09-002963 Michael Olaciregui vs. Florida Highway Patrol Status: Closed Recommended Order on Monday, November 23, 2009.

Summary: Petitioner failed to demonstrate he was discriminated against on the basis of a disability. Recommend dismissal of the petition.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL OLACIREGUI, )

)

Petitioner, )

)

vs. ) Case No. 09-2963

)

FLORIDA HIGHWAY PATROL, )

)

Respondent. )

)

RECOMMENDED ORDER

This case came before Administrative Law Judge June C.

McKinney of the Division of Administrative Hearings for final

hearing on September 15, 2009, by video teleconference at sites

in West Palm Beach, Florida, and Tallahassee, Florida.

APPEARANCES

For Petitioner: Cathleen Scott, Esquire

Cathleen Scott, P.A.

Jupiter Gardens

250 South Central Boulevard, Suite 104-A

Jupiter, Florida 33458

For Respondent: Sandra Coulter, Esquire

Florida Highway Patrol

Neil Kirkman Building

2900 Apalachee Parkway, A432

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent unlawfully

discriminated against Petitioner by terminating his employment

in violation of the Florida Civil Rights Act of 1992, as

amended.

PRELIMINARY STATEMENT

In an Unlawful Employment Practice Complaint filed on or

about May 27, 2009, and subsequently investigated by the Florida

Commission on Human Relations (hereinafter "Commission") Michael

Olaciregui (hereinafter "Olaciregui" or "Petitioner") charged

that the Florida Highway Patrol (hereinafter "FHP" or

"Respondent") unlawfully discriminated against Petitioner by

terminating his employment because of his medical condition

involving low testosterone.

The Commission investigated Petitioner's claim and on

April 22, 2009, issued a Notice of Determination: No Cause

setting forth its determination that reasonable cause did not

exist to believe that an unlawful employment practice occurred.

Thereafter, Petitioner filed a Petition for Relief, which the

Commission sent to the Division of Administrative Hearings

(hereinafter "DOAH") on May 29, 2009.

At the final hearing, Olaciregui testified on his own

behalf and Petitioner's Exhibits 1 through 2 were offered and

admitted in evidence. Respondent offered Exhibits 1 through 3

and the three exhibits were received into evidence. On

October 5, 2009, the Transcript of the proceeding was filed with

the DOAH. Both parties filed timely Proposed Recommended

Orders, which have been duly considered.

Unless otherwise indicated, citations to the Florida

Statutes refer to the 2009 Florida Statutes.

FINDINGS OF FACTS

1. Olaciregui was employed as a road patrol trooper with

FHP. His work schedule typically consisted of a 40-hour shift.

Petitioner worked an average of 16-to-24 additional hours per

week because he needed the income to survive, which made him

tired. Petitioner never told his employer he was tired.

2. On or about January 26, 2004, Petitioner decided to

seek medical attention for his fatigue and lack of sex drive.

He went to PowerMedica, a clinic.

3. At PowerMedica, Olaciregui filled out a Confidential

Medical History Form regarding his medical history. Petitioner

did not answer the questions on the form accurately. He did not

disclose his medical problems, and he put on the form that he

had no problems. On question number 32, he checked "no" for

decreased sexual potency.

4. After meeting with the doctor, Petitioner was provided

a prescription to obtain a blood test. The prescription

contained the address of a physician located in New York.

Petitioner had his blood drawn at LabCorp of America, a separate

and unaffiliated business from PowerMedica.

5. Petitioner had his blood work done at LabCorp and

returned to PowerMedica to get the results. Petitioner met with

Dr. Almarashi and went over the blood-work results. He was

informed that his testosterone levels were below average.

Petitioner's results were 129 above the bottom end of the range

at a level of 370. The top of the normal range is 827, and the

low end of the normal range is 241. No additional evidence was

provided to support Petitioner's allegation of low testosterone.

6. Petitioner decided to follow the treatment plan the

doctor provided him after he was told he had low testosterone

and take prescription medication. The PowerMedica doctor gave

Petitioner a prescription that he could not fill at Walgreens or

CVS but that could only be filled in the PowerMedica pharmacy.

7. Petitioner did not question the prescriptions or ask

anything about them. PowerMedica visits and the prescription

medications were not covered under Petitioner's health

insurance. His initial bill totaled approximately $1,529.95,

but he purchased and used all the medications, including three

controlled substances that were anabolic steroids. Petitioner

did not report his medical treatment to FHP.

8. On or about June 8, 2004, Petitioner was hit by a car

and FHP placed him on workers' compensation. Petitioner was

under a doctor's care while receiving workers' compensation but

never advised the doctor about the medications he was taking

from PowerMedica. He also failed to disclose to the workers'

compensation doctor that he was being treated for any other

medical conditions.

9. In June 2004, Petitioner went back to the clinic for a

follow-up visit. He obtained additional medication, which he

took.

10. When Petitioner stopped his treatment at PowerMedica,

it was because he could no longer afford it.

11. During treatment and after leaving PowerMedica,

Petitioner never voluntarily informed FHP that he lacked a sex

drive, that he was tired, or what his testorene level was

because he was embarrassed and felt the issue was private.

12. Approximately four years after Petitioner stopped

going to PowerMedica, a FHP lieutenant provided Petitioner a

document explaining that he was under investigation. The

investigation stemmed from the U.S. Food and Drug

Administration's (USFDA) closing down PowerMedica for unlawfully

selling steroids and Human Growth Hormones. USFDA provided

Petitioner's medical records seized by search warrant from

PowerMedica to Lieutenant Paul Sharp and Sergeant Mark Shoaff,

the two internal affairs officers assigned to investigate the

matter.

13. On or about July 2, 2008, Petitioner provided

statements to Lieutenant Sharp and Sergeant Shoaff regarding the

investigation. During his interview, Petitioner was questioned

about PowerMedica, Dr. Almarashi, and the treatment he received

at the clinic. Petitioner admitted to the investigators filling

his PowerMedica medical prescriptions for steroids and taking

nandrolone decanoate, oxymetholone, and stanozole, which were

controlled substances.

14. Petitioner also finally disclosed his medical

condition to FHP during the interview and told the investigators

that he "had severe aches and pains, low testosterone and [he

was] lacking a sex drive."

15. After the investigation was complete, FHP by letter

dated September 4, 2008, informed the Petitioner that the

Department was proposing to dismiss him from his position as a

Law Enforcement Officer with FHP.

The FHP Investigation Report states:

Trooper Michael Olaciregui admitted that

he purchased and used controlled substances

from PowerMedica in 2004. Olaciregui

further admits and PowerMeidca's records

confirm, that he made his first purchase of

controlled substances, syringes and needles

on January 26, 2004 for $1529.95 (Exhibit

#3). The purchase is confirmed by a credit

card receipt signed by Olaciregui on

January 26, 2004 and the prescriptions were

filled and dated on January 26, 2004. The

records also indicated that this purchase

and the receipt of these controlled

substances by Olaciregui on January 26, 2004

was done four (4) days prior to him going to

LabCorp (Exhibit #4) and submitting his

blood for analysis on January 30, 2004.

Records further indicate that he made other

purchases from PowerMedica for controlled

substances on April 16, 2004, June 14, 2004,

June 28, 2004 and on July 6, 2004.

16. Petitioner requested a predetermination conference

that was held on October 27, 2008. FHP determined that no

additional facts were presented to change the disciplinary

action and that the termination as a disciplinary action was

warranted.

17. On January 14, 2009, FHP provided Olaciregui a

termination letter that provided factual allegations of the

investigation and the following violations as grounds for

termination:

* * *

1. Section 893.13(6) (a) Florida

Statutes, Possession of a controlled

substance without a valid prescription, 3rd

Degree Felony;

2. Florida Highway Patrol Policy Manual,

Chapter 3.03.06(A) 7. Code of Conduct

states: "Members will maintain a level of

moral conduct in their personal and business

affairs which is in keeping with the highest

standards of the law enforcement

profession;"

3. Florida Highway Patrol Policy Manual,

Chapter 3.03.06(a) 51. Code of conduct

states: "Members will not possess or use

cannabis or any controlled substances except

when prescribed by law and Division

directives";

4. Florida Highway Patrol Policy chapter

5.11.05, Substance Abuse.

These violations constitute the following

disciplinary offenses:

1. Possession, Sale, Transfer or Use of

Drugs Off the Job, first offense;

2. Violation of Statutory Authority,

rules, Regulations or Policies, Fourth

Offense;

3. Conduct Unbecoming a Public Employee,

first offense.

18. After approximately 12 years of employment, FHP

terminated Petitioner's employment on January 14, 2009, for

using controlled substances that he received from PowerMedica in

2004.

CONCLUSIONS OF LAW

19. The DOAH has jurisdiction over the subject matter of

this proceeding and of the parties pursuant to Sections 120.569

and 120.57(1), Florida Statutes (2009).

20. The Florida Civil Rights Act of 1992 (Florida Act) is

codified in Sections 760.01 thorough 760.11, Florida Statutes,

and Section 509.092, Florida Statutes. § 760.01(1), Fla. Stat.

21. A "discriminatory practice," as defined in the Florida

Act, "means any practice made unlawful by the Florida Civil

Rights Act of 1992." § 760.02(4), Fla. Stat.

22. Section 760.01 of the Florida Act explains that the

general purpose of the Act is to:

. . . [S]ecure for all individuals within

the state freedom from discrimination

because of race, color, religion, sex,

national origin, age, handicap, or marital

status and thereby to protect their interest

in personal dignity, to make available to

the sate their full productive capacities,

to secure the state against domestic strife

and unrest, to preserve the public safety,

health, and general welfare, and to promote

the interests, rights, and privileges of

individuals within the state." (Emphasis

added.)

23. Section 760.10, Florida Statutes, provides, in

relevant part:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire an 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.

24. The Americans with Disabilities Act of 1990(ADA), 42

U.S.C.S. Section 12102(1), provides, in pertinent part, the

following definition of the term "disability":

(1) Disability. The term "disability"

means, with respect to an individual--

(A) a physical or mental impairment that

substantially limits one or more major life

activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an

impairment . . . .

25. The ADA defines major life activities, in relevant

part, to include, but not limited to, caring for oneself,

performing manual tasks, seeing, hearing, eating, sleeping,

walking, standing, lifting, bending, speaking, breathing,

learning, reading, concentrating, thinking, communicating, and

working. 42 U.S.C.S. § 12102(2)(A)(1).

26. Disability discrimination claims under the Florida Act

are analyzed under the same framework as the ADA claims.

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.

27. To prevail in this proceeding under either the Federal

or Florida Act, a petitioner in a disability discrimination case

has the initial burden of proving a prima facie case of unfair

employment action within the framework set forth in McDonnell

Douglas Corp. v. Green , 411 U. S. 792 (1973).

28. In order for a petitioner to establish a prima facie

case of discrimination in violation of either of the Acts 1

Petitioner must prove (1) he has a disability; (2) that he is a

"qualified individual", meaning he is able to perform the

essential functions of the position; and (3) the alleged

discrimination action against Petitioner was the result of

unlawful discrimination based of a disability. See Hansen v.

Smallwood, Reynolds, Stewart, Stewart & Assocs. , 119 F. Supp. 2d

1296.

29. Petitioner failed to prove he suffers from a

disability within the meaning of both Acts. Olaciregui did not

attempt to persuade FHP during his employment that he was

disabled, and he was not regarded as a disabled employee.

Moreover, Olaciregui failed to offer any persuasive evidence at

the hearing that he was disabled as defined by the Acts.

Petitioner's testosterone level of 370, lack of sex drive and

fatigue do not limit his ability to perform any life activities

contemplated under the Acts, and therefore Petitioner was unable

to satisfy the first prong of the test for disability

discrimination because he did not demonstrate that he was

disabled.

30. Petitioner asserts that the undersigned should

evaluate whether Olaciregui is disabled by focusing on the

reason the adverse action took place rather than on the

specifics of a person's physical or mental condition regarding

the analysis of ADA law. Under such analysis, the undersigned

still finds that Petitioner failed to demonstrate that an

adverse action took place based on a disability.

31. Further, even if one were to conclude that Petitioner

was disabled, proof of the third prong, that Olaciregui was

discharged because of a disability, was also entirely absent in

this matter. The record demonstrates that the discharge was

based on Petitioner's violating FHP's policies with his use of

controlled substances and was not at all motivated by any

discrimination based on disability.

32. Based on the Finding of Facts herein and a

consideration of the totality of circumstances, there is

insufficient evidence that Respondent took any action against

Petitioner because of his alleged but unproven disability.

Petitioner failed to establish that Respondent committed an

unlawful employment practice against him within the Acts.

Accordingly, Petitioner's failure to establish a prima facie

case of discrimination ends any further inquiry regarding this

case.

33. Petitioner also asserts allegations regarding FHP's

violating HIPPA in retrieving Petitioner's medical records and

whether FHP had just cause to terminate Petitioner's employment.

The first issue is not within the undersigned's jurisdiction to

determine. The second issue need not be addressed because

Petitioner failed to present a prima facie case.

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 Petitioner's Petition

for Relief.

DONE AND ENTERED this 23rd day of November, 2009, in

Tallahassee, Leon County, Florida.

S

JUNE C. McKINNEY

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 23rd day of November, 2009.

ENDNOTE

1 / For ease of reference, the Florida Civil Rights Act of 1992

will be referred to as the Florida Act and the Americans with

Disabilities Act of 1990 will be referred to as the ADA.

Collectively, they will be referred to as the Acts.

COPIES FURNISHED:

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Cathleen Scott, Esquire

Cathleen Scott, P.A.

Jupiter Gardens

250 South Central Boulevard, Suite 104-A

Jupiter, Florida 33458

Sandra Coulter, Esquire

Florida Highway Patrol

Neil Kirkman Building

2900 Apalachee Parkway, A432

Tallahassee, Florida 32399

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.