STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
HAROLD A. MAYO, )
)
Petitioner, )
)
vs. ) CASE NO. 89-1238
) THE ADVOCACY CENTER FOR PERSONS ) WITH DISABILITIES, INC., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, this matter came on for hearing in Tallahassee, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger, on June 19 and July 7, 1989.
APPEARANCES
The parties are represented as follows:
For Petitioner: Harold Mayo, pro se
19049 W. Marcott Drive Fort Myers, Florida 33912
For Respondent: Joseph W. Carvin, Esquire
205 Brush Street
P. O. Box 1247
Tampa, Florida 33601 STATEMENT OF THE ISSUES
The issue addressed in this proceeding is whether Petitioner has been the victim of an unlawful employment practice as defined in Chapter 760, Florida Statutes.
PRELIMINARY STATEMENT
At the hearing, Petitioner, Harold Mayo, testified in his own behalf and called seven witnesses. Petitioner offered into evidence 20 exhibits.
Respondent called two witnesses and offered into evidence 10 exhibits.
The parties filed proposed recommended orders on July 21, 1989, and August 11, 1989, respectively. Petitioner's Proposed Recommended Order was titled "Closing Argument". Petitioner's and Respondent Proposed Findings of Fact have been utilized in the preparation of this Recommended Order except where the parties' proposals were irrelevant, immaterial, cumulative or subordinate.
Specific rulings on the parties' proposals are included in the Appendix to this Recommended Order.
FINDINGS OF FACT
Petitioner, Harold Mayo, was employed by Respondent in March, 1987, through December 1, 1987. He has difficulty in controlling his emotions. He experiences rapid changes in mood. He has been diagnosed as suffering from a variety of mental disorders all of which have depression and rapid mood changes as part of their symptomatology. He often feels threatened by stressful situations, and sometimes responds to such situations by losing control of himself and crying as well as sometimes withdrawing from human contact.
The Respondent, Advocacy Center for Persons With Disabilities, Inc., ("Center") is a private, non-profit organization which receives federal funds in order to provide advocacy for persons with disabilities. The Center has existed in its present, private status since October 1, 1988. Prior to October 1, 1988, the Center was a public agency within the Governor's office known as the Governor's Commission on Advocacy for Persons With Disabilities ("Commission").
The Commission was established in 1977, by executive order of the Governor. Since its creation, the Executive Director of the Commission (now the Center) has been Mr. Jon Rossman. Mr. Rossman is an attorney.
Prior to becoming Executive Director of the Commission, Mr. Rossman worked as a staff attorney for the Association of Retarded Persons.
The Center provides legal assistance to handicapped individuals, to ensure that they receive appropriate treatment and services by agencies designed to serve them.
Specifically, the Center provides representation and advocacy under three programs: one program is designed to represent individuals with certain developmental disabilities defined by Congress. A second program is designed to represent individuals who are recipients of, or applicants for, vocational rehabilitation services from the state. A third program, the Mental Illness Protection and Advocacy ("MIP&A") program, is constituted to provide representation for mentally ill persons.
The Center employs between 20 and 30 individuals. Each of the three programs administered by the Center is headed by a program director. The Center employs approximately six or seven attorneys, and several non-lawyer client "advocates." These jobs are supported by secretarial and clerical staff.
Mr. Mayo had previously identified himself to Mr. Rossman as a former mental patient at a mental hospital, and therefore, as a "consumer" of mental health services. Mr. Mayo had indicated that he was interested in employment with the Center and in March 1987, Mr. Rossman offered employment in an OPS position to Mr. Mayo at the Commission.
Prior to his employment Mr. Mayo had sought the Commission's assistance in dealing with the Division of Vocational Rehabilitation of HRS. At the time Mr. Rossman offered employment to Mr. Mayo, Mr. Rossman was aware that the Division of Vocational Rehabilitation had determined that Mr. Mayo was "not employable." Nevertheless, aware of this determination and of Mr. Mayo's status as a mental health consumer, Mr. Rossman offered Mr. Mayo employment and created an OPS position for him at the Commission.
Mr. Mayo began his OPS employment with the Center on March 30, 1987. Mr. Rossman employed Mr. Mayo to assist the Center on two specific projects: a.
to review applications which had been received by the Center for membership on an advisory committee; and b. to assist in organizing a conference to be sponsored by the Florida Mental Health Advocates Network. He was not hired to be a client-advocate and his OPS position did not include those duties.
Mr. Mayo was assigned a space in a library/conference room in which to work. Mr. Mayo was only required to work as long as he felt able and comfortable in so doing; and was allowed to leave the office any time he felt threatened, to go home if he wanted, to talk to other employees and Mr. Rossman, to go outside and walk around in the parking lot, and to take breaks as he felt necessary when he experienced stress. He would sometimes lie on the floor and cry prior to getting back to work. There were times when Mr. Mayo took days off after experiencing a particularly emotional workday.
Mr. Rossman spent entire days and afternoons talking things out with Mr. Mayo, walking around the office complex, and discussing his employment with him. These sessions occurred both in Mr. Rossman's office and in Mr. Mayo's.
In short Mr. Rossman and other Center employees made a genuine, wholehearted effort to work with Mr. Mayo and went out of their way to accommodate him. There was absolutely no intent to unlawfully discriminate against Respondent due to his mental illness. In fact, the opposite was shown by the evidence. Mr. Rossman had a genuine desire that Respondent succeed as an employee.
On two separate occasions, Mr. Rossman called Mr. Mayo's wife, concerned due to Mr. Mayo's depression and behavior, and expressed his concern and worry about Mr. Mayo's welfare to Mr. Mayo's wife. The contact on Mr. Rossman's part was a simple gesture of human concern for not only an employee but for a person who Mr. Rossman was very interested in his well-being. Instead Mr. Mayo took great umbrage at Mr. Rossman contacting his wife. He assumed that such contact was an affront to him and was treating him as if he could not take care of himself.
On more than one occasion, Mr. Mayo tendered his resignation to Mr. Rossman. Mr. Rossman refused to accept the resignations.
On several occasions, Mr. Rossman asked Mr. Mayo if Mr. Mayo would mind Mr. Rossman's speaking to Mr. Mayo's psychiatrist, in an effort to get his psychiatrist's opinions and suggestions on what Mr. Rossman could do to make Mr. Mayo's employment experience successful. On these occasions, Mr. Mayo responded that he was insulted by the request, and did not wish Mr. Rossman to contact his psychiatrist. Again, Mr. Mayo's over- sensitivity to attempts to gain insight into his handicap interfered with his ability to perceive the true intent of his employer in making such a request. Mr. Rossman did not contact Respondent' s psychiatrist. 1/
During his employment, Mr. Mayo frequently overstepped his bounds and overstated his position. This included contacting and writing letters to various persons and agencies, writing letters to the editor of publications, contacting "Nightline," and commenting on news articles, either on Commission letterhead or while identifying himself as an employee of the Commission. Mr. Mayo spent Commission time engaged in advocacy of his personal views which was not within the duties of the OPS position for which he had been hired.
In April 1987, Mr. Mayo advised Mr. Rossman of his desire to be the Director of the MIP&A program, and further advised Mr. Rossman of his view that it was very important that the Director's position "should be occupied by a consumer, client or survivor."
Mr. Rossman began to consider another individual, Kathleen Regan, for the position of Director of the MIP&A program.2/ Mr. Rossman sought Mr. Mayo's views on the matter. Mr. Mayo expressed his opinion that he thought Ms. Regan was incompetent for the position since she was a mental health professional and a middle management employee at HRS, rather than a consumer. Mr. Mayo told Mr. Rossman of a series of concerns he had should there be "such an incompetent source" running the program. He predicted, "it would all be downhill from now on."
Ms. Regan was hired as the MIP&A Program Director effective August 1, 1987. As MIP&A Program Director, Ms. Regan would be Mr. Mayo's direct supervisor. At the time, Ms. Regan began, Mr. Rossman communicated to Ms. Regan that he strongly desired to see Mr. Mayo succeed in his employment at the Commission. He asked for her assurance that she would cooperate in that effort. She gave such an assurance.
As the first director of the MIP&A program, Ms. Regan was responsible for developing program priorities, and developing a structure for the MIP&A program. Ms. Regan found that she had a number of people who had input into the development of such priorities and structure, including the Commission's Board of Directors, the Executive Director, the 24 members of the advisory committee, and Mr. Mayo.
Ms. Regan attempted to integrate all that input into decisions on the direction and structure of the program. Ms. Regan found it difficult to integrate Mr. Mayo's own strong personal convictions about priorities and structure, but attempted to do so.
Mr. Mayo and Ms. Regan had an extremely difficult time in their working relationship.
As an example of the problems between Mr. Mayo and Ms. Regan, after it was agreed that they would meet for one-half hour, twice each week, to discuss Mr. Mayo's work, Mr. Mayo submitted a nine-item agenda for the first meeting. Ms. Regan, feeling that one-half hour was insufficient time to discuss so many items, asked Mr. Mayo if he would select two of the items for discussion. Mr. Mayo refused.
The following day, Mr. Mayo again attempted to address the entire agenda, refused to select two items for discussion, and told Ms. Regan that he would not "play by her rules."
These and subsequent meetings deteriorated,3/ and communications between Mr. Mayo and Ms. Regan broke down. Mr. Mayo told Ms. Regan that he did not consider her to be an advocate, but a "badvocate."
Mr. Mayo would undertake work activities not assigned to him without first discussing them with Ms. Regan. On a number of occasions, Mr. Mayo would engage in some such activity, embarrassing Ms. Regan when she would get a call or communication from persons outside the Commission inquiring about Mr. Mayo's conduct, and she would be entirely unaware of his activities.
Mr. Mayo and Ms. Regan experienced difficulties when Mr. Mayo sent out personal correspondence advocating personal views on Advocacy Center letterhead. This included correspondence sent by Mr. Mayo to Mr. Allen Tedder, Executive Director of the Mental Health Association of Florida.
At least one such letter was sent on Commission letterhead even though Ms. Regan had specifically instructed Mr. Mayo to have the letter redrafted on non-Commission letterhead.
Mr. Mayo and Ms. Regan had difficulties when Mr. Mayo refused to acknowledge that Ms. Regan had any right to approve or disapprove his travel requests. Part of Ms. Regan's supervisory duties was to review such travel requests.
On another occasion, Mr. Mayo refused to submit his time sheets to Ms. Regan for approval. Again, part of Ms. Regan's supervisory duties was to review and approve employee time sheets. Likewise, when Ms. Regan told Mr. Mayo that he needed to route certain documents through her for signature, Mr. Mayo made an obscene gesture to Ms. Regan three times in the course of the morning. Ms. Regan told Mr. Mayo that his conduct constituted insubordination. His response was, "Fuck you."
A frequent issue between Mr. Mayo and Ms. Regan was the issue of "partnership." Mr. Mayo asserted that he wanted to be viewed as an equal. Whenever Ms. Regan made a decision he didn't agree with, Mr. Mayo complained that she was violating her commitment to work with him, and was excluding him from the decision-making process.
Ms. Regan received complaints from members of the advisory committee about Mr. Mayo. She also received verbal complaints from Martha Larson, Administrator of the hospital program at HRS. Ms. Regan heard from at least one outsider that Mr. Mayo was advocating against her as the program director. Ms. Regan reported these problems to Mr. Rossman. They met frequently in an effort to determine how best to resolve these difficulties.
During his employment, people with whom Mr. Mayo had contact, outside the Center, complained directly to Mr. Rossman about Mr. Mayo's behavior and conduct. Many of these complaints were discounted by Mr. Rossman, who frequently defended Mr. Mayo against accusations being made about him.
Inside the office, Mr. Rossman also received complaints about Mr. Mayo. There were complaints from other employees about difficulties working with Mr. Mayo, about shouting matches, about Mr. Mayo going through mail, about telephone calls he was making, and about representations made by Mr. Mayo outside of the office, regarding office policy.
Mr. Mayo went directly to Mr. Rossman with his own complaints about Ms. Regan. At first, Mr. Rossman told Mr. Mayo that he did not want to get involved, and that Mr. Mayo and Ms. Regan should attempt to work the problems out themselves.
However, the problems between Ms. Regan and Mr. Mayo worsened. Mr. Mayo repeatedly asked Mr. Rossman to take him out from under Ms. Regan's supervision.
On September 9, Mr. Mayo submitted a written resignation in which he stated that he didn't feel his presence would serve any purpose "without direct
involvement in policy matters." Mr. Rossman refused to accept Mr. Mayo's resignation. Instead, however, he agreed to Mr. Mayo's request that he (Mayo) not work under Ms. Regan's supervision. Once again, Mr. Mayo reported directly to Mr. Rossman.
By September 9, the Governor had ordered that the Commission would become a private not-for-profit corporation effective October 1. Mr. Rossman was extremely busy making preparations for this transition and did not have the time to give Mr. Mayo as much individual attention as he had previously.
The Commission's offices at that point were on two floors, Ms. Regan's office was on the first floor, and Mr. Rossman's office was on the second floor. This period was one of transition, and eventually, all the Center's offices were consolidated on the second floor.
During the transition period, the office was very crowded. Mr. Rossman shared a corner of his office with his administrative assistant. Two lawyers shared the conference table at which Mr. Mayo had previously worked.
Mr. Mayo was moved to a work location in an alcove outside Mr. Rossman's office on the second floor.
When Mr. Mayo expressed concern about his ability to make the move, everyone in the office encouraged him, telling him that he was capable of making the move. Mr. Mayo made an attempt to change office locations. The new location did not work very well because Mr. Mayo felt exposed to other human beings.
After September 9, Mr. Mayo continued to report to work each day, and was paid for a full eight hours. During this time Mr. Mayo invented work to do since Mr. Rossman did not have enough work to keep him busy.
Following Mr. Mayo's being removed from Ms. Regan's supervision, Mr. Mayo continued to respond to matters that would be properly directed to Ms. Regan. He made calls about the MIP&A program around the state, criticizing the program and Ms. Regan, and again asserting his beliefs that the Center made a bad decision in employing her.
As one example, Mr. Mayo, without authorization, contacted people to attend a consumer conference and invited a number of people to come on scholarship. Scholarship means that the Advocacy Center would pay that individual's expenses. No one at the Center (other than Mr. Mayo) had authorized the reimbursement for their expenses. A number of such people arrived without the registrar having any advance notice that they would attend.
On another occasion, Mr. Mayo wanted certain individuals to be invited to attend a meeting between some of the staff and some of the members of the Board. Mr. Rossman advised Mr. Mayo that those individuals did not need to be involved. Nevertheless, Mr. Mayo insisted that the meeting was covered by the Sunshine Act, and that 11 members of the public were entitled to attend the meeting. On that basis, without asking permission, Mr. Mayo telephoned members of the advisory committee and invited them to this meeting.
Since Mr. Mayo had been unable to work directly for the MIP&A program director, Mr. Rossman asked Mr. Mayo to prepare a job description for his position.4/ Mr. Rossman asked Mr. Mayo to advise him on how Mr. Mayo felt that he could be of use to the Advocacy Center.
Mr. Mayo responded by typing out Respondent's Exhibit No. 6, asserting that he should be able "to advocate as a Consumer Consultant in whatever direction I choose (emphasis added)," and "as a Consumer Consultant to be kept up to date on all the workings of the MIP&A and to be involved as a consultant in that work."
Following September 9, Mr. Rossman assigned Mr. Mayo the task of rewriting a report or contract which had been prepared by Ms. Regan. Mr. Mayo refused the assignment because of his view that it was "grossly unethical" to rework another person's work product. Although he refused to work on it, Mr. Mayo objected that Mr. Rossman "had refused to allow consumers any part in writing the contract and I could not speak for all consumers . . ."
Shortly before October 8, 1987, Mr. Rossman was contacted by Allen Tedder, Executive Director of the Florida Mental Health Association, with a complaint about Mr. Mayo. Mr. Rossman replied to Mr. Tedder by letter dated October 8, 1987 stating that, as a mental health consumer, Mr. Mayo "apparently has less control over his personal feelings than might otherwise be expected," and further, that Mr. Mayo had undoubtedly "let his strong beliefs get ahead of him at times, overstating his position."
Mr. Mayo was offended by Mr. Rossman's October 8th letter because of his view that while he had the right to identify himself to others as a person with difficulty controlling his emotions, Mr. Rossman, as a professional, had no such right. Mr. Mayo felt so "demeaned" by the letter that he cried uncontrollably, left the office, and spent the rest of the afternoon crying on the floor at his doctor's office.
On October 21, Mr. Mayo left a copy of a memorandum from him to Dr. Schuchts, his psychiatrist, on the desks of both Mr. Rossman and Ms. Regan. In this memorandum, Mr. Mayo complained that he, as a consumer of mental health services, was being excluded from decision-making at the Center, and criticized advocates "who maintain [they] can speak for us."
Outlining his opinions in his October 21 memorandum to Dr. Schuchts, Mr. Mayo listed as one of them: "To continue to disobey Jon and act upon my conscience. To attend meetings for which he refuses to "empower consumers and to openly submit reports from those meetings to him."
Shortly before October 28, Mr. Gene Padgett, a close friend of Mr. Mayo's and a personal advisor to him, met Mr. Rossman for lunch. At lunch, they discussed Mr. Mayo's status, and Mr. Padgett encouraged Mr. Rossman to give Mr. Mayo a very definite set of guidelines within which to operate.
On October 29, Mr. Rossman issued to Mr. Mayo a memorandum dated the previous day.
The memorandum of October 28 began with a statement of the problems which had occurred and which Mr. Rossman felt required the setting forth of specific guidelines and limitations for Mr. Mayo's subsequent work activities. The memorandum then set forth specific assignments and guidelines for continued employment. The conditions were reasonable and nondiscriminatory. Mr. Rossman advised Mr. Mayo that he was expected to agree to the conditions if he was going to continue working for the Advocacy Center.
Mr. Rossman's purpose in giving Mr. Mayo the memorandum of October 28 was an attempt to salvage Mr. Mayo's employment. By that time, Mr. Rossman had become convinced that excess independence and insufficient direction might be contributing to the problems with Mr. Mayo's employment. He believed that setting forth strict assignments and guidelines, as suggested by Mr. Padgett, might result in a productive work experience for Mr. Mayo.
On October 29, Mr. Mayo was given the memorandum and told he must agree to its terms. Mr. Rossman had arranged for two other employees to witness the events of the meeting. Mr. Mayo asked if he could have a copy of the memorandum and if he could have until November 3 to take the document to his attorney. Mr. Rossman agreed to the request. Mr. Mayo left the office and did not return to work.
Nothing in the meeting demonstrates any discriminatory purpose or intent on the part of the Center or Mr. Rossman. Mr. Mayo's claim that the presence of the two other employees was intimidating and therefore discriminatory is simply not born out by later events and Mr. Mayo's own actions.
On November 10, Mr. Rossman received a letter from Mr. Richard Powers, a Tallahassee attorney, on behalf of Mr. Mayo. Mr. Power's letter indicated no willingness on Mr. Mayo's part to accept the conditions set out in the October
28 memorandum. The letter suggested a meeting to discuss the subject.
On November 18, Mr. Rossman, Mr. Mayo, Mr. Parker Thompson (Board Member), and Mr. Powers met at Mr. Power's office. Mr. Mayo and his attorney insisted that Mr. Mayo be allowed to return to work without conditions. Mr. Mayo's return without conditions addressing the problems in the performance of his job was not acceptable to the center.
On November 25, 1987, Mr. Rossman wrote to Mr. Powers, confirming Mr. Rossman's understanding that Mr. Mayo was insisting on a "return to work without any conditions," and reiterating Mr. Rossman's own position that Mr. Mayo could return to work "under conditions designed to address problems in his performance." Mr. Rossman agreed in the letter to hold Mr. Mayo's position open until December 1, 1987.
Mr. Rossman did not hear further from Mr. Mayo or his attorney prior to, or following December 1, 1987. The only conclusion that can be drawn from Mr. Mayo's action or inaction is that he quit his employment with the Center when he determined that he was not going to be allowed to do as he pleased in his employment.
In January 1988, following Mr. Mayo's departure, the Advocacy Center hired an individual, to fill the position of client advocate for the MIP&A program. The individual hired has a history of mental illness -- specifically, bipolar depression.
Other than Mr. Mayo, the Commission/Center has employed a number of individuals with a variety of handicaps. The former Program Director for the Developmentally Disabled Program was a person with cerebral palsy who chose not to continue in employment with the Commission when it converted to private status. The Center's CAP Program Director is a wheelchair user, due to childhood polio. She has her desk up on blocks, high enough to accommodate her wheelchair. One of the Center's attorneys has epilepsy. A CAP client advocate for the Center is blind. Another Center employee has a hearing impairment.
During his employment, Mr. Mayo was not able to accept supervision and was unable to work in the structured environment at the Center. There was no substantial evidence presented which establishes a nexus between Mr. Mayo's shortcomings and his mental illness. Without such evidence it is difficult to say what role Mr. Mayo's handicap played in his demise. A handicap does not entitle the individual to accommodation in areas unrelated to that handicap. Therefore, the evidence did not demonstrate any discrimination by the Center due to that handicap.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987).
Respondent is an employer within the meaning of Section 760.02, Florida Statutes, the Florida Human Rights Act of 1977.
Section 760.10, Florida Statutes, makes it unlawful for an employer to "discriminate against any individual. . . because of such individual's handicap.
. ."
Petitioner, has the ultimate burden of proving by a preponderance of the evidence that Respondent has committed an unlawful employment practice against him. Chapter 760, Florida Statutes. See Shipp v. Kaiser Aluminum & Chemical Corp. 4 FALR 256-A 1981)(FCHR 1981) In Re School Board of Pinellas County v. Rateau, 449 So.2d 839 (Fla. App. 1st Dist. 1984) and Hudson v. Affiliated of Florida, Inc., 8 F.A.L.R 643 (1986) which adopt the Title VII order and allocation of proof under McDonnell Douglas v. Green, 411 U.S. 792 (1973) and Burdine v. Texas Department of Community Affairs, 450 U.S. 248 (1981).
Mr. Mayo's primary claim (and the only claim identified in his charge of discrimination filed with FCHR) was that he was "constructively discharged" because of his handicap. Mr. Mayo must establish a prima facie case of discrimination in regards to his discharge.
In a discharge case, a Petitioner establishes a prima facie case by showing: (1) he or she is a member of a protected class, (2) he or she was qualified for the job, (3) he or she was discharged, and (4) after discharge, the position was filled by someone outside the protected category. Marks v. Prattco, 607 F.2d 1153 (5th Cir. 1979); Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979).
By statute handicapped individuals are members of a protected class. Therefore, Petitioner must demonstrate that he is a member of the class of handicapped individuals. Failure by the Petitioner to make such proof requires dismissal of the petition. Confer v. Golden Crust Bakery, Inc., 7 FALR 5341 (FCHR 1985). Likewise, failure to submit medical evidence to substantiate a claimed handicap can result in dismissal of a petition based upon alleged handicap discrimination. Carter v. Public Super Markets, FCHR Determination No. 86-0093.
The Florida Human Rights Act does not define the term "handicap". However, a definition of "handicap" was adopted by the Florida Commission on Human Relations in Fenesy v. GTE Data Services, Inc., 3 FALR 1764-A (FCHR 1981);
and Brannon v. Brevard County Sheriff's Department, 4 FALR 604-A(FCHR 1982), reversed on other grounds, 429 So.2d 1235 (Fla. 5th DCA 1983). In those cases, "handicap" is defined as follows:
Generally, "handicap" connotes a condition that prevents normal functioning in some way:
"a person with a handicap does not enjoy, in some manner, the full and normal use of his sensory, mental or physical faculties."
In this case, the Petitioner, Mr. Mayo, has difficulty controlling his emotions and, on occasions, reacts by crying for a period of time before being able to continue his work and at times withdraws from human contact. Respondent concedes that Mr. Mayo's difficulty in controlling his emotions as outlined above constitutes a handicap. Additionally, it was clear from Petitioner's conduct at the hearing that he meets the definition of a mentally handicapped person.
What is lacking in this case, however, is any expert testimony regarding (1) the medical nature of the disability; 6/ (2) the scope of the disability (i.e., whether certain behaviors of Mr. Mayo were, or were not, related to his disability; (3) the manner in which Mr. Mayo's emotional disability affected his ability to work; or (4) the effect which various actions taken, or which might have been taken, by the Center, would have had on Mr. Mayo's ability to work successfully for the Center. Without such evidence it is impossible to determine whether any discrimination has occurred on the facts of this case. Petitioner has therefore failed to establish any unlawful discrimination based on Petitioner's handicap by Respondent.
In addition to demonstrating the nature of his handicap, Petitioner must demonstrate that he was qualified for the job for which he was hired. The
U.S. Supreme court in interpreting similar provisions of the Vocational Rehabilitation Act of 1973, stated "an otherwise qualified person is one who is able to meet all of a program's requirements in spite of his handicap." Davis
v. Southeastern Community College, 442 U.S. 397, 20 CCH Employment Practices Decisions 30,003 (U.S. 1979). Therefore, it is not necessary to determine whether certain attributes of behavior by Mr. Mayo 7/ were related to his disability, or were not related to his disability. If that behavior rendered Mr. Mayo unqualified for employment at the Center, it makes no difference whether such behavior was attributable to his disability -- he is not "qualified" in either case.
Acceptance of supervision or the ability to disagree with that supervision without becoming a disruptive force was key to Petitioner's employment position. He was a subordinate employee. Yet, Mr. Mayo was entirely unable to accept supervision by his program director, Kathleen Regan or to disagree with that supervision without being a disruptive force. If Ms. Regan disagreed with Mr. Mayo, and made a decision contrary to his wishes, he perceived this not only as a violation of her agreement to attempt a "partnership" with him, but as an insult. Ms. Regan's attempts at supervision were entirely legitimate and were not related to Mr. Mayo being a mentally handicapped person. Mr. Mayo's response to that supervision went well beyond the reasonable bounds of demonstrating unhappiness with his supervisor.
Mr. Mayo's inability to accept supervision also extended to Mr. Rossman after he was removed from Ms. Regan's supervision.
The fact that there was no formal job description does not indicate that there was a lack of direction or control. There was a lack of work for Mr. Mayo to perform. The evidence indicates there was direction and attempted control of Mr. Mayo's position. However, Mr. Mayo proved himself unable to accept that direction and control. An ability or willingness to accept a role as part of a structured organization is a necessary requirement for employment at the Center. Petitioner is "required to show that he was `qualified' in the sense that he was doing his job well enough to rule out the possibility that he was fired for inadequate job performance . . ." Loeb v. Textron, supra, (600 F.2d at 1013-14.) The evidence demonstrated that Mr. Mayo demonstrated he lacked either the ability or the willingness to work as part of that structure. Petitioner has therefore failed to carry his burden of proving that he was qualified for the position. 8/
The third element which Petitioner must prove in order to establish a prima facie case, is that he was discharged (Marks v. Prattco, supra.) In this case, Petitioner has charged that he was constructively discharged. Constructive discharge occurs when an employer causes an employee's working conditions to be intolerable.
In Holovak v. State of Florida, 4 FALR 1786-A (FCHR 1981), the FCHR noted:
A constructive discharge requires some sort of aggravated circumstances, in addition to inequitable working conditions. Work
conditions must have been made so difficult that any reasonable person in such a position would have felt compelled to quit.
As for the claim of "constructive discharge" articulated in Mr. Mayo's charge of discrimination filed with the FCHR, it is apparent that the gravamen of this theory in Mr. Mayo's position that it was Mr. Rossman's memorandum dated October 28, 1987, which constructively "discharged" Mr. Mayo. It is ironic, and unfortunate, that Mr. Mayo simultaneously complains (1) that he was given insufficient instruction on precise job requirements, and (2) that when Mr. Rossman issued him such a precise set of guidelines, this forced his resignation. The two positions cannot be reconciled.
Both in his testimony and in his charge of discrimination filed with the FCHR, Mr. Mayo made clear that his real objection to the October 28 memorandum was because parts of the memorandum were "untrue". In his testimony, Mr. Mayo made clear that it was portions of the material preceding the list of job assignments in the October 28 memo to which he objected. Based upon other record testimony and evidence, the numerous assertions contained on the first two pages of Mr. Rossman's memorandums of October 28 clearly are true. The legal issue is whether a reasonable person would have felt compelled to resign as a result of the October 28 memorandum.
The evidence does not demonstrate that a reasonable person would feel compelled to resign. First, there were no inequitable working conditions being placed on Petitioner. Mr. Mayo simply did not care for the introductory language of the memo and the way in which it was presented to him. Neither the introductory language nor the memo's presentation were out of the ordinary and would not have forced a reasonable person to resign. He was not forced to quit
but only required to accept certain reasonable conditions of employment. Moreover, he was given time to obtain legal advice and think the memo over before making a decision.
Additionally, Mr. Mayo's conduct must be viewed in light of the position taken by him, and his attorney at the time, that he would not agree to return to work unless all conditions of his return were lifted. These specific rules of conduct for Mr. Mayo's future work were designed to help him succeed, and his insistence that all conditions be lifted was patently unreasonable. This is particularly true in light of the offer previously made by Mr. Rossman, and repeated in the memorandum of October 28, 1987: "If you believe some other accommodation is necessary, I would be happy to discuss this with you and your physician."
In light of all the evidence, Mr. Mayo was neither discharged nor constructively discharged, and he therefore failed to prove the third element of his prima facie case.
The final element which Petitioner must prove in order to establish a prima facie case is that his position was filled by someone outside his protected category. In one sense, Mr. Mayo was not replaced by anyone at all. He occupied an OPS position which was temporary in nature. He was hired for two specific tasks. Those tasks had been completed. No one else was hired to fill Petitioner's OPS position. Petitioner had not been employed in the permanent client advocate position. However, Mr. Rossman had hoped to eventually place Mr. Mayo in that position. Mike Wilson was hired as an MIP&A client advocate in January. Mr. Wilson has bipolar depression -- the same or a similar emotional condition as that of Mr. Mayo. In this sense, Mr. Mayo was "replaced" by Mr. Mike Wilson. It is clear from this evidence that Mr. Mayo was not discharged, constructively or otherwise, on account of his disability.
Mr. Mayo has therefore failed to prove a prima facie case. Moreover, he has not established the other elements required for a prima facie case. He has not shown that he was qualified for the position, that he was constructively discharged, or that he was replaced by a non-handicapped person. The petition for relief should therefore be dismissed.
Assuming arguendo that Mr. Mayo had proven a "prima facie case" the inquiry would not end. The burden of proof would shift to the employer to articulate a legitimate, non-discriminatory reason for its actions.
There were, of course a number of aspects to Mr. Mayo's conduct during his employment with the Center which had become problems and which caused Mr. Rossman to issue the October 28 memorandum. These problems were not all known to Mr. Rossman as a matter of his own personal knowledge. Many of the problems had simply been reported to him by others. This fact does not detract from the legitimacy of his actions. Indeed, it is relatively unusual that an employer takes action on the basis of conduct which he or she has personally observed, as opposed to conduct that has simply been witnessed and reported by others. Thus, in Halsell v. Kimberly-Clark, supra, the employer had received repeated complaints from a variety of sources regarding the plaintiff's performance. The court found that evidence of these complaints "more than adequately satisfied" the employer's burden of articulating a legitimate, non-discriminatory reason for Halsell's discharge. The court stated,
The defendant employer need not persuade the court that the proffered reason in fact
justified the discharge because the issue is not whether the reason articulated by the employer warranted the discharge, but whether the employer acted for a non-discriminatory reason.
Here, the evidence clearly demonstrated that Respondent had legitimate, non- discriminatory reasons for the issuance of its October 28 memorandum. Mr. Mayo himself had complained about a lack of specific assignments and instructions.
When Petitioner was asked to supply a job description, he supplied a totally inadequate and unacceptable effort. When an effort by Respondent toward such a description was made in the October 28 memorandum, Petitioner left. Even then Petitioner was given more than enough time to return. He chose not to. No substantive evidence was presented which demonstrated Respondent's action was a pretext for discrimination on the basis of handicap. See DOE v. Regien 13 Mental Health-Mental Retardation Commission, 704 F.2d 1402 (5th Cir. 1983), Schmidt v. Bell 33 FEP 839 (E.D. Penn, 1983). Without such evidence, deference to an employer's reasons for action is required, especially where, as here, attempts at satisfying the employee's problems in employment are made. The Center therefore met its burden of articulating a legitimate non- discriminatory reason for its action or, in this case, acquiescence in Petitioner's action.
The Petitioner has failed to prove that Respondent's reasons are pretextual, or that Petitioner was unlawfully discriminated against on the basis of his handicap within the meaning of the Florida Human Rights Act.
Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Petitioner's Petition be dismissed.
DONE and ENTERED this 6th day of December, 1989, in Tallahassee, Leon County, Florida.
DIANE CLEAVINGER
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904)488-9675
Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1989.
ENDNOTES
1/ Mr. Mayo throughout his employment felt that only he could give input on handling his handicap. Along this same vein, Mr. Mayo felt that he should be consulted every time his job or work duties were discussed by his supervisors. What Mr. Mayo seems to overlook is the fact that he was afforded and had such input, albeit not necessarily at the same time as his supervisors. Mr. Mayo
believes such "exclusion" is discriminatory, insulting, and akin to the treatment a patient receives in a mental institution. The instances Mr. Mayo cites as discriminatory are the instances where his opinions were not accepted and followed. However, as much as such top down management is commonplace and is not discriminatory simply because it does not include the employee in supervisor discussions.
2/ Ms. Regan has a Bachelor's Degree in psychology, and a Master's Degree in Counseling and Human Services. Following graduation from the master's program in December 1983, Ms. Regan began employment with the Department of Health and Rehabilitative Services, in HRS's mental health program. Ms. Regan was one of the founding organizers of a local family support group in Tallahassee, now known as the Tallahassee Alliance for the Mentally Ill, which she started in 1982. Ms. Regan was also a member of the board of directors of a local mental health association, and has a family member who is mentally ill.
3/ The deterioration included shouting matches.
4/ None of the employees of the Center had written job descriptions.
5/ After the final hearing was under way in this matter, Petitioner for the first time identified two additional factual bases for his claim for relief:
The Advocacy Center's alleged failure to provide the Petitioner with an office containing four walls and a door; and (2) The Center's alleged failure to provide him a job description. These factual allegations were never made the subject of a charge of discrimination filed within 180 days of the alleged occurrence, as required by Section 760.10(10), Florida Statutes. The charge which the Petitioner did file with the Florida Commission on Human Relations makes no mention of a failure by the Center to provide Mr. Mayo a four-walled office with a door, failure to provide a job description or any failure to accommodate his alleged handicap in any respect whatsoever. However, giving Petitioner's charge of discrimination the broadest possible reading and to the extent that the failure to provide a private office or a job description may have arguably contributed to Petitioner's alleged constructive discharge, it is appropriate that the evidence presented at the hearing on these issues be addressed in this Recommended Order.
6/ Evidence was presented as to the name currently given to identify Petitioner's mental illness. However, Petitioner's diagnosis has changed over the years. Apart from a convenient label, this evidence is of limited value in this case.
7/ For example, his insistence in participation in all decision making, his use of his position to pursue personal goals, his unwillingness to accept supervision, or his insubordination in making obscene gestures and telling his program director to "Fuck you".
8/ The sole evidence presented by Mr. Mayo to suggest that he was qualified for the position was the pay increase he requested and received. In Halsell v.
Kimberly-Clark, 683 F.2d 285 (8th Cir. 1982), the Eight Circuit court of Appeal addressed a similar issue, and stated:
To establish a prima facie case of discrimination, the plaintiff must produce sufficient evidence to support an inference that the defendant employer based its employment decision on an illegal criterion
. . .In considering whether Halsell has
produced sufficient evidence to support such an inference, this court must determine whether Halsell showed that he was qualified for the job in the sense that his performance met Kimberly-Clark's legitimate expectations. Halsell's evidence on this issue consisted solely of his testimony that he had received a pay raise two months before his discharge and a performance rating of `provisional.' We agree with the District Court's determination that this evidence did not establish that Halsell was qualified for the job, and thus, did not raise an inference of . . . discrimination.
Halsell recognizes the fact that there are many reasons for giving an employee a pay raise which are not necessarily related to whether the employee meets the many and varied qualifications for continued employment. As in Halsell, Mr.
Mayo's pay raise does not establish that he was qualified for continued employment when viewed against the insurmountable evidence that Mr. Mayo was an employee running amuck.
APPENDIX
Petitioner's Proposed Recommended Order titled "Closing Argument" did not contain any statements of fact which were separable from the legal argument contained therein. Moreover, the argument, in part, was based on evidence which was irrelevant to the issues in this case.
The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 16, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 57, 58, 59, 60, 61, 62, 63, 64, 65, 67, 68, 69, 70, 71, 72, 73, and 74 of Respondent's Proposed Findings of Fact are adopted in substance, in so far as material.
The facts contained in paragraphs 14, 56, and 66 of Respondent's Proposed Findings of Fact are subordinate.
The facts contained in paragraphs 4, 5, 7 and 8 of Petitioner's Proposed Findings of Facts were not shown by the evidence.
The facts contained in paragraph 17 of Respondent's Proposed Findings of Fact are irrelevant.
COPIES FURNISHED:
Harold Mayo
19049 W. Marcott Drive Fort Myers, Florida 33912
Joseph W. Carvin
205 Brush Street
P. O. Box 1427 Tampa, Florida 33601
Donald A. Griffin Executive Director
Human Relations Commission
325 John Knox Road Building F, Suite 240
Tallahassee, Florida 32399-1570
Dana Baird General Counsel
Human Relations Commission
325 John Knox Road Building F, Suite 240
Tallahassee, Florida 32399-1570
| Issue Date | Proceedings |
|---|---|
| Dec. 06, 1989 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 26, 1990 | Agency Final Order | |
| Dec. 06, 1989 | Recommended Order | No evidence to support nexus between petitioner's difficulties and his handicap. No discrimination on basis of handicap. Petition dismissed. |
