STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONN M. PATTERSON, )

)

Petitioner, )

)

vs. ) CASE No. 92-5312

)

CITY OF LAKELAND, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above- styled case on November 24, 1992, at Lakeland, Florida.

APPEARANCES

For Petitioner: Robert H. Grizzard, II, Esquire

P.O. Box 9992

Lakeland, Florida 33802-0992

For Respondent: Timothy J. McCausland, Esquire

2285 Massachusetts Avenue

Lakeland, Florida 33801-5006 STATEMENT OF THE ISSUES

Whether Petitioner was discriminated against in employment by reason of handicap.

PRELIMINARY STATEMENT

By Petition for Relief filed August 3, 1992 Donn M. Patterson, Petitioner, seeks re-employment and damages, including attorney's fees, resulting from his original dismissal from his position as Water Plant Operator II and his denial of re-employment subsequent thereto as a Water Plant Operator I. As grounds therefor it is alleged that Respondent discriminated against Petitioner when Petitioner was dismissed from his employment in June 1989 after he was incapacitated for work following a motorcycle accident in which he received extensive head injuries; and again in November of 1990 when Petitioner was not selected for employment as a Water Plant Operator I, although better qualified than the applicant selected.

In response thereto Respondent contests allegations regarding Petitioner's prior employment as irrelevant because this employment was not the subject of a timely filed complaint. Respondent otherwise denies the allegations of discrimination by reason of Petitioner's handicap. At the commencement of this hearing the parties stipulated that the only issue remaining for resolution is

whether the City's stated reasons for failing to rehire Petitioner are pretextual. Petitioner's termination in 1989 is no longer an issue.

Thereafter Petitioner testified in his on behalf, Respondent called two witnesses and 11 exhibits were offered into evidence. All were admitted except Exhibit 9 to which the objection was sustained. Proposed findings timely submitted by the Respondent are accepted. Those not included below were deemed unnecessary to the conclusions reached. Petitioner did not timely submit proposed findings. Having fully considered all evidence presented I submit the following:

FINDINGS OF FACT

1. Donn M. Patterson, Petitioner, was employed by the City of Lakeland, Florida as a Water Plant Operator I (WPO I) in 1982 and was promoted to Water Plant Operator II (WPO II) in 1985 or 1986 after obtaining his Class C WPO license.

   
   

2. In July 1988 Petitioner was involved in a motorcycle accident in which he received serious head injuries and was unable to return to work for nearly one year. Because of his extended absence he was terminated on June 26, 1989. (Ex. 10).

   
   

3. In 1990 Respondent had a vacancy for the position of WPO I and advertised for applicants for this position. Petitioner was one of those applicants.

   
   

4. WPO I is an entry level position for which Petitioner met all the requirements.

   
   

5. Petitioner has completed more than two years of college and, on the examination given to the 60-65 applicants for the WPO I position, Petitioner received a higher score than did the individual who was hired, Perry Cochran.

   
   

6. Petitioner testified that he went to the water plant and went through the various tasks that water plant operators perform while on duty, and that he, with some minor adjustments, could perform all of those functions.

   
   

7. No medical evidence was presented that Petitioner could or could not perform the duties required of a WPO I. However, the stipulation of the parties that the only issue for resolution is whether Respondent's stated reason for not employing Petitioner is pretextual, removes the requirement that Petitioner demonstrated that he is in the covered position of handicap.

   
   

8. Petitioner's supervisor while he was employed by the City of Lakeland, John Sluski, is presently Superintendent of Production. Sluski has worked his way up in the Lakeland Water Department from WPO I, II, and III to Chief Operator, temporary superintendent and superintendent. Most of the time while Petitioner was employed by Lakeland Sluski was Chief Operator whose principle function was to supervise water plant operations and water plant operators.

   
   

9. A municipal water plant is a 24 hour per day operation with three shifts each 24 hours. The day shift (from 6:45 a.m. to 2:45 p.m.) has a lead operator (WPO III) and 3 or 4 WPO IIs. The afternoon shift (2:45 - 10:45) has a lead operator, one or two WPO IIs and the midnight shift has a lead operator only part of the time and a WPO II in charge the balance of the time with another WPO II and a WPO I.

10. Petitioner generally received satisfactory performance evaluations during the period from 1982 until 1985 as a WPO I. His evaluation as a WPO II in July 1986 was also satisfactory; however, his evaluation in August 1987 (Ex.

    2) was decidedly below his previous evaluations and contained numerous adverse comments about Petitioner's performance and attitude.

    
    

11. Similarly, Petitioner was recommended for merit pay increases each time he was eligible except in August 1987. (Ex. 3)

    
    

12. Although Petitioner's evaluation in August 1987 showed only 8 days Petitioner was late for work, Mr. Sluski testified that Petitioner was frequently late reporting for his shift and that this was irritating to the person he was to relieve and destructive of morale at the plant. This lateness varied from a few minutes to an hour or more and the person to be relieved had to remain on duty until Petitioner relieved him. During the period between December 1983 through January 1987 the time cards (Ex 7) showed Petitioner late reporting for work some 166 times.

    
    

13. When Sluski spoke to Petitioner about his tardiness Petitioner's attendance would improve for a short while but then revert.

    
    

14. When Sluski received Petitioner's application for the WPO I position in 1990 he called Petitioner's latest employer, The City of Dundee, and was told Petitioner had been terminated. This factor plus the numerous times Petitioner had been late for work while employed by the Lakeland Water Department led Sluski not to interview Petitioner for the position and to employ Perry Cochran.

    
    

15. Petitioner testified, without contradiction, that he was terminated by the City of Dundee because he lived too far away to be on call in an emergency situation which the job required.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

17. This case involves an allegation of disparate treatment of Petitioner by reason of his handicap. By virtue of the stipulation of the parties at the commencement of the hearing that the sole issue to be resolved is whether the reasons given by Respondent for failure to hire Petitioner as a WPO I is pretextual, the stipulation necessarily includes a finding that Petitioner has established a prima facie case.

    
    

18. Once the Petitioner has succeeded in proving all the elements necessary to establish a prima facie case, the employer must then articulate some legitimate, nondiscriminatory reason for the challenged employment decision. The employer is required only "to produce admissible evidence which would allow the trier of fact to conclude that the employment decision had not been motivated by discriminatory animus". Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248.257 (1981). The employer "need not persuade the court that it was actually motivated by the proffered reasons. . . it is sufficient if the employer's evidence raises a genuine issue of fact at to whether it discriminated against the plaintiff." id at 254-255. This burden is characterized as "exceedingly light". Perryman v. Johnson Products Co., Inc., 698 F.2d 1138 (11th Cir 1983).

19. Once the employer articulates a legitimate reason for the actions taken, the burden shifts back to the Petitioner who must prove that the reason offered by the employer was not the true reason, but is merely a pretext. Based upon the stipulation of the parties this is the sole issue to be decided in this case. The employer need not prove that it was actually motivated by the articulated nondiscriminatory reasons or that the hired applicant was more qualified than the Petitioner. Texas Dept. of Community Affairs v. Burdine, at 257-8.

    
    

20. In Burdine the Supreme Court emphasized that the ultimate burden of persuading the trier of fact that the Respondent intentionally discriminated against the Petitioner remains at all times with the Petitioner. id at 253. The Court recently confirmed this principle in Price Waterhouse v. Hopkins, 109 S.CT 1775 (1989).

    
    

21. In Price Waterhouse v. Hopkins, the Court examined the parties' respective burdens of persuasion where the plaintiff has proven with direct evidence that the employer's actions were motivated by discriminatory animus. A plurality of the Court held that in such a case, the employer must prove by a preponderance of the evidence that it would have made the same decision even if discriminatory animus had not been a motivating part of its decision.

    
    

22. The Court cautions, however, that the holding does not alter the Burdine burden of proof allocation. The employer only bears the burden after the plaintiff has proven discriminatory motivation. In a concurring opinion, Justice O'Connor explained that the application of the rule is limited to mixed- motive cases, that is, where the employer has created substantial uncertainty as to causation by knowingly giving substantial weight to an impermissible criterion.

    
    

23. In the instant case the only issue is whether the employer's stated reason for failing to hire Petitioner is pretextual. This given reason was Petitioner's record of tardiness reporting for duty during the 7-odd years he was employed by the City of Lakeland. Where employees work shifts and the job requires a person to be on duty at all times, these employees expect their relief worker to appear on time. Tardiness in relieving a fellow employee creates resentment on the part of the employee who has to remain on duty past the time he was supposed to be relieved and is disruptive to morale.

    
    

24. Even if we assume that Respondent's failure to hire Petitioner was influenced by Petitioner's handicap, under the Price Waterhouse rationale the question becomes, would Respondent have hired Petitioner if he had not been handicapped? The answer to that is no. It is most unlikely that the City would have rehired an employee with Petitioner's attendance record over the 7-odd years he worked for the City.

    
    

25. From the foregoing it is concluded that Respondent's stated reasons for failing to hire Donn M. Patterson as a WPO I were not pretextual and the City of Lakeland did not discriminate against Petitioner by reason of his handicap.

RECOMMENDATION

It is recommended that the Petition for relief from an unlawful employment practice, based on handicap, filed by Donn M. Patterson against the City of Lakeland, be dismissed.

DONE and ORDERED this 6th day of January, 1993, in Tallahassee, Leon County, Florida.

K. N. AYERS 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 January, 1993.

COPIES FURNISHED:

Timothy J. McCausland Assistant City Attorney

228 S. Massachusetts Avenue Lakeland, Florida 33801-5086

Robert H. Grizzard, II, Esquire

P.O. Box 992

Lakeland, Florida 33801-5006

City Clerk

City of Lakeland

228 South Massachusetts Avenue Lakeland, Florida 33801-5086

Margaret Jones/Clerk

Florida Human Relations Commission Bldg F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303 4149

Dana Baird, Esquire General Counsel

Florida Human Relations Commission Bldg F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303 4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 92-005312

Orders for Case No: 92-005312