STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

REBECCA J. TURNER, )

)

Petitioner, )

)

vs. )

) SURE-TEK POWDER COATING, INC., )

)

Respondent. )

Case No. 11-0393

)

FINAL ORDER

Pursuant to notice, the final hearing was held in this case on July 8, 2011, by video teleconference at sites in

St. Petersburg and Tallahassee, Florida, before Administrative Law Judge Elizabeth W. McArthur of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Phyllis J. Towzey, Esquire

Phyllis J. Towzey, P.A. The Kress Building

475 Central Avenue, Suite 401 St. Petersburg, Florida 33701

For Respondent: Craig L. Berman, Esquire

Berman Law Firm, P.A.

111 Second Avenue Northeast, Suite 706 St. Petersburg, Florida 33701

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent committed an unlawful employment practice in violation of section 70-53,

Pinellas County Code, by terminating Petitioner's employment allegedly because of her disability; and, if so, what is the

appropriate remedy.

PRELIMINARY STATEMENT

On January 21, 2011, Rebecca Turner (Petitioner or

Ms. Turner) filed a charge of discrimination against Sure-Tek Powder Coating, Inc. (Respondent or Sure-Tek), with the Pinellas County Office of Human Rights (Pinellas OHR). Ms. Turner alleged that Respondent committed an unlawful employment practice by discriminating against her on the basis of her disability when Respondent terminated her employment.

Pursuant to the procedures set forth in section 70-77, Pinellas County Code, the Pinellas OHR conducted an investigation and found that there was reasonable cause to believe that unlawful discrimination had occurred as charged. Following a failed attempt at conciliation between the parties, the case was forwarded to the Division of Administrative Hearings (DOAH) for the assignment of an Administrative Law Judge to conduct a hearing pursuant to section 70-77.

The hearing was initially scheduled for March 15, 2011, and a telephonic pre-hearing conference was held on March 9, 2011.

It became evident during that pre-hearing conference that neither party was ready for the final hearing, and Ms. Turner decided she ought to seek the assistance of an attorney.

Respondent made an ore tenus motion for continuance, which was granted, and the case was rescheduled for May 13, 2011.

Thereafter, a notice of appearance was filed by counsel for Petitioner, who also filed an unopposed motion for continuance. The motion was granted, and the hearing was rescheduled for July 8, 2011, based on the parties' mutual availability.

A joint pre-hearing stipulation was filed in advance of the hearing in which the parties stipulated to certain findings of fact and conclusions of law. The parties' stipulations have been incorporated into this Final Order.

In the joint pre-hearing stipulation, Respondent indicated that an issue to be litigated was whether section 70-78 of the Pinellas County Code is constitutional. This provoked a Notice of Special Appearance by William C. Falkner, attorney for Pinellas County, filed on July 7, 2011, with a Memorandum of Law in support of the constitutionality of the ordinance.

At the opening of the final hearing on July 8, 2011, the undersigned stated that there was no procedure for special or limited appearances in administrative proceedings, but there was also no authority for DOAH to entertain constitutional challenges to ordinances. Therefore, Mr. Falkner was invited to remain as an observer, with the understanding that the issue that provoked his filings would not be litigated or decided in this forum. Mr. Falkner acknowledged that this was acceptable.

At the final hearing, Petitioner testified on her own behalf and also presented the testimony of Tanya Rodriguez. Petitioner's Exhibits 2 and 3 were received into evidence. Respondent presented the testimony of Brandon Bean and Lewis Currie. Respondent's Exhibits 1, 2, 4, 5, 7, 8, 11, and 13 were received into evidence.

A court reporter was present to preserve the testimony at the final hearing, but no transcript was ordered. The parties initially agreed to file their post-hearing submittals by July 18, 2011. Respondent subsequently filed an unopposed

motion for an extension of time to file post-hearing submittals by July 27, 2011, and the extension was allowed. Both parties timely filed post-hearing submittals within the extended time.

The undersigned issued a Recommended Order on September 22, 2011, and the parties were given 15 days to submit written exceptions. Respondent timely filed exceptions. Petitioner did not file exceptions. Section 70-77(g)(13) of the Pinellas County Code provides that the undersigned "shall respond to submitted written exceptions" and issue a final order. Having reviewed the written exceptions, the undersigned is not persuaded to change the Findings of Fact and Conclusions of Law in the Recommended Order, and they are adopted and set forth in full below. The undersigned's specific responses to

Respondent's exceptions are set forth below following the Findings of Fact and Conclusions of Law.

FINDINGS OF FACT

Admitted Facts Per Joint Pre-hearing Stipulation

1. Sure-Tek is an employer as defined by section 70-51, Pinellas County Code.

2. Ms. Turner was employed by Sure-Tek on January 18, 2010. Her employment was terminated by Sure-Tek on February 22, 2010.

3. Prior to her employment, Ms. Turner was diagnosed with diabetes insipidus. Ms. Turner's diabetes did not prevent her from performing the essential functions of her job, with reasonable accommodations.

4. Lewis "Mitch" Currie is the owner of Sure-Tek, and he was Ms. Turner's direct supervisor. Mr. Currie made the decision to terminate Ms. Turner's employment.

   Additional Findings of Fact

   
   

5. Based on the credibility and demeanor of the witnesses and the greater weight of the competent substantial evidence presented at the final hearing, the following additional facts are found.

   Diabetes Insipidus

   
   

6. Ms. Turner developed diabetes insipidus four years ago as a result of brain surgery to remove a tumor on her pituitary

   
   

   gland. She described the condition as a very rare form of diabetes that is a sodium/electrolyte disorder, instead of the more common forms of diabetes that are insulin/blood sugar disorders. She testified that her understanding of her condition is that it is essentially permanent--the underlying cause of her condition will never go away, and she will eventually need brain surgery again.

7. Ms. Turner's condition requires constant monitoring, but instead of measuring blood sugar via blood tests,

   Ms. Turner's condition involves monitoring and maintaining a balance of hydration, electrolytes, and output (urination), while taking prescription medication to protect against extreme imbalance that could result in her urinating herself to death. The line where the balance should be drawn at any given point is variable and difficult to predict, so the monitoring and adjustment process is a matter of trial and error, to some degree.

8. The balance that Ms. Turner's condition requires is thrown off by temperature extremes, so she cannot work or spend much recreational time outside when it is hot or cold. She can work in an indoor office setting, provided that she takes extra steps to regulate the temperature, such as using space heaters to warm up a cool space. Ms. Turner must also be permitted to have ready access to plenty of drinking water at all times, and

   
   

   she has gotten used to bringing bottled water with her to ensure an appropriate supply. Her condition can cause her to urinate frequently, and so she also must have ready access to a restroom.

9. Ms. Turner also testified that her condition requires her to maintain a strict diet, because many foods and drinks will throw off the balance she must maintain. For example, Ms. Turner must avoid sodium, butter and certain other fats,

   meats, and other ingredients. Since some of the ingredients she must avoid, such as sodium, are difficult to control and monitor when eating out, she does not often go out to eat in restaurants and no longer goes out to dinner with friends. Ms. Turner has gotten very sick when she has unknowingly ingested too much sodium or when the ingredients she must avoid have secretly been in her food. Ms. Turner has learned the hard way about some of the things she cannot tolerate. For example, she learned that she cannot drink alcohol when, after the onset of her diabetes insipidus, she collapsed after drinking a small amount of alcohol at a party and had to be hospitalized.

10. By sticking to a careful regimen of monitoring and adjustment, by adhering to all of the hydration and dietary restrictions she has learned are necessary from her experience, limiting her social activities (rarely eating out, limiting outdoor activities), controlling the temperature of her settings

    
    

    and ensuring constant access to water and bathrooms, Ms. Turner has been able to deal with her condition. In a lay person's sense, Ms. Turner does not really consider herself to be disabled, although she tends to think in comparative terms, noting that there are persons with severe debilitating conditions that are much worse off than she is.

11. Ms. Turner testified that her diabetes disorder also has impaired her immunity system, making her more prone to sickness. No medical testimony was offered to verify this opinion. Somewhat inconsistently, Ms. Turner later testified that when she got sick with a cold, which evolved into bronchitis, that episode of sickness was unrelated to her diabetes condition. Indeed, Ms. Turner's opinion that her sickness was not related to her diabetes condition was confirmed by her testimony that she has gotten colds that turned into bronchitis every winter for many years, pre-dating the onset of her diabetes insipidus.

    Employment at Sure-Tek

    
    

12. Sure-Tek is in the business of powder coating, which is an anti-corrosive industrial coating applied to metal and other objects. The building in which Sure-Tek carries out its business has two main areas: administrative office space and warehouse space. The powder coating is done in the warehouse part of the building, in a room with two ovens that operate at

    
    

    400+ degrees. The room with the ovens is very hot, often

    
    

    120 degrees or more.

    
    

13. Ms. Turner was hired as a bookkeeper/receptionist/ office assistant, beginning on January 18, 2010. She was the only administrative/office worker at Sure-Tek. The other approximately ten employees worked in the warehouse, carrying out the powder-coating business. Mr. Currie, the owner/president, spent about half of his time in his office and the other half in the warehouse.

14. Ms. Turner had an office with a door that she often kept closed because of her sensitivity to hot and cold temperatures; it was easier to regulate the temperature of her office space if the door was closed. Ms. Turner found her office to be very cold, so she kept two space heaters going. She brought her own space heater to use at the office to accommodate her need to modify the temperature of her space.

15. Brandon Bean, another employee at Sure-Tek, did not like having to go into Ms. Turner's office, finding it unpleasantly warm--he described it as quite "toasty." When

    Ms. Turner was hired, Mr. Bean had been working at Sure-Tek for about five months. Mr. Bean had been in jail before he was hired by Sure-Tek, having served a sentence for a felony conviction related to firearms. During the time that Ms. Turner was an employee at Sure-Tek, Mr. Bean's position was referred to

    
    

    as floor supervisor or warehouse foreman. Mr. Bean testified that he was promoted to general manager one year ago, which would have been a few months after Ms. Turner was fired, while the Pinellas OHR was conducting its investigation of

    Ms. Turner's discrimination complaint.

    
    

16. Ms. Turner was expected to work 40 hours per week, and she testified that she did so, not missing a day of work. No evidence was presented that Ms. Turner did not work the hours she was expected to work each day and week of her employment (with the exception of leaving sick two hours early on the last Friday of her employment, discussed below). She rarely took lunch. She was expected to be available during business hours to answer the phones and was expected to take a portable phone with her when she stepped away from her desk, even when she went to the bathroom. When she went to the bathroom with a portable phone, she was expected to answer the phone, even then, if a call came in.

17. At her interview, Ms. Turner told Mr. Currie that she had substantial bookkeeping experience and knew how to use QuickBooks software. No credible evidence was presented to prove that her representations were not true.

18. When Ms. Turner began working for Sure-Tek, she received no training or orientation from someone who knew the office systems, protocols, or electronic files. Mr. Currie told

    
    

    Ms. Turner verbally what her duties were and how things were done, but he did not actually train her. For him, it was good enough that she said she knew QuickBooks. Besides, as he admitted at the hearing, he really did not know the computer systems himself; he "doesn't use the computer much."

19. Ms. Turner discovered that there were two QuickBook systems, which were password-protected. Ms. Turner said that it took two days for her to track down the passwords. Then, she had quite the time sorting out the accounts set up in the two different systems--she described the state of the computer accounting as "a mess" when she started. She asked Mr. Currie if she could merge the two systems, and he told her to go ahead.

20. At the hearing, Mr. Currie acknowledged that there were two QuickBook systems, an older version and a new 2010 version. He testified that his only office help after getting the updated QuickBooks software consisted of a series of three different temporary employees sent over by a "temp" agency. He said that these temporary employees were awful; nonetheless, he tasked them with setting up the new system with information brought over from the old system. It should come as no surprise, then, that Ms. Turner found many problems and errors, such as entries of very recent information in the old system that should have been in the new system.

    
    

21. Ms. Turner testified that she discovered quite a few late and unpaid bills when she started. She would bring these items to Mr. Currie's attention, and he would tell her whether the bills could be paid or not. Mr. Currie's permission was required before Ms. Turner could pay any bills, and sometimes Mr. Currie would refuse to authorize payment for bills that were due or past due. Mr. Currie confirmed this at hearing; he testified that he "absolutely" had to refuse permission to pay bills at times, because there was not always enough money to pay all of the bills. At other times, he would tell Ms. Turner to just pay part of a bill that was due.

22. Mr. Currie testified that for the first two weeks of Ms. Turner's employment at Sure-Tek, she seemed to be on track and was trying very hard. Ms. Turner noted that Mr. Currie praised her work during those first two weeks, and he did not deny this.

23. However, according to Mr. Currie, after about two weeks, Ms. Turner's performance went "downhill." Mr. Currie did not present any credible evidence to prove this demarcation point. However, the evidence did establish that the two-week point was significant for a different reason. Mr. Currie had lunch with Ms. Turner after her first two weeks. In their lunchtime conversation, Mr. Currie told Ms. Turner that his wife suffered from a thyroid problem, which he said sometimes made

    
    

    her off-balance. Ms. Turner responded by telling Mr. Currie that she had diabetes insipidus. Mr. Currie had no apparent immediate reaction to this disclosure. However, at some point thereafter, Mr. Currie told Ms. Turner that he never would have hired her if he had known she had diabetes.1/

24. When Ms. Turner had a cold throughout the week of February 15, 2010, the two had an awkward encounter on Friday afternoon, February 19, 2010. As Ms. Turner described it, by mid-afternoon on Friday, after sticking it out at work all week while not feeling well, she asked Mr. Currie if she could go home two hours early, because she had finished her Friday task of getting the information in to the payroll service and thought it would be all right if she left for the day. Mr. Currie got very angry and said that her diabetes was always making her sick. She tried to tell him that she had a cold and was on antibiotics (to stop the apparent evolution of her cold to bronchitis), and it was unrelated to her diabetes. But

    Mr. Currie just waved his hands and yelled at her to "just go!" She thought he meant that she should go home as she had asked, although she knew he was not happy about it. So she left.

25. Mr. Currie told a very different version of Friday, February 19, 2010. Mr. Currie denied making any statements about Ms. Turner's diabetes, then or ever. Mr. Currie also denied having any conversation with Ms. Turner that afternoon

    
    

    about whether Ms. Turner could go home two hours early because she had a cold. However, Mr. Currie testified that he noticed that Ms. Turner was sub-par that day. As Mr. Currie put it, that day Ms. Turner "seemed a little sicker than she appeared to be normally."

26. Mr. Currie then testified that Mr. Bean was looking for Ms. Turner in the middle of the afternoon that Friday, February 19, 2010. He asked Mr. Currie where she was, and

    Mr. Currie said he did not know. Then, according to Mr. Currie, after they spent about 45 minutes looking for Ms. Turner,

    Mr. Currie decided that Ms. Turner must have quit, leaving without telling anyone, never to return. At that point,

    Mr. Currie instructed Mr. Bean to place an ad on Craigslist for a replacement for Ms. Turner.

27. Mr. Currie's version of the events on Friday, February 19, 2010, is not credible, particularly when coupled with Mr. Currie's inconsistent version of the events on Monday, February 22, 2010; Ms. Turner's version is accepted as the more credible account of events.

28. On Monday, February 22, 2010, Ms. Turner went to work that morning, only to find a number of telephone messages from applicants for the Craigslist ad and resumes submitted by individuals requesting an interview for the bookkeeper position.

    
    

29. By mid-morning, Mr. Currie called Ms. Turner into his office. According to Ms. Turner, Mr. Currie said that it was not working out with her diabetes. When Ms. Turner tried again to tell him that her two-hour break Friday afternoon was because of a cold, and not diabetes, Mr. Currie then added that that was not the only reason he was letting her go--that she had bankrupted his company.2/ Then, according to Ms. Turner,

    Mr. Currie asked her to stay to train her replacement, which she refused to do.

30. Mr. Currie does not deny that he told Ms. Turner she was terminated, but he denies any reference to her diabetes, claiming it was all because of her performance. Mr. Currie did not attempt to reconcile this version in which he admittedly intended to fire Ms. Turner, with his inconsistent description of the previous Friday, when he claimed that the only reason he placed the Craigslist ad was because he believed that Ms. Turner had voluntarily quit, and he had no choice but to start looking for a replacement.

31. In an effort to show that he was thoughtful and accommodating of Ms. Turner's health condition and needs, Mr. Currie testified that a few days before Ms. Turner was fired, she had told him that she would be needing another surgery. His response was that he would hire a temporary

    employee to cover for her so she could have the time off for her

    
    

    surgery. But this testimony tends to underscore that as of just a few days before Ms. Turner was fired, Mr. Currie gave no signs to Ms. Turner that there were any performance-related issues that would put her job in jeopardy.

32. Twisting back toward the different version of events that suggested there were mounting problems with Ms. Turner's performance, Mr. Currie claimed to have talked with Ms. Turner on several different occasions throughout her employment about her performance problems. As noted above, Ms. Turner testified, credibly, that for the first few weeks, Mr. Currie said she was doing a good job. After that, Ms. Turner acknowledged a single comment by Mr. Currie that she did not know how to run reports right. Ms. Turner also acknowledged that Mr. Bean called one meeting with Mr. Currie and Ms. Turner to complain that

    Ms. Turner was unfriendly to him and did not respond quickly enough to a request he made for information. Ms. Turner explained her run-in with Mr. Bean, stating that she was on the phone when he walked into her office and started talking to her as if she was not on the phone. She said that he got quite huffy when she asked him to wait a minute while she finished the

    call.

    
    

33. Mr. Currie claimed that after the first few weeks, he

    
    

    started noticing that bills were going unpaid, and he talked to Ms. Turner about it. Ms. Turner's version, as noted above, was

    
    

    that there were overdue bills when she started, and she called them to Mr. Currie's attention; however, as Mr. Currie admitted, he sometimes refused permission to pay those bills and sometimes told her to just pay part of the bills, because he did not have enough money. No credible evidence was presented that

    Ms. Turner was to blame for bills going unpaid, or only partially paid, during her time of employment. Instead, the evidence showed that before, during, and after Ms. Turner's employment, bills sometimes went unpaid or only partially paid, admittedly, at Mr. Currie's direction.

34. While Mr. Currie denied that it made a difference to him when Ms. Turner told him about her diabetes at that two-week lunch, the more credible evidence is that Mr. Currie's attitude towards Ms. Turner as an employee changed at that two-week mark. The more credible evidence established that Mr. Currie had a knee-jerk reaction upon learning that Ms. Turner had "diabetes" to jump to the conclusion that she had a disability that rendered her substantially and significantly impaired in the major life activity of working. He decided, without any real basis, that she was incapable of working in the one type of job where she thought she would be able to function with the accommodations she herself supplied. The credible evidence establishes that Mr. Currie fired Ms. Turner because of his perception of her disability.

    
    

35. Mr. Currie's testimony included the occasional revealing slips that were much more telling than his steadfast (but not credible) denial of any discrimination. As noted, Mr. Currie testified that he found Ms. Turner to be a good employee who was trying very hard for the first two weeks, but that her work slipped and went downhill after the first two weeks. Yet he presented no evidence to prove what he observed that showed such a downhill slip in her performance after two weeks. Instead, the evidence and testimony, considering the credibility and demeanor of the witnesses, painted the picture

    that it was Ms. Turner's disclosure of having diabetes, and that alone, caused Ms. Turner's downhill plummet in Mr. Currie's eyes.

36. That Mr. Currie perceived Petitioner to be disabled and perceived Petitioner's disability to substantially affect her ability to do her job, was evident from Mr. Currie's slip that on her last Friday of work, Petitioner seemed "sub-par," which he characterized as "a little sicker than she appeared to be normally." Thus, Mr. Currie perceived Petitioner as "normally" sick. That perception came despite the unrebutted testimony by Petitioner that she did not miss any work time based on illness or complication from her diabetes until she asked to leave two hours early on Friday, February 19, 2010.

    
    

37. Ms. Turner's testimony regarding Mr. Currie's discriminatory comments was corroborated by the testimony of Tanya Rodriguez, who was hired in response to the Craigslist ad to replace Ms. Turner. Ms. Rodriguez did not know Ms. Turner until she met her, when Ms. Turner came in to Sure-Tek to pick up her last paycheck after she had been fired. Ms. Rodriguez provided information to the Pinellas OHR in its investigation of Ms. Turner's complaint when Ms. Rodriguez was still employed by Sure-Tek. Ms. Rodriguez was then fired, allegedly for performance problems.3/

38. Ms. Rodriguez convincingly testified at the final hearing that when she was interviewed by Mr. Currie to replace Ms. Turner, Mr. Currie asked her, point-blank, whether she had diabetes. He told her that the last person he hired with diabetes was a good for nothing S.O.B; that he never would have hired her if he knew she had diabetes, because she was always sick; and that he would never hire another person with diabetes. Ms. Rodriguez told Mr. Currie that she did not have diabetes, even though she actually was diabetic.4/ After Mr. Currie asked his question about diabetes, he proceeded to ask Ms. Rodriguez whether she had thyroid problems (like his wife, whom he told Ms. Turner was sometimes off-balance as a result).

39. Ms. Rodriguez also confirmed Ms. Turner's testimony that there were deep-seated problems remaining in the dual

    
    

    QuickBook systems. Although Respondent attempted to characterize this testimony as evidence of Ms. Turner's poor performance, Ms. Rodriguez made it very clear that the problems imbedded in the dual systems were from a much longer time

    span--up to one year--and could not have been the result of errors made in the one month preceding Ms. Rodriguez' employment at Sure-Tek. Instead, Ms. Rodriguez saw signs of efforts to merge the two systems, but noted that there would not have been enough time in one month to completely merge the systems and fix all of the imbedded problems. She testified that she also tried her best to make progress, but she was only at Sure-Tek for a few short weeks.

40. Ms. Rodriguez' testimony was credible and is accepted.5/ Her testimony strongly corroborates Ms. Turner's testimony of Mr. Currie's direct discriminatory statements, including the first words out of his mouth when he fired

    her--that it was not going to work out, with her diabetes.

    
    

41. At hearing, Respondent presented evidence offered in an attempt to demonstrate that Ms. Turner's job performance was not good and was the legitimate reason for her termination.

42. Mr. Currie testified that a Progress Energy bill due on February 18, 2010, went unpaid. Mr. Currie blamed this on Ms. Turner forgetting to pay the bill, but that was not established. Ms. Turner and her successor, Ms. Rodriguez, both

    
    

    testified that as bookkeepers for Respondent, they did not have the authority to pay bills. Instead, they were required to review the bills with Mr. Currie, and each week he would tell them which bills could be paid, which bills should be partially paid, and which bills should be ignored. Mr. Currie corroborated this testimony, admitting that he "absolutely" had to refuse permission to pay bills sometimes. The short billing history Respondent put in evidence for Progress Energy showed, for example, that the month's charges due on June 18, 2009, went unpaid until the following month and that was well before Petitioner began her employment.

43. Regardless of whether the Progress Energy bill due on February 18, 2010, was unpaid because of Ms. Turner's fault or Mr. Currie's instruction, the notification of this unpaid bill was first mailed out to Mr. Currie on Thursday, February 18, 2010. Thus, this could not have been an example of one of the bills allegedly going unpaid that Mr. Currie claimed to have begun noticing after Ms. Turner had been working at Sure-Tek for two weeks. Indeed, there is no evidence that Mr. Currie was even aware of this late notice, mailed on Thursday, by the next afternoon when he had an ad placed for Ms. Turner's replacement or by the following Monday morning, when he fired Ms. Turner.

44. Mr. Currie also testified that Ms. Turner was to blame for an increase in his Progress Energy utility deposit from $800

    
    

    to $2,500, but no evidence was presented to prove that there was an increase in Sure-Tek's required utility deposit at all, or, if so, when any such increase occurred. To the contrary, the Progress Energy statement for February 2010, covering the billing period of January 27, 2010, through February 24, 2010 (very close to the time span of Ms. Turner's employment), shows that the deposit amount already being held for that account at that time was $2,680. Further, the Progress Energy billing history summary shows that the prior month's bill, due on January 21, 2010, had been paid. Thus, the evidence refutes Mr. Currie's suggestion that there was an increase in the deposit requirement because of Ms. Turner's failure to pay the bills. Instead, it appears that if the deposit requirement had been increased, the increase occurred before January 2010, based on billing history that predated Ms. Turner's employment.

45. A similar story was told with respect to the City of Pinellas Park water bills. Mr. Currie blamed Ms. Turner for not paying a bill from January 15, 2010, even though that bill was transmitted online before Ms. Turner was hired. Both before and after Ms. Turner was employed, there was a billing history for the water bills that showed occasional missed payments and occasional partial payments of the total amount due, as well as the imposition of a penalty charge for late payment. The January 15, 2010, bill that was not paid when due on

    
    

    February 10, 2010, resulted in a $34.10 penalty charge, which may have been Ms. Turner's fault. However, given Mr. Currie's admission that he controlled payment of bills and sometimes refused permission to pay bills when due, the evidence is insufficient to show that Ms. Turner was to blame for the bill not being paid while she was employed at Sure-Tek or for the late charge.

46. Mr. Currie also presented evidence regarding PESCO gas bills. A summary of PESCO charges and payments was presented with a January charge highlighted. Next to the January charge was a handwritten note, "DID NOT PAY PESCO BILL." The only problem with this evidence is that the summary is for charges and payments in 2009, not 2010. Thus, whoever did not pay the PESCO bill in January 2009, it could not have been Ms. Turner.

47. Mr. Currie also presented a separate PESCO invoice dated March 4, 2010, which showed that the balance due as of the prior month's bill, February 4, 2010, was $4,609.13. This balance was reduced by a $1,791.73 payment made February 10, 2010, presumably by Ms. Turner during her time of employment. Mr. Currie admitted at the final hearing that PESCO accepted partial payments at that time, and he admitted that he probably instructed Ms. Turner to pay only part of the February bill. It was not shown that there were any billing or payment problems

    
    

    with this account or that Ms. Turner's performance can be faulted at all.

48. Next came the TECO People's Gas bill. On a statement dated February 12, 2010, a "previous balance" of $1,589.88 was carried forward from the prior month's bill. Sometime between the prior statement issued in mid-January 2010, and the February 12, 2010, statement, a partial payment was made and credited in the amount of $497.68, leaving $1,092.20 still due from the January bill. Because the remaining balance was considered "past due" on February 7, 2010, a late payment fee of

    $16.38 was added to the February statement. Mr. Currie acknowledged that the January 2010 bill was partially paid while Ms. Turner was employed at Sure-Tek. Once again, Mr. Currie admitted that it was "entirely possible" that he was the one who instructed Ms. Turner to pay what Respondent could afford to pay--the partial payment of $497.68--because he did not have the money to pay the entire bill. Mr. Currie's own testimony and the bill itself refute his claim that Ms. Turner overlooked or forgot to pay the January bill. In addition, Mr. Currie's testimony corroborated the testimony of Ms. Turner and

    Ms. Rodriguez regarding the tight control Mr. Currie kept on which bills were paid or partially paid. This evidence does not establish that Ms. Turner's performance can be faulted for the

    
    

    partial payment of the January TECO People's Gas bill or the late fee charged on the remainder that was not paid when due.

49. TECO People's Gas also sent a "final notice" on February 11, 2010, informing Sure-Tek that it had to pay the remaining past due balance of $1,092.20 right away, or else its service would be terminated on February 19, 2010. A copy of the final notice in evidence has handwriting on it, indicating "pay" in one handwriting style and "paid" in a different handwriting style. Mr. Currie did not testify that his TECO People's Gas service was terminated. Thus, the reasonable inference is that Mr. Currie authorized Ms. Turner to pay the rest of the January balance upon receipt of the final notice, and she did so before February 19, 2010.

50. Mr. Currie's final piece of documentary evidence to support his claim of mounting performance problems was a notice from the Florida Department of State, Division of Corporations, dated February 17, 2010 (the Wednesday of Ms. Turner's last week of employment). This notice informed Sure-Tek that its corporate annual report was due and should be filed with the filing fee by May 1, 2010, to avoid a late fee. A second notice dated June 16, 2010, imposed the late fee and notified Sure-Tek that the annual report, filing fee, and late fee had to be submitted by September 17, 2010, to avoid administrative dissolution. Despite the fact that Ms. Turner was fired a few

    
    

    days after the first notice and a late fee could have been avoided if the report and filing fee were submitted at any time in the approximately 70 days remaining after Ms. Turner was fired, Mr. Currie blamed the failure to meet the May 1, 2010, deadline on Ms. Turner. That attempted blame is not warranted and, instead, tends to suggest that Mr. Currie was looking to find things to blame on Ms. Turner after she was fired.

51. Mr. Currie testified that he believed Ms. Turner did not know how to use QuickBooks, and, as a result, did not follow his instructions to enter bills into QuickBooks as soon as they were received. However, Mr. Currie offered no credible, competent evidence of this. Mr. Currie admitted that he had no personal knowledge regarding what was or was not entered into QuickBooks by Ms. Turner or how Ms. Turner performed using QuickBooks, and no other evidence was offered to prove

    Mr. Currie's unsubstantiated claim.

    
    

52. Mr. Bean participated in the Pinellas OHR investigation and testified at the final hearing in support of Mr. Currie's position that Ms. Turner was fired because of her performance problems. Mr. Bean testified that Ms. Turner was fired because of a "lack of ability to do the job," and he referred to her not paying bills. Mr. Bean's testimony lacked credibility and probative value. He admitted that he had no personal knowledge of unpaid bills, no personal knowledge of

    
    

    Ms. Turner's interaction with vendors, and no personal knowledge of her QuickBooks work. Mr. Bean provided no competent, credible evidence of any problems with Ms. Turner's performance. The only testimony he provided that was based on personal knowledge was that he found her to be "unfriendly" to him.

    While Ms. Turner was employed at Sure-Tek, Mr. Bean was not her supervisor; at the time, he supervised only the warehouse employees. Mr. Bean testified that he was promoted to general manager in early July 2010 (one year before the final hearing), having "worked [his] way up." This was a few months after

    Ms. Turner was fired, after Ms. Rodriguez was fired, and after Mr. Bean had provided support to Mr. Currie's position in the Pinellas OHR investigation.

53. The credible evidence fails to support Mr. Currie's suggestion that Ms. Turner was not performing acceptably in her brief tenure and was fired for that legitimate reason. Instead, it appears that Mr. Currie went on an after-the-fact hunt for things he could blame on Ms. Turner that could not reasonably be blamed on her, nor were they shown to be reasons why Mr. Currie made the decision on February 19, 2011, to terminate Ms. Turner and advertise for her replacement.

54. Indeed, Mr. Currie's own testimony shows the inconsistencies in his attempt to develop a legitimate rationale for letting Ms. Turner go. When Mr. Currie was explaining his

    
    

    recollection of the events of February 19, 2011, he testified that after just 45 minutes of looking for Ms. Turner, who he described as looking sub-par and sicker than she normally looked that day, he decided that she must have quit, and he instructed Mr. Bean to place an ad on Craigslist because Ms. Turner had apparently decided to quit. That is quite a bit different than coming to the studied view over a multi-week period of time and following several counseling sessions that Ms. Turner's job performance was unacceptable and that she should be fired for poor performance. Instead, the suggestion was that Mr. Currie would have been happy to keep Ms. Turner--even willing to get a temporary employee to accommodate Ms. Turner's need for another surgery in the future--but she was the one who chose to leave.

    Mr. Currie never attempted to reconcile these two very clearly different explanations of how Ms. Turner's employment at

    Sure-Tek ended. These inconsistencies undermine the credibility of his attempt to legitimize her termination.

    Appropriate Remedy

    
    

55. Petitioner testified that she is seeking back pay only, through the date of the final hearing, as damages. Petitioner quantified her back pay damages as 71.5 weeks of unemployment since her termination. She testified that her income at Sure-Tek was $540.00 per week ($13.50 per hour, times

    40 hours per week). This evidence was not challenged by

    
    

    Respondent. Therefore, the total amount of back pay damages claimed before offsetting reductions is $38,610.00.

56. Petitioner testified to her substantial efforts to obtain a job after she was fired by Respondent, and her testimony was corroborated by a tremendous amount of electronic mail inquiries and applications she submitted to follow up on job postings on Craigslist and other online job listings. Petitioner was hired shortly after she was let go by Mr. Currie at a company called Clear Tech, Inc. That job did not last long, however, because Ms. Turner was hired to work for the part of the company that was in the business of new pool construction and that part of the business was shut down soon after she started, due to the economic slow-down.

57. Petitioner proved the amount of wages earned at Clear Tech: $1,632.00. In addition, Petitioner proved that she earned an additional $1,612.00 in unemployment compensation after she was fired from Sure-Tek. These two categories reduce the total amount of damages sought to $35,366.00.

58. Petitioner testified that since she stopped working for Clear Tech, she has not earned wages. However, she testified that she has been helping out at Apple Homes, the company owned by her grandfather and father, and has worked about ten hours per week. She is not on the payroll, because business is not good enough for her to be paid. However, both

    
    

    her grandfather and father help her out financially, helping to pay her rent and her bills.

59. Although Ms. Turner testified that she plans to eventually pay back her father and grandfather for their financial help, she did not produce any evidence to substantiate that claim, such as an accounting maintained by her to tally the amounts of their assistance so she would know how much to repay them. Thus, it is reasonable to assume that her ten hours per week of work to "help" the company is being compensated by this indirect "help" to assist with her rent and bills. The undersigned finds that Petitioner has mitigated her damages to the extent of having similar work for which she is compensated for ten hours per week.

60. Petitioner testified that she began working at Clear Tech in March 2010 and that she worked there for approximately

    30 days. Therefore, the undersigned will assume that Petitioner worked at Clear Tech for the month of March 2010, and, thereafter, she worked at Apple Homes for ten hours a week. That equates to approximately 66 weeks, or 660 hours. In the absence of any other evidence showing how much Petitioner received as indirect compensation, it is reasonable to assume that her compensation would have approximated the hourly rate she earned from Respondent. Therefore, the undersigned will deduct $8,910 from the total back pay damages, representing

    
    

    estimated compensation of the value of her services of ten hours per week at Apple Homes for 66 weeks.

61. The undersigned finds that Petitioner has incurred actual damages due to lost wages from her date of termination by Respondent through the date of the final hearing, reduced/offset by the items described above, of $26,456.00. Petitioner established her reasonable efforts to mitigate her damages, and she, in fact, mitigated her actual damages which have been reduced/offset as described above by a total of $12,154.00.

62. Petitioner has hired an attorney who has represented her at the final hearing, in pre-hearing preparation, and in post-hearing proceedings. Petitioner has also incurred costs in connection with this litigation.

    CONCLUSIONS OF LAW

    
    

63. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. §§ 120.65(7) Fla. Stat. (2011)6/; §§ 70-51 and 70-77, Pinellas County Code.

64. At issue is whether Respondent violated section 70-53(a)(1), which provides that it is an unlawful discriminatory employment practice for an employer to:

    1. Fail or refuse to hire, discharge, or otherwise discriminate against an individual with respect to compensation or the terms, conditions, or privileges of employment because of race, color, religion, national

       
       

       origin, sex, sexual orientation, age, marital status, or disability; or

       
       

    2. Limit, segregate, or classify an employee in a way which would deprive or tend to deprive an individual of employment opportunities or otherwise adversely affect the status of an employee because of race, color, religion, national origin, sex, sexual orientation, age, marital status, or disability.

       
       

65. The parties stipulated that Respondent is an "employer" within the meaning of the Pinellas County Code.

66. The prohibitions against employment discrimination in section 70-53 are virtually identical to the prohibitions in state and federal laws. See §§ 760.01-760.11, Fla. Stat. (Florida Civil Rights Act of 1992); 42 U.S.C. § 2000e-2, et seq. (Title VII of the Civil Rights Act of 1964, as amended); and

    42 U.S.C. § 12101, et seq. (Americans with Disabilities Act of 1990, hereafter "ADA"). And cf. § 70-52(a)(2) (stating that a purpose of Chapter 70 is to "[p]rovide for execution within the county of the policies embodied in the Federal Civil Rights Act of 1964, as amended"). As a result, section 70-53 should be construed in a manner that is consistent with those laws. See, e.g., Conway v. Vacation Break, Case No. 01-3384 (Fla. DOAH Nov. 16, 2001) (construing chapter 70 of the Pinellas County Code in accordance with the comparable state and federal laws); Blacknell v. Freight Mgmt. Servs., Inc., Case No. 04-2854 (Fla. DOAH Oct. 27, 2004)(same).

    
    

67. In this case, the ADA is the federal law to be considered. Respondent raises a good point in arguing that the ADA Amendments Act (ADAAA), which took effect January 1, 2009, and subsequent regulations implementing the amended law, should not apply. As Respondent notes, the Pinellas County Code provisions related to this disability discrimination claim, such as the definitions of "disability" and "major life activities," are comparable to the pre-2009 ADA and corresponding regulations. Moreover, the Pinellas County Code has not been amended on or after the effective date of the new federal law. Therefore, the comparable federal law that will be considered here is the ADA and its implementing regulations and not the ADAAA or subsequent implementing amendments to the regulations.

68. In accordance with federal cases involving disability discrimination claims under the ADA, Petitioner bears the ultimate burden of proving by a preponderance of the evidence that she was discriminated against because of her disability. See, e.g., Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1334 (11th Cir. 1999). "Because of her disability" means that the disability is a motivating factor that made a difference in the outcome; the disability need not be the sole reason for the adverse employment action. Id.

69. To establish a prima facie case of disability discrimination under the ADA, Petitioner must prove: (1) that

    
    

    she has a disability; (2) that she is a qualified individual; and (3) that she was subjected to unlawful discrimination because of her disability. Duckett v. Dunlop Tire Corp., 120 F.3d 1222, 1224 (11th Cir. 1997).

70. The definition of "disability" in section 70-51 provides three alternative meanings in three numbered paragraphs. In the same definition, in "flush left" language following the numbered paragraphs, the meaning of "qualified" individual is set forth:

    "Disability" means

    
    

    1. A physical or mental impairment which substantially limits one or more of such person's major life activities;

       
       

    2. A record of such an impairment; or

       
       

    3. Being regarded as having such an impairment.

    
    

    An individual having a disability is "qualified" with respect to employment if he can perform the essential functions of the job in question with reasonable accommodations.

    
    

71. The parties stipulated that Petitioner's diabetes did not prevent her from performing the essential functions of her job, with reasonable accommodations. Petitioner proved that she was a "qualified individual" within the meaning of section

    70-51. However, the parties dispute whether Petitioner has a

    
    

    "disability" and whether Petitioner was subjected to unlawful discrimination by being terminated because of her disability. Disability

72. Paragraph (1) in the definition of "disability" is a two-part test for establishing an actual disability. The first part of the test requires a "physical or mental impairment," and is met by the parties' stipulation that Petitioner has been diagnosed with diabetes insipidus. This disorder has been recognized as a "physical impairment"; however, proof is required of the second part of the test--that the impairment has a substantially limiting effect on one or more major life activities. See, e.g., Evans v. Pemco Aeroplex, Inc., 1998 U.S. Dist. LEXIS 22954, *19-*20 (N.D. Ala. 1998)(discussing EEOC interpretive guidelines and definitions that include diabetes insipidus as a disorder that constitutes a "physical impairment" for purposes of the ADA, but requiring proof of "substantially limiting" nature of impairment on major life activities).

73. "Major life activities" are defined in section 70-51 to mean "functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working." The introductory phrase, "such as," suggests that the listed examples of major life activities are not all-inclusive, but rather, representative. Consistent with federal ADA cases, major life activities must be of "comparative

    
    

    importance" to the activities in the illustrative list and must be "central to the life process itself." See, e.g., Fraser v.

    Goodale, 342 F.3d 1032, 1039 (9th Cir. 2003). For example, federal courts have recognized that eating is a major life activity within the meaning of this definition. Id. at

    1039-1040; Collado v. United Parcel Serv., Co., 419 F.3d 1143, 1155 (11th Cir. 2005) (citing Fraser as authority to assume, without deciding, that eating is a major life activity). Using this logic, hydration would be seem to be another major life activity, comparable to eating and certainly central to the life process itself.

74. Petitioner's testimony established, by a preponderance of the evidence, that her physical impairment has substantially limiting effects on the major life activities of eating and hydration, and, therefore, she has an actual disability within the meaning of the Pinellas County Code. Petitioner explained the combined impact and interrelationship of the restrictions she must follow in these separate areas, such that she must constantly monitor and adjust the interrelated variables of eating the right ingredients; avoiding the wrong ingredients; hydrating enough, but not too much; gauging how other variables will affect the balance, such as the temperature of her setting; and at all times keeping water at the ready and never straying far from a bathroom. Petitioner described some of the severe

    
    

    adverse consequences she has suffered when her regimen has not hit the right balance or she learns the hard way of some new dietary or drink prohibition, even though she regulates her condition to the extent possible with medication.

75. Also relevant to the determination that Petitioner's impairment is substantially limiting on one or more major life activities is the fact that the disorder, and the substantial impacts, are permanent or long-term in nature and duration. See, e.g., Carruthers v. BSA Adver., Inc., 357 F.3d 1213, 1217 (11th Cir. 2004) (impairment must have permanent or long-term impact to be considered substantially limiting on one or more major life activities).

76. No contrary testimony or evidence was provided with regard to the substantially limiting effects of Petitioner's diabetes on one or more major life activities, including whether the disorder and the impacts are permanent or long-term. Instead, Respondent challenged Petitioner's claim of an actual disability by eliciting her testimony that at various times, she has acknowledged that she personally does not consider herself disabled. In the context explained by Petitioner, the undersigned does not consider Petitioner's opinion in this regard to be dispositive of the legal question presented here; instead, Petitioner's view was offered more in the vein of Petitioner's attitude that she could deal with the significant

    
    

    limitations presented by her condition. Petitioner's comments cannot reasonably be taken as an admission that Petitioner's condition caused no such limitations or only insubstantial limitations on her major life activities, when her specific testimony established otherwise.

77. Even if Petitioner's condition was not viewed as an impairment that substantially limits one or more major life activities, the undersigned concludes on the facts found above that Petitioner was "regarded as" suffering from such an impairment by Respondent, meeting the third alternative definition of "disability." A disability claim based upon this "regarded as" alternative requires a determination regarding the subjective state of mind of the employer. Mendiola v. Vision

    Hospitality, 588 F. Supp. 2d 1295, 1303 (M.D. Ala. 2008). Because this inquiry involves examination of the employer's state of mind, evidence offered to prove discriminatory intent, including evidence that the employer's reasons were pretextual, may be relevant to the question of whether the employer regarded the employee as disabled. McElroy v. Philips Med. Sys. of

    N. Am., Inc., 127 Fed. Appx. 161, 168 (6th Cir. 2005).

    
    

78. Despite his denials, found not to be credible, the facts found above were that Mr. Currie reacted strongly and decisively to the disclosure that Petitioner had a form of diabetes. By his subsequent words and actions in the few weeks

    
    

    between the disclosure and Petitioner's termination, Mr. Currie determined that Petitioner was no longer capable of working or worthy of being an employee because of her diabetes. Even though Mr. Currie did not immediately react in a visible or vocal way, within a few short weeks and with no credible evidence of any other prompting event, Mr. Currie seized on the opportunity presented by Ms. Turner leaving early one day to fire her, because he had a discriminatory perception regarding the implications of Ms. Turner's diabetic condition. With a broad brush, Mr. Currie painted all diabetics as too sick, too unreliable, completely unable to work in an office setting, or in any other type of job at Sure-Tek, to the point that he began asking prospective employees if they had diabetes because that word and that word alone was enough for him to conclusively judge the individual. Mr. Currie did not worry about such niceties as the differences between different types of diabetes or how one's particular type of diabetes might actually limit one's major life activities, including one's ability to work.

    Mr. Currie assumed the worst and did not want any part of it. Thus, he established his blanket rule that he would never hire someone with diabetes again. Given that Sure-Tek had a range of job types, from the administrative office jobs of receptionist, bookkeeper, and assistant to a variety of warehouse jobs,

    Mr. Currie was necessarily concluding that someone like

    
    

    Ms. Turner with any kind of diabetes was substantially limited in their ability to work in a broad class of jobs. See, e.g., Rodriguez v. Conagra Grocery Prod. Co., 436 F.3d 468, 477 (5th Cir. 2006)(granting summary judgment for plaintiff on question of whether employer regarded plaintiff as substantially limited in the major life activity of working, where employer adopted a blanket rule of not employing anyone with uncontrolled diabetes, and employer considered the plaintiff unfit to perform a broad class of jobs).

79. The undersigned concludes, based on the Findings of Fact above, that Mr. Currie's attitude toward diabetes was so strongly negative that it alone made the impairment substantially limiting. In the words of the old regulatory language applicable to the ADA, the individual may have an "impairment that does not substantially limit major life activities but is treated by a covered entity as constituting such limitation[,]" or the individual may have an "impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment." 29 C.F.R.

    § 1630.2(l)(2)&(3) (2009).

    
    

80. The "perceived as" or "regarded as" provision was described in authority relied on by Respondent as follows: "This 'regarded as' provision is 'intended to combat the effects

    of archaic attitudes, erroneous perceptions, and myths that have

    
    

    the effect of disadvantaging persons with, or regarded as having, disabilities." Standard v. A.B.E.L. Servs., Inc.,

    161 F.3d 1318, 1327 (11th Cir. 1998), quoting Gordon v. E.L. Hamm & Assoc., Inc., 100 F.3d 907, 913 (11th Cir. 1996), cert. denied, 118 S. Ct. 630, 139 L.Ed.2d 610 (1997). Mr. Currie had the precise sort of "archaic attitude" that the "regarded as" provision was designed to combat. Thus, Petitioner established that she meets the definition of "disability" within the meaning of the Pinellas County Code, because Respondent regarded her as having a disability.

    Unlawful Discrimination

    
    

81. In general, unlawful employment practice claims can be established through the introduction of direct evidence of discrimination or through circumstantial evidence that creates an inference of discrimination. See, e.g., Bass v. Bd. of Cnty. Comm'rs, 256 F.3d 1095, 1103 (11th Cir. 2001). This distinction between direct and circumstantial evidence can dramatically affect the allocation of evidentiary burdens among the parties. If there is direct evidence of the employer's discriminatory intent in making the employment decision at issue and the trier of fact accepts this evidence, then the ultimate issue of discrimination is proved. The employer cannot refute this evidence by mere articulation of other reasons; instead, the employer must prove by a preponderance of the evidence that the

    
    

    same employment decision would have been reached regardless of the discriminatory motive. Bell v. Birmingham Linen Serv., 715 F.2d 1552, 1557 (11th Cir. 1983).

82. Direct evidence means actions or statements of an employer reflecting a discriminatory attitude correlating to the discrimination complained of by the employee. Carter v. Three

    Springs Residential Treatment, 132 F.3d 635, 641 (11th Cir. 1998). Under this standard, "[i]f an alleged statement at best merely suggests a discriminatory motive, then it is by definition only circumstantial evidence." Schoenfeld v.

    Babbitt, 168 F.3d 1257, 1266 (11th Cir. 1999). In addition, remarks by non-decisionmakers or remarks unrelated to the decisionmaking process itself, are not direct evidence of discrimination. A.B.E.L. Servs., 161 F.3d at 1330.

83. Mr. Currie's statements found to have been made in the Findings of Fact above--that he would never have hired

    Ms. Turner if he knew she had diabetes; that it was not going to work out, with her diabetes; and that he will never hire someone with diabetes again--constitute direct evidence of a discriminatory attitude correlating to the discrimination complained of by Ms. Turner. Virtually identical statements by employers, or by managers/decisionmakers for employers, have been held to be direct evidence of the employer's discriminatory intent. See, e.g., Crawford v. Dolgen Corp., Inc., 2011 U.S.

    
    

    Dist. LEXIS 48407, *17-*18 (S.D. Ala. 2011) (manager's statement to pregnant employee that the manager "didn't think it was going to work that [plaintiff] was pregnant" was direct evidence of discriminatory intent motivating termination); E.E.O.C. v. Alton Packaging Corp., 901 F.2d 920, 923 (11th Cir. 1990) (holding that a statement by the general manager that "if it was his company, he wouldn't hire any black people" and a statement by the production manager that "you people can't do a "!#?*@" thing right" constituted direct evidence).

84. Respondent did not meet its burden of proving by a preponderance of the evidence that the same decision to terminate Petitioner would have been made regardless of the discriminatory motive. Instead, for the two weeks before

    Mr. Currie learned of Petitioner's disability, he was pleased with her work. His claim that her work went downhill abruptly as of the two-week point was not proven, and the claimed mistakes he attempted to blame on Petitioner were disingenuous and contrived. Even if this were a circumstantial evidence case, which would utilize the shifting burden analysis established by the United States Supreme Court in McDonnell

    Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981), Petitioner would have met the burden of proving that the non-discriminatory reason articulated by Respondent was merely pretextual.

    
    

85. Thus Petitioner has met her ultimate burden of proving that Respondent violated section 70-53, by terminating her employment because of her disability, thereby, committing an unlawful discriminatory employment practice.

86. Under section 70-78, the undersigned has the authority to award actual damages and reasonable costs and attorney's fees incurred by a party which were caused by a violation of section 70-53. Based on the evidence presented at hearing and the Findings of Fact above, Ms. Turner's actual damages are

    $26,456.00, and she is entitled to an award of reasonable costs and attorney's fees.

    RESPONSES TO EXCEPTIONS

    
    

87. Respondent's Exceptions to Recommended Order (Exceptions) contain four numbered parts, each of which are addressed below.

    Exception 1

    
    

88. Exception 1 does not actually take exception to any aspect of the Recommended Order. Instead, it simply sets forth the applicable "standard of review" to be applied by an agency reviewing a recommended order in accordance with the Florida Administrative Procedure Act.

    Exception 2

    
    

89. Exception 2 takes exception to the conclusion in paragraph 74 that Petitioner suffered from an actual disability,

    
    

    in that her physical impairment substantially limits the major life activities of eating and hydration. The premise of Exception 2 is that under federal cases construing the pre-2009 ADA, a person whose impairment is "corrected" by medication or other measures does not have an impairment that substantially limits a major life activity.

90. This legal proposition is true, but not germane to the facts found in this case. The subject of this exception is addressed in Findings of Fact (hereinafter referred to as Finding(s)), paragraph 8 through 10 and Conclusions of Law (hereinafter referred to as Conclusion(s)), paragraphs 74 through 76 above. As shown by a review of the facts actually found, the exception erroneously characterizes the Findings. There was no finding that Petitioner's impairment has been "corrected" by medication or other steps, nor was the analysis leading to the challenged conclusion based on Petitioner's state without taking any medication or other steps.

91. Thus, Respondent's exception is really an indirect attack on the Findings on this subject, without any assertion that the Findings are not supported by competent substantial evidence. Indeed, Respondent is unable to take exception to the Findings, because Respondent has not filed a transcript of the hearing so as to be in a position to address in its exceptions the evidence in the entire record. Cf. Fla. Dep't of Corr. v.

    
    

    Bradley, 510 So. 2d 1122, 1123-1124 (Fla. 1st DCA 1987)

    
    

    (exceptions to Findings as not supported by competent substantial evidence require consideration of the entire evidentiary record, including the transcript; failure to have a transcript prepared to support exceptions precludes later appeal based on a challenge to Findings, even though the transcript is later prepared for the appellate court).

92. Instead of directly taking exception to the Findings, Respondent's exception presents a selective view of parts of the Findings, thereby, distorting the actual findings made when considered in their entirety. For example, Respondent quotes part of a Finding as if it were the entire Finding: "Ms. Turner has been able to deal with her condition." That quote is actually a phrase preceded by five lines of text that begin with the phrase "So long as" and go on to recite the numerous restrictions and limitations that condition the final quoted phrase. See ¶ 10, supra. The actual Finding was that

    Ms. Turner faces substantial limitations in her eating, hydration, and other activities, with serious challenges and problems caused by the combined impact and interrelationship of the discrete variables affecting her condition. See Id.,

    and ¶ 74, supra. As the Findings and Conclusions make clear, the fact that Petitioner is "able to deal with her condition" so long as she adheres to substantial limitations and restrictions,

    
    

    constant monitoring, and trial-and-error adjustments as new variables announce themselves, is a far cry from Petitioner's impairment being "corrected."

93. Respondent's exception is also predicated on an improper attempt to inject new evidence long after the evidentiary record has closed. Respondent's exception offers a definition of Petitioner's impairment, attributed to an internet website, which was not properly offered into evidence at the final hearing. Respondent had its chance to present evidence in response to Petitioner's unrebutted testimony about the substantial limitations and restrictions resulting from her impairment.

94. Respondent's exception is further improperly predicated on unsupported factual claims as if they were Findings, when they are contrary to the Findings. For example, Respondent asserts, "So long as Petitioner avoids heavy intake of sodium, she is fine." There was no such Finding, and the actual Findings were contrary to that statement.

95. The federal ADA cases considering whether different forms of diabetes constitute disabilities within the meaning of the pre-2009 ADA make clear that the inquiry must be individualized, on a case-by-case basis, predicated on the factual proof adduced in a hearing. This point is made clear by the authority relied on by Respondent. See Sutton v. United Air

    
    

    Lines, 527 U.S. 471, 483 (1999)(whether a person has a disability is an individualized inquiry, not necessarily based on the name or diagnosis of the impairment, but rather, on the effect the impairment has on the life of the individual). Such an individualized analysis was made in this case, and the Findings actually made and not properly challenged by Respondent fully support the conclusion that Petitioner has an actual disability within the meaning of the Pinellas County Code.

96. Based on the Findings actually made, and the Conclusions flowing from those Findings, Respondent's exception 2 is rejected.

    Exception 3

    
    

97. Respondent's exception 3 challenges the Conclusions in paragraph 78 that Respondent regarded Petitioner as disabled. The exception argues that the Conclusion in paragraph 78 is based solely on the Findings in paragraph 34, but "is completely divorced from and inconsistent with Paragraph 34."

98. This exception, as with exception 2, is cast as only a challenge to the legal Conclusion, and not as an attack on the facts found. However, as in exception 2, Respondent's

    exception 3 is another indirect attack on the facts actually found, without any assertion that those facts are not supported by competent substantial evidence.

    
    

99. Contrary to Respondent's claim that the "regarded as" determination is based solely on the Findings in paragraph 34 and Conclusions in paragraph 78, the issue of whether Respondent regarded Petitioner as disabled was directly addressed by Findings, paragraphs 34 through 38 and Conclusions, paragraphs

    77 through 80. Respondent's exception is therefore improperly based on selective citation to only part of the factual predicate for the challenged legal conclusion.

100. According to this exception, the Conclusion that Respondent regarded Petitioner as disabled was based solely on a Finding that "Respondent found Petitioner merely incapable of working in one job." Even paragraph 34 alone does not say that; paragraph 34 found that Respondent had decided Petitioner "was incapable of working in the one type of job where she thought she would be able to function with the accommodations she herself supplied."

101. The reference to "type of job" in paragraph 34 was broader than just the particular job Petitioner had at Sur-Tek; it was a reference to a job in a setting that would allow

     Ms. Turner to adhere to the restrictions required because of her impairment, as previously cataloged. These restrictions were that her work had to be in an indoor office setting where she could regulate the temperature (which she managed at Sur-Tek by bringing her own space heater), where she could have immediate

     
     

     access to water that she provided herself, and where she could have immediate access to a restroom. See ¶ 10, supra.

102. Respondent indirectly challenges the Findings, without properly setting forth a basis for the challenge by stating that "Respondent did not believe Petitioner could not work for someone else as a bookkeeper." There was no such Finding. Instead, the Findings were that Respondent believed that Petitioner was not capable of working because of her diabetes. Respondent asserts that such a Finding is implicit, because Respondent asked Petitioner to train her replacement. However, the fact that Respondent was willing to use Petitioner as a stop-gap measure in the short-term to suit his convenience does not contradict his clear belief, as found and not challenged, that Petitioner was incapable of working because of her diabetes. The only fair implication from the Findings made would be that Respondent's belief regarding Petitioner's inability to work was irrespective of whom the employer might be. Respondent cannot change or embellish on the facts found without directly and properly taking exception to the Findings. Respondent failed to do so.

103. Most significantly, Respondent did not take exception to the key finding that Mr. Currie made sweeping statements revealing his archaic, stereotypic misconceptions about all persons with any kind of diabetes. As found above, and not

     
     

     challenged by Respondent, not only did Mr. Currie tell Petitioner that he never would have hired her if he had known she had diabetes, but after Mr. Currie fired Petitioner, he openly stated that he would never hire someone with diabetes again. See ¶¶ 23 & 38.

104. Thus, contrary to Respondent's characterization, the Findings and Conclusions that Respondent regarded Petitioner as disabled went far beyond a simple Finding that Respondent perceived Petitioner as unable to work in one particular job. Instead, the Findings, ignored by Respondent, support the broader Conclusions that Mr. Currie's subjective state of mind was to regard not only this Petitioner, but all diabetics including this Petitioner, as incapable of working in a broad range of jobs. That is why he adopted his blanket rule that "that he would never hire another person with diabetes." ¶ 38, supra.

105. Mr. Currie's sweeping statement established his subjective state of mind that all diabetics, including Petitioner, are incapable of working in a broad range of jobs. That is the classic sort of generalization and archaic stereotype that the "regarded as" provision was intended to combat. See Rodriguez v. Conagra Grocery Prod. Co., 436 F.3d 468, 477 (5th Cir. 2006), discussed in ¶ 78, supra.

     
     

106. In addition, Respondent's exception 3 does not take issue with the Conclusions in paragraph 77. Paragraph 77 provides that the direct evidence of Respondent's discriminatory intent and of the pretextual nature of Respondent's claimed reason for firing Petitioner serves as further evidentiary support for concluding that Respondent regarded Petitioner as disabled.

107. Thus, Respondent's exception 3 fails because it is reliant on the misstatement that "there is no evidence that Respondent believed [Petitioner] could not work in a broad range of jobs." To the contrary, the Findings, paragraphs 34

     through 38, along with the additional Findings of Respondent's discriminatory intent and pretextual reason for firing Petitioner, provide ample factual support for Conclusions, paragraphs 77 through 80.

108. For all of these reasons, Respondent's exception 3 is rejected.

     Exception 4

     
     

109. Respondent's exception 4 has two parts, A and B.

     
     

110. Exception 4A asserts that "[t]o the extent Respondent terminated Petitioner because she was sickly and needed to leave early, it was not unlawful." But this new way of articulating a reason for terminating Petitioner was never actually claimed by Respondent to be the reason for terminating Petitioner, and,

     
     

     thus, as a threshold point, is wholly unsupported by any evidence or Finding as the reason claimed by Respondent for terminating Petitioner.

111. Even if Respondent had claimed that he terminated Respondent because she left early that one day, the facts found, and not challenged by Respondent, were that Respondent believed Petitioner's diabetes was always making her sick and that it was her diabetes that made her sick and made her leave early.

112. In an effort to disassociate this claimed reason for terminating Petitioner from her disability, Respondent notes that Petitioner said that her illness on Friday, February 19, 2010, was unrelated to her diabetes. However, paragraph 24 found that Mr. Currie perceived that Petitioner's sickness was caused by her diabetes. As found in paragraph 24 and not directly or properly challenged by Respondent, when Petitioner asked to leave early on February 19, 2010, "Mr. Currie got very angry and said that her diabetes was always making her sick." And again the following Monday, when Mr. Currie told Petitioner she was fired, the first words out of his mouth were "that it was not working out with her diabetes." See ¶ 29.

113. Thus, the direct (and unchallenged) evidence of Respondent's discriminatory intent makes it irrelevant whether Petitioner's illness that caused her to request to leave two hours early was actually related to her diabetes or not; what is

     
     

     relevant is that Respondent plainly believed that Petitioner's diabetes was the problem and that her diabetes was "always" making her sick. Respondent's exception 4A is rejected.

114. Respondent's final exception in 4B asserts that "[t]o the extent that Respondent fired Petitioner for needing to miss work for health reasons (regardless of specific condition), Petitioner's diabetes was not a but-for cause. Rather, the bronchitis was the but-for cause." This exception fails for the same reason as 4A and for the additional reason that, as found in paragraph 23, "Mr. Currie told Ms. Turner that he never would have hired her if he had known she had diabetes." Respondent did not directly or properly take exception to this Finding. In addition, Respondent did not directly or properly take exception to the Finding in paragraph 29 that when Mr. Currie fired

     Ms. Turner, the first words he said was that it was not working out with her diabetes.

115. These unchallenged Findings plainly support the Conclusion that Mr. Currie fired Ms. Turner because she had diabetes. Mr. Currie's subjective state of mind was that diabetes was the problem and the reason why Ms. Turner had to be fired. That conclusion is buttressed by the lengths to which Respondent went, as detailed in unchallenged Findings, to develop an after-the-fact pretextual reason for terminating

Ms. Turner. Once again, it must be noted that the pretext

offered as the legitimate reason for terminating Ms. Turner was not that she left two hours early with bronchitis, as suggested by exception 4B (and 4A). Instead, the reason articulated for terminating Ms. Turner--alleged poor performance--was found to be contrived and unpersuasive. Exception 4B is rejected.

ORDER

Based on the foregoing Findings of Fact and Conclusions of Law, it is

ORDERED that:

1. Respondent violated section 70-53, Pinellas County Code;

   
   

2. Respondent shall pay Ms. Turner the sum of $26,456.00 for actual damages (lost wages reduced by earnings from the date of termination through the final hearing), which shall accumulate interest from the date hereof until fully satisfied at the statutory rate of six percent per annum; and

3. Respondent shall pay Ms. Turner reasonable attorney's fees and costs in prosecuting this action. Jurisdiction is retained to determine the amount of reasonable attorney's fees and costs. The parties are hereby directed to confer within

20 days of the date of this Final Order concerning the amount of attorney's fees and costs. Within five days after the parties confer, the parties shall file a joint status report that informs the undersigned as to whether or not they are able to stipulate to an amount of attorney's fees and costs. If the parties are

able to stipulate an amount of the attorneys' fees and costs, then the stipulation shall be sent to the undersigned for review and approval. If the parties are unable to reach a stipulation as to attorney's fees and costs, then a hearing shall be set to determine the reasonable amount of attorney's fees and costs.

DONE AND ORDERED this 21st day of October, 2011, in Tallahassee, Leon County, Florida.

S

ELIZABETH W. MCARTHUR

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 21st day of October, 2011.

ENDNOTES

1/ Mr. Currie denied that he ever told Ms. Turner he would not have hired her if he knew that she had diabetes. However,

Mr. Currie's testimony was not credible. Respondent attempted to challenge the credibility of Ms. Turner's testimony, arguing that there were discrepancies in her testimony on this point having to do with what exactly Mr. Currie said regarding

Ms. Turner's diabetes and when exactly he said it. The undersigned finds Respondent's arguments of inconsistencies unpersuasive. To the extent there are minute differences in Petitioner's testimony, they are largely based on differences in the exact questions and/or the exact answers. For example, Respondent argued that Petitioner's testimony should be discounted because she made a "false statement," under oath in

the Charge of Discrimination document filed with Pinellas OHR, that Mr. Currie "expressed strong disapproval upon learning of Petitioner's diabetic condition." Instead, Ms. Turner stated in the charging document that after (not upon) learning of Petitioner's medical condition, Mr. Currie told her he would not have hired her if he had known she had diabetes. None of the claimed inconsistencies detract from the material points of Petitioner's testimony, which were consistent and credible.

2/ No evidence was presented that Sure-Tek was bankrupt or in jeopardy of becoming bankrupt when Ms. Turner was fired. There was evidence suggesting cash flow problems, before, during, and after Ms. Turner's tenure at Sure-Tek.

3/ Coincidentally, Ms. Rodriguez also has diabetes, although her diabetes is the more generally known insulin-dependent diabetes. Ms. Rodriguez was suspicious that she was terminated at least partly because of her diabetes, because she did not believe her performance was inadequate, and also because the day before she was fired, she admitted to Brandon Bean that she had diabetes.

Mr. Bean helped Ms. Rodriguez by driving her to pick up a mattress and taking it back to her apartment. Ms. Rodriguez testified that when they got back to her apartment, she had to give herself an insulin shot, using a pen device and that

Mr. Bean saw her do this, so they discussed the fact that she had diabetes. Ms. Rodriguez surmised that Mr. Bean told

Mr. Currie about this, and the next day, Ms. Rodriguez was fired. Mr. Bean acknowledged that he helped Ms. Rodriguez with the mattress, but denied that she told him about her diabetes. He said he did not see her give herself a shot with a needle (though he said nothing about an insulin pen, which is what she used), and he said he would have recognized insulin if there had been some in a bottle in the refrigerator (but he did not say anything about whether he saw insulin pens in the refrigerator, which is what Ms. Rodriguez said that she used). It is unnecessary to resolve this disputed area of testimony, however, in order to decide the issues in this case.

4/ Ms. Rodriguez explained that she told Mr. Currie that she did not have diabetes, even though she was diabetic, because she believed that he had no right to ask that question in an interview, and she needed the job. Obviously, the better practice would have been for her to respond that she was not going to answer the question, because it was an improper question. Nonetheless, it is understandable why she would have rationalized responding "no" to the question. Given

Mr. Currie's comments about diabetes, Ms. Rodriguez must have

thought that her chances of being hired would have vanished if she had told Mr. Currie that she was diabetic. Ms. Rodriguez' testimony at the final hearing was credible and is not considered undermined by the fact that she did not truthfully answer Mr. Currie's question in the interview.

5/ Respondent argued, in opening argument and in its post- hearing submittal, that Ms. Rodriguez' testimony should be rejected based on "serious credibility problems." Respondent attempted to color Ms. Rodriguez as vindictive and out to get Respondent because she was fired, and because she was good friends with Ms. Turner, even living with her for a short period of time after Ms. Rodriguez was fired and couldn't afford her own apartment until she got another job. Respondent's challenge to Ms. Rodriguez' credibility was unavailing, as Ms. Rodriguez' testimony was found to be credible and her motives were not shown to be suspect or to taint the believability of her testimony. Indeed, Ms. Rodriguez provided the same information to the Pinellas County OHR in its investigation of Ms. Turner's charge before Ms. Rodriguez was fired.

6/ Unless otherwise indicated, all references to the Florida Statutes are to the 2011 version, which was the procedural law in effect at the time of the hearing.

COPIES FURNISHED:

William C. Falkner, Esquire Pinellas County Attorney's Office

315 Court Street, Sixth Floor Clearwater, Florida 33756

Leon W. Russell, Human Rights Director/ EEO Officer

Pinellas County Office of Human Rights

400 South Fort Harrison Avenue, 5th Floor Clearwater, Florida 33756

Peter J. Genova, Jr., EEO Coordinator Pinellas County Office of Human Rights

400 South Fort Harrison Avenue, 5th Floor Clearwater, Florida 33756

Craig L. Berman, Esquire Berman Law Firm, P.A.

111 2nd Avenue, Northeast, Suite 706 St. Petersburg, Florida 33701

Phyllis J. Towzey, Esquire

Law Office of Phyllis J. Towzey, P.A. The Kress Building, Suite 401

475 Central Avenue

St. Petersburg, Florida 33701

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled to seek judicial review by filing a petition for writ of certiorari in the circuit court of the Sixth Judicial Circuit in and for Pinellas County, Florida, within 30 calendar days of the date of this Final Order. § 70-77(14), Pinellas County Code.

Docket for Case No: 11-000393

Orders for Case No: 11-000393