STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ZEGORY KALOUSKA, )

)

Petitioner, )

)

vs. ) Case No. 05-0179

)

MIAMI-DADE COUNTY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, Section 120.57(1), a hearing was conducted in this case on March 29, 2005, by video teleconference at sites in Miami and Tallahassee, Florida, before Robert E. Meale, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Zegory Kalouska, pro se

Post Office Box 601012

North Miami Beach, Florida 33160

For Respondent: Eric A. Rodriguez

Robert A. Ginsburg

Miami-Dade County Attorney Office

111 Northwest 1st Street, Suite 2810 Metro Dade Center

Miami, Florida 33128

STATEMENT OF THE ISSUE

The issue is whether Respondent is guilty of unlawful discrimination in employment, in violation of Section 760.10, Florida Statutes.

PRELIMINARY STATEMENT

By Petition for Relief filed January 18, 2005, Petitioner alleged that Respondent discriminated against him, on the basis of religion, when it terminated him from his employment as a bus driver for wearing religious head garb.

By Notice of Determination: No Cause, the Florida Commission on Human Relations found no reasonable cause to determine that the alleged discrimination had taken place.

At the hearing, Petitioner called one witness and offered into evidence three exhibits: Petitioner Exhibits 1-3.

Respondent called two witnesses and offered into evidence six exhibits: Respondent Exhibits 1-6. All exhibits were admitted.

The parties did not order a transcript. Respondent filed a Proposed Recommended Order on April 11, 2005.

FINDINGS OF FACT

1. Respondent employed Petitioner in its transit department from 1993 through July 11, 2003. At all times, Respondent worked as a bus driver.

2. In 2002, Respondent suspended Petitioner for his failure to make announcements to the passengers concerning the

   Americans with Disabilities Act (ADA). In 2002, Petitioner again failed to make the required ADA announcements to the passengers and engaged in a confrontation with a wheelchair- bound passenger as to the appropriate place for the bus to stop and discharge the passenger.

3. On April 29, 2003, the director of the transit department notified Respondent that he was dismissed from his job as a bus driver due to the incidents in late 2002. Petitioner appealed the termination and attended a hearing in June 2003. At the hearing, Petitioner and Respondent agreed to settle the dispute by Respondent's converting the termination to a 60-day suspension without pay and reinstating Petitioner, at the end of 60 days, to his former bus driver position. The agreement also provided that Respondent would terminate Petitioner for any future violations of Respondent's rules.

4. The agreement required Petitioner to return to work on June 30, 2003. Petitioner did not return to work on June 30 or at anytime through July 11, 2003. On July 11, 2003, the director of the transit department issued a letter informing Petitioner that he was terminated for failing to return to work, as required, on June 30, 2003, or at any subsequent time through the date of the letter.

5. At the hearing, it was apparent that Petitioner had understood that he was to report back to work on June 30, 2003,

   and chose not to do so. Petitioner testified that his reason for failing to return to work was somehow related to discrimination against him by Respondent for wearing religious head garb. However, on cross-examination, Petitioner admitted that he had worn this religious article, without objection, since the resolution of a dispute about it on August 6, 2001. In fact, Petitioner failed to report back to work for reasons having nothing to do with discrimination, and Respondent terminated him for this failure, not for any reason involving discrimination.

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter. §§ 120.569, 120.57(1), and 760.11(4)(b), Fla. Stat.

7. Section 760.10(1)(a), Florida Statutes, provides that it is an unlawful act of employment discrimination to discharge any person on the basis of such person's religion.

8. Petitioner has failed to prove any connection between his religion and the head garb that he wore at work, and he has failed to prove that, even if such a connection existed, Respondent fired him for wearing the head garb. To the contrary, it is clear that Respondent fired Petitioner because he failed to report to work after an earlier suspension, and it

is equally clear that Petitioner had no legitimate reason not to report to work at the end of the suspension.

RECOMMENDATION

It is

RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief.

DONE AND ENTERED this 10th day of May, 2005, in Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

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 10th day of May, 2005.

COPIES FURNISHED:

Cecil Howard, General Counsel

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Zegory Kalouska

Post Office Box 601012

North Miami Beach, Florida 33160

Eric A. Rodriguez

Miami-Dade County Attorney Office

111 Northwest 1st Street, Suite 2810 Metro Dade Center

Miami, Florida 33128

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 05-000179

Orders for Case No: 05-000179