NORMAN H. SIALES,
vs.
Respondent.
) Case No. 05-3121
Pursuant to notice, a hearing was held in this case on October 21, 2005, in Orlando, Florida, before Carolyn S. Holifield, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: Norman H. Siales, pro se
For Respondent: P. Andrea DeLoach, Esquire
The issue for determination is whether Respondent, the Orange County Convention Center, discriminated against Petitioner, Norman H. Siales, on the basis of a handicap within the meaning of Section 760.10, Florida Statutes (2004).
On March 2, 2005, Norman Siales (Petitioner) filed an Employment Charge of Discrimination with the Florida Commission on Human Relations (FCHR) in which he alleged that he was terminated from his job based on his disability. Upon completion of its investigation, the FCHR issued a "Notice of Determination: No Cause," finding no reasonable cause to determine that the alleged discrimination took place and notified Petitioner of his right to a hearing on the matter.
Petitioner filed a Petition for Relief on August 22, 2005, and the matter was referred to the Division of Administrative Hearings.
On October 18, 2005, three days prior to the final hearing, Petitioner filed a Request for Final Summary (Request). At the final hearing, Petitioner's Request was considered and denied.
At the hearing, Petitioner testified on his own behalf and offered three exhibits, of which Exhibits 2 and 3 were received into evidence, and Composite Exhibit 1 was proffered.
Respondent called one witness, Terry Schildgen, supervisor of the Event Services/Event Set-Up Department (Event Set-Up Department) at the Orange County Convention Center (Respondent). Respondent had three exhibits received into evidence.
A Transcript of the hearing was filed on November 30, 2005.
recommended orders was set for ten days after the transcript was filed. Neither party filed a proposed recommended order.
Petitioner was first employed by Respondent in October 2000 as a set-up worker on an on-call basis. In June 2001, Respondent hired Petitioner in a regular full-time position as a set-up worker.
Throughout his employment with Respondent, Petitioner's supervisors considered him a good employee who always performed his job properly and did assigned tasks to the best of his ability.
Petitioner was incarcerated on or about July 8, 2004.
Shortly after his incarceration, Petitioner called Steve Miller, one of the assistant supervisors in the Event Set-Up Department, and informed him that he was in the county jail. Petitioner was then told that he should keep Respondent updated on his situation.
On or about July 9, 2004, Mr. Miller advised
Mr. Schildgen, his supervisor, that Petitioner had called and reported that he was incarcerated. After first learning that Petitioner was incarcerated, Mr. Schildgen never heard from Petitioner. Moreover, Mr. Schildgen asked the two shift supervisors if they had heard from Petitioner, and they indicated they had not.
Mr. Schildgen considered Petitioner a good employee and wanted him to return to work. However, in late July or early August 2004, after not hearing from Petitioner for about three weeks, Mr. Schildgen, in consultation with the manager of the Event Set-Up Department, determined that Petitioner's continued absence from the workplace, without notice, was a violation of the Orange County policy. According to the policy, employees could be terminated from employment if they were absent from the workplace for three consecutive days without notice to the employer.
At or near the time Petitioner was employed by Respondent, he received a copy of the Orange County Government Employee Handbook (on June 11, 2001). He also received training on the Orange County Policy Manual. Petitioner signed an Employee Acknowledgement (March 30, 2004) form stating that he had received the training. The Employee Acknowledgement form, signed by Petitioner, further stated
"I understand that I am responsible for complying with all Policies, Operational Regulations, Departmental Operating Procedures, and Departmental Guidelines, and that the failure to do so may be grounds for corrective action, up to and including termination."
As a result of the training described in paragraph 6, Petitioner was aware of the Orange County policy that authorized
employees to be terminated if they were absent from work three consecutive days and did not notify Respondent.
Based on Petitioner's extended absence from the workplace and his failure to communicate with his supervisors regarding the absences, Respondent terminated Petitioner's employment.
By letter dated August 26, 2004, Respondent terminated Petitioner's employment with the Event Set-Up Department. The reason for Petitioner's termination was that he had not communicated with Respondent since July 8, 2004. The letter also stated, "while we understand there were some extenuating circumstances involving the Orange County Sheriff's Office, we can no longer wait to address this violation of . . . policy."
According to the termination letter, the applicable policy provides the following:
"Failure to work for three (3) or more consecutive working days without proper authorization shall be considered job abandonment and result in immediate termination, unless the employee presents written proof that he/she was unable to make appropriate notifications through no fault of his/her own."
When he was first incarcerated, Petitioner thought he would be held for 24 to 48 hours. However, he was not released until December 3, 2004.
After Petitioner was released from jail, he went to his employer and asked if he could return to work, but was told that he could not return due to his excessive and consecutive absences without notifying his employer.
Petitioner had a psychological evaluation when he was incarcerated, and a psychological report dated October 11, 2004, was generated as a result of that evaluation. Petitioner did not offer the evaluation into evidence, but testified that the evaluation indicated he had a mental illness. However, this report and the findings and conclusions therein have no bearing on this case as the report was prepared after Respondent terminated Petitioner's employment.
Respondent was unaware of the psychological evaluation or report until the final hearing.
During his employment with Respondent, Petitioner never advised his supervisor that he had a disability.
Petitioner testified that in 2002 or 2003, he asked his three supervisors to help him "with the grievances." At hearing, Petitioner explained that when he used the term "grievances" he meant the mental, psyche, and physiological abuses he was suffering.
In early 2002, while employed with Respondent, Petitioner sent a letter to Mr. Schildgen. According to
Petitioner, the letter was about "psychological and physiological experimentations of science and technology."
Mr. Schildgen found the letter described in paragraph
17 to be somewhat "strange," but nothing in the letter stated that Petitioner had a handicap or disability. After receiving the letter, Mr. Schildgen and two other supervisors met with Petitioner and asked him about the letter. During the meeting with his supervisors, Petitioner broke out in a cold sweat and rather than talking about the letter, started talking about subjects such as "Sigmund Freud and other stuff [Mr. Schildger and the other two supervisors] and we didn't quite understand where it was going." At no time during the meeting did Petitioner state or indicate that he had a disability. Moreover, there was nothing in Petitioner's personnel file that indicated he had a disability.
At no time during his employment with Respondent did Petitioner advise anyone there that he had a handicap or disability. Also, Respondent never knew or considered Petitioner to be handicapped or disabled.
The sole basis for Petitioner's termination was his violation of Orange County's "absentee policy."
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties to this
proceeding. §§ 120.569, 120.57(1) and 760.11, Fla. Stat.
(2005).
Sections 760.01 through 760.11 and 509.092, Florida Statutes (2004), comprise the Florida Civil Rights Act (FCRA).
§ 760.01, Fla. Stat. (2004).
Section 760.10, Florida Statutes (2004), makes it unlawful to discriminate against any employee by adverse employment action because of an employee's handicap/disability.
Federal discrimination law may be used for guidance in evaluating the merits of claims arising under Chapter 760, Florida Statutes (2004). Florida courts construe disability discrimination actions under the FCRA in conformity with the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. Section 12111(8), as interpreted by federal courts. Wimberly v.
Securities technology Group, Inc., 866 So. 2d 146 (Fla. 4th DCA 2000); Tourville v. Securex, Inc., 769 So. 2d 491 n.1 (Fla. 4th DCA 2000); Greene v. Seminole Electric Co-op., Inc., 701 So. 2d 646 (Fla. 5th DCA 1997).
Petitioner alleges that Respondent engaged in an unlawful employment practice by terminating him from his job because of his handicap (i.e., mental handicap or disability).
The Supreme Court of the United States established the analysis to be used in cases alleging discrimination in McDonnell-Douglas Corporation vs. Green, 411 U.S. 792 (1973),
and Texas Department of Community Affairs vs. Burdine, 450 U.S.
248 (1981). The analysis was reiterated and refined in St. Mary's Honor Center vs. Hicks, 509 U.S. 502 (1993).
Pursuant to this analysis, Petitioner has the burden of establishing a prima facie case of unlawful discrimination by a preponderance of the evidence. If a prima facie case is established, Respondent, the employer, must articulate some legitimate, non-discriminatory reason for the action it took against Petitioner. After Respondent offers a non- discriminatory reason for its action, the burden then shifts back to Petitioner to demonstrate that the offered reason is merely a pretext for discrimination.
In order to establish a prima facie case of disability discrimination based on a disability under the ADA, Petitioner must establish that: (1) he was a handicapped person; (2) he was a qualified employee; (3) Respondent took adverse employment action against Petitioner solely because of his handicap; and
(4) Respondent had knowledge of the disability/handicap or considered Petitioner to be disabled. See Gordon v. E.L. Hamm & Associates, 100 F.3d 907, 910 (11th Cir. 1996).
Under the ADA, the term "disability" means, with respect to an individual:
a physical or mental impairment that substantially limits one or more of the
major life activities or such individual;
a record of such an impairment; or
being regarded as having such impairment.
See 29 C.F.R. § 1630.2(i) and § 760.22(7), Fla. Stat. (2004).
Upon consideration of all the evidence, Petitioner failed to meet his burden of proof.
Petitioner failed to prove the first requirement of a prima facie case, that he had a handicap or was disabled under the ADA.
With regard to the second requirement, the evidence established, and it is undisputed, that Petitioner was qualified for the position he held with Respondent. In fact, Petitioner's supervisor testified that Petitioner was a good employee throughout his employment.
As to the third requirement, Petitioner failed to prove that Respondent had knowledge of Petitioner's disability/handicap or ever considered him to be disabled/handicapped. Petitioner argues that during his employment with Respondent, he discussed his problems with his supervisors and even wrote a letter to them. However, the evidence established that nothing in the letter or the conversations indicated that Petitioner had a handicap or
disability. In fact, as noted in paragraph 2, Petitioner was considered by his supervisors to be a good employee.
Finally, Petitioner failed to establish that the sole reason Respondent terminated him from his job was his handicap/disability.
Petitioner cannot prevail because, for the reasons stated in paragraphs 30, 32, and 33, he failed to establish a prima facie case of disability discrimination.
Even if it is assumed that Petitioner established a prima facie case, Respondent proved a non-discriminatory reason for terminating Petitioner. Respondent presented competent and substantial evidence that Petitioner was terminated from his job because he was absent from work for more than six weeks without communicating with his employer. Furthermore, Respondent established, and Petitioner's own testimony showed, that Petitioner's excessive and consecutive absences violated Respondent's policy, which provides that the penalty for three consecutive absences without communicating with the employer
could be termination.
RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner, Norman H. Siales', Petition for Relief.
DONE AND ENTERED this 25th day of January, 2006, in Tallahassee, Leon County, Florida.
CAROLYN S. HOLIFIELD
Filed with the Clerk of the Division of Administrative Hearings this 25th day of January, 2006.
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Norman H. Siales Post Office Box 1772
P. Andrea DeLoach, Esquire Orange County Attorney's Office
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.
