STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HOWARD D. KLINE, )

)

Petitioner, )

)

vs. ) CASE NO. 93-2717

) JERNIGAN'S FOUR WINDS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Panama City, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on November 22, 1993. No appearance was made on respondent's behalf.

APPEARANCES

For Petitioner: Nancy L. Jones

Post Office Box 2062

Panama City, Florida 32401 STATEMENT OF THE ISSUES

Whether respondent is an employer within the meaning of the Florida Civil Rights Act of 1992? If so, whether respondent unlawfully discriminated against petitioner on account of his HIV positive status?

PRELIMINARY STATEMENT

In response to petitioner's complaint that respondent discriminated against him on account of a handicap, the Florida Commission on Human Relations (FCHR) conducted an investigation, which eventuated in a "NOTICE OF DETERMINATION: NO CAUSE" issued April 23, 1993.

Petitioner subsequently filed a formal petition for relief from an unlawful employment practice, pursuant to Rule 22T-9.008(1), Florida Administrative Code, see Publix Supermarkets, Inc. v. Florida Commission on Human Relations, 470 So.2d 754 (Fla. 1st DCA 1985), which the FCHR transmitted to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1991).

The only witnesses at the formal hearing were petitioner and Nancy S. Nichols.

FINDINGS OF FACT

1. In early August of 1992, petitioner Howard D. Kline began work as a waiter for respondent, making at least $189 per week.

2. Fearing he might be infected, he gave blood samples on September 21, 1993, at the Bay County Public Health Unit and asked that they be tested for human immunodeficiency virus (HIV).

   
   

3. The samples were sent to Jacksonville, and one was forwarded to the Center for Disease Control in Atlanta, Georgia.

   
   

4. On September 28, 1992, a report of diagnostic testing done on petitioner's blood in Jacksonville, Petitioner's Exhibit No. 1, was mailed to the health department in Panama City.

   
   

5. It reached Nancy S. Nichols, who worked at the Bay County Public Health Unit, on or before October 6, 1992. She had seen the results by the time she talked to Mr. Kline on October 6, 1992, and advised him that he had tested positive.

   
   

6. The following day Mr. Kline stopped by the Four Winds restaurant to speak to Barbara Zaleski; wife of (one of) respondent's owners (and possibly herself a co-owner.)

   
   

7. Although the restaurant had both a manager and an assistant manager, Ms. Zaleski had authority to hire and fire staff. When Mr. Kline told her of his affliction, she wept sympathetically, then told him he could no longer work at the restaurant because it was bad for business.

   
   

8. On October 8, 1993, word reached Mrs. Nichols that the diagnostic testing of petitioner's blood done in Atlanta confirmed the earlier, positive diagnosis.

   
   

9. Approximately a week later petitioner stopped by the restaurant to pick up his final paycheck. Two weeks elapsed after his discharge before he found another job. During the two-week hiatus, he lost wages totalling $378.

   
   

10. The restaurant hired a waitress to take petitioner's place. The evidence did not reveal her status as regards human immunodeficiency virus.

    
    

11. Respondent employed (a) cook(s) and (a) bookkeeper(s) as well as serving staff, an assistant manager and a manager, until it closed, more than three months after petitioner's discharge. The total number of respondent's employees was not proven, nor the total number of people respondent employed at any one time.

    
    

12. Services of an attorney worth $4,700 have reasonably been required in the presentation of this claim, but these services would, except for $125 have also been necessary for the presentation of the same claim in court.

    
    

    CONCLUSIONS OF LAW

    
    

13. Since FCHR referred respondent's hearing request to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1993), "the division has jurisdiction over the formal proceeding," Section 120.57(1)(b)3., Florida Statutes (1993), including jurisdiction over any jurisdictional questions presented. Section 760.10(1)(a), Florida Statutes (1993) makes it unlawful for an "employer" to "discharge . . . any individual with respect to compensation, terms, conditions or privileges of employment, because of such individual's . . . handicap."

14. Employers must reasonably accommodate employees' known handicapping conditions. While FCHR has dismissed handicap discrimination complaints on grounds that employees failed to identify their conditions for their employers as handicaps, or failed specifically to request an accommodation by their employers, see, e.g., Lanham v. Seamless Hospital Products, 8 Fla. Admin. L. Rep. 4703, 4709 (FCHR 1986); Harvey v. Alachua County Board of County Commissioners, 12 Fla. Admin. L. Rep. 2661, 2668 (FCHR 1990); Shepherd v. Redman Homes, 10 Fla. Admin. L. Rep. 1611, 1615 (FCHR 1988), Mr. Kline apprised his employer of his handicap, and his firing precluded any request for accommodation. Petitioner proved that respondent unilaterally terminated his employment on account of his positive HIV status.

    
    

15. Whether petitioner's discharge violated the Florida Civil Rights Act of 1992 turns here on whether respondent is an employer within the meaning of the Act. The Florida Civil Rights Act of 1992 outlaws discrimination of the kind petitioner experienced only when it occurs at the hands of a party employing "15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year." Section 760.02(7), Florida Statutes (1993). Petitioner has not proven entitlement to recover lost wages or attorney's fees under the Florida Civil Rights Act of 1992, Sections 760.01-760.11 and 509.092, Florida Statutes (1993), because he has not proven that respondent falls within the class of employers over which FCHR has jurisdiction. Nor apparently is petitioner now able to bring any judicial proceeding under the Florida Civil Rights Act of 1992.

    
    

16. But Petitioner has also invoked Section 760.50, Florida Statutes (1993), contending that he is entitled to "liquidated damages of $5,000 or actual damages, whichever is greater." Section 760.50(6), Florida Statutes (1993). The statute provides this remedy against any person who intentionally "discharge[s] any individual . . . on the basis of knowledge or belief that the individual has taken a human immunodeficiency test or the results or perceived results of such test . . . ." Section 760.50(3)(b), Florida Statutes (1993).

    
    

17. While recoverable absent proof that the person guilty of discrimination meets the definition of employer set out in Section 760.02(7), Florida Statutes (1993), this remedy is available only in an "action in the circuit court." Section 760.50(6)(a), Florida Statutes (1993). In the circumstances, the entitlement to sue in circuit court conferred by Section 760.50(6), Florida Statutes (1993) is the only avenue provided by Chapter 760, Florida Statutes, which remains open to petitioner.

RECOMMENDATION

It is, accordingly, RECOMMENDED:

That the FCHR dismiss the petition, without prejudice to petitioner's proceeding in circuit court on any claim not predicated on the Florida Civil Rights Act of 1992, Sections 760.01-760.11 and 509.092, Florida Statutes (1993).

DONE AND ENTERED this 14th day of December, 1993, in Tallahassee, Florida.

ROBERT T. BENTON, II

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 14th day of December, 1993.

COPIES FURNISHED:

David L. Jernigan 3020 Kingswood Drive

Panama City, Florida 32405

Nancy L. Jones

Post Office Box 2062

Panama City, Florida 32401

Sharon Moultry, Clerk Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana Baird, General Counsel 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: 93-002717

Orders for Case No: 93-002717