03-000055 Rosevelt Hughes vs. City Of Leesburg Status: Closed Recommended Order on Thursday, May 29, 2003.

Summary: Respondent did not terminate Petitioner`s employment because he had sickle cell trait.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROSEVELT HUGHES, )

)

Petitioner, )

)

vs. ) Case No. 03 - 0055

)

CITY OF LEESBURG, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conduct ed in this case on April 9,

2003, in Leesburg, Florida, before the Division of

Administrative Hearings by its designated Administrative Law

Judge, Suzanne F. Hood.

APPEARANCES

For Petitioner: Larry H. Colleton, Esquire

2300 East Co ncord Street

Orlando, Florida 32803

For Respondent: Stephen Johnson, Esquire

McLin & Burnsed

1000 West Main Street

Post Office Box 491357

Lees burg, Florida 34749 - 1357

STATEMENT OF THE ISSUES

The issues are whether Petitioner's failure to file a

Petition for Relief constitutes a failure to properly invoke the

jurisdiction of the Division of Administrative Hearings and, if

not, whether Respond ent violated Section 760.10, Florida

Statutes, by discriminating against Petitioner based on his

disability.

PRELIMINARY STATEMENT

On February 22, 2002, Petitioner Rosevelt Hughes

(Petitioner) filed an Amended Charge of Discrimination with the

Florida C ommission on Human Relations (FCHR). The charge

alleged that Respondent City of Leesburg had discriminated

against Petitioner based on his disability by discharging him

from employment as a firefighter on account of his disability.

FCHR did not issue a Notice of Determination in this case

within the 180 - day time frame set forth in Section 760.11(8),

Florida Statutes. In a letter dated December 30, 2002,

Petitioner's counsel requested an administrative hearing.

On January 9, 2003, FCHR referred the c ase to the Division

of Administrative Hearings. FCHR made this referral even though

Petitioner had not filed a Petition for Relief.

Respondent filed a response to the Initial Order on

January 14, 2003. Petitioner filed his response on January 15,

2003.

A Notice of Hearing dated January 23, 2003, scheduled the

hearing for March 13, 2003.

On February 26, 2003, Petitioner filed a Motion for

Continuance. An order dated February 28, 2003, granted the

motion and rescheduled the hearing for April 9, 2003.

In a letter dated April 4, 2003, Dr. Lourdes Mathew

requested that she be excused from testifying on April 9, 2003.

Petitioner filed a Motion for Continuance on April 7, 2003.

The motion stated that Dr. Mathew, a critical witness, would not

be availabl e to testify at the hearing. An order dated April 8,

2003, denied the motion. However, during the hearing, the

parties agreed that Petitioner could take Dr. Mathew's

deposition in lieu of live testimony and that the deposition

could be filed as a post - he aring submission.

When the hearing commenced, Respondent argued that

Petitioner had not properly invoked the jurisdiction of the

Division of Administrative Hearings because he had not filed a

Petition for Relief. The undersigned ruled that the parties

c ould address all procedural and jurisdictional questions in

their proposed recommended orders after the hearing on the

merits of the case. Petitioner's request that the case be

dismissed on procedural and/or jurisdictional grounds is denied

for the reason s set forth below in the Conclusions of Law.

During the hearing, Petitioner testified on his own behalf

and presented the testimony of five witnesses. Petitioner did

not offer any exhibits for admission into evidence.

Respondent presented the testimon y of four witnesses.

Respondent offered nine exhibits, which were accepted into

evidence.

At the conclusion of the hearing, the parties anticipated

taking Dr. Mathew's deposition on April 18, 2003. Based on that

assumption and pursuant to the agreement of the parties, the

undersigned directed the parties to file their proposed orders

on or before May 19, 2003.

Petitioner took Dr. Mathew's deposition on April 23, 2003.

A Transcript of the proceeding was filed with the Division

of Administrative Hearing s on April 30, 2003.

On May 19, 2003, Respondent filed three proposed

recommended orders: (a) a Proposed Recommended Order based

solely on procedural and jurisdictional arguments;

(b) a Proposed Recommended Order containing substantive

arguments based o n the merits of the case and including

references to Dr. Mathew's deposition testimony; and

(c) a Proposed Recommended Order based on the merits of the

case, excluding reference to Dr. Mathew's deposition.

On May 20, 2003, Respondent filed an unsigned co py of

Dr. Mathew's deposition. Respondent's cover letter stated that

Respondent would file the signed errata sheet upon its receipt.

The signed errata sheet was filed on May 28, 2003.

On May 27, 2003, Petitioner filed proposed findings of

fact.

FINDINGS OF FACT

1. Petitioner began his employment as a firefighter with

the City of Leesburg on or about October 20, 1987.

2. Respondent operates two fire stations: Station One and

Station Two. At all times material here, Petitioner was

assigned to Station One.

3. In the months prior to October 15, 2001, Respondent

began using an advance life support (ALS) rescue truck at

Station One. The ALS rescue truck had to have a paramedic on

board for all emergency calls, a requirement that did not exist

for fire trucks. The ALS rescue truck was required to respond

to all emergency calls for both rescue stations. All firemen,

even those who were not paramedics or emergency medical

technicians (EMTs) had to take turns, on a rotating basis,

riding with the paramedi c in the ALS rescue truck.

4. Petitioner was nearing the time when he could retire.

He felt that his seniority in the department entitled him to a

transfer to Station Two, which answered fewer calls and did not

have an ALS rescue truck. Petitioner req uested the transfer,

telling some of his superiors that he did not feel he was

qualified to ride the ALS rescue truck. Petitioner told

Lieutenant Richardson that he did not like riding the ALS rescue

truck and "wanted off of it."

5. Captain Pierce, P etitioner's supervisor, denied

Petitioner's request to transfer to Station Two. However,

Captain Pierce did agree to ask some of the more junior firemen

to take Petitioner's rotation on the ALS rescue truck from time

to time.

6. On or about October 15, 2001, the firefighters assigned

to Station One were viewing a training video. During the video

presentation, Petitioner was reclining on a sofa with a built - in

recliner. Petitioner had his arm over his eyes and a sucker in

his mouth.

7. Lieutenant Ri chardson asked Petitioner if he was sick.

Petitioner replied that he was taking his temperature.

Lieutenant Richardson asked Petitioner what he meant in stating

that he was taking his temperature. Petitioner responded that

he was going to get off that r escue truck, one way or the other.

8. Shortly thereafter, Lieutenant Richardson again asked

Petitioner if he was OK. Petitioner replied that he was fine.

9. Station One then got a call to respond to an emergency.

Petitioner questioned Lieutenant R ichardson about the ALS rescue

truck responding to the call. Lieutenant Richardson explained

that the ALS rescue truck was to follow the fire engine.

Petitioner then stated that he wanted to make sure that he was

doing things properly because his time on Rescue One, the ALS

rescue truck, was limited. Lieutenant Richardson asked

Petitioner to repeat his statement. Petitioner complied with

the request.

10. The emergency call on the afternoon of October 15,

2001, came in about 4:00 p.m. The weather was hot and sunny.

The firemen were bunkered out, wearing heavy fire pants and

jackets, safety boots and gloves, and helmets. The firemen did

not wear their air packs/breathing units.

11. The emergency was located at the scene of an

automobile accident on D ixie Highway near Leesburg Regional

Medical Center in Leesburg, Florida. The accident involved two

vehicles: a small car and a large truck/trailer.

12. There were two persons in the car. The driver of the

car died in the accident. The passenger in t he car was alive,

but unconscious, when the firemen arrived at the scene. The

rescue crew immediately removed the passenger, who was sent to

the hospital by ambulance. Petitioner assisted in the rapid

extrication of the passenger.

13. The firemen coul d not extricate the deceased driver of

the car until a wrecker pulled the semi - truck off of the car.

Therefore, the firemen stood around, during a brief delay,

waiting for the wrecker.

14. A large crowd gathered at the scene because the

accident was ve ry severe. Petitioner assisted in crowd control,

asking some people to stand back. Alphonso Sanders,

Petitioner's former neighbor was in the crowd. Petitioner did

not appear to be his usual chipper self, so Mr. Sanders asked

Petitioner what was wrong. Petitioner replied, "I don't feel

good. I think it's my sickle cell and my legs are hurting."

15. After the wrecker moved the truck, the firemen began

extricating the driver of the car. The extrication required the

use of heavy hydraulic equipment. F or a while, Petitioner

assisted in operating the levers that turned the hydraulic power

off and on.

16. As the extrication process continued, other firemen

began operating the hydraulic equipment. Petitioner, who was no

longer involved in the operation , leaned casually back on the

rear of the car that contained the deceased victim. Petitioner

had his legs and feet crossed in front of him.

17. Lieutenant Richardson, the officer in charge of the

operation, was standing within six feet of Petitioner.

Li eutenant Richardson perceived Petitioner’s stance to be

unprofessional and disrespectful due to the severity of the

accident and the presence of the deceased victim in the car.

Lieutenant Richardson gave Petitioner a direct order to stop

leaning on the c ar. Petitioner replied that he was tired and

did not change his position.

18. Lieutenant Richardson then gave Petitioner a second

direct order to stand up. Petitioner responded that his leg

hurt and did not obey the order. Petitioner did not appear t o

be in pain to Lieutenant Richardson, who is trained as an EMT to

observe and assess people in physical distress.

19. Captain Pierce was also standing close to Petitioner.

He asked Petitioner if he had heard his lieutenant give him two

orders and if h e was going to obey his superior officer.

Petitioner responded, "No, I'm tired, my leg hurts, I'm not

going to stand up." Captain Pierce then ordered Petitioner to

get into the Captain’s vehicle in order to leave the scene.

20. Once ordered to leave t he scene by Captain Pierce,

Petitioner walked unassisted from the car to the Captain’s

vehicle and sat inside. The car and the Captain’s vehicle were

approximately 50 feet apart. Petitioner was not limping and did

not appear to be distressed in any way.

21. When Petitioner and Captain Pierce got into the

Captain's vehicle, Captain Pierce asked Petitioner whether he

was hurt or injured. Petitioner denied being hurt or injured.

Petitioner then began to chastise Captain Pierce for not

transferring him t o Station Two.

22. After returning to the fire station, Petitioner stood

outside in the sun, filling out paperwork. He did not request

nor receive any medical attention.

23. Upon report of the incident to Deputy Chief Geoffrey

Beyer, Petitioner was pl aced on administrative leave pending an

investigation of the incident at the scene and Petitioner’s

failure to obey direct orders. Petitioner continued on

administrative leave until November 20, 2001, when he was

terminated.

24. Petitioner was told he h ad sickle cell trait in 1971

when he was in the military. In 1981, Petitioner complained to

a physician that he had blood in his urine on two occasions. In

1991, he complained to a physician had blood in his urine on one

occasion. Petitioner admits, and his medical records reflect,

that he is diagnosed with sickle cell trait and not sickle cell

disease.

25. All firefighters like Petitioner are required to

undergo an annual medical examination. The doctors performing

these exams do not make any report to Respondent about the exams

unless they find some indication that a fireman is not fit to

perform their duties pursuant to state guidelines.

26. Petitioner also had medical examinations every time

Respondent changed health insurance carriers and on c ertain

occasions when Petitioner was ill. During at least some of

these exams, Petitioner informed the physicians that he had

sickle cell trait. However, Respondent was not entitled to

review Petitioner's medical records without his permission.

Moreover , Respondent never had a reason to make such a request.

27. Sickle cell trait in and of itself is not a disease or

disability. Rather, sickle cell trait is a genetic

predisposition for the presence of Hemoglobin S in the blood.

28. Petitioner has had only a few occasions throughout the

past 20 years where he experienced any symptoms related to

sickle cell trait. Dr. Lourdes Mathew, Petitioner's

hematologist, classified the occurrence of these symptoms, such

as urine in the blood, thrombosis or crampi ng, dehydration or

joint pain, as sporadic in nature. Permanent effects or

long - term impact have only been observed in rare cases where

severe nerve damage has occurred.

29. Dr. Mathew’s opinion is that despite Petitioner’s

diagnosis with sickle cel l trait, he was physically able to

perform his normal job duties at the City of Leesburg as a

firefighter. Dr. Mathew also testified that sickle cell trait

does not substantially impair any of Petitioner’s major life

activities. However, Dr. Mathew would not advise Petitioner to

engage in fighting forest fires where he might become

overexerted and unable to maintain his hydration.

30. There are no medications that are generally prescribed

for individuals with sickle cell traiteatment for

individua ls with sickle cell trait is merely self - policing in

nature and involves preventative and corrective measures, such

as maintaining hydration and avoiding overexertion.

31. Respondent learned for the first time of Petitioner’s

alleged "disability" as a res ult of the charge filed against

Respondent. At no time prior to the incident on October 15,

2001, did the City of Leesburg or its employees have knowledge

of any physical limitations of Petitioner due to sickle cell

trait. Any evidence to the contrary is not persuasive.

32. Respondent's Human Resources Director, Jakki

Cunningham - Perry, performed an investigation of the October 15,

2001, incident. During her interview of Petitioner, he told her

that he had been diagnosed as having sickle cell trait.

Pet itioner also told Ms. Cunningham - Perry that he could have

moved away from the vehicle when Lieutenant Richardson ordered

him to stand up but that he did not know what to do because

whatever he said seemed to fall on deaf ears.

33. Respondent has written rules and regulations,

operating procedures, and general orders that are provided to

all firemen. The document contains the following provisions, in

pertinent part:

ATTENTION TO DUTY

Department personnel shall at all times be

attentive to their duties a nd by their

alertness and observations, demonstrate

their interest in their work. They shall

act with dignity, maintaining a bearing

conducive to a good department at all times.

OBEDIENCE TO ORDERS

All personnel shall respect and obey all

laws and or dinances and the provision of

departmental orders from their superior,

including rules and regulations, duties, and

procedures.

34. Respondent's disciplinary policy defines

insubordination as refusal to carry out a reasonable

request/directive given by a supervisor. The disciplinary range

for insubordination includes suspension for one to three days,

suspension for four to five days, and discharge/termination.

35. Ms. Cunningham - Perry recommended termination of

Petitioner in a report dated November 13, 2001. Termination of

Petitioner's employment was appropriate instead of some form of

progressive discipline due to Petitioner's refusal to obey

direct orders during a rescue operation. The greater weight of

the evidence indicates that Petitioner refu sed the orders

because he wanted to be transferred to Station Two and not

because he was experiencing a flare up of symptoms related to

sickle cell trait.

36. Respondent did not receive any medical information

from Dr. Mathew about Petitioner's sickle c ell trait diagnosis

until November 15, 2001. Petitioner admits he did not give

prior direct notice to anyone at the fire department of any

physical limitations or symptoms he experienced as a result of

sickle cell trait. Petitioner’s physical performan ce on the job

had always been outstanding.

37. Prior to receiving Dr. Mathew's letter on November 15,

2001, Respondent never had a reason to question Petitioner's

fitness for duty. In fact, Petitioner was extremely fit for his

age. On one occasion, Pe titioner won a foot race with other

younger firemen. The race took place in August during a

training session in which the firemen were fully bunkered out

and wearing their air packs.

38. Petitioner’s alleged disability was not a factor in

the Respondent ’s decision to terminate him. The decision was

based solely upon Petitioner’s insubordination, failure to show

attention to duty, and failure to obey direct orders in

violation of City policy and fire department rules.

CONCLUSIONS OF LAW

39. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

case. Sections 120.569, 120.57(1), and 760.11, Florida

Statutes.

40. Chapter 760, Florida Statutes, does not specifically

refer to a "Petition for Relief" or r equire the timely filing of

a "Petition for Relief" in order to confer jurisdiction on the

Division of Administrative Hearings after receipt of a timely

request for hearing. Chapter 760, Florida Statutes, refers

exclusively to complaints filed by aggrieve d persons.

41. Rule 60Y - 5.008, Florida Administrative Code, sets

forth the procedure for filing a Petition for Relief from an

unlawful employment practice. Specifically, Rule 60Y - 5.008(1),

Florida Administrative Code, requires a complainant to file a

P etition for Relief within 30 days of service of a Notice of

Failure of Conciliation, a Notice of Determination of No

Reasonable Cause, etc. Rule 60Y - 5.008(2), Florida

Administrative Code, states as follows:

(2) For good cause shown, the Chairperson

m ay grant an extension of time to file the

Petition for Relief from an Unlawful

Employment Practice, provided the motion for

extension of time is filed within the 30 - day

period prescribed by Rule 60Y - 5.008(1).

42. Petitioner did not file a Petition for Re lief with

FCHR or the Division of Administrative Hearings. Even so, the

case should not be dismissed on procedural or jurisdictional

grounds for several reasons. First, the time period set forth

in Rule 60Y - 5.008(1), Florida Administrative Code, is not

j urisdictional; therefore, it is subject to equitable tolling.

Coleman v. City of Jacksonville , 16 FALR 786 (1993). Second,

the Amended Charge of Discrimination, can and is hereby

construed to be a Petition for Relief. Third, FCHR referred the

case to th e Division of Administrative Hearings without

including an Election of Rights form or a Petition for Relief.

Fourth, Respondent did not raise the issue of Petitioner's

failure to file the Petition for Relief until after the hearing

commenced. Finally, Re spondent has shown no prejudice as a

result of Petitioner's failure to file a timely Petition for

Relief. Accordingly, Respondent's motion to dismiss is denied.

43. Florida law prohibits employers from discriminating

against employee on the basis of a handicap. Section

760.10(1)(a), Florida Statutes. The Florida Civil Rights Act of

1992, Section 760.01, et seq ., is modeled after Title VII of the

Civil Rights Act of 1964, 42 U.S.C. Section 2000, et seq .;

therefore, case law interpreting Title VII is al so relevant to

cases bought under the Florida Civil Rights Act. Florida

Department of Community Affairs v. Bryant , 586 So. 2d 1205, 1209

(Fla. 1st DCA 1991). Additionally, the Florida Civil Rights

Acts is construed in accordance with the Americans with

D isability Act (ADA), 42 U.S.C., Section 12101, et seq .

Razner v. Wellington Regional Medical Center, Inc. 837 So. 2d

437, 440 (Fla. 4th DCA 2002).

44. A petitioner in a discrimination case has the initial

burden of proving a prima facie case of discrimin ation.

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

36 L.Ed.2d 668 (1973).

45. If the petitioner proves a prima facie case, the

burden shifts to the respondent to proffer a legitimate

non - discriminatory reason for the actions it took. Texas

Department of Community Affairs v. Burdine , 450 U.S. 248, 101

S. Ct. 1089, 67 L.Ed.2d 207 (1981). The respondent's burden is

one of production, not persuasion, as it always remains

Petitioner's burden to persuade the fact finder that the

pro ffered reason is a pretext and that the respondent

intentionally discriminated against the petitioner. Burdine ,

450 U.S. at 252 - 256.

46. In the instant case, Petitioner alleges that

Respondent discriminated against him based on his disability of

sickle cell trait by terminating his employment. Petitioner did

not present any direct evidence or statistical proof of the

alleged discrimination. Therefore, in order to prove a prima

facie case of discriminatory discharge, Petitioner must

establish the follo wing elements: (a) he is a disabled person

within the meaning of the Florida Civil Rights Act and the ADA;

(b) he was "qualified" to perform the job apart from his

disability; and (c) he was terminated solely because of his

disability. Brand v. Florida P ower Corporation , 633 So. 2d 504,

510 (Fla. 1st DCA 1994).

47. The first question is whether Petitioner presented

evidence that he was disabled. A person is disabled when:

(a) he or she has a physical or mental impairment that

substantially limits one or more major life activities;

(b) he or she has a record of having an impairment; or (c) he or

she is regarded as having an impairment. 42 U.S.C. Section

12102(2); 29 C.F.R. Section 1630.2(g)(I). A physical impairment

standing alone is not necessarily a disability. See Dutcher v.

Ingalls Shipbuilding , 53 F.3d 723, 726 (5th Cir. 1995).

48. "Major life activities" means functions such as caring

for oneself, performing manual tasks, walking, seeing, hearing,

speaking, breathing, learning, and working. 29 C.F.R. Section

1630.2(g)(I).

49. Medical testimony establishes that symptoms of sickle

cell trait are sporadic in nature and short in duration. The

effects of overexertion, resulting in dehydration and cramping,

are indistinguishable in people who have sickle cell trait and

people who do not have that diagnosis.

50. Courts have acknowledged that sickle cell trait is not

a disease but merely the existence of the gene that may or may

not result in sickle cell anemia. Norman - Bloodsaw v. Lawrence

B erkley Laboratory , 135 F.3d 1260, 1265 FN 3 (9th Cir. 1998);

Vincent v. Wells Fargo Guard Service, Inc. of Florida ,

3 F.Supp.2d 1405, 1421 (S.D. Fla. 1998).

51. In Vincent , the court found that even if an individual

did have the sickle cell anemia disea se , that individual might

not be a "qualified individual" under the ADA because the

disease is unpredictable in nature and the episodes or attacks

are sporadic. Id. at 1416 - 18. The unpredictability of episodes

makes it difficult for an employer to accomm odate the employee.

Id. at 1416 - 1418. Accordingly, the court found that a security

guard with sickle cell anemia was not a "qualified individual"

due to the unpredictable nature of both the job and the disease.

Id. at 1416 - 1418.

52. Additionally, a p erson who has a physical or mental

impairment that can be corrected by medication or other measures

does not have an impairment that presently "substantially

limits" major life activities. Sutton v. United Airlines, Inc. ,

527 U.S. 471, 481 (1999). A disa bility exists only where an

impairment "substantially limits" any major life activity, not

where it "might," "could," or "would" be substantially limited

if mitigating measures were not taken. Id. at 482.

53. Petitioner has not met his burden of provin g that he

has a disability. In fact, the most persuasive evidence

indicates that Petitioner was physically fit, experiencing no

impairing symptoms of sickle cell trait in over a decade of

working as a fireman, including October 15, 2001. Petitioner

knew symptoms related to sickle cell trait were preventable and

correctable by maintaining proper hydration. Petitioner's

sickle cell trait is not a disability because it does not

substantially impair one or more of his major life activities.

54. The second question is whether Petitioner was

qualified to perform the job for which he was hired. A

qualified individual with a disability is one who can perform

the essential functions of the job with or without reasonable

accommodation. 42 U.S.C. Section 12111( 8). The term "essential

functions" means the fundamental job duties of the employment

position. 29 C.F.R. Section 1630.2(n)(1). In this case, the

evidence indicates that Petitioner was qualified to work as a

fireman for Respondent.

55. The third issu e is whether Petitioner was terminated

solely because of his disability. The ADA imposes a duty on

employers to provide reasonable accommodations for known

disabilities unless doing so would result in undue hardship.

Hernandez v. Prudential Insurance Com pany , 877 F. Supp. 1160,

1165 (M.D. Fla. 1997). Employer obligations under the ADA do

not arise until the employer becomes aware of "known physical or

mental limitations of an otherwise qualified individual with a

disability." Id. at 1165

56. Petitione r did not meet his burden of proving that he

was terminated because of his disability. Petitioner did not

advise Respondent that he had sickle cell trait until after he

was suspended and placed on administrative leave with pay. Dr.

Mathew's letter dated November 14, 2001, and received by

Respondent on November 15, 2001, confirmed that Petitioner had

sickle cell trait and should avoid exposure to extreme heat.

However, by that time, Ms. Cunningham - Perry had completed her

investigation and recommended that Respondent terminate

Petitioner.

57. Nothing in Dr. Mathew's letter indicated that

Petitioner was in fact unable to stand up when ordered to do so.

He was not ordered to walk or to exert himself in any way.

Petitioner admitted to Ms. Cunningham - Perry during the

investigation that he could have but chose not to follow the

orders for his own reasons. There is no persuasive evidence

that Respondent terminated Petitioner solely because he had

sickle cell trait.

58. Respondent is not expected to provide accommodations

that Petitioner never requested. Petitioner wanted a transfer

to Station One for the same reason that he refused to follow the

orders to stand up; he did not want to ride the ALS rescue truck

or go on so many calls. He did not request a tr ansfer because

he had sickle cell trait.

59. An employer is not required to create a position or

"bump" another employee from a position in order to accommodate

an otherwise qualified individual with a disability, especially

when the employee does not m ake such a request. Hedberg v.

Indiana Bell Telephone Company , 47 F.3d 928, 934 (7th Cir.

1995).

60. Assuming arguendo that Petitioner met his prima facie

burden, Respondent presented a legitimate, non - discriminatory

reason for terminating Petitioner , i.e. Petitioner's failure to

follow orders. Petitioner presented no evidence that

Respondent's reason was pretextural and that Respondent

intentionally discriminated against him. Petitioner has not

carried his burden of ultimate persuasion.

RECOMMEND ATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED

That FCHR enter a final order dismissing the Charge of

Discrimination.

DONE AND ENTERED this 29th day of May, 2003, in

Tallahassee, Leon County, Florida.

_________ __________________________

SUZANNE F. HOOD

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 29th day of May, 2003.

COPIES FURNISHED :

Larry H. Colleton, Esquire

2300 East Concord Street

Orlando, Florida 32803

Denise Crawford, Agency Clerk

Florida Commission on Human R elations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Stephen Johnson, Esquire

McLin & Burnsed

1000 West Main Street

Post Office Box 491357

Leesburg, Florida 34749 - 1357

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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.