09-000981 Michael L. Coyle vs. Karen E. Rushing, Sarasota County Clerk Of Circuit Court Status: Closed Recommended Order on Wednesday, February 24, 2010.

Summary: Petitioner was not terminated because of his age or disability, but because he violated policy regarding use of computers.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL L. COYLE, )

)

Petitioner, )

)

vs. ) Case No. 09-0981

)

KAREN E. RUSHING, SARASOTA )

COUNTY CLERK OF CIRCUIT COURT, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held in this case before Carolyn S.

Holifield, Administrative Law Judge of the Division of

Administrative Hearings, on July 30 and July 31 and August 17,

2009, by video teleconference at sites in Sarasota and

Tallahassee, Florida.

APPEARANCES

Petitioner: Gary D. Wilson, Esquire

Jill S. Schwartz and Associates, P.A.

180 North Park Avenue, Suite 200

Winter Park, Florida 32789

Respondent: Maria D. Korn, Esquire

Sarasota County Attorney's Office

1660 Ringling Boulevard, Second Floor

Sarasota, Florida 34236

STATEMENT OF THE ISSUE

The issue is whether Respondent, as a covered employer

under the Florida Civil Rights Act, Sections 760.01 through

760.11, Florida Statutes (2008), 1 committed an unlawful

employment practice against Petitioner.

PRELIMINARY STATEMENT

On or about July 25, 2008, Petitioner, Michael L. Coyle,

("Petitioner"), filed a Complaint of Discrimination

("Complaint") with the Florida Commission on Human Relations

("Commission"). The Complaint alleged that Respondent, Karen E.

Rushing, Clerk of Circuit Court and County Comptroller

("Respondent" or "Clerk"), discriminated against him based on

his age and handicap, in violation of the Florida Civil Rights

Act of 1992, as amended, Section 760.10, Florida Statutes. On

or about January 14, 2009, the Commission issued a No Cause

Determination.

Petitioner challenged the No Cause Determination, and on

February 16, 2009, filed a Petition for Relief ("Petition") with

the Commission. The Petition alleged that Respondent engaged in

an unlawful employment practice by discriminating against

Petitioner based on his age and disability.

On February 19, 2009, the Commission referred the matter to

the Division of Administrative Hearings ("DOAH") to conduct the

hearing requested by Petitioner.

The hearing was initially scheduled for April 14 and 15,

2009, but was rescheduled and held as noted above, after the

parties' Joint Motion for Continuance was granted.

Prior to hearing, the parties filed a Joint Pre-hearing

Stipulation and included "admitted facts," which required no

proof at hearing. At the final hearing, Petitioner testified on

his own behalf and presented the testimony of seven witnesses;

and Respondent presented the testimony of two witnesses. Joint

Exhibits A through G, I and J, Petitioner's Exhibits A through C

and E through J, and Respondent's Exhibit C were admitted into

evidence.

The five-volume Transcript of the hearing was filed on

August 31, 2009. At the conclusion of the hearing, the parties

agreed to file proposed recommended orders ten days from the

date the transcript was filed. Prior to that date, the time for

filing post-hearing submittals was extended twice upon the

requests of the parties. Petitioner's Proposed Recommended

Order and Respondent's Proposed Recommended Order and

Post-Hearing Brief were timely filed under the extended time

frame and have been considered in preparation of this

Recommended Order.

FINDINGS OF FACT

The Parties

1. Respondent is a constitutional officer and employer

subject to the jurisdiction of the Florida Civil Rights Act.

2. On or about July 2, 2001, Respondent, upon the

recommendation of Tom Kay, then director of Respondent's

Information Technology ("IT") Department, hired Petitioner as a

desktop support analyst in the IT Department. The desktop

support analyst position, like all positions with Respondent, is

an at-will position.

3. Petitioner was 64 years of age when he was hired by

Respondent.

4. During his initial years of employment with Respondent,

until about late 2005, Petitioner reported to and was supervised

by Mr. Kay. After Mr. Kay resigned in November or December

2005, Petitioner reported to Greg Brock, the IT director.

5. Throughout his employment as an IT desktop support

analyst, Petitioner was knowledgeable regarding computer

applications and his employer's policies regarding use of

computers. The essential functions of the desktop analyst

position included adhering to and following the principles of

the Clerk's Office, and complying with and supporting the

mission of the Clerk's Office and the goals and objectives of

the IT Department.

The Policies and Guidelines

6. Respondent established detailed Information Security

Policy Guidelines regarding the use of network resources.

Section 5.6 of the Security Guidelines prohibits employees from

using network resources for "obscene or suggestive messages or

offensive graphical images." Additionally, Section 5.7 of the

Guidelines prohibits employees from deliberately downloading or

uploading certain materials, including materials of a "sexually

explicit nature" or "material which adversely affects the

employee's or user's ability to do his or her job or . . . the

[Clerk's] office's ability to carry out its assigned mission."

7. Respondent developed and approved a Personnel Handbook

which governs, among other matters, employee use of various

types of equipment. Section 1.16 addresses the "Care and Use of

Equipment," including computers, Internet access and email,

which are the property of the Clerk's Office. The policy

prohibits employees from using those computers for personal

purposes and, specifically, prohibits the use of such equipment

in ways "that may be disruptive, offensive, or harmful to

morale." Section 1.16 further provides that Respondent's

objective with regard to this policy is "to maintain a workplace

free from harassment and sensitive to the diversity of its

employees."

IT Team Building Exercises

8. While IT director, Mr. Kay instituted sports-based

office games for team-building. Mr. Kay believed that these

activities would boost morale, promote camaraderie, and

facilitate communication among staff in the office. Mr. Kay

considered the team-building activities to be an effective tool

in leading a group of IT people, who typically are introverted

by nature, prone to going to their "corners," and not

interacting very much.

9. JeanMarie Walsh, then assistant to Mr. Kay, coordinated

some of the team-building activities, including the fantasy

football game. While serving in that capacity, Ms. Walsh

prepared football pool ballots at lunchtime on Friday for Monday

morning bragging rights and temporary use of a team hat. She

also occasionally used the office computer for email reminders

and did so at the direction of Mr. Kay, believing it was not

inconsistent with the Clerk's Office policies.

10. The sports "picks" were done primarily during off-duty

times and involved only incidental (five to ten minutes a day)

use of staff time or the Clerk's Office equipment. This

incidental use of equipment in connection with authorized

team-building activities did not constitute unauthorized

personal use of Respondent's equipment.

11. Mr. Kay opined that the team building activities and

use of staff and equipment in connection with those activities

were within his rights as IT director.

12. The Chief Deputy Clerk, Janet Cantees ("Chief Deputy

Cantees"), knew that the IT Department employees participated in

the sports-based team-building exercises initiated and

implemented by Mr. Kay. Furthermore, at no time were these

team-building activities proscribed by the employer.

13. Respondent was generally aware of the team-building

exercises in the IT Department and cautioned Mr. Kay to make

sure no money was involved in the activities. She also advised

him that employee participation in the team-building exercises

was to be on a purely voluntary basis.

14. In accordance with Respondent's instructions, no money

was exchanged in regard to these sports team-building

activities, and no IT employee was required to participate in

the sports activities.

15. The team-building sports activities in the IT

Department concluded prior to July 2007.

16. The use of team-building exercises is not unique to

the IT Department, but is used with other employees in the

Clerk's Office. For example, Chief Deputy Cantees had developed

and used other team-building exercises for managers and staff

who worked in different locations in the county.

17. Some IT employees also participated in a "Clerk Shirt

Everyday" activity, which was to encourage employees to wear

their official "clerk shirts." The person who wore a "clerk

shirt" that was a color not worn by anyone else that day was the

winner of the activity. The winner was given one or two dollars

by each participating employee to buy donuts the next day for

the work group.

Policy Violation Related to Use of Computers

18. In or about early July 2007, Ms. Walsh, an employee in

the IT Department telephoned Petitioner from her office. After

he did not answer his phone, Ms. Walsh went to Petitioner's work

area where she observed him on the computer in the Miami

Hurricane football chat rooms. Ms. Walsh then reported to IT

Director Brock that Petitioner was not answering his phone and

told him what she had observed.

19. On or about July 5, 2007, after Ms. Walsh reported

seeing Petitioner in the Miami Hurricane chat rooms, Mr. Brock

had Petitioner come to his office. Mr. Brock then told

Petitioner that he should not be visiting what Brock believed to

be the Miami Hurricanes football web chat rooms on Respondent's

computer. During this meeting, Petitioner denied that he had

visited such chat room as had been reported.

20. On or about July 25, 2007, while in the area in which

Petitioner worked, Ms. Walsh observed Petitioner at his

computer. At that time, Ms. Walsh saw an inappropriate image on

Petitioner's 24-inch computer screen. The inappropriate image

was in clear view of Ms. Walsh and any other employee present in

the adjacent working area. When Ms. Walsh saw the inappropriate

image, she was concerned that a female vendor working nearby

might be exposed to the explicit image.

21. Ms. Walsh was embarrassed and shocked by the image she

saw on Petitioner's computer screen and, thus, said nothing to

Petitioner. Instead, Ms. Walsh immediately reported what she

had witnessed to Mr. Brock.

22. When Ms. Walsh initially told Mr. Brock about the

image she had witnessed on Petitioner's computer screen, she

described it as "offensive" to "a woman." During their brief

conversation about the image on Petitioner's screen, Ms. Walsh

was uncomfortable and embarrassed talking about the image. As a

result, neither Mr. Brock, nor Ms. Walsh discussed the image in

any detail other than confirming it was of a sexual nature.

23. On July 25, 2007, after Ms. Walsh complained about the

inappropriate image on Petitioner's computer screen, Mr. Brock

conducted an inspection of Petitioner's computer. As a result

of that inspection, Mr. Brock found on the hard drive two

offensive photos, referenced as "Jugsy.jpg" and

"cheappussy.jpg."

24. The "Jugsy.jpg" photo found in Petitioner's computer

depicts a young woman, mouth open, clad in a bra or bikini top,

clutching her breasts, most of which were exposed, and pushing

them together.

25. The "cheappussy.jpg" photo found in Petitioner's

computer depicts a man holding or dangling a hairless cat, which

appears to be dead, in the air by its head.

26. The offensive photos were found among other photos

depicting Petitioner and his friends, and/or acquaintances of

his, engaged in social or sports activities, including the

University of Miami Hurricane events. The offensive photos

found by Mr. Brock were located in a place on Petitioner's

computer associated with his user name/login and were copied to

the computer into Petitioner's profile or personal directory.

Furthermore, based on Mr. Brock's inspection, there was no

indication that the offensive pictures had been tampered with or

modified by anyone else.

27. At all times relevant hereto, there were ten or eleven

employees in the IT Department, all of whom had administrative

passwords that allowed them to access any of the Clerk's Office

computers. The IT employees needed this access in order to

perform their authorized job responsibilities. Because the IT

employees had access to all computers, it is possible that any

IT employee could have accessed Petitioner's computer. However,

there is no evidence that this ever occurred.

28. At all times relevant hereto, Mr. Brock had the

experience and expertise to run a report of computer activity

and to conduct a forensic analysis of Petitioner's computer to

determine the history of the images. However, based on the

findings of Mr. Brock's initial investigation of Petitioner's

computer, he determined that such analysis or report was not

necessary.

29. On July 26, 2007, Mr. Brock showed Ms. Walsh the

images he found saved in Petitioner's computer. At that time,

Ms. Walsh identified the picture labeled "Jugsy.jpg" as the

offensive image she had seen on Petitioner's computer.

30. At this proceeding, Ms. Walsh testified that the image

she saw on Petitioner's computer screen in July 2007 was a

topless female in partially unzipped jean shorts.

31. Undoubtedly, there is a difference in the image

Ms. Walsh described in her testimony, which was two years after

the incident, and the "Jugsy.jpg" photo she identified the day

after she saw the image. This difference or discrepancy may be

attributed to several factors including the following: (1) the

lapse of time, two years, between Ms. Walsh's seeing the image

and testifying at this proceeding; (2) the brief time that

Ms. Walsh actually saw the image on Petitioner's screen; and/or

(3) the brief time she looked at the "Jugsy.jpg" photo when it

was shown to her by Mr. Brock.

32. Notwithstanding the foregoing difference in

Ms. Walsh's description of the image she saw on Petitioner's

computer screen and the photo she identified as that image,

Ms. Walsh's testimony that she saw an offensive image of a woman

on Petitioner's computer screen is found to be credible.

Significantly, Ms. Walsh's complaint led to an investigation,

which found that there were offensive photos stored in

Petitioner's computer (the one provided to him by the Clerk's

Office).

Decision to Terminate Petitioner's Employment

33. In personnel matters regarding employment termination,

the process begins with the unit manager or director discussing

and reviewing the situation with Edith Peacher, manager of Human

Resources ("HR"). After the matter is reviewed, the director or

manager typically makes a recommendation in consultation with

HR Manager Peacher. That recommendation is then conveyed to

Chief Deputy Cantees, a key decision maker, who reviews the

matter and then communicates her decision/recommendation to

Respondent. Ultimately, Respondent has "veto authority" over

the recommendation and/or decision of the chief deputy clerk.

34. Consistent with Respondent's personnel practices,

after Ms. Walsh identified the picture that she believed she saw

on Petitioner's computer screen, Mr. Brock conferred with the

HR manager. During the meeting with HR Manager Peacher,

Mr. Brock advised her of Ms. Walsh's complaint, his

investigation, and the photos he had retrieved from Petitioner's

computer. Mr. Brock also told HR Manager Peacher that a few

weeks before, he had spoken to Petitioner about using his

computer to go to chat rooms.

35. HR Manager Peacher, with input from Mr. Brock, drafted

a Termination Notice dated July 26, 2007, for violations of the

Clerk's Office's policies, procedures and professional conduct

and standards. HR Manager Peacher then recommended to Chief

Deputy Cantees that Petitioner's employment be involuntarily

dismissed from the Clerk's employ.

36. The July 26, 2007, Notice of Termination cited the

prior disciplinary action; the July 5, 2007 verbal counseling;

and references the two photos/images described in paragraphs

24 and 25 as deliberate and inappropriate use by an IT employee

of the Clerk's Office computer equipment, justifying termination

of employment.

37. Section 4.02 of the Clerk's Personnel Handbook

provides that "[e]mployment with the Clerk . . . is on at will

basis," but states that "the Clerk may utilize progressive

discipline in an effort to work with the employee." Under this

provision, the option of using progressive discipline is

discretionary, not mandatory.

38. In the instant case, HR Manager Peacher believed that

the display of offensive images on Petitioner's computer screen

was an "egregious" situation and one which warranted immediate

termination.

39. On July 26, 2007, Mr. Brock and HR Manager Peacher met

with Petitioner and reviewed the Notice of Termination and the

pending recommendation for dismissal with Petitioner. When

confronted with the allegation regarding the offensive images

found in his computer, Petitioner stated "matter of factly" that

someone "may" have placed the photos on his computer. However,

he offered no reason for his implication that someone else "may"

have tampered with his computer. Nonetheless, HR Manager

Peacher told Petitioner that Respondent could investigate and

find out if someone else had placed the images in his computer,

but Petitioner did not request further investigation.

40. At the July 26, 2007, meeting, Petitioner signed the

Notice of Termination and indicated that he "read the Notice but

did not agree with it in any way, shape or form."

41. HR Manager Peacher conveyed to Chief Deputy Cantees

the substance of the meeting with Petitioner and her belief that

no errors of fact had occurred. After listening to HR Manager

Peacher's presentation of the facts, Chief Deputy Cantees asked

HR Manager Peacher and Mr. Brock several follow-up questions

about the incident (i.e., the validity of the complaint, if and

how Petitioner's computer had been checked, etc.). Chief Deputy

Cantees was satisfied with the information HR Manager Peacher

provided to her, as well as the responses to her questions that

were provided by HR Manager Peacher and Mr. Brock.

42. Both HR Manager Peacher and the Chief Deputy Cantees

relied on Mr. Brock's experience and expertise in computer

forensics in determining the origin of the offensive images

found on Petitioner's computer.

43. Based on her discussions with HR Manager Peacher and

Mr. Brock and her review of the record, Chief Deputy Cantees

concurred with the recommendation of termination and the Clerk

gave final approval.

44. Petitioner was 71 years old when he was terminated

from his employment with Respondent.

45. The person hired to replace Petitioner was an

individual estimated to be in the mid-40 to mid-50 range.

46. Prior to the incident involving Petitioner, neither

Respondent, nor the HR manager had received reports of, or knew

of incidents of, employees having inappropriate (sexual) images

on their computers. Therefore, no employees in the Clerk's

Office have ever been disciplined for that offense.

Medical Condition of Petitioner

47. In 2002, Petitioner was diagnosed with a melanoma that

required office surgery and other pre-cancerous lesions that

also required treatment. The surgery and all other treatments

were performed in the doctor's office and required no

hospitalization.

48. Between 2002, when he was first diagnosed with a

melanoma and through July 2007, Petitioner has continued to be

treated for skin cancer. During this five-year period,

Petitioner's condition and his treatments for that condition

have not significantly affected or, otherwise, limited

Petitioner's ability to work or to engage in most activities.

49. During the five-year period since he was diagnosed

with skin cancer, Petitioner had regular check-ups, some of

which may have resulted in his doctor's performing certain

in-office medical procedures. Other than those in-office

procedures, Petitioner's treatment for his condition consists of

applying various salves, creams, and/or lotions to his skin.

Finally, as a result of his medical condition, Petitioner had

been directed to stay out of the sun.

50. Because Petitioner must now stay out of the sun, he is

no longer able to participate in daytime activities that he

previously enjoyed doing and/or had been able to do (i.e., going

to the beach and to his grandson's soccer and softball games).

51. During his employment with the Clerk's IT Department,

Petitioner never requested leave under the Family Medical Leave

Act. Moreover, there is no indication that his medical

condition affected his attendance at work. In fact, between

January and July 2007, Petitioner saw his physician only about

six times.

52. Petitioner never notified Respondent, Mr. Brock, or

Chief Deputy Cantees that he had skin cancer. Furthermore, none

of them knew or suspected that Petitioner had skin cancer or any

other medical condition. Finally, Petitioner's co-workers were

unaware of his medical condition.

53. While employed in the IT Department, Petitioner had

several conversations with HR Manager Peacher. Petitioner

recalled that during one of those conversations, HR Manager

Peacher referred him to a dermatologist or assisted him with a

medical referral. At this proceeding, HR Manager Peacher did

not recall giving Petitioner the name of a dermatologist, but

acknowledged that she may have done so. HR Manager Peacher

explained that she speaks to numerous employees throughout the

workday about various personnel-related matters and provides

them with such assistance when requested to do so.

54. Despite having several discussions with Petitioner

during his employment with the Clerk's Office, HR Manager

Peacher was unaware of his medical condition.

Alleged Disability Discrimination

55. Respondent conducted general meetings with employees

every other month. During those meetings, Respondent covers a

variety of topics with employees, all of which are on a printed

agenda and later sent to employees by e-mail.

56. The Agenda for the June 22, 2007, employee meeting

included a three-page overview of the employee compensation

package offered to Respondent's employees that included the

following introductory statement: "Part of offering a

competitive benefits plan is being proactive in maintaining a

healthy lifestyle. Each of us must take the responsibility to

live healthy lives, and, in return, our insurance costs will be

minimized." During that meeting, Respondent read that language

verbatim.

57. In reading the above-quoted language, Respondent's

intent was to encourage employees to address "preventable

issues," such as smoking, overeating, and not exercising.

However, in the charging document, Petitioner alleges that the

above-quoted language meant Respondent wanted to hire only

"healthy employees."

58. Petitioner's interpretation distorts and misconstrues

the above-quoted comments made by Respondent. Further, there is

no evidence to support Petitioner's allegation that Respondent

wanted to hire only healthy employees. Also, those comments do

not, in any way, relate or refer to employees with disabilities

and cannot reasonably be construed to do so.

Claim of Age Discrimination

59. Petitioner received such inquiries periodically and

complained about the practice from time to time. For example,

in a June 8, 2007, email to HR Manager Peacher, Petitioner

complained about a phone call from ACS Recovery Service ("ACS"),

a third-party health benefits coordinator. Petitioner perceived

the ACS inquiries regarding Medicare eligibility as age

discrimination.

60. Sarasota County Government Benefits Manager Steve

Marcinko testified credibly that ACS provides coordination of

benefits services for Aetna, Sarasota County Government's

third-party administrator. To carry out its responsibility, ACS

is authorized to contact the employees to determine whether

alternate insurance coverage, including Medicare, may be

available to cover a claim that is otherwise the responsibility

of the Sarasota County Government.

61. Among those contacted by ACS are group health plan

participants who are "post-65 and Medicare-eligible." The

purpose of these contacts is to verify whether the participants

are "active" or "retired" employees. Such verification assists

in determining whether the group health plan or Medicare has

primary or secondary responsibility for the benefits of those

individuals.

62. The inquiries by ACS are not age-based, except as they

relate to an individual's Medicare eligibility, and are not

conducted at the direction of the Clerk. When conducting these

inquiries, ACS does not copy the individual's employer or former

employer about such inquiries.

CONCLUSIONS OF LAW

63. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. See §§ 120.569, 120.57(1) and 760.11, Fla. Stat.

(2009).

64. Sections 760.01 through 760.11 and 509.092, Florida

Statutes, comprise the Florida Civil Rights Act of 1992.

§ 760.01(1), Florida Statutes.

65. The Florida Civil Rights Act of 1992, as amended,

makes it an unfair employment practice for an employer to

discharge or otherwise to discriminate against any individual

because of such individual's age or handicap. § 760.10(1)(a),

Fla. Stat.

66. Respondent is an "employer" as defined in Subsection

760.02(7), Florida Statutes.

67. Petitioner alleges that Respondent terminated his

employment solely because of his handicap/disability and age.

68. The Supreme Court of the United States established the

analysis to be used in cases alleging discrimination in

McDonnell-Douglas Corporation vs. Green , 411 U.S. 792 (1973),

and Texas Department of Community Affairs vs. Burdine , 450 U.S.

248 (1981). The analysis was reiterated and refined in

St. Mary's Honor Center vs. Hicks , 509 U.S. 502 (1993).

Pursuant to this analysis, Petitioner has the burden of

establishing a prima facie case of unlawful discrimination by a

preponderance of the evidence. If a prima facie case is

established, Respondent, the employer, must articulate some

legitimate, non-discriminatory reason for the action it took

against Petitioner. After Respondent offers a non-

discriminatory reason for its action, the burden then shifts

back to Petitioner to demonstrate that the offered reason is

merely a pretext for discrimination.

Claim of Handicap/Disability Discrimination

69. Disability discrimination claims under the Florida

Civil Rights Act are analyzed under the same framework as ADA

claims made pursuant to the Americans With Disabilities Act of

1990 ("ADA"). D'Angelo v. ConAgra Foods, Inc. , 422 F.3d 1220

(11th Cir. 2005). Thus, the provisions of Chapter 760, Florida

Statutes, are analogous to those of the ADA.

70. The definition of "handicap" in the Florida Civil

Rights Act is similar to the definition of "disability" in the

ADA, 42 U.S.C.A. Section 12101 through 12213. 2 Under the ADA,

the term "disability" means:

(a) A physical or mental impairment that

substantially limits one or more of the

major life activities of such individual;

(b) A record of such an impairment;

(c) Being regarded as having such an

impairment.

See 29 C.F.R. § 1630.2(g); and § 760.22(7), Fla. Stat.

71. In a disability discrimination case, the petitioner

has the initial burden of proving a prima facie case of

discrimination under the ADA by establishing that: (1) he has a

disability under the Florida Civil Rights Act; (2) that he is a

qualified individual, meaning he is able to perform the

essential functions of the position with or without

accommodation; and (3) that he was discharged because of a

disability. See Terrell v. US Air , 132 F.3d 621, 624 (11th Cir.

1998).

72. The ADA identifies three categories of disability that

place an individual within the statute's protections. In order

to be disabled as defined by the ADA, a person: (1) must have a

physical or mental impairment that substantially limits one or

more of the major life activities of such individual; (2) must

have a record of such impairment; or (3) must be regarded as

having such impairment. See 42 U.S.C. § 12102(2).

73. Factors to consider when determining whether an

individual is "substantially limited" include: (1) the nature

and the severity of the impairment; (2) the duration or expected

duration of the impairment; and (3) the permanent or long-term

impact, or the expected permanent or long-term impact of or

resulting from the impairment." See 29 C.F.R. § 1630.2(j)(2).

74. An impairment that only has a minor interference in

major life activities does not qualify as a disability. Toyota

Motor Mfg., Ky., Inc. v. Williams , 534 U.S. 184 (2002). 3 The ADA

Amendments Act of 2008 specifically found that this case

narrowed the broad scope of protection intended to be afforded

by the ADA and rejected the Court's interpretation of the term

"substantially limits" to require a greater degree of limitation

than was intended by Congress. P.L. 110-325 (a)(7). However,

the ADA Amendment Act of 2008 [Public Law 110-325] does not

apply retroactively and, thus, does not apply to this case. See

Colon-Fontanez v. Municipality of San Juan , 2009 U.S. Dist.

111865.

75. Upon consideration of the evidence, Petitioner failed

to establish he has a disability within the meaning of the

Florida Civil Rights Act and the ADA.

76. While it is undisputed that Petitioner has skin

cancer, Petitioner did not establish that: (1) the skin cancer

is a physical or mental impairment that limits one or more of

his major life activities of such individual; (2) he had a

record of such impairment; or (3) he was regarded as having such

impairment. Thus, Petitioner is found not to have a disability.

77. Having failed to satisfy the first prong required to

establish a prima facie case of disability discrimination,

Petitioner cannot establish that his employment was terminated

because of a disability.

78. Even if it is assumed that Petitioner met the first

prong of the test required to prove a prima facie case of

discrimination based on disability, his claim still fails.

Although it is undisputed that Petitioner met the second prong

of the test (i.e., he was qualified for the job), there is no

proof of the third prong, that Petitioner's employment was

terminated because of a disability.

79. Since Petitioner failed to prove a prima facie case of

discrimination, Respondent is not required to offer any

legitimate reasons for its decision to terminate Petitioner's

employment. Nonetheless, Respondent offered a legitimate reason

for its decision. That reason is clearly established in the

record. Respondent terminated Petitioner because he violated

Respondent's policies by having the offensive photos in his

computer. Petitioner failed to demonstrate that the reason

offered by Respondent was merely a pretext for discrimination.

Claim of Age Discrimination

80. Federal case law interpreting the Age Discrimination

in Employment Act ("ADEA") is generally applicable to age

discrimination claims arising under the Florida Civil Rights

Act. See Florida State Univ. v. Sondel , 685 So. 2d 923, (Fla.

1st DCA 1996). Accordingly, the United States Supreme Court's

McDonnell-Douglas burden-shifting paradigm is applied to cases

arising under the Florida Civil Rights Act. See Florida Dept.

of Community Affairs v. Bryant , 586 So. 2d 1205, 1209 (Fla. 1st

DCA 1991), citing McDonnell-Douglas Corp. v. Green , 411 U.S. 792

(1973).

81. Under the McDonnell-Douglas model, an individual

claiming that he/she was discharged because of his/her age

cannot establish even a prima facie case unless he can prove

that he/she was: (1) a member of the protected age group;

(2) discharged; (3) qualified to do the job; and (4) replaced by

a younger individual. Moreover, even if the claimant was

replaced by a younger person, he cannot establish a prima facie

case if the replacement was "insignificantly younger." See

O'Connor v. Consolidated Coin Caterers Corp. , 517 U.S. 308, 312

(1996).

82. If the claimant establishes a prima facie case of age

discrimination, the employer must at least articulate a

legitimate reason for the discharge. Once that has occurred,

however, the ultimate burden shifts back to the claimant to

prove, by a preponderance of the evidence, that this articulated

reason is merely a pretext for an age-based decision. See Texas

Dept. of Community Affairs v. Burdine , 450 U.S. 248 (1981).

83. The Commission has held that the Florida Civil Rights

Act unlike the ADEA, which protects only individuals over age 40

prohibits discrimination based on any age, from "birth to

death." See , e.g. , Marchinko v. Wittemann Co. , Case No. 05-2062

(DOAH November 1, 2005), FCHR Order No. 06-005 (January 6,

2006); Coffy v. Porky's Barbecue Restaurant , Case No. 04-4316

(DOAH March 18, 2005), FCHR Order No. 05-053 (May 18, 2005).

Unlike the federal statute, the Florida Civil Rights Act

prohibits favoring the old over the young, as well as the young

over the old. Id. As a result, the Commission has held that an

individual seeking to establish a prima facie case of age

discrimination need establish only that he was replaced by

someone of a "different" age, rather than someone younger. Id.

84. This conclusion does nothing to detract from the

common sense holding in O'Connor that the "difference" in age

between the person claiming age discrimination and his

replacement must be "significant."

85. Petitioner established a prima facie case of age

discrimination under Chapter 760, Florida Statutes: (1) he is a

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

employment action in that he was terminated from his job as a

desktop support analyst; (3) he was qualified to do that job;

and (4) there was a significant age difference between

Petitioner and the person who replaced him.

86. Petitioner having established all four elements

required under Chapter 760, Florida Statutes (2006), necessary

to prove a prima facie case, Respondent must articulate and

substantiate its legitimate reason for Petitioner's dismissal.

As noted above in paragraph 79, Respondent established that it

had a legitimate, non-discriminatory reason for terminating

Petitioner. That is, he was discharged because of violating

Respondent's policy regarding the use of computers on the job.

87. Petitioner did not establish that Respondent's

articulated and legitimate reason for his termination was a mere

pretext for age discrimination. Thus, Petitioner failed to

establish that he was discharged from his job because of his

age.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing Petitioner, Michael L. Coyle's,

Petition for Relief.

DONE AND ENTERED this 24th day of February, 2010, in

Tallahassee, Leon County, Florida.

S

CAROLYN S. HOLIFIELD

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 24th day of February, 2010.

ENDNOTES

1/ All statutory references are to Florida Statutes (2008),

unless otherwise noted.

2/ Pursuant to Public Law 110-325, the ADA of 1990 was

substantially amended and is now cited as the "ADA Amendments

Act of 2008." The ADA Amendments Act of 2008 went into effect

on January 1, 2009. Because the ADA of 1990 was effective when

the alleged discriminatory act occurred, that provision applies

to this case.

3/ See Endnote 2.

COPIES FURNISHED :

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

Gary D. Wilson, Esquire

Jill S. Schwartz & Associates, P.A.

180 North Park Avenue, Suite 200

Winter Park, Florida 32789-7401

Maria D. Korn, Esquire

Sarasota County Attorney's Office

1660 Ringling Boulevard, Second Floor

Sarasota, Florida 34236

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.