04-001019 Madalynn A. Shepley vs. Lazy Days Rv Center, Inc. Status: Closed Recommended Order on Tuesday, June 22, 2004.

Summary: The Commission on Human Relation`s determination that it lacks jurisdiction involves substantive jurisdiction and is therefore entitled to deference. Petitioner submitted no evidence of other disability or that Respondent regarded Petitioner as disabled.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MADALYNN A. SHEPLEY, )

)

Petitioner, )

)

vs. ) Case No. 04 - 1019

)

LAZY DAYS RV CENTER, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative L aw Judge (ALJ) Daniel Manry conducted the

administrative hearing in this proceeding on behalf of the

Division of Administrative Hearings (DOAH), on May 7, 2004, in

Tampa, Florida.

APPEARANCES

For Petitioner: Karen M. Doering, Esquire

Nat ional Center for Lesbian Rights

3708 West Swann Avenue

Tampa, Florida 33609 - 4522

For Respondent: Richard McCrea, Esquire

Zinober and McCrea, P.A.

Post Office Box 1378

201 East Kennedy Boulevard, Suite 800

Tampa, Florida 33601 - 1378

STATEMENT OF THE ISSUE

The sole issue for determination is whether the Florida

Commission on Human Relations (Commission) has jurisdiction

under Chapter 760, Florida Statute s (2003), to determine if

there is reason to believe that Respondent discriminated against

Petitioner on the basis of her sex or disability.

PRELIMINARY STATEMENT

By letter dated February 11, 2004, the Commission notified

Petitioner that the Commission had no jurisdiction to determine

if it had cause to believe that Respondent discriminated against

Petitioner. Petitioner requested an administrative hearing on

March 17, 2004, and the Commission referred the matter to DOAH

to conduct an administrative hearin g concerning the Commission's

proposed denial of jurisdiction.

On April 19, 2004, Respondent filed Respondent's Motion to

Dismiss for lack of jurisdiction. Petitioner filed Petitioner's

Response to Motion to Dismiss on April 29, 2004. The ALJ

reserved ruling on the Motion to Dismiss and scheduled an

administrative hearing for May 7, 2004.

At the hearing, neither party presented any evidence. The

parties requested a Transcript that was filed with DOAH on

May 20, 2004.

FINDINGS OF FACT

1. It is undi sputed that Petitioner is a preoperative

transsexual woman. Respondent employed Petitioner as an "RV

technician" from sometime in August 1999, until January 7, 2002,

when Respondent terminated Petitioner's employment.

2. On October 25, 2003, Petitioner filed a Charge of

Discrimination with the Commission. In relevant part, the

Charge of Discrimination alleges that Respondent discriminated

against Petitioner on the basis of her sex and disability.

3. On February 11, 2004, the Commission issued its

De termination: No Jurisdiction (determination). The

determination raises issues of law and fact.

4. The Commission determined, as a matter of law, that

Petitioner's transsexualism is not a disability covered by the

Americans with Disabilities Act (ADA). The Commission also

determined, as a matter of law, that the prohibition in Chapter

760, Florida Statutes (2001), against discrimination on the

basis of sex does not prohibit discrimination on the basis of

sexual identity or transsexuality. The foregoing conclusions of

law involve matters over which the Commission has substantive

jurisdiction within the meaning of Subsection 120.57(1)(l),

Florida Statutes (2003).

5. The Commission further determined the Charge of

Discrimination was legally insuffic ient to allege facts showing

that Petitioner's transsexuality impaired her major life

activities or that Respondent regarded Petitioner as disabled.

A determination of the legal sufficiency of allegations is not a

matter over which the agency has substant ive jurisdiction.

6. The Charge of Discrimination does not allege that

Petitioner's transsexuality impaired her major life activities.

The Charge of Discrimination merely alleges that Petitioner has

a medical condition identified as Gender Identity D isorder (GID)

and receives medical treatment for her condition.

7. The Charge of Discrimination is sufficient to allege

that Respondent regarded Petitioner as disabled. In relevant

part, the Charge of Discrimination alleges Petitioner informed

Responde nt that Petitioner had a medical condition that required

medical treatment. Petitioner allegedly "took vacation at

Christmas time" and returned to work in her new gender on

December 29, 2001. On January 7, 2002, Respondent allegedly

terminated Petitioner 's employment because Petitioner was a

distraction to other employees and to some customers and because

"it was not good for the company."

8. The Commission may have based its determination, in

part, on findings of fact. The Commission apparently found

Petitioner failed to show that Respondent regarded Petitioner as

disabled or that Petitioner suffered symptoms of a disability

separate and apart from transsexuality; such as depression,

suicide ideation, situational alcohol abuse, or other symptoms

of po or health (a separate disability). In relevant part, the

Commission's determination stated:

The Commission conducted an investigation of

this matter, which has been reviewed and

approved by the Commission's office of

General Counsel.

9. The Commission' s investigation appeared to be a factual

investigation. The determination differentiates the

Commission's investigation from matters of law. In relevant

part, the determination states:

The Office of General Counsel has reviewed

the case file, investigati ve materials, and

applicable case law. . . .

* * *

. . . the file contains no evidence which

substantiates the disability discrimination

claim. As a result, Complainant has failed

to establish a prima facie case of

discrimination based on disability. . . .

(emphasis supplied)

10. The ALJ conducted the administrative hearing, in part,

to provide an opportunity for Petitioner to submit evidence to

support her claim that Respondent regarded her as disabled. The

administrative hearing also provided an opportunity for

Petitioner to submit evidence showing that Petitioner suffered

from a separate disability.

11. Petitioner submitted no evidence to show that

Respondent regarded her as disabled or that Petitioner suffers

from a separate disability. The trier of fact makes no findings

on either factual issue.

CONCLUSIONS OF LAW

12. Respondent's Motion to Dismiss contains factual

allegations that must be resolved against Respondent.

Similarly, all reasonable inferences that may arise from the

factual allegations must be resolved against Respondent. Salit

v. Ruden, McClosky, Smith, Schuster & Russell, P.A. , 742 So. 2d

381, 383 (Fla. 4th DCA 1999). The Motion to Dismiss is denied.

13. The foregoing presumptions against Respondent are

limited to a reso lution of the Motion to Dismiss. They do not

apply to the broader issue of whether the Commission has

jurisdiction to determine if it has cause to believe that

Respondent discriminated against Petitioner on the basis of her

sex or disability.

14. DOAH ha s jurisdiction over the parties and subject

matter of this proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

(2003). The parties received adequate notice of the

administrative hearing.

15. The Commission does not have jurisdiction to determine

if there i s cause to believe that Respondent discriminated

against Petitioner on the basis of her sex or her disability.

The Commission determined that the prohibition in Chapter 760,

Florida Statutes (2001), against discrimination on the basis of

sex does not proh ibit discrimination based on transsexualism.

The Commission also determined that transsexualism is not a

disability under the ADA. Both determinations are conclusions

of law concerning matters within the substantive jurisdiction of

the Commission. § 120 .57(1)(l), Fla. Stat. (2003).

16. Counsel for Petitioner submitted a thorough memorandum

of law suggesting that the Commission's position conflicts with

the weight of judicial decisions in federal courts and in other

states. A Florida appellate court may , or may not, agree with

counsel. However, DOAH is an administrative agency and is bound

by the deference mandated by the legislature in Subsection

120.57(1)(l), Florida Statutes (2003).

17. The Commission may have based its determination of no

jurisdict ion, in part, on findings of fact. The determination

issued by the Commission is ambiguous and may have included

findings that Petitioner does not suffer from a separate

disability; even though the Charge of Discrimination does not

allege a separate disab ility.

18. In previous cases, the Commission has exercised

jurisdiction to determine if there is cause to believe that an

employer discriminated against an employee based on a separate

disability. In Fishbaugh v. Brevard County Sheriff's Office ,

FCHR Cas e No. 22 - 02697 (2003), the Commission entered a Final

Order that distinguished transsexuality from a separate

disability. In holding against the employee in Fishbaugh , the

Commission distinguished the facts in Fishbaugh from those in an

earlier unrelated proceeding involving a person identified in

Fishbaugh as Belinda Joelle Smith (Smith). Ms. Smith suffered

from a separate disability.

19. In relevant part, the Commission's Final Order in

Fishbaugh explained the factual distinction between Fishbaugh

an d Smith by stating that the hearing officer in Smith found:

Petitioner's transexualism caused ongoing

suicide ideation, situational alcohol abuse

and poor health due to bleeding ulcers . . .

these symptoms interfered with Petitioner's

full and normal use of her mental and

physical major life faculties and limited

Petitioner's major life activities, i.e.,

life and health. The disparity between

Smith's physicality and feelings about

herself caused her to be at odds with the

rest of . . . her world. That di sparity,

and her need to hide it, left her unable to

merge the mental or physical aspects of her

identity, manifesting in the loss of her

health, depression and the will to live.

20. If it were shown that Petitioner has a separate

disability and that th e Commission based part of its

determination on a contrary finding, the Commission may be bound

by the doctrine of administrative stare decisis to accept

jurisdiction in this proceeding. Plante v. Department of

Business and Professional Regulation, Divisi on of Pari - Mutuel

Wagering , 716 So. 2d 790, 792 (Fla. 4th DCA 1998); Gessler v.

Department of Business and Professional Regulation , 627 So. 2d

501, 503 - 504 (Fla. 4th DCA 1993). The Commission previously

accepted jurisdiction over such issues in Fishbaugh and Smith .

However, Petitioner submitted no evidence at the hearing to show

that Petitioner has a separate disability.

21. The Charge of Discrimination alleges facts that, if

they were proven, would be sufficient to show that Respondent

regarded Petiti oner as disabled and that Respondent

discriminated against Petitioner based upon a perceived

disability. However, Petitioner submitted no evidence to prove

either allegation.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law , it is

RECOMMENDED that the Commission enter a Final Order

determining that the Commission lacks jurisdiction to determine

if it has cause to believe that Respondent discriminated against

Petitioner on the basis of her sex or a disability.

DONE AND ENT ERED this 22nd day of June, 2004, in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 30 60

(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 22nd day of June, 2004.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Karen M. Doering, Esquire

National Center for Lesbian Rights

3708 West Swann Avenue

Tampa, Florida 33609 - 4522

Richard McCrea, Esquire

Luisette Gierbolini, Esquire

Zinober & McCrea, P.A.

Post Office Box 1378

201 East Kennedy Boulevard, Suite 800

Tampa, Florida 33601 - 1378

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPT IONS

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.