The Issue The sole issue for determination is whether the Florida Commission on Human Relations (Commission) has jurisdiction under Chapter 760, Florida Statutes (2003), to determine if there is reason to believe that Respondent discriminated against Petitioner on the basis of her sex or disability.
Findings Of Fact It is undisputed that Petitioner is a preoperative transsexual woman. Respondent employed Petitioner as an "RV technician" from sometime in August 1999, until January 7, 2002, when Respondent terminated Petitioner's employment. On October 25, 2003, Petitioner filed a Charge of Discrimination with the Commission. In relevant part, the Charge of Discrimination alleges that Respondent discriminated against Petitioner on the basis of her sex and disability. On February 11, 2004, the Commission issued its Determination: No Jurisdiction (determination). The determination raises issues of law and fact. The Commission determined, as a matter of law, that Petitioner's transsexualism is not a disability covered by the Americans with Disabilities Act (ADA). The Commission also determined, as a matter of law, that the prohibition in Chapter 760, Florida Statutes (2001), against discrimination on the basis of sex does not prohibit discrimination on the basis of sexual identity or transsexuality. The foregoing conclusions of law involve matters over which the Commission has substantive jurisdiction within the meaning of Subsection 120.57(1)(l), Florida Statutes (2003). The Commission further determined the Charge of Discrimination was legally insufficient to allege facts showing that Petitioner's transsexuality impaired her major life activities or that Respondent regarded Petitioner as disabled. A determination of the legal sufficiency of allegations is not a matter over which the agency has substantive jurisdiction. The Charge of Discrimination does not allege that Petitioner's transsexuality impaired her major life activities. The Charge of Discrimination merely alleges that Petitioner has a medical condition identified as Gender Identity Disorder (GID) and receives medical treatment for her condition. The Charge of Discrimination is sufficient to allege that Respondent regarded Petitioner as disabled. In relevant part, the Charge of Discrimination alleges Petitioner informed Respondent that Petitioner had a medical condition that required medical treatment. Petitioner allegedly "took vacation at Christmas time" and returned to work in her new gender on December 29, 2001. On January 7, 2002, Respondent allegedly terminated Petitioner's employment because Petitioner was a distraction to other employees and to some customers and because "it was not good for the company." The Commission may have based its determination, in part, on findings of fact. The Commission apparently found Petitioner failed to show that Respondent regarded Petitioner as disabled or that Petitioner suffered symptoms of a disability separate and apart from transsexuality; such as depression, suicide ideation, situational alcohol abuse, or other symptoms of poor health (a separate disability). In relevant part, the Commission's determination stated: The Commission conducted an investigation of this matter, which has been reviewed and approved by the Commission's office of General Counsel. The Commission's investigation appeared to be a factual investigation. The determination differentiates the Commission's investigation from matters of law. In relevant part, the determination states: The Office of General Counsel has reviewed the case file, investigative materials, and applicable case law. . . . * * * . . . the file contains no evidence which substantiates the disability discrimination claim. As a result, Complainant has failed to establish a prima facie case of discrimination based on disability. . . . (emphasis supplied) The ALJ conducted the administrative hearing, in part, to provide an opportunity for Petitioner to submit evidence to support her claim that Respondent regarded her as disabled. The administrative hearing also provided an opportunity for Petitioner to submit evidence showing that Petitioner suffered from a separate disability. Petitioner submitted no evidence to show that Respondent regarded her as disabled or that Petitioner suffers from a separate disability. The trier of fact makes no findings on either factual issue.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order determining that the Commission lacks jurisdiction to determine if it has cause to believe that Respondent discriminated against Petitioner on the basis of her sex or a disability. DONE AND ENTERED this 22nd day of June, 2004, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Karen M. Doering, Esquire National Center for Lesbian Rights 3708 West Swann Avenue Tampa, Florida 33609-4522 Richard McCrea, Esquire Luisette Gierbolini, Esquire Zinober & McCrea, P.A. Post Office Box 1378 201 East Kennedy Boulevard, Suite 800 Tampa, Florida 33601-1378 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent discriminated against Petitioner on the basis of physical handicap.
Findings Of Fact Brettell was hired by Morse in January 1998 as a licensed practical nurse. Sometime after she began working for Morse, she sustained a work-related injury. No evidence was presented to establish exactly what the injury was. Brettell claims that she was discriminated against based on a handicap, but very little evidence was presented concerning any handicap that she may have. She presented two Notices of Action/Change forms issued by the Florida Department of Labor and Employment Security, Division of Workers' Compensation, related to Brettell and issued on February 18 and April 4, 1999. The Notice of Action/Change issued on February 18, 1999, stated: Employee was placed at maximum medical improvement with a 6% permanent impairment rate effective 01/16/99. Impairment income benefits of $192.80 per week for 18 weeks, effective 01/016/99. The April 4, 1999, Notice of Action/Change, stated, "Stopping impairment income benefits. Claimant was put on temporary partial disability as of 3/15/99." Neither Notice of Action/Change indicated the nature of the impairment. At the final hearing in response to Morse's Motion to Dismiss, Brettell made the following statement: [I]t does limit me on a daily basis. I have been complaining since Day 1 almost that I am losing feeling in my hands and my arms and my fingers. I'm having problems with my knee, making it difficult for me to walk. I have cervical spine problems. Brettell did not establish that she had a disability or a handicap. On April 23, 1999, Brettell was to work as a Medication Treatment Nurse. The job duties of a Medication Treatment Nurse include pushing a medication cart and dispensing medications to the residents. When Brettell learned that she was to push the medications cart and give medications on April 23, 1999, she spoke to Leonie Whorms (Whorms), who supervised Brettell at various times, and told Whorms that it was her understanding that she had been placed on light duty and was not supposed to push the medications cart. Whorms told Brettell that she had a doctor's statement dated February 19, 1999, from Dr. Russo, one of Brettell's treating physicians, stating that Brettell could push the medications cart and pass out medications. Brettell asked for a copy of the doctor's statement, which Ms. Whorms provided. Brettell agreed the statement indicated that she could push the medication cart and dispense medications. Brettell told Whorms that she had discharged Dr. Russo within the last month and that she had a new physician, Dr. Linder. Whorms informed Brettell that she would need a notification from Dr. Linder regarding any limitations that Brettell may have. Brettell contacted Dr. Linder's office and had a report sent by facsimile transmission to Morse. Based on Whorms' understanding of the report from Dr. Linder, Brettell was not supposed to push the medication cart. After Dr. Linder's report was sent to Morse on April 23, 1999, Brettell was not required to push the medications cart. No evidence was presented to establish that between the time that Morse received the report from Dr. Russo and April 23, 1999, when the report from Dr. Linder was sent to Morse, that anyone at Morse knew Brettell had changed doctors and a new report had been issued. Brettell stated that Whorms was the only person who harrassed her on April 23, 1999. Whorms was not aware that a new doctor's report had been issued until she received Dr. Linder's report on April 23, 1999. Brettell testified that Whorms told her on April 23, 1999, that if Brettell wanted to do nothing that Morse could find her a job doing nothing. Whorms denies making the statement. Having judged the credibility of the witnesses, I find that Whorms did not make the alleged statement. Brettell claims that in November 1998, Whorms told her that if she was in so much pain that she should go on disability or retirement. Whorms claims that she told Brettell that if Brettell was in so much pain that Brettell should go to the nursing office and then clock off and go home. Having judged the credibility of the witnesses, I find that Whorms did not tell Brettell that she should go on disability or retirement. On May 5, 1999, Penny Martin (Martin), a Nursing Unit Coordinator at Morse, asked Brettell to participate in wound rounds, and Brettell agreed to do so. Wound rounds involve a medical team assessing wounds and determining treatment. The wound team, scheduled to arrive at 9:30 a.m., was late. Because the wound team was late, Brettell elected to take her break. Brettell left for her break at 9:40 a.m. While Brettell was on break, the wound team arrived to do rounds. Approximately five to ten minutes after 10:00 a.m., Brettell's supervisor, Terri Nichols (Nichols) asked where Brettell was since she was supposed to be on wound rounds. Martin told Nichols that Brettell had left for break at 9:40 a.m. and had not returned. Nichols had Brettell paged but got no response. Nichols went to look for Brettell and found her in the rose garden, where the page could not be heard. Nichols told Brettell that she was needed for wound rounds and that she was late coming back from her break. Brettell responded that she did not leave for break until 9:50 a.m. Nichols told Brettell that she was still late whether she left at 9:40 or 9:50 a.m. because she had exceeded her alloted 15-minute break. Brettell returned from her break at 10:17 a.m., taking a 37-minute break. After lunch on May 5, 1999, Nichols asked Brettell to come to Nichols' office to discuss the lengthy morning break. Brettell told Nichols that she would not go into Nichols' office alone to which Nichols replied that Whorms would also be in the office. Brettell sought to have a subordinate employee come into the office with her, and Nichols told Brettell that a subordinate employee could not accompany Brettell into the office for the conference. Brettell still would not enter the office and called a security guard. The security guard arrived. Nichols contacted Suzanne Richardson (Richardson), Vice President of Nursing Services at Morse, and Vicky Porter (Porter), Vice President of Human Resources at Morse. Richardson and Porter were in a meeting together when Richardson received the call. Nichols advised Richardson that she was having difficulty in having a conference with Brettell, because Brettell was refusing to come into her office. Nichols was advised to go to the Human Resources Department. Brettell, Nichols, and the security officer went to the Human Resources Department, where Porter asked Brettell to come into Porter's office to discuss why Brettell did not want to go into Nichols' office for a conference. Brettell refused to go into Porter's office unless the security guard accompanied her. Richardson and Porter told Brettell that the conference was not a security issue and the security officer would not be allowed in the conference. Porter explained that the Human Resources Department was supposed to be neutral ground where employees could voice their concerns and that the security officer needed to return to his assigned duties. Porter again asked Brettell to come into her office, but Brettell refused, stating that she would not go into an office in the Human Resources Department without a security guard. Having a security guard present was not an available option. Brettell asked for a few minutes to think about whether she was going to go into the office. Everyone agreed to give Brettell a few minutes to think about the situation. Brettell left the Human Resources Department and went to a nursing unit in the Edwards Building to call her attorney. Her attorney was on the telephone with another client, so Brettell had to hold the line and wait for her lawyer to become available to speak with her. Approximately 30 minutes passed, and Brettell had not returned to the Human Resources Department or notified either Richardson or Porter of her decision. Nichols went to look for Brettell and found her in the Edwards Building using the company telephone to call her attorney. Nichols told Brettell to come back to the Human Resources Department, but Nichols refused, stating that she was on the telephone holding for her lawyer. Nichols called Richardson and told her that Brettell was refusing to hang up the telephone and come back to the Human Resources Department. Richardson and Porter came to the Edwards Building. Richardson asked Brettell if she was on a break and whether the call was for company business or personal. Brettell responded that she was not on break and that the call to her attorney was personal. Richardson told Brettell to get off the telephone, because Brettell was not authorized to use the telephone at the nursing unit for personal calls when she was not on a break. Brettell did not hang up the telephone. Richardson went to Porter and told her that Brettell was still on the telephone. Porter went to Brettell and told her that is was inappropriate for her to be using the telephone and that she was to clock out and go home. Richardson recommended that Brettell be terminated for violation of the company's policies. Brettell was terminated for insubordination and using the company telephone for personal business when not on a break, and not because of any handicap or disability.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing Joyce Brittell's charge of discrimination. DONE AND ENTERED this 7th day of December, 2000, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 2000. COPIES FURNISHED: Joyce Brettell 3743-4 Silver Lace Lane Boynton Beach, Florida 33436 Lynn G. Hawkins, Esquire Fitzgerald, Hawkins, Mayans & Cook, P.A. 515 North Flagler Drive, Suite 900 West Palm Beach, Florida 33401 Dana A. Baird, General Counsel Commission on Human Relations 325 John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry, Agency Clerk Commission on Human Relations 325 John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether or not Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Petition for Relief filed by Petitioner and received by the Florida Commission on Human Relations on November 20, 2001.
Findings Of Fact Based on the testimony of Petitioner and the evidence he presented, the following findings of fact are made: Petitioner was employed by Respondent in approximately 1990. Then or shortly thereafter he became a houseman at the Respondent's Grand Floridian Resort Hotel. His assigned duties included some strenuous lifting and other strenuous physical activity. In 1995, Petitioner seriously injured his lower back and one hand in an off-the-job incident involving his jumping from the second story of his apartment to avoid a fire in the apartment. As a result, Respondent gave him a leave of absence for about five months from his employment. After returning to work, in early 1996 Petitioner incurred what he contended was a work-related injury to his lower back. A medical record introduced by Petitioner, casts doubt on the extent to which that injury contributed to the condition from which he thereafter suffered and which interfered with and ultimately ended his ability to work. Petitioner had major back surgery in 1996. He consequently received and took additional leave from work. Petitioner testified on several occasions that at no time after the 1995 injury was he able to perform the strenuous aspects of the assigned duties of his position, houseman. Based on Petitioner's testimony, this finding of fact is confirmed, i.e., Petitioner is unable to perform the assigned duties of a houseman. Petitioner was placed on light duty for a period of time. Petitioner was sent to a department of Respondent called "Re-Casting" in an effort to place him in duties he could perform. As a result of his initial contact with Re-Casting, he was transferred from the Grand Floridian Resort Hotel to the Contemporary Resort Hotel, but he was unable to perform his assigned duties and accordingly was transferred back to the Grand Floridian Resort Hotel. The transfer and return took place in March and April 1997. Petitioner subsequently returned to Re-Casting, and took a test to determine his qualifications for an open position as a cashier. Petitioner failed the test. Petitioner last worked for Respondent in May 1997. Petitioner has not held any employment since then, and he testified that he has not applied for employment since then. He admits that the reason for not having held any employment and not applying for it is his physical inability to work. Petitioner testified unequivocally that he has, since May 1997, been unable to do any kind of work. Based on Petitioner's testimony, this finding of fact is confirmed, i.e., that since May 1997, Petitioner has been unable to do any kind of work. Petitioner has applied for disability benefits with the Social Security Administration. His disability claim indicates a continuing disability on his part.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations find that Petitioner, Thelemaque Coleus, has failed to present a prima facie case of employment discrimination under the FCRA, and that, accordingly, the case is dismissed with prejudice. DONE AND ENTERED this 27th day of February, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 2002. COPIES FURNISHED: Thelemaque Coleus Post Office Box 550776 Orlando, Florida 32855 Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Charles Robinson Fawsett, Esquire Shutts & Bowen, LLP 300 South Orange Avenue, Suite 1000 Post Office Box 4956 Orlando, Florida 32802-4956 Christie Sutherland Walt Disney World Post Office Box 10000 Lake Buena Vista, Florida 32830 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact Petitioner, Dr. Juan C. Costa, is a physician who is currently retired because of a physical disability involving emphysema and arthritis. Before retiring, he- worked for a period of time as a physician at the Department of Corrections' Marion Correctional Institution near Ocala, Florida. His last day of actual work was December 15, 1984, but he remained on the payroll after that time because of vacation and sick leave time accrued. His actual termfnation date was some time in January, 1985. Dr. Costa is disabled. His disability is classified as a regular disability - not "in line of duty." Feeling that the provisions of the disability and survivor benefit program of the Florida Retirement System applied to him, on March 5, 1985, he applied to the State of Florida for disability retirement. Submitted with his application were statements from his employer and two physician reports indicating that he was, in fact, disabled. His application and the supporting documents submitted therewith were prepared in accordance with the terms of a letter Dr. Costa received from the State of Florida, Division of Retirement, which told him what must be submitted. In addition to the above, he also submitted a copy of a form submitted to the Social Security Administration for completion by that agency and return to the Division of Retirement which was a "Report of Confidential Social Security Benefit Information." This form, when filled out, was submitted to the Division of Retirement as support for Petitioner's application for retirement benefits. In addition to the above, Dr. Costa also submitted a letter which he received from Teresa Bender, Medical Examiner for Respondent's Disability Determination Section which indicates that it is unable to process his application because of an insufficiency of information regarding his social security credits. Dr. Costa was born on May 12, 1912. When he terminated his service with the Department of Corrections, he was 72 years old. He had been receiving Social Security Retirement benefits since age 70. However, he never applied for nor received Social Security Disability Benefits and would not have been awarded them had he applied for them after attaining age 65. Once an individual has reached age 65, he is no longer eligible for disability retirement benefits under the Social Security program. He may continue to earn money without limit at age 70, regardless of whether he is disabled or not. The issue of disability goes not to the issue of earnings but to the issue of the ability to work. If an individual under the age of 65, who is retired on disability benefits, goes back to work, those disability benefits may be lost. However, an individual who is disabled, but is age 70 or beyond, would not lose benefits because benefits after age 65 are based not on disability but on retirement and at age 70, the limitation on amount earned is removed. His Social Security Retirement Benefits checks began arriving in January, 1983. Because of his age, he continued to work without penalty after his benefits began. By deposition, Waymen D. Sewell, the District Manager for the Social Security Administration in Tallahassee, Florida indicated that the benefits received by an individual on the basis of disability will, upon that individual's reaching the age of "retirement," age 65, be converted automatically from disability benefits to retirement benefits. There will be no reduction in the amount of benefit received. The only change will be that the money forming the source of the payment will stop coming from the Disability Trust Fund and start coming from the Retirement Trust Fund. As far as the recipient is concerned, nothing changes. There is an additional qualification for disability retirement. An individual, in order to claim and receive disability retirement under social security, in addition to being fully insured, must have 20 quarters of work credit out of the 10 year period up to the quarter in which the onset of disability was established. Here, Petitioner is retired and receiving retirement benefits from Social Security. He initially filed for retirement benefits in January of 1981 and was paid retroactively to April, 1980. At the time, he had 24 quarters of credit. Since based on his birth date, he needed 24 quarters of enrollment, he had exactly what he needed and retired at the earliest possible time. Had Dr. Costa been under 65 at the time he retired, he would have needed 20 quarters within the last 10 year period prior to retirement in order to qualify for disability. According to the records on Petitioner, he did not have 20 quarters of credit during that period. The 24 quarters he had was over a period greater than 10 years and a part of it was earned after he became age 65. The quarters he earned after age 65 did not count toward the 20 quarter retirement because once an applicant turns 65, he is paid strictly on the basis of retirement and not disability. In substance, Dr. Costa was never eligible for disability retirement under Social Security until after he became age 65 at which point he became eligible for retirement benefits which would eliminate any entitlement to disability benefits. According to David Ragsdale, who works with Division of Retirement, under the Florida Retirement System statute there are two types of disability retirement (1) "in line of duty," and (2) "regular" retirement." "In line of duty" does not require more than one day service. "Regular" retirement initially required five years service prior to July 1, 1980. However, in July, 1980, the law was amended to add an alternative 10 year total service criteria as well as an exception from these criteria for those not drawing or eligible to draw Social Security disability. It is the policy of the Division of Retirement, as to the Social Security exception, that if an individual can get a Social Security benefit, he cannot secure retirement benefits from the State under the Social Security exemption. This is interpreted by the Division of Retirement to mean either Social Security type benefit - either retirement or disability and the receipt of either one disqualifies an individual from State disability retirement eligibility under the Social Security exception. Though some people receive State disability retirement while drawing Social Security benefits, they were not qualified for their State retirement under the Social Security exception. They had either worked more than five years as of July 1, 1980 or had 10 years total service. Dr. Costa's application was received by the Division of Retirement, but no determination as to his qualification for disability retirement from a medical standpoint was made. His application was not accepted because, on the face of it, he did not meet the service requirement in that he had neither 5 years service by July 1, 1980, nor 10 years service overall. He was also disqualified because he was receiving a Social Security benefit, albeit the benefit was the retirement benefit and not the disability benefit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED that the Respondent, Department of Administration, Division of Retirement, accept and process Petitioner's application for regular disability retirement benefits. RECOMMENDED this 1st day of November,1985, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of November,1985. COPIES FURNISHED: James M. Donohoe, Jr., Esq. P. O. Box 906 Gainesville, FL 32602 Stanley M. Danek, Esq. Assistant Division Attorney Division of Retirement Cedars Executive Center 2639 N. Monroe Street Suite 207 - Building C Tallahassee, FL 32303 Gilda Lambert Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32301 ================================================================ =
The Issue The issues are: (1) Whether Petitioner's Amended Charge of Discrimination should be dismissed as time barred; and Whether Petitioner, Susan Indish-Militello (formerly known as Susan Indish and referred to herein as “Petitioner”) was discriminated against in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record of the proceeding, the following findings of fact are made: Petitioner, Susan Indish-Militello, is a resident of Marion County, Florida. Respondent, Pinellas Suncoast Transit Authority ("PSTA"), is a transit agency located in Pinellas County, Florida and is an employer under the FCRA. Petitioner was employed by Respondent, as a bus operator, beginning in 1989 until September 8, 1994. Petitioner was involved in a work-related bus accident on May 2, 1994, and as a result, she suffered neck and back injuries. Petitioner’s injuries were evaluated by Petitioner’s treating physician Dr. Jeffrey Tedder on May 4, 1994. On May 19, 1994, Dr. Tedder issued a note releasing Petitioner to return to full work duty on May 29, 1994. Petitioner did not to return to work on May 29, 1994, and utilized vacation and sick leave for approximately the next three weeks. During this time, a second medical evaluation was performed by Dr. Joseph Sena. Dr. Sena issued a report on June 9, 1994, stating that he was unable to substantiate any objective findings which would warrant Petitioner being out from work. Respondent informed Petitioner that she had been released to work by both Dr. Tedder and Dr. Sena. Petitioner returned to work in late June 1994 and worked until July 18, 1994. Petitioner exhausted her sick leave on July 19, 1994. When Petitioner then again failed to return to work, on August 12, 1994, Respondent’s General Counsel sent Petitioner a letter by certified mail advising her that all her sick leave had been exhausted and that in accordance with the Family and Medical Leave Act and PSTA’s Labor Agreement with the bus operators’ union, Petitioner was required to provide medical certification establishing a qualifying reason for leave within 15 days. The letter also required Petitioner to provide an expected date of return to work. Finally, the letter stated that failure to provide medical certification would subject Petitioner to discipline up to and including termination. The Labor Agreement between the PSTA and its employees is applicable to Petitioner. Petitioner acknowledged that she received a copy of the Labor Agreement. Article 15 of the Labor Agreement, titled "Leave Without Pay" provides in pertinent part the following: Section 8. Failure to return to work at the expiration of approved leave shall be considered absence without leave and grounds for dismissal. * * * Section 13. Leave of Absence - Illness * * * B. All leaves of absence without pay for illness shall be supported and confirmed by a medical certificate executed by a doctor. Petitioner forwarded to Respondent a note dated August 17, 1994, from Rev. Dona Knight, a minister, which claimed that Petitioner was “in extreme distress with sucidal [sic] tendencies and sevare [sic] depression.” This document, however, did not state an opinion regarding Petitioner’s ability to work nor did it provide an expected date of return. In response to the aforementioned note, Respondent’s benefits specialist informed Petitioner that the document was inadequate and that she was required to provide proper medical certification. Notwithstanding this request, Petitioner failed to provide any medical documentation indicating a qualifying reason for her unexcused absence from work or an expected date of return. As a result of Petitioner's failing to provide the required documentation, Respondent terminated Petitioner's employment on September 8, 1994, in accordance with the Labor Agreement and PSTA attendance policy. After her termination, Petitioner filed a grievance disputing the termination, and a first-step hearing was held before PSTA’s deputy of operations, Ed King. Mr. King denied Petitioner’s grievance and upheld the termination. Thereafter, Petitioner filed a second-step grievance, and a hearing was held before PSTA's executive director, Roger Sweeney, on October 17 and October 31, 1994. At the hearing, Petitioner did not provide any medical documentation or request any reasonable accommodation for any alleged handicap or disability. Therefore, Mr. Sweeny denied the second step grievance, and the termination was again upheld. Following the grievance hearings, Petitioner filed a request for arbitration in accordance with the PSTA's Labor Agreement. An arbitration hearing was held on October 11, 1996, at which Petitioner was represented by counsel. After the hearing, the arbitrator found that Respondent had just cause to terminate Petitioner based on her failure to provide medical documentation for her continued absence from work. After being terminated, Petitioner also filed a claim for unemployment compensation which was denied by a claims examiner on or about October 6, 1994. Petitioner then appealed this decision and a hearing on the appeal was held by an Appeals Referee, where Petitioner was again represented by counsel. Based on the evidence presented at the hearing, the Appeals Referee found that given the length of time Petitioner was absent from work, it was not unreasonable for Respondent to expect her to provide medical certification for her continued absence. The Appeals Referee further found that the statement from Rev. Knight was not a medical document and gave no assessment of Petitioner’s ability to resume her duties as a bus driver. The Appeals Referee concluded that Petitioner’s failure to provide the requested medical documentation was an intentional violation of her duties and obligations to Respondent and amounted to misconduct connected with work and, thus, found that Petitioner was properly disqualified from receipt of unemployment compensation benefits. Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations on or about July 11, 1995, alleging that Respondent had discriminated against her based on her handicap. The Charge of Discrimination did not give any "particulars" regarding the alleged discrimination, but indicated that the most recent discrimination took place on September 8, 1994. On or about July 20, 1999, Petitioner filed an Amended Charge of Discrimination, again alleging that Respondent had discriminated against her based on her disability. In the Amended Charge, Petitioner alleged that on September 8, 1994, she was terminated as a bus driver. She further noted that the "most recent or continuing discrimination took place" on September 8, 1994. Under the section of the charging document referred to as "Discrimination Statement," Petitioner stated the following: I have been discriminated against because of my handicap. I believe my rights have been violated under the American with Disabilities Act and the Florida Civil Rights Act of 1992 as amended. 1. I was not reasonably accommodated. By August 12, 1994, and prior to her termination, Petitioner had relocated her residence to Marion County, Florida. Petitioner presented no evidence to establish that she suffered from any handicap or disability under the terms of the FCRA, that she required or requested reasonable accommodations to perform her duties, or that her termination by Respondent was based upon or influenced by any alleged disability.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner's Amended Charge of Discrimination be dismissed with prejudice. DONE AND ENTERED this 25th day of October, 2002, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 2002. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Susan Indish-Militello 2835 North Seneca Point Crystal River, Florida 34429 Alan S. Zimmet, Esquire Elita D. Cobbs, Esquire Zimmet, Unice, Salzman & Feldman, P.A. Two Prestige Place 2650 McCormick Drive, Suite 100 Clearwater, Florida 33759 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner was subjected to a discriminatory employment action based upon his having a disability and, embodied within that question, whether he has a physical impairment which meets the legal definition of disability.
Findings Of Fact The Petitioner was employed by the Respondent, Florida Parole Commission, from July 2003 until January 29, 2007, when the Petitioner resigned. He had worked for the Respondent as a clerk on a part-time basis preparing inmate files for imaging. In October of 2003 he was promoted to records technician in charge of the imaging section. He was again promoted in 2004 to the position of Operations and Management Consultant II. He provided supervision for other employees and coordinated the work-load of the part-time workers (OPS workers) employed in the imaging section. The Respondent is an Agency of the State of Florida that determines which convicted criminals receive parole, the setting of the policies and conditions of parole and other supervised inmate release programs. It also investigates violations of supervision, establishing the terms and conditions of an inmate's release and has a reporting function to the Florida Board of Executive Clemency. On March 1, 2005, the Petitioner experienced the first of a serious of incapacitating physical episodes at work. He had to be removed from the office by ambulance for medical attention. Soon thereafter he was diagnosed as having acute dysautotonomia. Dysautotonomia is an incurable dysfunction of the autonomic nervous system, believed to be caused by a virus. The ailment include symptoms of gastrointestinal dysfunction, significant loss of blood pressure, extreme fatigue, panic attacks, as well as clinical depression. The Petitioner received emotional counseling for his depression and, according to Dr. Kepper, his treating physician, his incapacity is "intermittent and unpredictable." The Petitioner adopted a practice of sitting in his chair and elevating his feet when he had a relatively minor episode. The episodes might last for up to an hour. During a minor episode he would become extremely fatigued and dizzy, was unable to eat or speak coherently and could only lie down to rest until the episode has passed. In the event of a major episode he might experience blackouts, was unable to care for himself and required emergency medical assistance in order to receive intravenous fluids. During major episodes he would summon an ambulance, his girlfriend, or his father to take him to an emergency room for medical attention. The Petitioner's supervisor, Linda Summers, knew that the Petitioner was having these episodes and was resting in his office, prior to July 1, 2006. She allowed him to rest in his office with the door closed when he experienced a minor episode. On June 5, 2006, the Petitioner begin feeling badly and felt that he was about to "pass out." His supervisor, Ms. Summer, asked him if she needed to call an ambulance, as had been done in the past, and he declined. She was concerned about him and suggested that he sit in his office with the door closed until he felt better. Sometime between 3:30 and 4:00 p.m., that day he begin feeling better and said he was going to attempt to drive to the emergency room. Ms. Summers was concerned about his safety and tried to dissuade him. He left, however, but shortly thereafter returned and an ambulance was called to take him to the emergency room. After this, during his episodes, he adopted a practice of closing his office door and putting up a "do not disturb" sign. The Respondent accommodated the Petitioner in this practice, although he had not made a formal request for accommodation, over a period of approximately one and one-half years. The Department of Management Services (DMS) has a rule which was in effect prior to the Petitioner's hiring, which requires that an employee be absent for five consecutive days in order to be eligible to receive donated sick leave. The Respondent has followed this rule since before the Petitioner was hired and applied its standard to all employees. The only occasions when the Respondent has waived this rule-based policy for an employee, was twice in favor of the Petitioner in July and in August of 2006. On those occasions he received 132 donated sick leave hours. Even though the Respondent consistently followed this DMS requirement, it did not actually update its procedure in its personnel handbook to reflect the rule. The Respondent takes the position that if there is a discrepancy between its personnel handbook and the adopted administrative rule, then the rule controls. In any event, on October 10, 2006, the Respondent issued a Revised Procedure Directive, Number 2.02.15, entitled: Attendance and Leave. This directive updated the Respondent's sick leave policy to correspond with its actual policy and with the current DMS rules. It updated the Respondent's Americans With Disabilities Act Policy to reflect established agency policy. Pursuant to this policy (or rule interpretation) the Petitioner received donated sick leave from 18 Respondent employees, including donations from the general counsel, and from the Petitioner's supervisor, in a total amount of 273 hours. The Respondent requires a note from a physician if an employee is absent due to illness for three days in a 30-day period. The Respondent does not deem it a good business practice to waive that requirement nor did it choose to waive it as a reasonable accommodation. On June 16, 2006, the Petitioner suffered a debilitating episode at his office at around 9:00 a.m. He went into his office and put up a "do not disturb" sign for about 30 minutes. A birthday party was occurring in the office at that time and several employees commented concerning their wish to go into their offices put up such a sign and take a nap. Ms. Summers discussed this with the Respondent's Chairman, the former Director of Operations, and the former Human Resources Administrator, Beatriz Caballero. Ms. Summers was thus advised that this could not continue. She therefore talked to the Petitioner and told him that she was sorry that he felt badly but that she could no longer allow him to put up a do not disturb sign as other employees were negatively affected by it and, inferentially, she felt that it affected employee morale. Ms. Summers also established that she and the Petitioner had discussed the Petitioner's doctor's note and what it stated concerning the intermittent nature of his episodes. She told him that the doctor needed to make suggestions about what he should do when he suffers one of the episodes. She also suggested to Mr. Duncan that he probably should go home when he has one of the sick episodes. His response was that as long as he could sit down for a while and be quiet he would start feeling better and that he would hate to drive all the way home and then have to come back. He then said that he would simply go out to his truck in the parking lot and recover from an episode if one occurred. Ms. Summers told him that was an acceptable option and that it was a matter for his own decision. She also told him to be sure to tell her where he was going so that if he did not come back within a reasonable time she could go look for him. She was concerned about his condition and safety. She also told him to leave her a note telling where he had gone and the appropriate time when he left. He indicated that he would do so. At the end of June 2006, Ms. Summers informed the Petitioner that his absences were affecting his productivity and negatively affecting his supervision of the imaging section. This was because the OPS staff, mostly college students, were observed sitting around talking, talking on cellular phones, coming in late and leaving early because of a lack of supervision. It was the Petitioner's responsibility to supervise them and the situation had been deteriorating, in relation to the Petitioner's absences. Director of Operations Gina Giacomo found that the imaging section was not operating at an optimal level because the OPS employees, were undisciplined, and good productivity was not being achieved because of a lack of oversight. She attributes this, in part, to the Petitioner's habit of arriving at work at 7:00 a.m. but leaving at 3:30 p.m. After 3:30 p.m. to the end of the day his employees were unsupervised. The OPS employees were taking very long lunch breaks, leaving early and coming in late and not accounting for their work hours properly. It was the Petitioner's duty to approve the employee's time cards. As a result of the Petitioner's lack of oversight, three of the four employees were under-paid. Also, there were over expenditures as to OPS employees, resulting in a deficiency in the Agency's OPS budget, because the Petitioner allowed some OPS employees to work 35-40 hours per week when they were only supposed to work around 20 hours per week. This had an obvious adverse impact on the Agency's budgeting operations. Because of the employee attendance problems and time- keeping problems, the Respondent Agency initiated a time clock procedure for the imaging section around the end of September 2006. On August 1, 2006, the Petitioner sent the Respondent a written request entitled "Request for Reasonable Accommodation Under the Americans With Disabilities Act", requesting that: 1) he not be required to provide a physician's note when sick as it related to his pertinent disorder; 2) that he be permanently exempt from the five-day rule for sick leave donation as it related to his current disorder; and 3) that he be allowed to close his door while having a minor episode. The Respondent's Human Resources Administrator responded to this request by a memo dated August 8, 2006, declaring that the Petitioner's request to receive a permanent exemption from the five-day rule for sick leave donation eligibility was not a reasonable accommodation request and would not be granted. The Respondent also declared, through the Human Resources Administrator, that the sick leave donation policy is designed for all State of Florida employees to follow. The Respondent contends that the Petitioner's request for the Respondent to exempt him from a medical inquiry (i.e. the provision of a doctor's note or explanation for his illness and/or absence) is also unreasonable. The Respondent took the position that requiring the provision of a physician's note, as it relates to the Petitioner's current disorder, is job-related and consistent with business necessity concerning an employee's ability to perform essential job functions and whether he will be impaired by a medical condition. It is therefore important for an employee's physician to document the employee's need to be absent from work, as well as his ability to return to work and his ability to perform his job functions. The Respondent in essence took the position that while the ADA requires reasonable accommodation to enable qualified disabled persons to perform the essential functions of their jobs, that donated sick leave is not related to ADA requirements, but rather is a benefit provided under state personnel rules. The Respondent did however suggest to the Petitioner that he confer with his supervisor and work with her in trying to make up his missed hours so that he would not have to suffer so many leave-without-pay hours. The Respondent informed the Petitioner that the DMS rule involved clearly states that there is a five-day waiting period before donated sick leave can be used. It acknowledged that the Respondent's internal procedure directive did not specify the five-day rule because it was inadvertently omitted. Because of that oversight the Petitioner's last request dated July 28, 2006, was honored. Thereafter, the internal procedure directive was to be corrected by the Respondent in order to reflect enforcement of the five-day rule for sick leave donation. The Respondent informed the Petitioner that he must follow the requirement for sick leave donation requests in the future. Concerning the Petitioner's request for the accommodation of closing his door while he was having a minor episode, the Respondent told the Petitioner that the request would be reviewed further, but that the Respondent needed information from the Petitioner's physician specifying how the accommodation would assist the Petitioner in performing his essential job functions. The Respondent informed the Petitioner that the documentation needed from his physician should specify the duration the door should be closed, as well as providing any useful accommodation suggestion the doctor might have as it relates to the Petitioner's condition and his request. The general counsel for the Respondent made a determination that the Respondent should not allow the Petitioner to shut his door and remain on the premises due to liability concerns as well as concerns for the Petitioner's health. Instead of providing the requested documentation from the physician to support his accommodation request, on August 17, 2006, the Petitioner filed a Complaint of Discrimination with the Florida Respondent on Human Relations. Before filing that Complaint he never made any complaint to his supervisor concerning any perceived discrimination, or as to being treated differently due to his alleged disability. The Petitioner provided a note from Dr. Kepper, his physician, on August 21, 2006, in which the physician stated that the Petitioner was unable to perform his job from August 16, 2006 to August 30, 2006. There were multiple absences from work during that period of time, as well as abbreviated work days due to the Petitioner's medical condition and other reasons. A meeting was held on December 7, 2006, between Linda Summers the Petitioner's supervisor, the Petitioner, and the Director of Operations, Gina Giacomo. Ms. Giacomo discussed with the Petitioner the need for him to communicate better with his supervisor and for him to come to a better understanding about the importance of the "system" and people not being informed of it. She also addressed the fact that his unit was a very undisciplined unit and that the productivity was not what it should be due to lack of oversight. She attributed much of this problem to the fact that the Petitioner came into work at 7:00 a.m. and left at 3:30 p.m. She determined that there was no reason why he had to start his duties at 7:00 a.m. and changed his work hours so that thenceforth he would work from 7:30 a.m. to 4:30 p.m. with an hour for lunch. She did this in order that he might more closely supervise the part-time, OPS, college-student employees who needed more structure and oversight in the work place. Ms. Giacomo also discussed the fact that the Petitioner's supervisor, Ms. Summers, was frustrated concerning his attendance. It caused difficulty when he was absent for frequent days or partial days because it is such a small agency that it was difficult for other staff members to perform his duties with full-time duties of their own to perform as well. She therefore discussed his schedule changing, her concerns about his working more closely with his supervisor, and his need to inform all of his staff that their schedules were going to change. They were going to thereafter perform all their OPS hours between 7:30 a.m. and 4:30 p.m. and to function more as a team. She also informed the Petitioner that the time-sheets which had been used to account for his employee's work hours were not accomplishing their purpose and that all but one of the time-sheets that he had approved were incorrect. Consequently, she announced the inauguration of a punch-clock procedure for people arriving at and leaving work, so that an accurate accounting of work hours and employees' pay could be accomplished. During the discussion at the December 7th meeting, the Petitioner informed Ms. Giacomo concerning when he could address the time sheet problem, the OPS staff schedule change, and certain other issues. She wanted a time period from him as to when the matters could be cleared up and corrected. That meeting lasted approximately 45 minutes. She remained in the building except during the lunch time period that day but carried two cell phones with her at all times, her personal one and an agency-issued phone. When she got back to her office by mid-afternoon, however, the Petitioner had left with her executive assistant a medically-related form that he had to have already had in his possession before the meeting, which indicated that he would not be able to work from approximately December 4th, to January 9th. He had been present at the meeting and talked about the above-referenced issues without ever mentioning to his supervisor or to the director his need to be off from work for more than a month. He never addressed the issues he was instructed to handle with regard to the OPS employee schedule, etc., all of which finally had to be handled by Ms. Giacomo and Ms. Summers. Upon assuming her duties in September 2006, Ms. Giacomo became very concerned with the lack of professionalism and the management of the imaging section under the Petitioner's supervision. She had four different meetings to try to determine a division of the duties of the Petitioner's position which could be performed by other persons in the office who also had their own full-time duties, because of the Petitioner's absences. Over the course of four or five meetings she re-arranged and re-assigned the functions of the office, on an informal basis, so the functions the Petitioner normally would be responsible for were being taken care of by other staff members. The Petitioner never actually requested assignment to other duties in the Agency as an accommodation. Ms. Giacomo, however, as found above re-assigned functions of his position to other people. She had a meeting with all OPS workers and the permanent, full-time staff and announced that she wanted the Petitioner to be able to be at the meeting, but that it had already been delayed for two weeks because of his absence, and that she needed to proceed and restore the full functioning of the office. She announced that he would not be coming back to his supervisory position but would be greeted "with open arms." She also announced that the Petitioner would be given the same amount of pay, with the same job title, but would be re-assigned to as yet undetermined duties with the Agency. She then informed everyone what each person was going to be doing in terms of performing parts of the functions of the Petitioner's position, so that the office and Agency could function better. On January 16, 2007, the Petitioner provided a note from Dr. Kepper excusing him from work beginning January 10, 2007, stating in effect that he should be excused from work from that date forward until Dr. Kepper could determine whether he was fit enough to resume his normal duties. Due to his medical condition and treatment the doctor stated that the Petitioner was unable to perform his regular duties and would continue to be treated. The doctor stated that the Respondent would continue to be provided updates on the Petitioner's work status, but that the Petitioner, at that time, would have to be placed on out-of-work employment status. Thereafter, on January 29, 2007, the Petitioner submitted his resignation letter. The Petitioner was never terminated nor was he asked to resign by the Respondent. No disciplinary action had ever been taken against him. The Petitioner never asked the Respondent concerning the possibility of being moved to another job or position within the Agency. The evidence shows that between March 2005 and January 2007, the Petitioner worked 3,674.25 hours out of 4,064 regularly scheduled work hours.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witness, and the pleadings and arguments of the party, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition in its entirety. DONE AND ENTERED this 21st day of September, 2007, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 2007. COPIES FURNISHED: Wilton B. Duncan, III 2728 Oakleigh Court Tallahassee, Florida 32399-2350 Bradley R. Bishoff, Esquire Florida Parole Commission 2601 Blair Stone Road, Building C Tallahassee, Florida 32399-2450 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether the Respondent (the Agency) may assess costs against the Employer, who is denominated the Petitioner in the case, for rehabilitative temporary total disability benefits for an employee who was injured on the job, returned to work for approximately three years, and then was discharged for cause unrelated to his injury?
Findings Of Fact James Rutan (Rutan) was hired by Piedmont Airlines of Jacksonville on June 4, 1985. The employer changed its name to U.S. Airways (US Air) in April 1997. Rutan’s position was a fleet service employee. In this capacity, his duties were varied, but among his duties were loading and unloading baggage and freight from aircraft. On September 25, 1993, Rutan was loading baggage, picked up a heavy bag, pulled it across his chest, and injured his shoulder. He went first to the emergency room, then to Dr. Depadua, and finally to Dr. Fady Bahri, who determined that Rutan had torn his rotator cuff. Dr. Bahri operated on Rutan’s shoulder in November 1993, and Rutan returned to light duty with US Air in January 1994. Rutan continued in light-duty status until March 15, 1994. Two contradictory documents were introduced from Dr. Bahri’s office regarding Rutan’s status as of March 15, 1994. One document, sent to the workman’s’ compensation insurer, indicates that Dr. Bahri determined Rutan had reached Maximum Medical Improvement (MMI) with a 12 percent impairment rating and physical restrictions of light work, lifting a maximum of 20 pounds, lifting and carry objects weighing up to ten pounds, and no repetitive overhead activities. However, the other document, attached to Dr. Bahri’s deposition, from the US Air file indicates that Rutan was cleared to return to “full duty.” The doctor was unable to explain in his deposition the apparent contradiction in the two determinations. Rutan testified at hearing concerning his injury and its effect upon his work. Rutan loaded and unloaded baggage and freight from aircraft, and that to do so, he crawled into the cargo bay of the aircraft several times each day and either stacked bags or boxes, or threw bags or boxes to the person stacking them. This caused him pain, and he took quantities of over-the-counter and prescription pain relievers to cope with the pain and continue working. He did not complain to his supervisor(s) about discomfort from performing his duties or seek an accommodation for his handicap. Rutan's supervisor, Lynn Moore, testified regarding Rutan’s job performance. She was his supervisor for approximately two months. She observed his work during that time, and Rutan performed full duty, lifting everything he needed to lift. During the period Moore was Rutan’s supervisor, Rutan did not make any complaints of pain or complain of an inability to do the work. Rutan did not make any requests for transfers, or make any requests for accommodation for a handicap pursuant to the Americans with Disabilities Act. In the first week of April 1997, US Air terminated Rutan for cause. Although the details were not discussed, the discharge was not related to his previously injury or its impact upon his work. Ms. Moore was familiar with the records of Rutan’s employment, and these records reflected Rutan missed a total of 90 days of work due to the injury and surgery. The records further reflect he returned to full duty not later than October 16, 1996, and worked in that capacity until his discharge. Rutan worked for approximately six months following October 16, 1996, without requesting an accommodation or other relief. Ms. Moore testified regarding the positions available at US Air for persons with Rutan’s experience. There were positions available that would have accommodated Rutan’s limitations.2/ Subsequent to his discharge, Rutan had a second surgery on his shoulder on May 11, 1998, that related back to his original injury. Dr. Bahri made another determination of MMI following this surgery on October 1, 1998. Dr. Bahri again determined that there was a 12 percent impairment, but stated that Rutan was able to do medium level work restricted to occasional lifting 21-50 pounds, frequent lifting of 11-20 pounds, and constant lifting of ten pounds with no overhead activities with the right arm or shoulder. These limitations are less restrictive, and permit Rutan to lift more than the limitations originally imposed after the 1993 surgery. At the time of the second surgery, Rutan was a full time student pursuing the profession for which he was "retrained." Subsequent to his second surgery and approximately one year after his discharge for cause, Rutan filed a DWC-23 on April 14, 1998 seeking rehabilitation temporary total disability benefits pursuant to Chapter 440, Florida Statutes. The Agency interviewed Rutan, and was aware of his work history, injury, and discharge for cause unrelated to his injury. Because he had been terminated before his presented his application, and was already approved for tuition benefits and enrolled in college, Rutan’s application was handled differently than a person who was employed by an employer. The employer was not required to sign the DWC-23, and Rutan was sent directly to Mark W. Toigo for vocational evaluation. Mr. Toigo’s evaluation of Rutan’s potential for finding employment without retraining was consistent with the standards for such evaluations and the Agency’s rules. Tiogo concluded that Rutan needed to be retrained. His conclusion was based upon two primary determinations: his determination Rutan physically could not perform the work required to work in his old job which was based upon the documentation provided to the workman's compensation insurer, and his determination that Rutan could not make the amount of money he made in his old job without retraining. The first of these determinations is not supported by the facts presented at hearing. There is documentation that Rutan was returned to full duty, which implicitly is without restriction or limitation. If we assume that Rutan was not returned to full duty by Dr. Bahri after his first surgery, the facts reveal Rutan had performed the duties of his prior job under restrictions that were more stringent than those imposed after his second surgery without complaint or requests for accommodation. Mr. Tiogo did not consider the impact of Rutan’s termination for cause because the Agency’s position was Rutan could not physically perform the duties of his employment; therefore, the job was not and had never been suitable. Ms. Moore and Mr. Richard Hall testified that US Air had positions available in the same pay range as Rutan’s that did not require lifting of the type precluded by Dr. Bahri. Had Rutan not been discharged for cause and had he requested an accommodation due to his physical limitations, US Air would have been legally required to and able to accommodate his needs.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department enter its Final Order dismissing the administrative complaint seeking reimbursement for rehabilitation temporary total disability benefits from the Employer/Petitioner. DONE AND ENTERED this 31st day of January, 2001, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2001.
The Issue Whether Petitioner, Robert F. Cameron, was subjected to an unlawful employment practice by Respondent, Osceola County, based on his disability, race, or national origin in violation of the Florida Civil Rights Act. 1 All statutory references are to Florida Statutes (2020), unless otherwise noted.
Findings Of Fact Petitioner brings this action alleging that the County discriminated against him based on his disability, race (white), and national origin (Canadian). Specifically, Petitioner asserts that the County failed to provide him a reasonable accommodation to allow him to participate in the application and selection process for a County job. The County is a political subdivision of the State of Florida and under the governance of the Osceola County Board of County Commissioners. At the final hearing, Petitioner testified that he is a disabled individual with at least seven disabilities. Pertinent to this matter, Petitioner stated that he is partially deaf in one ear which limits his ability to hear.4 In addition, Petitioner relayed that his disability(ies) affect his normal life in that he has frequent medical appointments and requires an increased number of restroom breaks. On October 15, 2019, Petitioner, who is from Canada, applied for the position of Budget Analyst II (the "Analyst Position") with the County. The Analyst Position falls within the County's Office of Management and Budget Department ("OMB"). The OMB is responsible for preparing the County's 2 By requesting a deadline for filing a post-hearing submission beyond ten days after the filing of the hearing transcript, the 30-day time period for filing the Recommended Order was waived. See Fla. Admin. Code R. 28-106.216(2). 3 Petitioner filed a revised version of his post-hearing submittal on October 9, 2020, which the undersigned considered as Petitioner's Proposed Recommended Order in writing this Recommended Order. 4 At the final hearing, Petitioner initially strenuously objected to identifying his specific disability, asserting that his right to privacy protects him from having to disclose personal medical information, except as requested by a medical professional. annual budget, as well as analyzing and evaluating budget transfers for the County Commissioners. The County initiated the recruitment process for the Analyst Position by posting the opening on the website www.governmentjobs.com on October 14, 2019. Petitioner found the posting on the website and submitted his application through the same. At total of 15 individuals applied for the position, including Petitioner. The application window for the Analyst Position closed on October 21, 2019. Thereafter, the County's Human Resources Department screened the 15 applications to ensure the interested persons met the minimum qualifications for the job. Eleven applicants, including Petitioner, possessed the required qualifications. The Human Resources Department forwarded those 11 applications to the OMB for consideration. The OMB reviewed the 11 applications and selected three individuals to interview. These applicants included Petitioner (a white male), Lizette Rivera (a Hispanic female), and Sean Lower (a white male). Thereafter, the Human Resources Department set up a panel of five County employees to interview the candidates. Petitioner learned that he was being considered for the job on Thursday, October 24, 2019. That morning, the County called Petitioner at his home in Canada to inquire whether he was available for an interview the next day, Friday, October 25, 2019. Damaris Morales, an administrative assistant in the OMB, made the call. This case centers around what was said during that morning phone call. Petitioner and Ms. Morales left the conversation with vastly different impressions of what transpired. The Phone Call According to Petitioner Petitioner testified that Ms. Morales called him at a most inopportune time. His home phone rang at 8:44 a.m. At that moment, Petitioner was rushing out of his apartment to reach a 9:00 a.m. doctor's appointment. In fact, Petitioner had already started his car with an automatic starter, and it was running in his driveway. After he heard his phone ring, however, he turned back to answer the call. Petitioner answered the phone and greeted the caller. The caller identified herself as "Tamaris" from Osceola County.5 Ms. Morales then informed Petitioner that she was calling to set up an interview for the Analyst Position. Petitioner initially expressed to Ms. Morales that her call was "great" news. He then explained that he was running out the door to a medical appointment. Therefore, he asked if she would email him details about the interview, and he would respond to her as soon as he returned home. Ms. Morales informed Petitioner that the interviews would take place the next day (Friday). Petitioner was alarmed at the short notice. He explained to Ms. Morales that he was currently at home in New York state and could not travel to Florida for an in person interview the next day. Ms. Morales replied that she could arrange a telephone interview. Petitioner then asked Ms. Morales when the interview on Friday was scheduled. Ms. Morales relayed that she would email him the specific information when she obtained the time from her manager. Petitioner stated that he would "clear my schedule tomorrow for that interview." Petitioner then signed off saying, "Thank you. I do have to run. Sorry." Ms. Morales hung up the phone first. The conversation lasted 1 minute and 30 seconds. As Petitioner left for his doctor's appointment, he was under the impression that Ms. Morales would email him imminently regarding available times for the Friday telephone interview. The Phone Call According to Ms. Morales At the final hearing, Ms. Morales described a vastly different conversation with Petitioner. As further discussed below, Ms. Morales's 5 At the final hearing, Petitioner testified that he heard Damaris Morales state her name as "Tamaris." initial impressions of Petitioner from that phone call ultimately led the OMB to decide not to interview Petitioner for the Analyst Position. When Petitioner answered the phone, Ms. Morales testified that Petitioner's "aggressive" tone quite startled her. In a "loud" voice, Petitioner declared, "Yeah. What do you want? I don't have time to talk right now. I've got to be somewhere." Ms. Morales was not expecting such an abrupt and jarring reception. After a few seconds of stunned silence, Ms. Morales explained to Petitioner that she was calling about his application for the Analyst Position. Continuing in his harsh tone, Petitioner replied, "I have somewhere I need to be right now. Send me all the information via email. I am in Niagara Falls, New York." Petitioner then hung up the phone first without providing Ms. Morales his availability for a Friday interview. The whole conversation took less than 30 seconds. At the final hearing, in response to Ms. Morales's testimony, Petitioner suggested that she may have overheard an exchange between him and his son, Stewart, with whom he lives. Petitioner explained that, as he was leaving his apartment, his son called out from his bedroom asking whether the bathroom was free. Petitioner yelled back, "What do you want, Stewart? I am leaving." Petitioner explained that his phone may have malfunctioned and engaged Ms. Morales' call without him actually picking up the receiver. Petitioner strongly denied that he directed the comment "what do you want?" at Ms. Morales. Petitioner also theorized that if he spoke in a loud tone with Ms. Morales, it may have been due to his disability. As indicated above, Petitioner testified that he is deaf in one ear. Petitioner explained that Ms. Morales was talking very fast during their phone call. In responding to her questions, Petitioner was not trying to be abrupt or argumentative. However, he was in a rush to reach his appointment and was frustrated at the delay. Continuing with Petitioner's story, after the phone call, as Thursday morning progressed into Thursday afternoon, Petitioner did not receive an email back from Ms. Morales. Therefore, around 2:15 p.m., Petitioner called the County to speak with her. He was forwarded to her office phone, where he left a voicemail. In his message, Petitioner expressed that he was available for an interview any time the next day (Friday). He also left his Skype contact information. Time continued to pass on Thursday. With no response over the next two hours, at 4:14 p.m., Petitioner again called for Ms. Morales. This time, he was able to reach her. Petitioner inquired about his interview time for Friday. Ms. Morales momentarily demurred, telling Petitioner that she had to check with her manager. After several minutes, Ms. Morales came back on the line. She then told Petitioner that the Friday interviews were "full up." When Petitioner asked about an interview on another day, Petitioner claims that Ms. Morales promptly "slammed the phone down in my ear." Ms. Morales, on the other hand, testified that after she informed Petitioner that no interview times were available on Friday, Petitioner got angry and threatened her with a "legal matter." Petitioner then hung up on her. Petitioner was not content to let the matter drop. Therefore, on Friday morning at 9:47 a.m., he emailed the County Manager, Don Fisher, to complain about the County's Human Resources Department and the OMB. In his email, Petitioner summarized the events from the previous day. Petitioner focused on the fact that Ms. Morales told him that she would provide him an interview time. Then, when he contacted her Thursday afternoon, Ms. Morales informed him that the interviews were "full up," and he would not be offered an opportunity to interview for the Analyst Position. Petitioner sent Mr. Fisher follow-up emails at 10:01 a.m. and 10:03 a.m. In the first follow-up email, Petitioner stated: I am disabled and covered under the ADA Act. I make this request for accommodation under the ADA Act. At 10:10 a.m., Petitioner sent an email to another County employee, Maria Colon, the Director of the Human Resources Department and the County's Americans with Disability Act ("ADA") coordinator. In this email, Petitioner stated: You are the designated ADA Act Coordinator, but you are discriminating against me and denying my ADA rights to accommodation under the ACT and Title VII. I formally ask for this interview to be rescheduled and Oscola [sic] County to stop this discrimination. Attached to this email, Petitioner included a copy of his Ontario Disability Support Program Certificate of Disability ("ODSP Certificate"). At the final hearing, Petitioner explained that the ODSP Certificate, which was determined in 2013, is proof of his disability. Petitioner's certificate states: Your file with the Disability Adjudication Unit has been adjudicated and you have been found to be a person with a disability as defined in the Ontario Disability Support Program Act. 1997. At the final hearing, Petitioner expounded on the reasons for his request, explaining that he sought an accommodation to enable him to conduct a telephonic interview because his disability prevented him from driving from Canada to Florida to interview in person. Furthermore, as a disabled person, he needed more time to prepare and participate in the recruitment process. The specific accommodation he desired was to be allowed to interview by telephone on Monday, October 28, 2019. Not hearing a response from Ms. Colon by Friday afternoon, at 3:03 p.m., Petitioner dispatched another email to her. He again attached his ODSP Certificate. In this email, Petitioner wrote that "your staff member Tamaris" refused to schedule an interview and then "hung up the phone on me." Petitioner also repeated that he was "requesting reasonable accommodation for the Budget Analyst II position." Ms. Colon called Petitioner shortly after his second email. During this call, Petitioner informed Ms. Colon that he was disabled, and he needed a telephone interview for the County job opening. Petitioner added that he was located out of state, and he could not travel to Florida in time for an in-person interview. Petitioner further declared that the County was discriminating against him because of his disability and his national origin. Ms. Colon advised Petitioner that she would look into his concerns and get back to him. Petitioner claims that Ms. Colon ended this conversation by slamming the phone in his ear. During this call, despite Ms. Colon's request, Petitioner refused to identify his specific disability. At the final hearing, Petitioner asserted that the law protects those with disabilities from having to disclose their actual medical conditions. He said that, to safeguard their privacy, the disabled do not have to reveal their disability, except to the limited extent necessary to relate the disability to the requested accommodation. At 6:01 p.m. on Friday evening, Ms. Colon emailed Petitioner stating, "Per our phone conversation, I will look into your concerns and get back with you on Monday." By late Monday morning, October 28, 2019, however, Petitioner had not heard from Ms. Colon. Therefore, he sent her two emails. At 11:43 a.m., Petitioner wrote, "When is my interview? I am not available tomorrow." With no response to this first email, at 3:48 p.m., Petitioner wrote, "As per your reply above, you indicated my accommodation request under the ADA and interview time would be dealt with today. It is 4 pm EST. Please respond." Petitioner then signed off, "I am available for an interview 10am to 11 am tomorrow and then on Wednesday, Thursday or Friday." Petitioner received a response from Ms. Colon at 6:10 p.m., Monday evening. In her email, Ms. Colon wrote: I had the opportunity to look into your concerns. To be honest, customer service is very important in the Budget Analyst II role, and we're assessing those skills in every contact with candidates. The OMB Department had concerns about the way you handled the call and treated the employee that contacted you on October 24th for the purpose of scheduling an interview. Therefore, the Department has moved forward with other candidates. Petitioner was most displeased at Ms. Colon's email, and at 6:54 p.m., he responded: I did nothing except indicate I was available for an interview. Regardless none of this over-rides the ADA and my rights to employment and accommodation. I will be discussing your actions, the "OMB" in denying my constitutional and ADA rights, my Title VII rights with [a County attorney] tomorrow. If they fail to resolve this, then I will be suing you personally, Tamaris, the OMB and the County on a substantial indemnity basis for well in excess of $500g. Petitioner ended the email with "See you soon in court." Six minutes later, at 7:01 p.m., Petitioner sent another email to Ms. Colon. In this message, Petitioner stated: I must commend you for trying to deflect the egregious violation of my rights through trying to claim my rights to an interview are somehow superceded [sic] by this department withdrawing an interview based on race, geography, nationality and disability … in a call in which this Tamaris said and I quote – "we are full up" … . I asked her to leave my interview time through an email. If that qualifies as "poor customer service" then you have a very BIG legal problem using that as a diversion for blantant [sic] discrimination based on race, color, nationality, and disability. Petitioner ended this email with, "I will be happy to take you to Federal Court not the Courthouse right across the street. See you soon in court." Petitioner wrote Ms. Colon once more at 7:03 p.m. In this email, Petitioner accused Ms. Colon of "a blatant discrimination of interest in applying the ACT. Your superiors told you to deny me my rights under the ADA and you did so." Petitioner then declared that he was going to "sue you personally. … Trust me on that." After Monday, October 28, 2019, Petitioner never heard back from Ms. Morales or Ms. Colon regarding his application for the Analyst Position. Consequently, Petitioner claims that the County, by refusing to respond to his request for a telephone interview, denied him his rights under the FCRA and the ADA. At the final hearing, Petitioner vehemently denied that he was rude to Ms. Morales or during his call with Ms. Colon. Petitioner professed that he was perfectly polite to Ms. Morales. In addition, he asserted that Ms. Morales's testimony that he hung up the phone on her is totally false. Petitioner also contended that he did not threaten Ms. Colon with legal action as a means of intimidation. He was just exercising his rights as a disabled person. Petitioner further charged that the County's excuse for removing him from consideration was based on a misconstrued comment overheard during a brief phone call. Petitioner insists that his single utterance, "What do you want (Stewart)," cannot and should not justify the County's discriminatory action. The County ultimately hired Lizette Rivera for the Analyst Position. Petitioner alleges that the decision to hire Ms. Rivera is evidence of the County's female employees working together to eliminate white, male candidates. Petitioner maintains that Ms. Morales, a Hispanic female, favored another Hispanic (nondisabled) female (Ms. Rivera) for the Analyst Position. Consequently, Petitioner claims that Ms. Morales rigged the process and discriminated against Petitioner. At the final hearing, the County did not dispute that, while the OMB initially considered Petitioner for the Analyst Position, it quickly decided not to interview him for the job. The County also confirmed that the OMB did interview, and ultimately hire, Ms. Rivera to fill the Analyst Position. Regarding the County's decision not to interview Petitioner, after the initial phone call, Ms. Morales testified that she was quite startled by Petitioner's rude and unprofessional conduct. She immediately reported the conversation to her supervisor, Sharon Chauharjasingh, who is the Director of the OMB. Ms. Morales expressed to Ms. Chauharjasingh how shocked she was by Petitioner's behavior. Ms. Morales further relayed that because Petitioner was "in a rush," he did not provide her his availability for a telephone interview. Consequently, she had no information which would allow her to schedule him for an interview on Friday. Ms. Morales's testimony describing the telephone interaction with Petitioner was credible and is credited. Petitioner admitted to parts of Ms. Morales's versions, including that fact that he was in a rush and that he yelled, "what do you want?" Other than the two phone calls with Petitioner on Thursday, October 24, 2019, Ms. Morales was not involved in the OMB's decision not to interview Petitioner or to hire Ms. Rivera. (Those decisions belonged to Ms. Chauharjasingh.) Ms. Morales did not participate on the interview panel for either Ms. Rivera or Mr. Lower. Ms. Morales further testified that at no time during her phone calls with Petitioner did he inform her that he had a disability, or that he needed an accommodation to participate in the interview process. Ms. Chauharjasingh also testified at the final hearing. Ms. Chauharjasingh initially explained that the OMB is tasked with preparing the County's annual budget of approximately $1 billion. The person who fills the Analyst Position will work in the OMB. The duties of the Analyst Position include reviewing the budgets of the different County departments, as well as assisting those departments with budget questions and preparation related tasks. The Analyst Position will also review budgetary impacts and projections, and be prepared to personally discuss these issues with County representatives. In addition, the Analyst Position will interact daily with other staff members and occasionally contact outside companies and the public. Regarding the hiring of Ms. Rivera, Ms. Chauharjasingh disclosed that, because she oversees the OMB, she was responsible for selecting the person to fill the Analyst Position. For this opening, Ms. Chauharjasingh was the individual who narrowed down the applicants to the shortlist of three individuals including Petitioner, Ms. Rivera, and Mr. Lower. In selecting these candidates, Ms. Chauharjasingh looked at each applicant's past experience as a budget analyst, as well as their aptitude to efficiently assume the job duties. Based on their resumes, Ms. Chauharjasingh believed that each finalist was qualified for the Analyst Position. After selecting the three candidates, Ms. Chauharjasingh asked her assistant, Ms. Morales, to call each applicant and set up an interview. Ms. Chauharjasingh asked Ms. Morales to schedule the interviews for either Friday, October 25, 2019, or Monday, October 28, 2019. At the final hearing, Ms. Chauharjasingh represented that the County routinely interviews job applicants by telephone. Ms. Chauharjasingh further testified that the decision not to continue the interview process with Petitioner was hers. Ms. Chauharjasingh recounted that on Thursday morning, October 24, 2019, Ms. Morales came into her office looking "shaken up." Ms. Morales reported that she had just spoken to Petitioner, and he yelled at her and was rude and unprofessional. Ms. Chauharjasingh had never heard of a job candidate reacting the way Ms. Morales described. Ms. Morales has never complained to her about any other applicant. Based on Ms. Morales's interaction with Petitioner, Ms. Chauharjasingh immediately decided to remove Petitioner from consideration for the Analyst Position. She therefore directed Ms. Morales to "move on" from Petitioner and not to communicate with him any further. Instead, Ms. Morales was to only schedule interviews with the other two candidates (Ms. Rivera and Mr. Lower). The County's panel of five interviewers, which included Ms. Chauharjasingh, conducted an in-person interview of Ms. Rivera on Friday, October 25, 2019, at 11:30 a.m. Mr. Lower was interviewed, in person, on Monday morning, October 28, 2019, at 9:30 a.m. Following the interviews, the panel ranked the candidates, and then sent the list to Ms. Chauharjasingh. Ms. Chauharjasingh extended the offer of employment to Ms. Rivera, who was the top-ranked candidate. Ms. Chauharjasingh concluded her testimony by asserting that Petitioner's disability played no role in her decision not to interview him. Ms. Chauharjasingh explained that, at the time she decided to terminate the interview process with him, neither she nor Ms. Morales had any knowledge or information regarding Petitioner's disability. Instead, the sole basis for removing Petitioner from the shortlist was Ms. Morales' interaction with him during her initial phone call. Ms. Chauharjasingh testified that, based on the specific responsibilities of the Analyst Position, personal traits such as good communication skills, decorum, and telephone etiquette are very important. For example, the Detailed Job Posting for the Analyst Position includes a Physical Demand Requirement of "Expressing or exchanging ideas by spoken word or perceiving sound by ear." Consequently, upon hearing Ms. Morales's description of Petitioner's attitude and behavior during the telephone call, Ms. Chauharjasingh decided that the County did not need to consider Petitioner's application any further. In her testimony, Ms. Colon expressed that she had no part in the OMB's decision not to interview Petitioner. She became involved in this matter only after she received Petitioner's email, addressed to her as the County's ADA coordinator, on Friday morning, October 25, 2019. Ms. Colon stated that after she read Petitioner's email, she did not immediately respond because she first wanted to determine what exactly had transpired between Petitioner and Ms. Morales the previous day. Ms. Colon spoke with both Ms. Morales and Ms. Chauharjasingh on Friday. From these conversations, Ms. Colon heard that Petitioner was "rude" during Ms. Morales's first telephone call. Further, Petitioner was so "abrupt" that Ms. Morales was not able to offer him an interview time. Ms. Morales also informed Ms. Colon that Petitioner did not mention a disability or request an accommodation during either of their calls. Regarding her own phone call with Petitioner on Friday afternoon, Ms. Colon described an experience very similar to Ms. Morales's. Ms. Colon testified that the conversation was "not pleasant." As with Ms. Morales, Ms. Colon recounted that Petitioner was "agitated," loud," and "extremely unprofessional." During the exchange, Petitioner also threatened to sue her and the County. Regarding her email to Petitioner on Monday evening, October 28, 2019, in which she wrote that, "The OMB Department had concerns about the way you handled the call and treated the employee that contacted you on October 24th," Ms. Colon stated that the decision not to schedule Petitioner for an interview was made on October 24, 2019. Specifically, after talking with Ms. Morales and Ms. Chauharjasingh, Ms. Colon learned that Ms. Chauharjasingh had decided not to interview Petitioner immediately after Ms. Morales reported to her regarding Petitioner's rude and unprofessional interaction with her during their first phone call. As a final witness, Ms. Fatima Lozano testified regarding her participation on the interview panel for the Analyst Position. Ms. Lozano described herself as a Human Resources "generalist" with the County. Ms. Lozano has taken part in a number of interviews of applicants for County employment. She relayed that the County routinely conducts telephonic interviews. Ms. Lozano repeated that, when hiring employees, the department responsible for the position sets up the interviews and selects the winner. For the Analyst Position, the OMB selected the applicants who would interview for the job. Regarding scheduling the interviews for the Analyst Position, Ms. Lozano testified that, on October 21, 2019, she received a calendar invite requesting her availability. The interviews then took place on Friday, October 25, 2019, at 11:30 a.m. and Monday, October 28, 2019, at 9:30 a.m. While the above findings chronical the key aspects of Petitioner's discrimination claim, Petitioner also raised several other complaints against the County. Petitioner was exceedingly frustrated by the County's failure to schedule his interview through the www.governmentjobs.com website. At the final hearing, Petitioner elicited testimony from several County employees that, although the County pays a hefty annual fee to recruit employees through governmentjobs.com, the County only uses the website to solicit applications. Petitioner was "shocked" to learn that the County did not take advantage of the website's functions to schedule interviews with candidates. Petitioner was also "stunned" at the County's attempt to schedule his interview with less than one day's notice. Petitioner found the practice unprofessional and unacceptable. Petitioner represented that the standard process used by governmentjobs.com is to email a notification to the job applicant at least four to seven days prior to the agreed interview time. Based on the competent substantial evidence in the record, the preponderance of the evidence does not establish that the County discriminated against Petitioner based on his disability (handicap), race, or national origin. Instead, the credible evidence establishes that the decision not to interview Petitioner was made without knowledge of his disability prior to his request for an accommodation, and without regard to his race or national origin. The decision to not interview Petitioner was based solely on his own behavior, considered rude and unprofessional, effectively disqualifying him from the job. Accordingly, Petitioner failed to meet his burden of proving that the County committed an unlawful employment practice against him in violation of the FCRA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Petitioner, Robert F. Cameron, did not prove that Respondent, Osceola County, committed an unlawful employment practice against him, and dismissing his Petition for Relief from an unlawful employment practice. DONE AND ENTERED this 12th day of November, 2020, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 12th day of November, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Robert Finley Cameron 1 Churchill Street, Apartment 10 St. Catharines, Ontario, Canada L25 2-P3 C (eServed) Frank M. Townsend, Esquire Osceola County Attorney's Office 1 Courthouse Square, Suite 4700 Kissimmee, Florida 34741 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue The issue for determination is whether Respondent, the Orange County Convention Center, discriminated against Petitioner, Norman H. Siales, on the basis of a handicap within the meaning of Section 760.10, Florida Statutes (2004).
Findings Of Fact Petitioner was first employed by Respondent in October 2000 as a set-up worker on an on-call basis. In June 2001, Respondent hired Petitioner in a regular full-time position as a set-up worker. Throughout his employment with Respondent, Petitioner's supervisors considered him a good employee who always performed his job properly and did assigned tasks to the best of his ability. Petitioner was incarcerated on or about July 8, 2004. Shortly after his incarceration, Petitioner called Steve Miller, one of the assistant supervisors in the Event Set-Up Department, and informed him that he was in the county jail. Petitioner was then told that he should keep Respondent updated on his situation. On or about July 9, 2004, Mr. Miller advised Mr. Schildgen, his supervisor, that Petitioner had called and reported that he was incarcerated. After first learning that Petitioner was incarcerated, Mr. Schildgen never heard from Petitioner. Moreover, Mr. Schildgen asked the two shift supervisors if they had heard from Petitioner, and they indicated they had not. Mr. Schildgen considered Petitioner a good employee and wanted him to return to work. However, in late July or early August 2004, after not hearing from Petitioner for about three weeks, Mr. Schildgen, in consultation with the manager of the Event Set-Up Department, determined that Petitioner's continued absence from the workplace, without notice, was a violation of the Orange County policy. According to the policy, employees could be terminated from employment if they were absent from the workplace for three consecutive days without notice to the employer. At or near the time Petitioner was employed by Respondent, he received a copy of the Orange County Government Employee Handbook (on June 11, 2001). He also received training on the Orange County Policy Manual. Petitioner signed an Employee Acknowledgement (March 30, 2004) form stating that he had received the training. The Employee Acknowledgement form, signed by Petitioner, further stated "I understand that I am responsible for complying with all Policies, Operational Regulations, Departmental Operating Procedures, and Departmental Guidelines, and that the failure to do so may be grounds for corrective action, up to and including termination." As a result of the training described in paragraph 6, Petitioner was aware of the Orange County policy that authorized employees to be terminated if they were absent from work three consecutive days and did not notify Respondent. Based on Petitioner's extended absence from the workplace and his failure to communicate with his supervisors regarding the absences, Respondent terminated Petitioner's employment. By letter dated August 26, 2004, Respondent terminated Petitioner's employment with the Event Set-Up Department. The reason for Petitioner's termination was that he had not communicated with Respondent since July 8, 2004. The letter also stated, "while we understand there were some extenuating circumstances involving the Orange County Sheriff's Office, we can no longer wait to address this violation of . . . policy." According to the termination letter, the applicable policy provides the following: "Failure to work for three (3) or more consecutive working days without proper authorization shall be considered job abandonment and result in immediate termination, unless the employee presents written proof that he/she was unable to make appropriate notifications through no fault of his/her own." When he was first incarcerated, Petitioner thought he would be held for 24 to 48 hours. However, he was not released until December 3, 2004. After Petitioner was released from jail, he went to his employer and asked if he could return to work, but was told that he could not return due to his excessive and consecutive absences without notifying his employer. Petitioner had a psychological evaluation when he was incarcerated, and a psychological report dated October 11, 2004, was generated as a result of that evaluation. Petitioner did not offer the evaluation into evidence, but testified that the evaluation indicated he had a mental illness. However, this report and the findings and conclusions therein have no bearing on this case as the report was prepared after Respondent terminated Petitioner's employment. Respondent was unaware of the psychological evaluation or report until the final hearing. During his employment with Respondent, Petitioner never advised his supervisor that he had a disability. Petitioner testified that in 2002 or 2003, he asked his three supervisors to help him "with the grievances." At hearing, Petitioner explained that when he used the term "grievances" he meant the mental, psyche, and physiological abuses he was suffering. In early 2002, while employed with Respondent, Petitioner sent a letter to Mr. Schildgen. According to Petitioner, the letter was about "psychological and physiological experimentations of science and technology." Mr. Schildgen found the letter described in paragraph 17 to be somewhat "strange," but nothing in the letter stated that Petitioner had a handicap or disability. After receiving the letter, Mr. Schildgen and two other supervisors met with Petitioner and asked him about the letter. During the meeting with his supervisors, Petitioner broke out in a cold sweat and rather than talking about the letter, started talking about subjects such as "Sigmund Freud and other stuff [Mr. Schildger and the other two supervisors] and we didn't quite understand where it was going." At no time during the meeting did Petitioner state or indicate that he had a disability. Moreover, there was nothing in Petitioner's personnel file that indicated he had a disability. At no time during his employment with Respondent did Petitioner advise anyone there that he had a handicap or disability. Also, Respondent never knew or considered Petitioner to be handicapped or disabled. The sole basis for Petitioner's termination was his violation of Orange County's "absentee policy."
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner, Norman H. Siales', Petition for Relief. DONE AND ENTERED this 25th day of January, 2006, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of January, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Norman H. Siales Post Office Box 1772 Orlando, Florida 32802 P. Andrea DeLoach, Esquire Orange County Attorney's Office 435 North Orange Avenue, Suite 300 Orlando, Florida 32801
