The Issue Whether Respondent subjected Petitioner to employment discrimination by refusing to hire Petitioner based upon Petitioner?s disability. Whether Respondent failed to make reasonable accommodations for Petitioner?s physical disabilities.
Findings Of Fact Respondent is a trucking company that has over 7,000 trucks that carry payload throughout the country. Petitioner alleges that Respondent did not hire him as a truck driver because Petitioner is disabled, or because Respondent perceived that Petitioner had a disability. Petitioner?s claimed disabilities are a skip of the heart and lower back pain. Petitioner completed his initial application for a truck driving position with Respondent on November 6, 2008, which Respondent received on December 10, 2008. In accordance with Respondent?s hiring process, once Respondent receives an initial application for a driver position, it conducts a preliminary review of the information provided by the applicant. If an applicant provides sufficient information to pass preliminary review, Respondent then sends the applicant a pre-approval letter with an attached “Pre- Training Checklist,” which sets forth a number of requirements for hiring. Respondent?s Pre-Training Checklist requires applicants to have three years of work history. Respondent uses work histories for references from previous employers to check on the background of its applicants as part of Respondent?s obligation to the public to ensure that the drivers it hires will be safe. Respondent?s pre-approval letter advises applicants that “[t]his pre-approval is contingent upon further background investigations, including motor vehicle reports and the successful completion of the hiring process.” Petitioner?s initial application contained no work history. Instead, Petitioner wrote in his application that he had lost his job because the company he was working for had gone out of business, and that he was a stay-at-home dad. Although Respondent sent Petitioner a pre-approval letter, Respondent requested Petitioner to submit additional information regarding his income and work history. Petitioner then submitted information demonstrating that he had no work history in the three years prior to his application. Thereafter, Respondent declined to hire Petitioner based upon his lack of work history. Although Petitioner claims that Respondent failed to hire him because Petitioner was disabled, the evidence submitted by Petitioner was insufficient to show that Petitioner ever informed Respondent of his alleged disability during the application process. Petitioner argued at the final hearing that tax returns and Social Security Benefit Statements submitted to Respondent as part of the application process to verify Petitioner?s earnings should have alerted Respondent to the fact that Petitioner was disabled.1/ Those returns and statements, however, standing alone, do not demonstrate that Respondent was made aware that Petitioner was claiming to be disabled, especially in light of the fact that Petitioner produced no evidence that Respondent received any other information whatsoever from Petitioner, Petitioner?s truck-driving school, or any other entity about Petitioner?s claimed disability or physical limitations, prior to making the decision not to hire Petitioner. Respondent denied receiving such information, and it is found that Respondent did not receive information from any person or entity regarding Petitioner?s alleged disability prior to making the decision not to hire Petitioner. Regarding Respondent?s alleged failure to accommodate, Petitioner testified that, in order to accommodate his disability, he would not be able to load or unload trucks, and would need to be given time to visit his doctor. Petitioner, however, failed to show that he ever requested an accommodation from Respondent. Moreover, the ability to load and unload trucks is an essential duty of the driver position for which Petitioner applied. At the final hearing, Respondent provided evidence that it employs and provides accommodations for a number of drivers with disabilities. Respondent?s evidence that it hires disabled persons is consistent with guidelines adopted by Respondent stating that Respondent “provides equal employment opportunities to all employees and applicants for employment without regard to race, color, religion, sex, national origin, age, disability, marital status or veteran status in accordance with applicable federal and state laws.” In sum, Petitioner failed to demonstrate that Respondent discriminated against him by refusing to hire him because of his disability or that Respondent failed to make reasonable accommodations for Petitioner?s disability. Rather, based upon the evidence adduced at the final hearing, it is found that Respondent decided not to hire Petitioner because he failed to provide three years of work experience required of all applicants.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Complaint and Petition for Relief. DONE AND ENTERED this 14th day of April, 2011, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 14th day of April, 2011. 1/ The tax statements consist of forms 1040EZ for 2006 and 2007 signed by Petitioner and his wife. On both forms, the lines for “occupation” next to Petitioner's wife's signature state, “Disable/Cashier.” The occupation lines on both forms next to Petitioner's signature state, “Disable.” The Social Security Benefit Statements consist of five Form SSA-1099 Social Security Benefit Statements for years 2005 through 2007, including Petitioner's wife's 2005 statement for benefits totaling $9,494.40, Petitioner's 2006 statement for benefits totaling $7,542.00, Petitioner's wife's 2006 statement for benefits totaling $9,882.00, Petitioner's 2007 statement for benefits totaling $7,794.00, and Petitioner's wife's 2007 statement for benefits totaling $10,206.00. 2/ Unless otherwise indicated, all references to statutes or rules are to the current, 2010, versions, which have not been substantively revised since the relevant hiring decision in this case. 3/ See Finding of Fact 13, supra. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Edward Rhoades 7470 Northwest 167th Place Trenton, Florida 32693 Ignacio J. Garcia, Esquire Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 100 North Tampa Street, Suite 3600 Tampa, Florida 33602 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues to be resolved in this proceeding are whether Petitioner was terminated from his employment with Respondent because of his race, his alleged disability, and in alleged retaliation for his attempt to file a workers' compensation claim in violation of Chapter 760, Florida Statutes.
Findings Of Fact Petitioner is an African-American male. Petitioner also has been diagnosed with obsessive/compulsive disorder and major depression. On March 21, 1997, Petitioner began his employment with Florida Department of Corrections as a substance abuse counselor at Lancaster Correctional Institution. Petitioner's employment status was in career service, probationary status for six months from the date of his employment. A probationary status employee can be terminated without cause. Petitioner's employment as a counselor required him to be present at the institution a reasonable amount of time in order to perform his counseling duties. From March 21, 1997 through September 2, 1997, Petitioner failed to report for work 39 full workdays out of a possible 115 workdays. In addition, Petitioner had five other workdays that he only worked part of the day, with a total of 16 hours of leave used over those days. Sixteen hours is the equivalent of two full workdays missed by Respondent. As a result, Petitioner was absent from work approximately 35 percent of the time. Thirty-five percent absence rate was excessive based on Petitioner's job duties. Most of the leave was without pay because Petitioner had not accumulated enough sick or annual leave to cover his absences. The leave was taken for various reasons, but a large part of the leave was taken when Petitioner was hospitalized due to his mental condition. Petitioner's doctor released him from his hospitalization on August 8, 1997; however, Petitioner did not return to work until August 20, 1997. The last pay period ran from Friday, August 22, 1997 to Thursday, September 4, 1997. Petitioner only worked 20 hours out of 40 the first week and two hours out of 40 the second week. Around September 1, 1997, Petitioner went to the personnel office to inquire about filing a workers' compensation claim based on his disability. The staff person he spoke to did not know the procedure for filing a workers' compensation claim. She told Petitioner she would find out the procedure and asked him to return the next day. Other than Petitioner's speculation about the events following his initial inquiry about filing a workers' compensation claim, other material evidence regarding the events following his initial inquiry and Respondent's response thereto was submitted into evidence. The evidence is insufficient to draw any conclusions of a factual or legal nature regarding Petitioner's workers' compensation claim and his termination. Petitioner was terminated on September 2, 1997, the day following his initial inquiry about workers' compensation. Petitioner received his letter of termination on September 2, 1997. Petitioner was a probationary status employee when he was terminated. Eventually, Petitioner filed a workers' compensation claim. The claim was denied by the Florida Department of Labor and Employment Security. In 1997, L.D. "Pete" Turner was the warden at Lancaster Correctional Institution. As warden, Mr. Turner supervised Petitioner. Mr. Turner made the decision to terminate Petitioner due to his excessive absences. Mr. Turner did not terminate Petitioner based on Petitioner's race, his alleged disability, or because of Petitioner's attempt to file a workers' compensation claim. Petitioner was needed at work and he was not there a sufficient amount of time to fulfill his job duties. In fact, there was no competent evidence that there was any connection between Petitioner's termination and/or his race, disability, or desire to file a workers' compensation claim. Petitioner alleged that two employees at the institution were excessively absent but were not terminated. The employees were Doris Jones and Victoria Englehart. Both individuals were career service employees with permanent status. They were not probationary status employees. Doris Jones is an African-American female. Victoria Englehart is a white female. No other evidence was produced at the hearing regarding these two employees, their attendance records, job duties or anything else of a comparative nature. Clearly, the evidence is insufficient to make any comparison between these two employees and Petitioner's employment and termination.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 6th day of June, 2001, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 6th day of June, 2001. COPIES FURNISHED: Otis Ware Post Office Box 2155 Trenton, Florida 32693 William J. Thurber, IV, Esquire Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399-2500 Azizi M. Dixon, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
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
The Issue Whether the Respondent failed to make a reasonable accommodation in order to allow the Petitioner to perform his job functions and thereby committed an unlawful employment practice constituting discrimination that is prohibited by the Florida Civil Rights Act.
Findings Of Fact Miami-Dade County is a political subdivision of the State of Florida. The Respondent, Miami Dade County Consumer Service, is a department of Miami-Dade County. The Petitioner, Carlos A. Mangual, is an employee of Miami-Dade County, Florida (the County). He currently is employed as the security manager for the Port of Miami. The Petitioner has held his current position since April of 2001. Prior to his current position, the Petitioner was a Parks and Recreation Security Supervisor for the County. As a supervisor he was eligible to participate in seminars and training meetings that were geared toward making supervisors aware of personnel rules and regulations. During his employment with Parks and Recreation, the Petitioner attended a meeting regarding the Americans with Disabilities Act (ADA). Mr. Collins is the County's Employee Relations ADA specialist who was the guest instructor for the supervisor's certification program. Mr. Collins met the Petitioner at the ADA meeting and discussed with the Petitioner whether the Petitioner's weight (and size) would be considered a disability under the ADA provisions. Subsequently, while employed with the County, the Petitioner was involved in an automobile accident that resulted in a knee injury. The Petitioner has undergone two surgeries to correct the damaged knee. Because the knee has adversely affected the Petitioner's gait, he also suffers back pain from the incident. The knee injury, resultant back pain, and residual physical impairments have caused the Petitioner to receive a workers' compensation overall impairment rating of 8 percent. For purposes of this case, the Respondent does not challenge such impairment. Subsequent to the accident and knee injury, the Petitioner applied for a position with the Respondent. Such position, Consumer Protection Inspector/Officer, required the Petitioner to attend to office duties for approximately 1-2 hours per day and to "be on the road" the rest of the time. Consequently, while working as a Consumer Protection Inspector, the Petition logged anywhere from 100 to 200 miles per day in a County-owned vehicle. The Petitioner began his probationary status with the Respondent in January 2000. During the probationary period, the Petitioner received monthly job performance evaluations. After approximately 5 months and while still during his probationary status, the Petitioner was not retained as a Consumer Protection Inspector. Instead, he was returned to the Parks Department where he continued employment with the County until he began his current position with the Port. The Petitioner considered the return to Parks a "demotion" based upon his alleged disability. It is undisputed the Petitioner requested a larger vehicle during his tenure with the Respondent. The Petitioner maintained the mileage logged in small vehicles was damaging to his knee and uncomfortable. The Petitioner claims he was entitled to an accommodation under the ADA because of his alleged disability. During his time with the Respondent, the Petitioner did not make a formal request for an accommodation. In fact, the credible evidence supports a finding that the Petitioner obtained the form but did not file it with supporting medical documentation as advised by the County's ADA specialist. The Petitioner maintains that the small vehicle assigned for his use required him to frequently stop and stretch. Such stops were necessary because the interior of the vehicle did not allow for an extension of his leg. There is no evidence that the employer refused to allow the Petitioner to make such stops or that the Petitioner was adversely evaluated because of the stops. During the Petitioner's probationary period, the Respondent did not have a larger vehicle readily available to assign to the Petitioner. Vehicles that might have become available would have been assigned based upon seniority with the Respondent. The Petitioner went back to Parks prior to such vehicles becoming permanently available to the Respondent. The Petitioner's impairment rating has not affected his abilities to walk every day, to drive to and from his place of employment, to shop, to engage in leisure activities, or to go to a gym once a month for workouts. There is no evidence of any life activity that Petitioner cannot perform as a result of his knee impairment. The Petitioner was fully able to perform the functions of his job. The Petitioner performed his job with the Respondent even when using a small vehicle. The Respondent never refused a request for an accommodation from the Petitioner. The Petitioner's informal inquiry regarding how to seek an accommodation was never formally filed. The Petitioner's size as well as any knee impairment contributed to the uncomfortable nature of the small vehicle used by the Respondent. This was especially true when the Petitioner was required to share the vehicle with another employee.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petitioner's complaint. DONE AND ENTERED this 30th day of May, 2002, in Tallahassee, Leon County, Florida. ___________________________________ J. D. PARRISH 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 30th day of May, 2002. COPIES FURNISHED: 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 Carlos A. Mangual 1290 Northeast 135th Street North Miami, Florida 33161 Consumer Services Miami Dade County 140 West Flagler Street, Suite 901 Miami, Florida 33128 Eric A. Rodriquez, Esquire 111 Northwest 1st Street, Suite 2810 Miami, Florida 33128-1993 Ana M. Urrechaga, Esquire Urrechaga, P. A. 8603 South Dixie Highway, Suite 209 Miami, Florida 33143
The Issue The issue is whether Petitioner has been subjected to an unlawful employment practice, namely, discrimination on the basis of her age, gender, religion, or disability.
Findings Of Fact Petitioner, Esther Kay Gibbs, is a resident of Ocala, Florida, whose date of birth is January 31, 1956. Petitioner has many years of experience in a variety of clerical positions. Petitioner applied for the position of Court Clerk I with the Marion County Clerk of the Court’s Office on September 20, 1999. Petitioner’s application for employment stated that she has the ability to type at the rate of 35-40 words per minute. The Marion County Clerk’s Office employs approximately 200 persons in approximately 14 different departments. Petitioner initially interviewed for the position of Court Clerk I with Mr. Jack Seese, Chief Deputy Clerk for Administrative Services; and Ms. Maribeth Hudson, Chief Deputy Clerk for Court Services. During the interviews, Petitioner was explained the varied duties of a Court Clerk I, which included typing at the rate of 45 words per minute. At the time of the interview, Petitioner was aware that typing was an essential job function. The interview notes of Mr. Seese and Ms. Hudson showed Petitioner to be an “above average” candidate for the position. Mr. Ellspermann interviewed Petitioner and hired her effective October 14, 1999. Mr. Ellspermann reviewed Petitioner’s employment application and was aware that she listed her typing speed at 35-40 words per minute. Petitioner was never told she would be placed in a particular department or division of the Clerk’s Office. All of the Clerk I positions required typing. Petitioner was hired as a Court Clerk I in the traffic division and remained in that position until her resignation on August 23, 2001. Petitioner suffers from scleroderma, the symptoms of which include pain in her fingers, extreme sensitivity to cold temperatures, difficulty swallowing, loss of sleep, and the inability to garden or use her hands for any fine motor work. The Social Security Administration issued Petitioner a determination of disability in 1989. Petitioner concealed her medical condition from Respondent. Petitioner told Respondent’s officials during her interviews that she was able to type. Respondent had no way of knowing that Petitioner had a disability or a problem with typing at the time of the interviews. Respondent hired Petitioner with the knowledge that she was able to type only 35-40 words per minute. Throughout her employment with Respondent, Petitioner’s supervisors were Ms. Kudary or Ms. Rodgers. As her supervisors, Ms. Kudary and Ms. Rodgers counseled Petitioner on numerous occasions about mis-keyed citations and other performance issues. Petitioner presented no evidence concerning her claim of gender discrimination. Petitioner presented no evidence concerning her claim of age discrimination. Petitioner claimed that a non-supervisory co-worker made a derogatory remark about her religious beliefs. Petitioner presented no evidence concerning her claim of religious discrimination. Petitioner made an effort to be a cooperative employee and to fit into office culture by volunteering to work comp time and overtime. Petitioner published recipes for and cooked meats at the request of her fellow co-workers and supervisors, even though she is a vegan. Petitioner wrote a complimentary e-mail to her supervisor, Karen Rodgers. On November 9, 2000, Mr. Ellspermann approved a two percent pay increase for Petitioner. In his memo to Petitioner, Mr. Ellspermann noted that “Your evaluation reflects your interest and commitment in providing the citizens of Marion County with an effective Clerk’s Office. I thank you for your hard work and continued dedication. Congratulations on a job well done." Also, on November 9, 2000, Mr. Ellspermann directed Respondent’s payroll department to provide eight hours of incentive time to Petitioner’s annual leave. Mr. Ellspermann wrote to Petitioner, “I want to take this opportunity to recognize and thank you for the special effort you have taken not to use sick time throughout the year.” The letter noted that he took this action because Petitioner was “blessed with good health and displayed a commitment of service to Marion County and the Clerk’s Office.” All employees in the Marion County Clerk’s Office are required to attend annual harassment/discrimination training seminars. Petitioner attended a harassment/discrimination training seminar on the morning of August 22, 2001. Petitioner and the other attendees at the seminar were encouraged to report incidents of harassment to their supervisors. During a break in the training, Petitioner approached Ms. Hudson and told her she believed that her supervisor, Ms. Rodgers, was harassing her. Ms. Hudson agreed to arrange a meeting with the Deputy Clerk, Mr. Seese. At a meeting with Mr. Seese and Ms. Hudson, Petitioner stated that Ms. Rodgers was mean and belittling to her and everyone else in the traffic and misdemeanor divisions. Petitioner stated that the alleged harassment by Ms. Rodgers had nothing to do with her race, color, religion, national origin, age, or marital status. Mr. Seese and Ms. Hudson concluded that Ms. Rodgers' alleged acts toward Petitioner had nothing to do with harassment within the interpretation of the law and the Clerk’s Office Anti-Harassment Policy. Mr. Seese concluded his investigation at this point. Petitioner made multiple data entry errors as a Court Clerk I. Petitioner had previously had a dispute with Ms. Rodgers over errors she had made in entering citations into the system. On the afternoon of August 22, 2001, Mr. Ellspermann summoned Petitioner to his office to meet with Ms. Hudson and him concerning Petitioner’s data entry errors. At the August 22 meeting, Mr. Ellspermann discussed Petitioner’s errors in keying-in citations with her. In response to Mr. Ellspermann’s concerns regarding Petitioner’s performance, Petitioner threw her hands in the air, and for the first time since she had become employed with the Clerk’s Office, stated that she could not do her job because she could not type. Mr. Ellspermann and Ms. Hudson were surprised by Petitioner’s revelation concerning her inability to type. Mr. Ellspermann informed Petitioner that he would see if any positions were available at the Clerk’s Office that did not require typing. Mr. Ellspermann made a good faith effort to find Petitioner a position that did not require typing. No positions existed at the Clerk’s Office for Petitioner that did not require typing. Petitioner told Mr. Ellspermann that she could neither type nor remain in a position that required typing. Earlier in 2001, Petitioner had submitted a form to the Department of Health in which she stated “I can’t work in the cold; I can’t type anymore.” Petitioner did not ask for an accommodation from Respondent other than asking for a position that required no typing. Mr. Ellspermann and Ms. Hudson met again with Petitioner on August 23, 2001, at which time Mr. Ellspermann reported that Respondent had no positions available into which she could transfer that required no typing. Petitioner was informed that she could either resign or be terminated since she was unable to work at a position that required typing, and no positions were available that did not require typing as an essential part of the job. Petitioner resigned from her employment with Respondent due to her “health problems.” Since her resignation from the Marion County Clerk’s Office, Petitioner has not been able to secure employment at a comparable salary to what she previously earned as a Court Clerk I.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss Petitioner’s charge of discrimination. DONE AND ENTERED this 6th day of May, 2004, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 6th day of May, 2004. COPIES FURNISHED: Sharon Attas-Kaplan, Esquire Fisher & Phillips, LLP 450 East Las Olas Boulevard, Suite 800 Fort Lauderdale, Florida 33301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Esther Kay Gibbs 3415 Northeast 17th Terrace Ocala, Florida 34479 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue for determination is whether Petitioner was subjected to discrimination in the work environment by the Department of Corrections (DOC) due to Petitioner's race, sex, and handicap in violation of Section 760.10(1)(a), Florida Statutes.
Findings Of Fact Petitioner, Thaise Hampton, is a female African- American. On January 20, 1995, Hampton was hired by the Correctional Educational School Authority (CESA) to work as a teacher at DOC's Apalachee Correctional Institution (ACI). Hampton had not worked before that time. During the 1995 legislative session, CESA was abolished by the State of Florida Legislature. CESA’s education and job training program functions were transferred to DOC along with most positions, inclusive of Hampton’s. Hampton was placed on probationary status as a DOC employee, effective July 1, 1996. On April 12, 1996, Hampton had an on-the-job injury when she slipped and fell in the cafeteria of the institution. The State of Florida's Division of Risk Management (Risk Management) administered the workers’ compensation case for the State of Florida. Hampton was treated by a physician and excused from work because of the injury. Hampton was evaluated by Michael W. Reed, M.D., an authorized treating physician for Hampton’s work-related injury, on July 15, 1996. By correspondence dated July 22, 1996, Dr. Reed reported his evaluation of Hampton. Dr. Reed found that Hampton suffered from lumbar degenerative disc disease. He recommended physical therapy and light duty work restrictions on lifting objects greater than 20 pounds. On August 29, 1996, DOC received further correspondence forwarded by Risk Management from Dr. Reed. In that correspondence dated August 28, 1996, Dr. Reed stated that Hampton could return to work full duty and that she had reached Maximum Medical Improvement, with a 0 percent permanent impairment rating. He did not indicate that there were any work restrictions. Hampton reported to work on September 3, 1996. At that time, she was utilizing a walker to ambulate around the compound. Joseph Thompson, the Warden at ACI, and the hiring/firing authority over Hampton at that time, expressed security concerns that Hampton was utilizing a walker. He asked the personnel manager, Derida McMillian, to inquire into the situation. As a result, McMillian contacted Paul Bohac, Hampton’s supervisor, and requested that both he and Hampton come to her office. She then informed Hampton that she was not authorized to utilize a walker unless a physician had prescribed one for her use. She told Hampton that she was in receipt of a letter from Dr. Reed that indicated she could return to work on regular duty with no restrictions and that a walker represents such a restriction. McMillian then told Hampton that she could not use a walker at work until she produced a medical report indicating a need for same. She also told Hampton that a physician’s statement would be needed or her leave would not be authorized. Hampton stated that she understood and would provide the appropriate medical reports on September 5, 1996. McMillian relayed Hampton’s statements that she would provide documentation by September 5, 1996, to Margaret Forehand, a personnel technician who was a liaison with the Division of Risk Management at that time. Because no such documentation was received by September 5, 1996, Forehand called Hampton at home on September 9, 1996. Hampton advised her that she would get her attorney to obtain a doctor’s statement. On September 10, 1996, Hampton called Forehand and said that her lawyer would obtain a doctor’s statement and send it to DOC. On September 17, 1996, Hampton contacted Forehand with questions regarding her paycheck received on September 13, 1996. Forehand advised that DOC had not received the physician’s statement that was to have been provided on September 5, 1996. Forehand reiterated at that time that Hampton needed to provide a doctor’s note as to her status. Hampton told Forehand that her attorney would be taking care of the matter. On September 18, 1996, Forehand spoke with Alice Taylor at the Division of Risk Management and was advised that Risk Management had received a letter from a Dr. Ayala regarding Hampton’s condition. Taylor told Forehand that Ayala's letter did not change anything--Hampton had not been removed from work or prescribed a walker. Neither McMillian nor Forehand was aware of any prescription for a walker by a Dr. Randall dated June 3, 1996, until March 11, 1997, when they were shown the prescription. Additionally, Forehand had no record indicating that Dr. Randall was approved by the Division of Risk Management as a treating physician. On September 19, 1996, Hampton appeared at the personnel office. She did not have a prescription for a walker at that time. Thus, Hampton was considered to be on unauthorized leave status since September 5, 1996. Warden Thompson terminated Hampton’s employment on September 19, 2001, for excessive unauthorized absences. Hampton alleged that several white male employees and an inmate were allowed accommodations: Mr. Ammons; Paul Bohac; and inmate John Peavy. Warden Thompson testified that he approved a request for Mr. Ammons to use a wheelchair after receiving a request from the CESA Personnel Office. He was informed that Mr. Ammons would be retiring in 30 days. Mr. Ammons was not a DOC employee. Warden Thompson stated that he was not aware that Paul Bohac had worn a back brace into the office or that he had brought an ergonomic chair into the office. If he had known that he was using special medical equipment, he would have requested a prescription for the devices. Paul Bohac was not utilizing a walker. Warden Thompson was not aware that inmate John Peavy was issued a walking stick; however, inmates were allowed to utilize assistive walking devices if the medical department authorized it. Warden Thompson approved Hampton’s termination because of her unauthorized absences. She refused to work at full duty or provide a physician’s statement documenting any work restrictions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 24th day of April, 2002, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 24th day of April, 2002. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway Suite 100 Tallahassee, Florida 32301 Marva A. Davis, Esquire 121 South Madison Street Post Office Box 551 Quincy, Florida 32353-0551 Gary L. Grant, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway Suite 100 Tallahassee, Florida 32301
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
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 The issue is whether Respondent discriminated against Petitioner on the basis of Petitioner's age or perceived disability in violation of the Florida Civil Rights Act, Chapter 760, Florida Statutes (2008).1
Findings Of Fact Petitioner is an "aggrieved person" within the meaning of Subsections 760.02(6) and (10). Petitioner is a 51-year-old white male who had cancer in one kidney at the time of an alleged unlawful employment practice. Respondent is an "employer" within the meaning of Subsection 760.02(7). Respondent is a construction company engaged in the business of building bridges and other highway structures in Florida. For the reasons set forth hereinafter, a preponderance of the evidence does not show that Respondent discriminated against Petitioner on the basis of Petitioner's age or perceived disability. Respondent employed Petitioner as a crane operator on February 22, 2008, at a pay rate of $18.00 per hour. Petitioner listed his residence as Naples, Florida. Petitioner was unaware that he had any disability and did not disclose any disability at the time of his initial employment. Petitioner solicited employment from Respondent and was not recruited by Respondent. Petitioner relocated from Wyoming to Florida to be with his family. Respondent assigned Petitioner to a construction job that was under the supervision of Mr. Scot Savage, the job superintendent. Mr. Brandon Leware was also a superintendent on the same job. Mr. William (Bill) Whitfield was the job foreman and Petitioner's immediate supervisor. Sometime in October 2008, medical tests revealed that cancer may be present in one of Petitioner's kidneys. The treating physician referred Petitioner to a specialist, David Wilkinson, M.D., sometime in October 2008. Medical personnel verbally confirmed the diagnosis of cancer to Petitioner by telephone on October 30, 2008. On the same day, Petitioner voluntarily resigned from his employment during a verbal dispute with his supervisors. Petitioner did not disclose his medical condition until after he voluntarily resigned from his employment. The verbal dispute involved Petitioner and several of his supervisors. On October 30, 2008, Mr. Whitfield, the foreman, assigned work to several employees, including Petitioner. Mr. Whitfield proceeded to complete some paperwork and, when he returned to the job site, discovered the work assigned to Petitioner had not been performed. When confronted by Mr. Whitfield, Petitioner refused to carry out Mr. Whitfield’s directions. Mr. Whitfield requested the assistance of Mr Savage. Mr. Savage directed Petitioner to return to work or quit. Petitioner quit and walked off the job. As Petitioner was walking off the job, Petitioner turned around and stated that he had cancer. Petitioner then left the job site. Petitioner's statement that he had cancer was the first disclosure by Petitioner and first notice to Respondent that Petitioner had cancer. The medical condition did not prevent Petitioner from performing a major life activity. Respondent did not perceive Petitioner to be impaired before Petitioner voluntarily ended his employment. None of the employees of Respondent who testified at the hearing regarded Petitioner as impaired or handicapped or disabled or knew that Petitioner had cancer prior to Petitioner's statement following his abandonment of his job on October 30, 2008.2 Within a week after Petitioner voluntarily left his position, Petitioner returned, approached Vice-President Mr. Scott Leware, and asked for his job back. Mr. Leware advised him that he would not get his job back. At the time, Mr. Leware was unaware that Petitioner had cancer. Mr. Leware was the ultimate decision-maker, and Mr. Leware was unaware that Petitioner had cancer when Mr. Leware made that decision approximately a week after Petitioner voluntarily left his employment. The terms of employment did not entitle Petitioner to a per diem payment while employed with Respondent. Petitioner's residence in Naples was within 75 miles of the job site where Petitioner worked. Respondent did pay for the hotel room that Petitioner used at the Spinnaker Inn while on the job, but not other per diem expenses, including meals. The cost of the hotel ranged between $50 and $60 a night. Mr. Brandon Leware followed Petitioner to a gas station and paid for gasoline for Petitioner’s vehicle. Mr. Leware and Petitioner then went to the Spinnaker Inn where Petitioner resided in a room paid for by Respondent. Mr. Leware advised the manager of the Spinnaker Inn that Respondent would pay for Petitioner’s lodging for that night, but not after that night. The rate of compensation that Respondent paid Petitioner was within the normal range of compensation paid to crane operators employed by Respondent. Crane operator compensation ranges from $16.00 to $20.00 an hour. Respondent paid Petitioner $18.00 an hour. A preponderance of the evidence does not show that Respondent ever offered to pay Petitioner $22.00 an hour. The allegation of age discrimination is not a disputed issue of fact. Petitioner admitted during his testimony that he never thought Respondent discriminated against him due to his age. Respondent employed another crane operator with cancer at the same time that Respondent employed Petitioner. The other crane operator is identified in record as Mr. Roddy Rowlett. Mr. Rowlett’s date of birth was October 14, 1949. Mr. Rowlett notified Respondent that he had cancer, and Respondent did not terminate the employment of Mr. Rowlett. Mr. Rowlett continued to work as a crane operator until a few weeks before his death. A preponderance of evidence does not show that age, cancer, or perceived impairment were factors in how Respondent treated Petitioner during his employment with Respondent. A preponderance of the evidence does not show that Respondent hired anyone to replace Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding Respondent not guilty of the allegations against Respondent and dismissing the Charge of Discrimination and Petition for Administrative Hearing. DONE AND ENTERED this 2nd day of March, 2010, 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 2nd day of March, 2010.
The Issue The issue is whether Respondent engaged in the practice of discrimination against Petitioner when terminating him from employment as a firefighter due to a medical condition.
Findings Of Fact Petitioner, Jonathan Race, was employed by Respondent, Orange County Fire Rescue Department, since January 1989, and worked in the Operations Division as a Lieutenant/EMS Supervisor. In this role, he managed, coordinated, and performed firefighting and emergency rescue services. In the mid-1990s, Petitioner was diagnosed with atrial fibrillation which ultimately resulted, in July 2001, in his undergoing an open heart surgical procedure known as the "MAZE" procedure. Following the open heart surgery, Petitioner had a pacemaker installed in August 2001. Petitioner's cardiologist from 1997 to January, 2005, was Arnold Einhorn, M.D. Barry Portnoy, M.D., is a physician under contract with Orange County to perform annual physical examinations for members of the Orange County Fire Rescue Department. While Dr. Einhorn served as Petitioner's cardiologist, he had periodic conversations with Dr. Portnoy concerning Petitioner's cardiac condition. On May 20, 2003, Dr. Einhorn wrote a letter to Dr. Portnoy in which he stated that Petitioner, "continues to be on medical therapy with beta blockers and Digoxin and his underlying heart rate is in the 30s and this making him dependent on the pacemaker approximately 80% of the time." Dr. Einhorn concluded at that time that Petitioner needed to continue with his medications and use of the pacemaker. Petitioner, concluded, Dr. Einhorn, "is dependent on the pacemaker." On January 16, 2004, Dr. Portnoy conducted an annual physical for Petitioner. On February 6, 2004, Dr. Portnoy stated in his evaluation of Petitioner: "Classification deferred pending additional information. . . . Employee may continue in his/her present duties for no more than 30 days while awaiting further evaluation." On June 4, 2004, Dr. Portnoy completed his evaluation of Petitioner, imposing a restriction of "No functioning as a member of a team or independently where sudden incapacitation could result in harm to himself, risk to others, or mission failure." Dr. Portnoy placed Petitioner on light duty, which resulted in his assignment to an office job at fire headquarters. Respondent's policy dictates that, when an employee is placed on light duty, a medical review is conducted. After being placed on restricted or light duty, a medical review of Petitioner was commenced in June 2004. Respondent's medical review committee requested that Petitioner obtain from his cardiologist, Dr. Einhorn, information concerning Petitioner's cardiac condition. On January 5, 2005, Dr. Einhorn, at Petitioner's request, sent a letter to Dr. Portnoy in which he stated, in part, "We have been trying to wean the patient off beta blockers and Digoxin to see if the patient is still pacemaker dependent. He is now not on any Digoxin and Toprol and interrogation of his pacemaker revealed 30% atrial paced with 16 runs of atrial fibrillation." Based upon the information received from Dr. Einhorn by Dr. Portnoy, Respondent sent Petitioner a letter dated February 17, 2005, which stated that Respondent had determined there was a preponderance of evidence that restrictions placed on Petitioner by Dr. Portnoy would continue indefinitely and that Petitioner would not be able to return to his position in the Operations Division as Lieutenant/EMS Supervisor. Respondent concluded that under Article 34.11 of the Collective Bargaining Agreement, Petitioner would be medically separated from his employment with the County, effective March 26, 2005, at 19:30 hours. While on light office duty, Petitioner was given additional time to pursue other jobs with Orange County. Petitioner did not find another job with Orange County. On March 10, 2005, after Petitioner had received the February 17 letter from Respondent, Amish Parikh, M.D., wrote a letter "To Whom It May Concern", in which he stated that Petitioner "is now pacing only 0.8% of the time and it is not considered pacemaker-dependent. I believe the pacemaker is not a limiting factor in his ability to perform his job and he should be permitted to return to full duty without restrictions." Nothing in this letter makes reference to any medications Petitioner would be required to take in the future. On April 15, 2005, after Petitioner had been terminated from his employment with Respondent, Petitioner was examined by another cardiologist, Sunil M. Kakkar, M.D., who concluded that Petitioner was not pacemaker dependent and could return to full duties with Respondent. Neither Dr. Parikh nor Dr. Kakkar testified at the hearing. Their written reports appear to be based upon one visit by Petitioner with each of them. On March 23, 2005, Dr. Portnoy reviewed the March 10 letter from Dr. Parikh. Dr. Portnoy did not change his determination that Petitioner was pacemaker dependent after his review of Dr. Parikh's letter. Dr. Portnoy did not lift the restrictions he had imposed on Petitioner. At the time of hearing, Petitioner continued to take medications, both aspirin and Toprol, for his cardiac condition. David Hart worked as a firefighter with Respondent from March 16, 1981, through his voluntary retirement, with the rank of Engineer, on February 10, 2005. Mr. Hart was diagnosed with atrial fibrillation in 1992 and was treated for the condition with medications for the ensuing six years. Mr. Hart had a pacemaker implanted in October of 1998, and had the pacemaker in place through his retirement. While still employed by Respondent, Mr. Hart's private cardiologist, Dr. Filart, provided Respondent and Dr. Portnoy with information concerning the pacemaker, and determined that Mr. Hart was not pacemaker dependent. Based upon Dr. Filart's determination that Mr. Hart was not pacemaker dependent, Mr. Hart was not removed from duty or placed on restricted duty due to his pacemaker. Mr. Hart agreed that the decision with respect to pacemaker dependency should be made by the patient's cardiologist. Petitioner claims that he was discriminated against by Respondent due to disparate treatment between himself and David Hart. He alleges he is not pacemaker dependent, is similar to Mr. Hart, and, therefore, should not have been medically separated from his employment with Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order finding that the Respondent did not discriminate against Petitioner and dismissing the Petition for Relief. DONE AND ENTERED this 11th day of May, 2006, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 11th day of May, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Jonathan A. Race 1081 Dean Street St. Cloud, Florida 34771 Gary M. Glassman, Esquire Orange County Attorney's Office Litigation Section 435 North Orange Avenue, 3rd Floor Orlando, Florida 32801 Cecil Howard, General Counsel Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
