09-003098 Robert A. Boody, Iii vs. Florida Highway Patrol Status: Closed Recommended Order on Monday, November 23, 2009.

Summary: Petitioner's employment was terminated for non-discriminatory reasons.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT A. BOODY, III, 1 )

)

Petitioner, )

)

vs. ) Case No. 09-3098

)

FLORIDA HIGHWAY PATROL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was

conducted by video teleconference on September 4, 2009, between

West Palm Beach and Tallahassee, Florida, before Administrative

Law Judge Claude B. Arrington of the Division of Administrative

Hearings (DOAH).

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

Whether Respondent committed one or more unlawful

employment practices against Petitioner as alleged in the

subject Petition for Relief.

PRELIMINARY STATEMENT

On or about November 14, 2008, Petitioner, Robert A. Boody,

III (Respondent or Mr. Boody), filed a Complaint of

Discrimination against Respondent, his former employer.

Following its investigation, by documents dated April 30, 2009,

the Florida Commission on Human Relations (FCHR) issued a

“Notice of Determination: No Cause” (the Notice) and a

“Determination: No Cause” (the Determination). The Notice was

forwarded to the parties in care of their respective counsel by

certified mail. Thereafter, Petitioner filed a Petition for

Relief that was dated June 4, 2009, and date-stamped by the FCHR

as being received on June 5. 2

Succinctly stated, Petitioner, a K-9 officer, contends that

Respondent fired him because he had a medical condition and

because he took anabolic steroids for his medical condition. He

further alleges that Respondent illegally seized medical records

pertaining to him and that it unlawfully disclosed those medical

records. Petitioner also contends that Respondent retaliated

against him by prohibiting him from working off-duty while he

was assigned to administrative duties and by taking away his

K-9. 3

Respondent asserts that it fired Petitioner because it

concluded that Petitioner unlawfully obtained anabolic steroids,

a Class III controlled substance that cannot be lawfully

obtained without a lawful prescription. Respondent denies that

it illegally obtained Petitioner’s medical records or that it

unlawfully disclosed those records. Respondent denies that it

retaliated against Petitioner.

Parallel to this proceeding, Petitioner brought action

against Respondent before the Public Employees Relation

Commission (PERC). Following a hearing in that proceeding, a

PERC hearing officer concluded that Petitioner had lawfully

obtained the anabolic steroids and that Respondent was not

justified in terminating his employment. While the hearing

officer’s recommended order was entered as an exhibit, no final

order by PERC was offered as an exhibit. However, the parties

advised that the PERC order is on appeal, which suggests that

PERC has indeed acted on the recommended order. At any rate,

the PERC proceeding has not run its course.

At the final hearing, Petitioner testified on his own

behalf and presented the additional testimony of Michael

Olaciregui, a former employee of the Respondent who was

terminated under circumstances similar to the circumstances that

lead to Petitioner’s termination. Petitioner offered the

following pre-marked exhibits, each of which was admitted into

evidence as Petitioner Exhibits 1, 2, 6, 7, 10, 13, 14, 16, 17,

18, 20, 23, 24, 27, and 28, respectively. Respondent recalled

Petitioner during its case in chief and offered one exhibit,

which was admitted into evidence as Respondent Exhibit 1. In

addition to the foregoing, the parties offered one Joint

Exhibit, consisting of the testimony of Dr. Richard Marques

before the PERC hearing officer. The parties stipulated that

Dr. Marques’ testimony could be used as evidence in this

proceeding before DOAH.

Unless otherwise noted, all statutory references are to

Florida Statutes (2009). References to rules are to the rules

in effect as of the entry of this Recommended Order. The

relevant statutes and rules have not changed since the date of

the events at issue.

A Transcript of the proceedings, consisting of one volume,

was filed on October 21, 2009. Each party filed a Proposed

Recommended Order, which has been duly-considered by the

undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to this proceeding, Petitioner

was an employee of Respondent with permanent status in the state

career service system. Petitioner began his employment with

Respondent on February 26, 2001, and was assigned to the Lake

Worth area until his employment was terminated on January 30,

2009.

2. During his tenure with Respondent, Petitioner worked as

a K-9 officer as the handler of a dog trained to detect drugs.

Petitioner was frequently involved with high-risk traffic stops.

Petitioner received a “meets standards rating” on his most

recent performance evaluation. Prior to the events that led up

to this proceeding, Petitioner had no history of being

disciplined by Respondent.

3. Dr. Richard Marques specializes in internal medicine

and treats a broad spectrum of medical issues including

endocrine problems. He has been Petitioner’s physician for

eight years.

4. Prior to September 2003, Petitioner began to experience

fatigue, irritability, and low energy. Petitioner testified

that he slept up to 16 hours some days. During that time, and

at all times relevant to this proceeding, Petitioner was working

his assigned duties. Those duties included a 40-hour shift plus

occasional overtime, primarily on weekends.

5. At the request of Dr. Marques, on September 12, 2003,

Petitioner presented for blood work at LabCorp, an independent,

reputable, testing lab. From the results of the testing,

Dr. Marques determined that Petitioner suffered from low

testosterone levels or a condition known as hypogonadism.

Dr. Marques recommended that Petitioner seek treatment for his

testosterone deficiency from a physician or facility

specializing in problems of the endocrine system. Dr. Marques

did not recommend a particular physician or facility to

Petitioner. Instead, Dr. Marques left that decision to

Petitioner. Dr. Marques contemplated at the time of his

recommendation that Petitioner would be examined in a hospital

or other medical facility by a doctor specializing in the

endocrine system. Dr. Marques testified that there are two

types of hypogonadism, with one type originating from the

adrenal gland and the other originating from the pituitary

gland. Testing of the type an endocrinologist would do in a

testing facility such as a hospital is required to determine the

source of the testosterone secretion. Dr. Marques referred

Petitioner for further evaluation because he does not do the

type of testing that an endocrinologist does.

6. After reading an advertisement in a magazine for a

facility named PowerMedica in January 2004, Petitioner sought

treatment from that facility. After reviewing PowerMedica’s

website, Petitioner concluded that it was a licensed medical

facility and submitted a form medical history. In response to

his submittal, someone purporting to be from PowerMedica

instructed Petitioner to submit a blood sample for analysis by

LabCorp. Petitioner complied with that request.

7. Thereafter, Petitioner received a telephone call from

someone at PowerMedica who purported to be a doctor. Following

that telephone conversation, Petitioner received at his home via

Federal Express a shipment that contained testosterone, which is

an anabolic steroid. An anabolic steroid is, pursuant to the

provisions of Section 893.03(3)(d), a Schedule III controlled

substance. Section 893.13(6)(a), Florida Statutes, provides as

follows:

(6)(a) It is unlawful for any person to

be in actual or constructive possession of a

controlled substance unless such controlled

substance was lawfully obtained from a

practitioner or pursuant to a valid

prescription or order of a practitioner

while acting in the course of his or her

professional practice or to be in actual or

constructive possession of a controlled

substance except as otherwise authorized by

this chapter. Any person who violates this

provision commits a felony of the third

degree, punishable as provided in s.

775.082, s. 775.083, or s. 775.084.

8. At no time relevant to this proceeding did Petitioner

enter the building that housed PowerMedica, nor was he

physically examined by anyone associated by PowerMedica.

9. Petitioner followed up with Dr. Marques while

Petitioner was taking the anabolic steroids. Dr. Marques

considered Petitioner’s treatment to be appropriate.

Dr. Marques saw no signs that Petitioner was abusing the

anabolic steroids, and noted that Petitioner’s condition

improved.

10. Petitioner stopped receiving anabolic steroids from

PowerMedica in October 2004.

11. Dr. Marques wrote a note on September 22, 2003,

reflecting, in relevant part, the following: “. . . given the

severity of his high viral titer, 4 I have asked him to change his

night shift duty to day time.” After Petitioner requested that

he be reassigned to day-time duty and presented that note to his

superiors, Respondent reassigned Petitioner to day duty. At all

times relevant to this proceeding, Petitioner was able to

perform his job duties. Other than the request for a change

from the night shift to the day shift, Petitioner did not tell

Respondent that he was having difficulties performing his

duties. At no time prior to his interview on July 10, 2008,

which will be discussed below, did Petitioner tell Respondent

that he was taking anabolic steroids, that he suffered from low

testosterone levels, or that he suffered from hypogonadism. At

no time did Petitioner request that he be evaluated to determine

whether he was fit for duty.

12. In early 2005, it became public knowledge in south

Florida that the U.S. Food and Drug Administration (USFDA),

working in conjunction with the Broward County Sheriff’s Office

(BCSO), was investigating PowerMedica based on allegations that

it had unlawfully sold steroids and Human Growth Hormones. As

part of its investigation, the USFDA seized records pertaining

to PowerMedica’s customers. There was no evidence that any

information seized by the BCSO or the USFDA was illegally

seized. The joint investigation culminated in the closure of

PowerMedica’s operations.

13. In March 2008, a sergeant and a lieutenant employed by

Respondent and assigned to its Professional Compliance Bureau

met with a sergeant employed by BCSO. During that meeting, the

BCSO sergeant showed Respondent’s employees a list containing

PowerMedica’s customers. That list contained Petitioner’s name.

14. At Respondent’s request, in April 2008, the USFDA

provided copies of records to Respondent that had been seized

from PowerMedica. That information provided details as to

Petitioner’s dealings with PowerMedica.

15. On July 10, 2008, Petitioner was subjected to a formal

interview by representatives of the Respondent. In that

interview, Petitioner admitted his dealings with PowerMedica

and, while denying any wrongdoing, admitted the material facts

set forth above pertaining to those dealings. Petitioner

declined to divulge the underlying condition for which he sought

treatment. Further, Petitioner acknowledged that Dr. Marques

had informed him that his insurance company would likely not pay

for his treatment from PowerMedica or for similar treatment.

Specifically, Petitioner admitted that he obtained testosterone

without being examined by a PowerMedica physician, he admitted

that he knew about the investigation and subsequent closure of

PowerMedica, and he admitted that he knew the reasons for the

closure of PowerMedica. Petitioner admitted that he never

volunteered to come forward to Respondent or any other law

enforcement agency to discuss his dealings with PowerMedica.

Petitioner referred to himself as a victim of PowerMedica’s

fraudulent practices, but he admitted that he never advised

Respondent prior to his interview that he had been a victim of

PowerMedica.

16. On September 9, 2008, Respondent assigned Petitioner

to administrative duty that was to be served at Petitioner’s

residence from 8:00 a.m. to 4:00 p.m. Monday through Friday.

The letter advising Petitioner of this assignment and setting

the parameters for the assignment, included the following,

beginning at the second full paragraph:

You will remain on administrative duty

until further notice. This action is being

taken based upon the fact you are under

investigation by this agency. You are to

turn in all of your assigned division

equipment including uniforms, badges,

firearms, any department identification, and

other division property.

Your approval to work off-duty police

employment (ODPE) and/or any type of agency

secondary employment has been withdrawn for

the duration of the administrative duty.

Your eligibility to resume OPDE/secondary

employment will be reviewed by your troop

commander at the conclusion of the

administrative duty assignment.

Your failure to comply with this directive

will subject you to disciplinary action.

17. On November 14, 2008, Petitioner filed his Complaint

of Discrimination with the Florida Commission on Human

Relations. After that date, but before his termination,

Petitioner requested permission to be able to work as a driver

for Federal Express during hours other than the hours he was

serving his administrative duties. Respondent denied that

request. While Petitioner asserts that the denial was in

retaliation for his filing the Complaint of Discrimination, that

assertion is based on supposition. Petitioner presented no

direct evidence to support his assertion and any circumstantial

evidence is insufficient to establish the assertion.

18. By letter dated January 14, 2009, and received by

Petitioner on January 20, 2009 (the termination letter),

Respondent terminated Petitioner’s employment. Approximately 20

days after his termination, Respondent retrieved from Petitioner

the dog that Petitioner had handled for approximately three

years. Petitioner asserts that Respondent took his dog in

retaliation for his amending his Complaint of Discrimination to

include a claim of retaliation relating to the denial of the

request to work part-time for Federal Express. Again,

Petitioner’s assertion is based on supposition and is not

supported by direct or circumstantial evidence.

19. The termination letter, which is part of Petitioner’s

Exhibit 11, sets forth extensive factual allegations pertaining

to Petitioner’s dealings with PowerMedica as the basis for the

termination. The letter also set forth the statute and policies

that Petitioner had allegedly violated. The letter cited the

following as “Aggravating Circumstances”:

This case is aggravated because through

your training, work experience, and

knowledge of the law you are held to a

higher standard of reasonableness and

conduct. You should have been well aware of

the stigma attached to the type controlled

substances you purchased and used,

especially

20. Petitioner points to Respondent’s characterization of

anabolic steroids as having a “stigma” as evidence that

Respondent discriminated against him based on his disability.

That argument is without merit. The greater weight of the

credible evidence established that Respondent terminated

Petitioner’s employment based on its determination that

Petitioner had unlawfully obtained and consumed a Schedule III

controlled substance without obtaining a lawful prescription and

because he failed to come forward with information about

PowerMedica after he knew that PowerMedica was being

investigated by the USFDA and the BCSO. Petitioner did not

establish that Respondent’s articulated reasons for its

employment decision were pretexts for an unlawful employment

practice. Indeed, there was no evidence that as of the date of

the termination letter, Respondent knew the nature of

Petitioner’s medical condition, or that it had any reason to

perceive him as being disabled.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

jurisdiction over the subject matter parties to this case

pursuant to Sections 760.11(7), 120.569, and 120.57(1), Florida

Statutes.

22. Section 760.11(7), Florida Statutes, provides as

follows:

(7) If the commission determines that

there is not reasonable cause to believe

that a violation of the Florida Civil Rights

Act of 1992 has occurred, the commission

shall dismiss the complaint. The aggrieved

person may request an administrative hearing

under ss. 120.569 and 120.57, but any such

request must be made within 35 days of the

date of determination of reasonable cause

and any such hearing shall be heard by an

administrative law judge and not by the

commission or a commissioner. If the

aggrieved person does not request an

administrative hearing within the 35 days,

the claim will be barred. If the

administrative law judge finds that a

violation of the Florida Civil Rights Act of

1992 has occurred, he or she shall issue an

appropriate recommended order to the

commission prohibiting the practice and

recommending affirmative relief from the

effects of the practice, including back pay.

Within 90 days of the date the recommended

order is rendered, the commission shall

issue a final order by adopting, rejecting,

or modifying the recommended order as

provided under ss.120.569 and 120.57. The

90-day period may be extended with the

consent of all the parties. In any action

or proceeding under this subsection, the

commission, in its discretion, may allow the

prevailing party a reasonable attorney's fee

as part of the costs. It is the intent of

the Legislature that this provision for

attorney's fees be interpreted in a manner

consistent with federal case law involving a

Title VII action. In the event the final

order issued by the commission determines

that a violation of the Florida Civil Rights

Act of 1992 has occurred, the aggrieved

person may bring, within 1 year of the date

of the final order, a civil action under

subsection (5) as if there has been a

reasonable cause determination or accept the

affirmative relief offered by the

commission, but not both.

23. Section 760.10(1)(a), Florida Statutes, provides, in

relevant part, as follows:

(1) It is an unlawful employment practice

for any employer:

(a) To discharge . . . or otherwise

discriminate against any individual with

respect to compensation, terms, conditions

or privileges of employment, because of such

individual’s . . . handicap . . . .

24. The issue as to whether Respondent had just cause to

terminate Petitioner’s employment is for PERC to resolve. The

issue in this proceeding is whether the decision to terminate

Petitioner’s employment was motivated by unlawful

discrimination. See Damon v. Fleming Supermarkets, Inc. , 196

F.3d 1354, 1361 (11th Cir. 1999); Elrod v. Sears, Roebuck & Co. ,

939 F.2d 1466, 1470 (11th Cir. 1991); and Nix v. WLCY

Radio/Rahall Communications , 738 F.2d 1181, 1187 (11th Cir.

1984).

25. The burden of proof for a claim of an unfair

employment action based on an alleged disability is based on the

framework set forth in McDonnell Douglas Corp. v. Green , 411

U. S. 792 (1973). See Durly v. APAC, Inc. , 236 F.3d 651, 657

(11th Cir. 2000). In order to establish a prima facie case of

the alleged discrimination, Petitioner must demonstrate that he

is a qualified individual with a disability and was

discriminated against because of that disability.

26. In order to meet the definition of disabled,

Petitioner must show that he was substantially limited in a

major life activity as a result of a physical or mental

impairment, has a record of such impairment, or is perceived as

having such impairment.

27. 42 U.S.C. § 12102 defines the following terms, in

relevant part applicable to this proceeding, as follows:

(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 (as described in paragraph (3)).

(2) Major life activities.

(A) In general. For purposes of

paragraph (1), major life activities

include, but are 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.

(B) Major bodily functions. For purposes

of paragraph (1), a major life activity also

includes the operation of a major bodily

function, including but not limited to,

functions of the immune system, normal cell

growth, digestive, bowel, bladder,

neurological, brain, respiratory,

circulatory, endocrine, and reproductive

functions.

(3) Regarded as having such an

impairment. For purposes of paragraph

(1)(C):

(A) An individual meets the requirement

of "being regarded as having such an

impairment" if the individual establishes

that he or she has been subjected to an

action prohibited under this Act because of

an actual or perceived physical or mental

impairment whether or not the impairment

limits or is perceived to limit a major life

activity.

(B) Paragraph (1)(C) shall not apply to

impairments that are transitory and minor.

A transitory impairment is an impairment

with an actual or expected duration of 6

months or less.

(4) Rules of construction regarding the

definition of disability. The definition of

"disability" in paragraph (1) shall be

construed in accordance with the following:

(A) The definition of disability in this

Act shall be construed in favor of broad

coverage of individuals under this Act, to

the maximum extent permitted by the terms of

this Act.

(B) The term "substantially limits" shall

be interpreted consistently with the

findings and purposes of the ADA Amendments

Act of 2008.

(C) An impairment that substantially

limits one major life activity need not

limit other major life activities in order

to be considered a disability.

(D) An impairment that is episodic or in

remission is a disability if it would

substantially limit a major life activity

when active.

(E) (i) The determination of whether an

impairment substantially limits a major life

activity shall be made without regard to the

ameliorative effects of mitigating measures

such as--

(I) medication . . .

28. In construing the foregoing definitions, the

undersigned concludes that Petitioner’s low testosterone levels

or hypogonadism is an impairment that has been successfully

treated with medication. In the absence of such medication, the

effects of Petitioner’s hypogonadism substantially limited

certain of Petitioner’s major life activities. It impaired the

function of his endocrine system, sapped his energy, and caused

irritability. The undersigned concludes that Petitioner is a

person with a disability.

29. As reflected by the Findings of Fact, Petitioner

failed to prove that Respondent terminated his employment

because he had hypogonadism or because he took testosterone or

anabolic steroids. The record is very clear that Respondent

fired Petitioner because of its determination that Petitioner

obtained and consumed a Schedule III drug without a valid

prescription and because he failed to come forward with

information about PowerMedica after he knew that PowerMedica was

being investigated by the USFDA and the BCSO. The record is

also very clear that Respondent’s articulated reason for its

employment decision was not a pretext for unlawful

discrimination.

30. In order to establish a prima facie case of

retaliation, Petitioner would have to show that (1) he filed a

Charge of Discrimination; (2) he suffered an adverse employment

action; and (3) the adverse action was causally related to the

protected expression. See Wideman v. Wal-Mart Stores, Inc. , 141

F.3d 1453, 1453 (11th Cir. 1998). In his claim for retaliation,

proved that he filed a Charge of Discrimination, but he failed

to meet his burden as to the remaining prongs. Petitioner

failed to establish that he suffered an adverse employment

action when Respondent refused his request for permission to

work for Federal Express because he failed to establish that he

had a right to work off-duty while he worked full-time for

Respondent, albeit on administrative duty. Petitioner also

failed to establish that he suffered an adverse employment

action when Respondent took his dog from him after his

termination of employment because there was no showing that

Petitioner owned the dog or had any right to retain possession

of the dog. Finally, Petitioner failed to prove that any

employment action taken by Respondent against him was motivated

by his disability or a perceived disability.

31. Petitioner failed to establish that the manner in

which Respondent obtained information pertaining to Petitioner’s

dealings with PowerMedica or the manner in which it maintained

those records established that Respondent harbors animosity

towards Petitioner. There is no reasonable basis to conclude

that Respondent could not act on information obtained by the

BCSO and the USFDA during the course of a lawful investigation.

32. Petitioner seems to argue that the manner in which

Respondent obtained his medical records and its disclosure

thereof constitute an independent cause of action. If that is

Petitioner’s argument, the argument is moot as to this

proceeding because the undersigned is without jurisdiction to

rule on such an independent claim.

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 adopting the Findings of Fact and

Conclusions of Law contained in this Recommended Order. It is

further RECOMMENDED that the final order dismiss the Petition

for Relief with prejudice.

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

Tallahassee, Leon County, Florida.

___________________________________

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of November, 2009.

ENDNOTES

1 / In its referral to the Division of Administrative Hearings,

the Florida Commission on Human Relations spelled the

reflects that his last name is correctly spelled “Boody.”

2 / The Petition for Relief appears to have been filed on the

36th day following the entry of the Notice and the

Determination. Section 760.11(7), Florida Statutes, requires

that a Petition for Relief be filed within 35 days of a

Determination of No Cause. No argument has been made that the

filing was untimely and no such determination will be made by

the undersigned due to the provisions of Florida Rules of Civil

Procedure 1.090(e), and Florida Administrative Code Rule 28-

106.103, which add five days to established deadlines if notice

of the deadline is provided by U.S. mail.

3 / This is intended to be a summary only. Any question as to

the scope of Petitioner’s Petition should be resolved by reading

the entire pleading.

4 / Dr. Marques did not explain the significance of his phrase

“the severity of his high viral titer.”

COPIES FURNISHED :

Sandra Coulter, Esquire

Florida Highway Patrol

Neil Kirkman Building

2900 Apalachee Parkway, A432

Tallahassee, Florida 32399

Cathleen Scott, Esquire

Cathleen Scott, P.A.

Jupiter Gardens

250 South Central Boulevard, Suite 104-A

Jupiter, Florida 33458

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.