STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GARY SANFORD, )

)

Petitioner, )

)

vs. ) CASE NO. 92-6332

)

ORANGE COUNTY SCHOOL BOARD, )

)

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 case on May 25, 1993 and September 9, 1993, in Orlando, Florida.

APPEARANCES

For Petitioner: Tobe Lev, Esquire

Post Office Box 2231 Orlando, Florida 32802

For Respondent: Frank C. Kruppenbacher, Esquire

545 Delaney Avenue, Suite 8 Orlando, Florida 32801

STATEMENT OF THE ISSUES

Petitioner, a former employee of Respondent School Board, has alleged that the Respondent violated section 760.10, F.S., by discriminating against him based on his handicap. The basic issue is whether that violation occurred and if so, what relief is appropriate. However, in this protracted proceeding various ancillary issues have been raised and also require disposition. Those issues include:

1. Whether Petitioner's claim of discrimination based on failure to hire was timely;

2. whether Petitioner may also claim discrimination based on wrongful termination or is that claim time-barred;

3. whether evidence of Petitioner's criminal history, acquired by Respondent during the pendency of the proceeding and after the alleged discrimination, is relevant in the proceeding and, if so, whether it is a bar

   to, or simple limitation on relief; and

4. whether Petitioner's motion to proceed anonymously, filed after the evidentiary hearing, should be granted.

PRELIMINARY STATEMENT

Petitioner's charge of discrimination filed with the Florida Commission on Human Relations (FCHR) was initially rejected by the FCHR as untimely, but was later accepted. The charge alleges discrimination based on handicap (alcoholism) when the school board refused to rehire Petitioner after he was treated.

The FCHR investigation found "cause", then "no cause" after the school board's request for redetermination. Petitioner timely filed his petition for relief and the case was referred to the Division of Administrative Hearings for a formal evidentiary hearing pursuant to section 120.57(1), F.S.

The case was set for hearing, but was continued for good cause and commenced on May 25, 1993. Because of the unavailability of counsel, the hearing was not completed until September 9, 1993.

In support of his allegations, Petitioner testified and presented the additional testimony of Pam Rash, Lucille Sanford and Richard Fedigan. Exhibits #1, 3-10, 12, 12a, 13-18, and 20 were received in evidence. Exhibit #2 was withdrawn; exhibit #11 was rejected for failure to comply with prehearing order; and exhibit #19 was offered and accepted, but was not late-filed.

Respondent presented the testimony of Richard Sanders, Barbara Spychalski, Stephen Wind, Scott Diebler, Geraldine Hanna, Richard Staples, Leigh Ann Blackmore and John Hawco. Respondent's exhibits #1-5 and 7-15 were received in evidence; exhibit #6 was combined as an attachment to exhibit #7; and exhibit #2, a composite of documents regarding criminal background checks was taken under advisement. That exhibit is now received into evidence for reasons discussed in the Conclusions of Law. By stipulation, Exhibit #5, Employee Assistance Program records, is sealed.

At the commencement of the proceeding, the parties stipulated, and the Hearing Officer agreed, that the proceeding would be bifurcated. That is, the hearing would be conducted on the issue of liability only, and the hearing officer would retain jurisdiction to consider damages in a separate proceeding, if necessary. The transcript was filed on August 16, and October 14, 1993. The parties' proposed recommended orders were filed on November 23 and November 29, 1993. In addition, on November 23rd Petitioner filed a motion to proceed anonymously. Respondent filed its objection to the motion on December 17, 1993. The motion is addressed in the Conclusions of Law. On March 28, 1994, the firm, Honigman, Miller, Schwartz and Cohn filed a motion to substitute individual counsel, Frank Kruppenbacher, for the firm. That motion is GRANTED.

The parties' proposed findings of fact are addressed in the attached Appendix.

FINDINGS OF FACT

1. Petitioner (Sanford) was first hired as a bus driver by the school board on February 8, 1968, and became an operations administrative assistant on October 1, 1982. As bus driver, and in the early years as an administrative assistant, he received above average, outstanding or (after the evaluation form changed) satisfactory performance ratings.

2. In 1986 Sanford was supervised by the operations chief, Geraldine Hanna. Ms. Hanna initially felt fortunate at having an administrative assistant, but after three or four weeks she had major concerns about his job performance. Sanford required excessive supervision to complete a task; there were errors, and the tasks were not being completed within deadlines. She observed his frustration and inappropriate language over the air and within the dispatch office.

   
   

3. The school board had recently initiated an employee assistance program (EAP), and suspecting "something was wrong", Ms. Hanna referred Sanford to the program. Although she never smelled alcohol or observed the employee stumbling or staggering, Hanna felt Sanford had some type of substance abuse problem and told him that she suspected something was going on.

   
   

4. The first EAP referral was made through Dave Wofford, Director of Transportation, to Scott Diebler, Senior Manager for the Orange County School Board's EAP. Wofford was considered a "hard-nosed" supervisor, but Scott Diebler felt that he went further with Sanford than normally because of Sanford's long prior excellent record of performance.

   
   

5. Sanford was referred again to the EAP, directly by Hanna, in fall 1986 or spring 1987, as the performance problems persisted. These performance problems are detailed in a classified evaluation report dated 4/10/87 and signed by both Gary Sanford and Geraldine Hanna. A narrative attachment to the report cites examples and concludes:

   
   

   The recited examples give evidence of [Sanford's] inability to complete duties in a timely, effective and organized manner. He demonstrates no initiative in the performance of his duties and cannot work without

   supervision. His lack of proper documentation and follow-through have resulted in frustration on the part of the management staff. (Respondent's Ex. #8)

   
   

6. Scott Diebler met with Sanford and his supervisors and arranged to have Sanford evaluated by outside professionals with whom the program contracted for services. At some point, Hanna and Sanford met together with a counsellor. Sanford's initial symptoms were typical of emotional and mental health problems; there were mood swings, hyperactivity and excitability. Shortly after several different professional opinions were obtained, Diebler determined that the primary presenting problem was chemical dependency (alcohol, marijuana and cocaine) and that there were secondary emotional problems.

   
   

7. Sanford admits that in 1986 and 1987 he would go home after getting off work at 2:30 p.m. and would drink until he fell asleep. He denies ever drinking on the job.

   
   

8. Beginning in September 1986 Sanford was treated by an EAP service provider, Psychological Service Associates, through Recovery Alternatives, Inc. (RAI). He completed Phase I of outpatient intensive group and individual therapy and was transferred to Phase II, which included Alcoholics Anonymous meetings. There is no evidence that Sanford successfully completed Phase II. The treatment he received temporarily alleviated, but in no way "cured" his addiction.

9. According to competent expert witnesses, alcoholism as a disease is never cured. In a proper recovery program and with proper motivation, an individual may recover and arrest the disease. At times throughout his history at the EAP Sanford abstained and showed some progress toward recovery. He also experienced periods of relapse, with no progress.

   
   

10. Sanford attended some AA meetings in 1987, but not enough to help. At that stage he was still in "denial" and tended to blame others for his problems.

    
    

11. When the performance problems in the Department of Transportation did not improve and Sanford was headed for a "disciplinary scenario", as observed by Scott Diebler, the EAP helped Sanford find a transfer to another department.

    The idea was that if the performance problems were the result of a personality conflict, a transfer would resolve the conflict.

    
    

12. Richard Staples was senior administrator for warehouse and distribution in 1988, when he agreed to accept Sanford for transfer to a courier position with the understanding that Sanford would follow through with his offered assistance through EAP.

    
    

13. Sanford's performance improved for a time, and on March 11, 1988, Staples evaluated him as "satisfactory", with "excellent" ratings in dependability, adaptability and attitude. By May 1989, performance deteriorated, and primarily because of attendance problems, Staples referred Sanford back to Scott Diebler and the EAP.

    
    

14. Diebler acknowledged the referral with a memo to Staples informing him that Sanford was referred to an outpatient program at Florida Psychiatric Associates.

    
    

15. On July 10, 1989, Sanford was absent without authorization during assigned work hours despite having been warned in May that he was to notify Staples personally with regard to any need for absence from the worksite. Staples sent Sanford a written confirmation of their July 13, 1989 meeting regarding the absence, with a warning that reoccurrence would result in a one- week suspension without pay.

    
    

16. Sanford admits that the July 10th absence was related to his drinking. He was drinking heavily daily after work and was using cocaine on weekends during this period. He does not know how much alcohol he consumed, but as before, he drank steadily from the time he came home from work until he passed out.

    
    

17. On July 17, 1989, someone who identified herself as a parent of an Oak Hill Elementary School child telephoned the mailroom of the courier department and informed Richard Sanders, the relief courier driver helping the mail clerk, that an Orange County School Board courier was drunk and stumbling and falling into the truck. The message was given to Richard Staples. Oak Hill was on Sanford's route.

    
    

18. Staples checked Sanford's route schedule and had his secretary call the next two schools to tell Sanford to stay where he was and call Staples' office. Staples then took a relief driver and another administrator, Steve Wind, and found Sanford at West Orange High School, waiting as instructed.

19. While Sanford was waiting for Staples he called Staples' secretary twice, each time talking incoherently and very upset. She kept telling him he had to wait at the school for Staples.

    
    

20. When Staples found him waiting at the school lobby, Sanford's demeanor was lethargic and he did not appear to have himself under control. Steve Wind observed Sanford's speech as slurred and his eyes were glassy. He was unsteady, but not staggering.

    
    

21. Staples drove Sanford to his house, with Wind in the backseat, and the relief driver finished the route. Sanford asked Staples to take him to the warehouse so he could get his car, but Staples told him that he did not want him driving in his condition. Staples asked several times if Sanford wanted to stop by a clinic on the way home. Sanford said, no. Several times Sanford asked what was going to happen and was he going to be fired. Staples said he did not know, and was only concerned about Sanford getting home. Sanford cried.

    
    

22. After taking Sanford home, Staples explained the incident to John Hawco, the school board's senior manager of employee relations. Staples also sent a letter to Sanford, dated July 18, 1989, informing him that he was relieved of duty with pay, pending an investigation into the events of July 17th, and notifying him that a meeting which could result in disciplinary action would be scheduled in the near future.

    
    

23. The collective bargaining agreement which covered Sanford as a courier driver provides that an employee may be suspended without pay or dismissed for conviction of any crime involving moral turpitude, drunkenness, gross insubordination, immorality, misconduct in office, willful neglect of duty, or continued failure to satisfactorily meet performance standards for the job. The agreement provides for a pretermination meeting at which the employee may be represented and is given the opportunity to explain the facts and provide other witnesses or sources of information.

    
    

24. The pretermination meeting was scheduled for July 20th, but was cancelled because Sanford overdosed on alcohol and cocaine and was temporarily hospitalized. The meeting was held on August 1, 1989.

    
    

25. At the meeting, Sanford denied being under the influence on July 17th, but also apologized for what had happened. Sanford was accompanied by a union representative. Staples and Hawco discussed the options and rejected the possibility of moving Sanford to another position. They considered his history of chemical abuse and failure to comply with EAP recommendations. They told Sanford that he would be terminated and urged him to obtain treatment. Hawco advised Sanford that he could resign his position or seek retirement, if eligible, and gave him three days to come to a decision, at which time his employment would be terminated.

    
    

26. On August 3, 1989, Hawco was contacted by a staff person in the EAP who advised that Sanford had entered a treatment program. Scott Diebler worked out an arrangement for Sanford's termination to be delayed briefly to give him the benefit of insurance during his detoxification and initial treatment.

    
    

27. Hawco's decision to terminate Sanford was based on his determination that Sanford was operating a county vehicle while under the influence, which under the School Board's policy is a termination offense. This, coupled with Sanford's past performance, was the basis for the termination, and not his status as an alcoholic.

28. The termination notice to Gary Sanford from John Hawco is dated August 18, 1989, and informs him that the effective date of termination was August 17, 1989. By this time, Sanford was in a 35-day inpatient treatment program at Cross Roads treatment center. His mother brought him the termination notice on her first visiting day in August, the Sunday after the notice arrived.

    
    

29. Because he was not able to have contact with outside persons during the initial stage of his treatment, Sanford asked his mother to call Scott Diebler. She did, and he told her that they could discuss rehire after Gary Sanford was successfully treated, in about six months.

    
    

30. No one from the school board informed Sanford or his treatment facility that Sanford had not been terminated or that Sanford would automatically be rehired upon completion of a treatment program. Before termination, Scott Diebler had argued for a "last chance" contract for Sanford, to give him one final chance to be successfully rehabilitated; but the request was denied with an explanation and apology that the job problems had been too severe and there had already been many opportunities to get help.

    
    

31. After termination, Diebler got a report from the treatment center implying that Sanford was on a leave of absence. He attempted to assure that the center was properly informed, as there were insurance implications. That is, the first 30 days were covered through the EAP or board's insurance, but thereafter Sanford was responsible. Diebler also assured himself by checking with John Hawco and the union representative that Gary Sanford understood from the August 1st meeting that his employment was to be terminated.

    
    

32. Diebler had some contact with Sanford during treatment at Cross Roads and assured him that he could reapply after six months. At some point, Diebler sent him an employment application.

    
    

33. Sanford completed the intensive inpatient program and stayed on at Cross Roads for another six to eight months. After the thirty-five day program was completed, he resided in the half-way house and worked various jobs such as Texaco and a dinner cruise ship. He no longer drinks and he attends AA meetings regularly. He has remained employed.

    
    

34. In February 1990, Sanford went to see John Hawco at the school board and said he had completed six months successful treatment. Sanford told Hawco that he understood he could get his job back; he also said he wanted payment for his accrued sick leave, which was approximately 1,176 hours at the time of his termination. Hawco reminded him that because he was involuntarily terminated, he was not entitled to accrued leave. Sanford did not specifically ask for his job back and said he wanted the terminal pay (approximately $12,000) in order to get a new start. The non-eligibility for terminal pay was reiterated in writing by John Hawco to Gary Sanford in a letter dated October 1, 1990, in response to a letter Sanford had sent to the assistant superintendent. Sanford never put in an application to be rehired by the school board, contrary to Diebler's earlier advice.

    
    

35. Sanford initially contacted the Florida Commission on Human Relations in April 1990, with regard to filing a charge of handicap discrimination. He was advised that his charge was untimely, based apparently on his termination date of August 1989. He later recontacted the commission to complain and was permitted to file his charge on March 12, 1991, based on denial of rehiring,

    allegedly occurring on February 2, 1990. (Petitioner's Ex. #18) This is the charge which initiated this proceeding.

    
    

36. At some point after the charge and petition for relief were filed, and before the formal hearing, the school board requested a criminal record background check on Gary Sanford and uncovered the following: a) On July 16, 1984, after a plea of guilty to driving under the influence (DUI), Sanford was adjudicated guilty, placed on probation, fined, and sentenced to 50 hours community service with a driver's license suspension of six months; b) On October 14, 1988, after a plea of guilty to exposure of sexual organs (in a booth in an adult entertainment center), Sanford's adjudication was withheld and he was placed on unsupervised probation for one year under the condition that he not return to an adult entertainment establishment; c) On August 28, 1990, after a plea of nolo contendere to the misdemeanor of lewdness (soliciting a police agent in a park restroom), Sanford was adjudicated guilty, and was placed on supervised probation with conditions that he participate in substance abuse counselling/screening and would not return to any Orange County park; and d) On August 28, 1991, after a plea of guilty of being in a park after hours, Sanford was adjudicated guilty and sentenced to time served only. (Respondent's composite Ex. #2)

    
    

37. On 1/25/85, 1/28/86 and 3/16/87, Sanford filed his forms, "Florida Department of Education Application for License to Drive School Bus and Physical Examination for School Bus Driver Applicant". These were renewal applications as the form indicates that a license to drive a school bus is valid for no more than 12 months from issue date. On each of these forms, Sanford answered "no", and certified his answers to be correct, to questions of whether he had been convicted of a misdemeanor or felony in the last three years and whether his driver's license had been suspended or revoked during the last three years. (Respondent's composite Ex. #3)

    
    

38. The Orange County School Board requires Florida Department of Law Enforcement (FDLE) and Federal Bureau of Investigation (FBI) fingerprints and screening of all employees, upon hire, including former employees with a greater than 90-day break in service (separation from employment). Since approximately 1991, the school board has notified law enforcement agencies to advise the board any time a student or employee is arrested for a felony or misdemeanor.

    
    

39. Upon receipt of the screening report or arrest report, the employee is given an opportunity to provide court records and explanations surrounding the incident. Board staff, including representatives of personnel and employee relations and the equal employment opportunity office, review the information for recommendation to the Superintendent. These reviews are also conducted for applicants for employment.

    
    

40. Any time an employee is found to have falsified an application with respect to criminal background, staff recommends termination. Any time an applicant for a position to drive a vehicle is found with a DUI, that applicant is not recommended for consideration to be employed.

    
    

41. If Sanford had actually applied for rehire in 1990, his 1984 and 1988 offenses would have been revealed in the employment screening. The DUI, the "Pee-Wee Herman" offense, and the falsification of his school bus licensure applications would have made him ineligible for further employment under the board's policy. If he had not been terminated, those offenses, and the misdemeanor incidents in 1990 and 1991 would likely not have been discovered by

    the board, since they predated the notification arrangement the board now has with local law enforcement agencies.

    
    

    SUMMARY OF FINDINGS

    
    

42. As an alcoholic and substance abuser, Sanford was handicapped. His drinking and substance abuse interfered with his proper performance of his job duties on occasion. He was referred to the EAP and received assistance; he had a dozen major contacts with the EAP, not including telephone calls and correspondence, from 1986 to 1989. Although he did not receive inpatient treatment until the time of his termination, such treatment was not requested by Sanford, nor is there any evidence that earlier inpatient treatment was recommended by the professionals who were under contract with the EAP and who had worked with Sanford since 1986.

    
    

43. John Hawco's termination decision was based on Sanford's employment record and performance at work, rather than on his handicap. Sanford was informed of the decision in August 1989, in a meeting which he attended with his union representative, and later, in writing, when his mother brought him the termination letter. No one, not even Scott Diebler, his most partisan supporter, promised Sanford that he would be rehired.

    
    

44. Sanford did not follow Diebler's advice about applying for re- employment. Instead, he contacted Hawco in February 1990, and was told that he would not be rehired by the school board at that time. (Respondent's exhibit #13) Even if he had formally applied for employment, Sanford's prior convictions and falsification of his application would have barred re- employment, according to established school board policy.

    
    

    CONCLUSIONS OF LAW

    
    

45. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Section 120.57, F.S.

    
    

    46. Section 760.10(1)(a), F.S. (1989) provides:

    
    

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

1. Alcoholism is a handicap within the meaning of section 760.10, F.S. Richard H. Blake v. City of Tallahassee, 7 FALR 5347 (1985).

   
   

2. In Brand v. Florida Power Corporation, 19 FLW D525 (Fla. 1st DCA opinion filed March 7, 1994), the court in a handicap discrimination case arising under the Florida Human Rights Act, section 760.10, F.S., borrowed its test from section 504 of the federal Rehabilitation Act of 1973 (29 USC, subsections 701-796i), rather than from Title VII of the Civil Rights Act of 1964 (42 USC, subsections 2000e-2000e-17), in part because the latter act does not address discrimination based on handicap.

   As observed in [Pushkin v. Regents of Univ. of Colo., 658 F2d 1372 (10th Cir. 1981)],

   handicap discrimination cases are unique in that handicapped persons are invariably denied employment solely as a result of their handicaps; whereas in Title VII cases a characteristic such as race or sex is rarely admitted as motivating the employer's decision. Blake, p. D526.

   
   

3. Even though the school board, unlike the employer in Blake, does not admit that its decision was based on the employee's handicap, the decision was based on behavior which was plainly caused by that handicap. That is, as long as Sanford was not drinking or misusing drugs, he was a good, nigh exemplary employee.

   
   

4. It is therefore appropriate to resort to federal cases construing section 504 in determining the merits of Sanford's claim. Blake, supra; School Board of Leon County v. Hargis, 400 So2d 103 (Fla. 1st DCA 1981).

   
   

5. The test adopted by Blake for a prima facie case is 1) whether the individual is handicapped; 2) whether he is otherwise qualified for the position; and 3) whether he was excluded from the position solely by reason of his handicap. Once the prima facie case is established, the burden of producing evidence is placed on the employer to show that its consideration of the handicap was relevant to the qualifications of the position sought. The employer may meet its burden by showing that Petitioner's handicap cannot possibly be accommodated or that the proposed accommodation is unreasonable because it would result in an undue hardship on the employer's activities. Once the employer presents valid reasons for the rejection, Petitioner must present evidence concerning his individual capabilities and suggestions for possible accommodations. The fact that the employer could have provided more or different accommodations does not establish that the accommodations provided were insufficient or unreasonable. Blake, p. D527.

   
   

6. Sanford plainly established that he was handicapped. Moreover, he established that, aside from his alcoholism and substance abuse, he was a qualified employee; further, he was discharged and was then refused rehire for behavior arising from his handicap.

   
   

7. An employee can be terminated for misconduct, even if that misconduct was the result of alcoholism or drug addiction. Little v. Federal Bureau of Investigation, 1 F3d 255 (4th Cir. 1993) (arising under the Rehabilitation Act of 1973). The preponderance of evidence in this proceeding established that Sanford was operating a school board vehicle "under the influence" on July 17, 1989, and that he was properly terminated for that misconduct, as well as his prior performance problems.

   
   

8. The evidence also established that the school board offered reasonable accommodation (transfer of position and EAP assistance) and that accommodation failed. The school board was not required to take the additional steps of securing and awaiting the outcome of Sanford's lengthy inpatient treatment. Sanford should have sought that treatment before the unfortunate events on July 17, 1989.

9. One who has a drinking problem has a duty

   to call it to the attention of the employing agency. He also has the duty to be available to follow professional advice and to take such treatment as may be prescribed. He cannot take the attitude of desiring to drink rather than work and then let the burden fall on the [employer] to seek him out to learn that he has a drinking problem.

   
   

   State Dept. of Environmental Reg. v. Gilmore, 352 So2d 1274,

   1275 (Fla. 1st DCA 1977)

   
   

   Where treatment programs for an alcoholic employee have previously failed, the employee may not use voluntary entrance into another program as a stall technique when dismissal is imminent due to a relapse. Fuller v. Frank, 916 F 2d 558, 562 (9th Cir. 1990)

   
   

10. Because Sanford was properly terminated, it is unnecessary to address the timeliness of any claim for relief based on that action; his complaint was filed substantially beyond the 180-day deadline established in section 760.10(10), F.S. (1989). He failed to prove that he was unaware of that termination or was otherwise promised rehire, so as to invoke any principle of "equitable tolling" of the deadline from termination.

    
    

11. The FCHR, itself, applied the principle of equitable tolling of the deadline from the "refusal to rehire" in February 1990, by accepting Sanford's complaint after it had initially been rejected due to misunderstanding by FCHR staff. This application of equitable tolling is appropriate under the authority of Machules v. Dept. of Admin., 523 So2d 1132 (Fla 1988) However, the claim for relief for failure to rehire should be rejected on the same substantive bases as the claim of discriminatory termination. For the same reason that he was properly terminated, Sanford was also denied rehire; his misconduct on the job and his performance record supported both decisions.

    
    

12. A further basis exists for the board's denial of rehire: Sanford's pre-1990 criminal record and his falsification of his licensure applications. The board adequately established evidence of its policy of conducting background checks on all new employees and former employees with a 90-day break in service. The board also established that the background check in this instance would have inalterably resulted in rejection of Sanford's application.

    
    

13. The after-acquired evidence (Respondent's exhibit #2) is relevant and admissible. The most liberal case on such after-acquired evidence, and the case which applies in this federal circuit, Wallace v. Dunn Construction Co., Inc., 968 F 2d 1174 (11th Cir. 1992), merely limits, rather than bars outright, an otherwise successful claimant's relief. See also, Johnson, "After-Acquired Evidence of Employee Misconduct: Affirmative Defense or Limitation on Remedies?", The Florida Bar Journal, June 1993.

    
    

14. Since the board's termination is found justified, it is unnecessary to address Petitioner Sanford's argument that without the unlawful termination Sanford would not have sought rehire and the prior convictions would never have been discovered.

15. Finally, Petitioner's motion to proceed anonymously is DENIED. Petitioner cites no relevant authority, and the hearing officer is without jurisdiction to grant this request. The records of the EAP are sealed (see preliminary statement) and this less restrictive alternative safeguards Petitioner's protected interest. See, Department of Health and Rehabilitative Services v. Tallahassee Democrat, Inc., 481 So2d 958 (Fla. 1st DCA 1986).

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That a Final Order be entered dismissing Gary Lee Sanford's complaint and petition for relief.

DONE AND RECOMMENDED this 19th day of April, 1994, in Tallahassee, Leon County, Florida.

MARY 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 19th day of April, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6332

The following constitute specific rulings on the findings of fact proposed by the parties.

Petitioner's Proposed Findings of Fact

1. - 4. Adopted in substance in paragraph 1.

5. - 6. Adopted in substance in paragraph 2.

1. Adopted in substance in paragraphs 3 and 4.

2. Adopted in substance in paragraph 3.

3. Rejected as unnecessary.

4. Adopted by implication in paragraph 10.

5. Adopted in paragraph 7.

6. Rejected as contrary to the weight of evidence. On July 17th he was intoxicated on the job.

7. Adopted in substance in paragraphs 8 and 9.

8. Adopted in substance in part in paragraph 42; otherwise rejected as irrelevant and unnecessary.

9. Adopted in paragraphs 12 and 13.

17. & 18. Adopted in substance in paragraph 13.

1. Adopted in part in paragraph 14; otherwise rejected as unnecessary.

2. Rejected as unnecessary.

3. Adopted in part in paragraph 13; otherwise rejected as unnecessary.

4. & 23. Adopted in paragraph 15.

1. Rejected as unnecessary. The proposed findings are not inconsistent with the fact that Sanford was under the influence at some point on his route.

2. Adopted in part in paragraph 17; otherwise rejected as immaterial and unnecessary.

3. & 27. Rejected as unnecessary.

28. Adopted in part in paragraph 18; otherwise rejected as immaterial.

29.-31. Rejected as immaterial.

1. Adopted in paragraph 18.

2. Adopted in part in paragraph 19, otherwise rejected as contrary to the weight of evidence.

3. Adopted in part in paragraph 20, otherwise rejected as contrary to the weight of evidence.

4. Adopted in substance in paragraph 21.

5. Adopted by implication in paragraph 21.

6. Adopted in paragraphs 22 and 25.

7. Adopted in paragraph 25.

8. Adopted in substance in paragraph 30.

9. Adopted in substance in paragraphs 24 and 28.

10. Adopted in substance in paragraph 33.

11. Rejected as unnecessary.

12. Rejected as immaterial; see paragraph 42.

13. Adopted in paragraph 33.

14. Adopted in paragraph 34.

15. Rejected as contrary to the weight of evidence (as to Diebler's changing his story).

16. Adopted in substance in paragraph 34.

17. & 49. Adopted in substance in paragraph 35.

50. Adopted in paragraph 33.

Respondent's Proposed Findings

1. Adopted in substance in paragraph 1.

2. Adopted in substance in paragraph 2.

3. Rejected as unnecessary.

4. Adopted in paragraph 4.

5. Rejected as unnecessary.

6. Adopted in paragraph 6.

7. - 9. Adopted in paragraph 8. 10.-11. Rejected as unnecessary.

12. & 13. Adopted in paragraph 5.

14.-16. Rejected as unnecessary or cumulative.

1. Adopted in paragraph 7.

2. Adopted in paragraph 11.

3. Adopted in paragraph 13.

4. & 21. Adopted in paragraph 15.

1. Adopted in substance in paragraph 15.

2. Adopted in paragraph 13.

3. & 26. Rejected as unnecessary.

1. Adopted in paragraph 9.

2. Adopted in paragraph 16.

3. Rejected as unnecessary.

4. & 31. Adopted in paragraph 16. 32.-34. Adopted in paragraph 17. 35.-36. Rejected as unnecessary.

1. Adopted in paragraph 18.

2. Adopted in paragraph 19.

39.-41. Adopted in substance in paragraph 20.

1. Adopted in substance in paragraph 21.

2. Rejected as unnecessary.

44.-46. Adopted in substance in paragraph 21.

47. Adopted in paragraph 22. 48.-50. Rejected as unnecessary.

51. & 52. Adopted in paragraph 23.

1. Adopted in paragraph 24.

2. Adopted in part in paragraph 25, otherwise rejected as contrary to the evidence. (He denied being under the influence.)

3. & 56. Adopted in substance in paragraphs 25 and 27.

1. Adopted in paragraph 26.

2. Adopted in paragraph 28.

3. Rejected as unnecessary.

4. Adopted in paragraph 30.

5. Adopted in paragraph 32. 62.-65. Adopted in paragraph 34.

1. Adopted in paragraph 38.

2. Adopted by implication in paragraph 41. 68.-72. Rejected as unnecessary.

73.-75. Adopted in paragraph 36.

1. Adopted in paragraph 37.

2. Adopted in paragraph 36.

3. Adopted by implication in paragraph 37.

4. Adopted in paragraph 40.

5. Adopted in paragraph 41. 81.-83 Rejected as unnecessary.

84. Rejected as unnecessary. Further, the hearing officer denied Respondent's request to take official recognition of the weather reports. That denial is based on failure to comply with notice requirement of Section 90.203, F.S. and the unreliability of the report in establishing the fact that Respondent was attempting to establish: that it did not rain in Orlando on a given day.

85.-88. Rejected as unnecessary.

89. Adopted in paragraph 42.

90.-91. Rejected as unnecessary; except that the ultimate fact of the reason for termination is adopted in paragraph 43.

COPIES FURNISHED:

Tobe Lev, Esquire Post Office Box 2231

Orlando, Florida 32802

Frank C. Kruppenbacher, Esquire

545 Delaney Avenue, Suite 8 Orlando, Florida 32801

Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240

315 John Knox Road

Tallahassee, Florida 32303-4149

Dana Baird, General Counsel Human Relations Commission Building 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: 92-006332

Orders for Case No: 92-006332