STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM S. HERNBROTT, )

)

Petitioner, )

)

vs. ) CASE NO. 86-3011

)

PALM HARBOR HOMES, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held in this case in Tampa, Florida, on November 19, 1986 before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented as follows:

For Petitioner: Howard L. Dimmig, II, Esquire

1849 North Crystal Lake Drive Lakeland, Florida 33801

For Respondent: Mark E. Edwards, Esquire

600 Peachtree at the Circle Building 1275 Peachtree Street, Northeast Atlanta, Georgia 30309

The issue in this case is whether Palm Harbor Homes, Inc. (Respondent) discriminated against William S. Hernbrott (Petitioner) on the basis of handicap when Respondent refused to allow Petitioner to return to work on May 11, 1984.

At the hearing, Petitioner testified on his own behalf and called his wife, Trina Hernbrott and William J. Finley, general manager of Respondent; Petitioner also introduced one exhibit. Testifying on behalf of Respondent were Charles Rogers, production manager, James Hein, cabinet maker and group leader, Paul R. Krach and Cindy Murphy, cabinet makers and former co-workers of Petitioner; Respondent also introduced seven exhibits. No transcript of the hearing has been filed. A ruling on timely filed proposed findings of fact is included in the Appendix to the Recommended Order.

FINDINGS OF FACT

1. Petitioner was employed by Respondent as a cabinet maker from September 20, 1982 until May 11, 1984. He has had epilepsy for twenty years, and disclosed this on his application for employment. There is no dispute that Respondent was aware of Petitioner's epilepsy while he was their employee. Respondent is a corporation engaged in the manufacture of mobile homes.

   
   

2. In early 1984 Petitioner began having problems with his medication, and several adjustments in dosage and types of medication were made by his physician. As a result of these adjustments, Petitioner had reactions which included dizziness, drowsiness and extreme irritability. He experienced great

   difficulty getting up in the morning and began being tardy for work. He had not had a tardiness problem previously, and had been a good worker.

   
   

3. On March 16, 1984 Petitioner received a written reprimand for tardiness which indicates he was tardy seven times in ten weeks. Shortly thereafter, Petitioner brought his supervisor a note from his doctor which confirms that he was having trouble adjusting to his medication. It is Respondent's policy to counsel and reprimand, if necessary, employees who are repeatedly tardy.

   
   

4. Respondent agreed to allow Petitioner to take extra breaks and have time to relax when needed while his medication problems were being resolved. In fact, from March 16, 1984 until May 8, 1984 Petitioner took extra breaks and rest periods during which he used the telephone and drank soft drinks. As a result, other employees had to help him get his daily work done on time. His tardiness also continued after March 16, 1984.

   
   

5. On May 8, 1984 Petitioner was called into his supervisor's office and presented with another written reprimand, which he refused to sign. The reprimand was for not working up to his ability, slowing down in productivity, moving slowly on the job and not "working smart." By "working smart" his supervisor meant organizing his work and his work area to allow him to work on more than one cabinet at a time. It was the normal procedure for cabinet makers to assemble up to five cabinets at one time, but Petitioner was not able to do this routinely and, as a result, his productivity was lower than expected. Respondent had no intention of suspending or terminating Petitioner.

   
   

6. Petitioner became agitated in the May 8, 1984 meeting with his supervisor, refused to sign the reprimand, and walked out saying, "Well, terminate me." He then got his hand tools from his work area, punched out, and left the plant.

   
   

7. About two hours later, Petitioner called Respondent's general manager and asked to be allowed to come back to work. Petitioner was told that the situation would be looked into, and when Petitioner called back on May 11, 1984 he was informed by Respondent's general manager that he would not be allowed to return to work since his investigation had shown that Petitioner had punched out without informing his supervisor or seeking his permission, and further because of the agitated manner in which he had dealt with his supervisor on May 8.

   
   

8. There is no evidence that Respondent has allowed other employees, who left the plant without permission after becoming agitated with their supervisor, to return to work.

   
   

9. The evidence establishes that Petitioner was given special considerations due to his medical condition and the Respondent attempted to work with Petitioner for almost two months by making special allowances for extra breaks, phone calls and rest periods. Petitioner's work production was less than could reasonably be expected, and others had to help him get his work done on time.

   
   

10. Petitioner was not allowed to return to work due solely to his actions on May 8, 1984, and not because of his epilepsy or medical problems related thereto.

    
    

    CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this cause. Section 120.57(1), Florida Statutes.

    
    

12. The Petitioner bears the initial burden of establishing a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Teamsters v. United States, 431 U.S. 324 (1977). If the Petitioner sustains his initial burden, the Respondent would then have to establish some legitimate,

    non-discriminatory reason for the action taken in order to rebut the inference of discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S.

    248 (1981). Thereafter, if Petitioner can show that Respondent's actions were simply a pretext for discrimination, Petitioner may still prevail. McDonnell Douglas, at 804-805; Burdine, at 256.

    
    

13. Petitioner has failed to establish a prime facie case of discrimination. He left his job and punched out without telling his supervisor, and without his supervisor's permission. He had become agitated in a meeting with his supervisor and refused to sign a written reprimand his supervisor was giving him due to his not working up to his ability. Petitioner had been given special consideration by Respondent for his medical condition, and Respondent attempted to work with him for almost two months by making special allowances for extra breaks, phone calls and rest periods. At the same time, however, Respondent noted an undue slow down in Petitioner's production which lead to others having to help him get his work done on time. Petitioner was not working in an organized, efficient manner, and the reprimand which Petitioner refused to sign on May 8, 1984 was for his failure to work up to his ability, his slow down in production, and not "working smart." The reprimand was unrelated to his medical condition.

    
    

14. Absolutely no evidence has been offered to establish that Petitioner's job was even available on May 11, 1984 when he was told he would not be allowed to return to work, or that he in face applied for reemployment at that, or any other time. Respondent declined to allow him to return to work for legitimate, non-discriminatory reasons. The evidence does not establish that Respondent's policy is to allow employees to return when they left their jobs under circumstances similar to those in this case.

    
    

15. The Petitioner alleges that Respondent has discriminated against him on the basis of his handicap by refusing to rehire him after he walked out of the plant, without giving any notice, on May 8, 1984. However, the overwhelming weight of evidence proves that the Petitioner cannot even establish a prima facie case of discrimination. Additionally, the evidence clearly shows that the Respondent's actions were purely motivated by legitimate, non-discriminatory reasons. Respondent followed established policies in refusing to rehire the Petitioner when he walked off the job after becoming agitated with his supervisor. Finally, Respondent has convincingly rebutted any allegation of pretextual treatment in the Petitioner's attempt to compare his situation with that of other employees. Thus, the Petitioner's charge of discrimination should be dismissed.

RECOMMENDATION

Based upon the foregoing, it is recommended that a Final Order be issued dismissing Petitioner's charge of discrimination against Respondent.

DONE AND ENTERED this 5th day of December 1986 in Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 1986.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-3011

Rulings on Petitioner's Proposed Findings of Fact: 1-2 Adopted in Finding of Fact 1.

3-4 Rejected as irrelevant and unnecessary. 5-7 Adopted in Finding of Fact 1.

8-13 Adopted in part in Finding of Fact 2, but otherwise rejected as unnecessary and cumulative.

14 Adopted in Finding of Fact 3.

15-17 Adopted in part in Finding of Fact 4, but otherwise rejected as irrelevant and unnecessary.

18-19 Adopted in Finding of Fact 5.

1. Rejected as irrelevant and unnecessary.

2. Adopted in Finding of Fact 4.

22-23 Adopted in Finding of Fact 6.

1. Adopted in Finding of Fact 2.

2. Adopted in Finding of Fact 7.

3. Adopted and rejected in part in Finding of Fact 7.

4. Adopted in Finding of Fact 7.

5. Rejected in Finding of Fact 8.

Rulings on Respondent's Proposed Findings of Fact: 1-4 Adopted in Finding of Fact 1.

5-7 Rejected as irrelevant and unnecessary. 8-9 Adopted in Finding of Fact 1.

10-12 Rejected as irrelevant and unnecessary. 13-14 Adopted in Finding of Fact 2.

15-17 Adopted in Finding of Fact 3.

18-19 Adopted in Finding of Fact 3,4,9.

1. Adopted in Finding of Fact 4.

2. Rejected as irrelevant and unnecessary. 22-23 Adopted in Finding of Fact 4,5,9.

1. Rejected as unnecessary and cumculative.

2. Adopted in Finding of Fact 5.

26-27 Adopted in Finding of Fact 4,9.

28-29 Rejected as irrelevant and unnecessary. 30-31 Adopted in Finding of Fact 5.

32 Rejected as irrelevant and unnecessary.

33-35 Adopted in Finding of Fact 6.

36-41 Adopted in part in Finding of Fact 7, but otherwise rejected as unnecessary and cumculative.

42-51 Adopted in part in Finding of Fact 8, but otherwise rejected as unnecessary and cumculative.

52-54 Adopted in Finding of Fact 7,9,10. 55-57 Adopted in Finding of Fact 8.

58 Adopted in Finding of Fact 10.

COPIES FURNISHED:

Howard L. Dimming, II, Esquire 1849 North Crystal Lake Drive Lakeland, FL 33801

Mark E. Edwards, Esquire

600 Peachtree at the Circle Building 1275 Peachtree Street, NE

Atlanta, Ga 30309

Donald A. Griffin Executive Director

325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303

Dana Baird, Esquire General Counsel

325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303

Betsy Howard, Clerk

Human Relations Commission

325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303

Docket for Case No: 86-003011

Orders for Case No: 86-003011