05-000976 Jimmy D. Forehand vs. Department Of Management Services Status: Closed Recommended Order on Tuesday, August 29, 2006.

Summary: Petitioner failed to prove a substantial impairment impeding a major life activity. Respondent showed that the legitimate management reason for Petitioner`s lay-off was by legislative mandate to make a workforce reduction.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JIMMY D. FOREHAND , )

)

Petitioner, )

)

vs. ) Case No. 0 5 - 0976

)

DEPARTMENT OF MANAGEMENT )

SERVICES , )

)

Respondent. )

)

RECOMMENDED ORDER

T his cau se came on for formal proceeding and hearing before

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

Division of Administrative Hearings. The hearing was conducted

pursuant to notice, in Tallahassee , Florida , on December 5 - 6,

2005, January 31 - February 2, 2006, March 3, 2006, March 13,

2006, and March 31, 2006 . The appearances were as follows:

APPEARANCES

For Petitioner: Jimmy D. Forehand, pro se

9491 Old Saint Augustine Road

Tallahassee, Florida 32311

For Respondent: Step hen S. Godwin, Esquire

Thomas H. Duffy, Esquire

Department of Management Services

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE S

The issues to be resolved in this proceeding concern

whether t he Respondent committed an unlawful employment practice

as envisioned in Section 760.10, Florida Statutes (2005), on the

basis of the Petitioner's disability or handicap, and his age.

It must also be determined whether the Respondent committed

retaliation against the Petitioner for the Petitioner's alleged

exercise of statutorily protected rights in complaining about

health , or safety concerns , regarding his operation of a machine

or device while an employee of the Respondent.

PRELIMINARY STATEMENT

This c ause arose upon the filing of a Charge of

Discrimination with the Florida Commission on Human Relations

(Commission) by the Petitioner , Jimmy D. Forehand, on or about

August 31, 2004. The Petitioner maintains he was effectively

terminated from his employm ent in a discriminatory employment

action based upon his age, based upon his alleged disability

regarding an injury or injuries to his knee, and concerning

purported breathing difficulties he had with regard to a

previous diagnosis of asbestosis, alleged s ilicosis, and alleged

deep vein thrombosis (DVT). The Petitioner also alleges that

the Department of Management Services (DMS) (Respondent)

retaliated against him because he raised health and safety

concerns regarding the "VRS bulb eater," a machine which crushes

and disposes of used fl u orescent light tubes , which he operated

while an employee. He maintains that process was part of the

reason for his purported termination based upon his complaints

or concerns raised regarding operation of this device , and its

alleged effect on his health.

On February 23, 2005, the Commission issued a No Cause

Determination in the matter and on March 14, 2005, Mr. Forehand

timely filed a Petition for Relief . The cause was ultimately

transmitted to the undersigned Administ rative Law Judge for

adjudication.

After a number of efforts to bring the cause to hearing,

due to continuances engendered by discovery disputes , the cause

came on for hearing as noticed on the above dates. The

Petitioner introduced 26 exhibits into evid ence and presented

the testimony of 32 witnesses, some of whom were called multiple

times. The Respondent introduced three exhibits into evidence

and presented the testimony of three witnesses.

Upon conclusion of the proceeding , a transcript of the

length y proceedings was ordered and the parties requested an

extended briefing schedule for filing proposed recommended

orders dating from the filing date of the Transcript. Those

Proposed Recommended Orders have been considered in the

rendition of this Recomme nded Order.

FINDINGS OF FACT

1. Jimmy D. Forehand was hired by the Department of

Management Services or its predecessor on January 21, 1977. He

was employed at that Agency for approximately 27 and one - half

years through June 30, 2004. For the last 19 years of his

tenure he was classed as an electrician. This is the entry

level electrician trade position and has fewer complex dut ies

and skill s required for its performance , as opposed to the more

complex position of master electrician, in terms of worki ng with

complex wiring, wiring problems, electrical devices, and so

forth associated with that latter position . It has been

stipulated that through his termination date of June 30, 2004,

Mr. Forehand, was qualified to perform the duties and functions

of h is job.

2. The Respondent is an Agency of the State of Florida

charged with managing all state government agency resources,

services, properties, benefits, and procurement. It manages

state - owned facilities, handles state human resources or

personnel matters, employee benefit matters, as well as

procurement of such things as office space and office supplies .

I t maintains the physical integrity of all state - owned

properties. The Petitioner was employed for the Respondent by

the Division of Facilities M anagement and Building Construction

(Division of Facilities) which is responsible for managing and

maintaining office complexes and other properties owned by the

state. The Petitioner specifically worked for the electrician

unit of that Division.

The Di sability Cl aim

3 . The Petitioner experienced several purported medical

conditions which resulted in workers' compensation claims during

his tenure as an employee. The ones relevant to this case

commenced in approximately 1992. In 1992 the Petitioner wa s

engaged in a repair work assignment at a DMS - administered office

building in downtown Tallahassee . H e allegedly became exposed

to asbestos during that job. The Petitioner and the employer ,

DMS , initiated a First Report of Injury and a workers'

compensa tion claim ensued regarding the asbestos incident. The

progress of that workers' compensation claim and its disposition

are not relevant to this case , aside from the diagnosis

concerning that claim as a part of the predicate for showing a

disability for p urposes of the case at bar.

4. In any event , in 1992, the Petitioner was diagnos ed by

a physic ian with asbestosis. Because of that diagnosis , through

the workers' compensation process , the employer and carrier have

authorized the Petitioner , in all the years since , to have an

annual medical examination and chest X - ray under the auspices of

the Division of Workers' Compensation, Department of Financial

Services . This is for the purpose of monitor ing the status of

the asbestosis. The Respondent has stip ulated that it was aware

of the diagnosis of asbestosis. It does not agree that the

asbestosis constitutes a disability for purposes of Chapter 760,

Florida Statutes (i.e. handicap). The Petitioner was released

from the physician with regard to the asbes tosis situation

without work limitations or restrictions due to that diagnosis.

5 . Sometime in 1999 the Petitioner injured his left kne e

on the job, apparently a severe sprain. A workers' compensation

notice of injury was filed and a workers' compensati on claim

process ensued whereby he received treatment for his knee

problem. When he reached maximum medical improvement he

returned to work with a light duty recommendation from his

treating physician , on a temporary basis. In fact , the

Respondent accord ed him a temporary light duty assignment after

he returned to work from the knee injury.

6 . T he Respondent , through the Petitioner's supervisor s ,

particular ly Joe Jacobson, generally made an effort to try to

find the Petitioner a light duty assignment when he returned

from illness or injury , based upon a doctor's recommendation

and/or the Petitioner's own request for light duty. His

supervisor , Mr. Jacobson , would customarily call other building

managers, the "OP/CON Center" and other agenc ies in an ef fort to

find a light duty post Mr. Forehand could perform in until he

was ready for the full duties of his regular p osition . Thus , on

several occasions Mr. Forehand was placed in light duty as a

janitor or answering phones.

7 . I t was not always possible to find temporary light duty

for Mr. Forehand when he requested it or when a doctor

recommended it. Apparently Mr. Forehand was on leave without

pay for a number of months on at least one occasion when no

light duty was available for him. In this connec tion, however,

the Respondent , throughout Mr. Forehand's tenure as an employee

or at least since his 1992 asbestosis diagnosis, has shown a

penchant for allowing Mr. Forehand to occupy and perform his

duties in his re gular position of electrician by workin g at his

own pace, without regard to any time limit for performing his

duties , without prohibition on his taking frequent rest breaks ,

and with tolerance for his late arrival at work , if tardiness

was related to his physical condition. Thus, in a defacto

fashion , the Respondent accommodated what it knew of

Mr. Forehand's impairments , as he related them to the

Respondent , or as they learned of them from reports from his

physicians and from the workers' compensation process (i.e.,

breathing difficulties and to some extent left knee impairment

after 1999 ) .

8 . In any event, the preponderant evidence establishes

that when the Petitioner requested light duty and/or his

physician recommended it, the Respondent would provide him with

light duty if it was available , although it was not always

available. It accommodated what it knew of his impairments when

he worked in his regular position , performing his regular

duties , by the means described above ; even though the Petitioner

did not for the most part request rest periods, frequent breaks

from his duties, additional time to complete his assignments, or

for permission to trade assignments with another worker who

might have a less physically taxing job. In fact, when the

matter of his physical difficulties came up , o r was raised by

the Petitioner in a conversation with his supervisor on at least

one occasion, his supervisor told him in effect to "do the best

you can." The implication thus clearly was that if the

Petitioner needed rest breaks, needed additional time t o do

assignments, that the Respondent would accommodate him by not

holding him to a strict standard as to when his job duties got

performed.

9 . Since approximately the year 2000 or the fiscal year

2000 - 2001 the Respondent , like other state agenc ies , ha ve been

under a mandate from the Legislature and the O ffice of the

Governor to save on costs and to become more efficient in its

operations. One of the primary means of accomplishing this h as

been to require a reduction in the Agency's workforce. The

Respo ndent has thus experienced a loss of employment positions

since that fiscal year in each budget year and session of the

Legislature. It has thus lost approximately 635 full - time

positions over a four - year period ending with the 2005

Legislature and Approp riation s Act.

10 . In fiscal year 2000 - 2001, the Petitioner's position

was identified by the year 2000 Florida Legislature to be

eliminated , by making it " non - recurring ," such that his position

would be cut or eliminated effective July 1, 2001. The

Respo ndent 's supervisors did not want him to be laid off.

Therefore, they avoided his lay - off in that fiscal year by re -

classifying him or his position into a vacant position within

the D ivision o f F acilities. They made the decision to retain

him even with kn owledge of his past workers' compensation

claims, his asbestosis diagnosis and his knee injury of 1999

with related occasional light duty and time off from work .

11 . When the 2000 Legislature identified his position as

being one which would be non - recur ring or deleted after July 1,

2001, the Respondent held a meeting with the Petitioner and all

other employees who se positions had been deemed non - critical and

subject to deletion in the job force reduction. What had

occurred was explained and their option s and procedures to

remain employed or become re - employed w ere explained. Because

his supervisors wanted to save him from lay - off , and re -

classified a different position to place him in , he was

protected when the 2001 Legislature carried through with its

previous year alteration of his position to non - recurring

funding by withdrawing all funding and rate supporting his

original position.

12 . In continuation of its mandate to reduce the work

force, the 2003 Legislature made 20 positions non - recurring ,

in cluding the Petitioner's. This mean t that the funding was

determined to be non - recurring , meaning that the p ositions would

be funded one more year , but at the end of the fiscal year , on

June 30, 2004, the se positions would no longer be funded and

would be abolished.

13 . In the G overnor's and agency's budget preparation

process thereafter , in 2003 and early 2004 , the Legislative ly -

mandated reduction of 20 positions was incorporated. The

Agency , however , in late 2003 or early 2004, arrived at the

conclu sion that it needed 15 of those 20 positions to be re -

classified as critical positions necessary to its mission .

Therefore , in the Legislative budget - making process , beginning

in February and early March 2004, it sought to convince the

Legislature 's Appro priation s staff and members that 15 of the

positions were critical. It was successful in doing that during

the Legislative session.

14 . The Petitioner's position was not re - established as a

recurring , critical position . This was because his position h a d

previously been determined to be non - critical in the 2000 - 2001

fiscal year, and , since his job duties and responsibilities had

not changed since that time , his position was again deemed to be

no longer critical to continued division operation. I t was

d etermined by the Respondent that the functions of his position

could be performed by including them in the duties of other

positions , to be performed by persons who qualified for and

occupied those positions (such as master electricians).

15. Although Mr. Jacobson , his supervisor , wanted to find

a vacant position to place the Petitioner in as he had done in

the 2000 - 2001 fiscal year job force reduction , there were no

vacant positions available in which to place the Petitioner.

Mr. Jacobson's testimony est ablishes this , as does that of Clint

Sibille and Ch erri L inn (Mr. Jacobson's supervisors) . The fact

that Mr. Jacobson had a desire to try to find a way to retain

the Petitioner is somewhat corroborated by the statement or

message from Ms. Linn to Mr. Jaco bson to the effect that "you

can't save him this time . " This meant that, unlike the

situation in 2000 - 2001, there were no vacant positions which

could be converted to a position in which to place the

Petitioner .

16 . Moreover, the testimony of the super visor y lead

worker , Bill Kerr, corroborated that of Joe Jacobson and Clint

Sibille that there were no vacant positions to place the

Petitioner in or to convert to a position suitable for his

qualifications . Their testimony shows that the Petitioner's

posi tion was not a critical one in the division , especially

because it did not involve duties concerned with intricate

electrical wiring, wiring repairs, working on complex electrical

devices and other complex electrical work. This testimony

established that it made no sense to co n vert a master

electrician position into one which met Mr. Forehand 's lesser

qualifications because a qualified person in a master

electrician position, can perform the Petitioner's duties and

many more duties in terms of complexity a nd critical importance

than can a person with the Petitioner 's lesser qualifications in

an entry - level electrician position. Mr. Forehand is not a

licensed electrician . The Respondent thus determined that there

were no positions which were vacant and suf ficiently less

critical to its operation as to justify it in converting such to

one which met the Petitioner's qualifications (in a managerial

context).

17 . The Petitioner was not told of his lay - off until

June 14, 2004. In fact, Mr. Jacobson , his superv isor , did not

know that it was certain to occur until immediately before

Mr. Forehand was told , several days before at the most. Clint

Sibille had told Mr. Jacobson before the Legislative session

convened that Mr. Forehand's position might be eliminated b ut he

was not certain at that time (approximately in December 2003 or

January 2004) . It is no t clear which supervisor or manager made

the initial decision that the Petitioner's position was not

critical. I t apparently was the recommendation of Clint

Sibi lle , in concert with Cherri Linn , and with the final

approval of the Division Director, then LeeAnn Korst.

Mr. Jacobson , the Petitioner's immediate supervisor , did not

request that his position be deleted.

18 . During most of 2003, the Petitioner's job duties

includ ed operation of a florescent bulb or lamp crushing system.

This was a device known as a VRS B ulb C rusher also known as the

"bulb eater . " It had apparently been purchased by the Agency

sometime in 2002. The device consists of a large drum w ith a

vertical tube through which burned - out florescent light bulbs

are inserted so that they fall into the large drum where a

mechanical device is operated which crushes the bulbs for

disposal. The Petitioner performed a large portion of the bulb

crusher ' s operation. This was particularly true during early

2004 , when the Petitioner used the machine at a more intense

level. Sometime in February 2004, the exhaust or filtration

system of the machine sustained damage , or a break , so that dust

an d particulat e matter and any gase ous or chemical contents of

the broken bulbs ha d the opportunity to leak out of the area of

the break into the ambient air.

19 . A temporary repair was made and a permanent

replacement part was ordered from the manufacturer. The mach ine

continued to malfunction , however , and the repair did not hold.

20 . The Petitioner complained to Bill Kerr, his lead

worker , concerning the dust and particula te matter the machine

apparently sprayed into the air . He also complained to his

supervis or , Joe Jacobson . The Petitioner stated that he

believed that the dust and particula te matter and other unknown

contents of the broken florescent bulbs might aggravate the

breathing problems he profess ed to have , which he related to his

original asbestosi s diagnosis. These complaints began in early

March 2004. The Petitioner also complained to Dave Wiggins , the

Respondent's Environmental Supervisor in March of 2004. When

the complaints were made and the temporary repair was not

successful , the Responden t stopped all use of the bulb machine

in early March 2004. This was contemporaneous with the time or

occasion when the Petitioner refused to use the machine any

longer .

21. The complaints about the bulb crushing machine were

reported up the "chain of command" so that on March 16, 2004,

Glen Abbott , the Employee Relations Specialist of the Bureau of

Personnel Management Services, made a written "medical report"

( according to the Petitioner's testimony ) concerning the

Petitioner ' s reported exposure to "p oisonous chemicals" in the

fl u orescent bulbs being crushed through operation of the

machine. This report was apparently required for workers'

compensation purposes.

22 . The Petitioner also told Clint Sibille , Mr. Jacobson's

supervisor, of the machine's purported malfunction. Mr. Sibille

asked Dave Wiggins , the Environmental Specialist, to investigate

the machine to determine if the machine was malfunctioning or if

the problem reported by the Petitioner was caused by operator

error. Mr. Wiggins and Joe Jacobson , after investigating the

matter , believed it to be caused by operator error in the manner

in which the bulbs were inserted into the vertical tube of the

machine.

23 . The Petitioner maintains that he asked Clint Sibille

to send him to a doc tor concerning his fears of heath problems

related to the machine and states that Clint Sibille told him to

"see his own doctor." Mr. Sibille did confer with Cherri Linn

about the Petitioner's request and Cherri Linn informed him that

the Petitioner would have to engage in the workers' compensation

report and claim process in order to see a doctor concerning his

health - related fears about the bulb crushing machine.

Mr. Sibille then told the Petitioner's supervisor Joe Jacobson

to tell the Petitioner of th is.

24 . Thereafter, at some point during the period of March

through June 2004, after the Petitioner reported his complaints

concerning the use of the bulb crusher, Glenn Abbott told all

the electricians and carpenters who had worked with the machi ne

to obtain medical examin ations under the normal workers'

compensation procedure , to try to ascertain if there are any

deleterious effects caused by these persons ' operation of the

machine.

25 . Sometime in early May of 2004, the Petitioner called

the D epartment of Environmental Protection (DEP) and spoke to

someone there and made a verbal report of his belief concerning

unsafe conditions regarding operation of the bulb crushing

machine. After the Petitioner left employment with the

Respondent Agency in July of 2004, the machine and the warehouse

space where it was located was examined by a representative of

the DEP and samples were taken, in an effort to ascertain if any

hazardous materials had been produced by the machine or were

present in that workin g area.

26 . On May 18, 2004, the Petitioner re - injured the same

knee which he had injured in 1999. A Notice of Injury

concerning this knee injury was filed to trigger the workers'

compensation process and the Petitioner saw a doctor through the

worker s' compensation procedure who examined and treated his

knee problem (severe sprain) . He was off work for a few days

and then was sent back to work by the physician with a

prescription of "light duty." He thus became available for work

with light duty , at the doctor's recommendation , on or about

June 1, 2004. At about this time he told his lead worker Bill

Kerr , of his blood clot and showed him the doctor's report

concerning leg swelling. He also informed Joe Jacobson of this.

He sought light duty and i ndeed Joe Jacobson made substantial

efforts to find light duty available for him by calling the

various building managers and the "opcon" center to see if any

light duty was available. Mr. Jacobson went so far as to try to

ascertain if there were any offi ce filing duties that the

Petitioner could perform. He was unable to locate any light

duty work for the Petitioner at this time.

27 . Joe Jacobson took annual leave in early June and while

he was on annual leave, he received a call from his employer,

( ap parently Cherri Linn ) around June 10th or 11, 2004, requiring

him to come back to work because the job force reduction lay - off

was going to be imposed on the Petitioner and his presence as

his supervisor was apparently needed. On June 11, 2004, the

Petiti oner was called and told to report to work on Monday

morning, June 14, 2004.

28. On Monday the Petitioner was called in to a meeting

with Joe Jacobson and Tim Carlisle and told of his lay - off . He

was immediately required by the Department's I nspector G eneral ,

Tim Carlisle , to take boxes and pack up his belongings and to

leave the premises. Carlisle helped him pack his belongings and

ushered him off the Respondent's premises. The Petitioner

maintains that he did not know of his lay - off until that same

day, which happened to be his fifty - fif th birthday. He was

placed on leave with pa y until June 30, 2004, his actual

termination date.

2 9 . I n July of 2004, apparently on or about July 2, 2004,

he filed a formal written complaint to the C hief I nspecto r

G eneral regarding his concerns and feared health consequences of

the operation of the bulb crushing machine.

30. On or about July 20, 2004, Mr. Forehand visited a

walk - in medical facility because he contends he was experiencing

shortness of breath, c hest pains, and tightness in his chest.

He attributed these symptoms to use of the bulb crusher back in

March and earlier. He testified that he was diagnosed with

silicosis and that he physician determined that he could not

tolerate walking 30 to 60 minu tes at a time or lifting more than

15 or 20 pounds. Neither this physician nor any other

testified, nor was non - hearing medical information admitted into

evidence in this regard.

31. Interestingly, Mr. Forehand's testimony indicates he

was diagnosed wit h a heart condition, apparently based on these

symptoms, and in late 2004 underwent insertion of an arterial

stint.

3 2 . The Petitioner thus complained to his supervisors

beginning in about early March 2004, concerning the fears he had

about the results o f the machine operations. He complained

verbally to DEP in early May of 2004, but made no written formal

complaint , to any agency or person, until after his termination

in July 2004. The Petitioner was not asked to participate in an

investigation , hearin g or inquiry concerning the operation of

the bulb crushing machine and made no written complaint to any

supervisory officials of the Respondent , who could then

themselves submit a complaint to the Inspector General or to the

Human Relations Commission. In fact , in his own testimony the

Petitioner admits that he made a written complaint in July of

2004.

3 3 . I n an apparent effort to show that the Respondent's

proffered non - discriminatory reason for his termination was

pretextual , the Petitioner advance d te stimony from a number of

witnesses, including himself, which he maintains show s a pattern

and practice by the Respondent of retaliating against , and , if

necessary , effectively firing older , disabled employees or

employees who complain of safety hazards. I n this regard , of

the five positions selected to be eliminated in the job force

reduction of 2004, four had incumbent s when the decision was

made . All four of those incumbents were over 40 years of age.

Two of those four positions , however , became vacant before they

were eliminated by the job force reduction. M s. Ashraf Achtchi

was fired by the Respondent before her position became

officially eliminated in the job force reduction and Preston

Booth voluntarily resigned from his position for unknown

reason s.

3 4 . Ms. Achtchi testified to the general effect that she

felt she had been discriminated against because of being ill and

under medical treatment , yet she was still singled out ( in her

view ) for being absent or tardy. Although the record may

establi sh that she is over 40 years of age, there is no

persuasive evidence that she suffered from a legally cognizable

disability as that condition or term is defined below, even if

she was under a doctor's care, was ill, and had frequent

tardiness or absentness due to illness or a doctor's visit

during her employment tenure. In any event, other than her own

subjective opinion and Mr. Forehand's speculations based upon

hearsay, there is no persuasive , competen t evidence to show that

she was terminated for any re asons based upon an unproven

disability, her age or due to any retaliation regarding any

protected status within the p urview of Chapter 760, Florida

Statutes.

3 5 . The Petitioner maintains that both he and Mr. Feizi

were over 40 and disabled. Whether or not the Petitioner

established proof of disability will be dealt with in the

conclusion s of law below. Mr. Feizi apparently suffered from a

disease of the nervous system (AMS) and was confined to a wheel

chair much of the time. It may thus be inferred t hat , for

purposes of the legal elements of disability referenced below,

that Mr. Feizi was disabled. Other than his subjective opinion

and Mr. Forehand's subjective testimonial speculation , based

upon hearsay, however, there is no competent , persuasive

ev idence concerning the reasons Mr. Feizi was terminated , other

than that his position was simply eliminated through a job force

reduction in the manner described in the above findings of fact.

There is no persuasive , credible evidence to show that he was

d ismissed from employment based upon his age or due to his

disability or as retaliation , nor was that proven with regard to

Ms Achtchi.

3 6 . Other employees testi fied concerning alleged

retaliatory conduct on the part of the Respondent. Sid

Pa l l adino and John Corbin opined that they had be en retaliated

against for making safety complaints of various kinds , as well

as for testifying on behalf of the Petitioner in this

proceeding. Ralph Cleaver testified that he left the Department

to work for the Departmen t of Agriculture because he had filed a

" whistle blower " claim and that the Respondent , in his view ,

would use retaliation for hi s taking such an action.

3 7 . B a rry McDaniel was 60 year s old when hired and ,

abruptly soon thereafter , was asked to resign , according to his

testimony , without any given reason. He testified that

Mr. S ibille had him read a book purportedly advocating hard work

and the hiring of young workers. The book was entitled "The Go

Getter." According to Mr. McDaniel's testimony , the b ook was

required to be read by all employees under Mr. S ibille 's

supervision. There was no evidence, however , that although

Mr. McDaniel was asked to resign , that any other employee was so

treated. The book was not in evidence and the undersigned has

onl y Mr. McDaniel's subjective testimony concerning h is thought s

regarding the theme and content of the book , in relation to his

subjective belief that his age was the reason he was asked to

resign. He testified that his immediate superior , who was also

60 y ears of age , was "gone" shortly thereafter. There is no

evidence of any circumstances or facts concerning why

Mr. McDaniel or his supervisor were actually asked to resign or

in the case of his supervisor, may have voluntarily resigned.

There are insuffic ient facts and circumstances establish ed by

the evidence to show any discriminatory motive related to age or

otherwise with regard to the terminations of either of these

men.

3 8 . Sid Palladino testified that he was reprimanded for

not wearing his unifo rm and that other employees were not

reprimanded when they had not worn uniforms either. He also

testified that he felt he was retaliated against for making

safety complaints as well as for testifying in support of the

Petitioner in this proceeding. In f act, his reprimand was

rescinded shortly after it was given him when it was learned

that he had not worn his uniform or worn it properly because the

uniform supplied him did not fit.

3 9 . Additionally, other than their anecdotal comments in

their te stimony , there is no persuasive evidence that

Mr. Palladino or Mr. Corbin were retaliated against for

complaining of safety issues and the same is true of Ralph

Cleaver opining that he was about to be retaliated against for

being a whistle blower , and Barr y McDaniel as well . There is

simply no definitive , credible proof , other than these

employees ' own subjective opinions , upon which to base a finding

that there was any pattern and practice of retaliation against

employees for complaining about safety haza rds , for supporting

other employees ' discrimination claims, for making whistle

blower claims, for being disabled or on account of their age ,

which could be persuasively probative of the discrimination and

retaliation claims of the Petitioner . 1/

40 . In t his connection , it is also found that there are a

number of remaining employees in the Petitioner's division , who

were his age or older . I ndeed, Mr. Robert Smith had retired and

then was later re - hired by the Department and the Division after

suffering at least one episode of injury and medically

prescribed light duty . Likewise, there are an unknown number of

disabled or physically impaired persons remaining employed by

the Department , after the dates and circumstances occurred with

regard to the Petition er's discriminatory claims. At least two

of them testified in this proceeding.

41 . These facts belie the existence of a systematic policy

or practice of eliminating employees over age 40 or of

Mr. Forehand's age or older , or those who might be disabled or

suffering from physical or medical impairments .

CONCLUSIONS OF LAW

4 2 . 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. (200 5 ).

4 3 . S ection 760.10(7), Florida Statutes prohibits

discriminatory employment practices , as , for instance ,

discharging a person for reasons of retaliation , as defined in

Section 760.10(7), Florida Statutes. Specifically, Section

760.10(7), Florida Statutes , prov ides that:

It is an unlawful employment practice for an

employer, an employment agency, a joint -

labor management committee, or a labor

organization to discriminate against any

person because that person has opposed any

practice which is an unlawful employm ent

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 . (Emphasis supplied)

4 4 . The Florida Civil Rights Act of 1992, Chapter 760,

Florida Statutes, in prohibit ing discrimination in the

workplace , among other things , forbids the discriminatory

termination of an employee. Specifically Section 760.10(1)(a),

Florida Statutes , provides that it is an un lawful employment

pract ice for an employer to discharge a person because of such

person ' s age or handicap . The Respondent herein is an

"employer" as defined in Section 760.02(7), Florida Statutes.

4 5 . Florida courts have determined that federal decisional

law is persuasive co ncerning claims arising under Chapter 760,

Florida Statutes, deeming that it is essentially the mirror

image of Title VII of the Federal Civil Rights Act of 1964.

Likewise, the instructive or persuasive quality of federal

decisions interpreting Title 42 U .S.C 21101 et seq ., the

" Americans With Disabilities Act, " is also recognized by Florida

courts. See Florida Department of Community Affairs v. Bryant ,

586 So. 2d 1205 (Fla. 1st DCA 1991) , Razner v. Wellington

Regional Medical Center, Inc. , 837 So. 2d 437 (Fla. 4th DCA

2003) and Chanda v. Englehard/ICC , 234 F.3d 1219, 1221 (11th

Cir. 2000). Therefore , the shifting burden analysis set forth

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

applies in proceedings arising under Chapter 760, Flor ida

Statutes. The McDonnell shifting burden analysis provides: (1)

The Petitioner must prove a prima facie case of discrimination

by the preponderance of the evidence; (2) If the Petitioner

proves a prima facie case, the burden shifts to the defendant

( Respondent) who must "articulate some legitimate, non -

discriminatory reason for the employee ' s rejection" in order to

rebut the Petitioner's presumption attached to the prima facie

case. McDonnell , 411 U.S. at 803. Once the employer brings

forward eviden ce of a non - discriminatory reason for the

employment action taken, the Petitioner must then bring forward

evidence to demonstrate that the proffered reason offered by the

employer is but a pretext for what really amounted to a

discriminatory reason for the employment action at issue. The

Petitioner , however, retains the ultimate burden of persuasion

in an employment discrimination case. Texas Department of

Community Affairs v. Burdine , 450 U.S. 248 (1981) ; St. Mary's

Honor Center v. Hicks , 509 U.S. 502 (1 993) .

4 6 . The Petitioner contends he was discriminated against

on grounds of disability, age, and retaliation. A prima facie

case of discrimination can be established by direct evidence of

discriminatory intent , as by a statement or act. Carter v. City

of Miami , 870 F.2d 578, 581 (11th Cir. 1989) ; Young v. General

Foods Corporation , 840 F.2d 825, 828, cert . denied , 488 U.S.

1004 (11th Cir. 1988). To support discrimination by direct

evidence, the statement or act of the employer must be made by a

decisi on - maker in the employment action at issue; must relate to

the challenged employment decision and must reveal blatant

discriminatory animus. Direct evidence of intentional

discrimination is evidence which, if believed, would prove the

existence of a fact without further inference or presumption.

The Eleventh Circuit "marked severe limits for the kind of

language to be treated as direct evidence of discrimination ."

Jones v. Bessemer Carraway Medical Center , 151 F.3d 1321, 1323

(11th Cir. 1998). It includ es "only the most blatant remarks,

whose intent could be nothing other than to discriminate on the

basis of [a protected trait ]." Carter , 870 F.2d at 581 - 82.

Evidence that i s subject to more than one interpretation does

not constitute direct evidence of discrimination. Taylor v.

Runyon , 175 F.3d 861, 867 (11th Cir. 1999). Nor does evidence

of what could be deemed neutral remarks , from which a p etitioner

infers a discriminatory intent, constitute direct evidence.

Carter , supra at 582.

4 7 . The Petition er apparently contends that the following

statement is direct evidence of discrimination against his

disability, age, or as retaliation: "you can't save him this

time." That remark was made by Ms. Linn , a deputy division

director , to Mr. Jacobson, the Pe titioner's immediate

supervisor. The context of the statement was that in the fiscal

year 2000 - 2001 the Petitioner's position was designated by the

Legislature for elimination as being non - critical. However,

when the position itself was about to be elimi nated , a vacant

position was found by the Respondent and the Petitioner 's

supervisors , to which the Petitioner was transferred in order to

save his employment. Specifically, the Petitioner's electrician

position was abolished on June 29, 2001, and he was re - assigned

to another position which was vacant. That position was re -

classified to electrician or to a position which comported with

the Petitioner's qualifications . In fiscal year 2003 - 2004

however, the same position reduction was again required by th e

Legislature and there were no "open positions" to transfer the

Petitioner into. Mr. Jacobson , the Petitioner's supervisor ,

understood Ms. Linn 's comment to mean simply that there were no

jobs available for the Petitioner with this job force position

eli mination, which process had been going on since the year

2000. Mr. Jacobson did not interpret the comment to refer to

any retaliation or discriminatory act or intent against the

Petitioner nor was it so , in light of the totality of the

preponderant eviden ce of record. The statement is neutral and

does not denote discriminatory intent and direct evidence of

discrimination . No statistical evidence has been presented by

the Petitioner , of any substantial nature , in attempting to

establish discrimination thr ough statistical evidence therefore

he must establish a prima facie case and rebuttal/pretextual

proof of discrimination , if at all , by circumstantial evidence

in accordance with the proof analysis test of McDonnell - Douglas ,

supra .

4 8 . In order to establ ish a prima facie case of

discrimination based upon disability or handicap , for purposes

of the American With Disabilities Act or Section 760.10, Florida

Statutes, (1) the Petitioner must establish that he has a

physical or mental impairment which substant ially limits one or

more major life activities; (2) that he is able to perform the

assigned duties and functions of his employment position

satisfactorily with or without reasonable accommodation (which

he must request) ; (3) that his employer was aware of his

disability, that there is a record of his having the disability

or that he was "generally regarded" as having such a disability ;

and (4) that despite his satisfactor y performance he was

terminated from his employment position , when others, similarly

si tuated and outside his protected class were given more

favorable treatment. See Clark v. Jackson County Hospital , 20

FALR 1182, 1184 (FCHR 1997); Brand v. Florida Power Corporation ,

633 So. 2d 504, 509 (Fla. 1st DCA 1994) ; Schwertfager v. City of

Boynton Beach , 42 F. Supp . 2nd 1347, 1357, 1362 (S .D. Fla.

1999).

4 9 . The Petitioner bears the burden to establish the

existence of a physical or mental impairment that substantially

limits a major life activity (disability) as an element of his

prima facie case and that because of that disability he was the

victim of illegal discrimination . Cheatwood v. Roanoke

Industries , 891 F. Supp. 1528, 1536 (N .D. Ala. 1995). I t is

stipulated that the Petitioner had a diagnosis of asbestosis in

or about 1992 . O nce per ye ar the Respondent has sent the

Petitioner, through the workers' compensation medical evaluation

process, to be examined , and have a chest X - ray , with regard to

that diagnosis. There is no persuasive evidence , however , that

the asbestosis i s an impairment that was substantially limiting

a major life activity such as breathing , walking , or working.

Neither physician who diagnosed it , nor any physician since , has

ever placed the Petitioner on any restrictions with regard to

that diagnosis according to the ev idence in this record .

50 . Sometime in 1999 the Petitioner suffered a sprain to

his left knee. He may have been off work for a few days. The

record evidence does not show how long. His physician sent him

back to work with a light duty recommendation an d light duty was

provided him. There is no substantial , persuasive evidence that

he was placed on any restrictions on a repetitive or permanent

basis concerning that injury , nor did it cause a substantial

limit to a major life activity such as walking, sq uatting,

stooping, climbing ladders, or working. Therefore, during that

time period from 1992 through early March of 2004, the

Petitioner has not established that he had an impairment from

these reasons that substantially limited one or more major life

ac tivities.

51 . Although he believed and testified that he had

breathing difficulties during this time and may have mentioned

them to his co - workers informally on occasions , there is no

competent , persuasive evidence, as to the third element of his

prima facie case for disability discrimination that the

Respondent - employer knew of any major impairment of life

activities , based upon these facts , or that it generally

regard ed him as having such an impairment. The Respondent knew

of the diagnosis of asbestos is , of the annual examinations with

regard thereto , and knew of the 1999 knee injury , but the

evidence does not show that it knew there was any permanent

impairment or restriction related thereto.

5 2 . It is stipulated that the Petitioner is qualified and

capable to perform the essential functions of his job with or

without reasonable accommodation by the Respondent. See Sutton

v. United Air Lines, Inc. , 527 U.S. 471 - 459 (1999). See also 42

U.S.C. 12111(8). The Petitioner is also required to identify to

his employer a reasonable accommodation which his employer might

provide him to better enable him to perform the essential

functions of his job. Other than requesting temporary light

duty when he returned from medically - related time off from work,

the Pe titioner never asked for any accommodation for his

purported disability according to the preponderant evidence . It

is the Petitioner's burden to request such an accommodation.

U.S. Airways, Inc., v. Barnett , 122 S. Ct. 1516, 1523 (2002).

5 3 . To the ex tent that the Petitioner received any

accommodation from the Respondent , it was largely the result of

the Respondent's own initiative in not monitoring him closely

about timely arrival at work , tolerating the fact that it

sometimes took him longer to compl ete his job duties that it

might have taken others , and tolerating his purported need to

take frequent rest breaks. Thus , to the extent he was

accommodated , it was a defacto accommodation and not directly as

a result of the Petitioner's request or Respond ent's knowledge

that he had any impairment which substantially limit s a major

life activity such as breathing, walking, performing manual

tasks, working, etc. , as of early March 2004.

5 4 . The Florida Legislature convened on or about the first

Tuesday in March , 2004. In th e session one year earlier , in

2003 , the Legislature had determined that 25 positions of the

Department , referenced in the above f indings of f act should be

classed as non - recurring and therefore subject to abolition

after they were fund e d on a non - recurring basis for one more

fiscal year, the 2003 - 2004 fiscal year. The Respondent 's

position was one of these.

5 5 . When an agency decides to take any position with

regard to its budget for an upcoming session of the L egislature

and its app ropriation process, it must submit a budget request

both to the Office of the Governor (in the preceding fall), to

the Legislature , and its Appropriations Committees prior to the

convening of the session. It must , therefore , decide at that

time what its p osition will be with regard to such things as

positions to be funded , etc. Therefore , the Respondent ,

decided , prior to the convening of the Legislature , that it

would seek to re - classify 20 of the 25 positions at issue as

" recurring " once again , on the t heory that it believed them to

be critical positions that it needed to retain . Concomitantly,

it decided that five of the positions, including the

Respondent's, were non - critical and did not need to be retained

as de scribed in the above findings of fact . Thus the decision

to not re - classify the Petitioner's position as critical , and

recurring as to funding, had to have been , and was , made before

the convening of the 2004 Legislative session. That was when

the employment decision at issue was made , althou gh it was not

announced to the Petitioner until June 14, 2004.

5 6 . The Respondent contends that i t was not announced to

the Petitioner until then because , under normal agency policy,

employees who are to have their positions eliminated in job

force redu ctions by the Legislature are not told of such until

the agency is certain that the Legislature has finally done so ,

near or at the end of th e Legislative session when the

A ppropriations A ct is passed. While one may wonder whether such

is indeed a "policy " since in the previous job force reduction ,

employees , including Mr. Forehand, were told they were at risk

many m onths previous to the critical L egislative act and while

one may certainly decry such an action by the agency in giving

so little warning to e mployees in the position of Mr. Forehand

of the imminent loss of their jobs, the preponderant , persuasive

evidence does not demonstrate that the agency's decision , and

the failure to warn Mr. Forehand of that fact prior to June 14,

2004, two weeks before t ermination , was related to a disability ,

age, or retaliation.

5 7 . As found above, in 2003 Mr. Forehand began operating

the bulb crushing machine , with that duty becoming more intense

in early 2004. I n February 2004 and early March 2004 the

machine beg an emitting dust and particulate matter in

substantial amounts due in part to a malfunction of the

filtration or exhaust system , described above. Mr. Forehand

began complaining of this to various supervisors in March 2004 ,

culminating on or about March 16 , 2004, with his refusal to

further use the machine and Mr. Glen Abbott ' s completion of a

" medical report form " on that date regarding Mr. Forehand's

complaints regarding the purported effects of the machine on his

breathing , including congestion , and shor tness of breath . T he

Respondent ceased using the machine immediately after this

revelation .

5 8 . Thereafter , in May of 2004, Mr. Forehand reported his

complaints regarding the machine and his perceived health

effects to the D EP , as found above. The Peti tioner did not seek

medical attention for his concerns about the effect the dust and

particula te matter from the machine might be having on his

asbestosis situation. He testified that he asked Clint Sibille

to send him to a doctor and Mr. Sibille responde d that he sh ould

see his own doctor. Contemporaneously, Mr. Sibille conferred

with his co - assistant director, Ms. Linn , who told him that the

Petitioner would have to engage the workers' compensation

process to seek medical attention . Mr. Sibill e then to ld the

immediate supervisor Mr. Jacobson to so inform Mr. Forehand.

5 9 . In any event , although various personnel and

supervisors knew of the Petitioner's complaints regarding the

effects he felt the bulb crushing machine was having on his

asbestosis con dition , it had not been established , by any

medical testimony or report or other definitive, non - hearsay

evidence what, if any, impairment may have been caused by the

use of the machine during Mr. Forehand's tenure . There is no

showing that he lost any ti me from work during March through

June 14, 2004, due to breathing difficulties or other reasons

related to the machine operation.

60 . S ome three weeks after his employment ended , on or

about July 20, 2004, Mr. Forehand visited a walk - in medical

facility b ased on his own assessment of his condition at that

time . He testified he had experienced shortness of breath,

chest pains, and tightness in his chest , which he attributed to

the use of the bulb crushing machine back in March and earlier.

He testified th at he was then diagnosed with Silicosis and the

physician determined that the could not tolerate walking 30 to

60 minutes at a time or lifting greater than 15 to 20 pounds.

The physician did not testify in this proceeding, however, and,

be that as it may , the Respondent did not know of any such

impairment , as described immediately above , at the time the

employment decision was made, shortly before the 2004

Legislative session. Moreover , the employer did not know of the

alleged Silicosis diagnosis at the t ime the Petitioner was told

of his lay - off on June 14, 2004, or a s of his last day of paid

employment , June 30, 2004.

61 . On May 18, 2004, the Petitioner suffered the second

knee injury . He went to a physician for this injury and was out

of work for s everal days. He then returned to work on or about

June 1, being available by his physician 's recommendation , for

"light duty." His supervisor Mr. Jacobson made the significant

efforts to find him light duty found above, to no avail.

6 2 . The Petitioner c ontends that he suffered from

extensive swelling from his thigh to his ankle in conjunction

with this twisted knee and that he had a blood clot and DVT. As

the evidence developed however, the DVT and blood clot aspect of

his injury and subsequent course w ere not known to the

Respondent before the Petitioner left his employment. He did

tell his lead worker , Mr. Kerr , that he suffered from pain and

swelling in his leg due to the knee injury. Since the

Silicosis , if it exists , and the DVT and/or swelling in the leg

w ere not manifested or medically determined , if at all , until

after the Petitioner left his employment the persuasive evidence

does not show that the Respondent was aware of or understood the

Petitioner to have any impairment substantially limitin g any

major life activities with regard to those two elements of

injury just as the same is true as to the asbestosis and the

early 1999 knee injury .

6 3 . Moreover, during his entire tenure with the Respondent

the evidence does not clearly establish that the Respondent ever

asked for a reasonable accommodation of any purported impairment

or disability. He did ask for temporary light duty after coming

back to work from workers' compensation medical leave on several

occasions. On those occasions he was giv en light duty , and when

the Respondent had no light duty to give him it accommodated in

him a defacto sense by not requiring him to complete tasks

within any certain time , allowing him frequent breaks , allowing

him to be tardy when he had medical reasons f or doing so . It

essentially gave him a reasonably free rein in how he performed

his job.

6 4 . The employment decision at issue ( to lay him off

because the Respondent did not have a vaca nt position to

reasonabl y place him in ) was made before his problems with the

bulb crushing machine arose and before his last leg injury

occurred . The job force reduction or position elimination, was

originally engendered by budgetary action of the Legislature and

was acceded to by the Respondent, in effect, in the second year

it occurred as to Mr. Forehand's position . In the first job

force reduction, the Respondent was able to find a vacant

position to re - classify for the Petitioner so it could protect

his employment. It was unable to do so on the occasion at issue

bec ause the vacant positions available were for high skilled

workers, such as master electricians which required the occupant

to be a licensed electrician. The Petitioner is not a licensed

electrician. It would impair the Respondent's ability to

perform its critical functions if it had to re - classify one of

its higher skilled position s such as m aster e lectrician , to a

lower level position such as e lectrician in order to accommodate

the Petitioner. That reason , elucidated more fully in the

findings of fact a bove, is the reason the Petitioner's position

was abolished.

6 5 . His loss of employment had nothing to do with any

effort by the Respondent to get rid of him because he had a

disability or even a physical impairment. The Petitioner in his

testimony and evidence , and in his disclosures to supervisors of

the Respondent prior to the time the decision to eliminate his

position was made, had not thus informed his employer of the

nature and severity of any impairment, if he had one, nor in his

testimony did h e establish the nature and severity of any

impairment related back to his asbestosis diagnosis of 1992 or

the 1999 knee injury. 2 / He thus did not establish that he had a

disability by virtue of an impairment substantially limiting a

major life activity su ch as breathing, working, walking,

squatting, stooping, etc. or doing manual tasks. At the time

the decision to eliminate his position was made , he had not yet

begun complaining about the operation of the bulb crushing

machine and the possible effect upon him, at least insofar as

the evidence in this record is concerned. Thus he did not

definitively and preponderantly establish that he had a legally

c onstituted disability at the time that employment decision at

issue in this case was made. Thus he has no t established a

prima facie case of disability discrimination.

6 6 . Even if one ignores the fact that the Petitioner did

not definitively prove a disability and assumes arguendo that a

prima facie case had been established, the Respondent has come

forwar d with a legitimate , non - discriminatory reason, described

a bove , for the employment termination at issue. That is , it was

a job force reduction originated at the behest of the

Legislature and acquiesced in by the Respondent , to the extent

of the Petitione r's and the other four positions that were

subjected to lay - off s , for legitimate management reasons . The

primary reason was that the second time around the Respondent

did not have a legitimate , reasonably available vacant position

to move the Petitioner i nto. That was the essential reason for

the employment action in question and there has been no showing

that any reasons was pretextual and really related to disability

discrimination , or for that matter , age discrimination or

retaliation.

The Age Discri mination Claim

6 7 . The Petitioner's allegation s of discrimination are

also based on age. In order to establish such discrimination he

must prove that (1) he is a member of a protected age group

(generally over 40 years of age persons ) ; (2) that he was

q ualified for his current position at the time of the adverse

employment action; and (3) he must present evidence from which a

fact finder could reasonabl y conclude that the employer intended

to discriminate on the basis of age. Alphin v. Sears Roebuck

and Co. , 940 F.2d 1497, 1500 (11th Cir. 1991). It is undisputed

that at the time he was laid off , the Petitioner was 55 years of

age. In fact, he was informed of the lay - off on his fifty - fifth

birthday. Thus, the first element of the prima facie case has

b een established. Evidence which would be relevant in an

attempt to show discrimination on the basis of age would be the

Petitioner being replaced in his former job with a younger

person , someone sufficiently younger to permit an inference of

age discrimin ation. Fowle v. C&C Cola, a Division of ITT

Continental Baking, Co. , 868 F.2d 59, 61 (3rd Cir 1989) .

6 8 . In fact , the Petitioner was not replaced , because his

position itself was abolished. The duties of that position were

broken up and performed by other employees of the electrician

unit , as needed. The other employees who remained in employment

with the unit were of varying age s, some of them were above the

age of 40 and some were older than the Petitioner. In fact,

Robert Smith had retired once ( early) and had then been re - hired

by the Respondent. Although the four occupants of the five

position s eliminated through the Legislative job force reduction

were over the age of 40 , t here is no evidence to show how many

of the 15 positions who were recla ssified as recurring and

critical positions and thus saved were under 40 and how many

were over 40 are possibly even older than the Petitioner. There

is simply insufficient evidence to show any ongoing policy or

intent by the Respondent to discriminator il y remove people from

employment based upon their age. 3/

6 9 . The Petitioner here failed to establish his prima

facie case because he failed to show that he was replaced by a

younger person . See Williams v. Vitro Services Corp. , 144 F.3d

1438, at 1441 (11 th Cir. 1998). In the event, even if a prima

facie case had been established , the Respondent has shown

legitimate and non - discriminatory reason s through the evidence

it brought forward concerning the reasons the Petitioner's job

was eliminated , as has bee n found and concluded above concerning

the disability portion of the claim.

70 . Moreover, the showing by the Respondent has not been

rebutted by persuasive proof that the Respondent's reasons for

the job deletion were pretextual. There is simply no sho wing

that there was discriminatory animus associated with the

elimination of the Petitioner's job position and his employment

through the Legislative/budgetary job reduction procedure and

policy. There is no evidence as to the ages of each other

retained member of the electrical unit or the division, but

there is evidence that some of them were over 40 and at least

one or two were the Petitioner's approximate age or older.

Moreover , some of those employees are not exactly comparative

employees , in any eve nt , because they are master electricians

holding m aster e lectricians positions , which are more skilled

and require more qualifications than the Petitioner's position .

Such positions require a m aster e lectrician's l icense , which the

Petitioner did not have , and was not requir ed to have in his

e lectrician position. There is simply no proper persuasive

evidence to show that any employees in the Petitioner's

electrical unit nor in the division were hired or laid - off ,

through the job force reduction procedure based upon their age.

The Petitioner's self - serving , good faith belief, standing alone

is insufficient to carry the ultimate burden of persuasion that

discrimination has occurred. Little v. Republic Refining Co.,

Ltd. , 924 F.2d 93, 96 (5th Cir. 1991); Sh iflett v. G.E. Fanuc

Automation , 960 F. Supp. 1022, 1031 (W.D. Va. 1997).

The Retaliation Claim

71 . The Petitioner contends that he made a disclosure of

what he contends is an action or omission by the Agency which

created or presented a substantial dang er to the "public's

health, safety, or welfare" with regard to the problems he

described concerning the operation of the bulb crushing machine

and the health effects he feared might result . He contend ed at

hearing and in his Proposed Recommended Order tha t he perfected

a claim under the Whistle Blower's Act, Section 112.3187,

Florida Statutes (2005). He also is apparently claiming

retaliation by his employer based upon the provision of

Subs ection 760.10 (7) , Florida Statutes , in which the filing of a

claim regarding an alleged unlawful employment practice for

which an employee is retaliated against by the employer, is

actionable under Section 760 .10 , Florida Statutes.

7 2 . Initially it is determined that the Petitioner has not

established that the Division of Administrative Hearings and the

undersigned has jurisdiction of any Whistle Blower Act Claim

under Section 112.3187, Florida Statutes (2005), and the

concomitant remedial procedure delineated in Section 112.31895,

Florida Statutes (2005). That provisi on gives the Human

Relations Commission authority to make investigation and make

recommendations concerning a written claim filed by an employee

who is protected by Section 112.3187, Florida Statutes, if that

employee in his or her claim has met certain cr iteria , but not

through an action which invokes the jurisdiction of the Division

of Administrative Hearings .

7 3 . The jurisdictional issue aside, however, the

Petitioner must report to his agency or to th e A gency I nspector

G eneral or the C hief I nspector G eneral of Florida a violation or

suspected violation of state, local or federal law , rule or

regulation committed by an employee or agent of an agency "which

creates and presents a substantial and specific danger to the

public's health, safety, or welfare . . ." ( which, factually, is

the closest analogy to his complaints concerning the bulb

machine ). Section 112.3187(7), Florida Statutes , must be

examined to determine if the Petitioner is a member of the class

of persons who are protected by this statutor y provision .

Subsection (7) requires as follows:

This section protects employees and persons

who disclose information on their own

initiative in a written and signed

complaint; who are requested to participate

in an investigation, hearing, or other

inquir y conducted by any agency or federal

government entities; who refuse to

participate in any adverse action prohibited

by this section; or who initiate a complaint

through the whistle blowers hotline or the

hotline of the Medicaid Fraud Control Unit

of the D epartment of Legal Affairs; or

employees who file any written complaint to

their supervisory officials or employees who

submit a complaint to the chief inspector

general in the executive office of the

governor, to the employee designated as

agency inspect or general under s.

112.3189(1), or to the Florida Commission on

Human Relations. . . .

7 4 . The Petitioner does not qualify as an employee who has

perfected a claim under this subsection. Firstly, he ha d not

filed a written and signed complaint accordi ng to the evidence

in this record, at least before the subject employment action

was taken . He was not requested to participate in an

investigation , hearing or other inquiry conducted by any agency.

He did speak to a representative from the DEP, but neit her that

agency nor any other requested him to participate in an

investigation. He also was not requested to , and then refused ,

to participate in any adverse action prohibited by this section.

There is no evidence that he initiated a complaint through th e

Whistle Blowers Hotline and there is no evidence that he filed a

written complaint to any of his supervisory officials , or

employees who th en submitted a complaint to the C hief I nspector

G eneral , to the agency I nspector G eneral or to the Florida

Commissi on on Human Relations. Thus the evidence clearly

indicates that there was no perfected claim under the above

statutory provisions c ommonly called the "Whistle Blowers Act , "

even if such a claim could be referred to Division of

Administrative Hearings for adjudication based on the above -

cited statutory provisions, which it cannot. There were not

even verbal complaints concerning the effects of the machine

operation until after the employment decision was made.

Therefore, those complaints were not the subj ect of retaliation.

7 5 . Concerning the claim of retaliation asserted in his

Petition for Relief filed under Chapter 760, Florida Statutes ,

with the Human Relations Commission , which is jurisdictional, it

is determined, for the same reasons explained with regard to the

charges of disability discrimination and age discrimination,

that the retaliation claim must fail . This is because the

employment decision at issue , to proceed with the abolition of

his position, in the manner and for the reasons found abov e was

made before the commencement of the Legislative session and

before he began complaining verbally concerning the bulb

crushing machi ne and his fears of its health e ffects upon him.

Consequently, no competent , persuasive evidence of any

retaliation on the basis of the Petitioner making such

complaints , for the above reasons, has been established.

RECOMMENDATION

Having considered the foregoing findings of fact,

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

demeanor of the witnesses an d 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 its entirety.

DONE AND ENTERED this 29th day of August , 200 6 , in

Talla hassee, 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

Fa x Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of August , 200 6 .

ENDNOTE S

1/ Elliott v. Group Medical and Surgical Service , 714 F.2d 556,

567 (5th Cir. 1983). Employee or Petit ioner's own , subjective

opinion , standing alone that discrimination has occurred is

insufficient to carry the ultimate burden of persuasion that the

employment discrimination in question actually occurred.

2 / Although the Petitioner offered evidence that he had

asbestosis and the knee injury as an impairment it did not rise

to the level of disability because the knee injury was temporary

for one thing and it has been held insufficient for individuals

to prove disability status by merely submitting evidenc e of a

medical diagnosis of an impairment. Instead , ADA requires them

to offer evidence that the extent of the limitation on a major

life activity including that of working caused by their

impairment or impairments is substantial. Toyota Motor

Manufactur ing Kentucky, Inc., v. Williams , 534 U.S. 184, (2002).

The Petitioner's testimony and evidence does not meet this

burden.

3 / The fact Clint S i bille gave Barry McDaniel the book "Go

Getter" was not evidence of age discrimination because, for one

thing, t here is no evidence that other employees were given the

book to read as if management was trying to hint to them that

age is a detriment to continued employment. Barry McDaniel

merely stated that Clint S ib l l e said he would give that to all

employees, ther e is no evidence that he actually did so and, if

he did, there is no evidence that age discrimination or intent

to terminate people who were above a certain age was the motive.

COPIES FURNISHED :

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

Jimmy D. Forehand

9491 Old Saint Augustine Road

Tall ahassee, Florida 32311

Stephen S. Godwin, Esquire

Thomas H. Duffy, Esquire

Department of Management Services

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written ex ceptions 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.