STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
GLEN MEISELMAN, )
)
Petitioner, )
)
vs. ) Case No. 07-2418
) BROWARD COUNTY CLERK OF COURT, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case on November 7 and December 10, 2008, in Fort Lauderdale, Florida, before Errol H. Powell, an Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Glen Meiselman, pro se
8067 Mizner Lane
Boca Raton, Florida 33433
For Respondent: Thomas H. Loffredo, Esquire
GrayRobinson, P.A.
401 East Las Olas Boulevard, Suite 1850 Fort Lauderdale, Florida 33301
STATEMENT OF THE ISSUE
The issue for determination is whether Respondent discriminated against Petitioner on the basis of his disability in violation of the Florida Civil Rights Act of 1992, as amended.
PRELIMINARY STATEMENT
Glen Meiselman filed a Charge of Discrimination with the Florida Commission on Human Relations (FCHR) against the Broward County Clerk of Court (Clerk) alleging that the Clerk discriminated against him on the basis of his disability. On April 19, 2007, the FCHR issued a Determination of No Cause and a Notice of Determination of No Cause. Mr. Meiselman timely filed a Petition for Relief with the FCHR against the Clerk. On May 30, 2007, the FCHR referred this matter to the Division of Administrative Hearings.
This matter was originally scheduled for hearing commencing on August 1, 2007. Mr. Meiselman requested a continuance in order to obtain the services of an attorney, indicating, among other things, that he suffers from a brain injury and needed the assistance of counsel. The request was granted. Several continuances were subsequently granted at the request of either Mr. Meiselman or the Clerk. Mr. Meiselman was not able to obtain counsel; his wife, Heather Meiselman, assisted him in the presentation of his case.
At hearing, Mr. Meiselman testified on his own behalf, presented the testimony of one other witness, Mrs. Meiselman, and entered 12 exhibits (Petitioner's Exhibits numbered 1 through 8, 10 through 12, and 14) into evidence. The Clerk presented the testimony of six witnesses and entered 36 exhibits
(Respondent's Exhibits numbered 1 through 36) into evidence.
A transcript of the hearing was ordered. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. The Transcript, consisting of two volumes, was filed on December 29, 2008. Several extensions of time to file post-hearing submissions were requested by the parties jointly and individually on various grounds, including difficulty due to the brain injury, illness, family death, and litigation conflicts,1 and were granted. The parties timely filed their post-hearing submissions, which were considered in the preparation of this Recommended Order.
FINDINGS OF FACT
In October 1995, Mr. Meiselman suffered a traumatic brain injury as a result of a serious automobile accident, caused by a drunk driver. Due to the traumatic brain injury, among other things, he suffers from short-term memory loss, seizures, and depression.
Because of the short-term memory loss, tasks performed by Mr. Meiselman must be repetitive.
Mr. Meiselman’s seizures are mostly petite-mal, not grand-mal, and he takes medication for them. When he has a seizure, he gets embarrassed about his disability and very frightened and does not want to be around people. Also, during
a seizure, he thinks about the drunk driver who caused the accident and curses during the seizure. Further, when he has a seizure, Mr. Meiselman needs to “cool-down,” but, if that does not calm him and ease the seizure, an ambulance needs to be called.
In September 1997, Mr. Meiselman was approved for social security disability by an administrative law judge of the Social Security Administration (SSA ALJ). At the hearing before the SSA ALJ, medical evidence was presented supporting an organic mental disorder, producing memory impairment and disturbance in mood; and supporting an affective disorder, producing major depression. The SSA ALJ found that
Mr. Meiselman had “impairments” of a “closed head injury and major depression,” which were considered “severe”; and that the impairments prevented Mr. Meiselman from “maintaining appropriate levels of attention and concentration, and interacting with others on a sustained basis.” Additionally, the SSA ALJ found that Mr. Meiselman's activities of daily living (ADLs) were restricted or limited to the moderate level.
It is not disputed that Mr. Meiselman suffers from a disability because of his memory and cognitive difficulties.
On or about April 16, 2001, Mr. Meiselman completed an application for employment with the Clerk. At or about the time of his application, Mr. Meiselman submitted to the Clerk’s Human
Resources office information regarding his approximate two-year lapse in employment and disability, as determined by the SSA, including his memory impairment and his suffering from seizures.2 However, Human Resources had no record of such information.
On June 18, 2001, Mr. Meiselman was employed by the Clerk in the position of Archives Coordinator. He was placed in the Archives Department at the Clerk’s Deerfield location in the Warehouse. The manager of the Warehouse was Freddie Allen. Among other things, Mr. Meiselman’s work involved repetitive work and very little driving, both of which were needed in order for him to properly function in the position.
No accommodation was requested by Mr. Meiselman. No accommodation was offered by the Clerk.
Mr. Meiselman’s training for working in the Warehouse took six months. Normally, the training takes no more than one month.
During Mr. Meiselman’s probationary period, he received monthly evaluations from Mr. Allen. No deficiencies were noted by Mr. Allen on the evaluations. Mr. Meiselman’s last evaluation in November 2001 reflected a ranking of above average in all of the categories being evaluated, except one, in which he received a ranking of excellent.
After his probationary period, Mr. Meiselman received yearly performance appraisals. For the period of June 18, 2002,
through June 18, 2003, his overall performance was rated as average. The performance appraisal reflects the Assistant Director of Support Services, Deborah Hitchcock, as the evaluator.
Mr. Meiselman received an overall rating of average even though, on June 18, 2002, he received an “Oral Warning” for “unprofessional conduct” from Mr. Allen for an incident that occurred on May 28, 2002. Mr. Meiselman and another employee engaged in a verbal confrontation, but no physical contact, disrupting the work of fellow employees.
Also, during that appraisal period, on February 12, 2003, Mr. Meiselman appeared to have experienced a medical incident that concerned Ms. Hitchcock to the degree that she authored an “Incident Report.” Mr. Meiselman was assisting in the unloading of boxes from a truck. Afterwards, Ms. Hitchcock observed him walking down a corridor; and he was pale, sweaty, incoherent, not responding to her attempts to talk with him, and repeatedly attempting to push open doors that required a key card to open. Other employees took measures to cool him down and paramedics were called. Mr. Meiselman was treated for heat- related problems and was permitted to drive himself home.
Ms. Hitchcock was informed by Mr. Allen and another employee, Tom Williams, that they had observed Mr. Meiselman exhibiting the same conditions and behavior on prior occasions.
Mr. Allen was aware of Mr. Meiselman's traumatic brain injury.3 Additionally, once, Mr. Allen observed Mr. Meiselman sweating abnormally and asked Mr. Meiselman whether anything was wrong. Mr. Meiselman responded that he was having a seizure, but Mr. Allen did not call an ambulance.
The next day, February 13, 2003, Ms. Hitchcock asked Mr. Meiselman whether his conditions and behavior on the previous day were a health concern. He informed her that he believed that he had become overheated and that he was having a blood test performed later.
Mr. Meiselman did not state to Ms. Hitchcock that he had suffered a seizure. Nor did he indicate to her that he suffered from seizures.
On February 14, 2003, by memorandum, Ms. Hitchcock requested Mr. Meiselman to obtain clearance from his physician to return to work for full job-related duties at the Warehouse. Further, she informed him that he was not to use ladders and that she would also advise Mr. Allen of the restriction.
On or about February 21, 2003, Mr. Meiselman obtained and submitted the clearance to return to “full activity at work” from his physician. He returned to work without any restrictions.
For the period of June 18, 2003, through June 17, 2004, Mr. Meiselman’s overall performance was rated as needs
improvement, with continued employment to be evaluated. The signature page was not attached to the performance appraisal. However, an inference is drawn and a finding of fact is made that Ms. Hitchcock was also the evaluator on this performance appraisal.
On January 30, 2004, Ms. Hitchcock gave Mr. Meiselman an "Oral Warning" for his "quality of work" regarding a situation involving the destruction of public documents. Some boxes of parking citations were missing and could not be located. The subject boxes were public documents and, in compliance with Florida's public records law concerning retention, were not scheduled for destruction. Mr. Meiselman was in charge of the destruction of such boxes in compliance with Florida's public records law. The determination was made that the boxes had been destroyed and that they were destroyed contrary to Florida's public records law concerning retention. Mr. Meiselman was held responsible for the error.
On March 5, 2004, Ms. Hitchcock gave Mr. Meiselman an "Informal Write Up" for his "quality of work" and "carelessness." The previous day, March 4, 2004, she was unable to locate a record disposition form in Mr. Meiselman's office that she needed. Ms. Hitchcock had previously advised
Mr. Meiselman in writing about organizing and completing his disposition forms and files and reporting his dispositions in
order for others to complete the tasks and to be able to locate documents in his absence. She informed him in the Informal Write Up that future issues in quality of work or carelessness would result in progressive discipline.
On May 17, 2004, Ms. Hitchcock issued Mr. Meiselman a Corrective Action Statement (CAS) for his "carelessness" and "quality of work." She considered his work performance as inadequate. This action by Ms. Hitchcock was the first step of progression discipline.
The CAS advised Mr. Meiselman, among other things, of the specific nature of his performance deficiencies and the detrimental effect of those deficiencies. Further, the CAS advised him that the consequence of his failure to improve his work performance would result in "continued progressive discipline, up to and including suspension or termination."
Ms. Hitchcock met with Mr. Meiselman to review the CAS with him. In attendance, also, was Mr. Allen at Ms. Hitchcock's request. As Mr. Meiselman was reviewing the CAS, Mr. Allen observed a negative change in Mr. Meiselman's facial expression, which caused Mr. Allen to be concerned. Mr. Allen positioned himself between Mr. Meiselman and Ms. Hitchcock and asked
Mr. Meiselman to calm down, which he (Mr. Meiselman) did.
Even after the CAS, Ms. Hitchcock did not observe improvement in Mr. Meiselman's work performance. As a result,
she prepared a second CAS and submitted it to the Clerk's Chief Director of Human Resources, Patricia Mosely, for review.
After reviewing the pending second CAS, Ms. Mosely met with Mr. Meiselman. She reviewed the pending second CAS with him and indicated to him that it would jeopardize his continued employment. As an option, Ms. Mosely offered Mr. Meiselman a position in the Central Courthouse mailroom as a clerk. She advised him that, if he accepted the mailroom clerk's position, the pending second CAS would not be approved.
The mailroom position was a lower position; but, it required repetitive tasks to be performed, which was what
Mr. Meiselman indicated that he needed in a position, and was less demanding. Furthermore, he was able to perform the essential function required in the mailroom position.
Additionally, during the meeting, Ms. Mosely asked Mr. Meiselman whether he was able to perform the physical aspects of his job in the Warehouse. He responded that he had a condition, but did not indicate what the condition was or whether the condition prevented him from performing his duties. Ms. Mosely provided the Clerk's "Physician's ADA [Americans with Disabilities Act] Questionnaire" to Mr. Meiselman and indicated to him that it needed to be completed in order for the Clerk to recognize a medical condition or disability.
Mr. Meiselman accepted the position. The pending second CAS was not issued.
The Physician's ADA Questionnaire was not returned to Ms. Mosely.
On August 9, 2004, Mr. Meiselman began working at the mailroom. His supervisor was David Tomkins. Mr. Tomkins was already aware of Mr. Meiselman as a result Mr. Meiselman having worked at the Warehouse.
Sometime after Mr. Meiselman began working at the mailroom, Mrs. Meiselman came to the mailroom and informed his co-workers about his seizures; this embarrassed him. She explained to Mr. Meiselman's co-workers what happens to him when he has a seizure and what they should do--let him cool-off and, if necessary, call an ambulance. Additionally, she provided the mailroom staff with her telephone numbers, which were placed in the mailroom.
Mr. Tomkins had some knowledge of seizures because his wife suffered from grand-mal seizures, which were more severe than Mr. Meiselman's seizures. However, Mr. Tomkins had no knowledge of petite-mal seizures, which is the kind of seizure experienced by Mr. Meiselman.
The Clerk did not offer and Mr. Meiselman did not request any accommodations at the mailroom when he began his new position.
For the first month of his four-month probationary period in the mailroom clerk's position, Mr. Meiselman received a performance evaluation. For the period of August 9, 2004, through September 9, 2004, he received a performance rating of good, which indicated that he performed at a competent and dependable level and that he met the performance standards of the job. The performance evaluation was signed by the evaluator, Mr. Tomkins, on September 27, 2004, Ms. Hitchcock on September 28, 2004, and the Chief Director of Support Services, Crystal Pressey, on September 28, 2004.
A few days later, on October 1, 2004, Mr. Meiselman signed the performance evaluation. He made comments on the evaluation, which included that he had a "disability of a traumatic brain injury," and that, because of his disability, he had problems remembering his duties that were not done repetitively.
Mr. Meiselman did not request any accommodation for his disability. Again, he did not submit the Physician's ADA Questionnaire.
The Clerk did not offer any accommodation for Mr. Meiselman's disability.
Even though his first month's performance was rated as good, Mr. Meiselman's experienced subsequent problems.
On November 15 and 16, 2004, Mr. Meiselman was late for work two hours and four and one-half hours, respectively. He advised Mr. Tomkins that he had a doctor's appointment on each of the days. However, Mr. Meiselman had neither called-in nor requested the time-off in advance, as he had been instructed to do.
On November 17, 2004, Mr. Tomkins, along with Ms. Hitchcock, met with Mr. Meiselman regarding the proper
procedure for requesting time-off and reporting emergency time- off from work. During the meeting, Mr. Tomkins requested
Mr. Meiselman to read his (Mr. Meiselman's) calendar card, which contained two separate notations by Mr. Tomkins that
Mr. Meiselman had been counseled by him (Mr. Tomkins) about requesting leave for medical situations. After reading the calendar card, Mr. Meiselman raised his voice, shouted, and became argumentative; he eventually calmed down, but, afterwards, said very little, mostly staring. The proper procedure for requesting time-off and reporting emergency time- off from work was explained to Mr. Meiselman, and he was provided with an application for leave. At the conclusion of the meeting, Mr. Tomkins requested Mr. Meiselman to initial the back of the calendar card to indicate that he (Mr. Meiselman) had read the calendar card; and that the meeting, regarding the proper procedure for taking time-off from work, had taken place.
However, instead of initialing the back, Mr. Meiselman wrote a comment on the back and the front of the calendar card.
On February 10, 2005, Mr. Tomkins sent an employee, Annie Baugh, to assist in the mailroom. Almost immediately after arriving in the mailroom, Mr. Meiselman accused her of being a spy for management and spying on him. Additionally, a mail basket was not in its usual location, and, while sorting some letters, Mr. Meiselman threw some of the letters on the floor and into Ms. Baugh's back. She requested Mr. Meiselman to pick-up the letters off the floor, so she would not slip and fall, and to stop hitting her in the back with the letters.
Mr. Meiselman stopped hitting her in the back with the mail and began to pick-up the mail when he slipped and cut his arm.
Mr. Meiselman wiped the blood from his arm on the edge of
Ms. Baugh's desk; the blood being on the desk frightened her. Ms. Baugh reported the incidents.
On February 11, 2005, a CAS was issued by Cathy Kellerman, the Court Operations Manager, to Mr. Meiselman, regarding the incidents on February 10, 2005, for "misconduct," "behavior," and "violation of personnel policies." Additionally, his previous violations of personnel policies were taken into consideration. This CAS was Mr. Meiselman's second CAS. He was given a two-day suspension and, among other things,
as advised to seek counseling regarding his anger and provided contact information for counseling.
Regarding the incidents on February 10, 2005,
Mr. Meiselman denied and denies that he did anything in anger, but that he acted in a joking manner; and that he intentionally hit Ms. Baugh in the back with the mail, but that it was accidental. Further, he denied and denies that he put blood on the desk. The evidence is more persuasive that Mr. Meiselman committed the acts and conduct complained of on February 10, 2005.
On May 2, 2005, Mr. Meiselman was counseled by
Ms. Kellerman for taking inappropriate breaks. He was taking three, five-minute breaks in the morning and one in the afternoon. She advised him that he was entitled to only one, 15-minute break in the morning and in the afternoon.
Mr. Meiselman informed Ms. Kellerman that he had submitted doctor's notes to Human Resources indicating that he needed the breaks that he was taking.
On May 11, 2005, Ms. Kellerman checked with Human Resources, regarding the doctor's notes, but, no doctor's notes were on file. That afternoon, she saw Mr. Meiselman taking two breaks and, again, counseled him regarding the breaks. Further, she provided him with the Physician's ADA Questionnaire.
About two days later, around mid-day on May 13, 2005, Ms. Kellerman was notified that Mr. Meiselman was having a seizure. She had no knowledge that he suffered from seizures. Immediately, Ms. Kellerman went to the mailroom. She found
Mr. Meiselman sitting down at his desk, with his eyes closed. Ms. Kellerman got his attention, and he opened his eyes and told her that he had had a seizure, but did not need medical attention. Ms. Kellerman continued to try to talk to
Mr. Meiselman when he began writing in a forceful manner on his desk with a pencil and stated that he was "going to kick their fucking asses." She became very concerned for Mr. Meiselman and the safety of the other workers. Ms. Kellerman tried to get
Mr. Meiselman to stand-up in an effort to get him to Human Resources, but he could not stand. She then left the mailroom to get the assistance of the Assistant Director of Human Resources, Bob Hosto.
Ms. Kellerman and Mr. Hosto returned to the mailroom and found Mr. Meiselman sitting at his desk, with his eyes closed. Mr. Meiselman opened his eyes; saw Mr. Hosto; and began stating over and over again that he did not want Mr. Hosto to be there, and, at the same time, pounding his fist on his desk over and over again and louder and louder. Eventually, without looking at anyone in particular, Mr. Meiselman shouted "get the fuck out of here." At that point, Ms. Kellerman was concerned
for the safety of Mr. Hosto, herself, and the staff in the mailroom. She immediately left to get an officer from security or the Broward Sheriff's Office (BSO). Mr. Hosto also left the mailroom.
Shortly thereafter, Ms. Kellerman and Mr. Hosto returned to the mailroom, but, Mr. Meiselman was gone. He had left the mailroom and clocked-out of work.
On that same day, May 13, 2005, Mr. Meiselman's neurologist, Fernando Norona, M.D., provided a statement regarding Mr. Meiselman's brain injury. The statement indicated, among other things, that Mr. Meiselman suffered a traumatic brain injury, which caused Mr. Meiselman's current seizure disorder; and that Mr. Meiselman needed to take short frequent breaks during the day in order not to cause severe fatigue, which could trigger mini-seizures.
No statement from Dr. Norona or any other physician, regarding Mr. Meiselman's traumatic brain injury, his seizures, and his need for frequent breaks, had been submitted to the Clerk prior to Dr. Norona's statement of May 13, 2005.
On May 16, 2005, a third CAS was issued by Kathy Dean, the Director of Court Services, Division I, to Mr. Meiselman for "misconduct" and "behavior." The third CAS addressed the incident on May 13, 2005; the violations of the Clerk's written policies as a result of the incident; and the previous
disciplinary actions taken against Mr. Meiselman. The final determination, based on progressive discipline, was the termination of Mr. Meiselman, on that same day, May 16, 2005; however, the third CAS indicated that he would be permitted to resign, if he so chose to do so.
Additionally, on May 16, 2005, Mr. Meiselman wrote a statement on the third CAS. His statement indicated, among other things, that he had had two seizures on May 13, 2005; that he had become nervous and scared before Mr. Hosto arrived; that he had calmly told Mr. Hosto that everything was fine and requested Mr. Hosto to leave him alone, but that Mr. Hosto would not and kept pushing; and that he had a scheduled appointment with his doctor to have his medication increased, with the low dosage of his medication probably being the cause his seizures and behavior on that day.
Mr. Meiselman was terminated on May 16, 2005. He was terminated in accordance with the Clerk's progressive discipline.
At no time was the Physician's ADA Questionnaire returned to the Clerk.
Mr. Meiselman's income for the year 2002 was $38,771; for the year 2003 was $39,114; for the year 2004 was $32,929; for the year 2005 was $8,881; for the year 2006 was $800; and
for the year 2007 was $13,204, which was benefits paid from
pension and annuities.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto, pursuant to Sections 760.11 and 120.569, Florida Statutes (2010), and Subsection 120.57(1), Florida Statutes (2010).
Section 760.10, Florida Statutes, provides in pertinent part:
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.
To limit, segregate, or classify employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities, or adversely affect any individual's status as an employee, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.
Mr. Meiselman asserts that the Clerk discriminated against him on the basis of his disability. The Clerk asserts
that it took the action of termination for a reason other than Mr. Meiselman’s alleged disability. A panel of the FCHR has decided that, in a situation as this, in which an employer is alleging that it took the complained of adverse employment action for reasons other than an employee’s handicap/disability,
[T]o establish a prima facie case of handicap discrimination the Petitioner
[Mr. Meiselman] must show: (1) [that he] is handicapped; (2) that [he] performed or is able to perform [his] assigned duties satisfactorily; and (3) that despite [his] satisfactory performance, [he] was terminated. Swenson-Davis v. Orlando Partners, Inc., 16 F.A.L.R. 792, at 798 (FCHR 1993). If this burden is sustained, the Respondent [Clerk] must articulate some legitimate nondiscriminatory reason for its action. Hart v. Double Envelope Corporation, 15 F.A.L.R. 1664, at 1673 (FCHR 1992). Once this is articulated, the burden returns to the Petitioner [Mr. Meiselman] to demonstrate the Respondent [Clerk] intentionally discriminated against the Petitioner [Mr. Meiselman]. See St. Mary’s Honor Center v. Hicks, 113 S. Ct. 2742 (1993).
O’Neill v. Sarasota County School Board, 18 F.A.L.R. 1129, at 1130 (FCHR 1994). See also Reed v. Heil Company, 206 F.3d 1055,
1061 (11th Cir. 2000).
The ADA defines “disability” as “(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such impairment; or (C) being regarded as having such an impairment.”
Curruthers v. BSA Advertising, 357 F.3d 1213, 1215 (11th Cir. 2004) (citation omitted).
Mr. Meiselman satisfies the first prong of a prima
facie case. There is no dispute that Mr. Meiselman is disabled within the meaning of the ADA and Florida Civil Rights Act of 1992, as amended, because of his memory and cognitive difficulties suffered as a result of his traumatic brain injury. The parties agree that Mr. Meiselman is disabled even though he did not submit the Physician's ADA Questionnaire to the Clerk or request any accommodations on the basis of his disability and even though the Clerk did not offer any accommodations on the basis of a disability.
However, Mr. Meiselman fails to satisfy the second prong of a prima facie case. The evidence fails to demonstrate that he was able to perform his assigned duties satisfactorily. Mr. Meiselman harassed a co-worker who was assigned to assist in the mailroom and frightened her with bloody bodily fluid. When he had his two seizures, he became threatening to his co- workers. Mr. Meiselman was unable to perform his assigned duties without making others in the workplace feel threatened and fear for their own safety. The evidence demonstrates that Mr. Meiselman's behavior stemmed from his disability; but, the evidence also demonstrates that his behavior was unacceptable
and was a direct threat to the safety of others. See Moses v.
American Nonwovens, Inc., 97 F.3d 446 (11th Cir. 1996).
An employer may retain an employee who is a direct threat if reasonable accommodations are available. Id. at 448. But the Clerk is not required to retain an employee whose unacceptable behavior threatens the safety of others even when the behavior stems from the employee's disability; the employee is unable to perform the essential functions of the job and is, therefore, not a qualified employee. Calef v. Gillette Co., 322 F.3d 75, 87 (1st Cir. 2003). Mr. Meiselman suggests that the accommodation would be for the other employees to leave him alone and contact paramedics only when necessary. To require the Clerk to make this accommodation would place the Clerk at risk of allowing some unforeseen trauma occur to Mr. Meiselman and would, therefore, be an unacceptable risk. Further, the evidence demonstrates that, when he has a seizure, Mr. Meiselman thinks about the drunk driver and becomes angry and becomes threatening; to place other employees and the Clerk at such risk is unreasonable. Additionally, on the day of last incident on May 13, 2005, Mr. Meiselman admitted that his seizure medication needed to be increased and indicated that the low dosage was probably the cause of his seizure and his behavior. As a result, the Clerk was not required to retain Mr. Meiselman, whose unacceptable behavior threatened the safety of others even
though his behavior stemmed from his disability; he was unable to perform the essential functions of his job. Calef, supra.
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 the discrimination complaint of Glen Meiselman against the Broward County Clerk of Court.
DONE AND ENTERED this 3rd day of September, 2010, in Tallahassee, Leon County, Florida.
S
ERROL H. POWELL
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 3rd day of September, 2010.
ENDNOTES
1/ It is also noted that Mr. Meiselman represented that he depended almost entirely upon his wife to perform the preparation of his post-hearing submission due to his disability.
2/ The Clerk claims no knowledge of such information being submitted to its Human Resources’ office. The evidence is more persuasive that the information was submitted by Mr. Meiselman.
3/ Someone told Mr. Allen about it, but, he did not recall who it was.
COPIES FURNISHED:
Glen Meiselman 8067 Mizner Lane
Boca Raton, Florida 33433
Thomas H. Loffredo, Esquire GrayRobinson, P.A.
401 East Las Olas Boulevard, Suite 1850 Fort Lauderdale, Florida 33301
Denise Crawford, Agency Clerk
Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Tallahassee, Florida 32301
Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Tallahassee, Florida 32301
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 |
|---|---|---|
| Oct. 27, 2010 | Agency Final Order | |
| Sep. 03, 2010 | Recommended Order | Petitioner failed to establish a prima facie case that Respondent discriminated against him on the basis of his disability. Petitioner satisfied the first prong, but failed to establish the second prong, of a prima facie case. Recommend dismissal. |
