B. TUTEN LOGGING, INC., Respondent.
) Case No. 02-2524
This cause was heard pursuant to notice in the above-styled case by Stephen F. Dean, assigned Administrative Law Judge of the Division of Administrative Hearings, on August 16, 2002, in Perry, Florida.
For Petitioner: Michael D. Metz, pro se
H. B. Tuten, President/Owner 3870 US Highway 90 South Perry, Florida 32348
Does the Florida Commission on Human Relations have jurisdiction of this matter? Does the Division of Administrative Hearings have jurisdiction of this matter? Did
Petitioner filed a complaint with Florida Commission on Human Relations (Commission) which alleged that the employer discriminated against him on the basis of a disability.
The Commission investigated and determined that Petitioner was not permanently disabled, and that it lacked jurisdiction. It also gave Petitioner notice of a right to request an administrative hearing within 35-days pursuant to 60Y-5.008 and 60Y-4, Florida Administrative Code.
Petitioner filed a Petition for Relief, and the case was forwarded to the Division of Administrative Hearings by the Commission. The matter was set for hearing and heard on August 16, 2002.
The Petition for Relief, unlike the original claim, asserts that Petitioner was terminated because he filed a claim for workman's compensation after being hurt on the job. Respondent asserts it terminated Petitioner because he did not take a drug test.
At formal hearing, the testimony of Petitioner and his girl friend was received along with that of his employer and several persons who were witnesses to a conversation between Petitioner and his employer, Mr. Tuten, on the day after his injury.
Petitioner introduced Exhibits numbered 1 through 17 and ALJ Exhibit numbered 1. Neither of the parties filed
post-hearing pleadings.
Petitioner worked for Respondent for about 60-days prior to May 4, 2001, as a tractor-trailer driver.
Respondent is in the logging business.
On May 2, 2001, Petitioner injured his back while on the job. He did not report this to his supervisor who was operating equipment deep in the woods. Petitioner told a
co-worker, who was moving between the supervisor's location and Petitioner's location, to tell the supervisor he had hurt himself.
On the evening of May 2, 2001, Petitioner was in severe pain. He called his employer the morning of May 3, 2001, and reported that he could not come to work.
The company's business manager, Charlotte Lanier, advised him not to go to the hospital emergency room and made an appointment at 1:30 p.m. that afternoon for him to see a Chiropractor, Dr. Hutchens, who had treated other employees. Petitioner agreed to see Dr. Hutchens.
Charlotte Lanier called the insurance company and found out that Petitioner had to be referred by a medical doctor to see Dr. Hutchens and had to have a drug test.
Petitioner saw the Chiropractor, Dr. Hutchens, and was X-rayed, and given message therapy. He was in contact with
Mr. Tuten's office.
Ms. Lanier had been getting drug tests done by
Dr. Hutchens; however, she called the doctor and found out that he was not testing. Ms. Lanier then had to make an appointment with another doctor for the test. She called Dr. Hidalgo and arranged for Petitioner to go there; but that doctor's office was getting ready to close early on Friday afternoon.
Ms. Lanier then called Dr. Hutchens office again for Petitioner, but she did not connect with him.
Petitioner finally got word from Ms. Lanier to go to Dr. Hildago's office for a drug test. However, when he got there, he was told he needed a referral from the office of the medical doctor, Dr. Mohammed. Petitioner went to Dr. Mohammed's office for the referral, but when he got there, Dr. Mohammed's office would not write a referral without an examination. By the time Petitioner had finished with Dr. Mohammed's examination, Dr. Hidalgo's office was closed.
At this point, Petitioner went to his employer's office to pick up his pay check. What happened there is subject to controversy and conflicting testimony.
Petitioner testified that when he got to the office of the employer company, Mr. Tuten and several of his friends were
standing in the workshop/garage. Petitioner told Mr. Tuten that he was unable to see the last doctor because of Dr. Mohammed's insistence that he be examined prior to writing a referral.
Mr. Tuten and others testified that Petitioner came in and was very agitated. Petitioner told Mr. Tuten that because of the pain he had had the previous night, he had taken drugs belonging to a friend and smoked a marijuana cigarette.
Mr. Tuten fired Petitioner for violating the company's drug policy.
CONCLUSIONS OF LAW
One of the issues is whether the Division has jurisdiction. Although the Division has jurisdiction to hear certain cases de novo, this case was an appeal of the Commission's finding of lack of jurisdiction based upon the Commission's determination that it lacked jurisdiction because Petitioner's injury was not permanent; therefore, he was not disabled.
The Petition forwarded to the Division metamorphed into a claim that Petitioner was fired for filing a worker's compensation claim. As such, this would constitute an actionable claim; however, the first time it was raised was in the Petition for Relief. The Commission has never examined the merits of this claim.
There is a possibility that the Division does not have original jurisdiction on this new claim, and the original claim of disability was abandoned. However, having heard the case, inn an abundance of caution and for reasons of judicial economy, the case is fully considered below on its merits.
Petitioner has the burden of proof in this case to show that she was discriminated against on the basis of age and race.
Section 760.10(7), Florida Statutes, provides in part:
It is an unlawful employment practice for an employer . . . to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person has made a charge . . . under this section.
The Commission on Human Relations has looked to the Federal Law interpreting Title VII in applying similar provisions of the Florida law. To prove a prima facie case of retaliation under Title VII, the Petitioner must show
that he participated in a statutorily protected activity,
that he received an adverse employment action, and (3) that a causal connection exists between the protected activity and the adverse action.
Petitioner showed that he was injured; that he filed a worker's compensation claim; and that he was discharged.
Respondent introduced evidence that Petitioner was discharged for violating its drug policies. This is a reasonable business reason for Petitioner's discharge. See McDonnell Douglas v. Green, 411 U.S. 792 93, S. Ct. 1817 (1973); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742 (1993). In other words, after a prima facie case is established, if the employer produces evidence of a legitimate non-discriminatory reason for its actions, the prior presumption of discrimination is rebutted and eliminated. See McDonnell, supra.
The burden was on Petitioner to show that his employer's reason was pretextual. Petitioner was unable to do this; therefore, on the merits, Petitioner does not prevail even if the Division has jurisdiction.
