, the Petitioner presented the testimony of three witnesses, testified on his own behalf, and had Exhibits numbered 2, 4 through 13, and 16 through 19 admitted into evidence. Respondent presented the testimony of three witnesses and had Exhibits numbered 1, 1A, 5, 7A, 7B, 15, 17, and 18 admitted into evidence.

The two-volume Transcript of the hearing was filed on January 12, 2005. The Petitioner filed a Proposed Recommended

Order. The Respondent filed a document titled Final Order that has been treated as a proposed recommended order.

FINDINGS OF FACT

1. The Respondent is a regional workforce board created pursuant to Section 445.007, Florida Statutes (2004). The Respondent contracts with, and monitors the performance of, vendors who provide various employment-related services to qualified persons.

2. At all times material to this case, the Respondent was annually audited by KPMG, an accounting firm contracted with a State of Florida agency responsible for oversight of the regional workforce boards.

3. One of the programs for which the Respondent was responsible was the "Citrus Cars" program. Citrus Cars provided economical used vehicles to persons for whom lack of transportation was an obstacle to employment. The used vehicles were obtained and rehabilitated by Citrus Cars, and then leased to qualified individuals who eventually own the vehicles.

4. The Respondent owns the non-profit corporation, Citrus Cars of Polk County, Inc., responsible for operation of the Citrus Cars program.

5. In January 2003, KPMG auditors advised the Respondent that its operation of the Citrus Cars program was contrary to a statutory prohibition against the provision by regional

   workforce boards of direct services to clients. KPMG specifically cited the issue in the 2003 audit report.

6. The Respondent disagreed with the KPMG opinion related to operation of Citrus Cars, and attempted unsuccessfully to convince the auditors that the Respondent's operation of the program was permissible under the statute. The Respondent had an existing contract with a private vendor ("A.C.S.") involved with the Citrus Cars program, but KPMG auditors apparently believe that the Respondent's relationship with the program was contrary to the statute. Nonetheless, the Respondent continued to operate the Citrus Cars program during 2003.

7. In May 2003, the Petitioner began employment with the Respondent as a customer service officer for the Citrus Cars program. Prior to accepting employment with the Respondent, the Petitioner was employed by A.C.S.

8. At all times material to the case, the Petitioner suffered from health issues which resulted in significant absence from the workplace.

9. A three-month probationary period was extended for an additional three months by memorandum dated August 1, 2003, and written by Tom Hornack, the Respondent's Assistant Director. A primary reason for the extension was that Mr. Hornack had assumed supervisory responsibilities for the Citrus Cars program shortly before the end of the probationary period and wanted

   additional time to evaluate the Petitioner's performance. Although the memorandum includes a very positive evaluation of the Petitioner's efforts, the memo states as follows:

   In all fairness to you and Polk Works, there has not been ample time for you to work unaided without the assistance of Cecelia and Mitch to allow you to be able to demonstrate sole control of the program overall.

   
   

10. The Petitioner's health issues and absence from the workplace apparently continued to be of concern to the Respondent. By letter dated September 19, 2003, Mr. Hornack advised that "your frequent absences from July 15 to present have resulted in a programmatic hardships [sic]." The letter stated that "due to high rate of absenteeism and the demands of your position" the Respondent requested a statement from the Petitioner's physician "as to your fitness for continued employment as the Citrus Cars Customer Services Officer." The Respondent also requested that the Petitioner create a "corrective action plan" indicating the date upon which the Petitioner would return to work and the "action items that you will take to actualize the plan."

11. Towards the end of September 2003, as the result of an infection, the Petitioner underwent amputation of a foot and portion of a leg. Thereafter, the Petitioner had a disability

    due to amputation of the leg and the resulting inability to walk without a prosthetic device.

12. By letter dated October 29, 2003, Nancy Thompson, the Respondent's Executive Director, advised the Petitioner that his employment position was being eliminated. The letter indicated that the Respondent's decision was related to budgetary issues and operational costs, and stated that the responsibilities of the Petitioner's employment position would be absorbed by other staff.

13. Ms. Thompson's testimony also indicated that the Petitioner's absence from the workplace was a factor in her decision, and was seemingly reflected in the letter's reference to other employees assuming the Petitioner's job duties.

14. The Petitioner obtained legal representation and Ms. Thompson withdrew the proposed termination of the Petitioner's employment. By letter dated December 16, 2003,

    Ms. Thompson requested that the Petitioner obtain an assessment of work abilities from his physician, including a statement of any restrictions and an anticipated date of return to employment, clearly indicating that the Petitioner's return to work was possible.

15. In January 2004, KPMG auditors again advised the Respondent that operation of Citrus Cars was contrary to the statutory prohibition against provision of direct client

    services by regional workforce boards, and again specifically cited the issue in the audit report. Additionally, the Respondent learned that its budget for the fiscal year beginning July 1, 2004, was reduced.

16. By letter dated February 17, 2004, Ms. Thompson advised the Petitioner that although the information previously provided was sufficient to extend non-paid leave status for

    90 days, "before I can consider your returning to work," the Petitioner was directed to provide a physician's statement identifying a "specific date" upon which the Petitioner could return to work and including a "detailed assessment" of the Petitioner's abilities and limitations as related to his position description. The letter stated that the information was required at least two weeks prior to the anticipated date of return.

17. According to a work status form from the Petitioner's rehabilitation physician dated March 30, 2004, the Petitioner could return to regular duty on May 17, 2004. The only restriction noted on the form is the use of an assistive device for ambulation.

18. By letter to Nancy Thompson dated April 9, 2004, the Petitioner's rehabilitation physician indicated that the Petitioner could "perform his activities at work in

    approximately 30-60 days time, once his physical therapy and prosthetic training is completed."

19. By letter dated May 13, 2004, Nancy Thompson advised the Petitioner that operation of the Citrus Cars program had been "much modified," that the Respondent's role in the program was "purely finance and oversight" pursuant to the KPMG opinion, and that the responsibilities of the Citrus Cars Customer Service Officer position had been eliminated or absorbed by other staff.

20. Ms. Thompson testified credibly that continued failure to heed the auditor's advice could have had negative repercussions on the board, and therefore total operational responsibility for the Citrus Cars program was transferred to A.C.S., and the in-house position of "Customer Service Officer" was eliminated.

21. At the time of the hearing, the Respondent had a vacant and funded employment position.

22. At the hearing, the Petitioner testified that he was uncertain as to the relief he was seeking, stating that "it ought to be something that's fair," but indicated that it was "difficult for me to think that I would even trust them if I went back to work because of all the things that have gone down and everything else."

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2004).

24. The Respondent is an employer as the term is defined at Section 760.02, Florida Statutes (2004).

25. Section 760.10, Florida Statutes (2004), provides as follows:

    1. It is an unlawful employment practice for an employer:

       
       

       1. To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.

          
          

26. Florida courts interpreting the provisions of Section 760.10, Florida Statutes (2004), have held that federal discrimination laws should be used as guidance when construing provisions of the Florida law. See Brand v. Florida Power

    Corp., 633 So. 2d 504, 509 (Fla. 1st DCA 1994); Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991).

27. The Petitioner has the ultimate burden to establish discrimination either by direct or indirect evidence. Direct evidence is evidence that, if believed, would prove the

    existence of discrimination without inference or presumption. Carter v. City of Miami, 870 F.2d 578, 581-582 (11th Cir. 1989). Blatant remarks, whose intent could be nothing other than to discriminate, constitute direct evidence of discrimination. See Earley v. Champion International Corporation, 907 F.2d 1077, 1081 (11th Cir. 1990). There is no credible evidence of direct discrimination on Respondent's part in this case.

28. The Petitioner asserts that the "first termination" in October 2003 was based on the fact that the Petitioner was unable to work due to his disability, that the Respondent's executive director has so testified, and that such testimony constitutes direct evidence of discrimination. The evidence fails to establish direct discrimination on the part of the Respondent.

29. The termination letter of October 23, 2003, indicates that the Respondent had determined that the customer service officer position was unnecessary. The evidence fails to establish that the sole reason for the proposed termination was the Petitioner's inability to work for an extended period. The greater weight of the evidence establishes that during the Petitioner's absence from the workplace, which began not long after initial employment, other employees assumed the responsibilities of the Petitioner's employment position, at which point Executive Director Thompson believed that

    operational cost reductions were possible through elimination of the position.

30. Absent direct evidence of discrimination, Petitioner has the burden of establishing a prima facie case of discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); Texas Department of Community Affairs v. Burdine, 450

    U.S. 248 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In order to establish a prima facie case of discrimination, the Petitioner must show that: he is a member of a protected group; he is qualified for the position; he was subject to an adverse employment decision; and he was treated less favorably than similarly-situated persons outside the protected class. McDonnell Douglas, 411 U.S. at 802.

31. If the Petitioner establishes the facts necessary to demonstrate a prima facie case, the employer must then articulate some legitimate, nondiscriminatory reason for the challenged employment decision. The employer is required only to "produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus." Burdine, 450 U.S. at

257. The employer "need not persuade the court that it was actually motivated by the proffered reasons . . ." Burdine, 450

U.S. at 254. This burden has been characterized as "exceedingly

light." Perryman v. Johnson Products Co., Inc., 698 F.2d 1138, 1142 (11th Cir. 1983).

1. Assuming the employer articulates a legitimate, nondiscriminatory reason for the employment decision, the burden shifts back to the Petitioner who then must establish that the reason offered by the employer is not the true reason, but is mere pretext for the decision. The question becomes whether or not the proffered reasons are "a coverup for a . . . discriminatory decision." McDonnell Douglas, 411 U.S. at 805.

2. The ultimate burden of persuading the trier of fact that there was intentional discrimination by the Respondent remains with the Petitioner. Burdine, 450 U.S. at 253.

3. Here, the Petitioner has established a prima facie case of discrimination. He is a member of a protected group by reason of his disability. Although the Petitioner's continuing absence from the workplace appears to have been of concern to the Respondent, he was qualified for the position and there is no credible evidence that termination of the Petitioner's employment was related to the quality of his job performance. Finally, he was subject to an adverse employment decision by the termination, and there is no evidence that the employment of any other employee was terminated.

4. Accordingly the burden shifts to the Respondent to articulate a legitimate, non-discriminatory reason for the decision. The Respondent has met the burden.

5. Section 445.004, Florida Statutes (2004), creates a non-profit corporation identified as "Workforce, Florida, Inc." Subsection 445.004(2), Florida Statutes (2004), sets forth the purpose for creation of Workforce, Florida, Inc., as follows:

   Workforce Florida, Inc., is the principal workforce policy organization for the state. The purpose of Workforce Florida, Inc., is to design and implement strategies that help Floridians enter, remain in, and advance in the workplace, becoming more highly skilled and successful, benefiting these Floridians, Florida businesses, and the entire state, and to assist in developing the state's business climate.

   
   

6. Section 445.007, Florida Statutes (2004), provides for the creation of regional workforce boards in various service areas. The regional workforce boards are responsible of implementation and administration of various employment-related programs, and are required to "provide ongoing oversight related to administrative costs, duplicated services, career counseling, economic development, equal access, compliance and accountability, and performance outcomes." See § 445.007(4)(c), Fla. Stat. (2004).

7. Regional workforce boards are prohibited from offering services directly to recipients by operation of Subsection 445.007(5), Florida Statutes (2004), which states as follows:

   Workforce Florida, Inc., shall implement a training program for the regional workforce boards to familiarize board members with the state's workforce development goals and strategies. The regional workforce board shall designate all local service providers and shall not transfer this authority to a third party. In order to exercise independent oversight, the regional workforce board shall not be a direct provider of intake, assessment, eligibility determinations, or other direct provider services. (emphasis supplied)

   
   

8. As early as January of 2003, KPMG auditors advised the Respondent that the Respondent's operation of Citrus Cars was contrary to Subsection 445.007(5), Florida Statutes (2004). As part of the audit process, the Respondent disagreed with the KPMG opinion and attempted to so convince the auditors.

9. The Petitioner asserts that the Respondent had resolved the statutory compliance issue prior to the Petitioner's disability, and that the customer service officer's job description was revised in October 1, 2003, after customer service responsibilities had been transferred by a contract with A.C.S., the private vendor.

10. Review of the revised job description fails to indicate that the position no longer had client contact. Both the original and the revised position descriptions indicate that

    one of the responsibilities of the customer service officer was working "with clients" to assure safe operation of the vehicle during the initial 30 days of the lease period, clearly a duty which required direct contact with service recipients.

11. It is also clear that the KPMG auditors were unconvinced by the Respondent's response to the 2003 audit, and again cited the issue in the January 2004 audit report.

12. Executive Director Thompson's concern that failure to address the audit issue could negatively impact the board was a reasonable response to the situation, as was the transfer of operational responsibility for Citrus Cars to the private vendor, at which point the position of "Customer Service Officer" was unnecessary.

13. The Respondent having articulated a legitimate, nondiscriminatory reason for the employment decision, the Petitioner must establish that the reason offered by the employer is not the true reason, but is mere pretext for the decision. The evidence fails to establish that the Respondent's elimination of the customer service officer position, and thereby the Petitioner's employment, is pretext.

14. The Petitioner asserts that the "KPMG defense" is implausible. The evidence fails to establish that the Respondent's decision to abide by the opinion of the state- assigned auditor is not believable.

15. Subsection 445.007(5), Florida Statutes (2004), provides that the regional workforce boards, "in order to exercise independent oversight . . . shall not be a direct provider of intake, assessment, eligibility determinations, or other direct provider services." In 2003, KPMG advised the Respondent that its operation of Citrus Cars was in violation of the statute. For reasons which are unclear, the Respondent believed its involvement in the operation of Citrus Cars was not prohibited and attempted unsuccessfully to convince KPMG of such. KPMG was not persuaded and in 2004 again cited the Respondent's noncompliance with the statute. The Respondent chose to address the issue raised in the audit by ending its involvement with the actual operation of Citrus Cars and eliminating the customer service officer position held by the

Respondent.

RECOMMENDATION

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

RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by David J. Sedivi in this case.

DONE AND ENTERED this 7th day of February, 2006, in Tallahassee, Leon County, Florida.

S

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 7th day of February, 2006.

COPIES FURNISHED:

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

Tallahassee, Florida 32301

Craig A. McCarthy, Esquire

361 River Chase Drive Orlando, Florida 32807

Charles W. Sell, Esquire Shuffield Lowman

Gateway Center

1000 Legion Place, Suite 1700

Orlando, Florida 32801

Stacy L. Wilde, Esquire Shuffield Lowman Gateway Center

1000 Legion Place, Suite 1700

Orlando, Florida 32801

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: 05-002969

Orders for Case No: 05-002969