STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES H. WILLIS, )

)

Petitioner, )

)

vs. ) CASE NO. 93-1953

) STATE OF FLORIDA, DEPARTMENT ) OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on October 20, 1993, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Marc E. Taps, Esquire

Legal Services of North Florida, Inc. 2119 Delta Boulevard

Tallahassee, Florida 32303

For Respondent: Dorothy S. Johnson

Assistant General Counsel Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458 STATEMENT OF THE ISSUES

Whether the Respondent, State of Florida, Department of Transportation, discriminated against the Petitioner, Charles H. Willis, on the basis of his race?

PRELIMINARY STATEMENT

On or about July 29, 1992, the Petitioner filed a Charge of Discrimination against the Respondent with the Florida Commission on Human Relations (hereinafter referred to as the "Commission"). The Commission determined that the Respondent had not committed a discriminatory employment practice by "Notice of Determination: No Cause" entered March 4, 1993.

The Petitioner filed a Petition for Relief with the Commission requesting a formal administrative hearing. On April 8, 1993, the Commission filed the Petition for Relief with the Division of Administrative Hearing and requested assignment of a Hearing Officer.

Prior to the final hearing, the parties filed a Joint Pre-Hearing Stipulation, containing stipulated facts. The stipulated facts contained therein have been included in this Recommended Order.

At the final hearing the Petitioner testified on his own behalf and presented the testimony of Daniel Riccardo Paige, Sr. No exhibits were offered by the Petitioner.

The Respondent presented the testimony of Frances Felix and David S. Ferguson. The Respondent presented 3 exhibits which were accepted into evidence.

A transcript of the final hearing was filed on November 3, 1993. Proposed recommended orders were to be filed, after a one week extension was requested and granted, on or before November 22, 1993. The Respondent's proposed recommended order was filed on November 22, 1993. The Petitioner's proposed recommended order was not filed until November 29, 1993. No objection to the Petitioner's late proposed recommended order has been filed. It also does not appear from the Petitioner's proposed recommended order that any undue advantage was gained by filing the proposed recommended order late. Accordingly, both proposed recommended orders have been considered.

The proposed recommended orders of the parties contain proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

FINDINGS OF FACT

1. The Parties.

   
   

   1. The Petitioner, Charles H. Willis, Jr., is a black male.

      
      

   2. The Respondent, State of Florida, Department of Transportation (hereinafter referred to as the "Department"), is an agency of the State of Florida.

      
      

2. Mr. Willis' Employment by the Department.

   
   

   1. Mr. Willis was hired and began employment with the Department in 1985. (Stipulated Fact).

      
      

   2. Mr. Willis continued employment with the Department until February 6, 1992. (Stipulated Fact).

      
      

   3. At the time of his dismissal from employment, Mr. Willis held the position of a Senior Clerk.

      
      

   4. As a Senior Clerk, Mr. Willis' job duties included duties related to the storage and retrieval of documents pertinent to the Department's activities. Among other things, Mr. Willis went to offices of the Department, picked up boxes of records and prepared the boxes for storage. Mr. Willis was required as a part of his employment to lift boxes of records.

      
      

3. Mr. Willis' Automobile Accident.

   1. On or about October 16, 1991, Mr. Willis was involved in an automobile accident unrelated to his employment. Mr. Willis was injured in the accident. (Stipulated Facts).

      
      

   2. Mr. Willis' treating physician for the injuries sustained in the accident was Dr. Esias Lee. (Stipulated Fact).

      
      

   3. Dr. Lee reported by letter dated October 24, 1991 to the Department that Mr. Willis had sustained severe neck and back injuries, that he was making slow progress and that he would probably be incapable of carrying out his employment duties for four to eight weeks.

      
      

4. Mr. Willis' Termination from Employment.

   
   

   1. The Department was experiencing a backlog in the work Mr. Willis would normally have been responsible for. After inquiry, Mr. Willis was unable to inform the Department when he might be able to return to his duties.

      
      

   2. By letter dated November 14, 1991, to Dr. Lee, the Department provided Dr. Lee a copy of Mr. Willis' job description and requested that he supply "an evaluation level at which Mr. Willis will be able to perform all of his assigned duties upon his return to work, as well as any and all limitations."

      (Stipulated Fact).

      
      

   3. The Department did not receive a response to the Department's letter of November 14, 1991 from Dr. Lee.

      
      

   4. By letter dated December 6, 1991, to Mr. Willis the Department requested "full and complete response from you regarding your condition, your return date, and your capabilities at the time of return." The Department also requested that the information provided "be confirmed by your physician." Mr. Willis was also informed that he had exhausted all leave and that he would be required to request authorized leave without pay until his return.

      
      

   5. Apparently in response to the Department's December 6, 1991 letter, Dr. Lee sent a letter to the Department dated December 12, 1991. In the December 12, 1991 letter Dr. Lee informed the Department that Mr. Willis was "unable to preform [sic] the duties of his job." Dr. Lee went on to state that Mr. Willis "continues to be under my care and therapy and is unable to return to gainful employment indefinitely." [Emphasis added]. (Stipulated Fact).

      
      

   6. As a result of the fact that Dr. Lee had informed the Department that Mr. Willis would not be able to return to work "indefinitely" and the need to fulfill the duties normally fulfilled by Mr. Willis, the Department instituted proceedings to terminate Mr. Willis.

      
      

   7. On December 18, 1991, the Department sent Mr. Willis by certified mail, receipt requested, a notice of intent to terminate his employment with the Department. Mr. Willis was informed that his employment was being terminated because of his inability to perform his assigned duties. (Stipulated Fact).

      
      

   8. In response to the Department's letter of December 18, 1991, D. Ricardo Paige, Esquire, requested a pre-termination conference with the Department on behalf of Mr. Willis.

   9. The pre-termination conference was held on January 16, 1992. The conference was attended by Frances Felix and Kim Mirkley on behalf of the Department, and Mr. Paige on behalf of Mr. Willis. Mr. Willis did not attend. (Stipulated Facts).

      
      

   10. During the pre-termination conference, Mr. Paige informed Ms. Felix that he believed that the Dr. Lee would clarify his statement that Mr. Willis would be unable to perform his duties "indefinitely." Mr. Paige represented that an affidavit from Dr. Lee would be provided to the Department "tomorrow", January 17, 1992. Mr. Paige also represented that he believed that Mr. Willis would be able to return to work in February. Finally, Mr. Paige requested assignment of Mr. Willis to light duty.

       
       

   11. Ms. Felix spoke to Mr. Paige by telephone on January 16, 1992. During this conversation, Ms. Felix told Mr. Paige the affidavit from Dr. Lee should be received by the Department no later than 5:00 p.m., January 17, 1992.

       
       

   12. The affidavit from Dr. Lee promised by Mr. Paige to the Department was not provided on January 17, 1992. Nor did Mr. Paige or Mr. Willis make any effort to inform the Department that the affidavit would be provided at a later date.

       
       

   13. On January 23, 1992, after not receiving a revised letter or affidavit from Dr. Lee, the Department notified Mr. Willis that he was dismissed from employment with the Department because of his inability to perform his assigned duties. Mr. Willis' termination was effective February 6, 1992. (Stipulated Facts).

       
       

   14. No affidavit or other statement from Dr. Lee was provided to the Department by Mr. Willis or Mr. Paige (even though Mr. Paige saw the termination letter) prior to February 6, 1992. Nor did Mr. Paige or Mr. Willis attempt to contact the Department and request additional time to provide a statement from Dr. Lee or explain why no statement had been provided.

       
       

   15. Mr. Willis was terminated from employment by the Department due to the fact that he was unable to fulfill his job responsibilities from October, 1991 through at least the date of his termination, and the fact that his physician had informed the Department that he was not physically able to perform his job and that he would not be able to do so "indefinitely." Mr. Willis failed to prove that the Department's reason for terminating his employment was a pretext.

       
       

   16. Mr. Willis failed to prove that he was able to perform light duty. No representation from Mr. Willis' physician was made to the Department before he was terminated that indicated that Mr. Willis was able to perform any duties. Mr. Willis also failed to prove that the circumstances concerning persons he testified about who were allowed to perform light duty were similar to the circumstances of this matter.

       
       

5. Subsequent Events.

   
   

   1. The Department replaced Mr. Willis by a white man.

   2. An affidavit from Dr. Lee was provided to the Department on or about February 14, 1992, after Mr. Willis had been terminated from employment. In pertinent part, Dr. Lee informed the Department of the following concerning Mr. Willis' ability to return to work:

      
      

      . . . . His medical condition has moderately improved and I expect his condition to continue to improve.

      
      

      Should his medical conditions [sic]

      continue to improve, Mr. Willis will be able to return to work by Mid-February with retrictions [sic] (i.e. light duty, no heavy lifting); Mr. Willis should be able to return to his normal work duties within sixty (60) days (without restrictions). . . . .

      
      

   3. As of the date of the final hearing of this case, Mr. Willis was wearing a back brace and indicated that he was still unable to perform the duties of his former position with the Department. No proof was offered by Mr. Willis that he is now able to carry out any of the responsibilities of his position.

      
      

6. Mr. Willis' Charge of Discrimination.

1. On or about July 29, 1992, Mr. Caldwell filed a Charge of Discrimination against the Department with the Florida Commission on Human Relations. Mr. Willis alleged that he had been discriminated against on the basis of his race. The complaint was filed within 180 days.

   
   

2. On March 4, 1993, the Commission issued a "Notice of Determination: No Cause" finding "no reasonable cause to believe that an unlawful employment practice has occurred "

   
   

3. On July 29, 1993, Mr. Willis filed a Petition for Relief. (Stipulated Fact).

   
   

4. The Commission requested that the Division of Administrative Hearings assign a Hearing Officer to conduct the hearing requested by Mr. Willis.

   
   

   G Alleged Race Discrimination.

   
   

5. There are approximately 65 employees under the supervision of Ms. Felix, Mr. Willis' supervisor. Approximately 40 of those employees are minorities. Approximately 22 of the 40 employees who are members of a minority are black.

   
   

6. Mr. Willis failed to prove that any action of the Department was based upon his race: he was not held to any standard or requirement based upon his race and he was not terminated because of his race.

   
   

7. Mr. Willis failed to prove that any Department policy or standard had a disparate impact on black employees.

   CONCLUSIONS OF LAW

   
   

   1. Jurisdiction.

      
      

8. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1992 Supp.).

   
   

   1. Burden of Proof.

      
      

9. Section 760.10(1), Florida Statutes, makes it an unlawful employment practice to discriminate against a person because of, among other things, the person's race. Chapter 760, Florida Statutes, is patterned after Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e, et seq. (hereinafter referred to as "Title VII"). See Hargis v. School Board of Leon County, 400 So.2d 103, 108 n. 2 (Fla. 1st DCA 1981). Consequently, federal precedent construing provisions of Title VII are to be accorded great deference in interpreting Chapter 760, Florida Statutes. Pasco County School Board v. PERC,

   353 So.2d 108, 116 (Fla. 1st DCA 1979; and Wood v. K-Mart Corp., 10 FALR 6189 (Fla. Comm. on Human Relations 1985).

   
   

10. In McDonnell Douglas v. Green, 411 U.S. 792, 804 (1973), the Supreme Court explained the burden of proof in disparate treatment cases. The Supreme Court later clarified its opinion in Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). The Commission has adopted the burden of proof standard established by the Supreme Court. Irby v. Allstate Insurance Co., 12

    F.A.L.R. 2034, 2037 (Fla. Comm. on Human Relations 1989); and Martin v. Monsanto Co., 10 F.A.L.R. 3886, 3896 (Fla. Comm. on Human Relations 1988).

    
    

11. McDonnell Douglas places the initial burden of proving a prima facie case of discrimination on the employee. Discriminatory motive or intent may be proved by direct evidence or statistical evidence. Additionally, since discriminatory motive or intent is seldom capable of proof by direct evidence, the 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 Department of Community Affairs, 450 U.S. at 252-256.

    
    

12. If the employee presents a prima facie case of discrimination, the employer must adequately rebut the presumption of discrimination by articulating a legitimate, nondiscriminatory reason for its actions. The employee must then prove that the employer's articulated reason for its actions was merely a pretext.

    
    

13. Based upon the foregoing, the burden of proof in this proceeding was on Mr. Willis.

    
    

    1. Mr. Willis Failed to Meet His Burden of Proof.

       
       

14. In determining whether discrimination has occurred, the Commission requires proof of the following elements, adopted from the federal courts, in order for an employee to prove a prima facie case of discriminatory conduct:

    (a) that the employee belongs to a group protected by the statute; (b) that the employee was qualified for the job; (c) that the employee was subjected to an adverse employment action; and (d) that, in the case of discharge, after the employee's termination, the employer hired a person not in the employee's

    protected class or retained those having comparable or lessor qualifications, not in the protected class. See McDonnell Douglas; Trumbull v. Health Care & Retirement Corporation of America, 756 F. Supp. 532 (M.D. Fla. 1991), aff'd, 949 F.2d 1162; Florida Department of Community Affairs v. Bryant, 586 So.2d 1205 (Fla. 1st DCA 1991); and National Industries v. Commission on Human Relations, 527 So.2d 894 (Fla. 5th DCA 1988).

    
    

15. Mr. Willis proved that he was a member of a protected class (black), that he was subjected to an adverse employment action, and that he was replaced by a person that was not in his protected class (a white). Mr. Willis failed to prove, however, that he was qualified for his position with the Department at the time he was discharged. Therefore, Mr. Caldwell failed to prove by a preponderance of the evidence, a prima facia case of discrimination based upon his race.

    
    

    1. The Department's Reason for Terminating Mr. Willis.

    
    

16. Even if Mr. Willis had met his burden of proving a prima facia case of discrimination (which he has not), the Department has met its burden of articulating some legitimate, nondiscriminatory reason for terminating Mr. Willis' employment. See McDonnell Douglas.

    
    

17. The Department proved that the physician in charge of Mr. Willis had reported that Mr. Willis would not be able to resume his responsibilities "indefinitely." The Department needed an employee that could carry out the responsibilities of Mr. Willis' position. After giving Mr. Willis an opportunity to explain when he would be able to return to employment, Mr. Willis failed to provide the Department with any different information.

    
    

18. Mr. Willis has suggested that no specific date for providing an affidavit from Dr. Lee had been agreed upon. Therefore, Mr. Willis argues, Mr. Paige's comment that it would be provided "tomorrow" was not a binding date.

    Mr. Willis has also suggested that the Department should have made an effort to contact Mr. Willis or Mr. Paige when the affidavit from Dr. Lee was not provided as promised. Had the Department not made any other efforts to find out when Mr. Willis would be able to return to work and/or if the Department had acted immediately the day after the information had been promised, Mr. Willis' argument might have some merit. Those are not, however, the facts.

    
    

19. The Department made several efforts to determine when Mr. Willis would be able to return to work. Eventually the Department was informed that Mr. Willis would not be able to return "indefinitely." Mr. Willis was then given an opportunity to provide additional information at the pre-termination hearing and afterwards. Mr. Willis' representative indicated that the information would be provided the next day. When the information was not provided as promised, it was Mr. Willis or his representative that should have contacted the Department to explain why. Even though the information was not provided and no effort was made to explain why, the Department waited seven days before taking action. It was not until February 14, 1992, after the Department had already acted, that Mr. Willis finally provided additional information to the Department. Mr. Willis had already been terminated by that time. Based upon the foregoing, it is concluded that, at the time the Department terminated Mr. Willis, the Department acted reasonably.

20. Mr. Willis also has suggested that he should have been placed on light duty. Mr. Willis failed to prove that he was able to perform such duty. Again, no representation from Mr. Willis' physician was made to the Department before he was terminated that indicated that Mr. Willis was able to perform any duties. Mr. Willis also failed to prove that the circumstances concerning persons he testified about who were allowed to perform light duty were similar to the circumstances of this matter.

    
    

21. The Department proved that Mr. Willis was unable to satisfactorily perform his job and that he was consequently terminated. Mr. Willis' termination was not, therefore, an unlawful employment practice of discrimination. See Solomon v. Department of Transportation, 541 So.2d 691 (Fla. 1st DCA 1989): and Housing Authority v. Billingslea, 464 So.2d 1221 (Fla. 5th DCA 1985).

    
    

22. Finally, Mr. Willis failed to prove that the Department's legitimate, nondiscriminatory reasons for the actions it took with regard to him were merely a pretext.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final

Order dismissing Charles H. Willis' Petition for Relief.

DONE AND ENTERED this 13th day of December, 1993, in Tallahassee, Florida.

LARRY J. SARTIN

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 13th day of December, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1953

The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

Mr. Willis' Proposed Findings of Fact

1. Accepted in 1, 3 and 5.

2. Accepted in 7 and 9.

3. Accepted in 14. The last sentence is oversimplified and leaves out relevant facts. See findings of fact 20-24.

4. Accepted in 17-19. The last sentence is not supported by the weight of the evidence. See finding of fact 20.

5. Accepted in 22 and 26.

The Department's Proposed Findings of Fact

36 Hereby accepted. 37-38 Not relevant.

1. Accepted in 28.

2. Accepted in 33.

COPIES FURNISHED:

Marc E. Taps, Esquire

Legal Services of North Florida, Inc. 2119 Delta Boulevard

Tallahassee, Florida 32303

Dorothy S. Johnson Assistant General Counsel

Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32399-0450

Sharon Moultry, Clerk

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana Baird, Esquire

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

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: 93-001953

Orders for Case No: 93-001953