09-003100 Michael Jeffries vs. Florida Highway Patrol Status: Closed Recommended Order on Tuesday, December 8, 2009.

Summary: Petitioner's employment was terminated because his employer believed that he illegally purchased and used anabolic steroids, not because of his medical condition.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL JEFFRIES, )

)

Petitioner, )

)

vs. ) Case No. 09-3100

)

FLORIDA HIGHWAY PATROL, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal administrative hearing was conducted, as

previously scheduled, by video teleconference at sites in

Lauderdale Lakes and Tallahassee, Florida, on October 2 and 21,

2009, before Administrative Law Judge Eleanor M. Hunter of the

Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Cathleen Scott, Esquire

Cathleen Scott, P.A.

250 South Central Boulevard, Suite 104-A

Jupiter, Florida 33458

For Respondent: Sandra Coulter, Esquire

Neil Kirkman Building

2900 Apalachee Parkway, A-432

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Whether Respondent unlawfully discriminated against

Petitioner by terminating his employment in violation of the

Florida Civil Rights Act of 1992, as amended, as alleged in the

Petition for Relief.

PRELIMINARY STATEMENT

Petitioner filed with the Florida Commission on Human

Relations (FCHR) a Charge of Discrimination against Respondent,

dated November 14, 2008. On April 30, 2009, after it completed

its investigation, the FCHR issued a “Notice of Determination:

No Cause.” Petitioner challenged that determination by filing a

Petition for Relief dated June 4, 2009.

Alleging a violation of the Florida Civil Rights Act of 1992,

as amended, the Petition for Relief states, in relevant part, that:

My public employer, Florida Highway Patrol

["FHP"] improperly considered my medical

condition in terminating my employment. In

particular, the FHP made a value judgment on

the legitimacy of my medical condition and

treatment. Although I r ece ived a la wful

pr escri ptio n [fo r an aboli c st eroid s, S chedu le

II I sub stan ces,] and fill ed m y pre scri ption at

a pharm acy licen sed in th e St ate o f Fl orida ,

th e FHP ter minat ed m y emp loym ent f or a llege dly

po ssess ing an unla wful prescription. There is

no evidence that I obtained anything other than

lawful FDA approved treatment for a bona fide

medical condition.

In addi tion , FHP dis close d my medi cal condi tion

to the publ ic by pla cing medi cal i nfor matio n

an d rec ords in m y pe rsona l fi le. My e mploy er

vi olate d th e Flo rida Civi l Ri ghts Act, Fla Stat

§7 60 an d th e Ame rica ns Wi th D isabi liti es Ac t,

as amen ded by wr ongf ully term inati ng m y

em ploym ent and a ttac hing a ne gativ e an d

un lawfu l st igma to t he na ture of m y me dical

co nditi on. I an d ot her o ffic ers h ave been

te rmina ted based on the e mplo yer's vie w of our

me dical tre atmen t as unco nven tiona l. I hav e

be en su bjec ted t o a numbe r of hara ssin g

co mment s ab out m y co nditi on i nclud ing being

ca lled dero gator y na mes s uch as "d rug deale r"

an d "ju iceh ead."

At all time s I w as u nder a do ctor' s ca re an d

[h ad a] pre scrip tion for my m edica l co nditi on.

Th e Dep ar tmen t d i d not ha ve me dru g test ed or

alle ge th at t hey h ad a ny re ason abl e su spici on

ab out m y pe rform ance . To the cont rary , the

De partm ent only lear ned a bout my m edic al

co nditi on b y ill egal ly ob tain ing m y me dical

re cords fro m the Bro ward Coun ty Sh erif f's

Of fice on a n unr elat ed in vest igati on. FHP

co nfisc ated my m edic al file s without lawful

subpoena or a release.

Petitioner is separately pursuing a proceeding in which the

Public Employees Relation Commission (PERC) determined that

Petitioner lawfully obtained the anabolic steroids and that

Respondent was not justified in terminating his employment. The

PERC order is on appeal and has been stayed by the District

Court of Appeal for the First District of Florida. It is not

the purpose in this case to determine whether Petitioner acted

lawfully, but whether Respondent acted unlawfully by

discriminating against Petitioner.

At the final hearing, on October 2, 2009, Petitioner

testified on his own behalf. Petitioner's Exhibits 1-4, 9

(pages 1-5), 11, and 13 (page 3) were received into evidence.

Respondent also called Petitioner as a witness in its case-in-

chief. Respondent's Exhibits A1 (71 pages), A4, and A5 were

received into evidence.

Because one of Petitioner's witnesses was unavailable on

October 2, 2009, the day scheduled for the hearing, and over the

objection of Respondent's counsel, the case was reconvened on

October 21, 2009, to allow Petitioner to present the testimony

of Carlos G. Levy, M.D.

The two-volume Transcript was filed on November 10, 2009.

Proposed Recommended Orders, filed by Petitioner on November 13,

2009, and by Respondent on November 17, 2009, have been

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Michael Jeffries, was employed as a

trainee, then as a trooper by the Florida Highway Patrol (FHP)

from August 5, 1991, to January 30, 2009.

2. During that time, Petitioner received a written

reprimand in 1985 for "failure to perform job duties" and was

suspended for 40 days in 1997 because his drivers' license was

about to be suspended.

3. In 2004, Petitioner had symptoms of fatigue, low sex

drive, and difficulty sleeping.

4. Petitioner read an advertisement, as he remembers, in a

muscle and fitness magazine, for PowerMedica, a facility that

listed itself as a provider of hormone replacement therapy (HRT)

that could alleviate fatigue and low sex drive.

5. Petitioner visited the offices of PowerMedica which

appeared to be a typical medical office in a multi-story office

building. Petitioner has learned in retrospect that, as it

appeared, in April 2004, PowerMedica held a valid State of

Florida license as a medical facility, a pharmacy. He asked the

receptionist for information about PowerMedica, she gave him a

brochure, and he left.

6. Petitioner next consulted his primary care physician,

Carlos G. Levy, M.D. Dr. Levy was unable to recall if he saw

Petitioner for specific complaints or for his annual physical.

Petitioner's blood was drawn in Dr. Levy's office and sent to

LabCorp for testing on April 28, 2004. Dr. Levy reviewed the

results of the test with Petitioner and diagnosed him as having

hypogonadism, a condition manifested by a low testosterone level

of 201, or any level below 300, according to Dr. Levy, although

the test results form indicated that 241 to 827 is the normal

range. By either standard, Petitioner was, according to

Dr. Levy, hypogonatic and his condition should have been treated

to avoid more serious health problems.

7. Dr. Levy is board certified in osteopathic family

medicine. As a part of his regular practice, he treats patients

with low testosterone, usually beginning with topical

preparations. His patients have monthly blood tests and, if the

topical testosterone is not being absorbed adequately, he uses

testosterone injections. Despite having diagnosed his

condition, Dr. Levy did not treat Petitioner.

8. Rather than seeking treatment from Dr. Levy, Petitioner

made a second visit to the PowerMedica office. This time

Petitioner filled out a confidential medical questionnaire. On

the form, he indicated that he had no decrease in sexual potency

and no sleep disturbances, or any other medical conditions. He

testified that he was embarrassed to put low testosterone, or

his symptoms on the form that would be seen by the receptionist

and others in the office, but that he did tell a gentleman in a

white lab coat in a private room at PowerMedica about his

condition. He also gave that gentleman a copy of his blood

tests results and was advised that his records would be reviewed

by a doctor. He did not believe that the gentleman or anyone

else that he personally met at PowerMedica was a doctor.

9. Approximately a week later, Petitioner received a

telephone call from someone he believed to be a doctor or

someone who was calling for a doctor at PowerMedica. That

person said his records had been reviewed, and he could get

prescriptions from, and could get them filled at, PowerMedica.

10. On his third visit to PowerMedica, Petitioner received

four prescriptions, dated June 11, 2004, all signed by a Dr. Al

Almarashi, whom he had never met. The prescriptions were filled

at PowerMedica. Petitioner received two anabolic steroids:

Stanozolol and Nandrolone Decanoate; a human chorionic

gonadotropin, Novarel, that is used to stimulate testosterone

and sperm production; and Clomiphene, an anti-estrogen drug.

11. Petitioner testified that Dr. Levy was aware that he

was seeking HRT for low testosterone from another facility.

Dr. Levy denied that he was ever advised that Petitioner had

purchased and used Stanozolol and Nandrolone. He did not recall

being told that Petitioner had purchased and used Novarel or

Clomiphene. According to his medical notes, Dr. Levy did not

see Petitioner again after April 2004 until September 8, 2005.

12. Petitioner became aware that State and federal

agencies were investigating PowerMedica and stopped buying their

controlled substances, but he did not notify his employer of his

connection to the pharmacy nor did he offer to assist with the

investigation. The Broward County Sheriff's Department, in

cooperation with the Food and Drug Agency (FDA), determined that

Dr. Almarashi was not a Florida-licensed physician and could not

lawfully write prescriptions in Florida, and that PowerMedica

was selling controlled substances to people without appropriate

examinations and documentation of any related medical

conditions. As a result, the State suspended its license and

the FDA closed PowerMedica. The Sheriff's Department obtained

the PowerMedica customers' list and gave law enforcement

agencies the names of any of their law enforcement officers

whose names were on the list.

13. Because his name was on the list, Petitioner was

investigated by Respondent. He was notified in a letter dated

January 14, 2009, that his employment was terminated for the

following reasons:

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.

14. Based on his own testimony, Petitioner tried to tell

FHP investigators that he had a legitimate medical condition and

they refused to believe him. In fact, their report disputes

Dr. Levy's diagnosis by asserting that the blood test showed

"low testosterone serum but not low free testosterone." The

report also faults Petitioner for not being suspicious and for

not holding himself to a higher standard as a law enforcement

officer who would be aware of the stigma attached to the

purchase and use of controlled substances, not as alleged by

Petitioner that there was a "stigma" of actually having the

condition. The investigators concluded Petitioner knew he was

purchasing controlled substances illegally, in part, because (1)

they concluded that he really did not have any related medical

condition, (2) he was not treated by his primary care doctor who

diagnosed what he claimed was a condition, (3) he had no valid

doctor-patient relationship with PowerMedica, and (4) he did not

come forward with information about his connection to

PowerMedica when he became aware of a law enforcement

investigation.

15. Taken as a whole, the evidence supports a finding that

Respondent terminated Petitioner’s employment because its

investigators decided, correctly or incorrectly, that Petitioner

knew or should have known that he unlawfully purchased and

consumed Schedule III controlled substances.

CONCLUSIONS OF LAW

16. The DOAH has jurisdiction over the subject matter and

parties to this case. See §§ 760.11(7), 120.569, and 120.57(1),

Fla. Stat. (2009).

17. The Florida Civil Rights Act of 1992, as amended, is

codified in Sections 760.01 thorough 760.11, Florida Statutes

(2009). § 760.01(1), Fla. Stat. (2009).

18. A "discriminatory practice" is a practice made

unlawful by the Florida Civil Rights Act of 1992." § 760.02(4),

Fla. Stat. (2009).

19. Section 760.10, Florida Statutes (2009), 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. (Emphasis Added)

20. "Handicap" has been equated to "disability" and, in

the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C.S.

Section 12102(1), the term "disability" is defined, in relevant

part, 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 . . . .

21. 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).

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

case of discrimination in violation of either of the act,

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 on a disability. See Hansen v.

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

1296.

23. For purposes of this analysis, it is assumed,

arguendo , that Respondent's findings were incorrect and that

Petitioner has a disability, low testosterone levels or

hypogonadism.

24. The second prong of the test, that Petitioner is able

to perform in his position, is also assumed in the absence of

evidence to the contrary.

25. What Petitioner has failed, however, to prove is that

Respondent terminated him because he had a disability.

26. The initial burden of proving a prima facie case of

discrimination having not been met, although not required to do

so, Respondent did support its claim that the reasons given for

terminating Petitioner's employment were not a pretext.

Respondent was motivated only by a belief that Petitioner had

violated the law, specifically Subsection 893.13(6)(a), Florida

Statutes, (2009), that provides:

(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.

27. Petitioner was discharged from his employment because

Respondent believed that Petitioner had committed a felony by

purchasing and using Schedule III drugs without valid

prescriptions.

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.

DONE AND ENTERED this 8th day of December, 2009, in

Tallahassee, Leon County, Florida.

S

___________________________________

ELEANOR M. HUNTER

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 8th day of December, 2009.

COPIES FURNISHED :

Sandra Coulter, Esquire

Florida Highway Patrol

Neil Kirkman Building

2900 Apalachee Parkway, A-432

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.