The Issue The issue to be determined is whether Respondent committed an unlawful employment practice against Petitioner by discriminating against him on the basis of disability and/or age.
Findings Of Fact Petitioner worked for Respondent as a child protective investigator (CPI) in Key West, Florida, for just over eight months, from June 30, 2014, until March 2, 2015. Petitioner generally described his background prior to working for Respondent as including 30 years of work experience as a police officer, parole and probation officer, and insurance investigator. Petitioner began working for Respondent in a temporary part-time OPS position on June 30, 2014. Petitioner was required to complete a 10- to 12-week CPI training course and pass a test to attain provisional CPI certification in order to become eligible for a career service CPI position on a probationary basis. The probationary period for CPIs is one year from the effective date of employment in the career service position. The CPI training program for the DCF region that includes Key West was held on three days each week in Miami. Petitioner began the training program sometime in July 2014. Petitioner commuted from Key West to Miami for the training sessions, and spent the other two days each week working in his OPS position in Key West, shadowing and observing CPIs. During this time, he was not assigned cases or allowed to take responsibility in investigations, but may have performed minor tasks, such as making phone calls to assist the CPIs. CPI Essential Job Functions The official state of Florida position description for the CPI position provides the following overview of the job: “This is professional work protecting children, working with families and conducting investigations of alleged abused, abandoned, neglected or exploited children.” (R. Exh. 2). The job description sets forth a long list of CPI duties and responsibilities necessary to carry out that overall function, including the following (among others): Collects information through interviews with the children, parents, relatives, neighbors, and other parties associated with the case; Engages families, identifies needs and determines the level of intervention needed to include voluntary services or court ordered dependency services; Conducts initial/ongoing child Present and Impending Danger assessments; Develops with the family a signed Present Danger Plan and a signed safety plan for any identified threats and interventions; Arranges emergency placement for any child that cannot safely remain at home; Prepares appropriate reports/documentation in coordination with Children’s Legal Services and provides testimony in court; Maintains thorough documentation in client records/appropriate information system(s) and maintains organized client files. The official job description also identifies chapter 39, Florida Statutes, as the statutory chapter that establishes or defines the work performed in the CPI position. Statutes in this chapter, such as section 39.301, elaborate on the requirements for conducting child protective investigations when allegations of child abuse, neglect, abandonment, or exploitation are made to the central abuse hotline and referred to DCF. The statutes governing child protective investigations, along with DCF implementing rules and internal operating procedures, provide for strict time requirements for promptly initiating investigations when new cases are referred from the central abuse hotline, identifying and interviewing witnesses, assessing danger, developing plans to address dangerous situations and to ensure child safety, monitoring plans, marshalling community resources, and ultimately, completing and closing the investigation within an outside limit of 60 days in all cases. Only two exceptions are provided in the statute to the strict 60-day case closure deadline: when there is an active concurrent criminal investigation that would be compromised; or in child death cases when the medical examiner’s final report is necessary but not received within 60 days. See § 39.301(16), Fla. Stat. In short, as well described by Respondent’s witnesses, from Petitioner’s supervisor on up the chain of command through the DCF deputy regional managing director for Miami-Dade and Monroe Counties, timely and thorough performance and documentation of all of the critical steps of child protective investigations described above are essential to ensure the safety and well-being of Florida’s children. A misstep, a delayed step, or a step taken but not thoroughly documented could result in harm (or worse) perpetrated on a vulnerable child, which might otherwise have been prevented. The CPI job is not an easy one; it is a difficult, demanding job with no leeway for sliding on deadlines or cutting corners on job performance. The official CPI job description specifies that on-call duty is required. New case reports from the central abuse registry that require child protective investigations can arise at any time of the day or night. Depending on the nature of the case, the assigned CPI will be required to make first contact with the child either immediately or, at the outside, within 24 hours. Since the DCF offices are only open eight hours per day, five days per week, the rest of the hours--nights and weekends-- have to be covered by at least one on-call investigator and one on-call supervisor, so that cases can be opened and the investigation process started. On-call CPI duty is rotated; on average, a CPI is expected to take on-call duty one night of the week and one weekend per month. Another essential function of the CPI position is to become proficient using the Florida Safe Families Network (FSFN) computer system, which is a central system used by the central abuse registry to submit new case reports to the appropriate DCF office, and by DCF to document every aspect of an investigation, from inception to closure. Use of the FSFN system is specifically incorporated in the requirements for child protective investigations set forth in Florida Administrative Code Chapter 65C-29. See, e.g., Fla. Admin. Code R. 65C- 29.003(1)(a) (requiring documentation in FSFN of a CPI’s rationale for downgrading an “immediate response” case to a “24- hour response” case). Training in the use of the FSFN system begins in the 10- to 12-week CPI training course required to obtain provisional CPI certification. Thereafter, FSFN proficiency is gained through on-the-job use. New CPIs may initially need some assistance from more seasoned CPIs in their offices and/or from their supervisor until they learn all aspects of the system, but the FSFN system is not considered difficult to master and it should not take long for new CPIs to learn to the point of not requiring assistance. Another essential job requirement for the CPI position, according to the official position description, is a valid driver’s license. In conducting investigations, CPIs must be able to quickly and independently navigate from the DCF office to the homes of the subjects of an abuse report, to other homes and businesses to interview witnesses and conduct inspections, to schools where children to be interviewed might be found, to court when necessary to offer testimony, and other places. Petitioner’s Undisclosed Stroke Episode According to Petitioner, on July 31, 2014, while Petitioner was in Miami in the early weeks of his CPI training, he woke up feeling strange and stiff. However, he was able to go to his training course. When he arrived, a classmate allegedly asked Petitioner if he was feeling okay. Petitioner remained in class for the day’s training session. After class, the same classmate allegedly said that Petitioner should go to the hospital to get checked out. Petitioner said that after some resistance, he agreed and allowed the classmate to take him to an emergency room. The classmate did not testify at hearing. Petitioner testified that his classmate waited with him at the emergency room for a short time, then left. Petitioner remained alone at the emergency room for about six and one-half hours without being seen by a physician. At that point, Petitioner was feeling better and was unwilling to wait any longer, so he had his son take him to his brother’s home where Petitioner stayed when attending the Miami training sessions. The next day (Friday, August 1, 2014), Petitioner still felt stiff, but well enough to attend the day’s training session. After the training, he drove from Miami to Port Orange, where his wife lived. (He had only recently relocated to Key West to begin his new OPS job, and his wife had not yet joined him there.) Petitioner said that his wife wanted to take him to the hospital to be checked out upon his arrival Friday evening, because she did not think he looked good (after a day’s training followed by a long drive). Petitioner “dismissed her concerns” (Tr. 40), and stayed home that night. The next day--two full days after Petitioner woke up feeling strange and stiff--his wife repeated her request that he get checked, and this time he agreed. Petitioner went to an emergency room and was subsequently admitted to the hospital from Saturday afternoon to Monday afternoon for testing. Petitioner said that he was informed by the doctor that the test results indicated that he had had two strokes, one affecting each frontal lobe of his brain. No documentation of this hospital stay, the test results, or the diagnosis was offered in evidence. From the hospital, Petitioner called his direct supervisor, Karen Gibson, the child protective investigator supervisor (CPIS) for the Key West office. Petitioner told her that he was in the hospital because of diabetes, explaining that he had not been following his diet and had let himself get out of control. He did not ask for any accommodation for the diabetic condition (indeed, it is unknown whether Petitioner actually has or had diabetes, as no evidence was offered on that subject). Instead, Petitioner assured his supervisor he would be able to return to work and training right away. According to Petitioner, it was Ms. Gibson who told him to take some time off. She said that he should not return to Key West Monday or Tuesday, but rather, he should go straight to Miami on Wednesday to resume training. He did as she suggested.2/ Petitioner admits that he did not tell Ms. Gibson in the beginning of August 2014, or for many months thereafter, that he had been diagnosed with having had two strokes. Petitioner did not deny Ms. Gibson’s testimony that he had told her he was in the hospital due to diabetes. Petitioner acknowledges that it was his choice to not disclose the truth about the hospital stay. It was not until Petitioner had been counseled repeatedly by Ms. Gibson for not properly performing his CPI duties, and after he had been told that if he could not perform his duties he would not be able to keep the job, that Petitioner disclosed that he had had a stroke. No medical information was provided to Ms. Gibson, nor was any offered at hearing, to illuminate Petitioner’s condition in August 2014 or at any time thereafter while he was employed by Respondent. It is unknown whether Petitioner’s description of what he was told by a doctor in August 2014 is accurate.3/ Petitioner failed to prove, other than in the most general anecdotal way, the nature or extent of his condition in August 2014 or thereafter while employed by Respondent. It is unknown whether the strokes he said he was told about were considered minor, severe, or somewhere in between; what sort of medical professional(s) Petitioner saw and how frequently; what medication was prescribed for Petitioner for what purpose; what specific symptoms were attributed by such medical professional(s) to his July 31, 2014, episode; what sort of treatment or therapy may have been recommended by any such professional(s); and how the medical professional(s) have described Petitioner’s prognosis then or at any time since then.4/ What is known about Petitioner’s condition following the undisclosed stroke incident is that after Petitioner took the extra one or two days off as Ms. Gibson suggested, Petitioner was able to return to a full schedule of training in Miami, plus working two days per week in Key West, for the rest of August and September 2014. There is no evidence that Petitioner expressed any concerns about his physical or mental health, or experienced any health problems that interfered with his ability to work, to participate and learn in training sessions, and to frequently drive back and forth between Miami and Key West. Petitioner successfully completed his CPI training on September 26, 2014, and he took and passed the test to obtain provisional CPI certification. With the training and provisional CPI certification, Petitioner qualified for a career service CPI position with probationary status. He was offered that position and accepted. He was transferred into the position on October 3, 2014, marking the beginning of his one-year probation. Petitioner’s Job Performance Petitioner was eased into his new CPI position with a lot of direct supervision by CPIS Gibson and assistance from the other CPIs working in the Key West office. Although Petitioner was eligible to receive new case assignments upon obtaining his provisional CPI certification, as a matter of course with all new CPIs, Petitioner’s supervisor would assign fewer cases at first, direct the more difficult cases to other CPIs for at least the first month or two, and staff cases so that new CPIs would be working on their cases along with other CPIs to the extent possible. She did this for Petitioner, so that at first, he had a lower volume of easier cases on which other CPIs assisted him.5/ He was also not immediately put into the on-call rotation, taking his first on- call assignment on a weekend late in December 2014. Petitioner’s performance on individual cases was documented in FSFN entries in the individual case files. At defined stages of an investigation, the progress would be reviewed by the CPIS, who would discuss the case with the CPI and issue or revise supervisory directives to identify tasks that the CPI needed to accomplish in the investigation. These benchmark points included: initial intake assessment performed by the CPI within 48 hours of case assignment and submitted to the supervisor for the initial supervisory review; case update submitted by the CPI after 30 days for the supervisory 30-day review; and investigation completed by the CPI and submitted to the supervisor for closure after 45 days. These supervisory reviews were documented in the FSFN case file by the CPIS. As an example in evidence, an excerpt of the FSFN chronological notes report for one investigation assigned to Petitioner contains a summary entered by Petitioner’s supervisor on October 31, 2014, documenting the initial supervisory review. Supervisory directives to Petitioner were listed as items that “CPI needs to” do, including requesting law enforcement calls to the home and requesting medical records from the hospital where the 14-year-old child had been admitted under the Baker Act. In a follow-up note on review of the investigation submitted for 45-day closure, Ms. Gibson set forth a list of items that Petitioner still needed to do, including documenting the law enforcement calls to the home that he was to have requested as a result of the initial supervisory review. In another follow-up note on December 24, 2014, Ms. Gibson reported that she had to request the hospital records for the 14-year-old’s Baker Act stay, because “CPI Rosado had previously requested from incorrect hospital.” (R. Exh. 1 at 4). FSFN notes from other individual case files reflect other issues of concern with Petitioner’s performance as a CPI. In one investigation of a three-year old child with a burn mark, the initial supervisory review notes entered by Ms. Gibson on December 22, 2014, reported that the mother has two children, ages three and one, by two fathers, and that she recently separated from the youngest child’s father and began living with her current paramour. Supervisory directives to Petitioner included: requesting medical collateral documentation; interviewing the boyfriend separate from the mother; interviewing both fathers and, if the children go to their homes, visiting the fathers’ homes; and attempting a collateral interview with a maternal relative. On January 23, 2015, the 30-day supervisory review notes entered by Ms. Gibson reported that Petitioner still needed to interview both fathers, document observations of both fathers’ homes, request medical collateral documentation for the children and upload the records to FSFN, and attempt a collateral interview with a maternal relative. Pointing out that there was not much time to accomplish these directives (many of which remained undone for over 30 days), the entry noted that the investigation was due to be submitted for closure on February 6, 2015. On February 1, 2015, Ms. Gibson completed an entry reporting that Petitioner submitted the investigation for 45-day closure, but the investigation was incomplete and recalled, because “CPI has not completed prior supervisory directives in first and 30-day reviews.” (R. Exh. 1 at 18). Several other examples were shown in the FSFN notes of investigations submitted by Petitioner for closure, but which were incomplete and recalled. Petitioner admitted what is documented in the records of his investigations: that he had problems meeting the time frames imposed for completing the investigations, and that he had problems completing and documenting all of the supervisory directives. FSFN notes of other investigations show that Petitioner did not thoroughly document the investigative steps he did complete. Instead, in supervisory reviews, Petitioner frequently had to be asked to upload documents he had collected, to document that he accomplished certain supervisory directives, to clarify his interview summaries, and to clarify whether he had asked certain questions germane to the specific case. A particular problem in this regard was Petitioner’s inability to hone in on the critical information needed to assess the child’s safety, when conducting and summarizing interviews and providing back-up documentation in the FSFN case files. As Petitioner’s supervisor credibly described the problem, Petitioner would amass a lot of information in the course of his investigations, but not necessarily the information needed to assess the child’s safety in light of the allegations to be investigated. One FSFN note of particular concern documented a 30-day supervisory review of an investigation assigned to Petitioner. The intake was received on January 4, 2015, for investigation of a child’s safety. Both the mother and stepfather were arrested for domestic violence. Petitioner had developed a safety plan, meaning that he determined that the plan was necessary to ensure the child’s safety. The safety plan, signed by the mother only, indicated that the stepfather would not return home. Petitioner discussed the safety plan with the stepfather, but did not ask him to sign it. Of greatest concern was the note that as of the 30-day review, Petitioner had not worked on the case since the initial supervisory review, had not monitored the safety plan, could not report as to the family’s circumstances or safety plan compliance, and had not been back to the home. Ms. Gibson noted that she counseled Petitioner regarding the importance of monitoring safety plans. She added that Petitioner still needed to complete the initial supervisory directives issued in January. Petitioner’s supervisor testified credibly that the foregoing example was symptomatic of Petitioner’s overall inability to effectively manage his cases. He did not demonstrate good choices in prioritizing his tasks within a case or among his cases. Examples such as the foregoing one in which a case that required a safety plan to ensure the child’s safety was left dormant by Petitioner for 30 days demonstrate that it is a matter of sheer fortuity that there were not dramatic, tragic consequences from Petitioner’s failure to properly perform his duties as a CPI. At hearing, Petitioner acknowledged his performance problems. He was well aware that when he was a CPI, he was having problems meeting case deadlines, completing the necessary tasks for each investigation by those case deadlines, and completing the supervisory directives in his cases. He was well aware that cases he submitted for closure were being recalled to him because they were not ready for closure. Indeed, all of these performance problems were repeatedly called to Petitioner’s attention in supervisory case reviews, as documented in the FSFN case files. In addition to these investigation-specific problems of not meeting the time frames necessary to complete investigations for timely closure, not completing specific supervisory directives, not documenting what was done, not uploading documentation collected, and not clearly summarizing interviews and information, Petitioner had trouble learning how to use FSFN. Some learning-curve time is to be expected to master all of the mechanics of logging in, checking for new cases referred by the central abuse hotline, creating a new case file, entering interview summaries, reviewing existing case files for information entered in supervisory reviews or by other CPIs working on the investigation, uploading documents such as medical records and signed safety plans, and similar tasks. However, Petitioner’s supervisor credibly testified that after allowing for reasonable learning-curve time, Petitioner was still not catching on and was not showing any signs of progress. Instead, he required constant help from her and from other CPIs to perform even the most basic steps. He repeated the same requests for help and received the same instructions multiple times. As another CPI who worked with Petitioner in the Key West office described Petitioner’s difficulties with basic, everyday FSFN tasks, “He would ask for assistance and you would explain it to him and then a short time later or the next day he would ask the same question . . . as if he couldn’t remember to--how it was done.” (Tr. 327). Petitioner admitted that he had to be given the same instructions over and over by his supervisors because he could not remember the instructions previously given to him. He admitted that he asked the same questions and asked for assistance with the same tasks because he had problems remembering that he had been given those instructions before. As an example, Petitioner was assigned to on-call duty on the weekend of February 28, 2015. Although it was Petitioner’s third on-call duty experience, and although Petitioner had been working in his career service CPI position for five months, he could not remember how to check the FSFN new case screen for referrals from the central abuse registry. He had to ask for help from another on-call CPI, who walked him through the process to check the new case screen, accept the new case that was waiting, and open a new investigation file. The other worker had to give Petitioner advice to review the new case with the on-call supervisor. Petitioner went in to see Ms. Gibson, and even though he had just been walked through the process, Petitioner had to ask Ms. Gibson to show him how to access the new case file. He told her he was embarrassed to have to ask again. At hearing, Petitioner admitted that he had to repeatedly ask for assistance when using FSFN because he had trouble remembering how to use the system. Petitioner’s Disclosure Even before the on-call problem on February 28, 2015, Petitioner’s supervisor had discussions with her supervisor, Program Administrator Amy Baldree, regarding dissatisfaction with Petitioner’s performance, despite the repeated counseling and directives evident from the FSFN case notes discussed above. Ms. Gibson candidly acknowledged that “at this point [mid-February 2015] we were trying to move towards termination with Mr. Rosado.” (Tr. 131). She was told that she needed to document her counseling of Petitioner. Although there was documentation of counseling in the FSFN notes for individual cases, Ms. Gibson admitted that she had not prepared any probationary progress reviews for Petitioner. According to Respondent’s employee relations coordinator, ideally supervisors complete probationary progress reviews monthly for CPIs during their one year on probation. Ms. Gibson proceeded to complete probationary progress review forms for Petitioner for the months of December 2014, January 2015, and February 2015. The completed evaluation forms were all presented to Petitioner and signed by Ms. Gibson and Petitioner on the same day, February 23, 2015.6/ Although it would have been better practice for each of these progress reviews to have been prepared and presented to Petitioner close to the time period addressed in each review, Ms. Gibson credibly explained that nothing written in the three months of progress reviews was new to Petitioner. Instead, the review forms contain samplings of the same types of performance problems that she had been discussing repeatedly with Petitioner in supervisory reviews of individual cases assigned to him. Her explanation is supported by the FSFN individual case notes.7/ According to Petitioner, he responded to the performance reviews by disclosing to Ms. Gibson on February 23, 2015, one week before he was terminated, that he had suffered two strokes, as if to explain his performance issues. He claims that Ms. Gibson’s comment was that he just needed to work faster if he wanted to keep his job. Ms. Gibson acknowledged that at some point close in time to the February 23, 2015, performance review discussion, and shortly before Petitioner was terminated, Petitioner disclosed to her that he had had a stroke (one, not two). However, she recalled the conversation differently. According to Ms. Gibson, she and Petitioner were having one of their periodic discussions about performance problems, such as missing deadlines or failing to complete supervisory directives, and he acknowledged that he was having difficulty remembering things. Her response was that he could not stay in the CPI position unless he could perform his duties and remember his directives and responsibilities. It was at that point that he said that he guessed he had to tell her that he had a stroke. Ms. Baldree was present when Ms. Gibson presented the performance reviews to Petitioner on February 23, 2015. She testified that Petitioner asked her whether Ms. Gibson had told her that he had had a stroke recently. She said yes, and Petitioner responded that he just wanted to make sure she was aware. She asked him how he was doing and he said, “Fine. I’m seeing a doctor.” That was the end of the conversation. Regardless of how or exactly when Petitioner finally disclosed to his supervisors the fact that he had had a stroke or two strokes (not so recently, but rather, nearly seven months before his disclosure), the evidence establishes that Petitioner was unable to perform the essential functions of his job. Petitioner admitted as much. Petitioner acknowledges that he never requested a specific accommodation to enable him to perform his job. Petitioner seemed to suggest that if only he had been told to take a leave of absence, he could have undergone rehabilitation and gotten better. However, he never asked for days off, much less any extended leave of absence, so that he could undergo rehabilitation. Petitioner testified that while he was employed with Respondent, he had an insurance policy that he had obtained through the state. Although the policy was not offered in evidence, it was described in terms that sounded like short-term disability insurance (which would have been made available for Petitioner to purchase, but was not a benefit actually provided by DCF). Petitioner contends that he should have been allowed to take time off using that insurance policy to receive income while not working. However, Petitioner admitted that he never asked to take time off. Moreover, he never submitted a claim under the short-term disability policy, because he said he did not know he could (and whether he could have or not is unknown, as there is no record evidence to answer that question). Petitioner testified that he never asked for any accommodation because he was afraid to ask for an accommodation while a probationary employee. Alternatively, and somewhat inconsistently, he also testified that he did not ask for a specific accommodation because he thought his supervisors would know what he needed and would refer him to the right place for assistance. At hearing, Petitioner was unable to identify any specific accommodation that would have enabled him to perform the essential functions of his CPI position. The best he could offer was that he should have been allowed to go slower, or should have been assigned a full-time mentor to work with him every day to slowly explain to him how to do his job, since he believes his main performance problem was that he could not complete investigations quickly enough. However, the fast time lines for moving forward on investigations, with the interim supervisory reviews and benchmarks, are essential to the job because of the statutorily-mandated investigation closure deadline. Petitioner’s Termination Ms. Gibson and Ms. Baldree discussed their concerns about Petitioner’s performance with the DCF employee relations coordinator, Ranjana Bhandari, and they offered their view that Petitioner’s employment should be terminated. Ms. Bhandari reviewed the three probationary progress reviews, and asked for additional documentation. Ms. Gibson and Ms. Baldree prepared a memorandum providing more detail regarding the history of performance problems since Petitioner was transferred into the career service CPI position, the additional instruction and oversight provided to Petitioner because of his inability to perform his duties without constant assistance, the lack of improvement, and the constant counseling that had been provided to him to impress upon him the importance of meeting the deadlines for investigations and carrying out supervisory directives. Additional specific examples of performance problems were provided in the memo. One such example was a recent investigation involving three children, with allegations of sexual abuse. The case was initially assigned to Petitioner on January 30, 2015. Ms. Gibson asked another CPI, Mr. Quinones, to go with Petitioner to interview the children, and they did so on a Friday at the children’s school. The next Monday, Ms. Gibson asked Petitioner about the case, which she identified by name. Petitioner did not recognize the name. Ms. Gibson added details: “You know--the sexual abuse case with the three African American children you interviewed at [name of school] on Friday?” Petitioner responded with a blank look; he had no recollection of the case. Ms. Gibson reassigned the case to another CPI. Another more recent example was provided, in which Petitioner was assigned a new case on February 18, 2015, and he told Ms. Gibson he planned to see the children at school the next day. The next day, after the 24-hour response deadline had passed, Ms. Gibson asked him about the case, and he responded that he had not yet seen the children because he had gone out on another investigation that Ms. Gibson determined was not as high a priority as meeting the 24-hour deadline in the new case. Not only was he late seeing the children for the first time in the new case, but he was also late finishing the child safety assessment for those same children. Bringing the performance report completely current, among other examples detailed in the memo, Ms. Gibson and Ms. Baldree recounted Petitioner’s continued FSFN failures that hampered his performance of his on-call duty over the weekend of February 28, 2015. Ms. Bhandari reviewed the memorandum and determined that the documentation was sufficient and supported the recommendation that Petitioner be terminated because of his demonstrated inability to perform the duties of a CPI. Ms. Bhandari did not know about Petitioner’s recent disclosure of his stroke episode seven months earlier. Ms. Bhandari did not know Petitioner’s age. Rosa Baez also reviewed the documentation supporting the proposed termination of Petitioner’s employment. At the time, Ms. Baez was a family and community services director who oversaw DCF programs, including child protective investigations. Her role was to review the reasons why the program administrator and the employee’s supervisor were recommending termination, and unless she disagreed with the recommendation, she would let the process go forward. After reviewing the documentation regarding Petitioner’s performance provided by Ms. Bhandari, she did not disagree with the proposed termination, since child safety was an issue. Ms. Baez did not know about Petitioner’s recent disclosure of a stroke episode seven months earlier, nor did she know Petitioner’s age; there was nothing in the memo or progress reviews regarding either subject. The documentation and recommendations were provided to Gilda Ferradaz, the deputy regional managing director, who made decisions on proposed dismissals of probationary employees. She reviewed the material and made the decision to terminate Petitioner’s employment, signing the letter informing Petitioner of that decision. She explained the basis for her decision: [T]his was a probationary employee in a child protective investigation role. This work is very critical work; it is very detail- oriented. We have to make sure that the staff we have working have--are fully grasping all of the responsibilities of this position, making sure all of the assessments are fully done, all of the appropriate people are interviewed, and that decisions are made based on all of the information available to make sure that children aren’t at risk. And it seemed that this employee was not able to grasp the scope of responsibility for this critical position. (Tr. 305). Ms. Gibson and Ms. Baldree met with Petitioner on March 2, 2015, to deliver the termination letter signed by Ms. Ferradaz. Petitioner signed the letter to acknowledge that he received it. Petitioner testified that when he was presented with the termination letter on March 2, 2015, he asked Ms. Gibson and Ms. Baldree whether they could extend the same courtesy that they provided to former CPI Jeffrey Qualls, by demoting him to another position instead of terminating him. Contrary to Petitioner’s testimony, both Ms. Gibson and Ms. Baldree denied that Petitioner made any such request. There is nothing in writing to substantiate Petitioner’s claim that he asked to be treated the same as Mr. Qualls.8/ Even if Petitioner had requested a demotion, Petitioner offered no proof that there was a vacant position available for him at the time. Instead, Petitioner admitted that he does not know if there was any position available at the time to which he could have been demoted. The only evidence on the subject was Ms. Baldree’s testimony that, in fact, there was no open position at the time to which Petitioner could have been demoted. As program administrator, she would be in a position to know or to research that question when Petitioner’s claim was made known during this proceeding (such as in his deposition). Even if Petitioner had proven that there was an available lower-level position at the time of his termination, Petitioner’s own testimony raises considerable doubt as to whether Petitioner was capable of working at all in any kind of DCF position had one been available. Petitioner was asked about the efforts he made to find another job after he was fired. Petitioner responded: “I was not able to make--have any efforts to look for other employment because of my mental health status. . . . I didn’t feel I was able to perform a job with the residual effects from the two strokes I was having.” (Tr. 64). Petitioner added that although he was not looking for work, during the spring of 2015 after he moved to Tarpon Springs, he agreed to work part-time at Old McMicky’s Farm, a children’s farm in Odessa. His job was to lead groups of children on a walking tour of six or seven stations. Multiple tours would be conducted at the same time, with other groups led by other employees. To evenly distribute the tour groups among the stations, each tour leader was required to lead his or her group through the stations in a certain order, and the assigned order would change depending on the number of tour groups. Petitioner was terminated from the job after a few weeks, because he could not remember the order of the stations to which he was supposed to lead his group, and he would sometimes skip a station or two. Petitioner explained that the reason he took the job at Old McMicky’s Farm was: “I wanted to get my feet wet and see if I could do a job. It turned out that even though [the job involved] most[ly] menial tasks, I was failing at it.” (Tr. 90). Petitioner has not attempted work since then. For purposes of pursuing his charge of discrimination on the basis of a disability, Petitioner was required to submit to FCHR either medical records to prove a disability or a completed medical certification form. After receiving an extension of the deadline, Petitioner submitted a medical certification form completed on July 5, 2016, by a doctor identifying himself or herself as having a specialty in the area of neurology. The doctor checked the “yes” box in answer to the question asking whether he/she is the complainant’s treating medical professional with knowledge of the complainant’s medical condition and history. No details were provided. Also answered yes was the question asking whether the complainant has a physical or mental impairment that substantially limits one or more major life activities. On the following pages, the doctor identified those life activities as seeing (sufficiently to perform daily functions/general hygiene), learning (“has a hard time learning new things, memory affects this”), performing manual tasks (“drops things with right hand”), speaking (“when tired has slurred speech”), and walking (“loses balance easily, stumbles, falls”). (R. Exh. 7). This form was accepted by FCHR. Although for purposes of this hearing, the completed form is hearsay, it does lend some credence to the notion that Petitioner has a disabling condition (at least as of July 2016). Petitioner said that over time, he has gotten worse. He testified that he is hardly able to drive now, and his memory is worse--he is not able to remember his street address. Claimed Damages Petitioner did not prove the existence or amount of damages caused by the claimed unlawful employment practice. Petitioner testified that he was seeking one year’s salary and benefits as back pay. However, Petitioner’s own testimony establishes that he was unable to perform the CPI duties, or any job duties, in the year after he was terminated. If Petitioner had been able to work but simply chose not to, then he would have failed to mitigate damages by not looking for another job--but he said that he was completely unable to work. Petitioner’s inability to work in even a less demanding job with menial duties is demonstrated by his failed experience working at Old McMicky’s Farm only a month or so after he was terminated. Petitioner cannot claim compensatory damages for income lost by reason of having been terminated when he admits that he was unable to do any kind of work. Petitioner alluded to other damages, such as moving expenses, but he offered no evidence to prove what his actual expenses were in any of these areas of claimed loss. Ultimate Facts Accepting Petitioner’s marginal showing that he was, at the relevant time, a person with a disability, Petitioner failed to prove that he was qualified to perform the essential functions of the CPI position, with or without accommodation. Instead, the evidence established that Petitioner was unable to perform the essential functions of a CPI, with or without accommodation. Petitioner never requested a specific accommodation to enable him to perform his duties as a CPI. Petitioner failed to prove that there was any reasonable accommodation he could have requested that would have enabled him to perform the essential functions of his job. Respondent offered a legitimate non-discriminatory reason for terminating Petitioner’s employment. Beyond just articulating a reason, Respondent proved that Petitioner’s employment was terminated based on well-documented performance problems in virtually all essential areas of the CPI position, and not as a pretext for unlawful discrimination. Petitioner failed to prove that Respondent intentionally discriminated against Petitioner because of his disability. Petitioner did not prove that there was any similarly situated person who was not disabled and who was treated more favorably than Petitioner. Petitioner failed to prove that Respondent intentionally discriminated against Petitioner because of his age. Indeed, the record is devoid of any evidence, circumstantial or otherwise, directed to Petitioner’s charge of age discrimination. Petitioner did not prove that there was any similarly situated person of a different age than Petitioner and who was treated more favorably than Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petition for Relief filed by Petitioner, Luis Rosado, III, be DISMISSED. DONE AND ENTERED this 15th day of March, 2017, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 2017.
The Issue May Petitioner proceed to a hearing on the merits of her charge of employment discrimination or does the untimeliness of her Petition for Relief bar her claim?
Findings Of Fact On March 10, 1997, Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations (Commission), alleging that Respondent Department of State had discriminated against her because of her race (Black) when it had discharged her on October 1, 1996. The Commission concluded its investigation into the matter, and on January 31, 2000, the Commission issued its "Determination: No Cause." A "Notice of Determination: No Cause" was mailed by the Commission to Petitioner on January 31, 2000. It contained the following statements: Complainant may request an administrative hearing by filing a PETITION FOR RELIEF within 35 days of the date of this NOTICE OF
Recommendation Upon 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 Petition for Relief in this cause. DONE AND ENTERED this 24th day of July, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. 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 July, 2000.
Conclusions Having reviewed the administrative complaint dated November 23, 2010, attached hereto and incorporated herein, Exhibit 1, and all other matters of record, the Agency for Health Care Administration (hereinafter “Agency”) has entered into a Settlement Agreement, Exhibit 2, with the parties to these proceedings, and being otherwise well-advised in the premises, finds and concludes as follows: It is ORDERED: 1. The attached Settlement Agreement is approved and adopted as part of this Final Order, and the parties are directed to comply with the terms of the Settlement Agreement. 2. Respondent shall pay, within thirty (30) days of the date of rendition of this Order, an administrative assessment in the sum of five thousand dollars ($5,000.00). 3. Checks should be made payable to the “Agency for Health Care Filed May 9, 2011 4:10 PM Division of Administrative Hearings Administration.” The check, along with a reference to this case number, should be sent directly to: Agency for Health Care Administration Office of Finance and Accounting Revenue Management Unit 2727 Mahan Drive, MS #14 Tallahassee, Florida 32308 4. Unpaid amounts pursuant to this Order will be subject to statutory interest and may be collected by all methods legally available. 5. The licensure status of Respondent is hereby determined to be Conditional commencing June 3, 2010 and ending June 24, 2010. 6. The Respondent’s request for an Administrative proceeding is hereby withdrawn. 7. Each party shall bear its own costs and attorney’s fees. 8. The above-styled case is hereby closed. DONE and ORDERED this 4 day of hy “G , 2011, in Tallahassee, Leon County, Fiorid A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW OF PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: R. Davis Thomas, Jr., Esq. Health Care Navigator, LLC 2 North Palafox Street Pensacola, FL 32502 Suzanne Suarez Hurley Senior Attorney Agency for Health Care Administration 525 Mirror Lake Drive N. #330H (U.S. Mail) St. Petersburg, Florida 33701 Interoffice Mail j2n Mills Agency for Health Care Administration Agency for Health Care Admin. Office of Finance and Accounting 2727 Mahan Drive, Bldg #3, MS #3 Tallahassee, Florida 32308 (Interoffice Mail) Revenue Management Unit 2727 Mahan Drive, MS #14 Tallahassee, Florida 32308 Interoffice Mail Barbara J. Staros Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Interoffice Mail CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this Final Order was served on the above-named person(s) and entities by U.S. Mail, or the _-— method designated, on this the g day of , 2011. Richard Shoop, Agency~€lerk Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 412-3630
The Issue The issue is whether Respondent is guilty of violating the Florida Civil Rights Act of 1992, as amended, as alleged in the Petition for Relief.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This proceeding involves an age discrimination complaint filed with the Florida Commission on Human Relations (Commission) by Petitioner, Michael A. Demchak. The complaint alleges that Respondent, City of Ormond Beach (City), unlawfully refused to hire him on account of his age. In a preliminary determination made on June 11, 2002, the Commission's Executive Director concluded that there was no reasonable cause to believe that an unlawful employment practice had occurred. Mr. Demchak is a white male born on July 16, 1935. He worked as a police officer with the City of New York for twenty years (1957-1977); as a counselor and employment developer (1985-1986) and supervisor (1993-1997) with Daytona Beach Community College; as an investigator with the State Attorney's Office in Daytona Beach for an undisclosed period of time; and as a substitute teacher with the Volusia County School District (1988 and 1989). In addition, Mr. Demchak served for two years in the United States Army, having received an honorable discharge in 1956. He has also been a licensed real estate salesperson in the State of Florida for over twenty-five years, and has worked in that profession, at least part time, for many years. For the last four years, Mr. Demchak has been employed by Prudential Real Estate in Daytona Beach selling real estate. His specific income from that job since filing his complaint was not disclosed, but he described it as being not "very good" and only a "few thousand dollars." He received a B.A. in Management from Adelphi University in 1976. In 2001, the City reorganized its Code Enforcement function and created in lieu thereof a new Community Improvement Division (Division). The purpose of the change was to give the new department a "kinder, gentler name for the public," to focus less on the writing of citations, and to provide instead a more customer-oriented service for its citizens. Prior to the change, the City had emphasized enforcement activities rather than assisting the citizens in complying with code regulations. Joanne Naumann, who had some thirty years' experience in code enforcement, mainly in Orange County, was named its manager. At the same time, the City created at least one position in the new Division, a Neighborhood Improvement Officer. In late January or early February 2001, the vacant position was advertised in the Daytona Beach News Journal. According to the advertisement, the position's primary duties included "inspecting properties and developments for compliance with Land Development Code, City Ordinances, and State Statutes." Minimum qualifications included a Bachelor's degree in Public Administration or related field. The City also desired someone with "[s]ome experience in interpreting regulations related to zoning and other codes, [and] [k]nowledge of state and local environmental protection standards and regulations." Having read the foregoing newspaper advertisement, by application dated February 12, 2001, Mr. Demchak applied for the new position with the City. He was then sixty-five years of age and was one of around twelve applicants for the job. All applications were forwarded to Ms. Naumann for a preliminary review. Eight of the applicants, including Mr. Demchak, were selected by Ms. Naumann for a 30-minute initial interview, although one of the eight declined to be interviewed. There was no "favorite" candidate for the job, and the City did not have a particular candidate in mind when the applications were filed. Ms. Naumann and the City's director of the Human Resources Department, Lorenda Volker, conducted these interviews, although Ms. Naumann made the ultimate recommendation for hiring. Neither interviewer knew any of the candidates personally. Each of the seven candidates was asked the same questions, and the two interviewers recorded the candidates' answers on an Interview Questionnaire. The interviewers' impressions of the candidates, however, were not recorded on that document. This same process was used by the City for filling virtually all of its job vacancies. Both Ms. Naumann and Ms. Volker independently reached the same conclusions regarding Petitioner: that he was "brash"; that he was "arrogant"; that he was "authoritative"; that he was "evasive" in his answers; and that he had a "know it all" attitude. Both interviewers were also unhappy with what they perceived to be an unsolicited sexist comment made by Mr. Demchak at the end of the interview. While Ms. Naumann agreed that Mr. Demchak had extensive work experience listed on his application (which was why he was selected for an interview), she desired someone who could "reach out to the community" rather than taking a "heavy-handed" position with the citizens. This was consistent with the City's desire to create a more customer-oriented department rather than an authoritarian department which existed prior to the organizational change. Indeed, without good customer skills, an applicant would be rejected, and neither interviewer perceived Mr. Demchak as having those skills. After the initial round of interviews, the interviewers narrowed the field to four candidates who were invited for a second round of interviews by Ms. Naumann alone. For the reasons described in Finding of Fact 8, Petitioner was not asked to participate in this round of interviews. The four candidates were then ranked, based on the outcome of their respective interviews. After the highest ranked candidate accepted another position, and the second ranked candidate could not pass a background check, the position was offered to, and accepted by, the third ranked candidate, Joshua A. Wall, then a 28-year-old white male. The age of the other three ranked candidates is not of record. Mr. Wall graduated from Florida State University in 1996 with a degree in criminology. After graduation and until he accepted this position, he was employed at a golf club in the City as a proshop assistant and sales clerk. He was hired because of his good demeanor, his outstanding customer service skills, and his ability to coordinate activities, all of which were required for the position of Neighborhood Improvement Officer. In addition, he possessed a degree in criminology. Since being hired, Mr. Wall has done an "excellent" job for the City. In choosing Mr. Wall, the City did not consider age as a criterion, and it did not reject Petitioner's application for that or any other discriminatory reason. In fact, the City employment records show that in the same year that Petitioner applied for the job, the City hired at least eleven persons who were fifty years of age or older, and almost half of its new employees that year were more than forty years of age. Although the City later advertised a second Neighborhood Improvement Officer vacancy, Mr. Demchak did not apply for that position. A person "approximately 50 years old" was eventually selected for the job. Petitioner contended at hearing that even though the application did not ask for the candidate's age, the interviewers obviously knew his age by merely examining the documents attached to his application, and that they then used his age as a basis for his rejection. The evidence shows otherwise, however. He also contended that the interviewers were "disinterested" during the interview, that they were biased in their selection process, and that they concocted their negative impressions of him only after he filed his discrimination complaint. There is no credible evidence to support these contentions. Mr. Demchak further denied that he made a sexist comment during the interview, and he contended that his comments were misconstrued. However, both interviewers were offended by the statement. Finally, Petitioner criticized the impartiality of the Commission investigator who conducted the investigation of his complaint prior to its referral to the Division of Administrative Hearings. Even if this were true, however, the Commission's investigative report has not been considered in the resolution of this case.
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 denying the Petition for Relief and finding that no unlawful employment practice has occurred. DONE AND ENTERED this 4th day of March, 2003, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER 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 4th day of March, 2003.
