01-000692 Otis Ware vs. Department Of Corrections Status: Closed Recommended Order on Wednesday, June 6, 2001.

Summary: Evidence insufficient to establish discrimination based on race, disability, or retaliation. Filing workers` compensation claim not cognizable under Chapter 760, Florida Statutes, employment discrimination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OTIS WARE, )

)

Petitioner, )

)

vs. ) Case No. 01-0692

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on April 27, 2001, in Trenton, Florida, before the Division of

Administrative Hearings, by its designated Administrative Law

Judge, Diane Cleavinger.

APPEARANCES

For Petitione r : Otis Ware, pro se

Post Office Box 2155

Trenton, Florida 32693

For Respondent : William J. Thurber, IV, Esquire

Department of Corrections

2601 Blairstone Road

Tallahassee, Florida 32399-2500

STATEMENT OF THE ISSUES

Th e issues to be resolved in this proceeding are whether

Petitioner was terminated from his employment with Respondent

because of his race, his alleged disability, and in alleged

retaliation for his attempt to file a workers' compensation

claim in violation of Chapter 760, Florida Statutes.

PRELIMINARY STATEMENT

On September 16, 1997, Petitioner, Otis Ware, filed a

Charge of Discrimination with the Florida Commission on Human

Relations (FCHR). The Charge of Discrimination alleged that the

Florida Department of Corrections had terminated Petitioner

based on his race, his alleged disability, and in retaliation

for his attempt to file a workers' compensation claim.

On January 12, 2001, FCHR issued a Notice of Determination

in response to Petitioner's Charge of Discrimination. FCHR

found no reasonable cause to believe that an unlawful employment

practice occurred. On February 13, 2001, Petitioner filed a

Petition for Relief based on his Charge of Discrimination and

elected to proceed with an administrative hearing in accordance

with Section 760.11(4)(b )8, Florida Statutes.

At the hearing, Petitioner testified in his own behalf,

called no other witnesses, and introduced no exhibits.

Respondent called one witness and offered one composite exhibit

into evidence consisting of Petitioner's Attendance and Leave

Reports.

After the hearing, Petitioner and Respondent filed Proposed

Recommended Orders on May 11, 2001.

FINDINGS OF FACT

1. Petitioner is an African-American male. Petitioner

also has been diagnosed with obsessive/compulsive disorder and

major depression.

2. On March 21, 1997, Petitioner began his employment with

Florida Department of Corrections as a substance abuse counselor

at Lancaster Correctional Institution. Petitioner's employment

status was in career service, probationary status for six months

from the date of his employment. A probationary status employee

can be terminated without cause. Petitioner's employment as a

counselor required him to be present at the institution a

reasonable amount of time in order to perform his counseling

duties.

3. From March 21, 1997 through September 2, 1997,

Petitioner failed to report for work 39 full workdays out of a

possible 115 workdays. In addition, Petitioner had five other

workdays that he only worked part of the day, with a total of 16

hours of leave used over those days. Sixteen hours is the

equivalent of two full workdays missed by Respondent. As a

result, Petitioner was absent from work approximately 35 percent

of the time. Thirty-five percent absence rate was excessive

based on Petitioner's job duties.

4. Most of the leave was without pay because Petitioner

had not accumulated enough sick or annual leave to cover his

absences. The leave was taken for various reasons, but a large

part of the leave was taken when Petitioner was hospitalized due

to his mental condition.

5. Petitioner's doctor released him from his

hospitalization on August 8, 1997; however, Petitioner did not

return to work until August 20, 1997. The last pay period ran

from Friday, August 22, 1997 to Thursday, September 4, 1997.

Petitioner only worked 20 hours out of 40 the first week and two

hours out of 40 the second week.

6. Around September 1, 1997, Petitioner went to the

personnel office to inquire about filing a workers' compensation

claim based on his disability. The staff person he spoke to did

not know the procedure for filing a workers' compensation claim.

She told Petitioner she would find out the procedure and asked

him to return the next day. Other than Petitioner's speculation

about the events following his initial inquiry about filing a

workers' compensation claim, other material evidence regarding

the events following his initial inquiry and Respondent's

response thereto was submitted into evidence. The evidence is

insufficient to draw any conclusions of a factual or legal

nature regarding Petitioner's workers' compensation claim and

his termination.

7. Petitioner was terminated on September 2, 1997, the day

following his initial inquiry about workers' compensation.

Petitioner received his letter of termination on September 2,

1997.

8. Petitioner was a probationary status employee when he

was terminated.

9. Eventually, Petitioner filed a workers' compensation

claim. The claim was denied by the Florida Department of Labor

and Employment Security.

10. In 1997, L.D. "Pete" Turner was the warden at

Lancaster Correctional Institution. As warden, Mr. Turner

supervised Petitioner. Mr. Turner made the decision to

terminate Petitioner due to his excessive absences. Mr. Turner

did not terminate Petitioner based on Petitioner's race, his

alleged disability, or because of Petitioner's attempt to file a

workers' compensation claim. Petitioner was needed at work and

he was not there a sufficient amount of time to fulfill his job

duties. In fact, there was no competent evidence that there was

any connection between Petitioner's termination and/or his race,

disability, or desire to file a workers' compensation claim.

11. Petitioner alleged that two employees at the

institution were excessively absent but were not terminated.

The employees were Doris Jones and Victoria Englehart. Both

individuals were career service employees with permanent status.

They were not probationary status employees. Doris Jones is an

African-American female. Victoria Englehart is a white female.

No other evidence was produced at the hearing regarding these

two employees, their attendance records, job duties or anything

else of a comparative nature. Clearly, the evidence is

insufficient to make any comparison between these two employees

and Petitioner's employment and termination.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. Section 120.57(1), Florida Statutes.

13. Under the provisions of Section 760.10, Florida

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

(1)(a ) To discharge or refuse to hire any

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) [T ]o 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.

14. FCHR and the Florida courts have determined that

federal discrimination law should be used as guidance when

construing provisions of Section 760.10, Florida Statutes. See

Brand v. Florida Power Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA

1994) ; Florida Department of Community Affairs v. Bryant , 586

So. 2d 1205 (Fla. 1st DCA 1991).

15. The Supreme Court of the United States established in

McDonnell-Douglas Corporation v. Green , 411 U.S. 792 (1973), and

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

(1981), the analysis to be used in cases alleging discrimination

under Title VII such as the one at bar. This analysis was

reiterated and refined in St. Mary's Honor Center v. Hicks , 509

U.S. 502 (1993).

16. Pursuant to this an alysis, Petitioner has the burden

of establishing by a preponderance of the evidence a prima facie

case of unlawful discrimination. If a prima facie case is

established, Respondent must articulate some legitimate, non-

discriminatory reason for its employment action. If the

employer articulates such a reason, the burden of proof then

shifts back to Petitioner to demonstrate that the offered reason

is merely a pretext for discrimination. As the Supreme Court

stated in Hicks , before finding discrimination, "[t ]he fact

finder must believe the Plaintiff's explanation of intentional

discrimination." 509 U.S. at 519.

17. In Hicks , the Court stressed that even if the fact

finder does not believe the proffered reason given by the

employer, the burden remains with Petitioner to demonstrate a

discriminatory motive for the adverse employment action. Id.

18. In order to establish a prima facie case, Petitioner

must establish that:

(a ) He is a member of a protected group;

(b ) He is qualified for the position;

(c ) He was subject to an adverse employment

decision;

(d ) He was treated less favorably than

similarly-situated persons outside the

protected class; and

(e ) There is a causal connection

between (a) and (c).

Canino v. EEOC , 707 F.2d 468, 32 FEP Cases 139 (11th Cir. 1983);

Smith v. Georgia , 684 F.2d 729, 29 FEP Cases 1134 (11th Cir.

1982); Lee v. Russell County Board of Education , 684 F.2d 769,

29 FEP Cases 1508 (11th Cir. 1982), appeal after remand, 744

F.2d 768, 36 FEP Cases 22 (11th Cir. 1984).

19. Petitioner has the burden of establishing a prima

facie case of unlawful discrimination by a preponderance of the

evidence. As indicated earlier, if a prima facie case is

established a presumption of discrimination arises and the

burden shifts to Respondent to advance a legitimate ,

non-discriminatory reason for the action taken against

Petitioner. However, Respondent does not have the ultimate

burden of persuasion but merely an intermediate burden of

production. Once this non-discriminatory reason is offered by

Respondent, the burden shifts back to Petitioner. Petitioner

must now demonstrate that the offered reason was merely a

pretext for discrimination.

20. In the instant case, Petitioner alleges that he was

terminated because of racial discrimination and discrimination

based on Petitioner's disability. Thus, Petitioner must prove,

by a preponderance of the evidence, that Respondent acted with

discriminatory intent. Case law recognizes two ways in which

Petitioner can establish intentional discrimination. First,

discriminatory intent can be established through the

presentation of direct evidence. See Early v. Champion

International Corporation , 907 F.2d 1081 (11th Cir. 1990).

Second, in the absence of direct evidence of discriminatory

intent, intentional discrimination can be proven through the

introduction of circumstantial evidence.

21. In this case, Petitioner's race is black; and as such,

he belongs to a protected class. Petitioner was terminated from

his job with Lancaster Correctional Institution. The

termination constitutes an adverse employment action. However,

Petitioner's job of counseling required his attendance at work

for a reasonable amount of time. Petitioner was not present at

work for a reasonable amount of time and, therefore, was not

qualified to perform the duties of his job. In addition,

Petitioner did not establish that similarly situated

non-minority employees were treated more favorably. Petitioner

also failed to establish any causal connection between his race

or disability and his termination. Therefore, Petitioner has

not established a prima facie case of race or disability

discrimination.

22. The burden is on Petitioner and not on Respondent to

introduce admissible evidence that his conduct was similar in

nature to other employees outside his protected classification

and that the other employees were treated more favorably.

Jones v. Gerwens , 874 F.2d 1534, 1541 (11th Cir. 1989). In

order to establish that employees are similarly situated,

Petitioner must show he and comparable employees are similarly

situated in all respects, including dealing with the same

supervisor, having been subject to the same standards and that

Petitioner engaged in approximately the same conduct as the

other employees. See Gray v. Russell Corporation , 681 So. 2d

310, 312, 313 (Fla. 1st DCA 1996) ; Jones 137 F.3d at 1311-13.

23. Petitioner alleges that two other employees, Doris

Jones and Victoria Englehart, were similarly situated and not

terminated for excessive absenteeism. However, the evidence

presented at hearing does not show that either of these

employees was similarly situated.

24. Doris Jones and Victoria Englehart were both permanent

status employees. In contrast, Petitioner was a probationary

employee that did not have permanent status. Additionally,

Petitioner presented no evidence as to why these employees were

allegedly absent from work or even the duration and frequency of

the absences. Lastly, Doris Jones is a black female and, thus,

not outside of Petitioner's protected classification. As a

result, Petitioner failed to prove these employees were

similarly situated.

25. Petitioner has the burden of proving that he was

discriminated against because of his disability. Brand v.

Florida Power Corporation , 633 So. 2d 504 (Fla. 1st DCA 1996).

26. "Handicap" is not defined in Section 760.10, Florida

Statutes; however, Florida courts have adopted the federal

definition at 29 U.S. Code, Section 706(8)(3) for claims

alleging handicap discrimination brought under Florida's Human

Rights Act. Id. As a result, Petitioner must prove he (1) had

a physical or mental impairment which substantially limited one

or more of his major life activities, (2) he had a record of

such impairment, or (3) he was regarded as having such an

impairment. Examples of major life activities include caring

for oneself, walking, seeing, speaking, breathing, learning,

working, sitting, standing, lifting, and emotional processes

such as thinking, concentrating, and interacting with others.

27. Petitioner claims he was terminated because of his

alleged disability. Petitioner is disabled because of a

psychiatric condition which includes depression, delusions, and

obsessive/compulsive disorder. However, Petitioner failed to

establish that he was substantially restricted in any of his

major life activities or that the bona fide requirement of

reasonable attendance at his counseling job could be

accommodated.

28. Indeed, Petitioner failed to establish that he ha d a

record of a disability while working at Lancaster Correctional

Institution. See Petitioner's Proposed Recommended Order. No

evidence was presented that Petitioner requested any type of

accommodation for his alleged disability. Additionally,

Petitioner did not present any evidence that when he returned to

work after being under a doctor's care that he returned with any

type of job restrictions.

29. Petitioner also failed to establish that Respondent

regarded him as disabled. No evidence was presented that

Respondent erroneously believed that Petitioner could not

perform his assigned job duties.

30. Even if Petitioner were deemed to meet the criteria of

having a disability, Petitioner failed to establish that he was

qualified for his job as a substance abuse counselor despite his

disability. No evidence was presented that Petitioner could

perform his job duties apart from his disability.

31. Petitioner also failed to establish a causal

connection between his alleged disability and his termination.

32. Even if Petitioner provided sufficient proof to

establish a prima facie case of race or disability

discrimination, Respondent articulated a credible, non-

discriminatory basis for Petitioner's termination.

33. Respondent established that P etitioner failed to

report to work approximately thirty-five percent of the time in

an approximately five and a half-month period. Petitioner's

absences began almost immediately upon being hired by the

Respondent. Petitioner consistently did not report for work

during this entire period. Even if all of Petitioner's absences

were for legitimate purposes, the absences still were excessive.

The Public Employees Relations Commission has consistently held

that legitimate absences can still be deemed excessive. As a

result, Respondent articulated a legitimate, non-discriminatory

reason for terminating Petitioner.

34. Petitioner theorized that as a result of attempting to

file a workers' compensation claim, he was terminated in order

that Respondent could avoid workers' compensation liability.

Petitioner's theory is not supported by the evidence. As a

result, Petitioner has failed to establish a retaliation claim.

35. To establish a prima facie case for retaliation under

the Florida Civil Rights Act of 1992, Petitioner must prove that

he engaged in a statutorily protected activity, that he was

subjected to an adverse employment action, and that the adverse

employment action occurred as a result of Petitioner's protected

activities. See EEOC v. Reichold Chems, Inc. , 988 F.2d 1564,

1571 (11th Cir. 1993).

36. In the instant case, Respondent assisted Petitioner in

filing a workers' compensation claim and the claim was

eventually denied by the Division of Workers' Compensation.

37. Even if Petitioner's theory were supported by the

evidence, Petitioner's claim is not actionable under the Florida

Civil Rights Act of 1992. The purpose of workers' compensation

law and employment discrimination law is designed to fulfill

separate and distinct goals. Florida Workers' Compensation Act

was created to provide injured employees with efficient delivery

of disability benefits and medical benefits when an employee is

injured on the job, Barry v. Burdines , 675 So. 2d 587 (Fla.

1996), whereas employment discrimination law was created to

prevent the prejudicial treatment of disabled persons through

the elimination of these possible barriers in the workplace.

See 29 C.F.R. Pt. 1630, App (1995). Thus, if Petitioner's claim

were supported by the evidence, it may be actionable under

Florida workers' compensation law, but is not actionable under

the Florida Civil Rights Act of 1992.

RECOMMENDATION

Based upon the findings of fact and conclusions of law ,

it is

RECOMMENDED:

That the Florida Commission on Human Rela tions enter a

final order dismissing the Petition for Relief.

DONE AND ENTERED this 6th day of June, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Divisio n of Administrative Hearings

this 6th day of June, 2001.

COPIES FURNISHED:

Otis Ware

Post Office Box 2155

Trenton, Florida 32693

William J. Thurber, IV, Esquire

Department of Corrections

2601 Blairstone Road

Tallahassee, Florida 32399-2500

Azizi M. Dixon, Agency Clerk

Florida Commission on Human Relations

325 John Knox Road

Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana A. Baird, General Counsel

Florida Commission on Human Relations

325 John Knox Road

Building F, Suite 240

Tallahassee, Florida 32303-4149

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.