00-004158 Lawrence James, Jr. vs. Alachua County Department Of Criminal Justice Service Status: Closed Recommended Order on Tuesday, September 18, 2001.

Summary: Petitioner did not bear his burden to establish a prima facie case with regard to his claims of racial, handicap, or retaliation discrimination, or, if so, has not been ultimately persuasive.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAWRENCE JAMES, JR., )

)

Petitioner, )

)

vs. ) Case No. 00-4158

)

ALACHUA COUNTY DEPARTMENT OF )

CRIMINAL JUSTICE SERVICE, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, a disputed-fact hearing was held on

March 5, 2001, and March 9, 2001, in Gainesville, Florida,

before Ella Jane P. Davis, a duly-assigned Administrative Law

Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner : Horace N. Moore, Sr., Esquire

235 South Main Street, Suite 101W

Post Office Box 2146

Gainesville, Florida 32602

For Respondent : Arnold B. Corsmeier, Esquire

Kelly Soude, Esquire

Thompson, Sizemore & Gonzalez

109 North Brush Street, Suite 200

Post Office Box 639

Tampa, Florida 33601

STATEMENT OF THE ISSUE

Whether Respondent em ployer is guilty of an unlawful

employment practice (discrimination under Section 760.10,

Florida Statutes) against Petitioner on the basis of his race

(Black/African-American), handicap, or retaliation, and if so,

what is the remedy?

Although cases arisi ng under the federal Americans With

Disabilities Act (ADA) may be instructive for interpreting and

applying the handicap provisions of Chapter 760, Florida

Statutes, Petitioner's claim under ADA and any allegations of

libel and slander are not within the jurisdiction of the

Division of Administrative Hearings.

PRELIMINARY STATEMENT

This cause was initiated by an April 13, 1998, charge 1

alleging discrimination upon the basis of race, disability, and

retaliation. The Florida Commission on Human Relations entered

a "Determination: No Cause," on August 15, 2000.

On or about September 21, 2000, a Petition for Relief was

filed with the Commission. The Commission transmitted the

Petition to the Division of Administrative Hearings on or about

October 6, 2000, for a hearing de novo , pursuant to Section

120.57(1), Florida Administrative Code.

After several requested continuances and a failure to reach

a joint pre-hearing stipulation, the disputed-fact hearing was

conducted on March 5, and March 9, 2001.

Because, contrary to the Order of Prehearing Instructions,

the parties had each pre-filed a number of potential exhibits,

they were cautioned at the commencement of the disputed-fact

hearing on March 5, 2001, that none of those pre-filed exhibits

had been, or would be considered, unless the exhibits were

marked, offered, and admitted in evidence, on the record.

Petitioner presented the oral testimony of Kim Baldry,

Benjamin Little, Otis Stover, George Babula, Ronald Foxx, Greg

Weeks, Alfred Dickerson, and Dr. Anthony Greene, and testified

on his own behalf. Petitioner's Exhibits 1, 2, 3, 4, 5, 6, 7,

8, 10, 11, 14, 15, 17, 18, 19, 20, 21, 22, 23, 25, 26, 28, 29,

30, 34, 36, 37, and 38 were admitted in evidence. Petitioner's

Exhibit 9 was the same as Respondent's Exhibit 21, and was not

admitted. Petitioner's Exhibit 27, was marked for

identification but not admitted.

Respondent presented the oral testimony of Kim Baldry and

had Respondent's Exhibits 19, 21, 25, 31, and 32 admitted in

evidence. Because Respondent's Exhibits 20 and 30 were the

same, only R-30 was admitted.

The Transcript herein was filed on April 26, 2001, and

Respondent timely filed its Proposed Recommended Order.

However, due to irregularities with the copies of the Transcript

which the Division and Petitioner received, Respondent

stipulated, and the undersigned entered an Order, that

Petitioner could file his Proposed Recommended Order on or

before July 2, 2001. Petitioner's Proposed Recommended Order

was filed timely under this arrangement and has been considered

simultaneously with Respondent's Proposed Recommended Order.

In making the following findings of fact concerning the

chronology of events between September 1996, and Petitioner's

termination, effective February 21, 1997, the undersigned has

made every effort to reconcile testimony and exhibits so that

each witness may be found to speak the truth, but where the

following Findings of Fact diverge from the construction of

events related by any witness(es), it is because a witness or

witnesses were not found entirely credible. In aid of clarity,

some references to specific exhibits have been included.

FINDINGS OF FACT

1. Petitioner, Lawrence James, Jr., is a Black/African-

American.

2. Respondent, The Alachua County Department of Cri minal

Justice Service, is an "employer" within the definition in

Section 760.02(7), Florida Statutes. Respondent operates the

Alachua County Jail. Respondent maintains a paramilitary

command, advancement, and ranking system for its employees.

3. Petiti oner began his employment with Respondent as a

Correctional Officer and rose to the rank of Sergeant.

4. On March 2, 1994, an inmate escaped from the Alachua

County Jail during the evening shift. As a result of the

inmate's escape, several correctional officers were

disciplined. Petitioner was disciplined by a reduction in rank

April 26, 1994. (P-37)

5. There were allegations that harsher discipline had been

meted out to the Black/African-American officers, and the matter

was arbitrated, pursuant to the union collective bargaining

contract. As a result of the arbitration, in the summer of

1994, it was recommended that Petitioner be returned to his

position at the Jail with restoration of rank, but without any

back pay. However, at the time of that recommendation,

Petitioner already had been terminated for "a non-related

infraction of county policy." (P-37)

6. The "non-related infraction of county policy" reason

for Petitioner's 1994 termination was not established on this

record, but neither was any discriminatory reason proven. 2

7. After Petitioner's 1994 termination, f urther

proceedings ensued, and Petitioner was ultimately restored to

his rank and position at the Jail. As part of this restoration,

it was agreed the Respondent employer would conduct training and

re-orientation sessions for Petitioner, since he had not

actively been performing his duties at the Jail for

approximately two years.

8. The present case only addresses the discrimination

Petitioner allegedly suffered due to race, handicap, or

retaliation concerning his leave requests in 1996, and his 1997

termination for unauthorized absence.

9. After his second successful arbitration(s) and/or

grievance procedure, Petitioner was eligible to return to work

on February 19, 1996. He did not return on that date.

10. Respondent ordered Petitioner back to work on

March 13, 1996, at which time Petitioner requested, and was

granted, leave under the Family Medical Leave Act (FMLA).

11. It is not clear if Petitioner ever made Re spondent

aware that he suffered from high blood pressure, but from the

evidence as a whole, it is found that Petitioner notified

Respondent in March 1996, that he was suffering from a prior on-

the-job injury to his back, diabetes, and depression.

12. Dia betes, as experienced by Petitioner, is a

"handicap" within the meaning of Section 760.10(1)(a), Florida

Statutes.

13. Clinical depression, as experienced by Petitioner, is

a "handicap" within the meaning of Section 760.10(1)(a), Florida

Statutes.

14. Petitioner contended at hearing that his clinical

depression in 1996 was due to his 1994 demotion and termination

and the procedures to get his job back and also due to the

hostile work environment he anticipated he would face if he

returned to work daily in 1996 with people whom he perceived as

having lied about him and who had tried to terminate him. It

should be noted that Petitioner did not clearly include "hostile

work environment" in either his 1998, Charge of Discrimination

or his 2000, Petition for Relief. The Florida Commission on

Human Relations only considered and referred the instant case

upon allegations of discrimination on the basis of race,

handicap, and retaliation.

15. From Petitioner's description of his back ailment, it

is found that condition also constituted a "handicap" within the

meaning of Section 760.10(1)(a), Florida Statutes. From

Petitioner's description of how his back injury affected his

daily life and job performance, it is very doubtful that

Petitioner was able to physically fulfill the requirements of

being a jailor at any time in 1996 until he was terminated in

1997. No evidence was presented with regard to the workers'

compensation consequences of this situation.

16. By an April 1, 1996, letter, Respondent's Interim

Director of Criminal Justice Service, Richard Tarbox, informed

Petitioner that he had exhausted his sick leave credits as of

the pay period ending March 31, 1996; that based on Respondent's

records, Petitioner would exhaust the balance of his accrued

sick leave at the rate of forty hours per week during the pay

period ending May 12, 1996; that he was expected to know his

available accrued leave credits and to contact his immediate

supervisor at least one week prior to the expiration of the

current leave period to request leave without pay if he

anticipated not returning to work; and that he had been placed

on FMLA leave for an indefinite period, not to exceed twelve

weeks, which would expire on June 6, 1996. (R-30)

17. The April 1, 1996, letter specifi cally informed

Petitioner that failure to come to work or contact Respondent

could be considered abandonment of his position. (R-30)

18. The foregoing instructions concerning "abandonment of

position" parallel Alachua County's Personnel Regulations and

Disciplinary Policy , hereafter sometimes referred to

collectively as "personnel regulations." (P-1).

19. Chapter XIX. 3. OFFENSES AND PENALTIES; c. Group III

Offenses No. 8, at pages 5-6, of the personnel regulations had

existed prior to Petitioner's 1994 termination, and was in

effect at all times material. It provided,

Absence of three consecutive work days

without proper authorization at which time

the employee is considered to have abandoned

the position and resigned from the County's

employ.

20. The personnel regulations also provided in

Chapter XIX. 3. OFFENSES AND PENALTIES; a. Group I Offenses

No. 8, at pages 3-4, that the following offense would subject an

employee to progressive discipline:

Absence without authorization or failure to

notify appropriate supervisory personnel on

the first day of absence. (Emphasis

supplied).

This regulation also had remained unchanged since Petitioner's

last employment with Respondent in 1994, and was in effect at

all times material.

21. Progressive disc ipline for the first such offense was

written instruction, counseling and/or one-day suspension. For

the second occurrence, one to five days' suspension was

specified. For the third occurrence, up to five days'

suspension or discharge was specified. These provisions also

had remained unchanged since Petitioner's last employment with

Respondent in 1994 and were in effect at all times material.

22. Petitioner was also familiar with the long-standing

progressive discipline system of Respondent's personnel

regulations. Basically, this system required that discipline

first be proposed in writing by a superior. The proposed

discipline would go into effect and become actual discipline if

the employee did not appear at a hearing to dispute the charges

or the proposed discipline. If the employee prevailed at the

hearing, the proposed discipline would be rescinded or altered.

If the employee did not prevail, the proposed discipline would

be reduced to writing in another document, and the employee then

had the option of filing a grievance pursuant to the union

collective bargaining agreement or of appealing through the

personnel system to a citizens' board.

23. While Petitioner had been absent in 1994-1996, a new

requirement had been added to the personnel regulations, under

Chapter A-299, which required that employees who planned to be

absent,

must notify their immediate supervisor no

later than 30 minutes from the time they are

scheduled to report for work. (Emphasis

supplied)

24. The "immediate supervis or" or "appropriate supervisory

personnel" in Petitioner's situation would have been the

lieutenant on his shift.

25. However, Petitioner and Lt. Little, who became his

supervisor, concurred that the custom at the Jail always had

been to require that employees contact the shift sergeant on the

shift preceding an emergency absence, or if that were not

possible, to contact the employee's own shift sergeant or anyone

else on that shift. Jail custom also provided that the employee

who was going to be absent could rely on any person on his shift

to deliver his oral message to the employee's supervising

lieutenant and that approval or disapproval paperwork would be

handled by that lieutenant after notification.

26. On June 6, 1996, Petitioner still had not re turned to

work. Instead, he requested leave without pay until June 15,

1996. Respondent granted Petitioner's request. This

constituted an accommodation of Petitioner's handicap(s) in that

he had no remaining earned leave or entitlement to FMLA leave,

yet his employer held his position open for his return.

27. On or about June 10, 1996, Anthony F. Greene, Ph.D., a

clinical psychologist at Vista Pavilion, a free-standing

psychiatric facility, released Petitioner to return to work. He

wrote to Respondent's Risk Manager that Petitioner continued to

have problems with depression, which might prove "volatile" in a

work environment with superiors Petitioner believed had harassed

him by terminating and blaming him for the 1994 escape.

28. At approximately the same time, Richard Greer, M.D.,

medical specialty unexplained, also released Petitioner to

return to work, upon the conditions that Petitioner continue to

see Dr. Greene on a weekly basis and continue to take his

prescriptive medications.

29. By a J uly 17, 1996, letter (P-4), Interim Director

Richard Tarbox notified Petitioner to report for work at the

Jail on the evening shift of July 22, 1996. The letter required

Petitioner to continue his sessions with Dr. Greene; to continue

to take his prescriptive medications; and to take the re-

training and re-orientation specified as a result of the

resolution of his 1994 termination and return to work. (See

Finding of Fact 7.)

30. The July 17, 1996, letter also included the sentence,

We are in the process of contacting Dr.

Greene to establish a procedure to verify

that you continue your sessions with him.

Petitioner interpreted this sentence as the employer's promise

"[T ]o get all my leave slips, find out when

I was going to the doctor, my mental

condition, and also my medical condition."

(TR-Vol.II, pages 175-176)

31. Petitioner's interpretation of this sentence was

unreasonable in light of its express language, the context of

the remainder of the July 17, 1996, letter, the instructions of

the April 1, 1996, letter (See Findings of Fact 16-17), and what

Petitioner already knew of the County's personnel regulations

and/or the Jail custom requiring him to call in and/or apply for

leave to be subsequently approved or disapproved by his

supervisor.

3 2. Nothing in the July 17, 1996, letter altered the

requirements of the personnel regulations or the April 1, 1996,

letter. Petitioner bore the responsibility to ask for medical

leave sufficiently in advance of his absences.

33. On July 22, 1996, Petit ioner reported for work at the

Jail as instructed and was assigned to an evening shift

supervised by Lt. Stover. According to Sgt. Babula, Petitioner

also worked under Shift Sgt. Withey at some point in July 1996.

34. However, by July 1996, Petitioner was an insulin-

dependent diabetic. He needed to self-administer a shot of

insulin each morning and night. To ensure ideal spacing of

these two shots, Petitioner almost immediately requested to work

the day shift. Respondent accommodated this request concerning

Petitioner's handicaps and assigned him to the day shift under

Lt. Little and Sgt. Babula, as shift sergeant.

35. Petitioner claimed his handicaps were not accommodated

by Respondent, but in addition to approving leave for him from

February 19, 1996, to July 22, 1996, not replacing him during

that period, and the change of shift made in July 1996, at

Petitioner's request, Sgt. Babula testified to approving special

shoes for Petitioner due to his diabetes.

36. By September 1996, Petitioner again had used up all of

his accrued leave. Accordingly, he had to ask for leave without

pay to visit his various doctors, including Dr. Greene.

37. On September 9, 1996, during a therapy session,

Petitioner told Dr. Greene that he had been threatened on the

job and that he was pursuing resolution of the incident through

appropriate channels. The same day, Dr. Greene wrote to

Lt. Little, telling him of the threat. The nature of this

alleged threat or who made it was not stated in Dr. Greene's

letter or at hearing. The letter cleared Petitioner to return

to work September 12, 1996.

38. This out-of-court statement to his psychotherapist at

that time does not establish the truth of the statement or that

Petitioner's superiors made the alleged threat. Also, the

threat, if one existed, could not have related to Petitioner's

written leave requests, because Petitioner's earliest dispute

about leave did not occur until September 13, 1996. (See

Finding of Fact 41). The September 9, 1996, date was not

related by testimony to any oral or written request for leave or

any disciplinary matter in evidence.

39 . Petitioner testified to having been threatened on the

job sometime prior to September 9, 1996, but he never testified

what the threat was, why the threat was made, or by whom the

threat was made.

40. Petitioner's witness, Alfred Dickerson, also is

African-American. He testified generally that it was "pure

hell" at the Jail for anyone who, like himself and Petitioner,

had been disciplined due to the 1994 escape and who had

prevailed in the resultant grievance activities, but he could

not remember any specific incidents involving Petitioner.

Moreover, Mr. Dickerson was out of the Jail, on workers'

compensation leave, from May 1996 to October 1997, the whole of

the material time frame for this case. 3

41. On September 16, 1996, Petitioner submitted an "after

the fact" request for leave without pay to Lt. Little, his

supervisor, for the previous dates of September 13 and 15,

stating thereon that he had been ill those days and that the

request was being made because his request to work his days off

to make up for the 16 hours of leave he had used on September 13

and 15 had been denied. The request does not specifically

mention "flex time." (P-6)

42. "Flex time," as described by both Petitioner and

Lt. Little, would have permitted Petitioner to work his days

off, instead of taking time off without pay to make up time used

to go to his doctors on days he was scheduled to work. However,

if an employee asked to use flex time in this way, another

employee had to trade days with him, and the exchange would be

worked out by the supervising lieutenant.

43. On October 1, 1996, Petitioner was given a "Letter of

Warning" by Lt. Little. The Warning reflected that Petitioner's

advising a sergeant other than his immediate supervisor,

Lt. Little, on September 24, 1996, that he was not coming to

work until some personal matters were taken care of, was

insufficient notice and was being treated as "absence without

authorization" in violation of the personnel regulations. It

also stated,

It has been standard practice and understood

that you must notify your immediate

supervisor . . . please be advised that any

further violations of this nature may result

in docked pay and progressive disciplinary

action . . .

Attached to this document was a Notice of Disciplinary Action,

also prepared October 1, 1996, stating,

Disciplinary action taken as a result of the

Notice of Proposed Disciplinary Action dated

blank not filled in. (Except for WARNING)

WARNING (Reasons for warning): Violation of

Alachua County Personnnel Regulations,

Chapter XIX, Section 3, a., Group I, Offense

No. 8 'Absence without authorization'. (P-8)

The same document notified Petitioner that he had a right to

appeal the Warning pursuant to either the personnel regulations

or the grievance procedure in the collective bargaining

agreement, as appropriate. Petitioner did not acknowledge

receipt of this latter document until October 7, 1996.

(P-8/R-19)

44. Also on October 1, 1996, Petitioner submitted an

"after the fact" request for leave without pay for September 23-

26 and for September 29-30, to Captain King. The reason for

Petitioner's absence September 23-26 was not stated on the

formal request, but Petitioner did again state thereon that his

request to "flex" his days off had been denied, presumably by

Lt. Little. The time for September 29-30 was requested for

"personal business and emergency family leave without pay" due

to his mother's seeing a doctor about her detached retinas.

(P-7)

45. Respondent is not obligated under Chapter 760, Florida

Statutes, to accommodate Petitioner's family's handicaps. 4

46. On October 21, 1996, a "Notice of Proposed

Disciplinary Action" was issued by Lt. Little, apparently

covering the same date, September 24, 1996, as his October 1,

Warning, and adding other dates. The reasons for the proposed

discipline given in this October 21, 1996, Notice differ

slightly from the content of the October 1, Warning.

47. The October 21, 1996, Notice related that on

September 23, Petitioner had spoken to Captain King and

Lt. Little, and because his request for leave had been made in

advance, Petitioner had been granted the day off; that on

September 24, Petitioner had failed to report to work and failed

to request an extension of leave, and he was therefore

considered to be "absent without authorization" for

September 24, 1996. The October 21, Notice further stated that

on September 25, Petitioner had called Captain King, requesting

leave without pay for September 25 and 26, and because

Petitioner had requested leave in advance, Captain King had

granted the request covering those two days, but that on his

October 1, leave request (see Finding of Fact 44) Petitioner had

included two more days, September 29 and 30, which had not been

previously authorized. Finally, the October 21, Notice

indicated that on September 30, Petitioner had called Lt. Stover

to say that he would be reporting to work as soon as he was

through testifying to the Grand Jury that afternoon, and that

his failure to request leave in advance was being treated as

"absence without authorization and failure to request leave

without pay in advance." As of this October 21, 1996, Notice,

the proposed disciplinary action became suspending Petitioner

without pay. Petitioner was offered an opportunity to contest

the proposed disciplinary action at a hearing on November 19,

1996. Petitioner acknowledged receipt of this document on

October 24, 1996. (R-21)

48. On October 22, 1996, Petitioner wrote to the Interim

Director of the Jail, Richard Tarbox. In his letter, Petitioner

complained that he had not yet received the agreed re-

orientation and re-training. He also discussed his medical

problems, including problems with recent changes in his

medications and his five-year-old back injury. He requested

flex time and related that his life had been threatened by

employees on the job (see Findings of Fact 37-40), and that

Lt. Little had been informed of the threats and flex time

request, but the letter again did not indicate by whom

Petitioner was threatened or why. (P-10)

49. Despite Petitioner's after-the-fact written requests

for flex time, Lt. Little had no recollection of Respondent ever

asking him for flex time.

50. There is no evidence that Lt. Little, Mr. Tarbox, or

any other representative of Respondent contacted Petitioner

concerning the alleged threat against him or specifically

addressed the issues of re-orientation/re-training or flex time.

51. On October 25, 1996, Dr. Greene also wrote Mr. Tarbox.

He described Petitioner as cooperative and not evidencing any

inappropriate behavior. He reported that Petitioner had voiced

no homicidal or vengeance ideation to him. He felt that

Petitioner's supervisors' requirement that Petitioner use leave

to attend the mandatory therapy sessions with him constituted a

paradox and a stressor for Petitioner. He felt that other

stressors were the employer's failure to offer re-orientation/

re-training to Petitioner and the employer's failure to contact

him, Dr. Greene, to verify treatment purposes and schedules.

Dr. Greene requested that Mr. Tarbox clarify Petitioner's

treatment and work status to both him and to Petitioner in a

timely manner because not doing so was exacerbating Petitioner's

physical condition, headaches, and diabetes. He further stated

that he could release Petitioner for work without further

psychological treatment and that further psychological treatment

was not necessary to ensure Petitioner's fitness for work or to

prevent his being a risk to others, but that Petitioner would

continue in therapy for other purposes. (P-11)

52. Neither Mr. Tarbox nor any other representative of

Respondent specifically replied to Dr. Greene's October 25,

1996, letter. However, all leave disputes pending on that date

were addressed in a November 22, 1996, letter to Petitioner from

Captain King. (See Findings of Fact 57-59.)

53. On October 31, 1996, Petitioner submitted an "after

the fact" request for eight hours leave without pay for leave he

had taken on October 30, 1996, for "emergency dr. app't for work

related injury, and lab work for diebetic [sic] condition."

(P-14)

54. At some point, a leave form for eight hours leave

without pay on November 9, 1996, was prepared. It indicates

that Petitoner was "unavailable to sign." This form was

disapproved by Lt. Little and by Mr. Tarbox on November 12,

1996. Apparently Petitioner only signed the request on

November 26, 1996. (P-21)

55 . On November 14, 1996, Petitioner submitted a request

for two hours leave without pay for November 15, 1996, for "work

related condition, Dr. Greene." (P-15)

56. On November 19, 1996, Petitioner submitted a request

for two hours leave without pay for November 22, 1996. The

request was approved by a supervisor on November 19, 1996.

(P-17)

57. On November 22, 1996, Captain King issued a "Letter of

Warning" to Petitioner. It stated that on November 19, 1996, a

disciplinary hearing had been held (see Finding of Fact 47)

regarding the October 21, Notice of Proposed Disciplinary

Action, addressing Petitioner's absences on September 29-30,

1996, and that because Petitioner had proven that he had

attempted to contact his supervisor in advance of his absence,

the September 29 violation was being withdrawn. With regard to

the September 30 violation charged, it was found that Petitioner

had contacted Lt. Stover and informed him that Petitioner would

return to work after testifying before The Grand Jury, and since

Petitioner had not returned to work on that day after

testifying, he was being found guilty as charged for violation

of Alachua County Personnel Regulations , Chapter XIX, Section 3.

a. Group I, Offense No. 8, "Absence without authorization and

failure to request leave without pay in advance."

58. The November 22, 1996, letter went on to warn

Petitioner that future violations would be more carefully

scrutinized for strict adherence to the policy of notification

and that failures on Petitioner's part might result in

progressive disciplinary action being taken. (P-20)

59. Because prior discipline had been overturned or

rescinded, the November 22, 1996, Letter of Warning was

technically Petitioner's first violation/discipline.

60. Also on Novem ber 22, 1996, Petitioner submitted to

Lt. Little a leave request form, dated the same day, labelled

"FOR INFO.," with supporting documentation, including Dr. Hunt's

certificate showing Petitioner had been treated on November 4,

and November 22, 1996, had office management of HTN/NIDDM

hematuria, a pending IVP and urology consult, and would need to

be seen again by Dr. Hunt in 4-6 weeks. The language of one

attachment showed Petitioner "is under Dr. Hunt's continual

care," but nothing specified any period of time Petitioner

intended to take off from work for the pending consultation or

any other purpose. (P-19)

61. Petitioner testified that his November 22, 1996, leave

request was not intended to request any leave at all when he

submitted it, but that it should have alerted his supervisors

that Petitioner had a growth between his legs that was

potentially malignant and that he needed an operation sometime

in the future. A reasonable person would not have concluded

this from the four corners of the November 22, 1996, written

request with attachments dated for past medical appointments.

62. Petitioner also testified that by submitting the

November 22, 1996, leave request "in blank" and explaining

orally to Lt. Little what he intended to do was his effort to

comply with the requirement that he ask for leave in advance of

taking it. This testimony shows that Petitioner at this point

understood the employer's prior instructions to request leave in

advance.

63. Apparently, Petitioner envisioned only havi ng to phone

in to get any member of his shift to fill in the blanks on his

November 22, 1996, request form, but he admitted he had never

before used a blank leave request in this way.

64. Petitioner further testified that he had told

Mr. Tarbox and other supervisors at a meeting (probably one of

his disciplinary hearings) before Christmas 1996, that he "did

not know how long he could work." While this representation of

Petitioner is credible and it may be reasonably inferred that

Mr. Tarbox understood Petitioner was debilitated to some degree

by the growth and might need an operation sometime in the near

future, it does not logically follow that all those hearing

Petitioner at that time understood that his oral statement

related to the November 22 blank leave request which had

attached to it only information about past doctors' appointments

and potential, undated, future consultations.

65. Petitioner's vague statement at the meeting/hearing

did not comply with the letter of the personnel regulations nor

the custom at the Jail for requesting leave.

66. The blank November 22, 1996, leave request marked "FOR

INFO" also did not comply with the letter of the personnel

regulations nor the custom at the Jail.

67. There is no requirement that Respondent grant

Petitioner an open-ended request for leave or one that specifies

no time period at all.

68. Petitioner's November 22, 1996, blank leave request

was never approved.

69. On November 26, 1996, Petitioner also acknowledged

receipt of a "Notice of Proposed Disciplinary Action," by which

Lt. Little and Mr. Tarbox recommended that Petitioner be

suspended without pay. 5 Petitioner was again offered an

opportunity to contest this proposed disciplinary action at a

hearing on December 3, 1996. (P-18)

70. The record is silent as to whether a disciplinary

hearing was actually held on December 3, 1996.

71. Petitioner submitted a leave form on December 6, 1996,

for 2.5 hours "vacation" leave without pay on December 3, 1996,

for a "Conference with doctor to try an [sic] stop continued

disciplinary action because of illness doctor approved." (P-23)

On December 3, 1996, Petitioner had telephoned Lt. Little to ask

if his message had been received. He then reported to work at

10:00 a.m.

72. Respondent's business records (P-22) show the

following: Petitioner worked December 4-5, some of December 6,

and all of December 7, 1996. He was not required to be at work

on December 8-9. He called in sick on December 10-11. On

December 12, he reported for work and attended five hours of

drug policy training. Then he left for medical reasons and

later called in to say he was too sick to return to work. On

Friday, December 13, Petitioner called in sick, saying he was

going to the doctor for a cut foot. He later called in again

and was told that he needed to do his timesheet and it was

agreed he would do it and have it in the following Monday.

Petitioner was absent on Saturday, December 14. He was not

required to be at work on December 15-16, 1996. On Monday,

December 17, Petitioner did not phone or appear for work. On

December 18, Petitioner phoned in, saying he had to wear bedroom

slippers and had domestic problems. On December 19, Petitioner

called in late and left a voice message on the Jail phone. On

Friday, December 20, Petitioner called in on time but said he

would not be in until Tuesday of the following week. He gave no

reason. He was not required to be at work on December 22-23.

On December 24, 1996, Petitioner did not come to work or call

in. On Christmas Day, Petitioner called in before shift and

stated he would not be in that day or the following day,

December 26, 1996, until 10:00 a.m. On December 26,

December 27, and December 28, Petitioner did not report for work

or call in. Petitioner was not required to work December 29 or

30, 1996. On December 31, Petitioner called and said that he

would not be in that day but would call back to talk to the

shift lieutenant. He did not do so. Also, Petitioner did not

report for work or call in for January 1 through 4, 1997. Most

of this business record was substantiated by the direct

testimony of Sgt. Babula and Lt. Little who observed the events

and wrote most of the business record. The matters that were

not confirmed in their direct testimony were supported by the

type of hearsay that explains or supplements direct evidence and

is admissible in this type of proceeding.

73. Petitioner acknowledged that the business record was

essentially correct as to days he was absent in December 1996,

and January 1997. Petitioner's testimony only varies the

foregoing business record to the effect that on December 10,

1996, not December 13, 1996, Petitioner called and spoke with

Sgt. Withey, stating that he would not "be back [to work] until

[he had] seen and heard from [his] doctors," and related to

Withey that he had some problem with his foot. Petitioner

assumed that his superiors would get this message and would

understand that he meant he was exercising the blank

November 22, 1996, leave request. (See Findings of Fact 60-66).

His superiors did not infer from this message what Petitioner

had hoped they would. A reasonable person would not infer all

that from the information Petitioner says he provided

Sgt. Withey.

74. It is uncontested that Petitioner did h ave an injury

to his foot at this time and that such injuries can be

particularly hazardous to persons who, like Petitioner, suffer

from diabetes.

75. From December 4, 1996, onward, Petitioner did not

speak directly with his lieutenant, although he had been

repeatedly instructed to do so in order to request advance

leave. Petitioner did not return to work after December 7,

1996.

76. Despite the personnel rules, custom at the Jail, and

prior direct orders by warning and disciplinary action letters,

Petitioner submitted no leave slips directly to his superiors

after December 6, 1996. Instead, he submitted them to his union

shop steward and to a County Commissioner, although he had no

reason to believe the Commissioner had any authority over Jail

personnel matters.

77. Respondent never authorized leave for Petitioner after

December 13, 1996.

78. Petitioner's extended absence without authorization was

in violation of Respondent employer's long-standing "three day

abandonment rule."

79. There had been no word from Petitioner since

December 31, 1996, so between January 17 and January 24, 1997, a

"Notice of Disciplinary Action" was issued against Petitioner

for

[V]iolation of Alachua County Personnel

Rules and Regulations, Chapter XIX, Section

3, c., Group III, Offense No. 8 'Absence of

three (3) consecutive work days without

proper authorization at which time the

employee is considered to have abandoned the

position and resigned from the County's

employ.'

The proposed discipline was termination, and again, Petitioner

was offered the opportunity to contest the proposed final agency

action at a hearing to be convened on February 18, 1997. (P-25)

80. Sometime in January 1997, Petitioner saw a Master of

Social Work, because Dr. Greene was on educational leave.

Petitioner was so upset that the social worker advised him to

focus on his medical problems. Apparently, Petitioner leapt to

the conclusion that meant his doctors would handle all his

leave-related problems.

81. Sometime in January 1997, Petitioner had successful

surgery on the growth between his legs.

82. On January 27, 1997, Dr. Greene saw Petitioner in

therapy and notified Mr. Tarbox in writing that,

Mr. Lawrence James was seen for an

appointment today in my office. He is

apparently unable to continue working in

what is perceived to be a hostile work

environment at the jail. Compounded by his

medical problems and what seems to be a lack

of responsivity and accommodation by the

administration, Mr. James' level of

emotional distress has considerably

increased since our last communication. It

is strongly recommended that he take a leave

of absence from the workplace until his

condition is improved . He is scheduled to

return next week for continued intervention.

Thank you for your time and attention.

(Emphasis supplied) (P-26)

83. Dr. Greene testified that it was Petitioner's combined

mental and physical circumstances which caused him to recommend

the leave of absence.

84. The January 24, 1997, Notice of Proposed Disciplinary

Action was mailed to the last address Petitioner had given

Respondent.

85. On January 30, 1997, Petitioner's mother signed the

certified mail receipt for the January 24, 1997, Notice of

Proposed Disciplinary Action. Sometime thereafter, she

delivered the Notice to Petitioner, who no longer lived with

her. He refused to deal with it.

86. Dr. Brient removed a suture from Petitioner's leg on

February 4, 1997. This seems to have related to Petitioner's

post-surgery release after removal of the growth between his

legs.

87. Petitioner did not then return to work.

88. Because Respondent's principals had not recognized

Petitioner's mother's name on the certified mail receipt, they

caused the January 24, 1997, Notice of Proposed Disciplinary

Action to be served on Petitioner by a Deputy Sheriff.

Petitioner received this personal service on February 5, 1997,

and told the Deputy that he would not deal with the Notice of

Disciplinary Action, but his doctors would.

89. Having been released as a result of h is operation,

there was no physical reason Petitioner could not have appeared

for the February 18, 1997, hearing to present any opposition to

his proposed termination based on "the three day abandonment

rule." He did not appear.

90. On February 21, 1997 , Petitioner was mailed a "Notice

of Dismissal," effective that date and signed by Harry Sands, a

new Interim Director, for abandoning his position, in violation

of the personnel regulations. The Notice of Dismissal gave

Petitioner the option of appealing his termination through the

employee appeal system or the collective bargaining grievance

procedure.

91. Petitioner did not take either appeal route.

92. However, Petitioner did suggest to another Jail

officer that those who had done this to him might need to get a

pine box, i.e. coffin. The threat was not deemed worthy of

prosecution by the State Attorney's Office.

93. Petitioner testified, without corroboration, that he

never received the promised re-orientation or re-training

associated with re-instatement to his job.

94. N o witness gave any clear indication of what the re-

orientation and re-training, as contemplated by the re-

instatement agreement (see Finding of Fact 7) or as contemplated

by Mr. Tarbox's July 17, 1996, letter (see Finding of Fact 29),

was supposed to include.

95. Lt. Stover did not remember any specific training he

gave Petitioner, nor did Lt. Little, but Lt. Little testified

that he was present when, before Petitioner first arrived on

Lt. Stover's shift in July 1996, the Captain had ordered them

both to "bring [Petitioner] up to speed."

96. Petitioner suggested that failure to re-orient and

retrain him evidenced Respondent's discrimination against him.

His post-hearing proposal also asserts that due to Respondent's

failure to train him in "new" personnel regulations, combined

with Respondent's requirement that he adhere to those

regulations which Jail custom did not normally follow,

constituted disparate treatment and/or discrimination against

him on the basis of his race or due to retaliation, and/or

failure to accommodate his handicap. This perception is

unpersuasive in light of the employer's repeated correspondence

urging him to take the training, whatever that training might

have been.

97. Despite Mr. Tarb ox's failure to reply to Petitioner's

October 22, 1996, inquiry about training (See Finding of Fact

48) , Petitioner's perception of discrimination was not

established as fact. From the evidence as a whole, it is more

probable that any failure to train Petitioner was the result of

his request to change shifts, and thus, lieutenant-supervisors

in July or his frequent absences. The record does not make

clear whether the re-orientation/re-training requirement was

unique to Respondent, who returned in 1996, or applied to all

four of the returning African-American officers restored in

1994, but Petitioner did not demonstrate that any

White/Caucasian or non-handicapped employee ever got any more

re-orientation/re-training than he did. He did not establish

that any White/Caucasian or non-handicapped employee ever got

any more re-orientation/re-training than the other restored

African-American officers, handicapped or otherwise. He also

did not establish that any other restored African-American

officer, handicapped or otherwise, received more re-

orientation/re-training than he did.

98. Moreover, contrary to Petitioner's testimony, Sergeant

Babula testified credibly that he had at least instructed

Petitioner with regard to the new payroll forms when Petitioner

changed shifts in July 1996. Payroll forms include calculating

hours worked and monies owed. Testimony and business records

also show Petitioner had five hours of drug policy training.

(See Finding of fact 72).

99. Also, Respondent did not discipline Petitioner for his

failure to request leave of specific personnel as required by

the only new personnel regulation, until after Petitioner had

been instructed in writing to do so. These written instructions

may not have constituted complete "re-orientation" or "re-

training," but they were direct orders sufficient to instruct

Petitioner what was expected of him. (See Findings of Fact 16,

29, 43, 46-47, 57-59).

100. Lastly, based on Petitioner's testimony that even if

he had known he was required by a new regulation to request

leave from his lieutenant-supervisor he would not have followed

that regulation but instead would have considered himself bound

by his union contract and by the custom of asking for leave of

anyone on his shift at the Jail, it appears that any failure of

Respondent to specifically "train" Petitioner concerning new

personnel regulations had no effect on his subsequent failure to

comply with the employer's expectations concerning its leave

policy.

101. Petitioner had admitted in evidence a certified copy

of a "Second Superceding Indictment" issued by a federal Grand

Jury on February 27, 2001. It was not established that this was

the same Grand Jury before which Petitioner testified in 1996.

(See Finding of Fact 47). The indictment (which is only a

charging document, not a conviction) named Nate Caldwell,

Respondent's former Director; Samuel Krider, Respondent's former

Assistant Director; Garry M. Brown, a former Captain with

Respondent; and Charles Scott Simmons, a former Lieutenant with

Respondent, for conspiracy to obstruct justice by violating 18

USC Section 1503, by hindering the court and jury in a federal

civil rights action brought by Mr. Dickerson against the Alachua

County Board of County Commissioners. Mr. Dickerson's federal

case arose out of Mr. Dickerson's demotion in rank with

Petitioner in connection with the 1994 escape. It was not

established that any of the indicted officials held office

during the time material to Petitioner's instant case, 1996-

1997, or that any of them had anything to do with Petitioner's

1996 leave disputes or 1997 termination. Indeed, it was

established that Sands or Tarbox was Interim Director at all

times material. The indictment mentions Petitioner and Captain

King, a superior of Petitioner at all times material, but

neither Petitioner nor Captain King were indicted. Despite the

lack of clarity of Petitioner's and Mr. Dickerson's testimony,

the undersigned infers from their testimony and the indictment

that Petitioner testified concerning the same matters before the

Grand Jury in 1996 and that prior to 1996 Petitioner had been a

witness in Mr. Dickerson's federal discrimination case against

the County Commissioners. However, Petitioner testified that

his retaliation allegation herein is not based on his 1996

testimony before the Grand Jury. Rather, Petitioner asserted at

hearing that he believed he had been retaliated against by his

superiors in 1996-1997 for speaking at 1993 meetings of the

County Commission concerning structural and staffing problems at

the Jail, and otherwise he did not know why he had been

retaliated against. (TR-Vol. I pp. 229-233).

CONCLUSIONS OF LAW

102. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant only to Section 120.57(1) and Chapter 760, Florida

Statutes.

103. Under the provisions of Section 760.10, Florida

Statutes, it is an unlawful employment practice for an employer:

(1) ( a) . . .to discharge or to fail or

refuse to hire an individual, or otherwise

to discriminate against any individual with

respect to compensation, terms, conditions,

or privileges of employment, because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

(7) . . . to discriminate against any person

because that person has opposed any practice

which is an unlawful employment practice

under this section, or because that person

has made a charge, testified, assisted, or

participated in any manner in an

investigation, proceeding, or hearing under

this section.

104. The burdens of proof and persuasion for purposes of

handicap and racial discrimination are essentially the same.

105. The United States Supreme Court set forth the

procedure essential for establishing claims of discrimination in

McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S. Ct. 1817,

36 L. Ed 2d 668 (1973), which was then revisited in detail in

Texas Department of Community Affairs v. Burdine , 450 U.S. 248,

101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). Pursuant to the

Burdine formula, the employee has the initial burden of

establishing a prima facie case of intentional discrimination,

which, once established, raises a presumption that the employer

discriminated against the employee. The pre-eminent case in

Florida remains Department of Corrections v. Chandler , 582 So.

2d 1183 (Fla. 1st DCA 1991).

106. When an individual alleges he has been subjected to

"disparate treatment," the standards of proof require that the

Petitioner show the existence of "actions taken by the employer

from which one can infer, if such actions remain unexplained,

that it is more likely than not that such actions were based on

a discriminatory criterion illegal under the Act." See McCosh

v. City of Grand Forks , 628 F.2d 1058 (8th Circuit 1980), and

Furnco Const. Co. v. Waters , 438 U.S. 567, 98 S. Ct. 2943, 57

L. Ed. 2d 957 (1978), citing Teamsters v. United States , 431

U.S. 324, 358, 97 S. Ct. 1843, 1866, 52 L. Ed. 2d 396 (1977).

Once a Petitioner establishes this prima facie case, the burden

shifts to the employer to rebut the adverse inference by

articulating "some legitimate nondiscriminatory reason for the

employee's rejection." See McCosh v. City of Grand Forks and

McDonnell Douglas Corp. v. Green , both supra . But even if the

employer meets this burden, the complaining party is given the

opportunity to show that the proffered evidence is merely a

pretext for discrimination, Id. at 804-805, 93 S. Ct. at 1025.

See generally, Kirby v. Colony Furniture Co. , 613 F.2d 696 (8th

Circuit 1980).

107. Florida has placed the burden upon the employee in

handicap discrimination cases under Chapter 760, Florida

Statutes, to establish a prima facie case by showing (1) that he

or she has a physical impairment which substantially limits one

or more of his or her major life activities; (2) that he or she

is otherwise qualified for the position; and (3) that he or she

was excluded from the position sought, solely by reason of his

or her handicap. Only "reasonable accommodation" of handicapped

applicants or employees is required. Kelly v. Bechtel Power

Corp. , 633 F. Supp 927 (S.D. Fla. 1996); Brand v. Florida Power

Corp. , 633 So. 2d 504 (Fla. 1st DCA 1994) ; Cabany v. Hollywood

Memorial Hospital , 12 FALR 2020 (FCHR 1990).

108. Because Petitioner was successful in using the

employer's progressive disciplinary review and hearing process

so that, despite all leave discrepancies, he prevailed in every

instance except for one Letter of Warning (see Findings of Fact

57-59), Petitioner's disapproved leaves and the resultant

discipline process between September and December 1996 is only

significant as it relates to the issues of "accommodation of a

handicap" and "discriminatory retaliation."

109. Cases arising under legislation similar in intent to

Chapter 760, Florida Statutes, are instructive. Under the ADA,

a "qualified" individual is an individual with a disability who,

without unreasonable accommodation, can perform the essential

functions of the employment position. Petitioner's description

of the effects of his multiple ailments suggests he was not

physically "qualified" to perform his job duties. Likewise, his

failure to routinely be on the job rendered him not "qualified."

Tyndall v. National Educ. Centers, Inc. of California . , 31 F.3d

209 (4th Cir. 1997). An employee who cannot meet the attendance

requirements of a job is not a "qualified individual" under the

Rehabilitation Act if he cannot meet the attendance requirements

or be present on a routine basis. Jackson v. Veterans

Administration , 22 F.3d 277 (11th Cir. 1994). Even if the

employee's failure to meet the attendance requirements is due

entirely to the employee's disability, he is "not qualified" per

the ADA. See Matthews v. Commonwealth Edison Co. , 128 F.3d 1194

(7th Cir. 1997).

110. However, assuming this Petitioner was able to do

something when he did come to work, he was reasonably

accommodated by the employer. Petitioner was eligible to return

to work in February 1996, but the employer did not require him

to begin working until July 22, 1996. Throughout that period,

Respondent employer repeatedly accommodated his requests for

leave. In July, he requested and received a shift change.

Sometime later, the employer granted his request to wear special

shoes. Beginning in September, his attendance became sporadic

and unreliable. As a result of Petitioner's failure to follow

direct orders as to when and how to request leave, his absences

also became unpredictable. His theory that Respondent's failure

to retrain him was both discriminatory and caused his failure to

properly request leave is rejected for all the reasons listed in

Findings of Fact 96 through 100. Petitioner is in error in

assuming that the employer was required to give him time off

just because he or a family member was sick or had a doctor's

appointment, but in this case, Petitioner seems to have been

granted all leave requests made in advance and repeatedly warned

that in the future he should request leave in advance from his

immediate supervisor. The only requested accommodation not

granted by the employer was authorizing "after the fact" leave

requests and requests to arrange "flex time" for Petitioner. An

employer is not required to provide every accommodation, only

reasonable accommodations. The fact that an employer could have

provided a different set of reasonable accommodations or more

accommodations does not establish that the accommodations

provided were unreasonable or that the additional accommodations

were necessary. Brand v. Florida Power Corp. , supra .

Petitioner asserted that all other employees were permitted to

flex their days, but he presented no comparators, and

accordingly his proof fails.

111. Petitioner has established as a prima facie case that

he is a member of the Black/African-American race, and

handicapped, two of the statutorily protected classes, and that

he was terminated. See Gordon v. E. L. Hamm and Associates , 100

F.3d 1029, 1032 (11th Cir. 1996) ; Thomas v. Floridin Company ,

8 FALR 5457, at 5458 (1986). Cf. Maynard v. Pneumatic Products

Corp. , 233 F.3d 1344 (11th Cir. 2000), vacated at 256 F.3d 1259

(11th Cir. 2001).

112. Concerning terminations generally, it would be

ludicrous for Respondent to cling to the fiction that an

employee who calls in almost daily has abandoned his valuable

property right of regular employment, but that is not what

ultimately happened here. Here, Petitioner stopped phoning-in

approximately December 31, 1996. Then, nearly three weeks

passed with no word from him. The only word the employer got

was a January 27, 1997, letter from Petitioner's therapist to

the effect that Petitioner could not work anymore and needed an

indefinite leave of absence. No employer is required to hold a

position indefinitely. Petitioner was given every opportunity

to challenge the proposed termination and failed to do so. For

termination purposes, Petitioner was treated the same as any

other employee by application of the personnel regulations. He

was not treated differently than White/Caucasian employees or

non-handicapped employees. Petitioner presented no comparator

to show that the employer had, or would, treat any non-disabled

person or a person of another race differently with regard to

termination for an unauthorized absence of over a month.

113. To prevail on a claim of "retaliation" a petitioner

must establish (1) a statutorily protected expression; (2) an

adverse employment action; and (3) a causal link between the two

events. Once a petitioner establishes his prima facie case, the

employer must offer a legitimate, non-discriminatory reason for

the adverse employment action. If the employer offers

legitimate reasons for the employment action, the petitioner

must then demonstrate that the employer's proffered explanation

is a pretext for retaliation. Bass v. Board of County Com. ,

Orange County , 242 F.3d 996, 1013 (11th Cir. 2001); Berman v.

Orkin Exterminating Co., Inc. , 160 F.3d 697 (11th Cir. 1998) ;

Simmons v. Camden County Bd. Of Educ. , 757 F.2d 1187 (11th Cir.

1985) cert den . 474 U.S. 981, 106 S. Ct 385, 88 L.Ed. 2d 338

(1985).

114. While it is recognized by the undersigned that

Petitioner and his psychotherapist notified Petitioner's

superiors in September and October 1996, that Petitioner's life

had been threatened on-the-job and no investigation ensued, it

was never established that these threats actually occurred. The

psychotherapist took Petitioner's representations as valid

without investigation. Mr. Dickerson had no knowledge of such

incidents. Furthermore, assuming, arguendo , but not ruling,

that on-the-job threats against Petitioner actually occurred,

Petitioner did not testify that the threats were made by his

superiors, and he never developed any nexus between the alleged

threats in 1996 and his own 1994 successful action regarding

racial discrimination.

115. To the extent Petitioner testified the threat from

another employee or his superiors' consistent administration of

the employer's leave policy and personnel regulations

constituted retaliation against his having raised concerns about

a new Jail at a County Commission meeting in 1993, the year

before his successful arbitration in 1994, there is no reason to

believe that his public speech before the County Commission is

statutorily protected. It would be a "stretch" to equate

Petitioner's testimony with retaliation based on Petitioner's

own successful arbitration concerning the escape in 1994 or

Mr. Dickerson's federal civil rights action, which are protected

expressions. Assuming, but not ruling, that there is such a

connection, Petitioner still has failed to establish that any of

Respondent's actions were not permitted by its personnel

regulations or that use of those personnel regulations was

pretextual for retaliation against Petitioner.

116. Finally, adverse job actions remote in time to

protected expressions may not support a causal connection. In

Mannica v. Brown , 171 F.3d 1364, 1369 (11th Cir. 1999), a case

arising under federal Title VII and Chapter 760, Florida

Statutes, fifteen months was held to be too great a lapse of

time to form a retaliatory nexus. Herein, Petitioner's

termination was seven months after he returned to work, nearly a

year after Petitioner prevailed on his last grievance of unknown

cause, more than two years after he prevailed on his racial

grievance, and more than three years after he spoke at a County

Commission meeting. The 1996 leave disputes which did not

result in termination did begin only two months after he

returned to work and during a time he was participating in a

Grand Jury investigation related to a protected expression known

to his superiors, but they also occurred only after he ran out

of accrued leave and are still remote in time to all other

possible protected expressions; Petitioner prevailed in part on

a proposed leave-related discipline challenge after his Grand

Jury testimony (see Findings of Fact 57-59); and Petitioner did

not associate his superiors' treatment of him to this Grand Jury

testimony.

117. Petitioner's cited cases, to the effect that an

employer's mere awareness of the protected expression when the

adverse employment action occurred is sufficient to establish

retaliation, are rejected as inapplicable and unpersuasive.

118. No nexus to a discriminatory reason was shown for any

of Respondent's interim actions with regard to leave or

discipline, and Petitioner has not overcome Respondent's stated

reasons for termination. In Florida, an employer at will may

terminate for a good reason, a bad reason, or no reason at all,

as long as no discriminatory intent is shown.

119. Petitioner has not borne his burden to establish a

prima facie case with regard to his claims of racial, handicap,

or retaliation discrimination, or if so, has not ultimately

persuaded.

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 finding that Petitioner has not proven

discrimination and dismissing the Petition for Relief.

DONE AND ENTERED this 18th day of September, 2001, 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 [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of September, 2001.

ENDNOTES

1/ Neither party has raised the issue of timeliness, but based

on a February 21, 1997, termination date, this cause may be

time-barred pursuant to Section 760.11(1), Florida Statutes.

2/ Respondent's counsel suggested Petitioner's second

successful arbitration/grievance involved charges against

Petitioner for workers' compensation fraud, but there was no

stipulation to this effect. Mr. Dickerson asserted he had been

prosecuted for workers' compensation fraud. There is

insufficient evidence concerning the reasons for Petitioner's

second arbitration/grievance for a finding of fact thereon.

3/ Apparently, it was not "pure hell" for disabled for

handicapped workers, regardless of race, even during

Mr. Dickerson's working days, because he testified that while he

was employed at the Jail, White/Caucasian employees were

permitted to wear hand braces and the employer had allowed a

Black/African-American female sergeant to keep her injured leg

propped up during most of her shift and further provided her

with an electronic cart to make her rounds.

4/ An employer may be obligated to authorize earned sick leave

for family illness, but Petitioner had no accrued leave of any

kind and a relative's handicap cannot be imputed to Petitioner.

5/ Apparently, the reason for this proposed discipline was on

an attachment which was not offered in evidence.

COPIES FURNISHED :

Arnold B. Corsmeier, Esquire

Kelly Soude, Esquire

Thompson, Sizemore & Gonzalez

109 North Brush Street, Suite 200

Post Office Box 639

Tampa, Florida 33601

Horace N. Moore, Sr., Esquire

235 S. Main Street Suite 101W

Post Office Box 2146

Gainesville, Florida 32602

Dana A. Baird, General Counsel

Florida Commission on Human Relations

325 John Knox Road

Building F, Suite 240

Tallahassee, Florida 32303-4149

Azizi M. Dixon, Clerk

Florida Commission on Human Relations

325 John Knox Road

Building F, Suite 240

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.