06-001242 Stewart R. Gillman vs. Saint Leo University Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Wednesday, June 13, 2007.

Summary: In a mixed-motive case, where adverse employment action was motivated by non-discriminatory and discriminatory factors, evidence supported reasonable inference that adverse employment action would not have been taken but for the prohibited discrimination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEWART R. GILLMAN , )

)

Petitioner , )

)

vs. ) Case No. 06 - 1242

)

SAINT LEO UNIVERSITY , )

)

Respondent . )

)

RECOMMENDED ORDER

Administrative Law Jud ge (ALJ) Daniel Manry conducted the

formal hearing in this proceeding on October 3 and 4, 2006, in

Tampa, Florida, for the Division of Administrative Hearings

(DOAH).

APPEARANCES

For Petitioner: Robert F. McKee, Esquire

Kelly & McK ee, P.A.

1718 East Seventh Avenue, Suite 301

Post Office Box 75638

Tampa , Florida 3 3675 - 0638

For Respondent: Scott A. Fisher, Esquire

Fowler White Boggs Banker

50 1 First Avenue North, Sui te 900

St. Petersburg, Florida 33701

STATEMENT OF THE ISSUE

The issue is whether Respondent discriminated against

Petitioner because of his disability by refusing to renew

Petitioner’s contract for employment.

PRELIMINARY STATEMENT

On September 19, 2005, Petitioner filed a Charge of

Discrimination with the Florida Commission on Human Relations

(FCHR). The Charge of Discrimination alleged that Respondent

discriminated against Petitioner based on his disability, failed

to reasonably a ccommodate Petitioner, and created a hostile work

environment. On March 16, 2006, FCHR issued a “no cause”

determination. Petitioner requested an administrative hearing

by filing a Petition for Relief on April 12, 2006. FCHR

forwarded the Petition to DO AH to conduct the hearing.

Prior to the hearing, Petitioner withdrew the allegations

that Respondent failed to provide a reasonable accommodation and

created a hostile environment. The only allegation at issue

during the administrative hearing was the all egation that

Respondent discriminated against Petitioner because of his

disability by not renewing Petitioner's teaching contract.

At the hearing, Petitioner testified, presented the

testimony of four witnesses, and submitted 32 exhibits for

admission in to evidence. Respondent presented the testimony of

seven witnesses and submitted 64 exhibits for admission into

evidence.

The identity of the witnesses and exhibits, and the rulings

regarding each, are reported in the four - volume Transcript of

the heari ng filed with DOAH on October 30, 2006. Pursuant to

the agreement of the parties and a subsequent unopposed request

for extension of time by Respondent, Petitioner and Respondent

timely filed their respective Proposed Recommended Orders (PROs)

on December 1 and 4, 2006.

FINDINGS OF FACT

1. Respondent is a private university located in Pasco

County, Florida (Saint Leo or the university). Respondent

employed Petitioner as an assistant professor from sometime in

January 2000 until the end of the 2005 - 2006 school year in

May 2006. Petitioner initially taught sports management courses

in the Business Department of Saint Leo and, following the

university reorganization, taught sports management courses in

the Sports Management Department of the School of Bus iness (the

Department) .

2. The Charge of Discrimination and Petition for Relief

allege, in relevant part, that Respondent violated

Section 760.10, Florida Statutes (2004), when Respondent

allegedly discriminated against Petitioner because of

Petitioner's handicap. Neither the Charge of Discrimination nor

the Petition for Relief expressly allege that Respondent

violated the Americans with Disabilities Act (ADA) of 1990, Pub .

L . No. 101 - 336, 104 Stat. 328, codified as amended at 42 U.S.C.

Sections 12101 - 12 213 (2000). However, judicial decisions

discussed in the c onclusions of l aw instruct the trier of fact

to make findings in a manner that is consistent with the ADA. 1

3. Petitioner is a person with a handicap within the

meaning of S ubs ection 760.10(1)(a ), Florida Statutes (2000).

Petitioner was paralyzed in an automobile accident on

December 19, 2001, and is a disabled person within the meaning

of 42 U.S.C. Section 12112 (2004).

4. Petitioner is a qualified person within the meaning of

42 U.S.C. Sec tion 12111(8) (2004). Petitioner is a person with

a disability who can perform the essential functions of a

tenured employee.

5. Petitioner was qualified for the position for which

Respondent employed Petitioner in January 2000. Petitioner

received his doctorate of education in sports management from

the United States Sports Academy in 1990. Although Petitioner

had no prior experience teaching at the college level,

Petitioner was the only doctorate teaching sports management

courses in the Business Depa rtment of the university when

Respondent employed Petitioner in January 2000. At the time,

Respondent needed a doctorate to teach sports management courses

in order to satisfy the accreditation requirements of the

Southern Association of Colleges and Scho ols (SACS).

6. Respondent does not allege that Petitioner is not

qualified to perform the requirements of a tenured employee.

Respondent argues, and submitted evidence intended to prove,

that Petitioner either lacked the motivation to perform the

require d job duties or simply refused to perform those duties.

7. On November 12, 2004, Respondent notified Petitioner

that Respondent would not renew Petitioner’s teaching contract

at the end of the 2005/06 school year. The refusal to renew

Petitioner's tea ching contract was an adverse employment action.

8. There is no direct evidence that the adverse employment

action was motivated by discrimination. However, the

circumstantial evidence, taken as a whole, supports a reasonable

inference by the trier of fa ct that the adverse employment

action was motivated by both legitimate non - discriminatory and

discriminatory reasons.

9. Legitimate non - discriminatory reasons, in part,

motivated the adverse employment action against Petitioner.

When a third - year revie w of Petitioner's job performance began

on August 26, 2004, Petitioner had not prepared sufficient

papers for conferences, had not demonstrated consistency in

presenting papers at conferences, and had not served on any

conference panels. Petitioner had no t published a sufficient

number of articles or books and had not engaged in sufficient

scholarly research.

10. Petitioner did not submit any paper or abstract to

present at a conference until June 2004. The first paper was

accepted for publication i n November 2004. In September 2004,

Petitioner had his first test bank accepted for inclusion in a

textbook published by another author.

11. Petitioner utilized at least one course syllabus that

was below grade level. The syllabus included some grammati cal

errors and inaccurate information.

12. Petitioner episodically cited incorrect facts during

class. Petitioner was occasionally late to class for up to five

minutes.

13. Petitioner frequently read from the textbook when

lecturing students. Petiti oner sometimes did not give prior

notice to his supervisor of his unavailability for a class. The

supervisor was unable to arrange for a substitute. Petitioner

sometimes cancelled classes without providing class notes for

the substitute.

14. Petitioner failed to maintain consistent office hours

for academic advice of students. One faculty member in an

adjacent office provided academic advice to Petitioner's

students in Petitioner's absence.

15. Petitioner failed to attend a meeting in Atlanta,

Georgia , as a reviewer on a national council chaired by

Petitioner's supervisor. Petitioner did not ascertain the

correct starting time or location of the meeting.

16. The failure to attend the meeting in Atlanta caused

the council to be short a reviewer for one year. The inclusion

of Petitioner as a reviewer on the council would have provided

Petitioner with an opportunity to improve his national

reputation and meet many influential people in his field of

employment.

17. Record evidence supports a reasona ble inference that

discriminatory reasons, in part, motivated the adverse

employment action against Petitioner. Two of four evaluators in

the third - year review of Petitioner's job performance that began

on August 26, 2004, refe r red to Petitioner's disabil ity in their

formal evaluations.

18. The two evaluators testified at the hearing that

Petitioner's disability did not influence their evaluations.

Their testimony is neither credible nor persuasive to the trier

of fact.

19. The testimony of the two ev aluators, among other

considerations, is not plausible. The testimony does not

adequately explain why the evaluations address Petitioner's

disability if the evaluators disregarded the disability in

evaluating Petitioner. 2

20. The immediate supervisor o f Petitioner commented on

Petitioner's disability in her third - year evaluation of

Petitioner. The supervisor stated she was "extremely

disappointed" during the previous academic year when Petitioner

declined her request to "be a role model and show our st udents

what individuals with handicaps could achieve." The supervisor

further explained in her evaluation that "disability sport has -

become a major segment of - our sport business industry - and

there are many career opportunities for students in this a rea."

21. The supervisor further stated in her third - year

evaluation of Petitioner that she could not "fully understand

what it is like to have [Petitioner's] disability." However,

the supervisor stated that she had "worked with physically

challenged individuals for approximately 16 years, and they

never ceased to amaze [her] at what they could do."

22. One of three outside evaluators also included

references to Petitioner's handicap in the third - year evaluation

of Petitioner. The evaluator devoted approximately one - third of

the evaluation to a discussion of his experience working with

one disabled colleague who had been seriously injured in a

motorcycle accident and was, like Petitioner, wheelchair bound.

23. After recounting the many laudable acc omplishments of

the evaluator's disabled colleague after becoming disabled

approximately 12 years ago, the evaluator stated that his

disabled colleague did not consider himself disabled. The

evaluator explained that his disabled colleague "never makes

exc uses for his special challenge nor does he ask or demand

special considerations due to his situation."

24. The evaluator went on to compare Petitioner's

paralysis with the evaluator's self - proclaimed "disability"

following open heart surgery. The evaluat or stated that he had

undergone open heart by - pass surgery and did not let his

"disability" prevent him from achieving performance standards.

After recounting numerous professional accomplishments after his

surgery, the evaluator explained:

The reason I have provided this information

is not to brag but rather to illustrate that

if one has a positive attitude about life

he/she can do anything he/she wishes whether

or not they are disabled. A disability is

an extra challenge in life not a sentence to

do le ss. I have not let my disability

negatively affect my career.

Respondent's Exhibit 44 at 4.

25. When prima facie evidence shows that an adverse

employment action is motivated by both non - discriminatory and

discriminatory considerations, an employer doe s not escape

liability under the ADA on the ground that the adverse

employment action was not motivated "solely" by prohibited

discrimination. Rather, judicial decisions discussed in the

c onclusions of l aw require the trier of fact to apply a so -

called mo tivating - factor standard, or mixed - motive standard. 3

The motivating - factor standard requires the trier of fact to

determine whether the prohibited discriminatory motive made the

difference in the decision to take the adverse employment

action. 4

26. The motivating factor standard has been judicially

explained as a "but - for" standard. 5 Liability for prohibited

discrimination requires the trier of fact to find that

Respondent would not have taken the adverse employment action

but - for the prohibited di scrimination.

27. The but - for standard requires the trier of fact to

determine whether the evidence supports a reasonable inference

that Petitioner's failure to comply with performance standards

for tenure was caused by his handicap. 6 If the evidence s upports

such an inference, the adverse employment action would not have

been taken but - for the prohibited discrimination.

28. The record evidence supports a reasonable inference

that Petitioner's failure to comply with performance standards

for tenure b y the beginning of the third - year review on

August 26, 2004, was caused by his handicap. The inference is

supported, in relevant part, by comparing the record evidence of

Petitioner's performance during his employment before his

disabling accident on Dece mber 19, 2001, with Petitioner's

performance from the date of the accident until the beginning of

the third - year review on August 26, 2004.

29. Prior to the accident on December 19, 2001, Petitioner

taught classes at Saint Leo for four semesters. 7 Peti tioner

received four evaluations by three different evaluators. Even

though it was Petitioner's first teaching experience at the

college level, all but one of those evaluations rated

Petitioner's job performance as "outstanding." The one

exception rated Petitioner's job performance in his first year

as "satisfactory." In the second year, however, the same

evaluator rated Petitioner's job performance as "outstanding."

30. The supervisor for Petitioner during the first and

second academic years of employm ent was the acting chair of the

Business Department at Saint Leo. The supervisor rated

Petitioner's job performance during the first year as

"satisfactory." However, a second - line evaluator who was also a

dean at Saint Leo rated Petitioner's job performa nce during the

first year as "outstanding."

31. In the second academic year, the supervisor rated

Petitioner's job performance as "outstanding." The supervisor

found that Petitioner was "developing into a highly competent

and effective classroom teacher. "

32. An outside evaluator retained to evaluate Petitioner

during the second academic year found that Petitioner had made

"positive contributions to [the] sport management program." The

evaluator recommended that Respondent retain Petitioner based on

P etitioner's academic background, sport management experience,

and teaching performance.

33. Prior to the accident, Petitioner was selected to

serve on the Panel of Reviewers for the Sport Management Program

Review Council (SMPRC) to review institutional p ortfolios. The

selection provided Petitioner with an opportunity for

professional development, an improved national reputation, and

enhanced professional relationships. However, the opportunity

was postponed due to the accident that paralyzed Petitioner.

34. On January 29, 2002, Petitioner received a fifth

evaluation by a fourth evaluator. The d ean of the School of

Business (the Dean) evaluated Petitioner's job performance for

the four academic semesters that Petitioner worked before the

accident. The Dean found that Petitioner was:

[A]cademically competent and very committed

to Saint Leo University and the well being

of his students. Stewart is relatively new

to university level teaching and the

expectations associated with this level of

performance. His classroom manner is casual

yet he holds the students to high

performance standards. Stewart will need to

identify an area of research interest and

begin to prepare papers for the conferences

in his discipline. I approached him with an

idea and a wil lingness to co - author a paper.

Unfortunately, due to his accident, Stewart

will be involved full - time for the next six

months in rehabilitation and relearning.

Stewart has excellent potential to develop

into an effective senior faculty member.

Responden t's Exhibit 10.

35. After the accident on December 19, 2001, Petitioner

taught three academic semesters before his third - year review

that began on August 24, 2004, and led to the adverse employment

action on November 12, 2004. During the semester that b egan in

January 2002, Petitioner was on medical leave to undergo surgery

and recover. Petitioner worked during the semester that began

in August 2002, but returned to medical leave during the

semester that began in January 2003 in order to undergo

additio nal surgery. Petitioner worked the two semesters that

began in August 2003 and January 2004. On August 24, 2004, at

the start of the fourth semester of work after the accident,

Respondent began the third - year review that led to the adverse

employment act ion on November 12, 2004.

36. During the three semesters that Petitioner worked

between the accident and the start of the third - year review, the

Dean , who evaluated Petitioner on January 29, 2002, did not

pursue the idea he had described for co - authoring a paper with

Petitioner. Petitioner was learning to adjust to life in a

wheel chair. Petitioner experienced, and continues to

experience, a great deal of pain unless Petitioner takes pain

medication. Petitioner has also had to learn new toileting

skill s and has expressed embarrassment over his condition.

37. Petitioner did not attend the council meeting in

Atlanta, Georgia , because he became confused over the correct

time and location of the meeting. Petitioner did not make a

volitional choice not t o attend the meeting.

38. On December 5, 2003, Dr. Michael Moorman was

Petitioner's immediate supervisor. Dr. Moorman found that the

quality of Petitioner's classroom teaching was "outstanding."

39. After December 5, 2003, Respondent changed the job

p erformance standards for employees teaching sports management

courses at Saint Leo. 8 While Petitioner was on medical leave,

each school at Saint Leo designated a program as a "flagship"

program. Each flagship program would be funded and supported in

an e ffort to enable the program to grow into a nationally

recognized program that would serve as a paragon for other Saint

Leo programs to emulate. The job performance requirements in

each flagship program were also intended to establish a standard

for emulat ion by other programs.

40. The School of Business designated the Sport Management

Program as its flagship program and reorganized the program into

the Sport Management Department. In February 2003, Respondent

commissioned an outside study of the Depart ment. The study

concluded that the Department lacked academic rigor, failed to

challenge students, and was poorly organized for the purpose of

becoming a flagship program for Saint Leo.

41. Respondent searched for a nationally known professor

to chair the Department. Respondent wanted someone who could

make the necessary curriculum changes, improve the Department's

national recognition, increase the academic rigor of the

Department, and enhance the national reputation of its

professors, including Petit ioner.

42. In August 2003, Respondent selected a person to chair

the Department. After December 5, 2003, the new chair succeeded

Dr. Moorman as Petitioner's immediate supervisor.

43. The new chair found, during the academic semester that

began in Januar y 2004, Petitioner did not meet the job

performance requirements of the new flagship Department of Sport

Management. One deficiency the chair described in her third -

year evaluation of Petitioner pertained to errors in a syllabus

used by Petitioner. For e xample, the syllabus continued to use

the title "Saint Leo College" instead of "Saint Leo University."

44. The new chair confided to an associate in the

Department that the v ice p resident of Academic Affairs (Vice

President) had told the new chair in so m any words that

Petitioner would have been fired long ago if Petitioner had not

been in a car accident. The associate testified to the

statement she attributed to the new chair, and the associate's

testimony is found to be credible and persuasive. The Vic e

President denied making the statement to the new chair during

his testimony, and that portion of his testimony is found to be

credible and persuasive.

45. The statement attributed to the Vice President that he

would have fired Petitioner but - for the a ccident conflicts with

the predominantly "outstanding" job performance of Petitioner

prior to his accident. The testimony of the new chair also

conflicts with two evaluations of Petitioner's job performance

by different deans on January 29, 2002, and Dece mber 5, 2003.

Both of those evaluations occurred after the accident , but

before the new chair became the immediate supervisor of

Petitioner sometime after December 5, 2003. It is more likely

that the new chair expressed her own view that the university

w as holding Petitioner to a lower standard of job performance

because of his disability.

46. When the third - year review process began on August 26,

2004, Petitioner was no longer the only doctorate employed in

the Department. However, he was the only disa bled doctorate

employed in the Department.

47. The record evidence supports a reasonable inference

that Respondent required Petitioner to comply with standards

exemplified by unidentified disabled persons described in two of

the four third - year evaluation s of Petitioner. 9 Respondent did

not require non - disabled employees to comply with similar

standards.

48. The Vice President testified that the references in

the evaluations to standards exemplified by other disabled

persons did not influence his decis ion to take the adverse

employment action on November 12, 2004. That portion of the

testimony of the Vice President is neither credible nor

persuasive.

49. The Vice President, in relevant part, relied on the

third - year evaluations. His denials of influe nce conflict with

other relevant evidence.

50. Before the Vice President began the third - year review

process on August 26, 2004, he conferred with the new chair and

reviewed Petitioner's record, including Petitioner's record of

"outstanding" performance o n or before December 5, 2003. In a

letter to Petitioner dated August 26, 2004, the Vice President

told Petitioner, in relevant part, that he had "serious concerns

regarding your performance."

51. The Vice President instructed the Dean and the new

chair t o "carefully monitor" Petitioner's "teaching and

professional development activities in the fall semester of

2004." However, neither the Dean nor the chair monitored

Petitioner's activities, and the Vice President initiated the

adverse employment action o n November 12, 2004, prior to the

conclusion of the fall semester.

52. Respondent applied a different timeline to

Petitioner's tenure track than the timeline that Respondent

generally applied to the tenure track of other employees.

Tenure track employees may apply for tenure after their fifth

year of employment , but may apply no later than their seventh

year of employment. Most tenure track employees apply for

tenure during their sixth year of employment.

53. Employees on tenure track at Saint Leo recei ve annual

contracts for their first, second, and third years of

employment. Tenure track employees that receive a favorable

third - year review are given a two - year employment contract after

the third and fifth years of employment.

54. Petitioner began his tenure track in January 2000.

The seventh year of his tenure track would have expired at the

end of the academic semester in December 2006. 10

55. The third year of Petitioner's tenure track would have

expired at the end of the academic semester in Decem ber 2002.

Due to the accident on December 19, 2001, however, Respondent

extended the time for the third - year review until August 26,

2004. The extension provided Petitioner with seven academic

semesters, rather than six, before the third - year review bega n. 11

56. Although Respondent extended the time for beginning

the third - year evaluation, Respondent did not extend the seven -

year limit for tenure. Respondent thereby reduced the time

after the third - year evaluation in which Petitioner had to

correct his deficient job performance to a period less than that

enjoyed by non - disabled employees.

57. Other tenure track employees normally have 14 academic

semesters in which to complete their seven - year tenure track.

Upon the expiration of six academic semest ers, Respondent

conducts a third - year evaluation. A tenure track employee then

has eight more academic semesters, or four academic years, in

his or her tenure track.

58. Respondent reduced Petitioner's tenure track by a

semester when Respondent termina ted Petitioner's employment at

the end of the academic semester in May 2006, rather than at the

end of the academic semester in December 2006. By extending the

third - year evaluation by a semester and reducing the remaining

tenure track by an additional se mester, Respondent reduced by

one year the period that non - disabled tenure track employees

have after their third - year review to complete their tenure

track requirements.

59. The Vice President has conducted third - year reviews on

approximately 20 tenure track employees at Saint Leo since 1997.

He has terminated the employment of two of those candidates.

Petitioner is one of the two terminated from employment.

60. The Vice President acknowledged in his testimony that

he may have given Petitioner more t ime if the adverse employment

decision were based solely on research and acceptable

publication levels. Petitioner's teaching performance on and

before December 5, 2003, was predominantly "outstanding."

Moreover, one of the outside evaluators found that syllabi

deficiencies were nothing that could not be easily corrected.

Another evaluator found the syllabi "are consistent with

guidelines established by NASSM/NASPE." It is unlikely,

therefore, that the adverse employment action was motivated by

job perf ormance deficiencies in teaching, research, and syllabi.

61. The Vice President relied on findings of evaluators

that evaluated Petitioner, in relevant part, on Petitioner's

inability to comply with standards exemplified by other disabled

persons. The Vi ce President articulated no intelligible

standards he use d for discerning whether, or to what degree, the

disability of Petitioner influenced the negative opinion of the

evaluator. Moreover, the Vice President did not undertake an

independent determinatio n of whether Petitioner's handicap

prevented Petitioner from complying with applicable job

performance requirements by August 26, 2004.

6 2 . The job performance requirements for tenure are

prescribed in the Collective Bargaining Agreement (CBA) and a

F aculty Handbook (FHB). The CBA provides , in relevant part:

Promotion and tenure decisions at Saint Leo

University are made on the basis of

documented and evaluated performance in

three areas: (1) teaching; (2) scholarly

growth [ sic ] (3) institutional and community

service.

(a) Tenure and Promotion : The primary

criteria for decisions regarding

reappointment, tenure and promotion are

excellence in classroom teaching and in

facilitating student learning. Teaching

Faculty must demonstrate excellence in

tea ching, a part of which is academic

advising. Teaching faculty must demonstrate

excellence in either (1) scholarly growth or

(2) institutional and community service.

Scholarly growth may be demonstrated through

professional development and/or research.

T he definition of professional development

and scholarly research will be determined by

the relevant School. The University will

recognize both traditional and non -

traditional means of demonstrating

professional development and/or research.

Respondent's E xhibit 1 at 44.

6 3 . The FHB describes guidelines for promotion and tenure

applications in terms similar to those in the CBA. The FHB

provides , in relevant part:

Promotion and tenure decisions at Saint Leo

University are made on the basis of

documented and evaluated performance in

three areas: teaching; professional

development, research, and scholarly growth;

and institutional and community service.

For teaching faculty excellence in teaching

and demonstrated student learning are

essential to tenure a nd promotion. Either

professional development, research and

scholarly growth or institutional and

community service must be judged excellent

for tenure.

Respondent's Exhibit 2 at 73.

6 4 . The School of Business does not provide written job

performance r equirements that determine the tenure requirements

for scholarly research and professional development. Testimony

at the hearing suggested tenure requires at least two

publications or presentations each year. However, that

testimony is belied by predomin antly "outstanding" job

performance evaluations of Petitioner during his first two

academic years in which Petitioner published no articles and

made no presentations.

6 5 . In the three complete academic semesters that

Petitioner had available to him afte r the accident to pursue his

scholarly research, one article authored by Petitioner was

accepted for publication and a test bank authored by Petitioner

was included for publication in a text book. Petitioner also

attended three conferences.

CONCLUSION S OF LAW

6 6 . DOAH has jurisdiction over the Parties and the subject

matter of this proceeding. §§ 120.57(1), 120.569, and 760.11

Fla. Stat. (2006). DOAH provided the parties with adequate

notice of the administrative hearing.

6 7 . The Florida Civil Rights A ct enacted in Chapter 760,

Florida Statutes (2004), must be construed in a manner

consistent with applicable federal law. Ross v . Jim Adams Ford ,

871 S o . 2d 312 ( Fla. 2 d DCA 2004). In relevant part, the state

law must be construed in a manner consistent with the ADA and

interpretive judicial decisions. Smith v. Avatar Properties,

Inc. , 714 So. 2d 1103, 1106 (Fla. 5th DCA 1998); Greene v.

Seminole Electric Cooperative, Inc. , 701 So. 2d 646, 647 (Fla.

5th DCA 1997); Brand v. Florida Power Corporation , 633 So. 2d

504 (Fla. 1st DCA 1994).

6 8 . Petitioner has the burden of proof in this proceeding.

Petitioner must show by a preponderance of the evidence that

Petitioner is an individual with a disability, is a qualified

individual, and was discriminated agai nst by his employer

because of the disability. 42 U.S.C. § 12112 (2000).

69 . Petitioner satisfied his burden of proof concerning

the first two statutory requirements. A preponderance of

evidence shows that Petitioner is a qualified individual with a

d isability.

70 . There is no direct evidence that the adverse

employment action taken against Petitioner was motivated by

prohibited discrimination. In the absence of direct evidence of

discrimination, circumstantial evidence relevant to the

allegation o f discrimination generally must be analyzed under

the so - called burden - shifting framework. McDonnell Douglas

Corp. v. Green , 411 U.S. 792 (1973).

7 1 . The circumstantial evidence of record supports a

reasonable inference that the adverse employment acti on was

motivated by both non - discriminatory and discriminatory reasons.

The ADA does not limit liability to an adverse employment action

that is motivated "solely" by discrimination. Rather, the ADA

imposes a so - called "motivating - factor standard" to mix ed - motive

cases, including this proceeding. McNely v. Ocala Star - Banner

Corporation , 99 F.3d 1068, 1073 (11th Cir. 1996). 12

7 2 . The motivating - factor standard imposes liability if a

prohibited reason is but one factor in an employer's decision to

tak e adverse employment action, so long as the inclusion of the

prohibited factor made the difference in the decision. Id . For

reasons stated in the f indings of f act, the record evidence

supports a reasonable inference by the trier of fact that the

prohibit ed factor of Petitioner's handicap made the difference

in Respondent's decision not to renew Petitioner's employment

contract , and the handicap caused Petitioner's inability to

comply with job performance requirements by August 26, 2004.

Cf . Hawkins v. Da le Medical Center , 2006 U.S. Dist. LEXIS 35522,

at 7 (S.D. Ala. 2006) (failure to show job performance

deficiencies were caused by physical impairment fails to

demonstrate that disability was a "but - for" cause for

termination of employment).

RECOMMEN DATION

Based on the foregoing Findings of Fact and Conclusions of

Law it is,

RECOMMENDED that a f inal o rder be entered granting

Petitioner’s Charge of Discrimination and Petition for Relief

for the reasons stated herein, and reinstating Petitioner to his

p osition of employment with back pay and benefits.

DONE AND ENTER ED this 29th day of December , 2006 , in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeS oto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th of December , 2006 .

ENDNOTES

1 / See Smith v. Avatar Properties, Inc. , 714 So. 2d 1103, 1106

(Fla. 5th DCA 1998) (FCRA should be construed in conformity with

ADA); Brand v. Florida Power Corporation , 633 So. 2d 504, 509

(Fla. 1st DCA 1994) (state statute modeled after federal statute

t akes on same construction as federal statute).

2/ The testimony of the two evaluators is also inconsistent

with other evidence discussed infra .

3/ See McNely v. Ocala Star - Banner Corporation , 99 F.3d 1068,

1073 - 1078 (11th Cir. 1996) (jury instruction requiring jury to

find that adverse employment action was based "solely" on

disability does not accurately describe applicable legal

standard to be applied in ADA cases).

4/ McNely , 99 F.3d at 1073 and 1078.

5/ McNely , 99 F.3d at 1073.

6/ Cf . Hawk ins v. Dale Medical Center , 2006 U.S. Dist. Lexis

35522, at 7 (M.D. Ala. 2006) (failure to make connection between

handicap and performance deficiencies is a fatal evidentiary gap

under the "but - for" standard).

7/ Petitioner taught during the semesters t hat began in January

and August 2000 and 2001.

8/ The trier of fact draws no inference that the change in

performance standards was motivated by a prohibited

discriminatory purpose. However, the increased performance

standards exacerbated the inability to meet job performance

requirements caused by Petitioner's intervening handicap.

9/ One evaluator viewed himself as disabled after open heart

surgery. If one were to accept the characterization as

accurate, Petitioner was also required to comply with standards

exemplified by an identified disabled person.

10/ This calculation assumes that one year of a tenure track is

comprised of two academic semesters, excluding summers.

Petitioner began employment in the academic semester that began

in January 20 00. The second semester of that tenure track year

would have ended at the conclusion of the academic semester in

December 2000. The second tenure year would have ended in

December 2001, the third in December 2002, the fourth in

December 2003, the fifth i n December 2004, the sixth in December

2005, and the seventh in December 2006.

11/ The first four semesters expired before the accident from

January 2000 through December 2001. Petitioner was on medical

leave during the academic semesters that began in January 2002

and January 2003. Thus, the fifth semester was the academic

semester that expired in December 2002. The sixth semester

expired in December 2003, and the seventh semester expired in

May 2004. The third - year evaluation began at the start of t he

eight h semester in August 2004.

12/ A majority of federal circuit courts have adopted the

motivating factor standard of liability under the ADA. They are

the First, Second, Fourth, Seventh, Eighth, and Eleventh Circuit

Courts of Appeal. A minority o f federal circuits employ the so -

called "solely" standard for liability. They are Third, Fifth,

Sixth, Ninth, and Tenth Circuit Courts of Appeal. Relevant

judicial decisions are discussed in Park, S., "Comment: Curing

Causation: Justifying A 'Motivatin g - Factor Standard Under the

ADA, Fla. St. Univ. Law Review (Fall 2004).

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Robert F. McKee, Esquire

Kelly & McKee, P.A.

1718 East Seventh Avenue, Suite 301

Post Office Box 75638

Tampa, Florida 33675 - 0638

Scott A. Fisher, Esquire

Fowler White Boggs Banker

501 Fir st Avenue North, Suite 900

St. Petersburg, Florida 33701

Cecil Howard, General Counsel

Florida C ommission 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 exceptio ns

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.