STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KYLE McNEIL, )

)

Petitioner, )

)

vs. ) Case No. 00-0986

) SCHOOL BOARD OF ORANGE COUNTY, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held before the Division of Administrative Hearings by Daniel M. Kilbride, Administrative Law Judge, on May 19, 2000, by video conference to Orlando, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Kyle McNeil, pro se

523 Hicksmore Drive Apartment A

Winter Park, Florida 32792

For Respondent: Frank Kruppenbacher, Esquire

Orange County School Board

445 West Amelia Street Orlando, Florida 32801

STATEMENT OF THE ISSUE

Whether Petitioner was wrongfully terminated from her position as a human resource assistant with Respondent because of her perceived handicap, in violation of Section 760.10(1)(a), Florida Statutes.

PRELIMINARY STATEMENT

Petitioner timely filed a Charge of Discrimination with the Florida Commission on Human Relations (FCHR) on July 26, 1995.

Following inaction by the Commission, a Petition for Relief was not filed; however, on January 6, 2000, Petitioner completed an FCHR form requesting an administrative hearing. Thereafter, on February 29, 2000, this matter was transmitted to the Division of Administrative Hearings for hearing. Following discovery, this hearing was held on May 19, 2000.

At the hearing, four exhibits were admitted as joint exhibits. Petitioner testified in her own behalf and introduced four other exhibits in evidence. Respondent offered the testimony of one witness and entered no exhibits in evidence.

The Transcript of the proceedings was filed on July 17, 2000. Respondent filed a Proposed Recommended Order on August 25, 2000. Petitioner has not filed proposals as of the date of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. Petitioner, a 33-year-old female, was hired by Respondent on or about February 6, 1995, as a temporary employee as a human resource assistant in the Personnel Services Department of the School Board of Orange County.

2. Petitioner received the same training given to all new employees in her position. One employee in the department served as the primary trainer and Petitioner relied on her for training and assistance.

3. On April 10, 1995, Petitioner was evaluated on her ability to perform in her temporary assignment. The assessment reflected satisfactory performance for the period February 6, 1995, through April 10, 1995. Petitioner demonstrated the ability to provide good telephone skills when dealing with customers.

4. Petitioner did not notify Respondent that she was disabled or that she required a reasonable accommodation in order to perform her job.

5. During this period, Petitioner was recommended to fill a regular position in the same department to replace an employee who had retired.

6. Petitioner's regular position was effective May 1, 1995. As was customary, Petitioner was on probationary status for a six-month period following that appointment.

7. The new position required Petitioner to work more independently than the temporary position had required.

8. Shortly thereafter, Petitioner successfully completed her formal training and was responsible for her own workload and prioritized work tasks.

9. At the time Petitioner assumed her new position all work in the area was current with no tasks pending.

10. Shortly after her appointment to her new position, Petitioner demonstrated she was experiencing extreme difficulty in handling the detailed process that is required in order to complete tasks of the position.

11. Petitioner received limited assistance to help her better understand the process; however, her skill level continued to deteriorate.

12. During the period May 1, 1995, through July 14, 1995, Petitioner showed signs of stress and nervousness while at work and was late four times and took sick leave on two occasions.

13. Petitioner did not discuss her "disability" or that she was having "psychological" problems with her supervisors.

14. Petitioner was not regarded as having a physical or mental impairment while on probationary status.

15. On July 14, 1995, Petitioner was terminated from her position while on probation. Petitioner was given the option of taking a probationary letter of termination or resigning. Petitioner submitted a letter of resignation.

16. The basis for Petitioner's termination was that she was unable to effectively manage the technical aspects of the position; deterioration in her communication skills; and concern for the reasons for her absence and tardiness during her probationary period.

17. Petitioner is not a disabled person, nor was she perceived to be disabled by her employer.

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to Subsections 120.569 and 120.57(1), Florida Statutes.

19. Petitioner contends that she was unlawfully discharged by Respondent because it discriminated against her due to her handicap. Petitioner relies on the Florida Civil Rights Act of 1992, Section 760.10, et seq., Florida Statutes (1994). The Civil Rights Act prohibits certain specified unlawful employment practices and provides remedies for such violations.

20. That statute provides, in pertinent part, as follows:

    
    

    760.01 PURPOSES, CONSTRUCTION; TITLE

    
    

    * * *

    
    

    1. The general purposes of the Florida Civil Rights Act of 1992 are to secure for all individuals within the State freedom from discrimination because of race, color, religion, sex, national origin, age, handicap, or marital status and thereby to protect their interest in personal dignity, to make available to the state their full productive capacities, to secure the state against domestic strife and unrest, to preserve the public safety, health and general welfare, and to promote the interests, rights, and privileges of individuals within the state.

       
       

    2. The Florida Civil Rights Act of 1992 shall be construed according to the fair import of its terms and shall be liberally

    construed to further the general purposes stated in this section and the special purposes of the particular provisions involved.

    
    

    * * *

    
    

    760.10 Unlawful employment practices.-

    
    

    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. Notwithstanding any other provision of this section, it is not an unlawful employment practice under ss. 760.01-760.10 for an employer, . . . to:

       1. Take or fail to take any action on the basis of . . . handicap . . . in those certain instances in which . . . absence of a particular handicap . . . is a bona fide occupational qualification reasonably necessary for the performance of the particular employment to which such action or inaction is related.

21. The Florida Civil Rights Act is patterned after Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e-2. School Board of Leon County v. Weaver, 556 So. 2d 443 (Fla. 1st DCA 1990). In Florida, there is a long-standing rule of statutory construction which recognizes that if a state law is patterned after a federal law on the same subject, the Florida law will be accorded the same construction as in the federal courts to the extent the construction is harmonious with the spirit of the

    Florida legislation. O'Loughlin v. Pinchback, 579 So. 2d 788 (Fla. 1st DCA, 1991).

22. In Department of Corrections v. Chandler, 581 So. 2d 1183 (Fla. 1st DCA 1991), the court analyzed the types of claims under the Florida Civil Rights Act. In that case, the court noted as follows:

    Pertinent federal case law discloses two means by which a discriminatory employment claim may be tried. The first, . . ., by showing disparate treatment, and the second, by showing discriminatory impact. When employing the former, a claimant must establish an employer's intentional discrimination, however, as to the latter, intentional discrimination is not required, and the claimant essentially challenges practices which are fair in form but discriminatory in operation. (Citations omitted) Id. at 1821 n.2

23. Petitioner in this case has sought to establish a disparate treatment claim. The Chandler court delineated the procedure for establishing a disparate treatment claim. The Court held as follows:

    The United States Supreme Court set forth the procedure essential for establishing such claims in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (3 S. Ct. 1817, 36 L.Ed. 2d 668

    (1973), which was then revisited in detail in Texas Department of Community Affairs v.

    Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67

    L.Ed.2d 207 (1981). Pursuant to the Burdine formula, the employee has the initial burden of establishing a prima facie case of intentional discrimination, which once established raises a presumption that the employer discriminated against the employee. If the presumption arises, the burden shifts to the employer to present sufficient evidence to raise a genuine issue of fact as

    to whether the employer discriminated against the employee. The employer may do this by stating a legitimate, nondiscriminatory reason for the employment decision; a reason which is clear, reasonably specific, and worthy of credence. Because the employer has the burden of production, not one of persuasion, which remains with the employee, it is not required to persuade the trier of fact that its decision was actually motivated by the reason given. If the employer satisfies the burden, the employee must then persuade the fact finder that the proffered reason for the employment decision was pretext for intentional discrimination. The employee may satisfy this burden by showing directly that a discriminatory reason more likely than not motivated by the decision, or indirectly by showing that the proffered reason for the employment decision is not worthy of belief. If such proof is adequately presented, the employee satisfies his other ultimate burden of demonstrating by a preponderance of evidence that he or she has been the victim of intentional discrimination. (citations omitted).

24. In order for Petitioner to prevail in a disparate treatment case and obtain the relief she seeks, Petitioner must establish that Respondent's employment decision was based on a protected status, i.e., Petitioner's handicap. In this case, Petitioner has the burden of presenting evidence sufficient to establish that her handicap (psychological stress) was a determining factor in the employment decision made to discharge her. See U.S. Postal Service Board of Governors v. Aikens, 460

    U.S. 711, 715 (1983); Penna v. Brattleboro Retreat, 702 F.2d 812 (10th Cir. 1978). In other words, Petitioner must prove that what motivated Respondent to discharge her was her mental condition or Respondent's perception of her mental condition.

25. The Florida Commission on Human Relations has adopted federal standards for allocating the burden of proof in handicap discrimination claims. See, e.g., Hunter v. Winn-Dixie Stores, Inc., FCHR Case No. 82-0799 (Feb. 23, 1983). Accordingly, Petitioner must prove:

    1. That [she] is a handicapped person within the meaning of the Florida Civil Rights Act;

       
       

    2. That [she] is otherwise qualified for the position in question; and

       
       

    3. That [she] was discharged from her position solely by reason of her handicap. Brand v. Florida Power Corporation, 633 So.2d

       504 at 510 (Fla. 1st DCA 1994). See also 29

       U.S.C. Section 794.

       
       

26. Under the Florida Civil Rights Act and the federal Americans with Disabilities Act (ADA), a person is considered to have a disability if he or she: (1) has a physical or mental impairment which substantially limits one or more of major life activities; (2) has a record of such impairment; and (3) is regarded as having such impairment. Gordon v. E.L. Hamm and Associates, 100 F.3d 1029, 1032 (11th Cir. 1996).

27. Petitioner, at all times relevant to this action, has failed to prove that she suffered from a disability, and that she is a handicapped person within the meaning of the Florida Civil Rights Act or the ADA.

28. Petitioner has failed to met her burden of proving that she is otherwise qualified to perform the essential functions of the position.

29. Petitioner produced no credible evidence that any supervisor or other employee of Respondent made the decision to terminate her based upon a handicap, either perceived or real.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Charge of Discrimination with prejudice.

DONE AND ENTERED this 31st of August, 2000, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2000.

COPIES FURNISHED:

Sharon Moultry, Clerk

Florida Commission on Human Relations Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

Dana A. Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

Kyle McNeil

523 Hicksmore Drive Apartment A

Winter Park, Florida 32792

Frank Kruppenbacher, Esquire Orange County School Board

445 West Amelia Street Orlando, Florida 32801

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 00-000986

Orders for Case No: 00-000986