06-001986 Mario Molina vs. Sea World Of Florida, Inc. Status: Closed Recommended Order on Thursday, November 2, 2006.

Summary: Petitioner, who had a back injury, was handicapped under the Florida Civil Rights Act but failed to prove discrimination based on national origin. Respondent had legitimate reasons to terminate him. Recommend that the petition be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARIO MOLINA , )

)

Petitioner , )

)

vs. ) Case No. 06 - 1986

)

SEA WORLD OF FLORIDA, INC. , )

)

Respondent . )

)

RECOMMENDED ORDER

A formal hearing was held before Daniel M. Kilbride,

Administrative Law Judge of the Division of Administrative

Hearings (DOAH) , on August 3, 2006, in Orlando, Florida.

APPEARANCES

For Petitioner: Mario Molina, pro se

116 Coconut Grove Way

Kissimmee, Florida 34758

For Respondent: Thomas R. Brice, Esquire

McGuireWoods, LLP

50 North Laura Street, Suite 3300

Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

Whether Respondent, Sea World of Florida, Inc. (SWF),

subjected Petitioner, Mario Molina, to disparate treatment and

terminated his employment because of his national origin (Puerto

Rican) and/or alleged disability in violation of Subsection

760.10(1)(a), Florida Statutes (200 5) .

PRELIMINARY STATEMENT

Petitioner filed a Charge of Discrimination on May 31,

2005, with the Orlando Office of Human Relations (OOHR) and the

Equal Employment Opportunity Commission (EEOC), alleging only

disability discrimination. The EEOC issued an "unable to

conclude" finding on September 30, 2005, and Petitioner failed

to timely file suit. Petitioner filed another Charge of

Discrimination with the OOHR and the EEOC on July 8, 2005,

alleging that SWF terminated his employment in retaliat ion for

his filing the May 31, 2005, Charge of Discrimination. The EEOC

also issued an "unable to conclude" finding on this Charge on

September 30, 2005, and Petitioner failed to timely file suit on

this Charge as well. Petitioner's various allegations o f

discrimination and retaliation contained in the EEOC Charges are

not at issue in the instant action ; as they are time - barred and

beyond the scope of the Charge of Discrimination filed with the

Florida Commission on Human Relations (FCHR).

Petitioner file d a Charge of Discrimination with the FCHR

on January 9, 2006, containing the allegations of discrimination

presently before this tribunal. Petitioner alleged, for the

first time in his FCHR Charge, that SWF discriminated against

him because of his nation al origin and also alleged disability

discrimination. Specifically, Petitioner claims that SWF

subjected him to disparate treatment and terminated his

employment because of his national origin and alleged

disability. Petitioner's FCHR Charge also referen ces age

discrimination. However, Petitioner stipulated during the

hearing that he is not pursuing an age claim against SWF. The

FCHR issued a No Cause determination on May 9, 2006. Petitioner

timely filed the Petition for Relief at issue with the FCHR o n

May 30, 2006. This matter was referred to the DOAH on June 6,

2006, and discovery followed.

Following the denial of Petitioner's multiple motions for

continuance, a formal hearing was conducted on August 3, 2006,

at which both parties could present witn ess testimony and

documentary evidence. At the hearing, Petitioner testified in

his own behalf, but called no additional witnesses nor offered

any documentary evidence. Respondent presented the testimony of

three witnesses: Christine Runnels, human reso urces manager;

Mark S. Wren, warehouse manager; and Christine E. O'Neal, vice

president of Human Resources, and 25 exhibits were admitted in

evidence. Following the close of the hearing, Petitioner filed

multiple motions to submit evidence after the close of evidence.

These motions were denied, as good cause was not shown.

Respondent filed a motion for extension of time to file post -

hearing submittals, and, over Petitioner's objections, it was

granted. Both parties submitted post - hearing submittals , whi ch

have been considered in preparation of this Recommended Order.

FINDINGS OF FACT

1. Respondent is an employer , as that term is defined ,

under the Florida Civil Rights Act (FCRA) of 1992.

2. Petitioner is a male of Puerto Rican descent and is a

member o f a protected class. Petitioner claims he is disabled

due to the pain and limitations following corrective surgery for

a lumbar degenerative disc problem in 2003.

3. Petitioner began employment with SWF in 1995 as a

w arehouse w orker in the receiving depa rtment. The w arehouse

w orker position required Petitioner to receive and move

shipments of merchandise, equipment , and supplies coming into

the Warehouse. Petitioner needed to be able to lift up to

50 pounds and assist in lifting up to 100 pounds to sho ulder

height in order to perform the essential functions of the

w arehouse w orker position.

4. Petitioner had surgery on his back on September 26,

2003, to correct a lumbar degenerative disc problem.

Dr. Stephen Goll performed the surgery and provided af ter - care

for Petitioner. SWF granted Petitioner a paid leave of absence

from September 26, 2003, until March 19, 2004, in order to allow

him to recuperate from his surgery.

5. Petitioner returned to work on March 19, 2004, with

restrictions of sedentary work only and no lifting of more than

ten pounds. Petitioner's restrictions varied after his surgery,

but he was never cleared to lif t more than 20 pounds.

Petitioner never requested an accommodation that would allow him

to lift up to 50 pounds.

6. SWF provided Petitioner with light - duty work, in

accordance with his restrictions as defined by Dr. Goll, from

his return to work on March 19, 2004, until November of 2004.

Specifically, Warehouse Manager Mark S. Wren assigned Petition er

to the pricing table where he was not required to lift more than

ten pounds.

7. On November 1, 2004, Dr. Goll examined Petitioner and

determined that he had reached maximum medical improvement (MMI)

with a three percent impairment rating. He put in place a

permanent restrict ion of no lifting of more than ten pounds.

8. Accordingly, Petitioner could not perform the essential

functions of his w arehouse w orker position, which required

lifting up to 50 pounds. Further, there were no permanent

light - duty positions available in t he Warehouse.

9. Therefore, on November 29, 2004, Warehouse Manager

Wren, Human Resources Manager Christine Runnels, and Human

Resources Director Teri Robertson met with Petitioner to explain

that SWF had no permanent work in the Warehouse that he could

p erform within his restrictions. During his meeting, SWF

offered Petitioner the opportunity either to be assigned to

SWF's internal temporary worker pool, known as Workforce, and

work as a temporary employee as needed, or to take a six - month

personal leave of absence to look for a position at SWF which

met his medical restrictions. Petitioner, who complained of

continued back pain, elected to take a six - month personal leave

of absence from December 4, 2004, through June 4, 2005. He

could retain his health benefits during this period.

10. Despite being unable to perform the essential

functions of the w arehouse w orker position, Petitioner was

capable of working in a broad range of jobs offered by SWF

within his medical restrictions. During Petitioner's six - month

personal leave of absence, SWF had 417 positions open.

Nevertheless, Petitioner only inquired about two positions

during his six - month leave period -- one in the Call Center and

one as a horticulturist.

11. Petitioner was not selected for a positi on in the Call

Center because he was unwilling to work the required hours.

Petitioner admitted he did not have the required degree to work

as a horticulturist. Petitioner never submitted a transfer

request for any of the 415 other positions available at SWF

during his six - month personal leave of absence.

12. Nevertheless, Petitioner sought to have his leave

extended to six months after his leave expired on June 4, 2005.

SWF's vice president of Human Resources reviewed Petitioner's

request for a leave ex tension, as well as his personnel file

pertaining to the reason for his leave of absence. Christine E.

O'Neal discovered that Petitioner had permanent lifting

restrictions , preventing him from performing the essential

functions of his former position in t he Warehouse. O'Neal

further learned that despite granting Petitioner six months to

find another position, he had done little in furtherance of that

goal. In fact, O'Neal determined that Petitioner had only

applied for two positions during the entire six months of his

leave. Therefore, O'Neal made the decision to deny Petitioner's

request for a leave extension, effectively terminatin g

Petitioner's employment on June 4, 2005.

13. Petitioner presented no evidence indicating that SWF

terminated his employm ent because of his alleged disability or

national origin. Further, each of the three witnesses who

testified at the hearing state d that employment decisions

affecting Petitioner were not related to his national origin or

alleged disability , and this testi mony is credible .

14. SWF submitted legitimate non - discriminatory reasons

for Petitioner's termination. Specifically, SWF terminated

Petitioner's employment because he had a permanent lifting

restriction prohibiting him from performing the essential

func tions of his position as a w arehouse w orker, and he failed

to actively seek another position during his leave period.

15. Pet itioner submitted no evidence establishing that SWF

discriminated against him because of his national origin, or

that he was handi capped under the FCRA, or that SWF's non -

discriminatory reasons for terminating Petitioner was a pretext

for unlawful discrimination.

CONCLUSIONS OF LAW

16 . The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceedin g and th e

parties thereto, pursuant to S ections 120.569 and 760.11 and

Subsection 120.57(1) , Florida Statutes (200 5 ) .

17 . The State of Florida, under the legislative scheme

contained in Chapter 760, Florida Statutes (200 5 ) , incorporates

and adopts the leg al principles and precedents established in

the federal anti - discrimination laws specifically set forth

under Title VII of the Civil Rights Act of 1964, as amended.

42 U . S . C . § 2000e et seq . The Florida law prohibiting unlawful

employment practices is f ound in Section 760.10, Florida

Statutes (2005) . This section prohibits discrimination against

any individual with respect to compensation, terms, conditions,

or privileges of employment because of such individual's

national origin and/or handicap. § 760 .10(1)(a), Fla . Stat .

(200 5 ) . The F CHR and the Florida courts interpreting the

provisions of the F CRA of 1992 have determined that federal

discrimination law should be used as guidance when construing

provisions of the Act. See Brand v. Florida Power Cor p. , 633

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

Community Affairs v. Bryant , 586 So. 2d 1205 (Fla. 1st DCA

1991); Cooper v. Lakeland Regional Medical Center , 16 FALR 567,

574 (FCHR 1993) ; Downing v. United Parcel Service, Inc. , 215

F.Sup p 2d 1303, 1308 (M.D. Fla. 2002).

1 8 . Petitioner has the ultimate burden to prove

discrimination either by direct or indirect evidence. Direct

evidence is evidence which, if believed, would prove the

existence of discrimination without inference or presu mption.

Carter v. City of Miami , 870 F.2d 578, 581 - 82 (11th Cir. 1989).

Blatant remarks, whose intent could be nothing other than to

discriminate, constitute direct evidence of discrimination. See

Earley v. Champion International Corporation , 907 F.2d 1 077,

1081 (11th Cir. 1990). There is no record of any direct

evidence of discrimination on the part of Petitioner's

supervisor. There is no evidence that Wren made any national

origin or disability - related comments or slurs. Petitioner has

not presented any documentary evidence which would constitute

direct evidence of discrimination.

19 . Absent any direct evidence of discrimination, the

Supreme Court established, and later clarified, the burden of

proof in disparate treatment cases in McDonnell Douglas Corp. v.

Green , 411 U.S. 792 (1973) and Texas Department of Community

Affairs v. Burdine , 450 U.S. 248 (1981) , and again in the case

of St. Mary's Honor Center v. Hicks , 509 U.S. 502, 113 S.Ct.

2742 (1993). The FCHR has adopted this evidentiary model.

K ilpatrick v. Howard Johnson Co. , 7 FALR 5468, 5475 (FCHR 1985).

McDonnell Douglas places upon Petitioner the initial burden of

proving a prima facie case of national origin discrimination.

See also Davis v. Humana of Florida, Inc. , 15 FALR 231 (FCHR

1992 ); Laroche v. Department of Labor and Employment Security ,

13 FALR 4121 (FCHR 1991).

20 . Judicial authorities have established the burden of

proof for establishing a prima facie case of discriminatory

treatment. Petitioner must show that:

a. Petitione r is a member of a protected

group;

b. The employee is qualified for the

position; and

c. The employee was subject to an adverse

employment decision (Petitioner was

terminated);

d. The position was filled by a person of

another race or that he was treated less

favorably than similarly - situated persons

outside the protected class:

e. Crapp v. City of Miami Beach , 242 F.3d

1017, 1020 (11th Cir 2001); Canino v. EEOC ,

707 F.2d 468 (11th Cir. 1983); Smith v.

Georgia , 684 F.2d 729 (11th Cir. 1982 ); Lee

v. Russell County Board of Education , 684

F.2d 769 (11th Cir. 1982), appeal after

remand, 744 F.2d 768 (11th Cir. 1984).

21 . Proving a prima facie case serves to eliminate the

most common non - discriminatory reasons for Petitioner's

disparate treat ment. See Teamsters v. U.S. , 431 U.S. 324, 358,

n. 44 (1977). It is not, however, the equivalent of a factual

finding of discrimination. It is simply proof of actions taken

by the employer from which discriminatory animus is inferred

because experience has proved that, in the absence of any other

explanation, it is more likely than not that those actions were

bottomed on impermissible considerations. The presumption is

that more often than not people do not act in a totally

arbitrary manner, without any underlying reason, in a business

setting. Furnco Construction Corp. v. Waters , 438 U.S. 567, 577

(1978).

22 . Once Petitioner has succeeded in proving all the

elements necessary to establish a prima facie case, the employer

must then articulate some legi timate, non - discriminatory 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 discr iminatory animus ."

Texas Department of Community Affairs v. Burdine , at 257. The

employer "need not persuade the court that it was actually

motivated by the proffered reasons . . . [i]t is sufficient if

the [employer's] evidence raises a genuine issue of fact as to

whether it discriminated against the plaintiff." Id . at 254.

This burden is characterized as "exceedingly light." Perryman

v. Johnson Products Co., Inc. , 698 F.2d 1138 (11th Cir. 1983).

23 . Once the employer articulates a legitimate reason for

the action taken, the evidentiary burden shifts back to

Petitioner , who must prove that the reason offered by the

employer for its decision is not the true reason, but is merely

a pretext. The employer need not prove that it was actually

motivated by the articulated non - discriminatory reasons or that

the replacement was more qualified than Petitioner. Texas

Department of Community Affairs v. Burdine , at 257 - 8.

2 4. In Burdine , the Supreme Court emphasized that the

ultimate burden of persuading the tri er of fact that Respondent

intentionally discriminated against Petitioner remains at all

times with Petitioner. Texas Department of Community Affairs v.

Burdine , at 253. The Court confirmed this principle again in

St. Mary's Honor Center v. Hicks , 509 U. S 502, 113 S. Ct. 2742

(1993).

Most of Petitioner's Disparate Treatment Claims Are Time - Barred.

25. It is a clear principl e of law that Petitioner must

file a charge of discrimination with the FCHR within 365 days of

a discriminatory act in order to seek relief for alleged

disability or national origin discrimination. § 760.11(1), Fla.

Stat. (200 5 ). Petitioner filed the Charge of Discrimination at

issue on January 9, 2006. Accordingly, all allegations of

discrimination contained in Petitioner's Charge a nd Petition for

Relief occurring prior to January 9, 2005, are time - barred.

26. Specifically, the following allegations of disparate

treatment are time - barred: (1) Petitioner's claim that

Warehouse Lead Albert Capuano intentionally bumped into him,

injur ing his back, on April 9, 2004; (2) Petitioner's claim that

Warehouse Manager Wren assigned inventory work only to white

employees in 2004; (3) Petitioner's claim that Wren humiliated

and insulted him in September 2004; (4) Petitioner's claim that

Wren, Wa rehouse Lead Ron Beck, and Capuano pressured him to work

faster, watched him constantly, and isolated him in September

2004; (5) Petitioner's claim that Wren counseled him for

tardiness on September 17, 2004; and (6) Petitioner's claim that

Beck timed him performing his duties in 2003.

27. Accordingly, only two of Petitioner's claims are not

time - barred: (a) Petitioner's claim that SWF terminated his

employment because of his national origin and/or alleged

disability, and (b) Petitioner's claim that SWF f ailed to create

a position for him because of his national origin.

Petitioner's Disability Discrimination Claim

28. In order to establish a prima facie case of handicap

discrimination under the McDonnell - Douglas burden shifting

method, Petitioner must sho w that he: (1) is actually disabled

or regarded as disabled ; (2) is a qualif i ed individual with a

disability; and (3) was subjected to an adverse employment

action under circumstances that give rise to an inference of

handicap discrimination. Stewart v. Happy Herman's Cheshire

Bridge, Inc. , 117 F.3d 1278, 1285 (11th Cir. 1997). An

individual with a handicap may establish discrimination by

showing that an employer failed to reasonably accommodate the

disability, or that he was subjected to disparate treat ment as a

result of the handicap . Id. at 1285. Petitioner is unable to

satisfy any of the elements required to establish a prima facie

case.

29. SWF was under no duty to accommodate Petitioner

because he is not handicapped under the statute. Petitioner

never requested an accommodation that would allow him to perform

the lifting required of a w arehouse w orker. Smith v. Midland

Brake , 180 F.3d 1154 (10th Cir. 1999) (Plaintiff must request a

reasonable accommodation in order to pursue a claim for failure

to accommodate). Further, Petitioner brought a failure to

accommodate claim in his first EEOC Charge of Discrimination and

failed to timely file suit within 90 days of his receipt of his

Notice of Right to Sue. Accordingly, any failure to accommodate

cla im is time - barred. 42 U.S.C. § 2000e - 5(f)(1)(A). Moreover,

Petitioner does not allege a failure to accommodate claim in his

FCHR charge. Therefore, Petitioner cannot bring a failure to

accommodate claim for the additional reason that such a claim is

bey ond the scope of the Charge and time - barred. Lieberman v.

Miami - Dade County , 2000 U.S. Dist. LEXIS 14789 (S.D. FL 2000).

30. In any event, SW F provided Petitioner with more than

reasonable accommodations by providing him with six months of

paid leave, li ght - duty assignment within his medical

restrictions for seven months, and an additional six - month

unpaid personal leave of absence to look for another job. Epps

v. City of Pine Lawn , 353 F.3d 588, 593 (8th Cir. 2003) ( S ix -

month leave of absence exceeds re asonable accommodation

requirements of the Americans with Disabilities Act ( ADA ) ).

31. Petitioner's disability claims must fail because he is

not "disabled" or "handicapped" within the meaning of the law.

"Disability" is defined as a "physical or mental impairment that

substantially limits one or more of the major life activities."

42 U.S.C. § 12102(2). EEOC regulations identify "major life

activities" as "such functions as caring for oneself, performing

manual tasks, walking, seeing, hearing, speaking, breathing,

learning and working." 29 C.F.R. § 1630.2(j). The Supreme

Court has made clear that "the ADA does not define

'substantially limits,' but 'substantially' suggests

'considerable' or 'specified to a large degree.'" Sutton v.

United Air Lines, I nc. , 527 U.S. 471 (1999). An impairment

alone does not constitute a disability under the ADA. Standard

v. A.B.E.L. Services, Inc. , 161 F.3d 1318, 1327 (11th Cir.

1998).

32. Petitioner failed to establish that he was

substantially limited in any major li fe activity. Rather,

Petitioner had only a three percent impairment rating and a ten -

pound lifting restriction that prevented him for working at SWF

as a w arehouse w orker. Courts that have considered impairments

virtually identical to Petitioner's impair ments routinely find

that such impairments do not constitute a disability. See

Marinelli v. City of Erie , 216 F.3d 354 ( 3d Cir. 2000) (ten -

pound lifting restriction does not constitute disability as a

matter of law); Lorenzen v. GKW Armstrong Wheels Inc. ,

345 F. Supp. 2d 977 (N.D. IA 2004)( five percent impairment

rating does not constitute disability); Helfler v. United Parcel

Service, Inc. , 115 F.3d 613 (8th Cir. 1997) (Plaintiff not

substantially limited in any major life activity where Plaintiff

was re stricted to light - duty with no lifting items weighing more

than ten pounds); Freund v. Lockheed, Inc. , 930 F. Supp. 613

(S.D. Ga. 1996) (inability to lift objects weighing over ten

pounds does not constitute a disability). See also 29 C.F.R.

§ 1630.2(j)( 3)(i).

33. Petitioner is clearly not substantially limited in the

major life activity of working. An individual is considered

substantially limited in the major life activity of working only

if his impairment significantly restricts his ability to perfor m

a broad range of jobs in various classes as compared to the

average person having comparable training, skills , and

abilities. Sutton v. United Airlines, Inc. , 527 U.S. 471

(1999) . In Sutton , the Supreme Court explained:

When the major life activity und er

consideration is that of working, the

statutory phrase 'substantially limits'

requires, at a minimum, that Plaintiffs

allege that they are unable to work in a

broad class of jobs . . . To be

substantially limited in the major life

activity of working, then one must be

precluded from more than one type of job, a

specialized job, or a particular job of

choice. If jobs utilizing an individual's

skills (but perhaps not his or her unique

talents) are available, one is not precluded

from a substantial class of jobs.

Similarly, if a host of different jobs are

available, one is not precluded from a broad

range of jobs.

Id. at 2150.

34. While it is clear that Petitioner could not perform

the essential functions of his physically demanding job as a

w arehouse w orker, he was not substantially limited in the major

life activity of working, because his impairments did not

prohibit him from working in a broad range of jobs.

35. Petitioner claims to have difficulty walking

distances. However, Petitioner admitted th at he was able to

walk sufficiently to perform the duties of his w arehouse w orker

position and that he could walk a mile to his doctor's office.

Moreover, Petitioner failed to enter into evidence any medical

records evidencing a disability. Therefore, Pe titioner failed

to establish that he was actually disabled or handicapped. See

Swain v. Hillsborough Cty. Sch. Bd. , 146 F.3d 855, 857 (11th

Cir. 1998) (Plaintiff must provide some evidence beyond the mere

existence and impact of a physical impairment to e stablish a

claim).

36. Petitioner may also qualify for protection under the

law by establishing that he was "regarded as" having an

impairment which substantially limited one or more of his major

life activities. 42 U.S.C. § 12102(2)(c); Sutton , 119 S. C t. at

2149; Gordon v. E.L. Hamm & Assoc., Inc. , 100 F.3d 907, 918

(11th Cir. 1996), cert. den. , 118 S. Ct. 630 (1997). However,

Petitioner does not even allege that SWF regarded him as

disabled. Further, there is no evidence in the record showing

that an y decision - maker at SWF regarded Petitioner as

substantially limited in any major life activity.

37. Therefore, while it is clear that SWF relied upon the

limitations imposed by Petitioner's doctor in determining that

he was unable to perform the essentia l functions of his position

as a w arehouse w orker, there is no evidence in the record

showing that any managerial employee of SWF perceived Petitioner

as disabled.

38. Assuming, arguendo , that Petitioner could establish

that he was disable d , his claim mus t fail because he cannot

establish that he is a qualified individual with a disability

entitled to the protections of the ADA. 42 U.S.C. § 12112. In

order to establish that he is a qualified individual with a

disability, Petitioner must show that he coul d perform the

essential functions of his position as a w arehouse w orker with

or without reasonable accommodation. 42 U.S.C. § 12111(8).

SWF's job description for the w arehouse w orker position

specifically states that the physical requirements of the

posi tion require :

Good physical condition. Able to lif t up to

50 lbs. a nd assist in lifting up to 100 lbs.

to should er height.

39. As set forth more fully above, Dr. Goll imposed a ten -

pound permanent lifting restriction on November 1, 2004.

Clearly, the l ifting restrictions imposed upon Petitioner by

Dr. Goll prevented him from performing the essential functions

of his position as a w arehouse w orker. During the hearing ,

Petitioner admitted that he could not perform the essential

functions of his position .

40. Petitioner never identified or requested any

accommodation that would allow him to perform the lifting

required by the w arehouse w orker position. Therefore,

Petitioner is not a qualifi ed individual with a disability and

not entitled to pursue a cla im for disability discrimination.

41. Petitioner also failed to identify any evidence giving

rise to an inference that he was subjected to disability

discrimination. Therefore, Petitioner failed to establish a

prima facie case.

42. Even if Petitioner ha d established a prima facie case

of disability discrimination, his claim must still fail because

SWF has produced legitimate non - discriminatory business reasons

for its decision to terminate him. Petitioner has not

established that SWF's reasons are prete xt for disability

discrimination. SWF terminated Petitioner's employment on

June 4, 2005, because he was unable to perform the essential

functions of his position as a w arehouse w orker, and he failed

to actively seek other employment at SWF during his si x - month

leave period. Accordingly, Petitioner's disability claim must

fail even if he could establish that he was a qualified

individual with a disability.

Petition e r 's National Origin Discrimination Claims

43. In order to establish a prima facie case of national

origin discrimination, Petitioner must prove that: (1) he is a

member of a protected class; (2) he was subjected to an adverse

employment action; (3) his employer treated similarly situated

employees outside of his classification more favorably; and

(4) he was qualified to do his job. See Faucette v. National

Hockey League , 2006 U.S. Dist. LEXIS 5188 (M.D. Fla. 2006);

citing Maniccia v. Brown , 171 F.3d 1364, 1368 (11th Cir. 1999).

44. Petitioner claims that SWF created a light - duty

position fo r former Caucasian employee Ellis Edwards and that

SWF discriminated against him by refusing to create a light - duty

position for him. However, Petitioner presented no evidence in

support of his contention that SWF created a position for

Edwards. Contrast ingly, SWF Human Resources Vice President

O'Neal clearly testified that SWF did not create a position for

Edwards and that SWF terminated Edwards under circumstances

similar to Petitioner's termination. Similarly, Petitioner

failed to identify any evidenc e showing that SWF treated any

other employee outside of his protected class more favorably

with regard to termination decisions. Accordingly, Petitioner

has not established a prima facie case of discrimination.

45. As set forth more fully above, Petitio ner admitted

that he could not perform the essential functions of his

position as a w arehouse w orker. Specifically, Petitioner could

not perform the lifting requirements of the job. Accordingly,

Petitioner has not established a prima facie case, because he

was not qualified to do his job.

46. Even if Petitioner could establish a prima facie case

of national origin discrimination, his discrimination claims

must fail, because he failed to establish that SWF's legitimate

non - discriminatory reasons for his t ermination and refusal to

create a light - duty position for him were pretext for unlawful

discrimination. Rather, P etitioner admitted that he had no

evidence supporting his claim that SWF terminated him because of

his national origin. Similarly, P etitione r failed to submit any

evidence indicating that SWF refused to create a light - duty

position for him because of his national origin.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order which DENIES the Petition for Relief and

dismisses Petitioner's claim .

DONE AND ENTERED this 2nd day of November , 2006 , in

Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

A dministrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division o f Administrative Hearings

this 2nd day of November , 2006 .

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Mario Molina

116 Coconut Grove Way

Kissimmee, Florida 34758

Thomas R. Brice, Esquire

McGuireWoods, LLP

50 North Laura Street, Suite 3300

Jacksonville, Florida 32202

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

N OTICE 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.