STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EURACLIO PONS,

Petitioner,

vs.

CITY OF MIAMI-DADE,

Respondent.

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) Case No. 10-0956

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RECOMMENDED ORDER

Administrative Law Judge Eleanor M. Hunter held a final hearing in this case by video teleconference at sites in Miami and Tallahassee, Florida, on September 8, 2010.

APPEARANCES

For Petitioner: Euraclio Pons, pro se

5340 Southwest 112 Avenue

Miami, Florida 33165

For Respondent: Diana Vizcaino, Esquire

City of Miami's Office of Equal Opportunity and Diversity Programs

444 Southwest 2nd Avenue 6th Floor, Suite 642 Miami, Florida 33130

STATEMENT OF THE ISSUE

The issue is whether Respondent committed an unlawful employment practice by discriminating against Petitioner on the basis of a disability or a perceived disability in violation of

the Florida Civil Rights Act of 1992, as amended, Chapter 760, Florida Statutes (2010).

PRELIMINARY STATEMENT

On August 3, 2009, Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations ("FCHR"). Following an investigation, the Commission issued a "Determination: No Cause" on January 18, 2010, meaning it found no reasonable cause to believe that an unlawful employment practice had occurred. Petitioner filed a Petition for Relief, and the Commission referred the matter to the Division of Administrative Hearings ("DOAH") on February 23, 2010.

Initially set for hearing on April 30, 2010, the case was continued twice, first at Petitioner's request, then on Respondent's unopposed Motion. The hearing was held on September 8, 2010.

At the hearing, Petitioner appeared and testified on his own behalf. Also received in evidence were Petitioner's Exhibits 1-20, 28A, 38 and 39; documents marked with Bates stamp page numbers 00065, 00071, and 00371; the Petition for Relief, and Petitioner's Letter to the FCHR dated March 1, 2009.

Respondent presented the testimony of Jessica Pacheco; Joni Harris; Eyran Krause, Ph.D.; and Craig Dunn. Respondent's Exhibits that were received into evidence are those documents marked with Bates stamp page numbers 00008-00030, 00034-00038,

00047-00050, 00086-00088, 00090-00106, and 0128-0131. The

Transcript of the hearing was received September 14, 2010.

Proposed recommended orders ("PROs") were due to be filed on September 24, 2010. In a letter received on September 23, 2010, Petitioner requested an extension of time until

October 14, 2010, to file his PRO. Because the letter did not include a certificate of service or a statement of the opposing party's position, a Notice of Ex-Parte Communication was issued on September 23, 2010. Respondent filed its Proposed Recommended Order on September 24, 2010, as scheduled.

Petitioner's Proposed Recommended Order was received October 15, 2010, and, in the absence of any objection by Respondent, it is accepted and considered.

FINDINGS OF FACT

1. Petitioner, Euraclio Pons ("Petitioner" or "Mr. Pons"), filed a Charge of Discrimination dated August 3, 2009, alleging that he was the victim of an unlawful employment practice. More specifically, Mr. Pons charged that due to his disability or perceived disability, he was not promoted from his current position as a fire fighter/fire inspector to the position of fire lieutenant.

2. Respondent, City of Miami-Dade ("Respondent" or the "City"), is Mr. Pon's employer and is an "employer" within the

   
   

   meaning of the Florida Civil Rights Act of 1992. Mr. Pons has worked for the City since 1989.

3. Mr. Pons has had shoulder problems since he received an injury in 2001. He had surgery on his shoulder in 2007, and has since been on permanent limited light duty which he described as a disability or a perceived disability. He received workers' compensation for his injuries and impairment.

4. In 2007, the City published a Register Announcement for the position of fire lieutenant, as required by civil service rules and the collective bargaining agreement ("CBA") between the City and the International Association of Firefighters, AFL- CIO Local 587, the union that represents City firefighters. The Announcement, among other details, described the requirements for the job and the date for applicants to take an examination. Applications were received and screened, and those applicants who were found to be otherwise eligible for the position were allowed to sit for the examination.

5. The Announcement was dated May 21, 2007, and had a closing date for applications of June 8, 2007. Consistent with the terms of the CBA, however, the effective date was of the Register was retroactive to May 24, 2006, the date the first vacancy occurred that was not filled because of a City-wide freeze on hiring and promotions. A register remains in effect for two years and, in this case, the 2006 Register was used to

   
   

   fill vacancies that occurred from May 24, 2006, through May 23, 2008.

6. Of 117 applicants qualified to sit for the examination, ninety-seven passed, including Mr. Pons. The ninety-seven eligible applicants were ranked for promotions in order of test scores plus veterans' preference points, if any. The CBA requires that all promotions be filled in the order of rankings on the list of eligible employees. Based on the terms of the CBA, promotions and corresponding pay raises are granted retroactively to the effective date of the vacancy once promotions freezes are lifted.

7. Twelve promotions were retroactive to 2006. Thirteen promotions were made for 2007 vacancies, and six for 2008 vacancies. Thus, thirty-one promotions were made before the 2006 Register expired on May 23, 2008. Mr. Pons was thirty- third on the list.

8. When the list was initially published, Mr. Pons was one place higher. The list had to be corrected when another firefighter proved his eligibility for veterans' points and that raised his score over that of Mr. Pons.

9. After the expiration of the 2006 Register, the next register announcement was posted June 2, 2008. The competitive examination was given on July 21, 2008. On the 2008 Promotions Register, Mr. Pons was listed as qualified for a promotion on

   
   

   the new register and ranked sixteenth. That Register was set to expire June 22, 2010, but has been extended because of another freeze on hiring and promotions.

10. Mr. Pons believes he was denied a promotion because the now-retired Director of the Fire Department, Chief William Bryson, discriminated against him based on his disability or perceived disability. According to Mr. Pons, Chief Bryson made the following comments to him that were indicative of his discriminatory intent: "You shouldn't be disabled;" "You are a whiner"; "You would get your bugles (meaning a promotion to fire lieutenant) if you were a different person"; and "If you were a different person, you would get promoted. We would have a closed-door conversation and you would get promoted." Mr. Pons also found Chief Bryson unhelpful when he filed a claim for workers' compensation and, at that time, he said the Chief did not believe he had a disability. Mr. Pons did receive workers' compensation and an impairment rating for permanent limited light duty work.

11. Mr. Pons believes that an additional vacancy would have been created while the 2006 Register was still active, but that Chief Bryson deliberately waited until after the expiration of the promotions register to fill the vacancy in the position of fire marshal. Instead of immediately filling the vacancy, Chief Bryson gave an assistant fire chief the title of acting

    
    

    fire marshal. The fire marshal position is an at-will executive position that is not covered by the civil service system or the CBA. Mr. Pons, nevertheless, seemed to expect that a captain would become fire marshal, a lieutenant would become captain, and a lieutenant's vacancy would be filled from the register.

    Considering the fact that the fire marshal position does not have to be filled in that manner, the probability of that chain- of-events is entirely speculative.

12. Mr. Pons believed that Chief Bryson delayed graduation for a new class of recruits and had them painting kitchen cabinets to avoid promoting him. Again, he speculated that the recruits were needed to put a new fire or rescue truck in service. If there were a new truck, a lieutenant would be promoted to captain, lieutenants would be assigned to the truck, and an additional five or six fire fighters would become lieutenants.

13. The Assistant Fire Chief who is responsible for personnel testified that a permanent light duty rating is not a bar to promotion to the rank of lieutenant and cited several examples. That testimony was not disputed or challenged.

14. Mr. Pons presented no witnesses or documentary evidence to corroborate his testimony regarding his claims that former Chief Bryson made discriminatory comments to him, or that he took any of the actions described for the purpose of denying

    
    

    Mr. Pons a promotion. Therefore, as a matter of fact, Petitioner failed to establish that he was the victim of an unlawful employment practice.

15. The evidence concerning whether or not Mr. Pons timely filed his complaint with the FCHR is not clear. The promotions register expired in May 2008. Mr. Pons complaint that was introduced into evidence was dated August 3, 2009, but he insisted that it was the third document that he had filed and that the first one was sent to the Equal Employment Opportunity Commission. Due to the confusion, this case is decided on the merits.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. §§ 120.569 and 120.57(1), Fla. Stat (2010).

17. Section 760.10, Florida Statutes (2010), provides

    
    

    that:

    
    

    1. It is an unlawful employment practice for an employer:

       
       

       1. To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, national origin, age, handicap, or marital status.

    
    

18. To establish a prima facie case of discrimination, Petitioner must prove by a preponderance of the evidence: (1) that he is a handicapped person within the meaning of Subsection 760.10(1)(a); (2) that he is a qualified individual; and (3) that Respondent discriminated against him on the basis of his disability. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973); Earl v. Mervyns, 207 F.3d 1361, 1365 (11th Cir. 2000); Pritchard v. S. Co. Servs., 92 F.3d 1130 (11th Cir.1996); and Byrd v. BT Foods, Inc., 948 So. 2d 921 (Fla. 4th DCA 2007).

19. The term "handicap" in the Florida Civil Rights Act is treated as equivalent to the term "disability" in the Americans With Disabilities Act ("ADA"). See Ross v. Jim Adams Ford,

    Inc., 871 So. 2d 312 (Fla. 2d DCA 2004).

    
    

20. The ADA defines a "disability" as "a physical or mental impairment that substantially limits one or more of the major life activities of such individual, a record of such impairment; or being regarded as having such an impairment." 42

    U.S.C. § 12102(2). "Major life activities" include "functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." Bragdon v. Abbott, 524 U.S. 624, 118 S. Ct. 2196, 141 L. Ed. 2d 540 (1998); see 45 C.F.R. § 84.3(j)(2)(ii); and 28 C.F.R. § 41.31(b)(2)(1997).

    
    

21. In Sutton v. United Air Lines, Inc., 527 U.S. 471, 119

    
    

    S. Ct 2139, 144 L. Ed. 450 (1999); the Supreme Court declared that whether a person is disabled under the ADA is an "individualized inquiry." It stated:

    The definition of disability . . . requires that disabilities be evaluated 'with respect to an individual' and be determined based on whether an impairment substantially limits the major life activities of such individual.' Thus, whether a person has a disability under the ADA is an individualized inquiry.

    Id. at 484.

    
    

22. Petitioner failed to prove that he has a disability or a perceived disability. A workers' compensation impairment rating is not necessarily equivalent to a disability if it does not affect the ability to work. See Griffin v. Wyndham Vacation

    Ownership, Case No. 10-2586, 2010 Fla.Div.Adm.Hear. LEXIS 83 (R.O. August 18, 2010); Llevado, v. Sandestin Golf and Beach Resort, Case No. 08-4553, 2009 Fla.Div.Adm.Hear. LEXIS 343 (R.O.

    January 14, 2009).

    
    

23. "Disability" means incapacity because of injury to earn in the same or any other employment the wages employee earned at the time of injury. Having not established a disability or perceived disability, Petitioner may not seek relief under the employment provisions of the ADA. See Reiff v. Interim Personnel, Inc., 906 F. Supp. 1280 (D. Minn. 1995)

    
    

24. Petitioner also failed to prove that he was a qualified person for the promotion. Although he was eligible for promotion, having met all the requirements and passed the examination, Petitioner was not qualified having not made it to the top of the register list at a time when a vacancy occurred.

25. For these reasons, Petitioner has not established a prima facie case of discrimination. See St. Johns County School District v. O'Brien, 973 So. 2d 535 (Fla. 5th DCA 2007).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding Respondent not guilty of the allegations, and dismissing Petitioner's Charge of Discrimination and Petition for Relief.

DONE AND ENTERED this 16th day of November, 2010, in Tallahassee, Leon County, Florida.

S

ELEANOR M. HUNTER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 16th day of November, 2010.

COPIES FURNISHED:

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

Diana Vizcaino, Esquire City of Miami's Office of

Equal Opportunity and Diversity Programs

444 Southwest 2nd Avenue, Sixth Floor, Suite 642 Miami, Florida 33130

Euraclio Pons

5340 Southwest 112 Avenue

Miami, Florida 33165

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 10-000956

Orders for Case No: 10-000956