07-004306 Antoine Daniel Pierre vs. Broward County School Board Status: Closed Recommended Order on Thursday, July 31, 2008.

Summary: Petitioner failed to establish a prima facie case of discrimination by failing to satisfy the third prong of the three-part test; and failed to establish a prima facie case of handicap discrimination. Recommend dismissal.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANTOINE DANIEL PIERRE, )

)

Petitioner, )

)

vs. ) Case No. 07-4306

)

BROWARD COUNTY SCHOOL BOARD, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on February 27, 2008, in Fort Lauderdale, Florida, before

Errol H. Powell, a designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Antoine Daniel Pierre, pro se

5688-25th Street Circle East

Bradenton, Florida 34203

For Respondent: Michael T. Burke, Esquire

Johnson, Anselmo, Murdoch, Burke,

Piper & Hochman, P.A.

2455 East Sunrise Boulevard, Suite 1000

Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent

discriminated against Petitioner on the basis of national

origin, race, and perceived disability in violation of the

Florida Civil Rights Act of 1992, as amended.

PRELIMINARY STATEMENT

Antoine Daniel Pierre filed a Charge of Discrimination with

the Florida Commission on Human Relations (FCHR) against the

Broward County School Board (School Board) alleging that the

School Board discriminated against him on the basis of national

origin (Haitian), race, and perceived mental disability. On

August 21, 2007, the FCHR issued a Determination of No Cause and

a Notice of Determination of No Cause. Mr. Pierre timely filed

a Petition for Relief with the FCHR against the School Board.

On September 19, 2007, the FCHR referred this matter to the

Division of Administrative Hearings.

At hearing, to assist Mr. Pierre in communicating, a Creole

interpreter was provided. Mr. Pierre testified on his own

behalf and entered five exhibits (Petitioner's Exhibits numbered

1 through 5) into evidence. The School Board presented the

testimony of four witnesses and entered 14 exhibits

(Respondent's Exhibits numbered 1 through 14) into evidence.

The School Board ordered a transcript of the hearing. At

the request of the parties, the time for filing post-hearing

submissions was set for more than ten days following the filing

of the transcript. The Transcript, consisting of two volumes,

was filed on March 18, 2008. The parties timely filed their

post-hearing submissions, 1 which were considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. No dispute exists that Mr. Pierre is a male and Black

and that his national origin is Haitian. No dispute exists that

he is a member of the protected class as it relates to

discrimination.

2. No dispute exists that, at all times material hereto,

the School Board was an employer as defined by the Florida Civil

Rights Act of 1992, as amended.

3. Mr. Pierre began his employment with the School Board

in 1996. For nine (9) years, he worked in the Maintenance

Department and was promoted three times. His various

supervisors rated his work as excellent.

4. At all times material hereto, Mr. Pierre’s co-workers

were of various ethnic groups—Haitian, Hispanic, Black/African

American, Caucasian, etc.

5. For approximately seven years, Mr. Pierre was under the

supervision of Foreman John Bateman. Mr. Bateman considered

Mr. Pierre to be a “fabulous” worker and recommended Mr. Pierre

for promotion. Subsequent thereto, Mr. Bateman observed a

change in Mr. Pierre’s behavior and attitude.

6. Mr. Bateman discussed the changes in Mr. Pierre’s

behavior and attitude with his (Mr. Bateman’s) supervisor, James

Bass.

7. Such a change in behavior and attitude was exhibited on

April 27, 2004. On that date, Mr. Pierre refused to take orders

from a temporary leadman, Joe Williams, in the absence of the

leadman, Joe Pierrot. Mr. Bass was called to the work-site, and

he spoke to Mr. Pierre regarding his refusal to follow the

directives of Mr. Williams. After the discussion, Mr. Pierre

agreed to follow the directives of Mr. Williams. Mr. Bass

memorialized the incident in a memorandum “For the Record” dated

the same day. Mr. Bass testified as to the incident and noted,

among other things, in the memorandum that Mr. Pierre had become

“very disruptive, creating a hostile environment;” that, after

the discussion, Mr. Pierre “returned to his duties without

incident;” and that Mr. Pierre was “a very hard worker, but he

appears to have ‘fits’ at times . . . seems to intimidate his

co-workers with his attitude and overly-aggressive

behavior . . . has a tendency to accuse his co-workers of not

liking him because of his nationality (Haitian).” Mr. Pierre

testified that he did not look at the memorandum and refused to

sign it; and that he informed Mr. Bass that he (Mr. Pierre) did

not have a “fight” with anyone.

8. Another incident occurred on July 9, 2004. Mr. Bass

memorialized the incident in a memorandum “For the Record” dated

the same day of the incident. A worker, Mike Walters, had

placed a bottle of water in a refrigerator over night, and the

next day, the bottle of water was missing. As Mr. Pierre was

walking past Mr. Walters, he (Mr. Walters) commented that

someone had taken his bottle of water. Mr. Pierre immediately

took offense, became agitated, and refused to calm down, even

after Mr. Walters explained to Mr. Pierre that he was making a

general statement, not directed at Mr. Pierre. Only after the

leadman, Mr. Pierrot, interceded did Mr. Pierre calm down.

Mr. Bass included in the memorandum that Mr. Pierre appeared to

believe that “everyone was out to get him”; that Mr. Pierre’s

co-workers expressed being fearful of him; that Mr. Pierre was

advised that such behavior was not acceptable; and that further

such behavior would lead to disciplinary action up to and

including termination. Mr. Bass signed the memorandum, but

Mr. Pierre refused to sign it.

9. Mr. Pierre testified at hearing that the Mr. Walters

accused him of “stealing” the water but that he knew nothing

about it. The undersigned finds Mr. Pierre’s testimony credible

that he (Mr. Pierre) believed that he was being accused of

stealing the water but that he knew nothing about the water

being stolen. An inference is drawn and a finding of fact is

made that Mr. Pierre became upset because of this belief.

10. Mr. Pierre was counseled regarding his behavior.

Mr. Bass and the District Maintenance Manager, Mark Dorsett,

decided that a re-assignment might benefit Mr. Pierre and his

co-workers. As a result, on July 20, 2004, Mr. Pierre was re-

assigned from a team of workers, i.e., a crew, responsible for

cleaning air conditioning coils to a crew responsible for

preventative maintenance tasks. The re-assignment was

memorialized in a memorandum dated July 20, 2004. The

memorandum provided, among other things, that Mr. Pierre would

be monitored for six months and, if the re-assignment did not

improve Mr. Pierre’s relationship with his co-workers,

“progressive disciplinary action” would be invoked; and that the

re-assignment would hopefully improve the relationships. The

memorandum was copied to Mr. Pierre.

11. Approximately three months later, however, on

October 20, 2004, another incident occurred. The incident was

memorialized in a memorandum “For the Record” dated October 25,

2004. According to the memorandum, Mr. Pierre had an argument

with Sammie Riviera, Mr. Pierre’s work-partner, regarding

Also, the memorandum indicated that, when Mr. Pierre returned to

work, after the incident, he began accusing his co-workers of

taking his missing tools, which he was unable to locate.

Further, the memorandum indicated that the foreman, Jose

Martell, advised Mr. Pierre that his behavior would have to

“cease immediately.” Moreover, the memorandum indicated that

Mr. Martell and Mr. Martell’s supervisor, Diane Caulfield,

determined that Mr. Pierre would benefit from the School Board’s

Employees Assistance Program (EAP). Mr. Martell and

Ms. Caulfield signed the memorandum, but Mr. Pierre did not.

12. Mr. Riviera did not testify at hearing. Mr. Pierre

testified that, contrary to what others thought that he

believed, he did not believe that Mr. Riviera stole his tools.

Mr. Pierre testified that Mr. Riviera used his tools and dropped

them on the floor; that he (Mr. Pierre) picked-up the tools and

placed them in the truck; that Mr. Riviera attempted to talk to

him (Mr. Pierre) but that he (Mr. Pierre) refused to talk to

Mr. Riviera. In his testimony, Mr. Pierre did not deny that he

and Mr. Riviera argued.

13. On October 26, 2004, Ms. Caulfield presented

Mr. Pierre with an EAP Referral Form, which stated the reason

for the referral as “Anger Management – no one wanting to work

with him.” Ms. Caulfield signed the EAP Referral Form, but

Mr. Pierre refused to sign it.

14. At hearing, Mr. Pierre testified that he did not

recall Ms. Caulfield’s request for him to attend the EAP. The

undersigned finds Mr. Pierre’s testimony to be credible, but

such finding does not change or affect the undersigned’s finding

that Ms. Caulfield requested Mr. Pierre to attend the EAP.

15. Approximately 20 days later, on November 15, 2004,

another incident occurred. The incident was memorialized in a

memorandum “For the Record” dated November 16, 2004.

Mr. Pierre’s work-partner, Mr. Riviera, observed Mr. Pierre

handling a device that he (Mr. Pierre) should not have been

handling, and Mr. Riviera so advised Mr. Pierre, who became

the memorandum indicated that Mr. Riviera had observed, on

occasion, Mr. Pierre mumbling to himself “excessively” and

“banging himself against a wall.” Further, Mr. Riviera

indicated that such behavior by Mr. Pierre, together with

Mr. Pierre’s exhibited temper, caused Mr. Riviera to be “fearful

of his personal well-being” while working with Mr. Pierre.

Mr. Martell signed the memorandum, but Mr. Pierre did not sign

it.

16. Approximately, nine months later, in August 2005,

Mr. Pierre visited the Director of Maintenance, Sylvester Davis.

Mr. Davis had known Mr. Pierre since Mr. Pierre began working

with the School Board and had always encouraged Mr. Pierre to

visit him. Mr. Davis observed that Mr. Pierre was upset about

something, but Mr. Pierre was unable to explain to Mr. Davis

what was happening to him (Mr. Pierre), so Mr. Davis decided to

talk to Ms. Caulfield. Mr. Pierre testified that he went to

talk to Mr. Davis because he (Mr. Pierre) was not feeling safe

at work, believed that he (Mr. Pierre) was being “persecuted,”

and believed that Mr. Davis could help.

17. Mr. Davis met with Ms. Caulfield and expressed his

concern regarding Mr. Pierre. She explained what had been

happening with Mr. Pierre and showed Mr. Davis the memoranda

that had accumulated regarding Mr. Pierre’s behavior. Mr. Davis

suggested the EAP, and Ms. Caulfield advised him that Mr. Pierre

had already been referred to the EAP.

18. After his meeting with Ms. Caulfield, Mr. Davis became

concerned regarding the safety of Mr. Pierre and the other

workers. Mr. Davis determined that a Fit-For-Duty examination

was appropriate.

19. In a memorandum dated September 19, 2005, directed to

the School Board’s Special Investigative Unit (SIU), which is

within the School Board’s Office of Professional Standards

(OPS), Mr. Davis, among other things, provided the SIU with

information in order for it to conduct a Fit-For-Duty

examination of Mr. Pierre. In the memorandum, Mr. Davis

indicated, among other things, that Mr. Pierre’s behavior had

gotten progressively worse; that a safety problem had arisen

since Mr. Pierre’s work assignments required assistance, but his

co-workers were refusing to work with him because of their fear

of his reactions; that Mr. Pierre’s co-workers were concerned

about him, had respect for him, and viewed him as an excellent

worker; and that Mr. Pierre’s co-workers just wanted him to get

help. Further, in the memorandum, Mr. Davis requested that a

person who could speak Creole be present when the SIU spoke with

Mr. Pierre.

20. Moreover, at hearing, Mr. Davis testified that, at no

time did he want Mr. Pierre to be terminated, only for him to

get the help that he needed to continue to work for the School

Board. Mr. Davis viewed the Fit-For-Duty examination as a way

to help Mr. Pierre. Mr. Davis’ testimony is found to be

credible.

21. The Fit-For-Duty evaluation is a non-disciplinary

process wherein the School Board is attempting to help an

employee.

22. School Board Policy 4004 provides in pertinent part:

RULES

Fit for Duty Determination Procedures

(emphasis in original)

1. The Executive Director of Professional

Standards & Special Investigative Unit (SIU)

receives request from a

Principal/Administrator (includes District

Administrators) or Superintendent/Designee.

(Supporting Documents)

2. SIU notifies employee via certified mail

that he/she must undergo a physical and/or

psychological examination. A reassignment

letter is prepared directing employee to

remain at home with pay, pending the outcome

of the examination. (Letter 1)

3. The affected employee shall select the

name of a medical doctor, psychologist or

psychiatrist from a list maintained by the

Executive Director of Professional Standards

& Special Investigative Unit, within 48

hours. (See Attachment to Letter 1)

4. SIU Administrator schedules within ten

working days a medical appointment and

follows-up in writing to the doctor’s office

and to the employee of appointment

confirmation. Note: This is a mandatory

appointment and failure to attend can result

in termination of employment for failure to

comply with School Board Policy 4004 .

(Letters 2 & 3)

(emphasis in original)

* * *

6. The doctor as delineated in the policy

will conduct Pre-evaluation at District

expense. Note: a 2 nd Opinion will be at the

employees expense if requested, with the

employee selecting from the School Board

approved list as delineated in the policy.

(emphasis in original)

* * *

18. If employee fails to attend any

mandatory appointment with the assigned

doctor of the designee assigned to handle

the Fitness for Duty Evaluation Case per

School Board Policy 4004, then a pre-

disciplinary meeting is arranged and

employee is notified in writing. (Letter 7)

19. If applicable a recommendation for

termination is sent to the School Board of

Broward County based on just cause, for

insubordination, failure to comply with

School Board Policy 4004. (Letter 8)

23. By letter dated September 27, 2005, which was hand-

delivered to Mr. Pierre, the Executive Director of OPS, SIU, Joe

Melita, notified Mr. Pierre that Mr. Davis had requested a Fit-

For-Duty Assessment, pursuant to School Board Policy 4004, and

that Mr. Pierre was required to submit to a psychological

examination at School Board expense. Mr. Melita provided

further in the letter that Mr. Pierre was directed to choose a

doctor from a list of doctors, which was attached to the letter,

indicating his (Mr. Pierre’s) first and second choice, within

two days of receipt of the letter; that the OPS Administrator,

Richard Mijon, would schedule the appointment with the physician

chosen; and that Mr. Pierre was to not return to work, but

remain at home with pay pending the determination of the

examination. The letter was addressed to Mr. Pierre at 2450 SW

7th Street, Fort Lauderdale, Florida 33312.

24. An inference is drawn and a finding of fact is made

that a perception existed that Mr. Pierre may have been

experiencing psychological problems.

25. Additionally, on September 27, 2005, Mr. Mijon met

with Mr. Pierre and two of Mr. Pierre’s line supervisors in

Mr. Mijon’s office. The line supervisors requested that a

Creole-speaking individual also attend to assist Mr. Pierre in

communicating only. Mr. Mijon complied with the request and

obtained the services of one of his officers, Marc Elias, who

was born in Haiti and who spoke Creole, for interpretation

purposes only. The aforementioned letter dated September 27,

2005, was hand-delivered to Mr. Pierre at this meeting, and

Mr. Mijon reviewed the contents of the letter with Mr. Pierre,

who signed the letter and dated his signature (September 27,

2005).

26. The list of physicians attached to the letter included

physicians from the counties of Dade [sic], Broward, and Palm

Beach. Mr. Pierre testified at hearing that he did not know any

of the doctors on the list and, therefore, Mr. Elias circled

three of the doctors and marked the order of preference (first,

second, and third) for him. Mr. Pierre’s testimony is found to

be credible, but also an inference is drawn and a finding is

made that the choices were made after consulting with

Mr. Pierre. Additionally, on the list, Mr. Pierre provided his

contact telephone numbers (home and cell). Mr. Mijon reviewed

with Mr. Pierre the choice of doctors, with preferences, and his

(Mr. Pierre’s) telephone numbers.

27. Also, Mr. Pierre’s address on the letter dated

September 27, 2005, was taken from the School Board’s records.

At the meeting, Mr. Pierre did not indicate that his mailing

address was incorrect.

28. At the conclusion of the meeting, Mr. Pierre requested

that a Creole-speaking doctor perform the Fit-For-Duty

examination. Mr. Mijon considered Mr. Pierre’s request

reasonable, knew that none of the physicians on list spoke

Creole, and indicated to Mr. Pierre that he would hold the list

of physicians in abeyance and locate a Creole-speaking doctor

through the EAP.

29. On or about October 3, 2005, Mr. Mijon received a list

of Creole-speaking psychiatrists and/or psychologists from the

EAP. On that same day, Mr. Mijon again obtained the services of

Mr. Elias and directed Mr. Elias to contact Mr. Pierre by

telephone. Mr. Elias complied and contacted Mr. Pierre by

telephone, activating the speakerphone. Mr. Elias participation

in the entire telephone conversation was for translation

purposes only. Mr. Mijon informed Mr. Pierre that a list of

Creole-speaking doctors had been obtained and that Mr. Pierre

needed to come to Mr. Mijon’s office on October 5, 2005, to do

as he had done previously—choose three doctors, identifying his

preferences (one through three), and sign and date the document.

Mr. Pierre indicated, during the telephone conversation, that he

would not come into Mr. Mijon’s office to do anything,

indicating, among other things, that he (Mr. Pierre) was being

persecuted. Mr. Mijon informed Mr. Pierre that, if he did not

come into his (Mr. Mijon’s) office on October 5, 2005, that he

(Mr. Pierre) would be considered to have waived his right to

choose from the second list of doctors, and that he (Mr. Mijon)

would have no choice but to use the original list chosen by

Mr. Pierre, which contained no Creole-speaking doctors, contact

Mr. Pierre’s first choice, and schedule an appointment with the

first doctor from the original list.

30. On October 5, 2005, Mr. Pierre failed to appear at

Mr. Mijon’s office. Mr. Mijon proceeded to schedule an

appointment with the doctor from the original list, Laura

Hohnecker, Ph.D., who was indicated as Mr. Pierre’s first

choice. The appointment was set for October 12, 2005, at

Dr. Hohnecker’s office, 1:00 p.m. to 4:30 p.m.

31. On October 6, 2005, Mr. Mijon contacted Mr. Pierre by

telephone and again obtained the services of Mr. Elias for

translation purposes only. Again, the telephone was placed on

speakerphone. Mr. Mijon advised Mr. Pierre that an appointment

had been scheduled with Dr. Hohnecker, Mr. Pierre’s first choice

from the original list, for the Fit-For-Duty examination, and

provided Mr. Pierre with the date, time, address, and telephone

number of Dr. Hohnecker. Further, Mr. Mijon informed Mr. Pierre

that the appointment was mandatory and that, if he (Mr. Pierre)

failed to attend the appointment, disciplinary action may

result.

32. In addition to the telephone conversation, Mr. Mijon

sent a letter, dated October 6, 2005, by certified and regular

U.S. mail to Mr. Pierre, containing the same information that

was discussed during the telephone conversation. The letter was

addressed to Mr. Pierre at the same address that was used by

Mr. Mijon on the letter dated September 27, 2005. The certified

letter was returned but not for being unclaimed.

33. Mr. Pierre failed to appear at Dr. Hohnecker’s office

on October 12, 2005, for his appointment for a Fit-For-Duty

examination.

34. Due to Mr. Pierre’s failure to appear for his

appointment, by letter dated October 14, 2005, Mr. Melita

directed Mr. Pierre to appear at his (Mr. Melita’s) office on

Tuesday, October 25, 2005, at 9:00 a.m. to meet with Mr. Mijon

for a pre-disciplinary meeting, indicating that the purpose of

the pre-disciplinary meeting was Mr. Pierre’s

insubordination/noncompliance with School Board Policy 4004.

The letter further indicated, among other things, that

Mr. Pierre had failed to attend the mandatory appointment, as

directed, with Dr. Hohnecker for his Fit-For-Duty examination.

Moreover, the letter advised Mr. Pierre that his failure to

attend the meeting on October 25, 2005, would result in his

(Mr. Pierre’s) name being forwarded to the School Board for

“termination” of employment. The letter was addressed to

Mr. Pierre at the same address that was used by Mr. Mijon on the

letter dated September 27, 2005, and was sent to Mr. Pierre by

certified and regular U.S. mail. The certified letter was

returned but not for being unclaimed.

35. Subsequently, by letter dated November 7, 2005,

Mr. Melita informed Mr. Pierre that, due to a hurricane, the

meeting scheduled for October 25, 2005 was re-scheduled for

Monday, November 14, 2005, at 9:00 a.m., restating the purpose

for the meeting and the same information contained in the letter

dated October 14, 2005. The letter was sent to Mr. Pierre by

certified and regular U.S. mail, at the same address that was

used by Mr. Mijon on the letter dated September 27, 2005.

36. Mr. Pierre, accompanied by his counsel, attended the

meeting on November 14, 2005. Mr. Elias was also present at the

meeting for interpretation purposes only. At the meeting,

Mr. Pierre denied that he had received a telephone call on

October 3, 2005, regarding Mr. Mijon obtaining a list of Creole-

speaking doctors for the Fit-For-Duty evaluation and the

consequences for him (Mr. Pierre) not attending the meeting

scheduled for October 5, 2005, with Mr. Mijon.

37. At hearing, Mr. Pierre also testified that he did not

receive the telephone call on October 3, 2005, regarding the

meeting on October 5, 2005, and the consequences for his failure

to attend. The undersigned does not find Mr. Pierre’s testimony

to be credible.

38. The undersigned makes a finding of fact that

Mr. Pierre received the telephone call on October 3, 2005,

regarding the meeting on October 25, 2005, and the consequences

for his failure to attend.

39. Also, at hearing, Mr. Pierre testified that he did not

speak on the telephone with Mr. Mijon and Mr. Elias on

October 6, 2005, regarding the appointment with Dr. Hohnecker on

October 12, 2005, and the consequences for his failure to

attend. The undersigned does not find Mr. Pierre’s testimony to

be credible.

40. A finding of fact is made that Mr. Pierre received the

aforementioned telephone call on October 6, 2005, regarding the

appointment with Dr. Hohnecker on October 12, 2005, and the

consequences for his failure to attend.

41. At the meeting on November 14, 2005, Mr. Melita

determined that Mr. Pierre had presented no justifiable

explanation for his (Mr. Pierre’s) failure to attend the

appointment with Dr. Hohnecker on October 12, 2005, for the Fit-

For-Duty examination. Mr. Melita recommended termination of

Mr. Pierre’s employment with the School Board due to

insubordination and non-compliance with School Board Policy

4004. By letter dated November 30, 2005, sent by certified and

regular U.S. mail, Mr. Melita notified Mr. Pierre, among other

things, of the recommendation, the basis for the recommendation,

and the date (December 13, 2005) that the recommendation would

be submitted to the School Board for approval. Mr. Pierre

testified that he did not receive the letter dated November 30,

2005.

42. Regarding Mr. Pierre’s address on the letters from the

School Board sent by certified and regular U.S. mail, at

hearing, Mr. Pierre testified that, in 2004, he had moved from

the address reflected on the letters; that, after he was sent

home in September 2005, he was receiving his paychecks from the

School Board in the mail at his new 2004 address; and that,

around December 2005, he moved to Sarasota, Florida. The

evidence demonstrates that the certified letters were returned

but fails to demonstrate whether the letters sent by regular

U.S. mail were returned or not returned. Furthermore, the

evidence demonstrates and Mr. Pierre admits that he and his

counsel attended the re-scheduled pre-disciplinary meeting on

November 14, 2005, regarding Mr. Pierre’s

insubordination/noncompliance with School Board policy 4004, as

to Mr. Pierre’s failure to attend the mandatory appointment with

Dr. Hohnecker for his Fit-For-Duty examination. Mr. Pierre

testified that he and his counsel became aware of the meeting on

November 14, 2005, as a result of his counsel contacting

Mr. Melita, attempting to discover what issue the School Board

had with Mr. Pierre.

43. The undersigned finds Mr. Pierre’s testimony credible

regarding his addresses for 2004 and 2005. However, the

undersigned further finds that the failure of Mr. Pierre to

advise Mr. Mijon of his (Mr. Pierre’s) correct address at the

meeting on September 27, 2005 was unreasonable.

44. Mr. Pierre has not been employed since his termination

from the School Board.

45. Mr. Pierre has been consistently seeking employment

since his termination from the School Board.

46. At the time of the hearing, Mr. Pierre was suffering

from hypertension and depression for which is taking medication

for both. The evidence fails to demonstrate that Mr. Pierre was

suffering from these illnesses or taking medication for them at

the time that he was employed with the School Board.

47. The evidence fails to demonstrate that similarly

situated employees of the School Board were treated differently

or more favorably.

CONCLUSIONS OF LAW

48. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto, pursuant to Sections 760.11 and 120.569,

Florida Statutes (2008), and Subsection 120.57(1), Florida

Statutes (2008).

49. Section 760.10, Florida Statutes, provides in

pertinent part:

(1) It is an unlawful employment practice

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.

(b) To limit, segregate, or classify

employees or applicants 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, handicap, or

marital status.

50. The issue of whether the School Board discriminated

against Mr. Pierre in violation of the Florida Civil Rights Act

of 1992, as amended, is the only issue before the undersigned.

The issue as to whether the School Board terminated him for non-

discriminatory reasons, such as the School Board failing to

follow its own rules and policies in the termination process, is

not before the undersigned unless such failure was done

discriminatorily. The evidence fails to demonstrate that the

School Board failed to follow its rules and policies in

Mr. Pierre’s termination for discriminatory purposes.

51. A three-step burden and order of presentation of proof

have been established for unlawful employment practices.

McDonnell Douglas Corporation v. Green , 411 U.S. 792, 93 S. Ct.

1817, 36 L. Ed. 2d 688 (1973); Aramburu v. The Boeing Company ,

112 F.3d 1398, 1403 (10th Cir. 1997). The initial burden is

upon Mr. Pierre to establish a prima facie case of

discrimination. McDonnell Douglas , at 802; Aramburu , at 1403.

Mr. Pierre establishes a prima facie case of discrimination by

showing: (1) that he belongs to a protected group; (2) that he

was subjected to an adverse employment action; and (3) that his

employer treated similarly situated employees outside the

protected group differently or more favorably. McDonnell

Douglas , supra ; Holifield v. Reno , 115 F.3d 1555 (11th Cir.

1997); Aramburu , supra . See Kendrick v. Penske Transportation

Services , 220 F.3d 1220 (10th Cir. 2000) (similarly situated

employees need not be outside the protected group).

52. Once Mr. Pierre establishes a prima facie case, a

presumption of unlawful discrimination is created. McDonnell

Douglas , at 802; Aramburu , at 1403. The burden shifts then to

the School Board to show a legitimate, nondiscriminatory reason

for its action. McDonnell Douglas , at 802; Aramburu , at 1403.

If the School Board carries this burden, Mr. Pierre must then

prove by a preponderance of the evidence that the reason offered

by the School Board is not its true reason, but only a pretext

for discrimination. McDonnell Douglas , at 804; Aramburu , at

1403.

53. However, at all times, the ultimate burden of

persuasion that the School Board intentionally discriminated

against him remains with Mr. Pierre. Texas Department of

Community Affairs v. Burdine , 450 U.S. 248, 101 S. Ct. 1089, 67

L. Ed. 2d 207 (1981).

54. Applying the prima facie standards, the evidence

demonstrates that Mr. Pierre has satisfied the first two prongs

but failed to satisfy the third prong of the test. Mr. Pierre

has demonstrated that he belongs to a protected class (race,

color, sex, religion, national origin, age, and marital status)

and that he was subjected to an adverse employment action

(termination of employment). However, he failed to demonstrate

that the School Board treated similarly situated employees,

whether inside or outside the protected group, differently or

more favorably. Anderson v. WBMG-42 , 253 F.3d 561, 565 (11th

Cir. 2001); McGuinness v. Lincoln Hall , 263 F.3d 49, 53, 54 (2d

Cir. 2001); Kendrick , supra ; Holifield , supra at 1562;

Shumway v. United Parcel Service, Inc. , 118 F.3d 60, 64 (2d Cir.

1997).

55. Assuming Mr. Pierre had established a prima facie

case, the School Board has demonstrated a legitimate,

nondiscriminatory reason for its employment action of

terminating him. The School Board demonstrated that he failed

to attend a mandatory appointment for a Fit-For-Duty

assessment/examination, thereby, committing insubordination; a

valid reason for termination according to School Board Policy

4004.

56. Further, Mr. Pierre failed to demonstrate that the

School Board's reason for terminating him was not the true

reason, but a pretext for discrimination.

Handicap/Disability

57. Mr. Pierre also asserts that the School Board

discriminated against him on the basis of a perceived

disability. The School Board asserts that it took the action of

termination for a reason other than Mr. Pierre’s alleged

handicap/disability even though the School Board was in the

process of determining whether Mr. Pierre was suffering from a

mental disability through the Fit-For-Duty assessment. A panel

of the FCHR has decided that, in a situation as this, in which a

Respondent is alleging that it took its complained of adverse

employment action for reasons other than a Petitioner’s alleged

handicap/disability

[T]o establish a prima facie case of

handicap discrimination the Petitioner

[Mr. Pierre] must show: (1) [that he] is

handicapped; (2) that [he] performed or is

able to perform [his] assigned duties

satisfactorily; and (3) that despite [his]

satisfactory performance, [he] was

terminated. Swenson-Davis v. Orlando

Partners, Inc. , 16 F.A.L.R. 792, at 798

(FCHR 1993). If this burden is sustained,

the Respondent [School Board] must

articulate some legitimate nondiscriminatory

reason for its action. Hart v. Double

Envelope Corporation , 15 F.A.L.R. 1664, at

1673 (FCHR 1992). Once this is articulated,

the burden returns to the Petitioner

[Mr. Pierre] to demonstrate the Respondent

[School Board] intentionally discriminated

against the Petitioner [Mr. Pierre]. See

St. Mary’s Honor Center v. Hicks , 113 S. Ct.

2742 (1993).

O’Neill v. Sarasota County School Board , 18 F.A.L.R. 1129, at

1130 (FCHR 1994). The American with Disabilities Act (ADA)

that substantially limits one or more of the major life

activities of such individual; (B) a record of such impairment;

or (C) being regarded as having such an impairment.” Curruthers

v. BSA Advertising , 357 F.3d 1213, 1215 (11th Cir. 2004)

(citation omitted).

58. M. Pierre is "regarded as . . . ‘disabled’ if [his]

employer perceives [him] as having an ADA-qualifying disability,

even if there is no factual basis for that perception.

[citation omitted]. As with actual impairments, however, the

perceived impairment must be one that, if real, would limit

substantially a major life activity of the individual." Id. at

1216 (citations omitted).

59. A person is also "regarded as” being disabled by

meeting one of three conditions: "(1) has a physical impairment

that does not substantially limit major life activities but is

treated by an employer as constituting such a limitation; (2)

has a physical or mental impairment that substantially limits

major life activities only as a result of the attitude of an

employer toward such impairment; or (3) has no physical or

mental impairment but is treated by an employer as having such

an impairment.” Rossbach v. City of Miami , 371 F.3d 1354, 1359,

1360 (11th Cir. 2004) (citation omitted). In order to prevail

under this theory, the person "must show two things: (1) that

the perceived disability involves a major life activity; and (2)

that the perceived disability is ‘substantially limiting’ and

significant.” Id. at 1360 (citation omitted).

60. Mr. Pierre failed to demonstrate a prima facie case of

discrimination under the ADA. The evidence was insufficient to

demonstrate that he suffered from an ADA disability.

Furthermore, he failed to demonstrate that the perceived

disability (mental impairment) involved a major life activity

and that the perceived disability was substantially limiting and

significant.

61. Furthermore, as previously indicated, Mr. Pierre

failed to demonstrate that that the School Board's reason for

terminating him was not the true reason, but a pretext for

discrimination.

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 dismissing the discrimination complaint of

Antoine Daniel Pierre against the Broward County School Board.

DONE AND ENTERED this 31st day of July, 2008, in

Tallahassee, Leon County, Florida.

__________________________________

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of July, 2008.

ENDNOTE

1/ The School Board filed a Second Amended Proposed Recommended

Order.

COPIES FURNISHED:

Antoine Daniel Pierre

5688-25th Street Circle East

Bradenton, Florida 34203

Michael T. Burke, Esquire

Johnson, Anselmo, Murdoch, Burke,

Piper & Hochman, P.A.

2455 East Sunrise Boulevard, Suite 1000

Fort Lauderdale, Florida 33301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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.