vs. ) Case No. 09-4857
Respondent. )
Pursuant to notice, a formal hearing was held in this case on January 25, 2010, by video teleconference with connecting sites in Miami and Tallahassee, Florida, before Errol H. Powell, an Administrative Law Judge of the Division of Administrative Hearings.
The issue for determination is whether Respondent committed an unlawful employment act by discriminating against Petitioner on the basis of religion and national origin and retaliated
against Petitioner in violation of the Florida Civil Rights Act of 1992, as amended.
Delano Lalla filed an employment discrimination complaint against County of Miami-Dade, FL ETSD (County) on the basis of religion and national origin and retaliation with the Florida Commission on Human Relations (FCHR), which was investigated by the EEOC. The FCHR determined that no reasonable cause existed to believe that an unlawful employment practice had occurred and issued a “Determination: No Cause” and a “Notice of Determination: No Cause” on July 31, 2009. Mr. Lalla filed a timely Petition for Relief for an unlawful employment practice. On September 8, 2009, FCHR referred this matter to the Division of Administrative Hearings.
At hearing, Mr. Lalla testified on his own behalf and entered no exhibits into evidence. The County presented the testimony of two witnesses and entered 25 exhibits (Respondent's Exhibits numbered 1 through 25) into evidence.
A transcript of the hearing was ordered. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. The Transcript, consisting of one volume, was filed on March 22, 2010, and the parties’ post-hearing submissions were due on or before April 21, 2010. Mr. Lalla filed his post-
hearing submission on April 20, 2010. The County filed its post-hearing submission on April 23, 2010, although mailing it on April 20, 2010. Mr. Lalla filed a motion to reject the County’s post-hearing submission “due to its late submittal.” The County did not file a response to the motion. A review of the motion and the record fails to establish that Mr. Lalla has suffered any prejudice by the late filing of the County’s post- hearing submission, and, therefore, the County’s post-hearing submission is accepted. The parties’ post hearing submissions were considered in the preparation of this Recommended Order.
Mr. Lalla is Hindu, and his religion is Hinduism.
Mr. Lalla was employed in the County’s Enterprise Technology Services Department (ETSD).
ETSD provides information technology (IT) services supporting the operations of other departments in the County. ETSD manages and maintains the IT infrastructure, including computer hardware and software, and the County’s electronic communications network.
On January 31, 2005, Mr. Lalla was hired as an Operating Systems Programmer (OSP) in the Enterprise Security Office (ESO) of the County’s ETSD. An OSP is an advanced level technical professional, who may have duties in a number of different infrastructure support areas within ETSD.
On December 18, 2007, Mr. Lalla received a written reprimand as a result of his failure to report a suspected security breach of the County’s computer security system. The written reprimand was for incompetence or inefficiency in the performance of his duty, negligence or willful misconduct, and conduct unbecoming a County employee.
Further, connected to the reprimand, Mr. Lalla was reassigned within the IT infrastructure area to another division, the Data Center Division, at which he had new duties and responsibilities. His new supervisor was Adrienne DiPrima.
In an email dated December 17, 2008, from Ms. DiPrima to Mr. Lalla, among other things, Ms. DiPrima welcomed
Mr. Lalla, indicating that their group was “hoping for a new person to work with [them] on mainframe security” and acknowledging that he had a very limited background in mainframe security. Further, among other things, she advised him that, because it was “a difficult time of year to get started on anything long-term,” for now, he would be working closely with another employee to handle the “day-to-day RACF administration tasks” so that the employee could “concentrate on the upgrades being done for the new operating system release.”
On or about January 15, 2008, Mr. Lalla’s reassignment was effective and that was when Ms. DiPrima first met with him. She was leaving the next day for a vacation. Ms. DiPrima met
with Mr. Lalla briefly. During the meeting, among other things, she indicated to him that, during her absence, she wanted him to become familiar with the day-to-day operations and work with the person in the particular area that he (Mr. Lalla) was assigned, with that person also being Mr. Lalla’s mentor. Additionally, they discussed the potential for training Mr. Lalla in his new area and the possibility of the Data Center Division funding the cost for training courses.
When Ms. DiPrima returned from vacation, she and
Mr. Lalla also reviewed the procedure for requesting leave time. Among other things, she advised him that she does not generally deny leave if coverage for the absent person’s duties and responsibilities is available; but for extended leave, for instance a week or two, advance request/notice and approval were required in order to make sure that a person was available for coverage and to make arrangements for the coverage.
For several months, Ms. DiPrima saw nothing in Mr. Lalla’s work performance that suggested any disciplinary issues might arise. Therefore, no disciplinary action was contemplated against him.
At no time in the reassignment did anyone suggest or did Mr. Lalla believe that he was going to be subjected to any disciplinary action.
However, having gone through the previous disciplinary action, together with learning new responsibilities and duties in what he believed to be a short period of time, Mr. Lalla was feeling pressured. The perceived pressure affected him mentally and physically.
On April 3, 2008, Mr. Lalla submitted a leave of absence form to ETSD’s Personnel Officer, Shanda Mazzorana, for an unpaid leave of absence for the period from April 9, 2008, through April 9, 2009. The form contained, among other things, a section for the reason for the request, with one of the reasons being “Personal Reason” and subcategories being “Religious holidays,” “Education not related to the job,” and “Other.” He checked “Personal Reason,” “Education not related to the job,” and “Other.”
Also, among other things, the leave of absence form provided two lines for the explanation for the request.
Mr. Lalla provided as an explanation for the one-year leave of absence that the request was for “Religious and spiritual pursuits of Buddhism at overseas Monastery.”
Mr. Lalla did not attach any documents to his request.
Ms. Mazzorana asked Mr. Lalla to further explain why he wanted the unpaid leave. He informed her that he was seeking leave to study Buddhism. She requested him to provide some written information to supplement his request. In response to
Ms. Mazzorana’s request, Mr. Lalla provided a single page informational sheet about the Buddhist Monastery that he had obtained from his mother. She attached the informational sheet to his request and forwarded the entire packet to the Director and Chief Information Officer, Donald Fleming, for his review and decision.
Buddhism and Hinduism are interrelated. Mr. Lalla believed that the religion of Buddhism provided him a remedy to deal with the mental pressures that he was experiencing at work, instead of seeking medical or psychological assistance either privately or through his employer, the County. Nowhere in his request did Mr. Lalla express this reasoning for his request.
Mr. Lalla’s religion of Hinduism did not require him to study Buddhism at a monastery for a year.
Ms. DiPrima was unaware that Mr. Lalla wanted or had requested an extended leave of absence.
Before making a final decision, Mr. Fleming inquired of Ms. Mazzorana whether any prior employees had requested an extended leave of absence that was non-health or non-medical related. Ms. Mazzorana provided two precedents that had occurred over a 25-year period. One situation involved a full- time employee who requested a leave of absence for six months in order to obtain an advanced degree, a Ph.D. The request was denied. Another situation involved a probationary employee who
requested a six-week leave of absence to attend a religious retreat. A probationary employee did not have the right to request a leave of absence, and, as a result, his request was also denied.
The County’s Leave Code, Section 8, Leave of Absence is applicable to the instant case. Section 08.01.01, as to a leave of absence generally, provides, among other things, that “A leave of absence is an approved absence without pay for a maximum period of one year.”
No dispute exists that Mr. Lalla was eligible for a leave of absence as a permanent employee pursuant to Section 08.02.01.
Also, Section 08.03.01 sets forth the reasons that a leave of absence may be granted, i.e., medical reasons, job- related reasons, personal reasons, and military, and provides in pertinent part:
A leave of absence may be granted for the following reasons:
Medical Reasons
* * *
Job-related Reasons
Education related to the job . . .
To serve as a full-time representative of an organization composed entirely of County employees
To accept an exempt position
For other job-related reasons in the best interest of the County service . . .
Personal Reasons
Education not related to the job . . .
Dependent care for a child, spouse, parent or other dependent for federal income tax purposes who is physically or mentally incapable or caring for himself . . .
For other personal reasons in the best interest of the County service . . .
Military . . . .
Additionally, Section 08.04.00 sets forth the application procedure for a leave of absence and provides in pertinent part:
08.04.01
Employees seeking a leave of absence must make a written request to their department director . . .
* * *
08.04.03
The department director may request any additional information supporting the request for the leave of absence . . .
08.04.04
The department director may approve or deny requests based on the facts of each case.
Approval or denial by the department director must be applied consistently and on the same terms within categories a, c and d of Leave of Absence (Section 08.03.01) although the terms for each separate category may be different. . .
08.04.05
Approval may be for the full period requested by the employee or any portion of such period.
Further, Section 08.05.00 sets forth the benefits period for a leave of absence and provides in pertinent part:
08.05.01
A leave of absence may be granted for a maximum period of one year . . . and a minimum period of one pay period.
Mr. Fleming considered the staff situation at the County. The County was in a hiring freeze and had lost positions.
Mr. Fleming also considered the staff situation at the Data Center Division. A review by him showed that the Data Center Division was understaffed. Mr. Fleming was unable to determine how he would be able to burden the staff with the additional work, if Mr. Lalla’s request was granted, and get the work completed.
Additionally, Mr. Fleming considered Mr. Lalla’s request as an academic request, with a religious course of study.
Taking into consideration the totality of the circumstances, as to the staff situation at the County and, in particular, at the Data Center Division, the inability to effectively and efficiently re-assign Mr. Lalla’s duties and responsibilities, during his one-year leave of absence, and the precedent of requests for extended leave of absence, Mr. Fleming
determined that there was no reasonable basis to grant Mr. Lalla’s request.
On April 7, 2008, Mr. Fleming denied Mr. Lalla’s request.
Even if Mr. Lalla’s request were considered a religious request, the result would have been the same. Based on the same reasoning, Mr. Fleming would have denied a religious request.
Mr. Lalla would have agreed to a shorter period of time as an accommodation to what he (Mr. Lalla) was requesting. However, neither Mr. Fleming nor Mr. Lalla suggested an accommodation of a shorter period of time for the leave of absence.
Additionally, Mr. Lalla was aware that a Buddhist monastery was located in Homestead, Florida. He did not suggest to Mr. Fleming, as an option, attending the Buddhist monastery in Homestead, instead of in India. No evidence was presented that Mr. Fleming was aware of the monastery in Homestead.
Ms. Mazzorana advised Mr. Lalla of the denial of his request for a leave of absence by Mr. Fleming and the reasons for the denial. She provided Mr. Lalla a copy of the completed leave of absence form that was signed by Mr. Fleming.
Ms. DiPrima was also advised of the denial of Mr. Lalla’s request for the extended leave of absence.
On April 14, 2008, Mr. Lalla requested approval from Ms. DiPrima for a two-week vacation beginning the next day on April 15, 2010. Among other things, he advised her that the union was attempting to get the one-year leave of absence approved; that there were certain things that he wanted to do in preparation for the one-year leave of absence; that the two-week vacation would provide him that preparation time; and that two co-workers were available to and had agreed to perform his duties during his absence.
Ms. DiPrima denied Mr. Lalla’s request for the two- week vacation. She pointed out to him that there were assignments that he had not completed and that the request was not submitted sufficiently in advance to make sure that his work duties and assignments were covered.
Mr. Lalla decided that he could no longer remain with the County. He decided to resign. Mr. Lalla did not discuss with anyone at ETSD that he was contemplating resigning or his decision to resign.
On April 15, 2008, Mr.Lalla sent a memorandum to Human Resources regarding his resignation. He indicated, among other things, that, due to recent workplace circumstances, which “severely impacted [his] mental and spiritual health” and the denial of his request for a leave of absence, he was “forced to tender [his] resignation under duress, effective immediately.”
Further, among other things, he set forth the workplace circumstances, which were, in essence, how ETSD handled the suspected security breach in the Security Office and handled him and his fellow employees in the Security Office; and set forth the circumstances of the denial of his request for a leave of absence, which he sought for “Religious and Spiritual pursuits,” attempting “to rebuild and repair [his] damaged mental and spiritual health.”
Furthermore, on April 15, 2008, among other things, Mr. Lalla sent an email to Ms. DiPrima, while she was at lunch, indicating that, having reviewed what had occurred over the past
12 months, he was “forced” to resign, effective immediately, “under duress.” Further, he cleared his desk; reformatted his computer; and walked out of ETSD without speaking to anyone.
The County’s policy required Mr. Lalla to give at least two weeks notice before resigning if he wanted to resign in good standing. By failing to give at least two-weeks notice, he did not resign in good standing.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto, pursuant to Sections 760.11 and 120.569, Florida Statutes (2009), and Subsection 120.57(1), Florida Statutes (2009).
The standard of proof is preponderance of the evidence. § 120.57(1)(j), Fla. Stat. (2009).
These proceedings are de novo. § 120.57(1)(k), Fla.
Stat. (2009).
Section 760.10, Florida Statutes, provides in pertinent part:
It is an unlawful employment practice for an employer:
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.
To limit, segregate, or classify employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities, or adversely affect any individual's status as an employee, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.
In the instant case, Mr. Lalla must rely upon circumstantial evidence to prove discriminatory intent by the County. For such cases, a three-step burden and order of presentation of proof have been established for unlawful employment practices. McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 688 (1973); Aramburu v. The Boeing Company, 112 F.3d 1398, 1403 (10th Cir. 1997);
Combs v. Plantation Patterns, 106 F.3d 1519, 1527-1528 (11th
Cir. 1997).
The initial burden is upon Mr. Lalla to establish a prima facie case of discrimination. McDonnell Douglas, at 802; Aramburu, at 1403; Combs, at 1527-1528. Mr. Lalla establishes a prima facie case of discrimination by showing four factors: (1) that he belongs to a protected group; (2) that he was subjected to an adverse employment action; (3) that his employer treated similarly situated employees outside the protected group differently or more favorably; and (4) that he was qualified to do the job. McDonnell Douglas, supra; Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997); Aramburu, supra; Combs, supra. See Kendrick v. Penske Transportation Services, 220 F.3d 1220 (10th Cir. 2000) (similarly situated employees need not be outside the protected group).
Once Mr. Lalla establishes a prima facie case, a presumption of unlawful discrimination is created. McDonnell Douglas, at 802; Aramburu, at 1403; Combs, at 1528. The burden shifts then to the County to show a legitimate, nondiscriminatory reason for its action. McDonnell Douglas, at 802; Aramburu, at 1403; Combs, at 1528.
If the County carries its burden, Mr. Lalla must then prove, by a preponderance of the evidence, that the reason offered by the County is not its true reason, but only a pretext
for discrimination. McDonnell Douglas, at 804; Aramburu, at 1403; Combs, at 1528.
However, at all times, the ultimate burden of persuasion that the County intentionally discriminated against him remains with Mr. Lalla. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67
L. Ed. 2d 207 (1981).
Also, an employer is required to “make reasonable accommodation for the religious observances of its employees, short of incurring an undue hardship.” Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 75, 97 S. Ct. 2264, 2272, 53 L. Ed. 2d 113, 126 (1977); Lake v. B.F. Goodrich Company, 837 F.2d. 449, 450 (11th Cir. 1988) (citations and quotation omitted). To establish a prima facie case of religious discrimination based on a failure to accommodate religious beliefs, Mr. Lalla must present sufficient evidence to prove that: (1) he had a bona fide religious belief that conflicted with an employment requirement; (2) he informed the County of his belief; and (3) he suffered an adverse employment action for failing to comply with the conflicting employment requirement. Morrissette-Brown
v. Mobile Infirmary Medical Center, 506 F.3d 1317, 1321 (11th Cir. 2007).
To prove an adverse employment action, Mr. Lalla must show a “serious and material change in terms, conditions, or
privileges of [his] employment,” and the employment action must be “materially adverse as viewed by a reasonable person in the circumstances.” Davis v. Town of Lake Park, Florida, 245 F.3d 1232, 1239 (11th Cir. 2001) (citation omitted).
Once Mr. Lalla establishes a prima facie case, the burden shifts to the County to demonstrate that it was “unable to reasonably accommodate [Mr. Lalla’s] religious observance or practice without undue hardship on the conduct of the [County’s] business.” Morrissette-Brown at 1321 (citations omitted). Reasonably accommodate “must be determined on a case-by-case basis.” Id. at 1322. However, to require the County “to bear more than a de minimis cost” in accommodating Mr. Lalla’s religious beliefs constitutes “undue hardship.” Hardison, 432
U.S. at 80, 97 S. Ct. at 2277, 53 L. Ed. 2d at 131; Lake at 451.
Both parties focus their argument on the issue of reasonable accommodation, and, therefore, this issue will be addressed first.
Reasonable Accommodation
Mr. Lalla established the three-prongs for a prima facie case. The evidence demonstrates that he had a religious belief or practice that conflicted with the County’s employment requirement of a leave of absence. Even though the County argues that Mr. Lalla’s choice of the manner in which he would address his problems at work was a personal preference rather
than a preference based upon his religious belief or practice, the undersigned is persuaded that the evidence demonstrates that Mr. Lalla’s choice to follow his religious belief or practice, instead of the County’s assistance program, was based upon his religious belief or practice. Also, the evidence demonstrates that he informed the County of his religious belief or practice albeit not in the most effective communicative words. Further, the evidence demonstrates that Mr. Lalla suffered an adverse employment action in that he was denied the privilege of using the leave of absence available at the County. Davis at 1239.
The next question arises as to whether the County made a reasonable accommodation for Mr. Lalla’s religious observance or practice, short of incurring an undue hardship.
When Mr. Lalla was transferred to the new division, with new responsibilities and duties, he was under the supervision of Ms. DiPrima, who needed another employee to assist her division in its responsibilities. Ms. DiPrima assigned Mr. Lalla to work with another employee to learn the day-to-day RACF administration tasks and would, in the future, provide him training in the other areas of his new position. Furthermore, the employee with whom Mr. Lalla would be working was also given another responsibility of concentrating on upgrades that were being performed for a new operating system release.
The evidence demonstrates that, at the time that Mr. Lalla requested his one-year leave of absence, the County was in a hiring freeze and that, if Mr. Lalla was away for a
year, Ms. DiPrima’s division would be short-staffed, again. As a result, in order for Ms. DiPrima to adequately comply with the responsibilities and duties of her division in the absence of Mr. Lalla for a year, either his duties would be shifted to other employees or the hiring of another person would be required. Shifting Mr. Lalla’s duties to his co-workers would be an undue hardship. See Balint v. Carson City, Nevada, 180 F.3d 1047, 1054 (9th Cir. 1999) (an employer is not required to provide an accommodation that “would cause more than a de
minimus impact on co-workers”).
Hiring another person would require an expenditure of funds by the County for one year, contrary to the County’s hiring freeze, which would involve more than salary but also training of a new employee, who would be discharged upon the return of Mr. Lalla. This alternative would also constitute an undue hardship, imposing more than a de minimus cost to the County. See Hardison, 432 U.S. at 84, 97 S. Ct. at 2277, 53 L. Ed. 2d at 131 (requiring an employer to either be short-staffed or hire additional employees would constitute an undue hardship).
Additionally, Mr. Lalla argues that the County could have accommodated his religious belief or practice by providing him with a three-month or six-month leave of absence, instead of a one-year leave of absence, which would have afforded him an opportunity to attend the monastery in Homestead, Florida, instead of in India. The County did not propose such an accommodation. Taking the circumstances presented in the instant case, the evidence demonstrates that, even considering the alternative accommodations, the result would be an undue hardship to the County. The same consequences would result, only involving a shorter period of time.
Hence, the evidence fails to demonstrate religious discrimination for the County’s failure to make a reasonable accommodation.
Religious Discrimination
Applying the standards of McDonnell Douglas, supra, Mr. Lalla established the first two-prongs for a prima facie case. However, he failed to establish the third-prong.
Mr. Fleming obtained and reviewed the precedents of prior leave of absence requests for non-health and non-medical related reasons. Based upon Mr. Fleming’s review of the precedents and the factors affecting the other employees of the division in which Mr. Lalla worked, the hiring freeze, and the economics of the County, Mr. Fleming denied Mr. Lalla’s request for a one-
year leave of absence. The evidence failed to establish that the County treated similarly situated employees outside the protected group differently or more favorably.
Hence, Mr. Lalla failed to establish religious and national origin discrimination.
Even assuming that Mr. Lalla established a prima facie case, the County established a legitimate, nondiscriminatory reason for denying Mr. Lalla’s request for a one-year leave of absence. Furthermore, the evidence fails to demonstrate that the reason offered by the County was not its true reason, but only a pretext for discrimination.
Constructive Discharge
Additionally, Mr. Lalla contends that he was constructively discharged in that he had no choice but to resign when the County denied his one-year leave of absence or provide a reasonable accommodation. To constitute a constructive discharge, the “employer must deliberately create intolerable working conditions, as perceived by a reasonable person, with the intention of forcing the employee to quit and the employee must actually quit. . . . [The] working conditions would have been so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign.”
Goldmeier v. Allstate Insurance Company, 337 F.3d 629, 635 (6th Cir. 2007) (citations omitted). See Tepper v. Potter, 505 F.3d
508, 514 (6th Cir. 2007). "In determining whether an environment is one that a reasonable person would find hostile or abusive and that the plaintiff in fact did perceive to be so, courts look at all of the circumstances. . . . The circumstances are examined from the point of view of a reasonable member of the protected class.” Id. The evidence demonstrates that
Mr. Lalla resigned. However, the evidence fails to demonstrate that the County deliberately created intolerable working conditions with the intent to force Mr. Lalla to resign. Hence, the evidence fails to demonstrate that Mr. Lalla was constructively discharged.
Retaliation
Mr. Lalla presented no evidence as to retaliation and made no argument regarding retaliation in his post-hearing submission. Therefore, the claim of retaliation is considered abandoned.
RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that the County of Miami-Dade, FL ETSD did not commit an unlawful employment practice by discriminating against Delano Lalla on the basis of religion and
national origin and retaliated against Delano Lalla in violation of the Florida Civil Rights Act of 1992, as amended.
DONE AND ENTERED this 3rd day of June, 2010, in Tallahassee, Leon County, Florida.
ERROL H. POWELL
Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 2010.
Larry Kranert, General Counsel 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.
