02-002311 Ruben Rivero vs. Dade County Status: Closed Recommended Order on Tuesday, November 12, 2002.

Summary: Petitioner failed to prove he could perform essential functions of his job at the time he was terminated; recommended that his Petition for Relief from employment discrimination be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RUBEN RIVERO, )

)

Petitioner, )

)

vs. ) Case No. 02 - 2311

)

MIAMI - DADE COUNTY, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

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

on Augus t 14, 2002, by video teleconference, with the parties

appearing in Miami, Florida, before Patricia Hart Malono, a

duly - designated Administrative Law Judge of the Division of

Administrative Hearings, who presided in Tallahassee, Florida.

APPEARANCES

Fo r Petitioner: Ruben Rivero, pro se

601 Southeast 8th Street

Hialeah, Florida 33010 - 5606

For Respondent: William X. Candela, Esquire

Miami - Dade County Attorney's Office

Stephen P. Clark Center

111 Northwest 1st Street, Suite 2810

Miami, Florida 33128 - 1993

STATEMENT OF THE ISSUE

Whether the Respondent discriminated against the Petitioner

on the basis of disability, in violation of the Florida

Civil Rights Act of 1992, Section 760.10 et seq. , Florida

Statutes.

PRELIMINARY STATEMENT

On June 7, 2002, Ruben Rivero filed a Petition for Relief

with the Florida Commission on Human Relations ("FCHR") in which

he claimed that Miami - Dade County had discriminated against him

for the following reasons:

During the conformation of a supervisory

position becoming available, a younger

inexperienced individual was hire[d] and

began training for said position. I was

hired for (39) hour s a week, during the

availability of the supervisory position my

hours were reduced to roughly (16) hours a

week. As a result my health benefits were

canceled, followed by my medical care.

Between May 22, 1999 and July 18, 1999 I was

on Call - out status. On July 22, 1999 I

collected a letter for my local post office

stating that I requested FMLA, which I did

not nor was I made aware of any Florida Act.

I had (15) days to supply medical

certification to qualify for FMLA, return to

work or resign. On Augu st 10, 1999 I was

terminated for abandonment of position.

The relief sought by Mr. Rivero is credit for his "retirement

membership for the entire term, enrollment in the retiree

medical, dental and/or life insurance program, and an honorable

discharge." 1

The FCHR transmitted the Petition for Relief with the

Division of Administrative Hearings on June 12, 2002, before

receiving an answer from Miami - Dade County; it was, however,

noted on the Transmittal of Petition sent to the Division of

Administrative Hear ings with the Petition for Relief that, among

other documents, a copy of the notice and Petition for Relief

had been sent to William X. Candela, an Assistant County

Attorney for Miami - Dade County. An Initial Order was also sent

to Mr. Candela, but Miami - D ade County did not file either an

answer to the Petition for Relief or a response to the Initial

Order. On the basis of information provided by Mr. Rivero, the

final hearing in this matter was scheduled for August 14

through 16, 2002. The hearing was su bsequently re - scheduled for

August 14, 2002, by video teleconference.

At the hearing, Mr. Rivero testified in his own behalf, and

Petitioner's Exhibits 1 through 14 were offered and received

into evidence. 2 Petitioner's Exhibit 15 was offered into

evidenc e, but was rejected as irrelevant; Mr. Rivero proffered

the exhibit. Miami - Dade County presented the testimony of

Diane M. Congdon, the Personnel Manager for the Metropolitan

Dade County Park and Recreation Department, and Cindy J. Falcon,

a security sup ervisor with the Metropolitan Dade County Park and

Recreation Department. Respondent's Exhibits 1 and 2 were

offered and received into evidence.

Counsel for Miami - Dade County stated at the hearing that a

transcript of the proceedings would be ordered and filed in this

case, and proposed recommended orders were to be filed 10 days

after the transcript was filed with the Division of

Administrative Hearings. No transcript has been filed to date,

and neither party has filed proposed findings of fact and

concl usions of law. In the absence of a transcript, the

findings of fact in this Recommended Order have been derived

from the parties' exhibits and from the undersigned's fairly

extensive notes of the testimony taken during the hearing.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

following findings of fact are made:

1. Mr. Rivero was first employed by Miami - Dade County in

November 1984, apparently as a security gua rd with the

Metropolitan Dade County Park and Recreation Department. He

took a physical examination and informed the doctor conducting

the examination that he suffered from cluster migraine headaches

and that they occurred about six to eight times each mo nth.

2. Mr. Rivero subsequently left his employment with

Miami - Dade County, but was re - hired in September 1986. At the

time he was re - hired, he advised the recruiting officer that he

suffered from migraine headaches.

3. Mr. Rivero was employed by the M etropolitan Dade County

Park and Recreation Department from September 1986 until

August 10, 1999.

4. From January 1996 through May 1999, Mr. Rivero was

employed as a park ranger by the Metropolitan Dade County Park

and Recreation Department, and he worked at the Metrozoo. His

job responsibilities included patrolling areas of the zoo,

assisting in emergencies, providing information to patrons, and

providing for the safety of patrons and security for Miami - Dade

County property.

5. Because of his migraine h eadaches, Mr. Rivero often was

absent from work, and he was advised several times by his

supervisors, in documents entitled Record of Counseling, that

the frequency of his absences was unacceptable. The most recent

Record of Counseling submitted at the he aring by Mr. Rivero was

dated November 24, 1997.

6. On January 10, 1995, Mr. Rivero consulted with Ray

Lopez, M.D., a neurologist, about his recurring migraine

headaches, which had become more intense and frequent after

Mr. Rivero was involved in an autom obile accident in

November 1994. Dr. Lopez diagnosed Mr. Rivero with migraine

headaches, with post - traumatic, likely cervicogenic,

intensification.

7. Dr. Lopez treated Mr. Rivero for his headaches from

January 1995 until at least December 1999. During this time,

Mr. Rivero was seen by Dr. Lopez approximately twice a month.

8. Between 1995 and 1999, Mr. Rivero's migraine headaches

continued to intensify in severity and frequency. By

January 1999, Mr. Rivero found it increasingly more difficult to

carry out his duties as a park ranger at Miami - Dade County's

Metrozoo when he had a headache, and his headaches were

occurring almost daily.

9. Between January 1999 and March 1, 1999, Dr. Lopez wrote

several notes documenting Mr. Rivero's inability to work on

specified days because of the headaches.

10. Effective March 29, 1999, Mr. Rivero's work schedule

was cut from 39 hours per week to 16 hours per week. Mr. Rivero

had previously worked Saturdays through Wednesdays, with

Thursdays and Fridays off. As a re sult of the change,

Mr. Rivero was assigned to work on Saturdays and Sundays from

10:00 a.m. to 6:30 p.m.

11. Mr. Rivero last reported for work at the Metrozoo on

or about May 22, 1999. Mr. Rivero was unable to continue

working because of the frequency a nd severity of his headaches.

Nonetheless, Mr. Rivero called the Metrozoo office regularly

between May 22, 1999, and July 18, 1999, to report that he was

absent because of illness. He did not, however, have any

intention of returning to work after May 19 99 because he

believed he could no longer perform the duties required of a

park ranger. 3

12. In July 1999, Diane Condon, the personnel manager for

Metropolitan Dade County Park and Recreation Department, was

told by Mr. Rivero's supervisor at the Metrozoo that Mr. Rivero

had been absent for quite some time, that he had exhausted his

paid leave time, and that the reason for his absences was

medical. It was suggested to Ms. Congdon that Mr. Rivero be

offered leave under the Family Medical Leave Act of 1993.

13. In a letter dated July 12, 1999, from John Aligood,

Chief of the Human Resources Division of the Metropolitan Dade

County Park and Recreation Department, Mr. Rivero was notified

that he had been preliminarily granted family/medical leave but

that he would have to present a certification from his doctor

within 15 days of the date he received the letter in order for

his eligibility for such leave to be finally determined.

14. Mr. Rivero was advised in the July 12, 1999, letter

that continuation of the leave was contingent on receipt of

medical certification from his doctor; that he must furnish the

certification within 15 days after he received the letter; and

that "[f]ailure to do so will result in relinquishing FMLA

leave; you will then be required to return to the full duties of

your job or resign, or you will be terminated for abandonment of

position."

15. The July 12, 1999, letter was sent to Mr. Rivero via

certified mail, and he picked it up on July 22, 1999.

16. Mr. Rivero contacted Ms. Congdon on July 22, 1999, and

told her that Dr. Lopez was unavailable at that time to complete

the medical certification. Ms. Congdon advised him that the

medical certification was required for the family/medical leave

to continue. 4

17. In a letter dated August 10, 1999, which was prepared

by Ms. Congdon, Mr. Rivero was advised that his employment had

been terminated for abandonment of position because he had

failed to provide the medical certification required for

continuation of family/medical leave by July 26, 1999, which was

15 days after July 12, 1999. 5

Summary

18. The evidence presented by Mr. Rivero is insufficient

to establish with the requisite degree of certainty that his

employment as a park ranger with the Metropolitan Dade County

Park and Recreation Department was terminated because of his

medical condition. Mr. Rivero himself testified that he

believed he was unable to perform the duties required by his job

as of May 1999 because of his migraine headaches and that he had

no intention of returning t o work subsequent to May 1999.

19. The evidence presented by Mr. Rivero is sufficient to

support the inference that, prior to July 12, 1999, Mr. Rivero

did not advise his supervisor at the Metrozoo or anyone else in

the Metropolitan Dade County Park and R ecreation Department that

he did not intend to return to work after the end of May 1999.

His being placed preliminarily on family/medical leave as of

July 12, 1999, did not harm Mr. Rivero but, rather, resulted in

his health benefits being continued until his termination on

August 10, 1999.

CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2002) .

21. Sections 760.01 through .11 and 509.092, Florida

Statutes, are known as the Florida Civil Rights Act of 1992, as

amended. 6 Section 760.10, Florida Statutes (1999), the statute

applicable in this case, provided in pertinent part:

(1) It is an unlaw ful employment practice

for an employer:

a) To discharge or to fail 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

indivi dual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

22. The FCHR has defined "handicap" in Rule 60Y - 3.001(14),

Florida Administrative Code, as follows:

"Handicap" means a condition that prevents

normal functioning in som e way; a person

with a handicap does not enjoy the full and

normal use of his or her sensory, mental, or

physical faculties.

23. It is the burden of the petitioner in an employment

discrimination case to prove by a preponderance of the evidence

that the challenged employment practice was discriminatory and

violated the Florida Civil Rights Act of 1992. Kelly v. K.D.

Construction of Florida, Inc. , 866 F. Supp. 1406, 1411 (S.D.

Fla. 1994).

24. In a case such as the instant case, where there is no

direct e vidence of discriminatory intent with respect

Mr. Rivero's termination, Mr. Rivero must first present a prima

facie case establishing that the termination was discriminatory;

once Mr. Rivero has done so, the burden shifts to Miami - Dade

County to produce ev idence of a legitimate, non - discriminatory

reason for Mr. Rivero's termination; and, finally, if Miami - Dade

County meets its burden of producing such evidence, the burden

shifts back to Mr. Rivero, who must establish that the

non - discriminatory reason put forward by Miami - Dade County was

merely pretextual and that he was terminated for a

discriminatory reason. See Vickers v. Federal Express Corp. ,

132 F. Supp. 3d (S.D. Fla. 2000), citing McDonnell Douglas Corp.

v. Green , 411 U.S. 792, 802 - 05 (1973) and Te xas Department of

Community Affairs v. Burdine , 450 U.S. 248, 248 (1981).

25. The court in Smith v. Avatar Properties, Inc. ,

714 So. 2d 1103, 1106 (Fla. 5th DCA 1998), set forth the

elements that must be proven to establish a prima facie case of

discrimin ation on the basis of a disability:

To present a prima facie case of employment

discrimination based on disability under

FCRA [Florida Civil Rights Act], a plaintiff

must show 1) that he or she is a person with

a disability; 2) that he or she is

"qualified " for the position apart from his

or her disability; and 3) that he or she was

denied the position solely because of his or

her disability.

26. Based on the findings of fact herein, Mr. Rivero has

shown that he is a person with a disability, or "handicap ," as

that term is defined in Rule 60Y - 3.001(14), Florida

Administrative Code. Mr. Rivero has also shown that he was

terminated from his employment, which was an adverse employment

action. He has not, however, shown that he was qualified for

the position of park ranger at the Metrozoo, either in May or

August 1999, apart from his disability.

27. The court in Smith observed that the Florida Civil

Rights Act is to "be construed in conformity with the American

with Disabilities Act (ADA), and its predecesso r, the

Rehabilitation Act," and that "[t]he ADA provides that a

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

with or without reasonable accommodation, can perform the

essential functions of the job." 714 So. 2d at 1106 - 07.

28. As set fo rth in the findings of fact herein,

Mr. Rivero admitted that when he stopped reporting for work

after May 22, 1999, he believed he was not capable of continuing

in his employment because of his frequent and intensely painful

migraine headaches and that no accommodation would assist him in

performing his job responsibilities. Mr. Rivero, furthermore,

had no intention of returning to work with the Metropolitan Dade

County Park and Recreation Department. For these reasons,

Mr. Rivero has failed to establish a prima facie case of

discrimination under the Florida Civil Rights Act of 1992, and

he has, therefore, failed to prove by a preponderance of the

evidence that the termination of his employment on August 10,

1999, was unlawful. See Tourville v. Securex, I nc. ,

769 So. 2d 491, 492 (Fla. 4th DCA 2000)("If appellee terminated

Tourville's employment, such a discharge of Tourville was not

unlawful under section 760.10(8)(a), Florida Statutes (1993)

[Section 760.10(14), Florida Statutes(1999)], since his

hospital ization and illness prevented him from performing the

physical requirements of his job as an on - site security guard,

even with reasonable accommodation.").

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED t hat the Florida Commission on Human

Relations enter a final order dismissing the Petition for Relief

of Ruben Rivero.

DONE AND ENTERED this 12th day of November, 2002, in

Tallahassee, Leon County, Florida.

_____________________ ______________

PATRICIA HART MALONO

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.u s

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of November, 2002.

ENDNOTES

1 / Mr. Rivero clar ified at the hearing that he did not contend

that he was denied promotion to the supervisory position because

of discrimination.

2 / Many, if not most, of the exhibits introduced by Mr. Rivero

consist of hearsay. Hearsay is admissible in proceedings

cond ucted pursuant to Section 120.57(1), see

Section 120.569(2)(g), Florida Statutes, although hearsay is not

sufficient, of itself, to support a finding of fact. See

Section 120.57(1)(c), Florida Statutes. Hearsay evidence may,

however, be relied upon to su pplement or explain other evidence.

Id. To the extent that the findings of fact herein incorporate

matters contained in hearsay evidence submitted by Mr. Rivero,

it has been determined that the hearsay evidence supplements and

explains evidence provided by Mr. Rivero in his testimony.

3 / In a letter dated December 16, 1999, addressed to "To Whom It

May Concern," Dr. Lopez stated his opinion that Mr. Rivero was

unable to sustain gainful employment.

4 / In a letter dated August 2, 1999, addressed to "To Whom It

May Concern," a person identifying herself as an assistant

office manager in Dr. Lopez's office stated, "Ruben Rivero has a

U.S. Department of Labor form to be completed at this time.

Dr. Lopez is has been [sic] out of town and will not return

unt il next week. Due to the doctor being out we can not

complete this form until he returns." See Petitioner's

Exhibit 3. It is not clear whether Mr. Rivero furnished this

letter to Ms. Congdon.

5 / Because he did not receive the letter from Mr. Aligood u ntil

July 22, 1999, the 15 - day deadline for Mr. Rivero to submit the

medication certification was actually August 6, 1999.

Notwithstanding Ms. Congdon's error in calculating the date on

which Mr. Rivero's medical certification was due, Mr. Rivero was

not terminated prior to the expiration of the 15 - day time

period, and the error was, therefore, harmless.

6 / Section 509.092, Florida Statutes, applies to public

accommodations and is not at issue in this case.

COPIES FURNISHED:

William X. Candela, Esquire

Miami - Da de County Attorney's Office

Stephen P. Clark Center

111 Northwest 1st Street, Suite 2810

Miami, Florida 33128 - 1993

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Cecil H oward, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Ruben Rivero

601 Southeast 8th Street

Hialeah, Florida 33010 - 5606

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the righ t 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.