05-002969 David J. Sedivi vs. Polk County Work Force Development Board Status: Closed Recommended Order on Tuesday, February 7, 2006.

Summary: The evidence fails to establish that Respondent`s rationale for elimination of position and related termination of Petitioner`s employment was a pretext.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID J. SEDIVI, )

)

Petitioner, )

)

vs. ) Case No. 05 - 2969

)

POLK COUNTY WORK FORCE )

DEVELOPMENT BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

On November 30, 2005, an administrative hearing in this

case was held in Orlando, Florida, before William F.

Quattlebaum, Administrative Law Judge, Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Craig A. McCarthy, Esquire

361 River Chase Drive

Orlando, Florida 32807

For Respondent: Stacy L. Wilde, Esquire

Shuffield Lowman

Gateway Center

1000 Legion Place, Suite 1700

Orlando, Florida 32 801

STATEMENT OF THE ISSUE

The issue in the case is whether the Polk County Work Force

Development Board (Respondent) discriminated against David J.

Sedivi (Petitioner) on the basis of disability when the

Respondent terminated the Petitioner's employment . The

Petitioner asserts that the termination was based on a

disability. The Respondent asserts that the position for which

the Petitioner was employed was eliminated for budgetary reasons

and due to concerns expressed by program auditors that the

Petiti oner's job function was statutorily prohibited.

PRELIMINARY STATEMENT

By a complaint filed January 10, 2005, with the Florida

Commission on Human Relations (FCHR), the Petitioner alleged

that he was the subject of discrimination by the Respondent

based o n handicap.

By Determination of No Cause dated July 8, 2005, FCHR

advised Petitioner that a "no cause" determination had been made

and advised him of his right to file a Petition for Relief.

Petitioner filed a Petition for Relief , which FCHR forwarded t o

the Division of Administrative Hearings for further proceedings.

At the hearing, the Petitioner presented the testimony of

three witnesses, testified on his own behalf , and had Exhibits

numbered 2, 4 through 13, and 16 through 19 admitted into

evidence . Respondent presented the testimony of three witnesses

and had Exhibits numbered 1, 1A, 5, 7A, 7B, 15 , 17, and 1 8

admitted into evidence.

The two - volume Transcript of the hearing was filed on

January 12, 2005. The Petitioner filed a Proposed Recommend ed

Order. The Respondent filed a document titled Final Order that

has been treated as a p roposed r ecommended o rder.

FINDINGS OF FACT

1. The Respondent is a regional workforce board created

pursuant to Section 445.007, Florida Statutes (2004) . The

Res pondent contracts with, and monitors the performance of,

vendors who provide various employment - related services to

qualified persons.

2. At all times material to this case, the Respondent was

annually audited by KPMG, an accounting firm contracted with a

State of Florida agency responsible for oversight of the

regional workforce boards.

3. One of the programs for which the Respondent was

responsible was the "Citrus Cars" program. Citrus Cars provided

economical used vehicles to persons for whom lack of

transportation was an obstacle to employment. The used vehicles

were obtained and rehabilitated by Citrus Cars, and then leased

to qualified individuals who eventually own the vehicles.

4. The Respondent owns the non - profit corporation, Citrus

Cars of Polk County, Inc. , responsible for operation of the

Citrus Cars program.

5. In January 2003, KPMG auditors advised the Respondent

that its operation of the Citrus Cars program was contrary to a

statutory prohibition against the provision by regional

workforce boards of direct services to clients. KPMG

specifically cited the issue in the 2003 audit report.

6. The Respondent disagreed with the KPMG opinion related

to operation of Citrus Cars, and attempted unsuccessfully to

convince the auditors th at the Respondent's operation of the

program was permissible under the statute. The Respondent had

an existing contract with a private vendor ("A.C.S.") involved

with the Citrus Cars program, but KPMG auditors apparently

believe that the Respondent's rela tionship with the program was

contrary to the statute. Nonetheless, the Respondent continued

to operate the Citrus Cars program during 2003.

7. In May 2003, the Petitioner began employment with the

Respondent as a c ustomer s ervice o fficer for the Citru s Cars

program. Prior to accepting employment with the Respondent, the

Petitioner was employed by A.C.S.

8. At all times material to the case, the Petitioner

suffered from health issues which resulted in significant

absence from the workplace.

9. A th ree - month probationary period was extended for an

additional three months by memorandum dated August 1, 2003 , and

written by Tom Hornack, the Respondent's A ssistant D irector. A

primary reason for the extension was that Mr. Hornack had

assumed supervisory responsibilities for the Citrus Cars program

shortly before the end of the probationary period and wanted

additional time to evaluate the Petitioner's performance.

Although the memorandum includes a very positive evaluation of

the Petitioner's efforts, th e memo states as follows :

In all fairness to you and Polk Works, there

has not been ample time for you to work

unaided without the assistance of Cecelia

and Mitch to allow you to be able to

demonstrate sole control of the program

overall.

10. The Pet itioner's health issues and absence from the

workplace apparently continued to be of concern to the

Respondent. By letter dated September 19, 2003, Mr. Hornack

advised that "your frequent absences from July 15 to present

have resulted in a programmatic ha rdships [ sic ] . " The letter

stated that "due to high rate of absenteeism and the demands of

your position" the Respondent requested a statement from the

Petitioner's physician "as to your fitness for continued

employment as the Citrus Cars Customer Service s Officer." The

Respondent also requested that the Petitioner create a

"corrective action plan" indicating the date upon which the

Petitioner would return to work and the "action items that you

will take to actualize the plan."

11. Towards the end of Sep tember 2003, as the result of an

infection, the Petitioner underwent amputation of a foot and

portion of a leg. Thereafter, the Petitioner had a disability

due to amputation of the leg and the resulting inability to walk

without a prosthetic device.

1 2. By letter dated October 29, 2003, Nancy Thompson, the

Respondent's Executive Director, advised the Petitioner that his

employment position was being eliminated. The letter indicated

that the Respondent's decision was related to budgetary issues

and op erational costs, and stated that the responsibilities of

the Petitioner's employment position would be absorbed by other

staff.

13. Ms. Thompson's testimony also indicated that the

Petitioner's absence from the workplace was a factor in her

decision, an d was seemingly reflected in the letter's reference

to other employees assuming the Petitioner's job duties.

14. The Petitioner obtained legal representation and

Ms. Thompson withdrew the proposed termination of the

Petitioner's employment. By letter d ated December 16, 2003,

Ms. Thompson requested that the Petitioner obtain an assessment

of work abilities from his physician, including a statement of

any restrictions and an anticipated date of return to

employment, clearly indicating that the Petitioner' s return to

work was possible.

15. In January 2004, KPMG auditors again advised the

Respondent that operation of Citrus Cars was contrary to the

statutory prohibition against provision of direct client

services by regional workforce boards, and again sp ecifically

cited the issue in the audit report. Additionally, the

Respondent learned that its budget for the fiscal year beginning

July 1, 2004 , was reduced.

16. By letter dated February 17, 2004, Ms. Thompson

advised the Petitioner that although the i nformation previously

provided was sufficient to extend non - paid leave status for

90 days, "before I can consider your returning to work , " the

Petitioner was directed to provide a physician's statement

identifying a "specific date" upon which the Petitione r could

return to work and including a "detailed assessment" of the

Petitioner's abilities and limitations as related to his

position description. The letter stated that the information

was required at least two weeks prior to the anticipated date of

retu rn.

17. According to a work status form from the Petitioner's

rehabilitation physician dated March 30, 2004, the Petitioner

could return to regular duty on May 17, 2004. The only

restriction noted on the form is the use of an assistive device

for ambulat ion.

18. By letter to Nancy Thompson dated April 9, 2004, the

Petitioner's rehabilitation physician indicated that the

Petitioner could "perform his activities at work in

approximately 30 - 60 days time, once his physical therapy and

prosthetic training is completed."

19. By letter dated May 13, 2004, Nancy Thompson advised

the Petitioner that operation of the Citrus Cars program had

been "much modified," that the Respondent's role in the program

was "purely finance and oversight" pursuant to the KPMG o pinion,

and that the responsibilities of the Citrus Cars Customer

Service Officer position had been eliminated or absorbed by

other staff.

20. Ms. Thompson testified credibly that continued failure

to heed the auditor's advice could have had negative

re percussions on the board, and therefore total operational

responsibility for the Citrus Cars program was transferred to

A.C.S., and the in - house position of "Customer Service Officer"

was eliminated.

21. At the time of the hearing, the Respondent had a

vacant and funded employment position.

22. At the hearing, the Petitioner testified that he was

uncertain as to the relief he was seeking, stating that "it

ought to be something that's fair," but indicated that it was

"difficult for me to think that I w ould even trust them if I

went back to work because of all the things that have gone down

and everything else."

CONCLUSIONS OF LAW

23. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2004).

24. The Respondent is an employer as the term is defined

at Section 760.02, Florida Statutes (2004).

25. Section 760.10, Florida Statutes (2004), provides as

follows:

(1) It is an unlawful employment practi ce

for an employer:

(a) To discharge or to fail or 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.

26. Florida courts interpreting the provisions of Section

760.10, Florida Statutes (2004) , have held that federal

discrimination laws should be used as guidance when construing

provisions of the Florida law. See Brand v. Florida Power

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

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

1st DCA 1991).

27. The Petitioner has the ultimate burden to establish

discriminati on either by direct or indirect evidence. Direct

evidence is evidence that, if believed, would prove the

existence of discrimination without inference or presumption.

Carter v. City of Miami , 870 F.2d 578, 581 - 582 (11th Cir. 1989).

Blatant remarks, whos e intent could be nothing other than to

discriminate, constitute direct evidence of discrimination. See

Earley v. Champion International Corporation , 907 F.2d 1077,

1081 (11th Cir. 1990). There is no credible evidence of direct

discrimination on Responde nt's part in this case.

28. The Petitioner asserts that the "first termination" in

October 2003 was based on the fact that the Petitioner was

unable to work due to his disability, that the Respondent's

e xecutive d irector has so testified, and that such testimony

constitutes direct evidence of discrimination. The evidence

fails to establish direct discrimination on the part of the

Respondent.

29. The termination letter of October 23, 2003, indicates

that the Respondent had determined that the c ustomer s ervice

o fficer position was unnecessary. The evidence fails to

establish that the sole reason for the proposed termination was

the Petitioner's inability to work for an extended period. The

greater weight of the evidence establishes that during the

Pet itioner's absence from the workplace, which began not long

after initial employment, other employees assumed the

responsibilities of the Petitioner's employment position, at

which point Executive Director Thompson believed that

operational cost reductions were possible through elimination of

the position.

30. Absent direct evidence of discrimination, Petitioner

has the burden of establishing a prima facie case of

discrimination. St. Mary's Honor Center v. Hicks , 509 U.S. 502

(1993); Texas Department of Community Affairs v. Burdine , 450

U.S. 248 (1981); McDonnell Douglas Corp. v. Green , 411 U.S. 792

(1973). In order to establish a prima facie case of

discrimination, the Petitioner must show that: he is a member

of a protected group; he is qualified for the position; he was

subject to an adverse employment decision; and he was treated

less favorably than similarly - situated persons outside the

protected class . McDonnell Douglas , 411 U.S. at 802.

31. If the Petitioner establishes the facts necessary to

de monstrate a prima facie case, the employer must then

articulate some legitimate, nondiscriminatory reason for the

challenged employment decision. The employer is required only

to "produce admissible evidence which would allow the trier of

fact rationally to conclude that the employment decision had not

been motivated by discriminatory animus." Burdine , 450 U.S. at

257. The employer "need not persuade the court that it was

actually motivated by the proffered reasons . . ." Burdine , 450

U.S. at 254. This burden has been characterized as "exceedingly

light." Perryman v. Johnson Products Co., Inc. , 698 F.2d 1138,

1142 (11th Cir. 1983).

32. Assuming the employer articulates a legitimate,

nondiscriminatory reason for the employment decision, the burden

shif ts back to the Petitioner who then must establish that the

reason offered by the employer is not the true reason, but is

mere pretext for the decision. The question becomes whether or

not the proffered reasons are "a coverup for a . . .

discriminatory dec ision." McDonnell Douglas , 411 U.S. at 805 .

33. The ultimate burden of persuading the trier of fact

that there was intentional discrimination by the Respondent

remains with the Petitioner. Burdine , 450 U.S. at 253.

34. Here, the Petitioner has esta blished a prima facie

case of discrimination. He is a member of a protected group by

reason of his disability. Although the Petitioner's continuing

absence from the workplace appears to have been of concern to

the Respondent, he was qualified for the pos ition and there is

no credible evidence that termination of the Petitioner's

employment was related to the quality of his job performance.

Finally, he was subject to an adverse employment decision by the

termination, and there is no evidence that the empl oyment of any

other employee was terminated.

35. Accordingly the burden shifts to the Respondent to

articulate a legitimate, non - discriminatory reason for the

decision. The Respondent has met the burden.

36. Section 445.004, Florida Statutes (2004) , creates a

non - profit corporation identified as "Workforce, Florida, Inc."

Subsection 445.004(2), Florida Statutes (2004), sets forth the

purpose for creation of Workforce, Florida, Inc., as follows:

Workforce Florida, Inc., is the principal

workforce po licy organization for the state.

The purpose of Workforce Florida, Inc., is

to design and implement strategies that help

Floridians enter, remain in, and advance in

the workplace, becoming more highly skilled

and successful, benefiting these Floridians,

Fl orida businesses, and the entire state,

and to assist in developing the state's

business climate.

37. Section 445.007, Florida Statutes (2004), provides for

the creation of regional workforce boards in various service

areas. The regional workforce board s are responsible of

implementation and administration of various employment - related

programs, and are required to "provide ongoing oversight related

to administrative costs, duplicated services, career counseling,

economic development, equal access, compl iance and

accountability, and performance outcomes." See § 445.007(4)(c),

Fla. Stat. (2004).

38. Regional workforce boards are prohibited from offering

services directly to recipients by operation of Subsection

445.007(5), Florida Statutes (2004), which states as follows:

Workforce Florida, Inc., shall implement a

training program for the regional workforce

boards to familiarize board members with the

state's workforce development goals and

strategies. The regional workforce board

shall designate all lo cal service providers

and shall not transfer this authority to a

third party. In order to exercise

independent oversight, the regional

workforce board shall not be a direct

provider of intake, assessment, eligibility

determinations, or other direct provid er

services . (emphasis supplied)

39. As early as January of 2003, KPMG auditors advised the

Respondent that the Respondent's operation of Citrus Cars was

contrary to S ubs ection 445.007(5), Florida Statutes (2004) . As

part of the audit process, the Resp ondent disagreed with the

KPMG opinion and attempted to so convince the auditors.

40. The Petitioner asserts that the Respondent had

resolved the statutory compliance issue prior to the

Petitioner's disability, and that the c ustomer s ervice o fficer's

jo b description was revised in October 1, 2003 , after customer

service responsibilities had been transferred by a contract with

A.C.S., the private vendor.

41. Review of the revised job description fails to

indicate that the position no longer had client co ntact. Both

the original and the revised position descriptions indicate that

one of the responsibilities of the c ustomer s ervice o fficer was

working "with clients" to assure safe operation of the vehicle

during the initial 30 days of the lease period, cle arly a duty

which required direct contact with service recipients.

42. It is also clear that the KPMG auditors were

unconvinced by the Respondent's response to the 2003 audit, and

again cited the issue in the January 2004 audit report.

43. Executive Director Thompson's concern that failure to

address the audit issue could negatively impact the board was a

reasonable response to the situation, as was the transfer of

operational responsibility for Citrus Cars to the private

vendor, at which point the po sition of "Customer Service

Officer" was unnecessary.

44. The Respondent having articulated a legitimate,

nondiscriminatory reason for the employment decision, the

Petitioner must establish that the reason offered by the

employer is not the true reason, but is mere pretext for the

decision. The evidence fails to establish that the Respondent's

elimination of the c ustomer s ervice o fficer position, and

thereby the Petitioner's employment, is pretext.

45. The Petitioner asserts that the "KPMG defense" i s

implausible. The evidence fails to establish that the

Respondent's decision to abide by the opinion of the state -

assigned auditor is not believable.

46. S ubs ection 445.007(5), Florida Statutes (2004) ,

provides that the regional workforce boards, " in order to

exercise independent oversight . . . shall not be a direct

provider of intake, assessment, eligibility determinations, or

other direct provider services ." In 2003, KPMG advised the

Respondent that its operation of Citrus Cars was in violation of

the statute. For reasons which are unclear, the Respondent

believed its involvement in the operation of Citrus Cars was not

prohibited and attempted unsuccessfully to convince KPMG of

such. KPMG was not persuaded and in 2004 again cited the

Respondent's noncompliance with the statute. The Respondent

chose to address the issue raised in the audit by ending its

involvement with the actual operation of Citrus Cars and

eliminating the c ustomer s ervice o fficer position held by the

Respondent.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is hereby

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing the Petition for Relief filed by

David J. Sedivi in this case.

DONE AND ENTER ED this 7th day of February, 2006 , in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 3239 9 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of February , 2006 .

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Craig A. McCarthy, Esquire

361 River Chase Drive

Orlando, Florida 32807

Charles W. Sell, Esquire

Shuffield Lowman

Gateway Center

1000 Legion Place, Suite 1700

Orlando, Florid a 32801

Stacy L. Wilde, Esquire

Shuffield Lowman

Gateway Center

1000 Legion Place, Suite 1700

Orlando, Florida 32801

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NO TICE 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.