09-005546 Thomas Byrd vs. Leware Construction Company Status: Closed Recommended Order on Tuesday, March 2, 2010.

Summary: Respondent did not discriminate against Petitioner, who has renal cancer. Petitioner did not disclose that medical condition until he voluntarily walked off the job.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS BYRD, )

)

Petitioner, )

)

vs. ) Case No. 09-5546

)

LEWARE CONSTRUCTION CO., INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

final hearing in this proceeding for the Division of

Administrative Hearings (DOAH) on January 13, 2010, by video

teleconference in Tallahassee and Fort Myers, Florida.

APPEARANCES

For Petitioner: Gary Lee Printy, Esquire

Stephen E. Rengel, Esquire

Law Office of Gary Lee Printy

1804 Miccosukee Commons Drive, Suite 200

Tallahassee, Florida 32308

For Respondent: William R. Mabile, III

Andrews, Crabtree, Knox & Andrews, LLP

1558-1 Village Square Boulevard

Tallahassee, Florida 32309

STATEMENT OF THE ISSUE

The issue is whether Respondent discriminated against

Petitioner on the basis of Petitioner's age or perceived

disability in violation of the Florida Civil Rights Act,

Chapter 760, Florida Statutes (2008). 1

PRELIMINARY STATEMENT

On April 8, 2009, Petitioner filed a Charge of

Discrimination with the Florida Commission on Human Relations

(the Commission). The Charge of Discrimination alleges that

Respondent discriminated against Petitioner on the basis of

Petitioner's age and disability.

The Commission investigated the allegations in the Charge

of Discrimination and determined on September 30, 2009, that no

reasonable cause exists to believe that an unlawful employment

practice occurred. The Commission dismissed the charge of

discrimination; Petitioner filed a Petition for Administrative

Hearing on October 7, 2009; and the Commission referred the

matter to DOAH to conduct a final hearing.

At the hearing, Petitioner testified in his own behalf,

presented the testimony of one other witness, and submitted two

exhibits for admission into evidence. Respondent presented the

testimony of five witnesses and submitted six exhibits for

admission into evidence.

The identity of the witnesses and exhibits, and any

associated rulings, are reported in the Transcript of the

hearing filed with DOAH on February 10, 2010. Petitioner and

Respondent timely filed their respective Proposed Recommended

Orders ("PROs") on February 12 and 15, 2010.

FINDINGS OF FACT

1. Petitioner is an "aggrieved person" within the meaning

of Subsections 760.02(6) and (10). Petitioner is a 51-year-old

white male who had cancer in one kidney at the time of an

alleged unlawful employment practice.

2. Respondent is an "employer" within the meaning of

Subsection 760.02(7). Respondent is a construction company

engaged in the business of building bridges and other highway

structures in Florida. For the reasons set forth hereinafter, a

preponderance of the evidence does not show that Respondent

discriminated against Petitioner on the basis of Petitioner's

age or perceived disability.

3. Respondent employed Petitioner as a crane operator on

February 22, 2008, at a pay rate of $18.00 per hour. Petitioner

listed his residence as Naples, Florida. Petitioner was unaware

that he had any disability and did not disclose any disability

at the time of his initial employment.

4. Petitioner solicited employment from Respondent and was

not recruited by Respondent. Petitioner relocated from Wyoming

to Florida to be with his family.

5. Respondent assigned Petitioner to a construction job

that was under the supervision of Mr. Scot Savage, the job

superintendent. Mr. Brandon Leware was also a superintendent on

the same job. Mr. William (Bill) Whitfield was the job foreman

and Petitioner's immediate supervisor.

6. Sometime in October 2008, medical tests revealed that

cancer may be present in one of Petitioner's kidneys. The

treating physician referred Petitioner to a specialist, David

Wilkinson, M.D., sometime in October 2008.

7. Medical personnel verbally confirmed the diagnosis of

cancer to Petitioner by telephone on October 30, 2008. On the

same day, Petitioner voluntarily resigned from his employment

during a verbal dispute with his supervisors. Petitioner did

not disclose his medical condition until after he voluntarily

resigned from his employment.

8. The verbal dispute involved Petitioner and several of

his supervisors. On October 30, 2008, Mr. Whitfield, the

foreman, assigned work to several employees, including

Petitioner. Mr. Whitfield proceeded to complete some paperwork

and, when he returned to the job site, discovered the work

assigned to Petitioner had not been performed.

9. When confronted by Mr. Whitfield, Petitioner refused to

carry out Mr. Whitfield’s directions. Mr. Whitfield requested

the assistance of Mr Savage. Mr. Savage directed Petitioner to

return to work or quit. Petitioner quit and walked off the job.

10. As Petitioner was walking off the job, Petitioner

turned around and stated that he had cancer. Petitioner then

left the job site. Petitioner's statement that he had cancer

was the first disclosure by Petitioner and first notice to

Respondent that Petitioner had cancer.

11. The medical condition did not prevent Petitioner from

performing a major life activity. Respondent did not perceive

Petitioner to be impaired before Petitioner voluntarily ended

his employment. None of the employees of Respondent who

testified at the hearing regarded Petitioner as impaired or

handicapped or disabled or knew that Petitioner had cancer prior

to Petitioner's statement following his abandonment of his job

on October 30, 2008. 2

12. Within a week after Petitioner voluntarily left his

position, Petitioner returned, approached Vice-President

Mr. Scott Leware, and asked for his job back. Mr. Leware

advised him that he would not get his job back. At the time,

Mr. Leware was unaware that Petitioner had cancer. Mr. Leware

was the ultimate decision-maker, and Mr. Leware was unaware that

Petitioner had cancer when Mr. Leware made that decision

approximately a week after Petitioner voluntarily left his

employment.

13. The terms of employment did not entitle Petitioner to

a per diem payment while employed with Respondent. Petitioner's

residence in Naples was within 75 miles of the job site where

Petitioner worked.

14. Respondent did pay for the hotel room that Petitioner

used at the Spinnaker Inn while on the job, but not other per

diem expenses, including meals. The cost of the hotel ranged

between $50 and $60 a night.

15. Mr. Brandon Leware followed Petitioner to a gas

station and paid for gasoline for Petitioner’s vehicle.

Mr. Leware and Petitioner then went to the Spinnaker Inn where

Petitioner resided in a room paid for by Respondent. Mr. Leware

advised the manager of the Spinnaker Inn that Respondent would

pay for Petitioner’s lodging for that night, but not after that

night.

16. The rate of compensation that Respondent paid

Petitioner was within the normal range of compensation paid to

crane operators employed by Respondent. Crane operator

compensation ranges from $16.00 to $20.00 an hour. Respondent

paid Petitioner $18.00 an hour. A preponderance of the evidence

does not show that Respondent ever offered to pay Petitioner

$22.00 an hour.

17. The allegation of age discrimination is not a disputed

issue of fact. Petitioner admitted during his testimony that he

never thought Respondent discriminated against him due to his

age.

18. Respondent employed another crane operator with cancer

at the same time that Respondent employed Petitioner. The other

crane operator is identified in record as Mr. Roddy Rowlett.

Mr. Rowlett’s date of birth was October 14, 1949.

19. Mr. Rowlett notified Respondent that he had cancer,

and Respondent did not terminate the employment of Mr. Rowlett.

Mr. Rowlett continued to work as a crane operator until a few

weeks before his death.

20. A preponderance of evidence does not show that age,

cancer, or perceived impairment were factors in how Respondent

treated Petitioner during his employment with Respondent. A

preponderance of the evidence does not show that Respondent

hired anyone to replace Petitioner.

CONCLUSIONS OF LAW

21. DOAH has jurisdiction over the parties and the subject

matter of this proceeding. §§ 120.569 and 120.57(1). DOAH

provided the parties with adequate notice of the final hearing.

22. Petitioner bears the burden of proof in this

proceeding. Petitioner must show by a preponderance of the

evidence that Respondent discriminated against him on the basis

of a disability or perceived disability. McDonnell Douglas

Corp. v. Green , 411 U.S. 792, 93 S. Ct. 1817 (1973).

23. Petitioner must first establish a prima facie case of

discrimination. McDonnell Douglas , 411 U.S. at 802; Munoz v.

Oceanside Resorts, Inc. , 223 F.3d 1340, 1345 (11th Cir. 2000).

Petitioner can meet his burden of proof with either direct or

circumstantial evidence. Damon v. Fleming Supermarkets of

Florida, Inc. , 196 F.3d 1354, 1358 (11th Cir. 1999), cert.

denied , 529 U.S. 1109 (2000).

24. Direct evidence must evince discrimination without the

need for inference or presumption. Beaver v. Rayonier Inc. , 200

F.3d 723, 726 (11th Cir. 1999); Standard v. A.B.E.L. Services.,

Inc. , 161 F.3d 1318, 1330 (11th Cir. 1998). In other words,

direct evidence is so blatant that its intent could be nothing

other than to discriminate. Earley v. Champion Int'l Corp. , 907

F.2d 1077, 1081 (11th Cir. 1990).

25. There is no direct evidence of discrimination or

retaliation in this case. In the absence of direct evidence,

Petitioner must meet his burden of proof by circumstantial

evidence.

26. In order to establish a prima facie case of disability

discrimination, a preponderance of the circumstantial evidence

must show that Petitioner is disabled, that he was qualified for

the job, and that Respondent discriminated against Petitioner

based on the disability. Pritchard v. Southern Company

Services , 92 F.3d 1130 (11th Cir. 1996). Petitioner is

considered disabled under the Americans with Disabilities Act

(ADA) and Florida law, if he has a physical or mental impairment

that substantially limits one or more of his major life

activities, has a record of such impairment, or is regarded by

Respondent as having such an impairment. Talley v. Family

Dollar Stores of Ohio, Inc. , 542 F.3d 1099, 1105 (6th Cir.

2008); Pritchard , 92 F.3d at 1134.

27. It is undisputed that Petitioner was not in fact

disabled on October 30, 2008, at the time of the alleged adverse

employment action. Petitioner does not claim that his medical

condition prevented him from performing any major life activity.

28. A preponderance of the evidence shows that Respondent

did not perceive Petitioner to be disabled, that Respondent did

not take any adverse employment action against Petitioner, and

that Respondent did not discriminate against Petitioner based on

a perceived disability. The testimony of Petitioner to the

contrary is not credible or persuasive. The failure to

establish the last prong of the conjunctive test for a prima

facie case of discrimination ends the inquiry. Mayfield v.

Patterson Pump Co. , 101 F.3d 1371 (11th Cir. 1996); See also

Reeves v. Sanderson Plumbing Products., Inc. , 530 U.S. 133, 142,

120 S. Ct. 2097, 2106 (2000); Holifield v. Reno , 115 F.3d 1555,

1562 (11th Cir. 1997); Ratliff v. State , 666 So. 2d 1008,

1012 n.6 (Fla. 1st DCA 1996), aff'd , 679 So. 2d 1183 (1996)

( citing Arnold v. Burger Queen Systems , 509 So. 2d 958 (Fla. 2d

DCA 1987)).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Commission enter a final order finding

Respondent not guilty of the allegations against Respondent and

dismissing the Charge of Discrimination and Petition for

Administrative Hearing.

DONE AND ENTERED this 2nd day of March, 2010, in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

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 2nd day of March, 2010.

ENDNOTES

1/ References to chapters, sections, and subsections are to

Florida Statutes (2008), unless stated otherwise.

2/ Petitioner testified that blood in a urinal on the job site

revealed his cancer to his employers, caused them to perceive

him as having a disability, as being unsafe to operate a crane,

and led to them terminating his employment. The trier of fact

finds that testimony to be less than credible and persuasive and

in conflict with a preponderance of the evidence.

COPIES FURNISHED :

Gary Lee Printy, Esquire

Law Office of Gary Lee Printy

1804 Miccosukee Commons Drive, Suite 200

Tallahassee, Florida 32308

William R. Mabile, III, Esquire

Andrews, Crabtree, Knox & Andrews, LLP

1558 Village Square Boulevard

Tallahassee, Florida 32317

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.