STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ERNEST ARNOLD, )

)

Petitioner, )

)

vs. ) CASE NO. 92-3755

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled cause on August 25, 1992. As agreed by the parties, the hearing officer participated by telephone conference hookup from Tallahassee, Florida. The parties and their witnesses participated from a conference room in the Hurston Building, Orlando, Florida.

APPEARANCES

For Petitioner: Reverend Charles Fulse

1607 Holden Avenue, Apt. C Orlando, Florida 32839

For Respondent: Eric D. Dunlap, Esquire

Assistant District Legal Counsel Department of Health and Rehabilitative Services

400 W. Robinson Street, Suite S-827 Orlando, Florida 32801

STATEMENT OF THE ISSUES

In his charge of discrimination and petition for relief, Petitioner alleges that Respondent violated Section 760.10, Florida Statutes, by terminating him and discriminating against him on account of his race. The issue in this proceeding is whether that violation occurred. Respondent's motion to dismiss also raises a threshold issue as to the timeliness of Ernest Arnold's petition for relief.

PRELIMINARY STATEMENT

Ernest Arnold's petition for relief and charge of discrimination, and the Florida Commission on Human Relation's (FCHR) determination: no cause, were forwarded to the Division of Administrative Hearings on June 22, 1992.

The agency, Department of Health and Rehabilitative Services (HRS) filed a response which included a motion to dismiss on July 8, 1992.

The hearing was set for August 25, 1992, and at the hearing officer's request, the parties agreed to conduct the proceeding by conference telephone.

At the commencement of the hearing, Rev. Charles Fulse, an advocate and community organizer of the NAACP was, at Petitioner's request, qualified as a "qualified representative" pursuant to Rule 22I-6.008, Florida Administrative Code.

The parties presented evidence and argument on Petitioner's motion to dismiss. The motion was taken under advisement and a recommendation as to dismissal is included in this recommended order.

Petitioner testified in his own behalf and submitted two exhibits, received into evidence. Respondent presented the testimony of Marie Fleming, and its seven exhibits were received into evidence.

After the hearing Respondent filed its proposed recommended order, which proposed order is substantially adopted here. Petitioner filed a two page summary of argument styled "Proposal for Resolution". No transcript was filed.

FINDINGS OF FACT

1. Ernest Arnold, a black male, was hired in mid-1988 as a general kitchen worker, "Other Personal Service" (OPS), at the Orlando Regional Juvenile Detention Center, a facility operated by the Department of Health and Rehabilitative Services (HRS). He was terminated on June 8, 1989 due to unacceptable attendance.

   
   

2. In July, 1989 the agency rehired Mr. Arnold as a Detention Care Worker II, a regular career service position, at Hilltop, another residential treatment center for juveniles. The facility closed in December, 1989, and Mr. Arnold was transferred back to the Orlando Regional Juvenile Detention Center. His immediate supervisor was Marie Fleming, a black female.

   
   

3. On February 7, 1990, Marie Fleming conducted an employee-supervisor conference with the Petitioner. During this conference, the appropriate use of sick leave and the importance and necessity of reporting to work on time were subjects that were discussed with the Petitioner. The Petitioner refused to sign the employee-supervisor conference sheet.

   
   

4. The Petitioner utilized sick leave on February 16 and 17 and submitted medical documentation for this sickness (Petitioner's exhibit #1). The documentation was a form from Orlando Regional Medical Center emergency room prescribing medication for back pain and chest pain and indicating he could return to work on February 18.

   
   

5. On February 22, 1990, the Petitioner was terminated from his Detention Care Worker II position due to his excessive use of sick leave and leave without pay during his probationary status.

   
   

6. According to the Employee Handbook, "Employees who have not attained permanent status in the Career Service System may be dismissed for the first occurrence of an offense or deficiency (Page 28, Respondent's exhibit #5). On Page 29 of the handbook, excessive absence is defined as: "An attendance record of recurring absences even though all or a majority of the absences were necessary and/or excused. This also includes a pattern of absences by an

   employee, such as consistent absences on the day preceding or following the employee's regular days off or absence on the same day of each week or month." The Petitioner received a copy of the Employee Handbook on July 17, 1989.

   
   

7. The Petitioner's time sheets from July 20, 1989 through March 1, 1990 (Respondent's exhibit #3) indicate the following:

Date Type of Leave Amount Taken

1. Petitioner acknowledged those absences and also acknowledged that it was important in a juvenile residential facility to have employees present during their shifts. Last minute notices of absence would require other staff to have to cover the shift by working overtime. Several of Ernest Arnold's leave times were in conjunction with regular days off, causing a concern by his supervisor that he was abusing leave privileges.

   
   

2. Ernest Arnold feels that his termination was due to a "vendetta" but he did not describe that vendetta or ascribe any motive or particular responsible individual or group. He claims that other employees were given more favorable treatment and named one individual, Sarah Burch, a white female, who was absent for several days, brought a medical excuse and was not terminated. Mr. Arnold produced no evidence of the more favorable treatment and bases his claim on gossip among the employees at the detention center. Ms. Fleming never supervised Ms. Burch and is unfamiliar with her employment history.

   
   

3. Mr. Arnold was rehired by the agency on November 17, 1990. Less than two weeks later, Ms. Fleming was required to evaluate his performance. She rated him "achieves" performance standards in every category, including compliance with attendance and leave. The evaluation notes that she had not been able to observe the employee's recent performance for an adequate amount of time upon his return.

   
   

4. After Mr. Arnold filed his complaint of racial discrimination with the Florida Commission on Human Relations (FCHR), and after that agency made its "no

   cause" determination, he was given a deadline to file either a request for redetermination or a request for hearing/petition for relief. In a letter dated March 6, 1992 from the Executive Director of FCHR, Mr. Arnold was given an extension of time to file a request for redetermination and a new deadline of April 13, 1992 was specifically and unambiguously provided.

   
   

5. Ernest Arnold's petition for relief was filed with FCHR on April 17, 1992, four days late. Mr. Arnold states that he was confused about the deadline as he did not have an attorney. He presented no other basis for a finding of excusable neglect.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 120.57(1), F.S. (1991).

   
   

7. The Florida Human Rights Act, Section 760.01-760.10, F.S. (1991), provides that it is an unlawful employment practice for an employer to discharge an employee on the basis of race. Section 760.10(1)(a), F.S. (1991).

   
   

8. The Florida Human Rights Act is patterned after Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e, et seq., School Board of Leon County v. Hargis, 400 So.2d 103, 108 N.2 (Fla. 1st DCA 1981); Maher v. Beacon- Donegon Nursing Home, 8 FALR 1416, 1425 (FCHR 1985). Therefore, precedent construing similar provisions of Title VII should be accorded great deference. Simmons v. Eastern Airlines, Inc., 10 FALR 6244, 6250 (FCHR 1988).

   
   

9. Where a plaintiff alleges unlawful employment discrimination, the plaintiff has the ultimate burden of proving by the preponderance of the evidence that the defendant intentionally discriminated against the plaintiff. McDonnell Douglas v. Green, 411 U.S. 792, 804 (1973); Irby v. Allstate Ins. Co.,

   12 FALR 2034, 2037 (FCHR 1989); Martin v. Monsanto Co., 10 FALR 3886, 3896 (FCHR 1988). Since discriminatory motive or intent is seldom capable of proof by direct evidence, the Untied States Supreme Court has established a multi-step analytical model which allows a court to infer discriminatory motive or intent on the basis of circumstantial evidence. Perryman v. Johnson, 698 F.2d 1138, 1141 (11th Cir. 1983), citing McDonnell Douglas, 411 U.S. at 802-804. See also Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-256 (1981). The Florida Commission on Human Relations (FCHR) has adopted this analytical model in analyzing cases under the Florida Human Rights Act. School Bd. of Leon County v. Weaver, 556 So.2d 443, 444 n.2 (Fla. 1st DCA 1990); Kilpatrick v. Howard Johnson Co., 7 FALR 5468, 5475 (FCHR 1985).

   
   

10. FCHR has adopted these elements from the federal courts for a prima facie case in discharge cases: the employee must prove 1) that he belongs to a group protected by the statute; 2) that he was qualified for the job; 3) that he was terminated; and 4) that after his termination, the employer hired a person not in petitioner's protected class or retained those having comparable or lessor qualifications, not in the protected class. Kilpatrick, supra, 5475-6.

    
    

11. Ernest Arnold has failed to produce competent evidence sufficient to make a prima facie case as, even though he proved the first three elements described above, no evidence whatsoever was provided as to who was hired to replace him or as to other employees', most notably, Ms. Burch's circumstances.

12. Even if he had made that prima facie case, the employer has adequately rebutted any presumption of discrimination with its evidence of the employees' unsatisfactory attendance record. See Burdine, supra, 450 U.S. at 254. Nothing in the record of this proceeding suggests that the agency's proffered basis for termination was a mere pretext.

    
    

13. Since Petitioner has failed to meet his burden of proof as to the substantive issue of discrimination, it is unnecessary to consider the excuse he has offered for failure to timely file his petition for relief. His filing was four days late, but the agency was not prejudiced by that brief late filing. In similar situations appellate courts have been reluctant to consider the filing deadline as jurisdictional. See, for example, Dept. of Environmental Regulation

v. Puckett Oil, 577 So.2d 988 (Fla. 1st DCA 1991).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED: that Ernest Arnold's petition for relief be DISMISSED. DONE AND RECOMMENDED this 28th day of October, 1992, in Tallahassee,

Florida.

MARY W. CLARK

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 28th day of October, 1992.

COPIES FURNISHED:

Eric D. Dunlap, Esquire Assistant District Legal Counsel Department of Health and

Rehabilitative Services

400 W. Robinson Street, Suite S-827 Orlando, Florida 32801

Reverend Charles Fulse 1607 Holden Avenue, Apt. C Orlando, Florida 32839

Margaret Jones, Clerk Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4113

Dana Baird, Esquire General Counsel

Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4113

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT TO THE FLORIDA COMMISSION ON HUMAN RELATIONS WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST TEN DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONSULT WITH THE FLORIDA COMMISSION ON HUMAN RELATIONS CONCERNING ITS RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER.

Docket for Case No: 92-003755

Orders for Case No: 92-003755