Tadlock (Tadlock), filed with the Florida Commission on Human Relations (Commission) a complaint of discrimination alleging that the Respondent, Bay County Energy Systems, Inc. (Energy Systems), had violated the Florida Civil Rights Act of 1994 by terminating him on the basis of handicap. On April 5, 1995, the Florida Commission on Human Relations found no basis for Tadlock’s complaint and issued a “no cause” determination of Tadlock’s claim. It notified the parties of its determination. (The determination of no cause also advised Tadlock of his right to a file petition for relief). On May 17, 1995, the Commission issued a Notice of Dismissal based on the Tadlock’s failure to file a timely petition for relief. Subsequently, Tadlock alleged that he had not received the previously issued determination of no cause. On July 31, 1995, in response Tadlock’s assertion, the Commission rescinded its dismissal and provided Tadlock 30 days to file a petition for relief. Subsequently, Tadlock filed a petition for relief pursuant to section 760.11(7), Florida Statutes. This cause was later assigned to the undersigned administrative law judge for adjudication.
This matter was initially scheduled for December 9, 1996.
After a contested Motion for Continuance was granted, this matter proceeded to hearing on January 9, 1997.1 At the hearing, the undersigned considered two motions before moving to the merits of the petition. The first motion was styled as a Motion to Quash Subpoena or Motion for Protective Order regarding a subpoena
duces tecum served on Richard Brookins, an employee of Energy Systems. After hearing arguments from counsel, the undersigned granted the Motion to Quash. The undersigned determined that the subpoena was not served in an appropriate time and that the documents requested were not listed in the Prehearing Stipulation. The second motion related to the scope of the petition. Specifically, Energy Systems asserted that Tadlock was limited by his initial complaint and to the extent that his subsequent petition was broader, the initial complaint controls. After receiving argument on this motion, the undersigned denied Energy Systems’ motion and ordered that Tadlock was permitted to address any issue contained in his complaint that related to his assertion that he was dismissed for discriminatory reasons.
proceeded to hearing. At the hearing, Energy Systems designated Richard Brookins as its corporate representative. In addition, the parties invoked the rule of sequestration. Mr. Printy called Tadlock and four witnesses: Willie Duncan, Chris Wright, J.B. Sparks, and Joe Welch and submitted Petitioner’s Composite Exhibit 1, the entire file of the Human Relations Commission; and Petitioner’s Exhibit 2, an Affidavit of William Race.2 Energy Systems cross-examined Tadlock’s witnesses, produced one witness, James Leddy, and offered one exhibit that was admitted without objection.3
The parties elected not to transcribe the proceedings. At the hearing, the parties requested the right to file proposed findings of fact and conclusions of law in the form of Proposed
Recommended Orders. Subsequently, Tadlock informed the undersigned that he would not be filing a proposed recommended order but that he reserved the right to file exceptions. On January 22, 1997, Energy Systems filed a proposed order which was reviewed and considered by the undersigned.
The Petitioner, John Tadlock, (Tadlock) is a white male, age 46, and a resident of Panama City, Bay County, Florida.
The Respondent, Westinghouse Electric Company, d/b/a Bay County Energy Systems, Inc. (Energy Systems), was and is a corporation organized and existing under the laws of the State of Florida.
Energy Systems maintains a facility that collects garbage and burns it as fuel. The operation serves two basic functions. First, it disposes of unwanted garbage. Second, it produces energy by creating steam that in turn drives a turbine and produces electricity.
From January, 1987, until September, 1993, Tadlock was employed by Energy Systems. Tadlock began as a B-class maintenance mechanic and advanced to the position of A-class maintenance mechanic. Subsequently, Tadlock moved to the operations portion of the company where he worked on boilers.
Tadlock testified that he suffered injuries while at work during the years 1987, 1991, and 1993. Tadlock further testified that after each injury he recovered fully and resumed work at Energy Systems.
As a result of the injuries sustained in his accidents at Energy System, Tadlock never testified that he was informed by any physician that he would have any permanent restrictions.
In addition, at no time did Tadlock inform his employer, Energy Systems, that he suffered from any disability or restrictions relating to his ability to perform his job.
During the period from October, 1991 through September, 1993, Tadlock had been cited for numerous violations of company policy and provided written warnings or reprimands.
The first such violation occurred on October 24, 1991, when Tadlock was cited for violating company policy by failing to wear appropriate safety gear. Specifically, Tadlock failed to wear his indirect venting goggles. The memorandum memorializing the complaint noted that just two days prior to the complaint, Tadlock had received emergency training and, in response to a direct question raised by Tadlock, was informed that he must wear venting goggles.
On September 17, 1992, Tadlock was cited for a safety violation for failing to wear appropriate hearing protection devices. As a result of this violation, Tadlock was given an oral warning.
On June 3, 1993, Tadlock was cited for failing to wear gloves while on the floor of the facility. As a result of this violation of safety procedure, Tadlock was orally counseled on the correct policy and informed that such departure from set safety procedures would not be acceptable.
On June 14, 1993, Tadlock was cited for failing to wear a personal respirator while in specific areas of the facility in violation of published safety procedures.
On June 25, 1993, Tadlock received a written warning regarding his “unsatisfactory” safety record. Specifically, Tadlock was informed that he had a total of eleven accidents since his employment and that five of them were reportable to OSHA. The memorandum warned Tadlock that if he failed to show “immediate and sustained” improvement in his accident rate that he would be subject to disciplinary action.
On July 30, 1993, Tadlock was verbally warned for failing to properly replace “pig pans” under an air dryer that resulted in oil running into a water drain.
On August 31, 1993, Tadlock was verbally warned for failing perform his duties as an outside operator by failing to properly read his turnover log. As a result of his lack of action, Tadlock placed 55 gallons of bleach into a drainage basin.
On September 19, 1993, Tadlock was informed, for a second time, that his safety record continued to be unsatisfactory. The letter referenced two accidents that occurred in August, 1993, that could have been avoided by practicing proper safety measures. As a result of those accidents and for his many past safety violations, Tadlock was suspended for three working days.
Tadlock was offered employee assistance to help him perform his work in a more satisfactory and safe manner.
On September 28, 1993, Tadlock was cited for a safety violation for failing to wear the appropriate shields on his prescription glasses.
On October 10, 1993, Tadlock was cited for failing to properly maintain a boiler operator sheet log. This was the second time that Tadlock had been cited for improper maintenance of a log. Tadlock was also informed that if this type of action happened again, it would result in discipline.
On October 15, 1993, Tadlock was observed urinating on the Boiler Room floor of the facility. Tadlock was cited for violating several rules of company conduct. A result of violating this company policy, coupled with the countless verbal and written warnings he had received, Tadlock was dismissed for cause.
At the hearing, Tadlock admitted that he urinated on the floor of the facility but countered that he had no choice because Energy Systems failed to properly maintain its restroom.
Tadlock was unable to support his assertion that there were no operating restroom facilities. First, in spite of every witness called by Tadlock, there was no testimony, even from Tadlock himself, that any of the bathrooms were not in working order.4
Energy Systems maintained that it had operational restroom facilities throughout its facilities. In addition, no competent evidence was presented that indicated that any of the restroom facilities were inoperable thus requiring someone to urinate in the middle of the facility.
After being fired for the numerous safety violations and for violating company policy, Tadlock filed a complaint with the Commission on Human Relations alleging that he was discriminated against because of his handicap.
Specifically, Tadlock asserted that he had suffered several on-the-job injuries that rendered him disabled and that he was discriminated because of the type injury or the lack of adequate medical treatment that he received. Such allegations were never proven and appear irrelevant to these proceedings. Specifically, any issues relating to his medical treatment and his injuries are more appropriately resolved in a worker’s compensation forum.
At no time during his employment with Energy Systems did Tadlock inform his employer that he suffered from a handicap. Furthermore, there is no evidence that Energy Systems was aware that Tadlock suffered a disability or handicap.
For example, Mr. James M. Leddy, the plant manager for Energy Systems testified that he was not aware of any condition which prevented Tadlock from functioning in a normal manner.
The record is void of any evidence by a physician to indicate that Tadlock was considered disabled or handicapped.
Mr. Dale J. McKeand, Manager of Plant Operations for Energy Systems, stated that Tadlock was not disabled and never asked for any accommodation for his “condition.”
In addition, Mr. Richard S. Brookins, an industrial hygiene, safety and environmental coordinator for Energy Systems, stated that Tadlock worked full-time with no medical or duty
restrictions and that he was terminated for his safety violations including urinating on the boiler room floor.
Assuming that Tadlock could prove that he was handicapped, his actions after he was dismissed do not indicate a person with a handicap. Specifically, immediately after Tadlock’s dismissal, Tadlock opened a skinning shop for the purpose of skinning wild game (alligators, etc.). Skinning is a very physical job and it requires an individual to handle large game animals for the purpose of skinning hides from the carcasses of the animals.
For the reasons stated above, there is no evidence to support that Tadlock was dismissed for any reason other than cause.
CONCLUSIONS OF LAW
Tadlock brought the instant action pursuant to section
760.11 (1), Florida Statutes, the Florida Civil Rights Act. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to section 120.57(1), Florida Statutes.
Tadlock is an employee within the meaning of section 760.10(1)(a), Florida Statutes (1996 Supp.).
Energy System is an employer within the meaning of section 760.02(7), Florida Statutes (1996 Supp.).
Section 760.10(1)(a), Florida Statutes (1996), governs this dispute and provides that it is an unlawful employment practice for an employer to discharge any individual because of an individual’s handicap. Specifically, the section provides:
It is an unlawful employment practice for an employer:
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. (emphasis provided).
The Petitioner, Tadlock, bears the burden of establishing a prima facie case of discrimination. McDonnell v. Green, 111 U.S. 792 (1973). Once the Petitioner establishes a prima facie case by a preponderance of the evidence, the burden shifts to the Respondent to articulate some legitimate, nondiscriminatory reason for its action. Once the Respondent has articulated a reason for its action, the Petitioner must prove by a preponderance of the evidence that the Respondent’s articulated reason was not the true reason, but was a pretext for discrimination. See St. Mary’s Honor Center v. Hicks, 113 S.Ct. 2742,2747 (1993).
To establish a prima facie case of employment discrimination, the Petitioner must show (1) that he or she is a handicapped individual under the act, (2) that he or she is otherwise qualified for the position sought or hired, (3) that he or she was excluded from the position sought solely by reason of his or her handicap, and (4) that the program or activity receives federal financial assistance. Brand v. Florida Power Corp., 633 So.2d 504 (Fla. 1st. DCA 1994). The fourth criterion is inapplicable to a claim brought pursuant to Florida’s Human Rights Act. Id.
Based on the test enunciated in Brand, Tadlock has failed to establish a prima facie case of handicap discrimination, and as such, the petition for relief must be denied. Brand, 633 So.2d 504, 510 (Fla. 1st DCA 1994). First, he never proved that he was handicapped. While he claims that he had suffered past work-related injuries, there is no testimony to indicate that he was handicapped. Second, Tadlock never notified his employer of his alleged disability. He testified that after the 1993 accident he resumed work and that there were no restrictions placed on his physical duties. Third, even assuming that Tadlock has met his burden of proving that he was disabled and proving that his employer knew of his disability and discriminated against him, it does not mean that Tadlock cannot be dismissed for cause. Crawford v. David Shapiro & Co., P.A., 490 So.2d 993, 996 (Fla. 3d DCA 1986).
Because Tadlock failed to meet his burden, Energy
Systems has no burden to produce rebuttal evidence and the judgment must be entered in favor of Energy Systems.
Even if a prima facia case had arguably been made, Energy Systems has rebutted this proof by articulating a legitimate, nondiscriminatory reason for its actions - poor job performance and unsafe job performance. Specifically, on over ten occasions Tadlock was cited for improper and inadequate job performance. Furthermore, Tadlock was even temporarily suspended for such behavior and offered counseling, yet his pattern of behavior continued. Thus, Energy Systems appeared more than justified when it dismissed Tadlock.
Energy Systems’ reason for termination was clear, reason specific, worthy of credence, and supported by written documentation from Tadlock’s supervisors.
The undersigned finds that Tadlock failed to prove by a preponderance of the evidence that Energy System intentionally discriminated against him when his employment was terminated. As such, the complaint against Energy Systems should be dismissed with prejudice.
In addition to the underlying claim, both parties requested an award of attorney’s fees as the prevailing party. Section 760.11(7), Florida Statutes (1996) relates to the administrative hearing process after the Human Relations Commission has made a determination of “no cause.”
It provides that if:
The administrative law judge finds that a violation of the Florida Civil Rights Act of 1992 has occurred, he or she shall issue an appropriate order to the commission prohibiting the practice and recommending affirmative relief from the effects of the practice, including back pay . . . . In any action or proceeding under this subsection, the commission, in its discretion, may also allow the prevailing party reasonable attorney’s fees as costs. (emphasis provided).
Because the issue of attorney’s fees lies in the discretion of the Commission and not the undersigned, this matter is deferred to the commission for its consideration and disposal. In addition, the parties treated the issue of attorney’s fees as an afterthought and offered neither case law nor evidence to support their claims.
