08-004553 Felixberto A. Llevado vs. Sandestin Golf And Beach Resort Status: Closed Recommended Order on Wednesday, January 14, 2009.

Summary: Petitioner failed to establish that he had a disability and failed to establish that Respondent discriminated against him based on national origin.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FELIXBERTO A. LLEVADO, )

)

Petitioner, )

)

vs. ) Case No. 08-4553

)

SANDESTIN GOLF AND BEACH )

RESORT, )

)

Respondent. )

)

RECOMMENDED ORDER

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

on November 17, 2008, in Shalimar, Florida, before Susan B.

Harrell, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Felixberto A. Llevado, pro se

63 Oak Lane

Shalimar, Florida 32579

For Respondent: Brian S. Duffy, Esquire

Ashley Nicole Richardson, Esquire

McConnaughhay, Duffy, Coonrod,

Pope & Weaver, P.A.

Post Office Drawer 229

Tallahassee, Florida 32302-0229

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent discriminated

against Petitioner based on national origin and disability.

PRELIMINARY STATEMENT

On October 27, 2007, Petitioner, Felixberto A. Llevado

(Mr. Llevado), filed an Employment Complaint of Discrimination

with the Florida Commission on Human Relations (Commission),

alleging that Respondent, Sandestin Golf and Beach Resort

(Sandestin Resort), as his employer discriminated against him

based on his national origin and his disability. On July 30,

2008, the Commission issued a Notice of Determination: No

Cause, finding that there was no reasonable cause to believe

that an unlawful employment practice had occurred. Mr. Llevado

filed a Petition for Relief with the Commission on August 27,

2008.

On September 17, 2008, the Petition was filed with the

Division of Administrative Hearings by the Commission,

requesting that an Administrative Law Judge be assigned to

conduct a final hearing. The case was originally assigned to

Administrative Law Judge Suzanne Hood, but was transferred to

Administrative Law Judge Susan B. Harrell to conduct the final

hearing.

At the final hearing, Victor Villarama interpreted the

proceedings for Mr. Llevado. Mr. Llevado testified in his own

behalf and presented Petitioner’s Exhibits 1, 2, 3, 4, 6, 12,

16, 27, 32, 34, 35, 39, 48, 49, 51, 52, 53, and 62, which were

admitted in evidence. During the presentation of his case,

Mr. Llevado read extensively from prepared notes. To aid the

undersigned, the notes were admitted as Administrative Law Judge

Exhibit 1.

At the final hearing, Sandestin Resort called the following

witnesses: Barry Sayers, Terry Clemons, Jake Lehman, and

Colette Quinn. Respondent’s Exhibits 25, 34, 56, 57, and 59

were admitted in evidence.

The Transcript was filed on December 22, 2008. The parties

agreed to file their proposed recommended orders within ten days

of the filing of the Transcript. Mr. Llevado filed a post-

hearing submittal on December 29, 2008. Sandestin Resort filed

its Proposed Recommended Order on January 5, 2009. Both

submittals have been considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. Mr. Llevado was born in the Philippines and is a

naturalized citizen of the United States. In 1995, Mr. Llevado

began working for Sandestin Resort as an equipment operator at

the Burnt Pine Golf Course. Mr. Llevado’s duties included

mowing greens, raking bunkers, and other tasks related to the

maintenance of a golf course.

2. Mr. Llevado was part of a golf maintenance team. The

members of the team are cross-trained so that they are able to

do all the tasks necessary to maintain the golf course. None of

the team members receive extra compensation for doing a

particular task. The assignment for each team member is posted

at the beginning of the work day, which is 6:00 a.m., on a

chalkboard in the break room. The assignment of the tasks is

based on the tasks that are needed to be completed and the

personnel working each day.

3. Mr. Llevado’s supervisors were Barry Sayers, who was

the assistant superintendent of golf maintenance at the Burnt

Pine Golf Course, and Jake Leham, who was the director of golf

maintenance. Both Mr. Sayers and Mr. Leham considered

Mr. Llevado to be a good employee, who could perform all the

necessary tasks of an equipment operator.

4. During his employment with Sandestin Resort,

Mr. Llevado kept a diary. He noted in his diary that, in

April 2001, Mr. Sayers said bad words to him. Mr. Llevado did

not specify what the bad words were, but the interpreter at the

final hearing interpreted it to mean the words were probably

curse words. Mr. Sayers did not recall the incident. No

evidence was presented that Mr. Llevado was the only employee to

whom Mr. Sayers may have said bad words.

5. On August 22, 2002, Mr. Llevado received an Employment

Communication Notice, suspending him for one day without pay.

The offense was failing to complete his work as instructed and

leaving grass clippings in a bunker.

6. Two times during his employment with Sandestin Resort,

Mr. Llevado received an Employment Communication Notice

concerning his failure to abide by the company’s policy for

requesting leave time. The first occurrence was on September

26, 2003, and the second occurrence was on January 8, 2006. He

was suspended two days for the first occurrence, and no

disciplinary action was taken for the second occurrence.

7. On October 25, 2006, Mr. Llevado received his annual

performance evaluation. He met or exceeded expectations in all

categories except following instructions, where it was noted he

needed to improve. As a result of his evaluation, Mr. Llevado

was given a raise.

8. On October 26, 2006, Mr. Llevado reported to work and

found that he was assigned to mow the greens. Two employees

failed to come to work, and it was necessary to assign

Mr. Llevado the task of mowing greens. Mr. Llevado did not like

to mow greens and preferred to rake the bunkers. He requested

Mr. Sayers to allow him to rake the bunkers instead of mowing

the greens. Mr. Sayers refused and explained the reason why

Mr. Llevado was assigned to mow the greens.

9. Mr. Llevado refused to mow the greens. It was

7:00 a.m., and Mr. Sayers had to leave the maintenance building

to begin the work of the day. He left Mr. Lehman to deal with

Mr. Llevado. Mr. Lehman discussed the mowing of the greens with

Mr. Llevado, who requested to be paid more than his hourly wages

if he had to mow the greens. Mr. Lehman refused to pay him

additional money, and Mr. Llevado accused Mr. Lehman of

discriminating against him.

10. When Mr. Llevado accused Mr. Lehman of discriminating

against him, Mr. Lehman told Mr. Llevado that he would need to

speak to personnel in the human resources department. The human

resources department did not begin work until 8:30 a.m.

Mr. Lehman indicated that he would arrange a meeting with Sylvia

Hanks, the director of human resources. Mr. Lehman told

Mr. Llevado to clock out and go home until the meeting could be

arranged. Mr. Lehman told Mr. Llevado that he would be

compensated for the lost time, if Mr. Lehman erroneously told

Mr. Llevado to go home.

11. Mr. Llevado called his sister to come and get him.

Mr. Lehman instructed Mr. Llevado to wait in the break room for

his ride home from work. Mr. Llevado returned to the break room

to wait. While Mr. Llevado was in the break room, he was struck

on his head.

12. Terry Clemons, who is the administrative assistant to

Mr. Lehman, got to work around 7:00 a.m. on October 26, 2006.

When she came in the building, she saw Mr. Llevado sitting in

the break room. Approximately 15 minutes later, Mr. Llevado

came to her with a bleeding head and said that he had been hit

and someone was behind the door. Mr. Llevado had called

Sandestin Resort’s security office and reported the incident.

13. Mr. Llevado claims that he saw three men in uniforms

running away from the building after he had been hit. Personnel

from security were unable to locate anyone described by

Mr. Llevado as running from the building. The door to the break

room was a swinging door, and it is possible that Mr. Llevado

pushed the door, hitting someone behind the door, and causing

the door to swing back and hit him in the head.

14. The incident was reported to the Walton County

Sheriff’s Office. Mr. Llevado told the investigating officer

that he was attempting to exit the building through the swinging

door, and someone was on the other side of the door, and he was

hit in the head. Mr. Llevado claimed that he passed out as soon

as he was hit. If Mr. Llevado passed out as soon as he was hit,

it is difficult to reconcile his claim that he saw three

uniformed men running away from the building. The greater

weight of the evidence does not establish that Mr. Llevado was

attacked by employees of Sandestin Resort.

15. It is undisputed that Mr. Llevado did sustain an

injury in the break room of the Sandestin Resort on October 26,

2006. Mr. Llevado was treated at the emergency room for his

injuries.

16. Mr. Llevado came back to work the day after his injury

but left by midday, complaining that his head hurt.

17. Within a day or two of the incident, Mr. Llevado, his

sister, Mr. Lehman, and Mr. Sayers met with Ms. Hanks to discuss

the situation. At the meeting, Mr. Llevado indicated that he

thought that Mr. Lehman had fired him on October 26, 2006.

Mr. Llevado was assured that Mr. Lehman had no authority to fire

him and that he was not fired.

18. Mr. Llevado did not return to work after October 27,

2006. He requested and received workers’ compensation benefits

related to his injury.

19. By letter dated March 22, 2007, the human resources

office for Sandestin Resort advised Mr. Llevado that

Mr. Llevado’s physician had released Mr. Llevado to return to

work and that Sandestin Resort had a job available for him.

Mr. Llevado was told to report to work on March 28, 2007. By

letter dated March 26, 2007, Mr. Llevado advised Sandestin

Resort that he was aware that his physician had released him to

return to work, but that he was still experiencing headaches and

dizziness. Mr. Llevado also advised that he was seeking further

medical treatment.

20. By June 12, 2007, Mr. Llevado had not returned to work

at Sandestin Resort. By letter dated June 12, 2007, Sandestin

Resort advised Mr. Llevado that he had been on leave of absence

since November 28, 2006, and that he had exceeded Sandestin

Resort’s leave policy. Mr. Llevado was advised that if he was

able to return to work that he would need to submit a full

release from his medical provider. Mr. Llevado was also advised

that if he did not return to work by June 18, 2007, that his

employment would be terminated. Mr. Llevado never submitted a

medical release and never returned to work.

21. Sandestin Resort’s Employee Handbook provides that an

eligible employee may take up 12 weeks of unpaid medical leave

during any “rolling” 12-month period. The handbook further

provides that an employee who exceeds the 12-week medical leave

may be subject to termination of employment.

22. Mr. Llevado claims that on December 19, 2005,

Mr. Sayers told him that he was an illegal alien and that he

should go back to the Philippines. Mr. Sayers denied ever

telling Mr. Llevado that he should go back to the Philippines.

The greater weight of the evidence does not establish that

Mr. Lehman made the statement. Both Mr. Sayers and Mr. Lehman

have participated in discrimination prevention training.

Sandestin Resort employs many persons who have foreign

nationalities. Mr. Sayers has personally worked with many

people with varying nationalities.

23. Sandestin Resort gives each of its employees an

Employee Handbook, which describes the procedure an employee can

follow to report a claim of discrimination. If an employee

feels that he or she has been discriminated against, the

employee is to bring it to the attention of the employee’s

supervisor. If the supervisor is the subject of the claim of

discrimination, the employee may contact either the manager of

the human resources department or the vice president for human

resources. Mr. Llevado received the handbook. His personnel

file does not indicate that he made any claim of discrimination

to his supervisor or the human resources officer prior to

October 26, 2006.

24. Part of Mr. Llevado’s claim of discrimination is based

on an alleged disability. However, Mr. Llevado failed to

establish that he had a disability or that Sandestin Resort

perceived him to have a disability. Prior to his injury on

October 26, 2006, Mr. Llevado performed his work in a

satisfactory manner. He never asked Sandestin Resort for any

type of accommodation for his alleged disability. Mr. Llevado

contends that he is unable to work because of the injury he

sustained on October 26, 2006, and that he has not sought work

since the incident. However, Mr. Llevado did not present any

medical evidence to establish that he is disabled.

CONCLUSIONS OF LAW

25. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2008).

26. Mr. Llevado contends that Sandestin Resort

discriminated against him because of his national origin and a

disability. Subsection 760.10(1)(a), Florida Statutes (2006), 1

provides:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail to refuse to

hire any individual, or otherwise

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.

27. The Florida Civil Rights Act of 1992, Section 760.01,

et seq. , Florida Statutes, is modeled after Title VII of the

Civil Rights Act of 1964, 42 U.S.C. Section 2000, et seq. ;

therefore, case law interpreting Title VII is also relevant to

cases brought under the Florida Civil Rights Act. Florida

Department of Community Affairs v. Bryant , 586 So. 2d 1205, 1209

(Fla. 1st DCA 1991).

28. The Florida Civil Rights Act of 1992, Section 760.01,

et seq. , Florida Statutes, is construed in accordance with the

Americans with Disabilities Act (ADA), 42 U.S.C. Section 12101,

et seq. , when the charge of discrimination is based on a

disability. Razner v. Wellington Regional Medical Center, Inc. ,

837 So. 2d 437, 440 (Fla. 4th DCA 2002); McCaw Cellular

Communications of Florida, Inc. v. Kwaitek , 763 So. 2d 1063

(Fla. 4th DCA 1999); Greene v. Seminole Electric Co-op, Inc. ,

701 So. 2d 646 (Fla. 5th DCA 1997).

29. To be eligible for relief based on a claim of handicap

discrimination, a petitioner must satisfy the same evidentiary

burdens demanded by similar statutes addressing claims of

employment discrimination. See Earl v. Mervyns, Inc. , 207 F.3d

1361, 1365 (11th Cir. 2000); Hilburn v. Murata Elecs. North

America, Inc. , 181 F.3d 1220, 1226 (11th Cir. 1999). The

burden-shifting analysis of Title VII employment discrimination

claims is applicable to claims based on handicap discrimination.

Earl , 207 F.3d at 1365.

30. In a discrimination case, the petitioner has the

initial burden of establishing a prima facie case of

discrimination. McDonnell Douglas Corp. v. Green , 411 U.S. 792,

93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). If the petitioner

proves a prima facie case of discrimination, the burden shifts

to the employer to proffer a legitimate, non-discriminatory

reason for the action it took. Texas Department of Community

Affairs v. Burdine , 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d

207 (1981). The employer’s burden is always one of production,

not persuasion, as it always remains the petitioner’s burden to

persuade the fact finder that the proffered reason is a pretext

and that the employer intentionally discriminated against the

petitioner. Id. at 252-256.

31. In order to establish a prima facie case of

discrimination, Mr. Llevado must establish the following:

(1) he is a member of a protected class; (2) he suffered an

adverse employment action; (3) he is qualified for the job at

issue; and (4) similarly situated employees outside the

protected class were treated more favorably. Kelliher v.

Veneman , 313 F.3d 1270, 1275 (11th Cir. 2002).

32. No evidence was presented that Mr. Llevado had any

disability prior to October 26, 2006, or that Sandestin Resort

perceived him to have a disability prior to that date. If

Mr. Llevado contends that he is disabled because he has

headaches and is dizzy, he has failed to demonstrate that he has

a disability or that Sandestin Resort perceived him to have a

disability. No medical evidence was presented to show that

Mr. Llevado was disabled, and Mr. Llevado admitted that by

March 22, 2007, his physician had released him to return to

work. Mr. Llevado has failed to establish the first prong of a

prima facie case of discrimination based on disability.

33. Regarding his claim of discrimination based on

national origin, Mr. Llevado has established that he is a member

of a protected class. He was born in the Philippines. He has

established that he suffered an adverse employment action. He

was terminated from his employment. Prior to October 26, 2006,

there is no dispute that Mr. Llevado was qualified to do the job

of an equipment operator. According to Mr. Llevado, he is no

longer able to perform the functions of an equipment operator.

He did not establish what, if any, accommodations would enable

him to work as an equipment operator. However, there is no

medical evidence to establish that as of the date of his

termination that Mr. Llevado could work as an equipment

operator. No evidence was presented to demonstrate how

similarly situated employees outside the protected class were

treated. No evidence was established to show that there was a

causal connection between Mr. Llevado’s national origin and his

termination.

34. Sandestin Resort terminated Mr. Llevado for

legitimate, nondiscriminatory reasons. He was terminated

because he did not return to work when requested after having

exceeded the 12-week medical leave policy.

35. In his post-hearing submittal, Mr. Llevado appears to

be requesting compensation for the pain and suffering that he

sustained as a result of the injury that occurred on October 26,

2006. No evidence was presented to establish that the injury

that he sustained on October 26, 2006, was in any way related to

Mr. Llevado’s national origin or any disability. The greater

weight of the evidence did not establish that the injury was an

intentional injury caused by any employee of Sandestin Resort.

36. Mr. Llevado has failed to establish that Sandestin

Resort committed an unlawful employment practice against him by

discriminating against him based on his national origin or a

disability.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered finding

that Sandestin Golf and Beach Resort did not discriminate

against Mr. Felixberto A. Llevado based on national origin or

disability and dismissing the Petition for Relief.

DONE AND ENTERED this 14th day of January, 2009, in

Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of January, 2009.

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2006 version.

COPIES FURNISHED :

William T. Krizner, Esquire

The Krizner Group

1709 Hermitage Boulevard, Suite 202

Tallahassee, Florida 32308-2329

Brian S. Duffy, Esquire

Ashley Nicole Richardson, Esquire

McConnaughhay, Duffy, Coonrod,

Pope & Weaver, P.A.

Post Office Drawer 229

Tallahassee, Florida 32302-0229

Felixberto A. Llevado

63 Oak Lane

Shalimar, Florida 32579

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry Kranert, 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.