09-002547 Peter D. Tyler vs. Walt Disney World Status: Closed Recommended Order on Wednesday, April 20, 2011.

Summary: Petitioner's claim for discrimination based on failure to hire was time barred. Petitioner did not establish that Respondent retaliated by calling sheriff's office to arrest Petitioner for trespassing.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PETER D. TYLER , )

)

Petitioner , )

)

vs. ) Case No. 09 - 2547

)

WALT DISNEY WORLD , )

)

Respondent . )

)

RECOMMENDED ORDER

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

on October 29, 2010, in Orlando, Florida, before Susan B.

Harrell, a n Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Peter D. Tyler, pro se

Post Office Box 22315

Orlando, Florida 32830

For Respondent: Marilyn G. Moran, Esquire

Baker & Hostetler

Suntrust Center, Suite 2300

200 South Orange Avenue

Orlando, Florida 32802

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent u nlawfully

discriminated against Petitioner on the basis of a disability in

violation of the Florida Civil Rights Act of 1992 (FCRA), when

Respondent failed to hire Petitioner , and whether Respondent

retaliated against Petitioner in violation of the FCRA , w hen

Respondent issued Petitioner a trespass warning and later

notified law enforcement of Petitioner's presence on

Respondent's property, resulting in Petitioner's arrest for

Trespass After Warning.

PRELIMINARY STATEMENT

On October 27, 2008, Petitioner, Pe ter D. Tyler

(Mr. Tyler), filed a n E mployment C harge of D iscrimination dated

October 15, 2008, with the Florida Commission on Human Relations

(Commission), alleging that Respondent, Walt Disney World

(Disney), discriminated against him based on a disabilit y and

retaliated against him for complaining about discriminatory

practices. On April 9, 2009, the Commission iss ued a Notice of

Determination: No Cause, stating that the Commission had

determined that there was no reasonable cause to believe that an

unla wful employment practice had occurred.

On May 11, 2009, Mr. Tyler filed a Petition for Relief

(Petition) with the Commission. The Petition was forwarded to

the Division of Administrative Hearings for assignment to an

Administrative Law Judge. The case wa s originally assigned to

Administrative Law Judge Jeff B. Clark, but was later

transferred to Administrative Law Judge Susan B. Harrell.

The final hearing was originally scheduled for July 14,

2009. After five continuances, the case was heard on

October 29, 2010.

At the final hearing, Tara Roth - Mollinedo and Jesus Lopez,

sign language interpreters, interpreted the proceedings for

Mr. Tyler and for hearing - impaired witnesses.

Mr. Tyler testified in his own behalf and called Arden Bird

and Miriam P. Saunder s as his witnesses. Petitioner's

Exhibits 1 through 6 were admitted in evidence. Disney called

the following witnesses: Bekki Musee, Robin A. King, Patricia

Bryant, and Carolyn Truluck. Respondent's Exhibits 1 through 6

were admitted in evidence.

The one - volume Transcript of the final hearing was filed on

February 10, 2011. The parties agreed at the final hearing to

file their p roposed r ecommended o rders within ten days of the

filing of the Transcript. On February 15, 2011, a Joint Motion

for Two - Wee k Extension to Submit Proposed Orders was filed. The

motion was granted, and the time for submitt ing proposed

recommended orders was extended to March 7, 2011. Disney filed

its Proposed Recommended O rder on March 8, 2011. On March 7,

2011, Mr. Tyler fil ed a Motion Recommended Order to be

Extension. An Order was entered , extend ing the time to file

proposed recommended orders to March 11, 2011. On March 11,

2011, Mr. Tyler filed a Motion Requesting Continue to Extension

Recommended Order. The motion was granted, and Mr. Tyler filed

his Proposed Recommended Order on March 16, 2011. Mr. Tyler

attached numerous documents to his Proposed Recommended Order,

many of which were not admitted in evidence at the final

hearing. T hose documents which were not admitted in evidence

are stricken and have not been considered. The parties'

Proposed Recommended Orders have been given careful

consideration in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Mr. Tyler is he aring impaired.

2. Prior to moving to Florida in October 2005, Mr. Tyler

had worked for Disneyland in California for over two years. On

October 14, 2005, Mr. Tyler submitted an application for

employment with Disney in Orlando.

3. Mr. Tyler met with an employee of Disney with a sign

language interpreter present. Mr. Tyler was advised that he had

been "red flagged" as a result of his previous employment with

Disneyland. Being red flagged meant that Mr. Tyler was

considered to be a restricted rehire. Be cause he had left the

employ of Disneyland a few weeks before he applied for

employment at Disney, there was a question of his employment

stability. He was told that he needed to provide an employment

history of at least six months after he left Disneylan d's

employ.

4. On April 25, 2006, Mr. Tyler submitted a second

application for employment with Disney. On the application,

Mr. Tyler stated that he currently held two jobs. He had been

working at Macy's since November 2005 and at a 7 - 11 store

beginning in March 2006. However, Disney personnel concluded

that his current employment did not demonstrate employment

stability.

5. Mr. Tyler was given an interview by Disney with a

certified sign language interpreter present and was advised that

his rehire st atus was still restricted. Mr. Tyler was given a

rehire petition to complete so that his rehire status could be

reviewed by Disney. The rehire petition requested Mr. Tyler to

state the reasons for hi s termination from the company and the

reasons why Mr. Tyler thought he should be rehired.

Additionally, Mr. Tyler was required to provide employment

verifications from hi s employers to demonstrate job stability.

Mr. Tyler did not provide a completed rehire petition to Disney.

6. Mr. Tyler claims that he di d provide the necessary

paperwork to Disney at Christmastime to an unknown older man,

who was at the Disney casting office 1/ and who advised Mr. Tyler

that the employees were on Christmas break. Mr. Tyler further

testified that he later overheard the olde r man at a 7 - 11 store

tell another person that he had thrown Mr. Tyler's application

in the trash. Mr. Tyler's testimony is not credible. First,

the next time that Mr. Tyler applied for a job with Disney was

in November 2006, prior to Christmastime. Obv iously, he did not

supply the information needed for a rehire petition between the

second and third applications. Additionally, it defies

credulity that Mr. Tyler would overhear the older man at a 7 - 11

store tell someone that he had thrown the paperwork a way. The

likelihood that Mr. Tyler would see the older man again is slim ,

and there would be no reason for the older man to be confessing

that he had thrown Mr. Tyler's paperwork away.

7. Mr. Tyler tried to see Kelly Frank (Ms. Frank) , the

senior vice pr esident of Disney's human resources office, after

he was told that he was not eligible for rehire. Ms. Frank had

been employed at Disneyland prior to transferring to Disney.

While she was at Disneyland, she and Mr. Tyler had met

concerning some disciplin ary issues that Mr. Tyler had while

working at Disneyland. Mr. Tyler felt that Ms. Frank had been

helpful with his situation at Disneyland and thought that she

could run interference for him concerning his appl ications for

rehire at Disney.

8. Mr. Tyler would show up unannounced at Ms. Franks'

office and ask to meet with her. Mr. Tyler's method of dealing

with such situations was to bypass the chain of command and go

to someone higher in management. Ms. Frank was aware of

Mr. Tyler's attempts to see her . Ms. Frank never spoke to

Mr. Tyler about his applications for employment at Disney ;

instead her assistant asked Robin King (Ms. King) , from Disney's

human resources department, to talk with him.

9. Ms. King and Bekki Musee (Ms. Musee) , who was a team

leader for Disney's casting operations support, set up a meeting

with Mr. Tyler with a sign language interpreter present. They

tried to explain to him that he had to follow the procedures and

submit a rehire petition to have his rehire status reviewed and

that he would need six months of stable employment to be

considered for a rehire. Additionally, they told him that he

should take his complaints to the casting office, where the

employment decisions were made and not to try to see Ms. Frank.

They furthe r told Mr. Tyler that he should make an appointment

when he needed to speak to someone rather than show up

unannounced. Disney needed advance notice so that a sign

language interpreter could be present to assist Mr. Tyler.

10. On November 11, 2006, Mr. T yler filled out a third

application for employment with Disney. He stated on the

application that he had been employed by Macy's from

November 2005 to May 2006. He stated that he became employed by

Gaylor Entertanment [sic] Suite Hotel in November 2006. No

mention was made of his employment at the 7 - 11 store.

11. When Ms. Musee became aware that Mr. Tyler had

submitted a third application, she assigned a senior recruiter,

Clayton Kirkland (Mr. Kirkland) , to interview Mr. Tyler.

Ms. Musee wanted to have someone who had not interviewed

Mr. Tyler before to perform the interview to give Mr. Tyler a

fair opportunity.

12. Mr. Kirkland interviewed Mr. Tyler, and a sign

language interpreter was present during the interview.

Mr. Tyler told Mr. Kirkland that he h ad been terminated from

Disneyland because of attendance. At the beginning of the

interview, Mr. Tyler acted professionally. Mr. Kirkland asked

Mr. Tyler about Mr. Tyler's employment at the 7 - 11 store, which

had been listed on a previous application. Mr . Tyler denied

ever having worked at a 7 - 11 store and claimed that Ms. Musee

had put that on his previous application. When questioned about

his employment history at the 7 - 11 store, Mr. Tyler's demeanor

changed, and he became angry and appeared to be fru strated.

13. Mr. Kirkland told Mr. Tyler that he was not qualified

for the job and would not be hired. This decision was based on

gaps in Mr. Tyler's employment history, the restricted rehire

placed by Disneyland, the lack of job stability, his failure t o

provide documentation for his rehire status when asked to do so,

and his aggressive behavior. Mr. Tyler became angry and upset,

stood up, leaned over Mr. Kirkland's desk, and slammed his hand

down on the desk. At that point, Mr. Tyler was not relying o n

the sign language interpreter, but was verbally talking to

Mr. Kirkland.

14. Mr. Tyler became upset and left the interview. As he

was leaving, he saw Ms. Musee. He walked hastily toward her,

yelling and screaming at her and saying that she had put som e

notations in his file. He got in front of her face and started

pointing his finger at her. She felt uncomfortable and

threatened by his actions. Mr. Tyler did not have his hearing

aids on at the time; therefore, he could not tell if his voice

was loud when he spoke to Ms. Musee. However, whether he was

wearing his hearing aids does not excuse his getting in front of

Ms. Musee's face and pointing his finger at her.

15. On December 27, 2006, Mr. Tyler showed up at the

casting office unannounced and req uested a sign language

interpreter so that he could talk with Ms. Musee. Mr. Tyler's

testimony that the only reason that he went to the casting

office was to set up an appointment with Ms. Musee in the future

is not credible. The greater weight of the ev idence is that he

showed up expecting to talk to Ms. Musee when he arrived at the

casting office , just as he had done when wanted to speak to

Ms. Frank .

16. Ms. Musee was notified that Mr. Tyler had come to the

casting office unannounced. Ms. Musee agree d to talk with

Mr. Tyler in her office, but alerted security because , after her

last interaction with Mr. Tyler , she did not feel comfortable

meeting with him alone. Two security personnel stayed just

outside of Ms. Musee's office while she was talking to

Mr. Tyler.

17. There was no sign language interpreter present during

the meeting because Mr. Tyler's visit was unannounced , and there

was insufficient time to get an interpreter. Mr. Tyler verbally

questioned Ms. Musee about his attempts at employment, and

Ms. Musee again explained to Mr. Tyler the reason that he was

not rehired was because of his restricted - hire status.

Mr. Tyler was verbally responding to Ms. Musee's statements,

which indicated to Ms. Musee that he was understan ding what she

was tellin g him.

18. Several times Ms. Musee tried to end the conversation,

but Mr. Tyler did not leave. Finally, Disney security stationed

outside Ms. Musee's door intervene d and asked Mr. Tyler to

leave.

19. Patricia Bryant (Ms. Bryant) , who at the time was the

area manager of security operations for the downtown Disney

area , arrived on the scene, and she asked Mr. Tyler to leave.

She asked Mr. Tyler if he understood what she was telling him ,

and he indicated that he di d. Mr. Tyler failed to leave.

20. Deputies from the Orange County Sheriff's Office

showed up. Mr. Tyler was issued a trespass warning by

Ms. Bryant and a deputy sheriff. The trespass warning is dated

December 27, 2006. Mr. Tyler verbally acknowledged to

Ms. Bryant that he understood the trespass warning, which

advised him that he was not to go on Disney property. The

trespass warning is in writing and states: "Your are hereby

warned that you are not authorized , licensed or invited to be in

these premises and may be arrested if you refu se to leave or

return at any time in the future." There was no thing on the

trespass warning showing an expiration date. Once the trespass

warning is issued, it stays in place until it is lifted.

21. In October 2007, Mr. Tyler and his roommate, Arden

Bir d (Mr. Bird) , who is deaf, went to a kennel club located on

Disney property. There was some dispute concerning the charges

for the dogs that Mr. Tyler and Mr. Bird had boarded at the

kennel. Mr. Tyler went to assist Mr. Bird with the

communications. Mr. Tyler was aware that the kennel was located

on Disney property. He and Mr. Bird discussed whether Mr. Tyler

should go to the kennel club because of the trespass warning,

and they concluded that it would not be in violation of the

trespass warning. 2/

22. Staff at the kennel club called Disney security to

come to the kennel club because Mr. Tyler previously had been

given a trespass warning. Carolyn Trulu ck (Msulu ck) , who,

at that time, was an investigator for Disney security, came to

the kennel club. She requested a copy of the trespass warning

from security. When she confirmed that a trespass warning had

been issued, she called the Orange County Sheriff 's Office and

requested a deputy to come to the scene. A deputy arrived and

placed Mr. Tyler und er arrest for trespassing. Msul u ck was

unaware of any claims of discrimination by Mr. Tyler , and she

was not directed by anyone in the human resources department of

Disney to call for a deputy. Her actions were based on the

prior issuance of a trespa ss warning and Mr. Tyler's appearance

on Disney property despite the trespass warning.

23. On October 15, 2008, Mr. Tyler filed a n Employment

C harge of D iscrimination with the Commission, alleging Disney

discriminated against him base d on his disability in the

following ways:

On or about October 27, 2007, I was

retaliated against by being issued a

Trespass Warrant. On or about September 20,

2007, I was denied employment.

* * *

1. The position of Houseman was an open and

available position which I was qualified for

and I applied. I was denied employment and

the position.

2. I complained to Ms. Bekki Musee, Team

Leader, Casting Operation Support[,] about

my disability and the need for an

interpreter, she refused to provi de this

assistance.

3. In October 2007, I was subsequently

issued a Trespass Warrant by the company.

4. I believe that my Disability and the

fact that I complained of what I believed to

be discriminatory treatment led to the

retaliatory actions taken a gainst me.

CONCLUSIONS OF LAW

24. 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. (2010).

25. Mr. Tyler has alleged that Disney has discriminated

against him based on his disability by failing to hire him and

retaliated against him for complaining about the alleged

discrimination by having him arrested for trespassing.

26. Section 760.10, Florida Statutes (2007) , 3/ provides:

(1) It is an unlawful emplo yment 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

individualÓs race, color, religion, sex,

national orig in, age, handicap, or marital

status.

* * *

(7) It is an unlawful employment practice

for an employer, an employment agency, a

joint labor - management committee, or a labor

organization to discriminate against any

person because that person has opposed any

practice which is an unlawful employment

practic e under this section, or because that

person has made a charge, testified,

assisted, or participated in any manner in

an investigation, proceeding, or hearing

under this section.

27. Section 760.07 provides that "a ny person aggrieved by

a violation of s s. 760.01 - 760.10 may file a complaint with the

commission within 365 days of the alleged violation, naming the

employer, employment agency, labor organization, or joint labor -

management committee. "

28. The Florida Civil Rights Act of 1992, s ection 760.01,

et seq. , is modeled after Title VII of the Civil Rights Act of

1964, 42 U.S.C. s ection 2000, et seq. ; therefore, case law

interpreting Title VII is also relevant to cases brought under

the Florida Civil Rights Act. Fl a. Dep ' t of Comty . Aff . v.

Bryant , 58 6 So. 2d 1205, 1209 (Fla. 1st DCA 1991).

29. The Florida Civil Rights Act of 1992, s ection 760.01,

et seq. , is construed in accordance with the Americans with

Disabilities Act (ADA), 42 U.S.C. s ection 12101, 11 et seq. ,

when the charge of discrimination is based on a disability.

Razner v. Wellington Reg ' l Med . Ctr . , Inc. , 837 So. 2d 437, 440

(Fla. 4th DCA 2002); McCaw Cellular Communications of Fla . , Inc.

v. Kwaitek , 763 So. 2d 1063 (Fla. 4th DCA 1999); Greene v.

Semino le Electric Co - op, Inc. , 701 So. 2d 646 (Fla. 5th DCA

1997).

30. Mr. Tyler was denied employment when he applied for a

job with Disney in October 2005, April 2006, and November 2006.

He did not file his claim of discrimination until October 15,

2007, whi ch is more than 365 days after he was denied

employment. Although Mr. Tyler's original charge of

discrimination alleged that he was denied employment on

September 20, 2007, no evidence was presented to establish that

he applied for or was denied employmen t on that date.

Additionally, it is unlikely that the date is correct because ,

at that time , the trespass warning was in effect.

31. The trespass warning was issued on December 27, 2006,

which is more than 365 days prior to the time Mr. Tyler filed

his c harge of discrimination with the Commission. Because the

dates for the applications and failures to hire and the date of

the issuance of the trespass warning occurred more than 365 days

from the date of the filing of the discrimination complaint,

those cl aims are barred. Clarke v. Winn - Dixie Stores, Inc. ,

2007 U.S. District LEXIS 75980 at *7, 8 (S.D. Fla. Oct. 12,

2007); Woodham v. Blue Cross & Shield of Fla., Inc. , 8 29 So. 2d

891, 894 (Fla. 2002).

32. Assuming arguendo that Mr. Tyler had timely filed a

discrimination claim for failure to hire him, Mr. Tyler has

failed to establish that Disney failed to hire him based on his

disability. To be eligible for relief based on a claim of

handicap discrim ination, 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.

N. Am., Inc. , 181 F.3d 1 220, 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. The petitioner has the burden to establish a

prima facie case of dis crimination. Once a prima facie case of

discrimination is established, the burden shifts to the employer

to articulate a nondiscriminatory reason for the adverse

employment action. If the employer articulates a

nondiscriminatory reason for its action, th e burden shifts back

to the petitioner to establish that the reasons articulated by

the employer were pretexual. The petitioner bears the ultimate

burden of establishing that the employer discriminated against

h im . Cleveland v. Home Shopping Network, Inc. , 369 F.3d

1189, 1193 (11th Cir. 2004).

33. In order for Mr. Tyler to establish a prima facie case

of handicap discrimination, he must " show: (1) he is disabled;

(2) he is a qualified individual; (3) he was subjected to

unlawful discrimination becaus e of his disability. " Id.

34. Mr. Tyler has established that he has a disability; he

is hearing impaired. Mr. Tyler did not establish that he was

qualified for the position for which he applied , other than he

needed to demonstrate stable employment . No evidence was

presented to show what qualifications were necessary for the

positions for which he applied. Mr. Tyler did not establish

that the failure to hire him was due to his hearing impairment.

35. Disney has demonstrated that Mr. Tyler was not hire d

because of his restricted hire status, his dismissal at

Disneyland for attendance problems, his failure to demonstrate

stable employment, and his aggressive behavior. His hearing

impairment played no part in Disney's decisions not to hire him.

36. To e stablish a prima facie case of retaliation,

Mr. Tyler must prove: (1) that he was engaged in a protected

activity; (2) that an adverse action by Disney against him

occurred; and (3) that there was a causal connection between his

participation in the prote cted activity and the adverse action.

Tipton v. Canadian Imperial Bank , 872 F.2d 1491 (11th Cir.

1989); Blizzard v. Appliance Direct, Inc. , 16 So. 3d 922, 926

(Fla. 5th DCA 2009).

37. Mr. Tyler claims that he was issued the trespass

warning and that he w as arrested because he had complained to

Ms. Musee and requested an interpreter. The facts do not

support Mr. Tyler's claim. He was given a trespass warning

because he would not leave Ms. Musee's office.

38. The trespass warning clearly stated that Mr. Tyler was

to stay away from Disney properties. He was given a copy of the

trespass warning. He understood what the trespass warning

meant , because he stayed away from Disney properties for over

ten months and had discussed the issue with Mr. Bird. When he

went on Disney property in October 2007, he was clearly

trespassing, and he was arrested for trespassing. The arrest

was because he was trespassing and not because he had made any

complaint to Disney or Disney employees related to his

disability.

39. Mr. Tyler stated in his Proposed Recommended Order

that his claim "is not about his disability issue." He states

that the case is about the denial of an interpreter. Mr. Tyler

was provided a sign language interpreter for all three

interviews and when he had a scheduled appointment with

Ms. Musee and Ms. King. On these occasions, Disney had prior

notice that Mr. Tyler would need a sign language interpreter and

provided the interpreter. However, Mr. Tyler made numerous

unannounced visits to Disney to disc uss his hiring status and

expected Disney to immediately provide him with an interpreter

without prior notice. On these occasions, it is clear that

Mr. Tyler was aware of what was being communicated to him; he

just would not take "no" for an answer.

40. Mr. Tyler has failed to establish that Disney failed

to hire him based on his disability, that Disney retaliated

against him , and that Disney unreaso nably refused to provide a

sign language interpreter for him.

RECOMMENDATION

Based on the foregoing Finding s of Fact and Conclusions of

Law, it is RECOMMENDED that a f inal o rder be entered dismissing

Mr. Tyler's Petition for Re lief.

DONE AND ENTERED this 20th day of April , 2011 , 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

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Adminis trative Hearings

this 20th day of April , 2011 .

ENDNOTES

1/ Disney refers to its employment office as the casting office.

2 / Mr. Tyler and Mr. Bird claimed that they were told by the

deputy who signed the trespass warning that the trespass warning

was valid for one year. However, when Mr. Tyler went to the

kennel club, the trespass warning had been issued for less than

a year .

3/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2007 version.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Maril yn G. Moran, Esquire

Baker & Hostetler

Suntrust Center, Suite 2300

200 South Orange Avenue

Orlando, Florida 32802

Peter D. Tyler

Post Office Box 22315

Orlando, Florida 32830

Larry Kranert, General Counsel

Florida Commission on Human Relations

2009 Apal achee 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.