STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALFRED S. BROWN, )

)

Petitioner, )

)

vs. ) Case No. 10-0065

)

SSA SECURITY, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on March 8, 2010, by video teleconference, with the parties appearing in Fort Lauderdale, Florida, before Patricia M. Hart, a duly-designated Administrative Law Judge of the Division of Administrative Hearings, who presided in Tallahassee, Florida.

APPEARANCES

For Petitioner: Kenneth E. Trent, Esquire

Kenneth Eric Trent, P.A.

831 East Oakland Park Boulevard Fort Lauderdale, Florida 33334

For Respondent: Merry E. Lindberg, Esquire

Christin M. Russell, Esquire

1000 Southern Boulevard, Second Floor West Palm Beach, Florida 33405

STATEMENT OF THE ISSUE

Whether the Respondent committed an unlawful employment practice by discriminating against the Petitioner on the basis of age and/or disability, in violation of the Florida Civil

Rights Act of 1992, as amended, Section 760.10 et seq., Florida Statutes (2008).1

PRELIMINARY STATEMENT

On June 7, 2009, Alfred S. Brown filed an Employment Complaint of Discrimination with the Florida Commission on Human Relations ("FCHR") naming SSA Security, Inc. ("SSA Security") as the Respondent and alleging that SSA Security discriminated against him on the basis of his age and a disability and retaliated against him when his employment was terminated on June 4, 2008. On November 18, 2009, the FCHR issued a Determination: No Cause, in which it notified Mr. Brown that, based on the investigative memorandum and recommendation prepared by FCHR staff, the FCHR had determined that there was no reasonable cause to believe that SSA Security had engaged in an unlawful employment practice. The FCHR also issued on November 18, 2010, a Notice of Determination: No Cause, in which the FCHR advised Mr. Brown of his right to request an administrative hearing challenging the FCHR's determination.

On December 23, 2009, Mr. Brown filed with the FCHR a Petition for Relief from an Unlawful Employment Practice, in which he alleged that SSA Security’s termination of his employment constituted an unlawful employment practice based on his age of 75 years and on a disability consisting of a serious heart condition. The FCHR transmitted the Petition for Relief

to the Division of Administrative Hearings for assignment of an administrative law judge.

Pursuant to notice, the final hearing was held on March 8, 2010. At the hearing, Mr. Brown testified in his own behalf, and Petitioner's Exhibits 1 and 3 through 5 were offered and received into evidence. SSA Security presented the testimony of Robert R. Chambers, and Respondent's Exhibits 1 through 7 and 9 through 25 were offered and received into evidence; as noted below, Respondent's Exhibit 28 was also received into evidence.

During the hearing, Mr. Brown offered into evidence a letter dated July 30, 2009, that was filed with the FCHR on behalf of SSA Security, together with attachments, and was intended to respond to the allegations made in the Employment Complaint of Discrimination. These documents were marked for identification as Petitioner's Exhibit 5. Counsel for Mr. Brown did not have all of the documents attached to the exhibit in his possession at the hearing, this document had not been included in his exhibit list, and no copy had been furnished to the undersigned or to counsel for SSA Security. Counsel for SSA Security objected to the admission of the position paper on the grounds of hearsay and relevance, arguing specifically that the document was presented to the FCHR as SSA Security's initial response to Mr. Brown's complaint, that it was not intended to be a full and complete statement of the facts as SSA Security

understood them, and that the original statement and documents had been supplemented several times.

After hearing argument, the undersigned ruled that Petitioner's Exhibit 5 would be received into evidence as a party admission pursuant to Section 90.803, Florida Statutes (2009). Mr. Brown was directed to provide a copy of the complete document to the undersigned and to SSA Security as soon as possible, and SSA Security was given leave to file any supplemental material it deemed necessary to complete Petitioner's Exhibit 5. This material was filed by SSA Security on March 15, 2010, and is received into evidence as Respondent's Exhibit 28.2

The one-volume transcript of the proceedings was filed with the Division of Administrative Hearings on March 30, 2010. SSA Security timely filed its proposed findings of fact and conclusions of law and Post-Hearing Brief 10 days after the date the transcript was filed. After having requested and been granted two extensions of time, Mr. Brown filed his proposed findings of fact and conclusions of law and Post-Hearing Memorandum on April 28, 2010.3 The proposals and memoranda have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:

1. Mr. Brown was born on November 26, 1932. At the times material to this proceeding, he was licensed in Florida as a security guard.

2. Mr. Brown was hired as a security guard by SSA Security in November 1998, when he was 65 years of age, by Robert Chambers. At the times material to this proceeding,

   Mr. Chambers was SSA Security's district manager for Broward County and Miami-Dade County, Florida.

3. Mr. Brown resigned his employment with SSA Security in December 2000 and began working for Avis Rent-A-Car. He left his position with SSA Security because it did not pay any benefits; he received full benefits as an employee of Avis Rent- A-Car.

4. In or around December 2000, Mr. Brown was fitted with a pacemaker because of a heart condition.4

5. When Mr. Brown lost his job with Avis Rent-A-Car, he applied to SSA Security for employment, and Mr. Chambers

   re-hired him as a security guard in January 2003. At the time, of his re-employment by SSA Security, Mr. Brown was 70 years of age.

   
   

6. Even though Mr. Brown had a pacemaker to regulate his heartbeat in 2003, he was at all times capable of performing all of the essential functions of a security guard and, in fact, wanted to return to employment as a security guard because he could do the job notwithstanding his heart condition.

7. At the times pertinent to this proceeding, Mr. Brown's direct supervisor was Owen James, the area manager with SSA Security, who reported to Mr. Chambers. Mr. Brown also was supervised by SSA Security's on-duty road supervisors during the time he was actually working.

8. On October 3, 2004, Mr. Brown signed an Application for Employment with SSA Security, and he was provided with a copy of the SSA Security Employee Rules and Regulations. He acknowledged receipt of the rules and regulations and of the Security Officers Handbook with his signature, dated October 3, 2004.5

9. The introductory paragraph of the Employee Rules and Regulations stated that SSA Security employees were to carry a copy of the Security Officers Handbook with him or her when on duty and advised the employees that they "could be subject to discipline, suspension or discharge" if he or she violated any of the employee rules.6

10. The first rule included in the Employee Rules and Regulations prohibited "[l]eaving a posted duty prior to being

    
    

    properly relieved." It is Mr. Chambers's policy to terminate the employment of persons who abandon their posts, that is, who leave their posts without being properly relieved, and he terminated at least 10 employees for abandoning their posts between 2007 and 2009.

11. At the times material to this proceeding, SSA Security provided security services at several United Parcel Service facilities, including the United Parcel Service Sheridan ("UPS Sheridan") facility and at the United Parcel Service Davie

    ("UPS Davie") facility.

    
    

12. At the times material to this proceeding, the UPS Sheridan facility was a "UPS hub" that operated 24 hours a day, and SSA Security provided security for the facility 24 hours per day. The UPS Sheridan facility is categorized as a "soft target" because, if anyone got into the facility, he or she could steal UPS uniforms and trucks and could, thereby, gain access to many businesses and residences.

13. The UPS Davie facility housed employees working in customer service and administration, and the facility closed every day.

14. At one time, Mr. Brown was assigned to both the UPS Sheridan facility and the UPS Davie facility. He worked at the UPS Sheridan facility from 10:00 p.m. until 3:30 a.m., when he

    
    

    left and went to the UPS Davie facility, where he worked from 4:00 a.m. until approximately 5:30 a.m.

15. During his time at the UPS Davie facility, Mr. Brown escorted the employees working at the facility to their vehicles, and, when the last employee was escorted to his or her vehicle, Mr. Brown was free to go home. Mr. Brown was not relieved by another security guard at the UPS Davie facility.

16. In or about January 2007, the UPS Davie facility was closed, and Mr. Brown was assigned to work at the UPS Sheridan facility from 12:00 a.m. until 4:00 a.m.7 His duties at the UPS Sheridan facility after his work hours changed, and specifically in June 2008, were to patrol the perimeter of the facility and ensure that the facility was not breached. Mr. Brown did not enter the building as part of his duties because, prior to

    4:00 a.m., the building was locked.

    
    

17. At 4:00 a.m., a UPS supervisor would unlock the building and another SSA Security security guard was scheduled to come on duty. This security guard’s duties were to secure an entryway into the building and scan employees coming in and out of the facility as they passed through a metal detector.

18. SSA Security’s procedure at the UPS Sheridan facility required Mr. Brown to wait at his post at the facility until the security guard assigned the 4:00 a.m.-to-8:00 a.m. shift arrived. According to procedure, if this security guard was

    
    

    late, Mr. Brown was to call either SSA Security's 24-hour dispatch, which was reached by calling the local SSA Security office, or the local on-duty road supervisor and a relief officer would be sent to the UPS Sheridan facility to take over the post. Mr. Brown was trained in this procedure by the road supervisor on duty at the time Mr. Brown began working the 12:00 a.m.-to-4:00 a.m. shift at the UPS Sheridan facility.

19. On May 27, 2008, Mr. Brown had a routine doctor's appointment. The doctor told Mr. Brown after the examination that he needed to go to the hospital that night because of his heart condition.

20. Mr. Brown called the SSA Security office at approximately 4:50 p.m. on May 27, 2008, and spoke with Jeanine Williams, who was a receptionist. Mr. Brown explained to Ms. Williams that he was being hospitalized and could not report to work because of his "regular heart condition."8 This telephone conversation lasted approximately three minutes.

21. Mr. Brown did not speak with Mr. Chambers or with his direct supervisor, Mr. James, on May 27, 2008, and he did not inform either of them of his heart condition in June 2008. He did not do so because he believed he had advised Mr. Chambers of his heart condition in 2000, when he was fitted with the pacemaker. Mr. Chambers has no recollection of Mr. Brown having told him of a heart condition in 2000, and Mr. Chambers was not

    
    

    able to locate anything in Mr. Brown's personnel file related to such a medical condition.

22. Mr. Brown was discharged from the hospital on June 2, 2008. He did not submit any documentation of his hospitalization to SSA Security or provide Mr. Chambers with any explanation of the reason for his absence from work.

23. Upon his discharge from the hospital, Mr. Brown had minimal temporary restrictions on his activities as a result of his heart condition. The primary restriction, as described by Mr. Brown, was that he was unable to do any lifting. He was, however, able to perform the essential functions of his job as a security guard.

24. Mr. Brown reported to his post at the UPS Sheridan facility on the morning of June 4, 2008, at his normal time of 12:00 a.m. His shift ended at 4:00 a.m., at which time the SSA Security security guard who manned the post inside the facility was to report for work.

25. Mr. Brown knew that another security guard was to begin work at the UPS Sheridan facility at 4:00 a.m., but, when the security guard had not arrived by approximately 4:10 a.m., Mr. Brown left the facility and went home.

26. Mr. Brown had the telephone numbers of both the SSA Security 24-hour dispatch service and the SSA Security on-duty road supervisor, but he did not notify anyone at SSA Security

    
    

    that he was leaving or that the new security guard had not reported for duty at the UPS Sheridan facility. Mr. Brown also did not notify anyone at the UPS Sheridan facility that he was leaving the facility unguarded because the security guard assigned to work the 4:00 a.m. shift had not yet arrived.

27. At approximately 7:30 a.m., Mr. Brown received a call from Captain Linda Webb, the SSA Security road supervisor responsible for the UPS Sheridan facility on the morning of June 4, 2008, and Mr. Brown's immediate supervisor during his shift on June 4, 2008. Captain Webb asked Mr. Brown where he was, and he replied that he was at home. Captain Webb asked Mr. Brown if he left his post before the other security guard had arrived,9 and Mr. Brown responded that it was his

    understanding that he did not need to be relieved at his post at the UPS Sheridan facility and that had never been relieved at that post.

28. Although Mr. Brown had been told by a supervisor that he could leave his post at the UPS Davie facility without being relieved, no one in a supervisory position with SSA Security told Mr. Brown that he could leave his post at the UPS Sheridan facility at 4:00 a.m., regardless of whether the security guard assigned to work the 4:00 a.m. shift had arrived at the facility.10

    
    

29. Captain Webb wrote a Personnel Action Form summarizing the incident, which was categorized as Mr. Brown's having "abandoning the post."

30. At approximately 2:30 p.m. on June 4, 2008, Mr. James called Mr. Brown and asked why he had left his post at the UPS Sheridan facility without being relieved by the guard who was assigned to the post inside the building. Mr. Brown stated that he was never relieved at his post at the UPS Sheridan facility. Mr. James told Mr. Brown not to return to the post at the UPS Sheridan facility but to come into the SSA Security office.

    Mr. Brown believed that Mr. James wanted to "get rid" of him.11

    
    

31. Mr. Brown spoke with Mr. Chambers on the telephone on June 4, 2008, and Mr. Chambers told him that, in directing

    Mr. Brown not to return to his post at the UPS Sheridan facility, Mr. James was following the instructions given to him by Mr. Chambers.

32. Mr. Chambers met with Mr. Brown on June 5, 2008, at his office, and they discussed the incident that occurred on June 4, 2008. Mr. Chambers asked him why he left his post at the UPS Sheridan facility, and Mr. Brown answered that he had a doctor's appointment at 9:00 a.m. on June 4, 2008. Mr. Chambers asked if Mr. Brown had called a supervisor or the dispatch number before he left, and Mr. Brown stated that he had not.

    Mr. Chambers then advised Mr. Brown that he was terminating his

    
    

    employment with SSA Security. Mr. Chambers's decision to terminate Mr. Brown is memorialized on the Personnel Action Form prepared on June 4, 2008, by Captain Webb, which Mr. Chambers signed and dated June 5, 2008.

33. When Mr. Brown turned in his uniform, Mr. James gave him a copy of the Personnel Action Report prepared by Captain Webb, and Mr. James asked Mr. Brown if he had anything to add. Mr. Brown responded that he did not, and he left the SSA Security office.

34. Mr. Brown was replaced by a person who was 53 years of

    
    

    age.

    
    

    Summary

    
    

35. The evidence presented by Mr. Brown is not sufficient to establish that he was the subject of discrimination on the basis of age when he was terminated from his employment at SSA Security. Not only did the evidence fail to establish that age was the motivating factor in his termination, the evidence failed to establish that age was even a consideration when he was terminated.

36. The evidence presented by Mr. Brown is likewise not sufficient to establish that he was the subject of discrimination on the basis of disability. The evidence presented by Mr. Brown did not establish that he was disabled because the evidence failed to establish that he was

    
    

    substantially impaired in any major activity of daily life, that he had a record of an impairment, or that he was regarded by

    Mr. Chambers as having an impairment.

    
    

    CONCLUSIONS OF LAW

    
    

37. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2009).

38. Section 760.10, Florida Statutes, part of the Florida Civil Rights Act of 1992, as amended, provides in pertinent part:

    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 or employment, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.

          
          

39. Florida courts routinely rely on decisions of the federal courts construing Title VII of the Civil Rights Act of 1964, codified at Title 42, Section 2000e et seq., United States Code, ("Title VII"), and the Americans with Disabilities Act of 1990, codified at Title 42, Section 12111, et seq., United States Code, when construing the Florida Civil Rights Act of 1992. See Harper v. Blockbuster Entertainment Corp., 139 F.3d

    
    

    1385, 1387 (11th Cir. 1998), citing, inter alia, Ranger Ins. Co. v. Bal Harbor Club, Inc., 549 So. 2d 1005, 1009 (Fla. 1989), and

    Florida State Univ. v. Sondel, 685 So. 2d 923, 925, n. 1 (Fla. 1st DCA 1996); see also St. Johns County Sch. Dist. v. O'Brien, 973 So. 2d 535, 540 (Fla. 5th DCA 2008).

40. Mr. Brown has the burden of proving by a preponderance of the evidence that he was the victim of employment discrimination on the basis of age and/or disability. He can establish discrimination on either of these grounds through direct evidence of discrimination or through circumstantial evidence, which is evaluated within the framework of the burden- shifting analysis first articulated in McDonald Douglas Corp. v.

    Green, 411 U.S. 792, 802-04 (1973). See Logan v. Denny's Inc.,

    
    

    259 F.3d 558, 566-67, 567, n. 2 (11th Cir. 2006)(discrimination because of age); Luna v. Walgreen Co., 347 Fed. Appx. 469, 471 (11th Cir. Fla. 2009)(discrimination because of disability).

41. "Direct evidence of discrimination is evidence which, if believed, would prove the existence of a fact in issue without inference or presumption. Only the most blatant remarks, whose intent could be nothing other than to discriminate on the basis of [age/disability] constitute direct evidence of discrimination." Bass v. Board of County Comm'rs, Orange County, Florida, 256 F.3d 1095, 1105 (11th Cir. 2001).

    
    

42. Based on the findings of fact herein, Mr. Brown has presented no direct evidence that he was discriminated against because of age or disability, and he must, therefore, rely on the presumption set forth in McDonald Douglas to establish a prima facie case of discrimination because of age or disability.

43. If Mr. Brown satisfies his burden of proving a prima facie case of discrimination because of age or disability, the burden of producing evidence then shifts to SSA Security to produce evidence articulating "a legitimate, non-discriminatory reason" for terminating Mr. Brown. Id. If SSA Security produces such evidence, Mr. Brown must then prove that the non- discriminatory reason offered by SSA Security to justify his termination is pretextual in order to prove that he was subjected to discrimination when he was terminated from his employment. Jones v. School Dist. of Philadelphia, 198 F.3d 403, 410 (3d Cir. 1999).

44. Mr. Brown can establish pretext by presenting evidence that casts doubt on the reason for termination offered by SSA Security and supports the conclusion that the reason offered was a fabrication or by presenting evidence sufficient to support an inference that Mr. Brown's termination was more likely than not motivated by discrimination. See Fuentes v. Perskie, 32 F.3d 759, 762 (3d Cir. 1994). The evidence offered to establish that the reason offered by SSA Security for Mr. Brown's termination

    
    

    was pretextual "must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered reasons for its action that a reasonable factfinder could rationally find them unworthy of credence, and hence infer that the employer did not act for [the asserted] non-discriminatory reasons." Id.

    Discrimination Because Of Age

    
    

45. In order to establish a prima facie case that he was subject to discrimination on the basis of his age, Mr. Brown must show that (1) he was at least 40 years old; (2) he suffered an adverse employment action; (3) he was qualified to do the job; and (4) he was replaced by someone substantially younger. See Haas v. Kelly Servs. Inc., 409 F.3d 1030, 1035 (8th Cir. 2005); Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th Cir. 2000).

46. Based on the findings of fact herein, Mr. Brown has met his burden of establishing a prima facie case of age discrimination: During his employment with SSA Security, he was over 40 years of age; he was terminated from his position as a security guard with SSA Security by Mr. Chambers; he was qualified to do the job of security guard; and he was replaced by a person who was substantially younger than he was at the time of his termination.

    
    

47. However, based on the findings of fact herein, SSA Security met its burden of establishing a legitimate, non- discriminatory reason for Mr. Brown's termination: Mr. Brown violated one of SSA Security's most important rules by leaving his post at the UPS Sheridan facility on June 4, 2008, without being relieved by the security guard scheduled to work the shift following his or notifying anyone at SSA Security of his departure.

48. Finally, based on the findings of fact herein, the evidence offered by Mr. Brown was not sufficient to establish that the reasons given by SSA Security for his termination were pretextual and that his employment was terminated because of his age. He failed to demonstrate that the reason given by

    Mr. Chambers for his termination was unworthy of belief.

    
    

49. Mr. Brown, therefore, did not prove by a preponderance of the evidence that SSA Security discriminated against him on the basis of his age when it terminated his employment in

    June 2008.

    
    

    Discrimination Because Of Disability

    
    

50. In order to establish a prima facie case that he was the subject of discrimination on the basis of disability,

    Mr. Brown must show that (1) he is disabled; (2) he is a qualified individual; and (3) he was subjected to unlawful discrimination because of [his] disability. Holly v. Clairson

    
    

    Indus., L.L.C., 492 F.3d 1247, 1255-56 (11th Cir. 2007); see

    
    

    also St. Johns County Sch. Dist. v. O'Brien, 973 So. 2d 535, 541 (Fla. 5th DCA 2007)

51. "Disability" is defined in the ADA and implementing regulations as: “(1) a physical or mental impairment that substantially limits one or more of the major life activities of the individual; (2) a record of such impairment; or (3) being regarded as having an impairment.” 42 U.S.C. §§ 12102 (1) and (2); 34 C.F.R. 104.3(j)(1); see Carruthers v. BSA Adver., Inc., 357 F.3d 1213, 1215 (11th Cir. 2004).

52. Based on the findings of fact herein, Mr. Brown has failed to meet his burden of establishing a prima facie case of age discrimination because he has failed to prove that he is disabled. The evidence presented by Mr. Brown failed to establish that he has an actual impairment that substantially limits a major activity of daily life, that he has a record of having an such impairment, or that Mr. Chambers regarded him as having such an impairment. See Sutton v. United Air Lines, 527

    U.S. 471, 477-478 (U.S. 1999). First, Mr. Brown’s testimony established only that he had a heart condition that required him to have a permanent pacemaker. A medical condition is not, however, synonymous with a disability. See Nese v. Julian Nordic Constr. Co., 405 F.3d 638, 642-643 (7th Cir. 2005).

    
    

53. In addition, Mr. Brown failed to prove that he was substantially limited in any major activity of daily living. The only limitation established by Mr. Brown's creditable evidence was a temporary restriction on lifting.12 According to

    his own admission, he was perfectly capable of performing all of the job responsibilities of a security guard, and he presented no evidence to establish that he needed any accommodation to do so.

54. Mr. Brown, therefore, failed to prove that he had an actual disability. Mr. Brown also failed to prove that he had a record of having a disability or that he was regarded as having a disability. He produced no evidence that, during the time he was employed by SSA Security, both between 1998 and 2000 and between 2003 and 2008, he had a physical impairment that substantially limited any major activity of daily living or that Mr. Chambers regarded him as having such an impairment.

55. Mr. Brown, therefore, did not prove by a preponderance of the evidence that SSA Security discriminated against him on the basis of a disability when it terminated his employment in June 2008.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Alfred S. Brown.

DONE AND ENTERED this 27th day of May, 2010, in Tallahassee, Leon County, Florida.

PATRICIA M. HART

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 27th day of May, 2010.

ENDNOTES

1/ All references to the Florida Statutes are to the 2008 edition unless otherwise indicated.

2/ It is noted that, during the final hearing, counsel for Mr. Brown focused on statements made in the letter from SSA Security to the FCHR that he described as inconsistent with

statements made during Mr. Chambers's testimony. Mr. Brown did not refer to Petitioner's Exhibit 5 in his proposed Recommended Order, and there was only one mention of the information included in SSA Security's response to the FCHR in the Petitioner's Post-Hearing Memorandum, which is a reference to a discrepancy between a piece of marginally relevant information

in the letter and a statement made by Mr. Chambers during his testimony at the final hearing.

It is clear that Mr. Brown has used Petitioner's Exhibit 5 solely in an attempt to impeach Mr. Chambers' testimony.

Importantly, however, counsel drafting the response on behalf of SSA Security to Mr. Brown's allegations of discrimination included the disclaimers that the response was based on the investigation and knowledge of the facts available at the time the letter was written, that the letter was not an affidavit, and that SSA Security anticipated that the document would not be offered into evidence because it was submitted for the purpose of conciliation and in an effort to cooperate with the FCHR. Consequently, little weight has been given to Petitioner's Exhibit 5.

3/ In footnote 1 on page 6 of his Post-Hearing Memorandum, Mr. Brown requested that certain documents attached to the memorandum be admitted into evidence. This request is denied; Mr. Brown was given leave to late-file only Petitioner's Exhibit 5, and the record in this case was closed on March 18, 2010, 10 days after the date on which the final hearing was completed.

4/ Mr. Brown testified that, at the time, he wrote a letter to Mr. Chambers explaining that he could not continue working for a company that paid no benefits. Mr. Chambers testified that he did not recall receiving such a letter and did not find such a letter in Mr. Brown's personnel file when he reviewed it to locate documents pertinent to SSA Security’s July 30, 2009, Respondents' to Mr. Brown’s discrimination claims. Even had he written Mr. Chambers such a letter, according to Mr. Brown's description of the letter, it would not have put Mr. Chambers on notice in 2000 that Mr. Brown had a heart condition since it only advised Mr. Chambers that Mr. Brown could not continue to work for a company that provided no benefits.

5/ The discrepancy between the date on which Mr. Brown was re- employed by SSA Security and the date on which he submitted his application and received the Employee Rules and Regulation was related to the purchase of SSA Security in 2004 by ABM Security Services, Inc. SSA Security employees were required to submit new applications and sign forms produced by ABM Security Services, Inc., at or about the time it purchased SSA Security.

6/ Respondent's Exhibit 2.

7/ In 2008, Mr. Brown also worked at the UPS Deerfield Beach facility and the UPS Lauderhill facility, where his duties included controlling the entry and exit of employees and trucks.

8/ Transcript at page 34.

9/ Although Mr. Chambers testified regarding the manner in which SSA Security learned that Mr. Brown had left the UPS Sheridan facility, the testimony is hearsay and cannot be used as the basis of a findings of fact pursuant to Section 120.57(1)(c), Florida Statutes ("Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.").

10/ Mr. Brown testified that he had never been relieved from his post at the UPS Sheridan facility. In his testimony, Mr. Brown was careful to specify that the security guard who went on duty at the UPS Sheridan facility at 4:00 a.m. did not relieve him because their posts were not the same. Mr. Brown supported this contention by distinguishing between his duties, which involved patrolling the perimeter of the building, and the duties of the security guard who worked the 4:00 a.m. shift, which involved manning a post inside the building. Transcript at page 41-42.

Mr. Brown ignored the fact that SSA Security was to provide 24- hour security at the UPS Sheridan facility, and asserted justification for leaving his post before the other security guard arrived is not persuasive.

11/ Transcript at page 38.

12/ Petitioner's Exhibit 1 is a questionnaire completed by Mr. Brown's physician and signed by him on September 11, 2009. A response on the questionnaire lists several limitations on Mr. Brown's activities, but this questionnaire is not only not

relevant because it relates to a time subsequent to Mr. Brown's termination from SSA Security, but it constitutes hearsay that cannot be used as the basis of a findings of fact pursuant to Section 120.57(1)(c), Florida Statutes ("Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions."). The only information contained in Petitioner's Exhibit 1 that was supported by Mr. Brown's testimony was that he had a temporary restriction and could not lift anything.

COPIES FURNISHED:

Kenneth E. Trent, Esquire Kenneth Eric Trent, P.A.

831 East Oakland Park Boulevard Fort Lauderdale, Florida 33334

Merry E. Lindberg, Esquire

1000 Southern Boulevard, Second Floor West Palm Beach, Florida 33405

Denise Crawford, Agency Clerk

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry Kranert, 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.

24

Docket for Case No: 10-000065

Orders for Case No: 10-000065