STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
WILLIAM POSTON,
Petitioner,
vs.
NASSAU COUNTY PUBLIC WORKS DEPARTMENT,
Respondent.
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) Case No. 02-0381
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RECOMMENDED ORDER
Upon due notice, a disputed-fact hearing was held in this case before Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings, on April 11-12, 2002, in Yulee, Florida.
APPEARANCES
For Petitioner: Jerilynn M. O'Hara, Esquire
J. Stephen O'Hara, Esquire O'Hara, Spradley & Waters
4811 Beach Boulevard, Suite 303
Jacksonville, Florida 32207
For Respondent: Michael S. Mullin, Esquire
Nassau County Board of County Commissioners Post Office Box 1010
Fernandina Beach, Florida 32035-1010
STATEMENT OF THE ISSUES
Whether Petitioner may proceed in this forum without receiving a Determination by the Florida Commission on Human Relations; and, if so,
Whether Respondent committed an unlawful employment practice against Petitioner upon the basis of handicap.
PRELIMINARY STATEMENT
Petitioner's Charge of Discrimination on the basis of age and handicap was filed June 18, 2001, with the Florida Commission on Human Relations. (Bench Exhibit 1) The Commission assigned its investigation to the federal Equal Employment Opportunity Commission (EEOC).
On November 19, 2001, the EEOC entered its determination that it was "unable to conclude that the information obtained established violations of the statutes." At that time, more than
180 days had passed since the Charge of Discrimination had been filed, without the Florida Commission's entering its determination.
Without awaiting a determination from the Florida Commission and without requesting a "right to sue" letter, Petitioner filed, on December 13, 2001, a Petition for Relief with the Florida Commission. This Petition was filed within 35 days of the EEOC's November 19, 2001, determination. On or about
December 31, 2001, the Florida Commission transmitted the Petition to the Division of Administrative Hearings.
Respondent's Motion to Dismiss upon jurisdictional grounds was denied after additional filings and oral argument.
At final hearing, the Charge of Discrimination was admitted as Bench Exhibit 1, and Petitioner waived the charge of "age" discrimination, limiting himself to alleged "handicap discrimination," pursuant to Section 760.10(1)(a), Florida Statutes.
Petitioner presented the oral testimony of Aimee Steele Noble, David Scott Crawford, M.D., and Donald P. Twiggs, M.D., and testified on his own behalf. Petitioner's Exhibits 1-16 were admitted in evidence.
Respondent presented the oral testimony of Brenda Rothwell, Jack D'Amato, and Susan Abels. Respondent's Exhibits 1a-c, 3a-c, 4a-d, 5, 6a-c, and 10a, were admitted in evidence.
No Transcript was provided.
The Joint Pre-hearing Stipulation and both Proposed Recommended Orders, timely filed under the parties' agreed extended time frame, have been considered.
FINDINGS OF FACT
Paragraphs 1-3 of the Preliminary Statement are adopted as Findings of Fact.
Respondent is an "employer" within the definition of Section 760.02(7), Florida Statutes.
Petitioner was hired in January 1996, as a Code Enforcement Officer. His job description entailed inspecting property within Nassau County, writing up inspection reports, and assisting in the prosecution of violations, as follows:
MAJOR JOB DUTIES:
Inspects residential and non-residential properties to determine whether properties are in compliance with County zoning code, sign ordinance, litter ordinance, 911 house numbering, and other codes and ordinances.
Inspects active construction sites for compliance with building permits and contractor licensing requirements.
Inspects buildings for unsafe conditions and initiates abatement actions on emergency conditions.
May be required to offer testimony in Court regarding condition of persons and/or properties which have been found to be in violation of applicable County codes or ordinances.
Prepares records and reports on observed violations and identifies improvements needed or conditions requiring correction.
Performs re-inspections; prepares necessary records and reports regarding re-inspections.
Maintains a current knowledge of all codes, ordinances, procedures and techniques involved in the field of code enforcement.
Counsels with contractors and property owners and participates in meetings and events to promote citizen understanding of County ordinances and codes.
(The Major Job Duties are not a complete statement of all duties required of the job. Incumbents will be required to perform such other related job duties as may be assigned or required.) (P-1)
Once a Code complaint was determined by inspection to be "founded," a 30-day warning was issued to the offender, and a recheck inspection was made on the 30-day deadline. Depending upon extensions and cleanup progress, a citation to appear in court or before the County Code Enforcement Board was issued. (P-15)
Petitioner was hired with the understanding that he had one year in which to earn either a Level II Florida Code Enforcement Officer Certification or a Level II Florida Law Enforcement Officer Certification. He did not timely meet either requirement. Respondent had to prompt him, as described below.
In February 1997, Petitioner was hospitalized for two weeks and diagnosed as having "bi-polar disorder." Upon competent medical testimony, it is found that: Bi-polar disorder is a lifelong mental condition which impairs one's ability to concentrate and which can substantially limit one's major life
activities. People with bi-polar disorder are more susceptible to stress than people who do not suffer from that condition.
Petitioner was prescribed medications for his bi-polar disorder, the side-effects of which also include impairment of concentration. In Petitioner's case, his bi-polar disorder, or the medicines prescribed to treat it, or a combination of both, manifested as mild paranoia and a lack of focus. According to his psychiatrist, Petitioner's perceptions, particularly of others' motivations, may not be entirely accurate, and he can be distracted from his work by "thoughts of special meaning." Petitioner would benefit from structure in his daily work. The amount of structure Petitioner needs depends upon his medical condition at any given time.
However, with proper medication to stabilize his condition, medical personnel felt Petitioner was capable, upon release in 1997 and at the date of hearing, of performing the duties of a Code Enforcement Officer as described above.
As of the date of hearing, Petitioner was employed by a medical transport company as a driver. He picks up people at their homes and drives them to various hospitals and doctors' offices for medical appointments throughout three counties. He does this 40 hours per week plus 30-35 hours of overtime every three weeks.1 His employer provides him with a "manifest,"
listing the names and addresses for pickup, with the pickup time and destination for medical care. He repeats trips to many locations, and he uses a map for unfamiliar locations. He considers this manifest to be the only type of "agenda" he needs to do his current job.
Petitioner's problems with daily living, due to his bi-polar disorder, include significant weight gain, needing his wife to set out his morning medications, and an inability to maintain his train of thought in daily life as well as in his professional life.
When stabilized and released from the hospital in 1997, Petitioner returned to work. Respondent's Risk Management (insurance) and Human Resources Offices knew that he had some mental condition. His secretary, Aimee Steele, knew he had suffered a "nervous breakdown," Petitioner's term. Jack D'Amato, Chief of Public Works, knew that Petitioner's hospitalization had been "stress-related." However, Petitioner did not disclose his condition or request any special accommodation of his bi-polar condition from his superiors at that time.
Petitioner was Respondent's sole Code Enforcement Officer from January 29, 1996, to March 1, 2000. During this period, his daily work was largely unsupervised. Until February 2000, Petitioner clocked in and out with a card in a time clock,
and there was little or no oversight by his superiors of his arrival and departure times.
Aimee Steele was hired as secretary for the Code Enforcement Office two weeks before Petitioner's 1997 hospitalization. In effect, this meant she acted as Petitioner's private secretary from that date until March 1, 2000, when Brenda Rothwell was hired as a second Code Enforcement Officer.
Ms. Steele quit approximately two weeks after Brenda Rothwell was promoted to Code Enforcement Manager. However, while Ms. Steele was employed in the Code Enforcement Office, she and Petitioner were good friends. After she left Respondent's employ, Ms. Steele married one of Petitioner's in-laws. She remains Petitioner's good friend.
It was always Petitioner's responsibility to select appropriate continuing education courses, get prior approval from his superiors, and submit reimbursement claims through Office Manager Sue Abels. While Ms. Steele was employed, she typed all the paperwork and Petitioner relied on her to do everything necessary except select his courses.
Petitioner got his job assignments from a file basket with his name on it into which complaints taken by telephone and other forms were placed. Apparently, while she was employed Ms. Steele wrote-up many of the telephone complaints, went into the filing cabinet to get out forms relative to 30-day rechecks,
and put this information in Petitioner's file basket. Petitioner agreed that, regardless of his bi-polar diagnosis, these materials were sufficient to direct him to various inspection sites without any further directions.
On August 15, 1997, Mr. D'Amato sent Petitioner a memorandum which reflected that repeated oral requests for Petitioner to provide a written, updated report on his office activities had gone unheeded. Mr. D'Amato required that Petitioner schedule a meeting with him and bring a written report every two weeks.
At all times material, Ms. Abels monitored all bookkeeping records and time records for Mr. D'Amato.
On August 23, 1997, Ms. Abels circled Petitioner's arrival time on his timecard as "late."
In October 1997, Petitioner was provided Respondent's non-discrimination policy in its Policies and Procedures Manual, which also contained personnel rules and grievance procedures. (R-6b-c). While this document is not an example of clarity, the undersigned is satisfied that Petitioner was not misled by it. He testified that he never read it; merely signed for it; and also received, in his words, "almost weekly bulletins" on the subjects contained therein, including the accommodation rights of a disabled or handicapped person.2
During a regular review of invoices, Petitioner was notified on March 19, 1998, that the cell-phone he had been issued for business had been used after business hours for non- job-related calls, totaling $128.40 in charges through March 10, 1998. Petitioner acknowledged that the calls had been personal calls made by his son. Petitioner was given a written warning that if it happened again, he would be dismissed. He was also required to turn in his cell-phone at the end of each work day and pay back the cost of the calls. It was not until April 3, 1998, that Petitioner reimbursed $77.07, against the total owed. On April 9, 1998, Petitioner was advised of more improper cell- phone charges going back to October 14, 1997. As of April 28, 1998, Petitioner still owed Respondent Employer $56.73 for improper calls, although he ultimately paid back the entire amount owed. On June 16, 1998, Mr. D'Amato took the phone away from Petitioner because he had "shown an inability to follow instructions regarding the use of the cellular phone," and due to further abuse of Petitioner's cell-phone privileges, he was provided a radio in his truck which would reach a dispatcher in the main office. (P-13 and R-4c.)
Petitioner attempted to show that he had received disparate treatment because of the March 19, 1998, written warning to him and not to others who had also abused the phone policy, but he was only able to demonstrate that one other
employee took 19 days to pay $6.44 for personal calls made on his business phone over a two month period. Petitioner did not demonstrate that this employee used a cell-phone or was otherwise "similarly situated" to himself.3 (P-14.)
By an April 24, 1998 memorandum, Senior Planner Douglas Correia, a middle management supervisor of Petitioner, advised Mr. D'Amato that Petitioner's productivity had decreased because, on his 8:00 a.m. to 5:00 p.m. shift, Petitioner did not leave his office to begin inspections until 9:30 a.m. and returned to the office between 3:15 and 3:30 p.m., and because Petitioner spent most of his time in the office socializing with Ms. Steele. The memorandum further stated that henceforth, to prevent Petitioner "conning" him, Mr. Correia would require Ms. Steele to provide Petitioner with a daily itinerary, placing new complaints, re- visits, citations, and other matters geographically east and west of I-95, and Mr. Correia would then require Petitioner to follow the itinerary which would alternate inspection days for locations on the east or west sides of I-95. (P-10 and R-6c)
Based on the foregoing memorandum, it is found that the practice of having Ms. Steele provide an itinerary or agenda for Petitioner began April 24, 1998, for the reasons stated in the memorandum, and did not originate in February 1997 to assist Petitioner with his lack of focus.
The December 16, 1998, "roster," offered as representative of the "itineraries" Ms. Steele prepared for Petitioner, only constituted a list by names of the persons cited and an indication these were rechecks on the east side of I-95. (P-11). Within Exhibit P-15, is a "roster" for court appearances and rechecks on August 17, 1998, which is similarly without any complaint numbers or addresses, and a "roster" for court appearances and complaints for December 21, 1998, which provided addresses and a brief description of the nature of the problem only for new complaints. It is therefore found that Ms. Steele's "rosters," hereafter referred to as "agendas," never provided Petitioner with property addresses, citation numbers, dates of previous inspection, or any other information beyond the name of the property owner, except for new complaints, for which an address and description of the problem was given. Petitioner testified he got all information not on the agendas from his file basket.
On or about April 28, 1998, as part of the cell-phone investigation, Mr. D'Amato discovered that Petitioner still did not hold the necessary certifications he should have gotten by January 1997 (See Finding of Fact 14.) Mr. D'Amato issued a memorandum giving Petitioner six months from April 28, 1998, to get either a Florida Level II Code Enforcement Officer Certificate or a Level II Florida Law Enforcement Officer
Certificate on his own time and at his own expense. Mr. D'Amato also provided extensive information, calendars, and course descriptions of when and how Petitioner could attend the correct continuing education courses and take the test in time to meet the extended qualification date. (R-4b) Petitioner was ultimately certified July 31, 1998.
On or about October 28, 1999, Petitioner was hospitalized for surgery on the atrium ring of his heart and installation of a pacemaker. Petitioner was prescribed medicine and released to return to work with no medical restrictions. Mr. D'Amato and all co-employees knew the nature of this hospitalization. Petitioner requested no accommodation from the Employer at that time.
The heart condition and its medicines have contributed to Petitioner's weight gain. They also have resulted in a need to use the restroom frequently and a need to move about after a period of sitting.
In February 2000, the Code Enforcement Office was physically relocated, and Petitioner was required to fill out timesheets. This was an honor system, but as of the March 27, 2000, promotion of Brenda Rothwell to Code Enforcement Manager, she began to scrutinize Petitioner's arrivals and departures.
On March 1, 2000, after competitive interviews, Brenda Rothwell was hired as a second Code Enforcement Officer of equal
rank with Petitioner. Ms. Steele and others were her unsuccessful competitors for the second Code Enforcement Officer position. Ms. Rothwell was fully certified when hired. She got her assignments from a file basket with her name on it, like Petitioner's basket.
On March 27, 2000, Ms. Rothwell was promoted, with no increase in pay, to Code Enforcement Manager. As such, she became Petitioner's and Ms. Steele's immediate supervisor. At that time, Ms. Rothwell had fourteen and a half years' experience as Code Enforcement Officer of Fernandina Beach compared to Petitioner's four years' experience with Respondent.
Petitioner attributes his troubles with the Employer to Ms. Rothwell's "being hired (or promoted) to get rid of me," but it is noted that if his superiors had wanted to, they could have legitimately terminated him any time between January 1997, and the April 1998, letter giving him a six months' extension in which to obtain his minimum certification.
Someone noted on Petitioner's timesheet for March 29, 2000, that Petitioner had signed in earlier than his actual arrival time of 8:20 a.m. Ms. Rothwell denied making the notation.
Once promoted to manager, Ms. Rothwell set out to professionalize the Code Enforcement Office. It is possible that she sometimes introduced new methods prior to obtaining formal
approval from her own superiors or the Code Enforcement Board. However, there is no doubt that as of March 27, 2000, she had de
facto authority from her superiors, and by June 2000, when her managerial status was confirmed by the Board, she had full, formal authority to manage the Code Enforcement Office. In one instance, she was not aware of a method of reporting citation case data Petitioner had used (P-15) before she instituted a different one. Petitioner claimed she did not explain the changes or go over new procedures with him. However, Petitioner never raised these issues with their mutual superiors or filed a grievance concerning them. Rather, to every innovation Ms.
Rothwell instituted, Petitioner replied something to the effect of "we don't do it that way."
Petitioner and Ms. Steele did not get along well with Ms. Rothwell, nor she with them. Ms. Steele testified that she quit two weeks after Ms. Rothwell's promotion to manager due to a "hostile work environment," but Ms. Steele failed to explain exactly what that phrase might describe, other than that she did not like Ms. Rothwell's extensive changes aimed at accountability of personnel. Ms. Steele also failed to file a grievance.
In April 2000, a third Code Enforcement Officer was hired on an equal footing with Petitioner. He also got a file basket with his name on it.
Thereafter, Ms. Rothwell divided the inspections among the two officers and herself by placing the appropriate forms in their respective file baskets. She also tried to keep Petitioner on the side of the I-95 axis with which he was most familiar.
Petitioner testified that after Ms. Steele left, he personally had to take 30-day recheck forms out of the file cabinet and put them in his file basket and he no longer received his daily agenda of which forms from his file basket to process.
Ms. Rothwell also imposed the new requirement that, in addition to a timesheet, each inspector had to fill out a daily log showing all the calls he or she made, the complaint number for each call, how much time was spent at each location, whether each property was in compliance or not in compliance, specific remarks about the condition of each property, and when the inspector signed in and out for lunch and breaks. These logs were to be turned in at the office at the end of each day. (R-5)
On April 5, 2000, Petitioner told Ms. Rothwell that he would be attending a continuing education course in Jacksonville the next day from 8:00 a.m. to 5:00 p.m., She considered this inappropriately short notice, but at that time, Ms. Rothwell believed Petitioner had been pre-approved by their superiors for the April 6, 2000, class, as he previously had been approved for a March 2000, course through paperwork done by Ms. Steele.
Petitioner came to the Code Enforcement Office at 8:15 a.m. on April 6, 2000, to pick up one of the Employer's
trucks to go to the class. He made out his timesheet showing he worked 8:00 a.m. to 5:00 p.m. Ms. Rothwell marked his timesheet as showing he came in later than the time he signed in. (P-9) He attended the class and received a certificate of completion. (R-3c). When he was in class, he was supposed to show that fact
on his timesheet, instead of showing that he was working. He was not docked any pay as a result of this state of affairs, but it impacted a later decision to discipline him.
On April 25, 2000, Mr. D'Amato, in the presence of Ms. Abels, discussed Petitioner's timesheets with him.
Mr. D'Amato then gave Petitioner an oral reprimand for falsification of written records, on the basis of an investigation/audit performed by Ms. Abels. (R-4d). Mr. D'Amato relied on Ms. Abels' investigation to invoke the discipline.
Ms. Abels relied, in part, on input from Ms. Rothwell and others. Not every underlying detail of these records was recreated by Ms. Abels or Ms. Rothwell at hearing, but Ms. Rothwell could specifically recall the April 6, 2000, incident. Ms. Abels' investigation/audit showed four late morning arrivals, for which Petitioner wrote down a more favorable arrival time. Only one of the four dates was the April 6, 2000, continuing education date described above. The investigation/audit also showed Petitioner
took a short lunch, without Ms. Rothwell's approval, to compensate for his late arrival that morning, and three lunch breaks for which Petitioner wrote in a more favorable length of time than that actually taken. The single April 6, 2000, component of the disciplinary action may have been unfair to Petitioner, but it does not constitute a conspiracy. Ms. Abels is a very credible witness that no conspiracy existed. There also is no evidence that the falsification of record charges related to Petitioner's mental or physical condition.
Petitioner asserted that prior to Ms. Rothwell's employment he had understood that he could round the times on his timesheets into 15 minute increments. The Policies and Procedure Manual does not support him.
By a memorandum on or about August 9, 2000,
Ms. Rothwell suspended Petitioner for five days without pay, from August 10 through August 15. He was to report back to work on August 17, 2000. This was discipline for "falsification of written records" (R-3a, R-5) due to 12 dates in July when she considered his logs to be incomplete and because she believed that on July 24, 2000, he called in from lunch, requesting the dispatcher to clock him in 21 minutes earlier than his call.
The logs for the days listed in the August 9, 2000, disciplinary action generally support a finding that Petitioner did not complete all of the columns on each one, usually failing
to put in the complaint number and/or a complete address. Without complaint numbers, rechecks may go undone, prosecution of citations is hampered, and consistency of statistics is impaired.
Ms. Rothwell testified that she accepted an oral report from someone in the main office, probably the dispatcher, that Petitioner had requested the dispatcher to falsify his sign-in time from lunch on July 24, 2000. Ms. Rothwell could not recall for sure who told her. As of the August 9, 2000, discipline, Petitioner did not deny her construction of events. At hearing, Petitioner did not deny asking the dispatcher to sign him in, or that he was twenty-one minutes late in calling in from lunch on July 24, 2000, but he testified that when he made his explanation of the delay, the dispatcher said, "I'll take care of it." Petitioner's explanation for his lateness on July 24, 2000, was that his truck's two-way radio had not worked; that someone was on the pay phone nearest his lunch break; and that he had to drive to a second pay phone to call in. It is noted that he personally stated on his log for that day that he took only an hour for lunch. (R-3a, R-5).
Because of the August 9, 2000, suspension, Petitioner consulted the Center for Independent Living of Jacksonville, an organization which assists disabled persons. One of its Coordinators wrote a letter to Mr. D'Amato on August 15, 2000, asking for "reasonable accommodations" of Petitioner's health
conditions and medication problems, pursuant to the ADA.
Bi-polarity is not named in the letter; it is referred to as a "medical condition." The letter does disclose Petitioner's heart condition. (P-2)
The accommodations requested were flexibility in Petitioner's lunch hour and his 15 minute breaks each morning and afternoon; the opportunity to walk around after every 30-40 minutes of sitting; and reinstating the agendas of the past to help him focus and to ensure he and his immediate supervisor were not miscommunicating priorities. (P-2)
Mr. D'Amato requested that Petitioner provide medical verification of his need for accommodations.
On August 16, 2000, Dr. Twiggs, a Family Practice Physician, sent a letter stating that to the best of his knowledge, Petitioner could perform the duties of a Code Enforcement Officer. (P-3)
On August 23, 2000, Dr. Twiggs sent another letter saying that Petitioner was medically stable and able to perform the duties of a Code Enforcement Officer. He did not mention bi- polarity but went on to say that:
As a result of his medication, I agree that there is a need for frequent water and restroom breaks which should be a reasonable request for accommodation and flexibility in lunch, morning, and afternoon breaks.
Because of a heart condition, it is advisable that after 30-40 minutes of sitting, he should stand and walk around for a few minutes to help improve circulation.
As he sometimes has difficulty focusing initially in the morning after taking his medication, I agree that a daily or weekly agenda and good communication with his immediate supervisor should help with his focusing on priorities and details of his duties. (P-4)
On August 11, 2000, Ms. Rothwell had sent Petitioner a speed memo telling him to proceed with a new case number and a weekly status report on code violations of a certain property location and its owner. Petitioner was on suspension August 10- 15, 2000. Presumably, he reported for work on August 17, 2000. Petitioner failed to report to Ms. Rothwell on the named property on August 25, 2000, as required by her prior speed memo.
Ms. Rothwell brought this to his attention by an August 28, 2000, formal memorandum. However, Petitioner had written a speed memo to Ms. Rothwell, dated August 22, 2000, stating that he had done all he could and "why don't you go give him a citation (repeat offense) and bring him before the Board." Ms. Rothwell, not unreasonably, construed his reply as telling her to "go do it yourself," which she received August 29, 2000. On that date, she cited Petitioner with insubordination, warning him that any future incidents of the same nature would result in his termination. (R-3b)
On August 31, 2000, the Employer agreed, in writing, to all of Petitioner's requests for accommodation. Ms. Rothwell and Mr. D'Amato were copied with this memorandum. (P-5)
Sometime thereafter, there was a reorganization which placed the Code Enforcement Office under the supervision of
Mr. Whitey Moran of the Building Department, rather than Mr. D'Amato of the Public Works Department.
Ms. Rothwell bought a two-gallon water cooler, which Petitioner was permitted to fill with the Employer's water and ice and carry in his truck. He was permitted to take stretch breaks every 30 to 40 minutes and to take restroom breaks as necessary. He got a 15-minute break in the morning, an hour for lunch, and a 15-minute break in the afternoon. The Employer initially requested that he radio in whenever he left and returned to his truck for these breaks and for inspections, so that the Employer could be sure he had not collapsed and was not in need of help due to his disclosed medical conditions, but that request was rescinded within a few days.
Petitioner testified that Ms. Rothwell told him she would never provide him with an agenda. Their conflicting accounts of what was said amounts to a "he said/she said" situation dependent more upon their respective viewpoints than accuracy, and constitutes an equipoise of evidence.
Ms. Rothwell testified that the complaints all had a complaint number in their upper right-hand corner and she regularly attached all the complaints from Petitioner's file basket to a two-part speed memo upon which she had written the numbers of the attached complaints, but she could produce none of these "packaged agendas" at hearing and none were produced in response to an appropriate discovery request. Petitioner testified that he wanted Ms. Rothwell to provide him with the Aimee Steele-type of agenda described above at Finding of Fact 34, but she never did. Upon the credible evidence and testimony as a whole, it is found that Ms. Rothwell did not provide any list/agenda of locations.
Having determined as fact that the Employer did not provide a daily agenda, listing each day's inspections by name of property owner and whether they were rechecks or something else and whether they were on one side of I-95 or the other, it is significant to note Petitioner's view of what such an agenda purportedly would have done. Petitioner testified that he knew how to do his job and that he only needed an agenda to avoid
Ms. Rothwell's accusing him each time he returned to the office of not doing an assignment or asking why he had followed up on one complaint and not another. Also, Petitioner never told
Ms. Rothwell or anyone that he could not do his job as structured without an agenda after August 31, 2000. He never raised the
absence of an agenda with Mr. D'Amato, Mr. Moran, the County Coordinator, or the Human Resources Office, and he never filed a grievance.
Petitioner's explanation as to why he never filed a grievance against Ms. Rothwell or anyone else was that
Mr. D'Amato had intimidated him during the 1998 investigation of Petitioner's cell-phone calls by saying something about "the buck stops here," and "you should not go against the chain of command." Assuming arguendo that Mr. D'Amato made such comments in 1998, and Mr. D'Amato denied that he did, it is illogical to assume the comments were designed to deter Petitioner from filing a legitimate grievance with Mr. Moran against Ms. Rothwell in 2000, especially since Petitioner agreed his cell-phone had been misused when Mr. D'Amato's comments were allegedly made.
On or about October 9, 2000, it was discovered that Petitioner had attended an approved continuing education course in March 2000, but that on April 6, 2000 and in May 2000, he had attended courses without pre-approval, and had thereby obligated the Employer to pay $383 directly to the university hosting the classes. This violation of the Employer's Policies and Procedure Manual added to the April 24, 1998, memorandum on poor productivity (Finding of Fact 32), the April 25, 2000, oral reprimand for falsification of records (Finding of Fact 51), the August 9, 2000, suspension for falsification of records (Finding
of Facts 53-55), and the August 29, 2000, written warning for insubordination (Finding of Fact 61), resulted in Ms. Rothwell suspending Petitioner without pay for five days, on October 12, 13, 16, 17, and 18, 2000. (R-3c)
Petitioner testified that he perceived Ms. Rothwell as "out to get him," either because she gave him three-day suspensions on Fridays or gave him three suspensions on Fridays, intimating that his work schedule could cause him to suffer greater punishment if he were suspended on a Friday than some other day, although how is unclear. There is no evidence of Petitioner's being suspended for three days. There is no evidence of Ms. Rothwell suspending him three times for five days. Therefore, his testimony on this issue is not persuasive.
It is also notable that Petitioner did not file a grievance against Ms. Rothwell for improperly or unfairly suspending him either of the two times she suspended him.
By December 2000, each of the three Code Enforcement Officers were required to do 20-30 inspections per day. Petitioner's logs (R-5) showed far less than that number were being done by him.
On December 14, 2000, a complaint was received by Ms. Rothwell because Petitioner investigated a location he erroneously got out of the file cabinet himself.
On December 15, 2000, Ms. Rothwell, with the concurrence of Mr. Moran and the Human Resources Coordinator, terminated Petitioner, effective January 3, 2001, for offenses against the Policies and Procedure Manual. The termination memorandum cited the April 24, 1998, productivity memorandum; April 25, 2000, oral warning; an allegation that on June 13, 2000, Petitioner had placed a citation warning in a residential mail box, contrary to the Code requirement of mailing it; the August 9, 2000, five-day suspension; the August 29, 2000, warning; and the October 9, 2000, five-day suspension.
It also listed eleven citizen complaints of Petitioner's failure to perform his duties or poor performance which Ms. Rothwell characterized as "selective" or "improper" Code enforcement.
The nature of the complaints synopsized in Ms.
Rothwell's December 15, 2000, memorandum are varied. A tortured construction of several of them might lead to conjecture that Petitioner went to the wrong address and cited the wrong property on one or more occasions. However, many involved Petitioner's not going to the correct location at all or going to the location of an alleged citation and then turning in inspection remarks stating that the alleged Code violation was non-existent or resolved. Thereafter, subsequent inspections by Ms. Rothwell and/or the other Code Enforcement Officer revealed no improvement or a worsening of the violation originally reported. For
instance, Petitioner noted conditions that did not exist (trailer present after it was removed) or that the issue had been referred to a person (Mr. Larson) who no longer worked for the Employer at the time Petitioner claimed he had referred the matter to him.
These situations amount to either falsification of records or selective enforcement by Petitioner. In one instance, he refused to speak to a citizen he had cited. Petitioner had seen the memorandum, but claimed never to have seen the complaints underlying Ms. Rothwell's synopses. He did not refute each complaint synopsis at hearing.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.57(1), and Chapter 760, Florida Statutes.
As previously ruled by interlocutory order, Petitioner has the right to a hearing on the merits in this proceeding, in this forum, despite the absence of a determination by the Florida Commission on Human Relations.
Section 760.11, Florida Statutes, contemplates three scenarios resulting from the filing of a complaint with the Florida Commission on Human Relations: (1) a determination by the Commission that there is reasonable cause to believe that a discriminatory practice occurred (Section 760.11(4), Florida Statutes); (2) a determination by the Commission that there is
not reasonable cause to believe that a violation occurred (Section 760.11(7), Florida Statutes); or (3) a failure by the Commission to determine, within the 180 days provided by law for its investigation and conciliation procedures, whether there is or is not reasonable cause (Section 760.11(8), Florida Statutes). Where the Commission determines that there is reasonable cause, the complainant has two options: either file a lawsuit within one year of the reasonable cause determination or file a Petition for Relief, requesting an administrative hearing pursuant to Section 120.57, Florida Statutes. See Section 760.11(4), Florida Statutes. Where the Commission determines that there is not reasonable cause, the complainant has 35 days from the Commission's determination in which to request an administrative hearing, and if the complainant does not do so, the claim is barred. See Section 760.11(7), Florida Statutes. Where the Commission fails to make any determination either way as to reasonable cause, the complainant may either file a lawsuit in court or request an administrative hearing. See Section 760.11(8), Florida Statutes.
Petitioner was not required to do more than wait 180 days for the Florida Commission to make a determination. Under its work-sharing arrangement, the Commission deferred to the EEOC for its investigation. The EEOC entered its determination, and Petitioner filed his Petition for Relief with the Florida
Commission more than 180 days after filing his Charge of Discrimination with the Florida Commission and within 35 days of the EEOC's determination. The Florida Commission recognized the correctness of this procedure by referring the Petition to the Division of Administrative Hearings, pursuant to Section 120.57(1), Florida Statutes.
On the merits, Petitioner contends that he had a de facto agenda during the time that Aimee Steele worked for Respondent Employer, and therefore, such an agenda is ipso facto "reasonable;" that he requested this reasonable accommodation from Respondent Employer due to his bi-polar mental condition and heart condition; that the Employer perceived him as disabled/handicapped, and further recognized the reasonableness of the agenda request when it agreed to provide an agenda; and that because the Employer did not provide that single reasonable accommodation, Petitioner is entitled to relief by all forms of back pay, with costs and attorney's fees.
It is Respondent's contention that Petitioner is not statutorily handicapped because his combined bi-polar and heart conditions do not substantially limit his major life activities under the tests applied in the recent case of Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 112 S. Ct. 681 (2002).
Subsection 760.10(1)(a), Florida Statutes, provides:
It is an unlawful employment practice for an employer:
To discharge or 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 an individual's race, color, religion, sex, national origin, age, handicap, or marital status. (Emphasis supplied).
Although this process, in this forum, may not adjudicate any rights under federal law, it is appropriate to interpret Subsection 760.10(1)(a), Florida Statutes, by reference to federal case law under the Civil Rights Act (Title VII), the Rehabilitation Act, and the Americans with Disabilities Act (ADA). School Board of Leon County v. Weaver, 556 So. 2d 443 (Fla. 1st DCA 1990); Hunter v. Winn-Dixie Stores, Inc., FCHR Case No. 82-0799 (February 23, 1983).
Accordingly, Petitioner must prove the following in order to establish a prima facie case of handicap discrimination:
He is handicapped within the meaning of the Florida Civil Rights Act;
He was otherwise qualified for his job; and
He was harassed or terminated solely by reason of his handicap.
Brand v. Florida Power Corporation, 633 So. 2d 504 (Fla. 1st DCA 1994).
Florida has yet to adopt the more enlightened term, "disability," and Section 760.10, Florida Statutes, does not define "handicap." However, in Brand, supra, the court adopted the definition of handicap found in Section 504 of Title V of the Rehabilitation Act of 1973, and stated:
Section 504 specifically refers to 29 U.S.C. Sec. 706(8)(B) for the definition thereof.
The latter defines an "individual with handicaps," subject to certain exceptions not applicable to this case as one "who (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment." Examples of major life activities include caring for oneself, walking, seeing, speaking, breathing, learning, and working. (Emphasis supplied).
Id. at 510, FN 10.
The same definition of disability is set out in the ADA. In Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, supra., the United States Supreme Court, in a unanimous decision, provided guidance, for purposes of the ADA, as to how "handicap/disability" is to be proven:
* * *
Merely having an impairment does not make one disabled for purposes of the ADA. Claimants also need to demonstrate that the impairment [substantially] limits a major life activity. (Bracketed material added for clarity).
* * *
The word "substantial" thus clearly precludes impairments that interfere in only a minor way with the performance of manual tasks from qualifying as disabilities Cf. Albertson's, Inc. v. Kirkinburg, 527 U.S., at 565, 119 S. Ct. 2162 (explaining that a "mere difference" does not amount to a "significant restric[tion]" and therefore does not satisfy the EEOC's interpretation of "substantially limits").
* * *
"Major life activities" thus refers to those activities that are of central importance to daily life. In order for performing manual tasks to fit into this category -- a category that includes such basic abilities as walking, seeing, and hearing -- the manual tasks in question must be central to daily life. If each of the tasks included in the major life activity of performing manual tasks does not independently qualify as a major life activity, then together they must do so.
* * *
We therefore hold that to be substantially limited in performing manual tasks, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives. The impairment's impact must also be permanent or long-term. See 29 CFR §§ 1630.2 (j)(2)(ii)-- (iii)(2001).
It is insufficient for individuals attempting to prove disability status under this test to merely submit evidence of a medical diagnosis of an impairment. Instead, the ADA requires those "claiming the Act's protection . . . to prove a disability by offering evidence that the extent of the limitation [caused by their impairment] in terms of their own experience
. . . is substantial." Albertson's, Inc. v. Kirkinburg, supra, at 567, 119 S. Ct. 2162. .
. .
* * *
. . . Congress intended the existence of a disability to be determined in such a case- by-case manner. See Sutton v. United Air Lines, Inc., supra, at 483, 119 S. Ct. 2139; Albertson's, Inc. v. Kirkinburg supra. at 556, 119 S. Ct. 2162. . . . The determination of whether an individual has a disability is not necessarily based on the name or diagnosis of the impairment the person has, but rather on the effect of that impairment on the life of the individual"); ibid. (The determination of whether an individual is substantially limited in a major life activity must be made on a case-by-case basis.)
* * *
An individualized assessment of the effect of an impairment is particularly necessary when the impairment is one whose symptoms vary widely from person to person.
* * *
When addressing the major life activity of performing manual tasks, the central inquiry must be whether the claimant is unable to perform the variety of tasks central to most people's daily lives, not whether the claimant is unable to perform the tasks associated with her specific job.
* * *
The definition is intended to cover individuals with disabling impairments regardless of whether the individuals have any connection to a workplace.
* * *
. . . the manual tasks unique to any particular job are not necessarily important parts of most people's lives. As a result, occupation-specific tasks may have only limited relevance to the manual task inquiry.
* * *
The Court, therefore, should not have considered respondent's inability to do such manual work in her specialized assembly line job as sufficient proof that she was substantially limited in performing manual tasks.
* * *
Yet household chores, bathing, and brushing one's teeth are among the types of manual tasks of central importance to people's daily lives, and should have been part of the assessment of whether respondent was substantially limited in performing manual tasks.
Respondent's position is that the medical evidence and Petitioner's testimony herein do not meet the foregoing tests because Petitioner can manage his daily life and work for a living in a job requiring similar functions to those he performed with the Respondent Employer. Respondent apparently overlooks Petitioner's testimony that the new employer provides an agenda which Respondent did not.
The undersigned disagrees with Respondent's application of the "manual tasks" test of Williams to the case at bar. Williams, a case involving carpal tunnel syndrome and accepting EEOC regulations, is instructive on several levels, but is not
controlling here. In elaborating on Sutton v. United Air Lines, Inc., 19 S. Ct. 2139 527 U.S. 471 (1999), the Court is merely making clear that "disability," for ADA purposes, must extend to life activities, not just limited or categorical employment applications. Specifically, the Court said:
Sutton v. United Air Lines Inc . . .said only that "[w]hen the major life activity under consideration is that of working, the statutory phrase 'substantially limits' requires . . . that plaintiffs allege that they are unable to work in a broad class of jobs." 527 U.S., at 491, 119 S. Ct. 2139
(emphasis added) . . . In Sutton we noted that even assuming that working is a major life activity, a claimant would be required to show an inability to work in a "broad range of jobs," rather than a specific job Id., at 492, 119 S. Ct. 2139. Nothing
in the text of the Act, our previous opinions, or the regulations suggests that a class-based framework should apply outside the context of the major life activity of working. (Emphasis in original).
Clearly, under Williams' interpretation of the ADA, "manual tasks" constitutes "a major life activity," but so does thinking. Indeed, it is hard to imagine any life activity more "substantive" or more equally applicable to daily, as well as professional, life than thinking, unless it is the "breathing" enunciated in Brand. How much a mental condition may affect daily life is less easily quantified than a handicap affecting specific manual tasks. Therefore, the undersigned is not persuaded that the Williams tests for manual tasks can be applied
to exclude this Petitioner's mental condition. Moreover, the Florida Commission on Human Relations has historically defined "handicap" as a "condition that prevents normal functioning in some way; a person with a handicap does not enjoy in some measure the full normal use of his sensory, mental or physical faculties." (Emphasis supplied). See the Final Order in Clark
v. Jackson County Hospital, DOAH Case No. 95-4956, FCHR Case No. 94E-814, FCHR Order No. 97-019 (June 25, 1997); Williams v. Metro Traffic Control, Inc., 17 FALR 3772, at 3773 (FCHR 1995) and cases therein.
Also, even under the Toyota Motor Manufacturing, Kentucky, Inc. v. Williams tests, Petitioner presented medical evidence and his own "real world" experience evidence that his combined physical (heart and circulatory problems) and mental (bi-polar disorder) conditions, together with the necessary medications therefor, substantially limit his major life activities by causing weight gain, at least minimal dependence on others for organization and direction in life as well as work (organization of medications, and an agenda or manifest), the need to walk after each 30-40 minute sitting episode, and the need for frequent restroom breaks.
Finally, the Employer perceived Petitioner as handicapped by agreeing to provide accommodations, including an agenda. Unlike some of the federal legislation and its case law
progeny, the Florida Civil Rights Act has long espoused the concept that an employer's merely perceiving the employee as handicapped is sufficient to establish "handicap" under Section 760.10(1)(a), Florida Statutes. Greene v. Seminole Electric Co- op, Inc., 701 So. 2d 646 (Fla. 5th DCA 1997); Gordon v. E.L. Hamm and Associates, 100 F.3d 1029 (11th Cir. 1996). Herein, the Employer went further than mere acquiescence by requesting a medical opinion and involving its Human Resources Office.4
Therefore, it is concluded that Petitioner has met the first prong necessary to establish a prima facie case under the Florida Civil Rights Act. He is statutorily handicapped.
Petitioner also has demonstrated he was otherwise qualified for his job at the time he was terminated, so the second prong has been met.
A qualified individual with a disability may establish unlawful discrimination by showing that he was not provided reasonable accommodation. Jackson v. Veterans Administration, 22 F.3d 277 (11th Cir. 1994). Only after the employee has satisfied [the burden of requesting an accommodation] and the employer fails to provide that accommodation can the employee prevail on a claim [of discrimination]. Gaston v. Bellingrath Gardens and Home Inc., 167 F.3d 1361 (11th Cir. 1999).
Herein, the employer agreed to all of Petitioner's requests for accommodation, including providing the agenda.
There has never been a dispute as to whether any of the accommodations, including the agenda, were reasonable. The agenda was, in fact, not provided. Therefore, the third prong of a prima facie case has been met.
However, Petitioner's prima facie case does not end the necessary legal analysis. In Department of Corrections v.
Chandler, 582 So. 2d 1183 (Fla. 1st DCA 1991), the Florida Supreme Court analyzed the types of claims under the Florida Civil Rights Act as follows:
The United States Supreme Court set forth in procedure essential for establishing such claims in McDonnell Douglas Corp v. Green, 41 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
reasons 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 reasons 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).
In order for Petitioner to prevail in a disparate treatment case and obtain the relief he 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 his handicap(s), most notably his bi-polar disorder, was a determining factor in the employment decision made to discharge him. 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 him was his disability or Respondent's perception of his disability.
Respondent Employer is not required to do more than present its non-discriminatory reasons. It is not required to persuade. The standards of proof still require that Petitioner show the Employer's evidence is merely a pretext for
discrimination. See generally Bass v. Bd. of County Commissioners of Orange County, 242 F.3d 996, 1013 (11th Cir. 2001), Simmons v. Camden County Bd of Educ., 757 F.2d 1187 (11th Cir. 1985) cert den. 474 U.S. 981, 106 S. Ct. 385 (1985).
Cf- Kirby v. Colony Furniture Co., 613 F.2d 696 (8th Cir. 1980).
Respondent Employer herein terminated Petitioner for the following named reasons: the April 24, 1998, productivity memorandum; April 25, 2000 oral warning; an allegation on
June 13, 2000, that Petitioner had placed a citation warning in a residential mail box contrary to the Code requirement of mailing it; the August 9, 2000, five-day suspension; the August 29, 2000, warning; and the October 9, 2000, five-day suspension, in addition to 11 citizen complaints of Petitioner's failure to perform his duties or poor performance. Ms. Rothwell decided to terminate after reinspections and investigation of the complaints. Some of these situations amounted to either falsification of records or selective enforcement by Petitioner. (See Findings of Fact 74-75).
The exhibits fairly demonstrate Petitioner's insubordination detailed in the August 29, 2000, warning, which is clearly unrelated to any description of his various medical conditions or any need for an agenda. Basically, he was given a very detailed instruction amounting to a limited agenda, and, in writing, he declined to do it.
Petitioner's failure to properly keep logs and timesheets or truthfully and accurately fill out inspection reports is not related to the absence of an agenda. His failure to adhere to the Code he is supposed to administer is not related to the absence of an agenda. His written refusal to carry out a written order/agenda is not a "symptom" of his handicap. See
dissent in Jackson v. Veterans Administration, supra.
In light of Petitioner's testimony that he did not really need a daily agenda to do his job, but only to hold
Ms. Rothwell accountable for persecuting him, together with his failure to refute all of the charges contained in the April 25, 2000, oral warning for falsifying records; the June 13, 2000, complaint allegation; the August 9, 2000, suspension; and the October 9, 2000, suspension; none of which directly relate to doing the wrong inspection or going to the wrong location, and his failure to even address several of the eleven complaints contained in the December 15, 2000, termination memorandum, it is concluded that Petitioner did not meet the shifting burden of proof for these types of cases by showing that the Employer's proffered reasons for his termination are not worthy of belief.
Without some reasonable causal connection between the Employer's reasons for termination and the handicap, a symptom of the handicap, or the Employer's failure to accommodate him with an agenda, Petitioner cannot prevail.
Moreover, the reasons the Employer could have terminated Petitioner and did not (his failure to timely obtain minimal certification and his permitting expensive misuse of his business cell phone) militate against a conclusion that the other reasons given by the Employer for termination constituted a pretext.
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 the Petition for Relief and Charge of Discrimination.
DONE AND ENTERED this 16th day of July, 2002, in Tallahassee, Leon County, Florida.
______ ELLA JANE P. DAVIS
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 16th day of July 2002.
ENDNOTES
1/ Petitioner's pay and emoluments are unrefuted as follows: Petitioner's annual salary with Respondent was $26,000, and he had, as benefits of the employment, health insurance paid by Respondent and life insurance of $100,000 on himself and $50,000 on his wife. The cost to Petitioner to replace the life insurance would have been $4,500 per year. Following Petitioner's termination by Respondent, effective January 3, 2001, he sought new employment, applying to over 100 prospective employers. On August 1, 2001, he obtained employment as a community transportation driver in Duval County, making $23,000 per year. However, he was not eligible for health insurance provided by his new employer until April 2002. His new employer does not provide life insurance. From January 2001 until April 2002, Petitioner had health insurance through his wife's employer at a cost to him of $75.00 per week.
2/ The Policies and Procedure Manual (R-6c) states at page 5 that the hiring and promotion practice is not to discriminate on the basis of "race, color, sex, age, religion, disability, marital status, veteran status or national origin" and goes on to state that this is to be the policy in all terms and conditions of employment. Unfortunately, it goes on, at pages 6 and 7 to only prohibit harassment for "ethnic background, sex, age, or religion," and to require immediate complaints and to provide a confidential investigation in connection only with those matters.
The grievance procedure, at pages 8 and 9, is so poorly constructed, it should be noted:
Present any problems within ten working days of the event and the Department Head will normally respond within 10 working days. A failure to respond should be treated as a denial of the grievance. If there is a disagreement between you and your supervisor, you may request to have that disagreement reviewed by the next highest level of County management. If the disagreement still exists, you should reduce the matter to writing within 10 working days of the event or incident giving rise to your grievance and submit it to the County Coordinator. He will then conduct an independent review of the surrounding facts and his decision is final. This grievance procedure is intended for any
disagreements which might arise, including any disagreements concerning discipline and/or discharge. All parties are expected to cooperate fully in resolving grievances under this procedure.
At pages 40-43 there is an explanation of a disabled employee's entitlement to reasonable accommodations and how to ask for them, an explanation of how to file a complaint with the County Coordinator for any discrimination on the basis of handicap/disability, the investigative procedure, the need for an appeal if the internal investigation goes against the employee, and information on the right to by-pass the internal procedure by going to the EEOC or Florida EEOC [sic.]
3/ Exhibit P-12 applied to office phones in 1995, before Petitioner was hired, and Ms. Steele's testimony concerning other employees' alleged phone abuse was neither competent nor credible.
4/ Conclusion 91 should not be read as holding that anytime an employer merely acquiesces in an accommodation, he "perceives" the employee as "handicapped" under the Florida Civil Rights Act. To do so would have a chilling effect on the generosity of employers who now initially grant requested accommodations without dispute or who experiment with accommodations to determine if they are, in fact, reasonable. Such a construction would have the undesirable effect of inhibiting voluntary and cooperative accommodations and would create profuse litigation even before any job situation matured into discipline or termination.
COPIES FURNISHED:
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway
Suite 100
Tallahassee, Florida 32301
Michael S. Mullin, Esquire
Nassau County Board of County Commissioners Post Office Box 1010
Fernandina Beach, Florida 32035-1010
Jerilynn M. O'Hara, Esquire
J. Stephen O'Hara, Esquire O'Hara, Spradley & Waters
4811 Beach Boulevard, Suite 303
Jacksonville, Florida 32207
Cecil Howard, General Counsel 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 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.
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 04, 2002 | Agency Final Order | |
| Jul. 16, 2002 | Recommended Order | Petitioner established bipolar disorder and cardiovascular problems as unaccommodated handicap and otherwise established prima facie case; did not refute non-discriminatory reasons for termination, which had no nexus to his handicap; could not prevail. |
