01-004659 Thelemaque Coleus vs. Walt Disney World Status: Closed Recommended Order on Thursday, February 28, 2002.

Summary: Petitioner claimed workplace discrimination based on physical disability; failed to establish a prima facie case.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THELEMAQUE COLEUS, )

)

Petitioner, )

)

vs. ) Case No. 01 - 4659

)

WALT DISNEY WORLD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a fo rmal hearing was conducted in this

case on February 11, 2002, in Orlando, Florida, before Jeff B.

Clark, a duly - designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Thelemaque Coleus, pro se

Post Office Box 550776

Orlando, Florida 32855

For Respondent: Charles Robinson Fawsett, Esquire

Shutts & Bowen, LLP

300 South Orange Avenue, Suite 1000

Post Office Box 4956

Orlando, Florida 32802 - 4956

STATEMENT OF THE ISSUE

Whether or not Respondent violated the Florida Civil Rights

Act of 1992, as alleged in the Petition for Relief filed by

Petitioner and received by the Florida C ommission on Human

Relations on November 20, 2001.

PRELIMINARY STATEMENT

Petitioner, Thelemaque Coleus, filed a Charge of

Discrimination with the Florida Commission on Human Relations

("FCHR") on or about May 22, 1998. In that charge he alleged

that he wa s denied reasonable accommodation and terminated from

employment by Respondent, Walt Disney World, in violation of the

handicap/disability provisions of the Florida Civil Rights Act

(the "FCRA"), Sections 760.10 - 11, Florida Statutes, and sought

all relief available under the FCRA.

On October 31, 2001, the FCHR issued a Determination: No

Cause ("Determination"), determining that there "is no

reasonable cause to believe that an unlawful employment practice

has occurred" involving Petitioner and Respondent.

N ovember 20, 2001, the FCHR received Petitioner's Petition

for Relief. On December 5, 2001, the Petition for Relief was

transmitted to the Division of Administrative Hearings

requesting assignment to an Administrative Law Judge to conduct

all necessary pro ceedings. On December 18, 2001, the case was

set for final hearing on February 11, 2002, in Orlando, Florida.

At the final hearing, Petitioner, who represented himself,

presented his case - in - chief, which included his own sworn

testimony and four exhibits which were admitted into evidence

and marked Petitioner's Exhibits 1 - 4. Prior to Petitioner's

presentation, Respondent presented one witness, Dennis Hunter,

Esquire, out of order; Respondent presented five exhibits,

marked Respondent's Exhibits 1 - 5, which were admitted during

Mr. Hunter's testimony; Mr. Hunter's testimony and Respondent's

exhibits became irrelevant based on the subsequent determination

that Petitioner failed to present a prima facie case. At the

close of Petitioner's presentation, the pa rties were advised

that Petitioner had failed to present a prima facie case and,

consequently, Respondent, which had a number of witnesses

present, did not present its case. No transcript was ordered.

FINDINGS OF FACT

Based on the testimony of Petitioner and the evidence he

presented, the following findings of fact are made:

1. Petitioner was employed by Respondent in approximately

1990. Then or shortly thereafter he became a houseman at the

Respondent's Grand Floridian Resort Hotel. His assigned duties

included some strenuous lifting and other strenuous physical

activity.

2. In 1995, Petitioner seriously injured his lower back

and one hand in an off - the - job incident involving his jumping

from the second story of his apartment to avoid a fire in the

apa rtment. As a result, Respondent gave him a leave of absence

for about five months from his employment.

3. After returning to work, in early 1996 Petitioner

incurred what he contended was a work - related injury to his

lower back. A medical record introduc ed by Petitioner, casts

doubt on the extent to which that injury contributed to the

condition from which he thereafter suffered and which interfered

with and ultimately ended his ability to work.

4. Petitioner had major back surgery in 1996. He

consequen tly received and took additional leave from work.

5. Petitioner testified on several occasions that at no

time after the 1995 injury was he able to perform the strenuous

aspects of the assigned duties of his position, houseman. Based

on Petitioner's test imony, this finding of fact is confirmed,

i.e. , Petitioner is unable to perform the assigned duties of a

houseman.

6. Petitioner was placed on light duty for a period of

time. Petitioner was sent to a department of Respondent called

"Re - Casting" in an ef fort to place him in duties he could

perform. As a result of his initial contact with Re - Casting, he

was transferred from the Grand Floridian Resort Hotel to the

Contemporary Resort Hotel, but he was unable to perform his

assigned duties and accordingly w as transferred back to the

Grand Floridian Resort Hotel. The transfer and return took

place in March and April 1997.

7. Petitioner subsequently returned to Re - Casting, and

took a test to determine his qualifications for an open position

as a cashier. Pe titioner failed the test.

8. Petitioner last worked for Respondent in May 1997.

Petitioner has not held any employment since then, and he

testified that he has not applied for employment since then. He

admits that the reason for not having held any empl oyment and

not applying for it is his physical inability to work.

9. Petitioner testified unequivocally that he has, since

May 1997, been unable to do any kind of work. Based on

Petitioner's testimony, this finding of fact is confirmed, i.e. ,

that since May 1997, Petitioner has been unable to do any kind

of work.

10. Petitioner has applied for disability benefits with

the Social Security Administration. His disability claim

indicates a continuing disability on his part.

CONCLUSIONS OF LAW

11. The Divi sion of Administrative Hearings has

jurisdiction over the parties and the subject matter.

Subsection 120.57(1), Florida Statutes.

12. While this claim arises under the FCRA, judicial

precedents under the Americans With Disabilities Act ("ADA") are

a pplicable. Greene v. Seminole Electric Cooperative , 701 So. 2d

646, 647 (Fla. 5th DCA 1997) ("Further, the Act [the FCRA]

should be construed in conformity with . . . the Americans with

Disabilities Act, 42 U.S.C. § 12101, et. seq. , and related

regulation s.").

13. A person claiming under the employment discrimination

provisions of the ADA must show that he is a "qualified

individual with a disability." Hensley v. Punta Gorda , 686 So.

2d 724, 726 (Fla. 1st DCA 1997); Mears v. Gulfstream Aerospace

Cor poration , 905 F.Supp. 1075 (S.D. Ga. 1995), aff'd , 87 F.3d

1331 (11th Cir. 1996). Under the law, a qualified individual

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

or without reasonable accommodation, can perform the essential

function s of the employment position that such individual holds

or desires." 42 U.S.C. Section 12111(8).

14. The United States Supreme Court has established an

analytical framework within which courts should examine claims

of discrimination. In cases alleg ing discriminatory treatment,

Petitioner has the initial burden of establishing, by a

preponderance of the evidence, a prima facie case of

discrimination. St. Mary's Honor Center v. Hicks , 509 U.S. 502

(1993); Combs v. Plantation Patterns , 106 F.3d 1519 ( 11th Cir.

1997).

15. An individual with a disability must be qualified for

a position in order to be entitled to the protection of anti -

discrimination provisions of the ADA and the FCRA. Salmon v.

Dade County School Board , 4 F.Supp.2d 1157, 1160 (S.D. Fl a.

1998). Indeed, to show a prima facie case of employment

discrimination under the FCRA and/or the ADA, Petitioner must

establish that he has a disability, is a qualified individual

with a disability, and was subjected to unlawful discrimination

because of the disability. Smith v. Avatar Properties. Inc , 714

So. 2d 1103, 1106 (Fla. 5th DCA 1998); Duckett v. Dunlop Tire

Corporation , 120 F.3d 1222, 1224 (11th Cir. 1997).

16. Taking the foregoing legal principles as applicable to

this case, Petitioner has admitted that, by reason of being

unable to work at all since May 1997, he is not a qualified

individual with a disability and has not been since May 1997.

For that reason alone, regardless of whether he has a handicap

or disability which qualifies under the FCRA, Petitioner

conclusively has failed to establish a prima facie case of

employment discrimination under the FCRA.

17. Under the ADA, it is necessary for a person to be a

qualified individual with a disability before the employer has a

duty to acco mmodate him. Smith v. Blue Cross Blue Shield of

Kansas ,894 F.Supp. 1463, 1469 (D. Kansas 1995). In this case,

although Respondent did not need to, it accommodated him in

three different ways, by granting him at least two long leaves

of absence, by assign ing him to light duty, and by transferring

him to a different location and position.

18. In addition to having not established any basis for a

finding that he is a qualified individual with a disability, and

having admitted being afforded three different accommodations,

Petitioner offered no showing that any adverse personnel action

was taken against him because of his disability. Instead, it is

conclusive that the reason he has not worked at Respondent's

place of business or anywhere else since 1997 is t hat he is

unable to do any work.

19. Under these circumstances, taking everything presented

by Petitioner as true and evaluating everything in the light

most favorable to him, no reasonable finder of fact could, on

this record, find that Petitioner has es tablished a prima facie

case that Respondent has committed employment discrimination

under the FCRA because of Petitioner's asserted handicap or

disability.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED th at the Florida Commission on Human Relations

find that Petitioner, Thelemaque Coleus, has failed to present a

prima facie case of employment discrimination under the FCRA,

and that, accordingly, the case is dismissed with prejudice.

DONE AND ENTERED th is 27th day of February, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of February, 2002.

COPIES FURNISHED :

Thelemaque Coleus

Post Office Box 550776

Orlando, Florida 32855

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

325 John Knox Road

Building F, Suite 240

Tallahassee, Florida 32303 - 4149

Charles Robinson Fawsett, Esquire

Shutts & Bowen, LLP

300 South Orange Avenue, Suite 1000

Post Office Bo x 4956

Orlando, Florida 32802 - 4956

Christie Sutherland

Walt Disney World

Post Office Box 10000

Lake Buena Vista, Florida 32830

Cecil Howard, General Counsel

Florida Commission on Human Relations

325 John Knox Road

Building F, Suite 240

Tallahassee, Florida 32303 - 4149

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.