JOHN J. JOUBERT, JR., )
vs. )
Respondent. )
Case No. 10-1793
Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on August 6, 2010, in Tallahassee,
Florida.
For Petitioner: John J. Joubert, pro se
For Respondent: William E. Grubbs, Esquire
John S. Derr, Esquire
Quintairos Prieto Wood & Boyer, P.A.
The issue presented is whether Respondent Wildwood Golf Operations, LLC, committed an unfair employment practice by discriminating against Petitioner when it terminated Petitioner's employment.
On November 13, 2009, Petitioner filed with the Florida Commission on Human Relations an Employment Complaint of Discrimination, alleging that Respondent had discriminated against him based upon his disability/handicap and had retaliated against him when Respondent terminated his employment. After the Commission determined that there was no reasonable cause to believe that an unlawful employment practice had occurred, Petitioner filed his Petition for Relief.
The Petition for Relief does not include a claim of retaliation but only claims that Respondent failed to provide reasonable accommodation for Petitioner's disability. The Commission transmitted the Petition for Relief to the Division of Administrative Hearings for the conduct of an evidentiary proceeding.
Petitioner testified on his own behalf and presented the testimony of Randolph Esser and of Peter Sands. Paul Earnhart testified on behalf of Respondent. Additionally, Petitioner's Exhibits lettered A-C, E, G, H, J, and K and Respondent's Exhibit numbered 1 were admitted in evidence.
The Transcript of the final hearing was filed with the Division of Administrative Hearings on August 19, 2010. Both parties filed post-hearing proposed recommended orders. Those
documents and the Transcript have been considered in the entry of this Recommended Order.
Respondent Wildwood Golf Operations, LLC, is a multi- faceted business, consisting of a 71-room hotel with meeting facilities, a 5,000-square-feet restaurant with banquet facilities, tennis courts, a swimming pool, a driving range, and a golf course.
While Petitioner's nephew was employed by Respondent as a clerk in its pro shop, he introduced Petitioner to
Peter Sands, the director of golf, and Paul Earnhart, the golf manager. The four of them played golf together on several occasions, and Petitioner was considered to be a pleasant, cheerful person like his nephew.
When Petitioner's nephew was about to leave Respondent's employ, he recommended to Sands that Sands hire Petitioner as his nephew's replacement. Sands and Earnhart were amenable to the idea. In July 2009 Petitioner completed an application for employment form and was subsequently hired to work part-time in the pro shop. He also gave golf lessons and continued to play golf on Respondent's course.
On his application for employment, Petitioner left blank the section asking for information on Petitioner's prior employment. He did answer the question asking if he had ever
been convicted or pled guilty to any crime, felony or misdemeanor, other than a minor traffic offense. By answering that question in the negative, he failed to disclose his two prior convictions for shoplifting, to which crimes he had pled guilty. Shoplifting is an offense which would have prevented Petitioner from being hired.
Membership information, including the types of memberships Respondent offers together with cost information, was kept in a file folder in an open file folder holder behind the counter in the pro shop. It was part of Petitioner's job duties, as it was for Respondent's other employees, to provide that membership information to anyone inquiring. The importance of selling memberships for the economic viability of Respondent's business was stressed to Respondent's employees.
On three separate occasions, Earnhart came into the pro shop and asked Petitioner for a copy of the membership information which was kept in the file. On the first occasion, when Petitioner was unable to retrieve it, Earnhart retrieved the information himself and explained to Petitioner that providing membership information was an important part of Petitioner's job duties.
On the second occasion, which occurred approximately a week later, Earnhart again came into the pro shop and asked Petitioner for the membership information. When Petitioner was
unable to comply with his request, Earnhart again showed Petitioner where the information was kept. He also told Petitioner that that was the second time he was unable to provide membership information to Earnhart and that Petitioner should not let that happen again.
Approximately a week later, on September 27, 2009, Earnhart again came into the pro shop and requested a copy of the corporate membership information from Petitioner. When Petitioner was unable to provide it, Earnhart went to the computer in the pro shop and printed a copy from Respondent's website. While Earnhart was at the computer, Petitioner came to him, bent down next to Earnhart's face, probably less than a foot away, and said, essentially, that he was too well-educated to be reprimanded. Earnhart was shocked and angered by Petitioner's belligerent and confrontational manner.
Earnhart retorted rudely and left the pro shop. He encountered Peter Sands, who was on his way into the pro shop, and told Sands what had happened, told him that was Petitioner's third and last time, and instructed Sands to find a replacement for Petitioner, train the replacement, and then terminate Petitioner's employment.
On October 14, 2009, Sands had a conversation with Petitioner advising Petitioner that Petitioner's employment was going to be terminated.
On October 21, 2009, Respondent terminated Petitioner's employment. At that time, Petitioner was still within his probationary period, which, under Respondent's policies, meant he could be terminated without cause.
The day after he was fired, Petitioner sent a letter to Respondent advising that he was disabled and requesting accommodations under the Americans with Disabilities Act. The letter did not specify what disability Petitioner was claiming.
Until receipt of that letter, Petitioner had never advised Respondent that he was disabled and he had not been perceived to be disabled by any of Respondent's employees who testified in this proceeding.
During the term of his employment by Respondent, Petitioner made no request for accommodations due to any disability. While he did request a footstool to put his feet on while he was sitting behind the counter in the pro shop, he did not advise that his request was related to a disability rather than simple comfort. Likewise, when Petitioner requested to not work the normal Sunday 12-hour shift, he did not mention it was related to a disability. He was given a shorter Sunday shift as were other employees who requested one.
Although Petitioner used a handicapped flag on occasion on his golf cart when he was playing golf, so do other
people who are not handicapped but simply want to enjoy the privilege of driving closer to a green.
In 1996 Petitioner was involved in an accident while working as a paramedic. He suffered a broken arm and tendon damage "throughout his body." After he was rehabilitated, he returned to work for another three years before he lost his job.
Petitioner exhibited reluctance to disclose the nature of his alleged disability during the final hearing in this cause. He eventually disclosed at the final hearing that he was
100 percent disabled for "physical limitations," post-traumatic stress disorder, and chronic depression, but identified his disability in his deposition as post-traumatic stress disorder and insomnia.
No medical evidence was offered to support Petitioner's allegations that he is disabled. He relied, instead, on hearsay documents, such as his motor-vehicle- handicapped-parking placard, his Medicare card, and his social security card. No competent evidence was offered as to whether Petitioner still has the disability he had when those documents were obtained or for which alleged disability each of those documents was issued.
Rather, Petitioner admitted during the final hearing that his insomnia is controlled by medication, that it has been over five years since he received any treatment for post-
traumatic stress disorder, and that he doesn't remember who diagnosed him with that condition. He testified in deposition and at final hearing that his post-traumatic stress disorder and his insomnia do not affect his ability or prevent him from being employed.
More importantly, Petitioner testified at the final hearing that his alleged conditions did not affect his ability to retrieve membership information from the file folder and, further, that he does not believe that he was terminated by Respondent based on his disability.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. §§ 120.569, 120.57(1), and 760.11(6), Fla. Stat.
Section 760.10(1)(a), Florida Statutes, provides that it is an unlawful employment practice for an employer to discharge an individual because of such individual's disability/handicap, and Subsection (7) prohibits an employer from retaliating against an individual. Since Petitioner failed to plead in this proceeding or offer any evidence to support his earlier allegation that he was the subject of retaliation, that claim has been waived by Petitioner and will not be considered in this Recommended Order.
Petitioner bears the burden of proof established by the Supreme Court of the United States in McDonnell Douglas v. Green, 411 U.S. 792 (1973), and in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981). Under this well- settled case law, Petitioner bears the initial burden of establishing by a preponderance of the evidence a prima facie case of discrimination. If a prima facie case is established, the burden to go forward shifts to the employer to articulate a legitimate, non-discriminatory reason for the employment action. The employee then has the burden of showing that the business reason is pretextual and that a discriminatory reason more likely than not motivated the decision.
Disability discrimination claims brought pursuant to Chapter 760, Florida Statutes, are analyzed under the same framework as the Americans with Disabilities Act. See Chanda v. Engelhard/ICC, 234 F.3d 1219 (11th Cir. 2000). To prove disability discrimination, Petitioner must establish a prima facie case showing the following: (a) that he is disabled;
(b) that he is a qualified individual; and (c) that he was subjected to unlawful discrimination because of a disability.
Petitioner has failed to establish a prima facie case by failing to establish any of the three elements. First, he has failed to establish that he is disabled. A disability is "a physical or mental impairment that substantially limits one or
more major life activities." See 42 U.S.C. § 12102(1)(A). For a major life activity to be substantially limited, a person must either be unable to perform it or be "significantly restricted as to the condition, manner or duration" under which he can perform it, as compared to the average person in the general population. See 29 C.F.R. § 1630.2(j).
At various times at final hearing and during his deposition Petitioned alleged that he has physical limitations, post-traumatic stress disorder, chronic depression, and insomnia. No "physical limitations" were identified by him, his insomnia is controlled by medication, and he receives no treatment for post-traumatic stress disorder or chronic depression. He also produced no competent evidence to prove that he suffers from any of those conditions.
Petitioner's statements that he is disabled are unsupported by any medical evidence. Further, even if there were proof as to what disability he suffered from when he, for example, received his motor vehicle handicapped-parking placard, the nature of a person's disability can change over time, and there is no proof that he still suffers from that, or any, disability. See Cleveland v. Policy Management Systems Corp., et al., 526 U.S. 795 (1999). Moreover, Petitioner has failed to identify any major life activity that he cannot perform or is significantly limited in performing. Rather, Petitioner asserts
that none of his "conditions" prevented him from performing the duties assigned to him by Respondent.
The second element, that Petitioner is a qualified person, to perform his job is also unproven. Petitioner offered no evidence as to why he failed to produce the information requested by Earnhart on three occasions or what reasonable accommodation would have enabled him to perform the essential functions of his job. See 42 U.S.C. § 12111(8). Although Petitioner suggested, for the first time, after he was terminated that he could carry the membership information on his person, there is no reasonable basis for believing he would produce the information if it were on his person rather than on the counter where he was sitting or standing.
Petitioner's own testimony prevents him from proving that he has met the third element for establishing a prima facie case. He affirmatively testified that he does not believe that Respondent terminated his employment due to his alleged disability. Accordingly, Petitioner failed in his initial burden of proof.
Even if Petitioner had proven a prima facie case, Respondent has articulated legitimate, non-discriminatory reasons for terminating Petitioner's employment: his failure or refusal to retrieve the membership information from the folder and his confrontational attitude toward Earnhart, his superior.
Petitioner's failure to offer any explanation as to why he could not or would not produce the information prevents him from demonstrating that Respondent's proffered reason for terminating his employment is pretextual.
Although Petitioner appears to seek a determination that he was a good employee, it is beyond the scope of this proceeding to determine whether Respondent's decision to terminate Petitioner's employment was wise or overly harsh. The only issue over which the Florida Commission on Human Relations has jurisdiction is whether the termination was based upon unlawful discrimination. An employer may terminate an employee for a good reason, for a bad reason, for a reason based upon erroneous information, or for no reason at all, as long as the termination is not based upon a discriminatory reason. See Dept. of Corrections v. Chandler, 582 So. 2d 1183 (Fla. 1st DCA 1991), and the cases cited therein.
RECOMMENDED that a final order be entered finding Respondent not guilty of committing an unfair employment practice and dismissing the Petition for Relief filed in this cause.
DONE AND ENTERED this 9th day of September, 2010, in Tallahassee, Leon County, Florida.
LINDA M. RIGOT
Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 2010.
John J. Joubert
Quintairos Prieto Wood & Boyer, P.A.
Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
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.
