09-004131 Scott A. Roberts vs. City Of Apopka, Fl Status: Closed Recommended Order on Tuesday, April 20, 2010.

Summary: Petitioner, a firefighter, retired on permanent/total disability, sought re-employment--failed to prove discrimination based on disability.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCOTT A. ROBERTS, )

)

Petitioner, )

)

vs. ) Case No. 09-4131

)

CITY OF APOPKA, FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

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

in Apopka, Florida, on February 3, 2010, before Jeff B. Clark, a

duly-designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Scott A. Roberts, pro se

2839 West Fairbanks Avenue

Winter Park, Florida 32789

For Respondent: Thomas A. Moore, Esquire

Moore, Peterson & Zeitler, P.A.

Post Office Box 536636

Orlando, Florida 32853-6636

STATEMENT OF THE ISSUES

Whether Respondent, City of Apopka, Florida, was guilty of

an unlawful employment practice against Petitioner, Scott A.

Roberts, according to the Florida Civil Rights Act of 1992, as

amended, based on his "disability"; and whether or not he

received "disparate treatment."

PRELIMINARY STATEMENT

On February 25, 2009, Petitioner presented a Charge of

Discrimination alleging that Respondent had discriminated

against him based on a disability. His Charge of Discrimination

states, in part,

1) I was denied re-hire to the position of

Engineer-Paramedic on or about September 29,

2008. I was previously employed by the

Respondent as an Engineer-Paramedic until

I retired on November 4, 2004 with a

Disability Pension.

* * *

3) I believe that I have been discriminated

against because I am Regarded As Disabled in

violation [o]f the Americans With

Disabilities Act of 1990.

On June 26, 2009, Petitioner was mailed a Notice of

Determination: No Cause by the Florida Commission on Human

Relations ("Commission"), which advised that based on the

Commission's investigation of the Charge of Discrimination, it

was "determined that there is no reasonable cause to believe

that an unlawful employment practice has occurred."

On July 28, 2009, Respondent authored a 16-page Petition

for Relief, which broadened the allegation of unlawful

employment practice to include "disparate treatment." On

August 3, 2009, the Commission forwarded the Petition for Relief

to the Division of Administrative Hearings ("DOAH) requesting

assignment of an Administrative Law Judge to conduct proceedings

required by law and to submit a recommended order to the

Commission. On August 3, 2009, an Initial Order was sent to

both parties requesting, inter alia , mutually-convenient dates

for a final hearing. Based on the parties' response to the

Initial Order, on August 18, 2009, the case was scheduled for

final hearing on October 27, 2009, in Apopka, Florida.

On October 2, 2009, Petitioner requested a continuance; as

a result, on October 14, 2009, the case was rescheduled for

December 2, 2009. On November 25, 2009, Petitioner filed a

motion for continuance, and the case was rescheduled for

February 3, 2010.

The final hearing took place, as rescheduled, on

February 3, 2010. Petitioner testified in his own behalf and

presented five witnesses: George Lee Bronson, Richard Anderson,

Mark Frye, Sharon Thornton, and Kevin Kwader. Petitioner's

Exhibits A through P were admitted into evidence and marked

accordingly. In addition to cross-examination of Petitioner's

witnesses, Respondent called George Lee Bronson as its witness.

Respondent's Exhibits R1 through R17 were admitted into

evidence. Respondent proffered one exhibit, marked Respondent's

Proffered Exhibit 1. The parties' joint Exhibits 1 through 9

were admitted into evidence.

The following depositions were admitted in lieu of live

testimony of the deponents: Drs. Stephen Goll, Joseph Rojas,

and Barry Portnoy; and Timothy Roberts.

The parties stipulated that John Howe was promoted in 2009

to a position that Petitioner had sought in his re-employment

effort.

The two-volume Transcript of Proceedings was filed with the

clerk of DOAH on March 1, 2010. Both parties timely submitted

Proposed Recommended Orders.

All statutory references are to 2008 Florida Statutes,

unless otherwise indicated.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

formal hearing and on the entire record of this proceeding, the

following Findings of Fact are made:

1. Petitioner is a 47-year-old Caucasian male, who, in

November 2004, retired from Respondent's Fire Department as a

engineer-paramedic as being permanently and totally disabled.

2. Respondent is a municipality in Orange County, Florida.

3. After Petitioner suffered a job-related injury that

resulted in an anterior disc excision and fusion, C5-C6 and

C6-C7, he elected to pursue disability retirement. In

furtherance of his claim of total disability, he was examined by

three physicians, Drs. Portnoy, Rojas, and Goll. Drs. Portnoy

and Rojas determined that Petitioner had medical limitations

that disqualified him from employment as a firefighter.

Dr. Goll, prior to Petitioner's decision to proceed with a

disability pension, had opined that he was fit for duty without

limitations. Dr. Goll had the same opinion in January 2009.

4. In 2009, Petitioner sought re-employment with

Respondent. Incidental to his effort to be re-employed, he had

an additional examination by Dr. Portnoy. Dr. Portnoy examines

"thousands" of firefighters for Central Florida municipalities

and usually conducts examinations for Respondent.

5. Based on Dr. Portnoy's 2009 examination of Petitioner,

Dr. Portnoy determined that Petitioner "was not qualified to be

a firefighter for the City of Apopka."

6. The National Fire Protection Association Standard 1582

("NFPSA 1582") is referenced in Subsection 633.34(5), Florida

Statutes, dealing with physical qualifications of a firefighter.

While not required by statute, this standard is relied on by

physicians conducting qualifying examinations. Petitioner's

surgery is a basis for disqualification under NFPSA 1582.

7. Respondent accepted Dr. Portnoy's opinion and did not

re-employ Petitioner based on that opinion.

8. Kevin Kwader, offered by Petitioner as an individual

who received disparate treatment, apparently had cervical

surgery; however, it is unclear whether the surgery was as

comprehensive as Petitioner's. Mr. Kwader was returned to work

by the surgeon who performed the surgery with "no restrictions."

He was never evaluated by the physician conducting annual

physical examinations for Respondent as "not fit for duty."

9. Petitioner did not seek accommodation for a disability;

in fact, he indicated, specifically, that he was not seeking any

accommodation.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has subject

matter jurisdiction over timely-filed claims pursuant to

Subsections 760.11(4)(b) and 120.57(1) and Section 120.569,

Florida Statutes (2009).

11. The relevant provisions of Chapter 760, Florida

Statutes, commonly called the "Florida Civil Rights Act,"

specifically Sections 760.01 through 760.11, Florida Statutes,

are closely patterned after Title VII of the Federal Civil

Rights Act of 1964. Therefore, cases interpreting the Federal

Civil Rights Act have been deemed applicable to and persuasive

in interpreting the relevant provisions of Chapter 760, Florida

Statutes. Green v. Burger King Corp ., 728 So. 2d 369 (Fla. 3d

DCA 1999); Greene v. Seminole Electric Cooperative, Inc. , 701

So. 2d 646, 647 (Fla. 5th DCA 1997); Florida State University v.

Sondel , 685 So. 2d 923 (Fla. 1st DCA 1996).

12. The United States Supreme Court has established an

analytical framework within which courts should examine claims

of discrimination. In cases alleging discriminatory treatment,

Petitioner has the initial burden of establishing, by a

preponderance of the evidence, a prima facie case of

discrimination. St. Mary's Honor Center v. Hicks , 509 U.S. 502,

113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993); Combs v. Plantation

Patterns , 106 F.3d 1519 (11th Cir. 1997).

13. The burden of proof and the order of production in

this case was established by the United States Supreme Court in

McDonnell-Douglas Corp. v. Green , 411 U.S. 792, 93 S. Ct. 1817,

36 L. Ed. 2d 668 (1978), as refined by the Court in Texas

Department of Community Affairs v. Burdine , 450 U.S. 248,

101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981), and in St. Mary's

Honor Center v. Hicks , supra . In these three cases, the Court

developed a three-step allocation of the burden of production.

14. Under the McDonnell Douglas model, the petitioner

bears the initial burden of establishing a prima facie case of

discrimination. Proof of a prima facie case under McDonnell-

Douglas raises a presumption that the respondent's decision was

motivated by discrimination. St. Mary's Honor Center v. Hicks ,

509 U.S. at 506. Demonstrating a prima facie case is not

onerous; it requires only that Petitioner establish facts

adequate to permit an inference of discrimination. McDonnell-

Douglas , supra , at 802.

15. The purpose of the three-step allocation of the burden

of production is to assist Petitioner in proving unlawful

discrimination when proof of discriminatory intent or motivation

is required. Because the Court recognized that it is very

difficult to prove discriminatory intent or motivation, the

prima facie case of discrimination prescribed in McDonnell-

Douglas and Burdine requires only that Petitioner establish that

he or she is a member of the protected class and has been denied

the benefits available under the law. St. Mary's Honor Center ,

113 S. Ct. at 2746-49; Barth v. Gelb , 2 F.3d 1180, 1185-86

(D.C. Cir. 1993).

16. Once the presumption of discriminatory intent is

raised, Respondent is able to rebut it by introducing admissible

evidence of a reason, which, if believed by the trier-of-fact,

supports a finding that discrimination was not the cause of the

challenged action. Equal Employment Opportunity Commission v.

Navy Federal Credit Union , 424 F.3d 397, 405 (4th Cir. 2005);

and Grigsby v. Reynolds Metals Co. , 821 F.2d 590, 594 (11th Cir.

1987). Respondent is required only to produce admissible

evidence, which would allow the trier-of-fact rationally to

conclude that the decision complained of had not been motivated

by discriminatory animus . Texas Department of Community Affairs

v. Burdine , 450 U.S. at 257. Respondent "need not persuade the

court that it was actually motivated by the proffered reasons

. . . [i]t is sufficient if [Respondent's] evidence raises a

genuine issue of fact as to whether it discriminated against

[Petitioner]." Id. at 254. This burden is characterized as

"exceedingly light." Perryman v. Johnson Products Co., Inc. ,

698 F.2d 1138, 1142 (11th Cir. 1983).

17. Where Respondent meets this burden, Petitioner has the

opportunity to demonstrate that Respondent's articulated reason

for the adverse action is a mere pretext for discrimination.

McDonnell Douglas Corp. v. Green , 411 U.S. at 804; Roberts v.

Gadsden Memorial Hospital , 835 F.2d 793, 796 (11th Cir. 1988).

This demonstration merges with Petitioner's ultimate burden of

showing that Respondent intentionally discriminated against

Petitioner. St. Mary's Honor Center v. Hicks , 509 U.S. at 511;

Pignato v. American Trans Air, Inc. , 14 F.3d 342, 347 (7th Cir.

1994). Put another way, once Respondent succeeds in carrying

its intermediate burden of production, the ultimate issue in the

case becomes whether Petitioner has proven that Respondent

intentionally discriminated against him because of his

disability. Turnes v. AmSouth Bank, N.A. , 36 F.3d 1057, 1061

(11th Cir. 1994). Once Respondent produces evidence of a

legitimate, nondiscriminatory reason for the challenged action,

any presumption of discrimination arising out of the prima facie

case "drops from the case." See Krieg v. Paul Revere Life Ins.

Co. , 718 F.2d 998, 1001 (11th Cir. 1983), cert . den. , 466 U.S.

929 (1984); Navy Federal Credit Union , 424 F.3d at 405. The

ultimate burden remains upon Petitioner to prove that Respondent

intentionally discriminated against him. Burdine , 450 U.S.

at 256. Stated another way, "[t]he ultimate question in a

disparate treatment case is not whether [Petitioner] established

a prima facie case or demonstrated pretext, but 'whether the

defendant intentionally discriminated against the

[Petitioner].'" Pashoian v. GTE Directories , 208 F. Supp. 2d

1293, 1308 (M.D. Fla. 2002).

18. Subsection 760.10(1)(a), Florida Statutes, states:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire any 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.

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

760.02(7), Florida Statutes, which provides:

(7) "Employer" means any person employing

15 or more employees for each working day in

each of 20 or more calendar weeks in the

current or preceding calendar year, and any

agent of such a person.

20. The unlawful employment practice alleged in this case

is discrimination based on disability. In order to prove a

prima facie case of discrimination based on disability,

Petitioner must prove that he was: (1) a member of the

protected class, (2) qualified to do the job; (3) subjected to

adverse employment action; and (4) replaced by a person outside

the protected class or suffered from disparate treatment because

of membership in the protected class. Kelliher v. Veneman ,

313 F.3d 1270, 1275 (11th Cir. 2002); Williams v. Vitro Services

Corporation , 144 F.3d 1438, 1441 (11th Cir. 1998); Anderson v.

Lykes Pasco Packing Co. , 503 So. 2d 1269, 1270 (Fla. 2d DCA

1986).

21. Petitioner has failed to prove that he is qualified to

do the job, an essential element of a prima facie case, or

assuming, arguendo , that he is qualified to do the job and that

the reason given for not hiring him is pretextual. Respondent

clearly relied on the medical opinion of an independent

physician that Petitioner was not qualified to be a firefighter,

a legitimate non-discriminatory business reason for not hiring

Petitioner.

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 with prejudice the Petition for

Relief for failure to establish an unlawful discriminatory act

by Respondent, City of Apopka, Florida.

DONE AND ENTERED this 20th day of April, 2010, in

Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

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 20th day of April, 2010.

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

Thomas A. Moore, Esquire

Moore, Peterson & Zeitler, P.A.

Post Office Box 536636

Orlando, Florida 32853-6636

Frank Kruppenbacher, Esquire

City of Apopka

120 East Main Street

Apopka, Florida 32703

Scott Roberts

2839 West Fairbanks Avenue

Winter Park, Florida 32789

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.