05-002404 Joseph C. Bennett vs. Department Of Agriculture And Consumer Services Status: Closed Recommended Order on Monday, December 19, 2005.

Summary: Petitioner claimed a disability based on a bipolar disorder. Whereas a bipolar disorder may be a disability, it was not in the facts in this case. Respondent terminated Petitioner for nondiscriminatory reasons.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSEPH C. BENNETT, )

)

Petitioner, )

)

vs. ) Case No. 05 - 2404

)

DEPARTMENT OF AGRICULTURE AND )

CONSUMER SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for formal hearing before Harry L.

Hooper, Administrative Law Judge with the Division of

Administrative Hearing s , on October 6 and 10, 2005, in

Tallahassee, Florida.

APPEARANCES

For Petitioner: Marie Mattox, Esquire

Law Offic e of Marie A. Mattox, P.A.

310 East Bradford Road

Tallahassee, Florida 32303

For Respondent: Stephen M. Donelan, Esquire

Department of Agriculture

and Consumer Services

509 Mayo Building

407 South Calhoun Street

Tallahassee, Florida 323 99 - 0800

STATEMENT OF THE ISSUE

The issue is whether Respondent engaged in an unlawful

employment practice with regard to Petitioner.

PRELIMINARY STATEMENT

On December 21, 2004, Petitioner Bennett (Mr. Bennett),

signed a Charge of Discrimination against the Department of

Agriculture and Consumer Services (Department). On April 18,

2005, the Florida Commission on Human Relations (FCHR) filed its

Notice of Determination: No Cause. On May 19, 2005,

Mr. Bennet t filed a Petition for Relief that was refused by FCHR

as untimely. Thereafter FCHR reversed their position and

granted a hearing.

The matter was filed with the Divisi on of Administrative

Hearings on July 5, 2005, and was scheduled for August 9, 2005.

Petitioner filed a continuance , and with the co nsent of

Respondent it was continued to October 6 and 10, 2005, and was

heard as re - scheduled.

Mr. Bennett called fo ur witnesses and offered Exhibits

numbered 1 through 23 into evidence , which were admitted. The

Department called seven witnesses a nd offe red Exhibits numbered

1 through 3 , which were admitted. A T ranscript was filed on

October 24, 2005. Ten days were allowed for the parties to file

a p roposed r ecommended o rder (PRO). This meant that the parties

were required to file PROs no later than No vember 3, 2005. The

Department timely filed its PRO on November 2, 2005.

Mr. Bennett, on November 5, 2005, requested an enlargement

of time in which to file his PRO. Over the objection of the

Department, Mr. Bennett was given until November 11, 2005 , to

file a PRO. November 11, 2005, was a national and state holiday

and thus it was impossible to file on that day. The next

available day for filing was November 14, 2005, which is when

Mr. Bennett's PRO was filed, and therefore, Mr. Bennett's PRO

was time ly filed.

Both PROs were considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. Mr. Bennett was employed as a forester by the

Department from May 30, 2003, until his termination on

December 10, 2004. During times pertinent he was 30 years of

age.

2. The Department is headed by the Commissioner of

Agriculture. The Division of Forestry (Division) is an organic

element of the Department. Among the duties of the Division are

the protection of state forest lands and the provi sion o f forest

environmental education and forest recreation.

3. Mr. Bennett had eight to ten years of experience as a

forester when he was hired by the Division . His initial

assignment was as a forester stationed in the Bear Creek

Educational Forest (Bear Cr eek) .

4. Mr. Bennett was diagnosed as having bipolar disorder

when he was 19 years of age . H e has been medicated since that

time with Lithium and Zyprexa. Lithium must be taken on a

regular basis. Zyprexa is taken only when the lithium fail s to

accomp lish the desired result. Zyprexa was needed when

Mr. Bennett became stressed . Zyprexa taken in a very small dose

would not affect Mr. Bennett's ability to work . Larger doses of

five or ten milligram s resulted in Mr. Bennett having to be

absent from wor k.

5. Mr. Bennett refrain ed from revealing his bipolar

disorder to his employer. If the effect of the Zyprexa was such

that he could not work, he would ask for leave and it would be

given to him with no question, at least until August 9, 2004.

6. In p erformance evaluation periods ending May 2003 and

May 2004 , Mr. Bennett received acceptable evaluations. These

evaluations were mid - range and not remarkable. They did

indicate that he consistently achieved Division expectations.

7. At work, Mr. Bennett was teased by co - workers about his

excessive weight from time to time and remarks were made to him

by fire fighters which indicated that being a forester was not

as important as being a fire fighter. This bothered

Mr. Bennett.

8. August 9, 2004, was not a good day for Mr. Bennett.

His mother was ill and he was feeling stress because of this.

He completed a physical examination as a precursor to becoming

qualified as a forest fire fighter and then went to Bear Creek

despite feeling unwell .

9. When h e arrived at Bear Creek he was greeted by

Shawn Duggar . Mr. Duggar laughed at him and this upset

Mr. Bennett. Mr. Bennett became irate and cursed. It is clear

that Mr. Bennett did not physically harm Mr. Duggar , but

Mr . Bennett's display of emotion u nnerved Mr. Duggar.

Mr. Bennett's manner was sufficiently menacing that the

physically smaller Mr. Duggar believed that he had reason to

fear for his personal safety . As a result of this encounter

Mr. Duggar departed the area and drove to the district office.

10. Mr. Bennett felt too upset to work on August 10, 2004.

He called in early that day and left a message on Mr. Oswalt's

answering machine informing him that he would be unable to come

in to work that day. Mr. Oswalt was Mr. Bennett's supervis or at

the time.

11. Both Mr. Oswalt and Mr. Weber, the supervisor next up

the line, called Mr. Bennett and wanted to have a meeting with

him. Later the district manager, Charlie Marcus , called.

Lastly, he got a call from John Webster, a bureau chief.

1 2. Mr. Bennett felt that because he was on sick leave , he

did not have to meet with these supervisory personnel . Also to

the best of his recollection, Mr. Bennett had taken Zyprexa that

morning and as a result, he felt it would be inappropriate to

meet w ith his supervisors while under the influence of that

drug.

1 3 . John Webster was sufficiently concerned about

Mr. Bennett's behavior that he asked him if he was, "going

postal." The phrase "going postal" means engaging in violent

acts in the workplace. Subsequently, at Mr. Webster's

instigation, Gadsden County Sheriff's Deputy Jenkins came to his

residence , which was located within the curtilege of the Bear

Creek facility. Deputy Jenkins told Mr. Bennett that he wanted

Mr. Bennett to enroll in the Emp loyee Assistance Program (EAP).

14. About one hour later, Deputy Jenkins came back to

Mr. Bennett's residence accompanied by Sergeant Wilder from the

Gadsden County Sheriff's Office. Mr. Bennett was questioned

with regard to his stability and medicatio ns, the EAP program

was discussed yet again, and Sergeant Wilder observed that

Mr. Bennett was "a bit shaky." The officers also talked to

Mr. Bennett's girlfriend when she called Mr. Bennett.

Thereafter , the officers departed.

15 . After several d ays of suffering from the effects of

his bipolar disorder , Mr. Bennett returned to work on August 19 ,

2005 . On August 23, 2004, Mr. Bennett met with his supervisors.

As a result of that meeting he was transferred from Bear Creek

to Wakulla County, and Ke n Weber, the Forestry Operations

Administrator for that district , referred him to EAP.

16. He was also required to get a note from his doctor

indicating the cause of his absence. The physician's note that

he brought the first time failed to specify the t ype of illness

resulting in his absence. He was required to get a second note

and he did. This second note also was nonspecific with regard

to his illness. The doctors were of the opinion that it would

violate Mr. Bennett's privacy if they revealed the nature of his

illness.

1 7 . Subsequently, on September 8, 2004, he received a

memorandum of counseling. This was not punitive. It merely

told him to avoid instances of behavior such as that

demonstrated on August 9, 2004.

1 8 . It is important to note at this point , that although

Mr. Bennett, immediately after the incident of August 9, 2005 ,

and at the hearing , attempted to minimize the incident with

Shawn Duggar, it is found as a fact that Mr. Bennett's actions

at that time were irrational and demonstrat ed a lack of

emotional control. This was recognized by the Chief of Human

Resources who said he was sent to EAP for " anger management

problems. "

1 9 . Mr. Bennett successfully completed the requirements of

EAP and evidence of this was provided in a lett er from J erry A.

Smith of the Allen Group, a provider of employee assistance ,

which stated, "Mr . Bennett has been compliant with, and has now

successfully completed, all recommended treatment."

20 . His supervisor at the Wakulla County job was

Ken Weber . His work at that job for a few weeks was

unremarkable.

21. On October 14, 2004, there was a Wakulla State Forest

s tatus meeting which Mr. Bennett attended. Mr. Weber, William

Taylor , and others attended. Mr. Bennett suggested that they

buy a digital camera for official use. He was informed that he

should meet with Allen Griffith, who also used a camera in his

work, fill out a necessary form, and then purchase the camera.

22. Mr. Bennett discussed the matter with Allen Griffith

briefly, and purchase d the camera with his state purchasing

card. Mr. Bennett did not fill out the necessary forms due to

his lack of understanding of the complexity of state purchasing

rules. His purchase of the camera was somewhat precipitous , but

ther e was no malicious in tent on his part nor did he personally

benefit from the purchase of the camera. He was eventually

asked to return the camera to the seller , and he did as asked.

23 . Subsequent to Hurricane Ivan, Mr. Bennett was ordered

on temporary duty in the Blackwate r River State Forest

(Blackwater) which had been damaged by hurricane winds.

Blackwater is located two to three hours from Crawfordville. He

began this duty some time after the October 14, 2004, meeting.

2 4 . Accommodations for the foresters were provide d in a

hotel in Crestview. Mr. Bennett was required to share a room

with another forester. The roommate to whom he was assigned

snored loudly and Mr. Bennett could not obtain the amount or

quality of sleep that he needed. This resulted in aggravating

hi s bipolar disorder.

25 . The lack of regular sleep, along with the side effects

of the lithium he was taking , caused Mr. Bennett's eyes to burn.

He had headaches and felt the onset of a manic episode. By the

third night his respiration rate increased an d he was feeling

very stressed. He called his girlfriend and she suggested that

she should come get him. He agreed and she drove from the

Tallahassee area to Crestview and, beginning after midnight,

followed him as he drove his state - assigned vehicle bac k to

Crawfordville , where he ingested some Zyprexa and went to sleep .

26 . Mr. Bennett had access to a telephone in Crestview and

two - way radio equipment in his truck , but he made no effort to

contact his superiors to inform them that he had decamped. Tw o

or three days later he talked to Mr. Weber and explained to him

the reason he abandoned his position. Mr. Weber told him that

he needed to get some help.

27 . The events surrounding the Blackwater forest episode

occurred during the work week October 25 - 29, 2004. Mr. Bennett

returned to work Monday, November 1, 2004, after he was able to

take his medicine, rest, and achieve stability. Ultimately his

superiors sent him back to Blackwater where he stayed in a

private room and performed in accordance with expectations.

28 . Before Mr. Bennett's planned stay was completed, h e

was p ulled from the Blackwater opera tion and told he was to be

terminated. Although a written reprimand was drafted addressing

the camera incident, and another was drafted with regar d to the

unauthorized departure from the Blackwater operation in October,

the letters were never dated, signed, or presented to him.

Rather, these matters were addressed in a letter dated

November 12, 2004, announcing that he was being recomme nded for

te rmination. This was signed by Elaine Cooper, Chief of

Personnel Management.

29 . The letter of November 12 , 2004, addressed his failure

to follow procedures when purchasing the camera and his

unauthorized departure from the Blackwater operation in Octobe r.

He was notified that his actions constituted a violation of

"AP&P No. 5 - 3, Section V, Insubordination, (Page 3), and Poor

Performance, (Page 20), respectively." The letter set a meeting

for November 30, 2004, and informed him that he could attend and

answer the charges against him.

3 0 . Mr. Bennett responded with a short letter dated

November 28, 2004, addressed to Elaine Cooper, Chief of

Personnel Management, which informed her that he had a

disability which he could manage. He further noted that hi s

disability could cause him to become irritable o r angry. He did

not reveal his bipolar disorder in this letter. This letter was

delivered to Ms. Cooper at the predetermination conference .

3 1 . In a letter dated November 29, 2004, a longer letter

was p repared for Ms. Cooper. This letter provided his version

of his employment experience as a forester and included a public

records request. It did not assert that he was disabled. This

letter was delivered to Ms. Cooper at the predetermination

conference .

3 2 . At no time prior to November 30 , 2004, did Mr. Bennett

claim to have a disability or ask for an accommodation as a

result of a claimed disability. At no time prior to

November 28, 2004, was Mr. Bennett perceived to be disabled by

his employer or any of its representatives. When he did inform

Ms. Cooper that he believed he had a disability , he did not

reveal the nature of his disability.

3 3 . In a letter dated December 6, 2004, addressed to

Mr. Bennett, Ms. Cooper noted that at the predeterminat ion

conference on November 30, 2004, he informed her for the first

time that he believed he had a disability. The letter stated

that his doctor should be provided with Mr. Bennett's position

description and should comment on his ability to perform in

acco rdance with the position description, with or without an

accommodation. No deadline was provided as to when a response

was due.

3 4 . In an e - mail dated December 9, 2004, Mr. Bennett asked

Ken Weber for one - half day of leave so that he could have his

doct or address the matters contained in Ms. Cooper's letter of

December 6, 2004.

3 5 . On December 13, 2004, Mr. Weber presented Mr. Bennett

with a letter dated December 10, 2004, signed by Ms. Cooper,

which informed him that he was terminated effective Decemb er 16,

2004.

3 6 . A Special Accommodation for Disability was prepared by

Dianna Byrd, a medical doctor, on December 28, 2004, stating

that Mr. Bennett should be allowed regular and appropriate lunch

breaks and should be allowed to take a five minute break during

stressful situations. It further stated that the Department

should allow his fiancé to call - in sick for him and that he

should be allowed to visit the doctor when he had an

appointment.

37 . At the time Dr. Byrd described these accommodations,

M r. Bennett's employment relationship with the Department had

been severed. It must be noted that even at this late date, no

diagnosis was provided. Even when he filed his Charge of

Discrimination with FCHR December 21, 2004, he failed to reveal

the natur e of his asserted disability.

CONCLUSIONS OF LAW

38. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. §§ 120.57(1) and 760.11, Fla. Stat.

39. Sections 760.01 - 760.11 and 509.092, comprise the

Florida Civil Rights Act. § 760.01, Fla. Stat.

40. The Department is subject to Section 760.10, because

it employs, " 15 or more employees for each working day in each

of 20 or more calendar weeks in the current or preceding

calendar year. . . ." § 760.02(7). Fla. Stat.

41. Section 760.10, Florida Statutes, provides as follows:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail to refuse to

hire any individual, or otherwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges of employment because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

(b) To limit, segregate, or classify

employees or applican ts for employment in

any way which would deprive or tend to

deprive any individual of employment

opportunities, or adversely affect any

individual's status as an employee, because

of such individual's race, color, religion,

sex, national origin, age, ha ndicap, or

marital status.

42. Disabled, or handicapped (the term used by the Florida

Act) , persons are protected by the Florida Civil Rights Act. It

is an unlawful employment practice for an employer to refuse to

hire or to refuse to provide an accommo dation to a disabled

person.

43. FCHR and the Florida courts have determined that

federal discrimination law should be used as guidance when

construing provisions of Section 760.10. See Brand vs. Florida

Power Corp , 633 So. 2d 504, 509 (Fla. 1st DCA 1994 ); Florida

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

(Fla. 1st DCA 1991).

44. Mr. Bennett had the opportunity to provide either

direct or circumstantial evidence of discrimination. If he had

offered direct evidence of discrimination, and if the fact

finder had accepted that evidence, then Mr. Bennett would have

proven discrimination. Civil Rights Act of 1964, § 701 et seq. ,

42 U.S.C.A. § 2000e, et seq . Mr. Bennett produced no competent

direct evidence of discrimination. Accordingly, pr oof of

discrimination, if discrimination can be proved, must be

accomplished using circumstantial evidence.

4 5 . The Supreme Court of the United States established, in

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

and Texas Department of Co mmunity Affairs vs. Burdine , 450 U.S.

248 (1981), the analysis to be used in cases alleging

discrimination. This analysis was reiterated and refined in St.

Mary's Honor Center vs. Hicks , 509 U.S. 502 (1993).

4 6 . Pursuant to this analysis, Mr. Bennett has the burden

of establishing a prima facie case of unlawful discrimination by

a preponderance of the evidence. If a prima facie case is

established, the Department must articulate some legitimate,

non - discriminatory reason for the action taken against

Mr . Bennett . Once this non - discriminatory reason is offered by

the Department , the burden then shifts back to Mr. Bennett to

demonstrate that the offered reason is merely a pretext for

discrimination. As the Supreme Court stated in St. Mary's Honor

Center , before finding discrimination, "[t]he fact finder must

believe the plaintiff's explanation of intentional

discrimination." 509 U.S. at 519. T he Petitioner bears the

ultimate burden of persuading the fact finder that he has been

the victim of illegal dis crimination based on disability.

47 . To prove a prima facie case, Mr. Bennett must provide

evidence that: (1) he was handicapped; (2) that he was able to

perform the duties of a forester with or without accommodation;

(3) that he suffered an adverse empl oyment decision because of

his disability ; and (4) that he was replaced by a non - disabled

person or was treated less favorably than non - disabled persons .

Retton v s . Department of Corrections , 9 F.A.L.R. 2423, FCHR

Order No. 86 - 045, (FCHR December 18, 1986 ), citing McDonnell

Douglas and Wolfe v s . Department of Agriculture and Consumer

Services , 8 F.A.L.R. 426 (FCHR Sept. 27, 1985). The elements of

a plaintiff’s prima facie case necessarily vary according to the

facts of the case and the nature of the claim . LaPierrre v s .

Benson Nissan, Inc. , 86 F.3d 444 (5 th Cir. 1996) .

48 . Under the Americans with Disabilities Act (ADA) , the

term "disability" means, with respect to an individual:

(A) a physical or mental impairment that

substantially limits one or more of the

major life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such

impairment .

See , 29 C.F.R. § 1630.2(i) and Section

760.22(7).

49 . Major life activities include, "functions such as,

caring for o neself, performing manual tasks, walking, seeing,

hearing, speaking, breathing, learning, and working." 29 CFR

§ 1630.2(i) .

50 . A bipolar disorder may under certain circumstances

constitute a disability covered by the ADA, especially if it is

severe. De n Hartog v s . Wasatch Acad. , 129 F.3d 1076 (10 th Cir.

1997). While it is easy for an employer to determine that an

employee or applicant for employment is blind or unable to walk,

for example, and thus disabled, it is much more difficult for an

employer to determine that an employee has a bipolar disorder.

This is especially true in the case where the employee

undertakes to hide his condition.

51. The definition of bipolar disorder was not provided in

the record. However, the Fifth Circuit Court of Appeal s has

described the attributes of bipolar disorder thusly:

Bipolar disorder is a psychosis involving a

mood disorder characterized by swings from

mania to depression. Mania is characterized

by elevated mood and associated behavioral

responses. Characteri stics of mania are

hyperactivity, optimism, flamboyance, loud,

pressured speech, garrulousness, and

distractibility , delusions of grandeur,

disorganized behavior patterns, and poor

judgment. Depression is characterized by

lowered mood state and related be havior,

worthlessness, social withdrawal,

psychomotor retardation and vegetative

somatic symptoms including anorexia, weight

loss, and insomnia. The disability

experienced from bipolar disorder ranges

from mild to severe.

Taylor v s . Principal Fin. Group, Inc. , 93 F.3d 155 (5 th

Cir.)(citing Alan Balsam M.D. & Albert P. Zabin, Disability

Handbook 628 - 629 (1990) ) , cert. denied , 519 U.S. 1029 (1996).

52. Mr. Bennett had been prescribed Lithium and Zyprexa

and took them as prescribed and was able to satisfac torily

perform his job. Mr. Bennett’s menacing actions at the Bear

Creek Facility on August 9, 2004, do not fit within the

definition of bipolar disorder recited above. His actions were

instead the result of poor anger management.

53. The events surrou nding the failure to follow

procedures with regard to purchasing the camera do not fit

within the definition of bipolar. This was, viewing the matter

most favorably to the Department, at best, a failure to strictly

abide by instructions. The more likely interpretation from the

facts presented was that this incident was a make weight charge

designed to enhance the appropriateness of his termination.

54. The departure without leave from the Blackwater

operation was an action within the definition of bipol ar

disorder in that he used poor judgment. However, it is equally

likely that he used poor judgment because his judgment is

inherently poor, rather than a disability .

55. Upon consideration of all of the evidence, it is

determined that Mr. Bennett was n ot disabled under the ADA.

Therefore, he failed to prove the first requirement of a prima

facie case.

56. The second requirement, that he was able to perform

the duties of a forester with or without an accommodation, was

proved.

57. The third requirem ent, that he suffered an adverse

employment decision because of his disability, was not proven.

The Department had no knowledge that Mr. Bennett was afflicted

with a bipolar disorder. It could not have made a decision

based on that which it did not know.

58. The fourth requirement, that he was replaced by a non -

disabled person or was treated less favorably than a non -

disabled person, was not proved. There was no evidence adduced

as to his replacement, if there was a replacement. And he was

not treated any differently than a non - disabled person.

59. If one assumes for sake of argument that Mr. Bennett

proved a prima facie case, the Department proved

nondiscriminatory reasons for terminating Mr. Bennett. A s noted

before, the incident involving the pur chase of the camera does

not appear to be particularly egregious misconduct . However ,

departing a distant work area without permission is serious.

This is particularly true when the one doing the departing is

driving an assigned vehicle having a two - way radio.

60. When Mr. Bennett eventually claimed a disability, the

Department was perhaps precipitous in its decision not to wait

until it was fully informed. However, that is of no

consequence. The Department evidenced no discrimination in the

case of M r. Bennett when making its termination decision and a

last minute claim of disability is insufficient to end the

process.

61. An employer cannot be liable under the ADA for

discharging an employee when it indisputably had no knowledge of

the disability. Morisky v s . Broward County , 80 F.3d 445 (11th

Cir. 1996).

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law,

it is

RECOMMENDED that the Commission dismiss Mr. Bennett’s

petition.

DONE AND ENTERED this 1 9 th day of December , 2005, i n

Tallahassee, Leon County, Florida.

S

HARRY L. HOOPER

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

w ww.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19 th day of December , 2005 .

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Fl orida 32301

Marie Mattox, Esquire

Law Office of Marie A. Mattox, P.A.

310 East Bradford Road

Tallahassee, Florida 32303

Stephen M. Donelan, Esquire

Department of Agriculture

and Consumer Services

509 Mayo Building

407 South Calhoun Street

Tallahasse e, Florida 32399 - 0800

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.