04-002709 Robert Larson vs. Lakeview Center, Inc. Status: Closed Recommended Order on Monday, May 2, 2005.

Summary: Petitioner failed to establish a prima facie case of disability or age discrimination. He never asked for accommodation and did not show that he was replaced by a person of different age. The Respondent showed a non-discriminatory reason for termination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT LARSON, )

)

Petitioner, )

)

vs. ) Case No. 04 - 2709

)

LAKEVIEW CENTER, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for fi nal hearing, as noticed, before

P. Michael Ruff, duly - designated Administrative Law Judge of the

Division of Administrative Hearings. The hearing was conducted

in Shalimar, Florida on January 5, 2005. The appearances were

as follows:

APPEARANCES

For Pe titioner: Robert Larson, pro se

919 Roanoke Court

Fort Walton Beach, Florida 32547

For Respondent: Russell F. Van Sickle, Esquire

Beggs & Lane

Post Office Box 12950

Pensacola, Florida 32591 - 2950

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern

whether the Petitioner was a victim of discrimination based upon

his age and disability, in purported violation of Section

76 0.10, Florida Statutes.

PRELIMINARY STATEMENT

This cause arose upon the filing of a charge of

discrimination by the above named Petitioner with the Florida

Commission on Human Relations (Commission) on January 2, 2004.

The charge of discrimination alleg es that the Petitioner was

terminated due to disability (depression) and his age. This

charge led to a Commission investigation of the matter, with the

ultimate finding of "No Cause." Based upon that finding the

Petitioner submitted a Petition for Relief on August 2, 2004.

In that Petition he alleges that his termination was due to

issues concerning his disability and his age.

The cause was transmitted to the Division of Administrative

Hearings on August 2, 2004, and ultimately came on for hearing

befor e the undersigned as noticed. Respondent's Answer to the

Petition was filed August 17, 2004.

At the hearing the Petitioner presented his own testimony

and that of Elena Laufer and David Gambrell. The Respondent

presented the testimony of James Avett, Richard Baker, Russell

Schreiner, and Johnnie Zimmerman. The Respondent presented

seven exhibits which were admitted into evidence. Upon

conclusion of the proceeding a transcript was ordered and the

parties were given the opportunity to submit proposed

r ecommended orders. The Proposed Recommended Orders submitted

have been considered in the rendition of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner, Robert Larson, was hired by Gulf Coast

Enterprises (GCE) in November 2000, as a mail clerk and driver,

under a contract that GCE had with the federal government to

conduct postal services for Hurlburt Field Air Force Base near

Fort Walton Beach. His job duties included picking - up and

delivering mail at various points on that military base. Hi s

duties included the handling of "confidential" or "accountable"

mail.

2. GCE is a division of the Respondent, Lakeview Center,

Inc. Lakeview Center, Inc., is a mental health community

behavioral treatment center in Pensacola, Florida. GCE is a

vocati onal division of Lakeview Center, Inc., whose mission is

to provide job opportunities for disabled persons. GCE enters

into contracts with other entities, including the federal

government, designed to enable it to place people with

disabilities in jobs, t o work through service contracts which

GCE enters into with those other entities. This is a

preferential contract, "set aside" program under the federal

Javits - Wagner - O'Day Act, which allows GCE to contract with the

federal government for job placement of disabled persons outside

of the normal contract bidding process. The provisions of this

arrangement provide that the contract services must meet

government quality standards and at least 75 percent of the

direct labor for performing the contract must be provided by

people with disabilities.

3. The Petitioner was qualified to be hired by the

Respondent under this program because he has a disability,

depression. Although the Petitioner's supervisors knew he had a

disability, as a matter of policy the Res pondent does not

disclose the identification of an employee's particular

disability to the employee's supervisor. The documentation of

an employee's specific disability was kept by the Respondent in

a confidential file, separate from the regular personnel file

information to which the employees' supervisors had access.

4. Four employees worked in the Petitioner's department

during the time pertinent hereto. The project manager was James

Avett. The assistant project manager was Richard Baker and

James B acon and the Petitioner were mail clerks and drivers.

The Petitioner reported to the project manager and when the

project manager was unavailable to the assistant project

manager.

5. The Petitioner's supervisor, Mr. Avett, received two

complaints from customers on the Petitioner's mail route on

November 4, 2003. Those customers were Onjel Gambrell and

Technical Sergeant Armour. Both complaints alleged the

Petitioner was being rude to customers. Ms. Gambrell who worked

at the Hurlburt Field Library, wrote an e - mail setting forth her

complaint about the Petitioner. That e - mail described the

Petitioner as rude, as not responding to greetings from the

customer, and specifically scolding employees of the library for

moving the mail box location within th e library. The library

was under renovation, necessitating the movement of the mail

box.

6. After speaking with the customers who were making the

complaints, Mr. Avett asked the Petitioner to come into his

office to talk about the complaints. Mr. Avett asked Assistant

Project Manager, Richard Baker, to also attend the meeting.

Mr. Avett informed the Petitioner at the meeting concerning a

customer complaints, showed him Ms. Gambrell's e - mail and

started to discuss the importance of customer relati on skills.

In response, the Petitioner refused to acknowledge that he did

anything wrong, or that there was need for any improvement on

his part. The Petitioner said that both customers were lying.

7. The Petitioner then launched into a series of

c omplaints directed at Mr. Avett and Mr. Baker. He complained

that Mr. Baker would yell at him but Mr. Avett had not heard

Mr. Baker yell at anyone. When Mr. Baker tried to respond to

the accusation, the Petitioner looked at Mr. Avett and asked

Avett to t ell Mr. Baker to be quiet while the Petitioner was

talking. The Petitioner complained that Mr. Avett and Mr. Baker

could do a better job in supervising.

8. The Petitioner also complained that the other mail

clerk/driver, James Bacon, did not yet have hi s security

clearance from the federal government, and therefore Mr. Bacon

could not yet handle the confidential mail. Mr. Avett explained

that it was normal to have a delay in gaining a security

clearance and that Mr. Baker, as assistant manager, had to b e in

the office when Mr. Avett was not in the office. After

listening to these complaints by the Petitioner, the meeting was

adjourned, to be resumed on the next morning because of the

lateness of the day.

9. On November 5, 2003, Mr. Avett presented the Petitioner

with a performance discussion record filled - out by Mr. Avett.

That record constituted a written warning to the Petitioner

regarding the two mail stops where people had complained about

the Petitioner's rudeness when delivering mail to their of fices.

The desired outcome depicted on that document was noted in the

written warning and required that the Petitioner conduct himself

in a professional manner, being respectful, courteous, and

helpful to all customers 100 percent of the time. The

conseq uences noted in the written warning were additional

counseling, with the possibility of dismissal for failure to

comply.

10. The Petitioner was told to read and sign the

performance record, but refused, contending that none of it was

true. Instead the P etitioner requested that he meet with Mr.

Avett's supervisor. Mr. Avett told the Petitioner that he would

arrange such a meeting. Russell Schreiner, Mr. Avett's

supervisor, agreed to a meeting on the following Monday,

November 10, 2003.

11. Mr. Schre iner met with the Petitioner and Mr. Avett on

that day. The Petitioner stated at the meeting that the

complaining customers were lying and being vindictive. He did

not believe that he should have a written warning concerning

those customer complaints. H e refused to sign the performance

discussion record containing the warning. The Petitioner also

complained about the mail delivery schedule; complained that he

had never met Ms. Gabrell; and complained that Mr. Bacon did not

yet have his security clearanc e. He also complained about not

being allowed to use military computers for his personal

internet use, even though such use would have been in violation

of pertinent military rules and GCE rules.

12. The Petitioner continued to refuse to acknowledge

cus tomer complaints and refused to sign the written warning. He

refused to concede that improvement was needed on his part.

13. After the November 10, 2003, meeting, Mr. Schreiner

spoke with Johnnie Zimmerman at the Respondent's Human Resources

Department and discussed his concerns about the Petitioner not

acknowledging customer complaints and not being content with his

job. He was concerned that the Petitioner could become a

security risk because he worked with confidential military

documents in the cour se of his job. The decision was made

however, to allow the Petitioner to continue in his employment.

14. On December 11, 2003, another customer complaint was

lodged against the Petitioner by Master Sergeant Pitt. Master

Sergeant Pitt was responsible fo r overseeing the Hurlburt Postal

Services Contract with the Respondent. Master Sergeant Pitt

complained to Mr. Avett that the Petitioner had called the

Military Communication Squadron "Help - desk," which he was not

authorized to do, and informed the "Help - desk" that Master

Sergeant Pitt was unavailable and unresponsive to the needs of

the Petitioner because Sergeant Pitt was performing other

duties. The Petitioner conceded that he called the "Help - desk"

and the first thing the "Help - desk" person asked him when he

called was why he was not communicating with Master Sergeant

Pitt. Mr. Avett counseled the Petitioner about this complaint

from Master Sergeant Pitt, instructing him that under no

circumstances was he to go to the "Help - desk," but if he was

having a problem with Master Sergeant Pitt to direct those

concerns to Mr. Avett.

15. On the next morning, December 12, 2003, before

Mr. Avett arrived at the office, the Petitioner began yelling at

his assistant project manager, Mr. Baker. He was yelling that

the accountable mail should have been marked by Mr. Avett or

Mr. Baker in large black marker letters for its destination to

ease the job of the person making the actual delivery. In

reality the mail was in exactly the same condition it normally

was w hen picked up for delivery. The Petitioner began

complaining in a loud voice and cursing, concerning the manner

in which the accountable mail was marked. Mr. Baker told

Mr. Avett that the Petitioner was being mad, loud, and was

cursing, and Mr. Avett tri ed to calm the Petitioner down.

However, the Petitioner continued to get louder and more

belligerent, telling Mr. Avett and Mr. Baker to "get off their

fat asses" and to start doing something. The Petitioner was

sent home at this point and, after consult ation with

Mr. Schreiner and Ms. Zimmerman, the decision was made to

discharge the Petitioner. The termination was due to an

accumulation of incidents involving misconduct, including

particularly the Petitioner's conduct on December 12, 2003, his

refusal to accept responsibility for the customer complaints,

and the security risk he might pose as someone who handles

confidential military mail. The discharge decision was

recommended by Mr. Schreiner and approved by Ms. Zimmerman.

16. In his testimony at t he final hearing the Petitioner

contended that the written warning of November 4, 2003, was not

warranted. During the hearing he attempted to claim that he was

not aware of the nature of the customer complaints on

November 4, 2003, but he also testified t hat at the time he was

asked about the complaints on that date he knew exactly which

two situations Mr. Avett was referring to. He knew that the

customers had complained of his rudeness.

17. Ms. Gambrell testified at the hearing and established

that she had informed the Petitioner on multiple occasions that

the mail drop box at the library had to be moved due to ongoing

library renovations in the front desk area of the library. The

Petitioner nevertheless continued to yell at her concerning the

moving o f the box even after repeatedly being informed that

renovations necessitated moving the mailbox. The Petitioner had

even refused to pickup the mail on occasion when the mailbox was

not where the Petitioner thought it should be. Ms. Gambrell

established t hat the Petitioner yelled at library employees and

was rude to them and acted in an unprofessional manner.

18. Some of the Respondent's customers were thus upset

with the Petitioner's conduct and the Respondent felt that it

had to give a written warning to the Petitioner regarding his

interaction with customers in order to ensure good customer

relations. The Petitioner's attitude and position, made known

to his supervisors, that each customer was lying or being

vindictive are not credible and indicate th at he lacked of

willingness to improve customer relation skills in spite of his

supervisors admonishment that he needed to do so.

19. Although the Petitioner contended at hearing that he

had to ask someone in the library to help him find the mailbox

when it was moved during renovations, in his deposition he

testified that he saw the mailbox in its new location without

having to ask anyone. He also acknowledged at hearing that the

library was undergoing renovations. It is simply not

demonstrated in this record that it was reasonable for the

Petitioner to berate the customers of his company, the library

personnel for moving the mailbox when the library was being

renovated. Rudeness toward a customer of his employer company

is certainly a reasonable basis for his employer to be concerned

and to admonish him against further such incidents.

20. Concerning the events of the morning of December 12,

2003, the Petitioner has conceded that he was upset and raised

his voice at Mr. Avett and Mr. Baker. Indeed he told them to

"get off their fat asses" or "fat butts" among other

vulgarities. There is no question that the Petitioner yelled at

his supervisors on that day and in doing so was insubordinate.

21. The Petitioner contended that the assistant project

ma nager, Baker, had yelled at him during his employment.

Mr. Baker denied having yelled at him, but, in any event,

Mr. Baker played no part in the decision to discharge the

Petitioner and Mr. Baker never made any age or disability -

related comments toward t he Petitioner.

22. The Petitioner was sixty - six years old at the time of

his discharge from the Respondent's employment. He also

suffered from the disability of depression. The Petitioner's

age or disability was never the subject of any reference w ith

regard to his discharge, to the customer complaints, or to the

December 12, 2003, action of insubordination by the Petitioner.

The only comments made to the Petitioner, in the Petitioner's

version of events, were made by Mr. Avett when Mr. Avett

alleg edly called him "old fart." He also testified that

Mr. Avett told him that he should not worry about embarking on a

401K retirement plan because he was going to retire soon.

Mr. Avett denied making either comment and stated that he never

had a conversati on with the Petitioner about a 401K plan and

that the Respondent does not even have a 401K retirement

program. The Petitioner was unable to recall when Mr. Avett

purportedly made either of the alleged comments and did not

remember the context at hearing. In his deposition however, he

described the "old fart" reference as having been in a jovial

manner anyway. The Petitioner's testimony in this regard is not

sufficiently credible to establish that Mr. Avett made the

comments, particularly in the context t he Petitioner sought to

establish.

23. The evidence reveals that Mr. Schreiner, who

recommended discharge, and Ms. Zimmerman, who made the discharge

decision, never made any comments concerning the Petitioner's

age or disability. The Petitioner had test ified that Mr. Avett

once told him that he thought that "only women got depression."

Mr. Avett denied making such a comment and denied even being

aware of the nature of the Petitioner's disability during 2003.

This is because the nature of the disabiliti es of employees at

the company (which is in the business of hiring and placing

disabled employees) is a matter which remains confidential in

personnel files. It is not generally known throughout the

company, even by supervisors.

24. The Petitioner was unable to identify any of the

Respondent's employees who were not in his protected class, who

were treated differently after refusing to acknowledge customer

complaints and after being insubordinate.

25. The Petitioner never complained of age or d isability

discrimination when he was employed with the Respondent. He

never requested any accommodation for his disability from the

Respondent. He had received the "harassment policy" from the

Respondent in September of 2003 and knew how to make a compla int

if he believed one was warranted. He made complaints during his

employment, including that Mr. Baker had yelled at him, but

these complaints did not relate to age or disability

discrimination.

26. Indeed the Petitioner had a number of conflicts with

Mr. Avett during the course of his employment tenure, that did

not relate to age or disability issues. The Petitioner, for

instance, complained that Mr. Avett and Mr. Baker, who were Air

Force retirees, were viewed as more valuable to the Respondent

comp any than the Petitioner because their work was conducted on

a Air Force base. The Petitioner complained about the extremely

"political" atmosphere at Hurlburt Field and at the offices of

the Respondent. He complained about Mr. Avett's smoking

cigarettes in a restroom and in a company work van when he was

alone. These complaints tend to indicate that the Petitioner

held some animus or bias toward Mr. Avett and Mr. Baker. There

is no preponderant, persuasive evidence of any discriminatory

animus, in terms of age or disability discrimination by the

Respondent, or any supervisory staff toward the Petitioner.

CONCLUSIONS OF LAW

27. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

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

28. Chapter 760, Florida Statutes, the Florida Civil

Rights Act, prohibits discrimination on the basis of age or

disability.

§ 760.10, Fla. Stat. The issue that must be determined concerns

whether the age or disabil ity of the Petitioner actually played

a role in the employer's decision - making process and had any

determinative influence on the outcome. See Chapman v. AI

Transport, 229 F.3d 1012, 1024 (11th Cir. 2000) citing Reeves v.

Sanderson Plumbing Products, Inc. , 530 U.S. 133 (2000).

29. In a case such as this, where there is no direct

evidence of age discrimination, the burden shifting analysis in

McDonnell - Douglas Corporation v. Greene , 411 U.S. 792 (1973), is

applied. Under this analysis the Petitioner must first prove a

prima facie case of age discrimination. In order to do this the

Petitioner must show that he (1) was a member of a protected age

class; (2) that he was subject to an adverse employment action;

(3) that he was qualified for the job; (4) that he was replaced

by a younger individual. See Chapman , 229 F.3d at 1024. It has

been held by the Florida Commission that Chapter 760, Florida

Statutes does not specify any particular age threshold, persons

of any age are protected by the statute. Th us, arguably, all

persons would meet the first prong of a prima facie case, and,

presumably, the fourth prong of the prima facie case could be

satisfied simply by a petitioner by having been replaced by

either a younger or older person. However, determina tion of

these issues is not relevant to the case at hand because the

Petitioner was sixty - six years old and thus under any standard

met the first prong of a prima facie case. He was also

discharged from employment, so the second portion of the prima

facie case test, that he suffered an adverse employment action,

has been established. He is also qualified for his position,

except for the conduct precipitating his discharge, thus meeting

the third requirement of a prima facie showing. The Petitioner

howeve r, did not satisfy the fourth part of the prima facie case

test, because the Petitioner did not provide any evidence as to

the age of any person replacing him after his discharge.

Moreover, he did not show that he was replaced. Accordingly,

the Petitione r's age discrimination claim must fail because of a

failure to establish a prima facie case of age discrimination.

30. Assuming arguendo though that a prima facie case of

age discrimination was made out by the Petitioner, the

Respondent articulated a leg itimate, non - discriminatory reason

for the discharge. Id. The Petitioner was discharged directly

following an episode of insubordination to his supervisors

described in the above Findings of Fact, concerning his yelling,

criticizing, and using profanity towards his supervisors. He

had also refused to sign a written warning regarding being rude

to the Respondent's customers and had caused another customer

complaint by an individual who supervised the postal services

contract provided by the Respondent, Ma ster Sergeant Pitt. The

burden thus falls upon the Petitioner to prove that the reason

given by the employer was not the real reason for the discharge,

but was a pretext and to otherwise prove that age was really the

motivating factor in the discharge dec ision. Id. This burden

has not been met.

31. The preponderant, persuasive evidence of record does

not show that age played any part in the decision to discharge

the Petitioner. Had the Respondent wished to discharge the

Petitioner because of age the R espondent could have done so as

soon as the Petitioner refused to sign the written warning or

acknowledge customer complaints directed at the Petitioner.

Even after the customer complaints and the Petitioner's

inappropriate response to them, the Responden t gave the

Petitioner another opportunity to succeed, which the Petitioner

failed to take advantage of. The discharge decision was not

made until after the clearly insubordinate acts of December 12,

2003. Age was not a factor. The Petitioner presented n o

evidence that the discharge reasons given by the Respondent were

pretextual. The Petitioner was unable to present evidence that

any similarly situated individual of any other age older, or

younger was treated differently by the Respondent.

Disability Di scrimination Allegation

32. The Petitioner maintains that he was discharged

because of his disability as well. This is a somewhat unique

situation of alleged disability discrimination because the

Petitioner was qualified for his job because he had a

dis ability. His employer was in the business of employing and

placing for employment persons who had disabilities. Had the

Petitioner not had a disability he likely would not have been

hired by the Respondent in the first place. The Respondent's

mission is to place persons with disability in employment

positions; thus, the Petitioner is in the position of having the

burden to prove that his employer which is in the business of

routinely employing disabled persons discharged him because he

was disabled.

33. The burden - shifting analysis referenced above is also

used for allegations concerning disability discrimination where,

as in this case, there is no direct evidence of disability

discrimination. See Rossbach v. The City of Miami , 371 F.3d

1354 (11th Cir. 2004). In order to state a prima facie case of

disability discrimination, the Petitioner must show that he was

disabled, was qualified for his job with or without reasonable

accommodation, and was replaced by a non - disabled employee or

otherwise unlawful ly discriminated against because of his

disability. Id.

34. The Petitioner was not able to state a prima facie

case of disability discrimination because, although he has a

disability, was subject to an adverse employment action, and was

qualified for his job (except for the conduct that precipitated

his discharge), he failed to present any evidence that he was

replaced with either a non - disabled employee or even an employee

that did not suffer from depression, the Petitioner's specific

disability.

35. The Petitioner also did not rebut the Respondent's

articulated, legitimate non - discriminatory reason for the

discharge. The Petitioner did not meet his burden of persuasion

to show that disability was the motivating factor in the

decision to discharge h im.

36. Although the Petitioner did not raise any claim for a

denial of a reasonable accommodation, it is notable that the

Petitioner admitted that he never sought any accommodation for

his disability. The employee seeking the accommodation has the

burd en to request one. See Gaston v. Bellingrath Gardens and

Home, Inc. , 167 F.3d 1361, 1363 - 64 (11th Cir. 1999). The

Petitioner neither alleged any failure to offer reasonable

accommodation nor did he identify any such reasonable

accommodation. Any hypothe tical reasonable accommodation for

the Petitioner's depression could not be reasonable if it went

so far as to allow rudeness to customers, to allow failure to

acknowledge areas of needed improvement in customer relation

skills, and to allow yelling and in sults to supervisors. The

communication and customer service skills were identified

requirements in the job description, which required daily

interaction with customers. The Respondent had a right to

expect courteous and respectful behavior towards custo mers from

the Petitioner, because poor customer service could result in

termination of the postal services contract with the federal

government, thus eliminating all of the GCE jobs of persons

employed under the contract.

37. The Petitioner has sim ply failed to carry his burden

of persuasion that either disability or age were motivating

factors in his discharge.

RECOMMENDATION

Having considered the foregoing findings of fact,

conclusions of law, the evidence of record, the candor and

demeanor of the witnesses and the pleadings and arguments of the

parties, it is, therefore,

RECOMMENDED: That a final order be entered by the Florida

Commission on Human Relations dismissing the Petition in is

entirety.

DONE AND ENTERED this 2nd day o f May, 2005, in Tallahassee,

Leon County, Florida.

S

P. MICHAEL RUFF

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 2nd day of May, 2005.

COPIES FURNISHED :

Robert Larson

919 Roanoke Court

Fort Walton Beach, Florida 32547

Russell F. Van Sickle, Esquire

Beggs & Lane

Post Office Box 12950

Pensacola, Florida 32591 - 2950

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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 exce ptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.