09-002392 Gerald L. Betts vs. Seminole County School Board Status: Closed Recommended Order on Friday, November 20, 2009.

Summary: The evidence fails to establish disability and, even presuming such, fails to establish that adverse employment action was discrminatory or retaliatory.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GERALD L. BETTS, )

)

Petitioner, )

)

vs. ) Case No. 09-2392

)

SEMINOLE COUNTY SCHOOL BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

On August 27, 2009, an administrative hearing in this case

was held in Sanford, Florida, before William F. Quattlebaum,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Gerald L. Betts, pro se

427 Sheoah Boulevard, Apartment 35

Winter Springs, Florida 32708

For Respondent: Robert J. Sniffen, Esquire

Sniffen & Spellman, P.A.

211 East Call Street

Tallahassee, Florida 32301

Serita D. Beamon, Esquire

Seminole County School Board

Legal Service Department

400 East Lake Mary Boulevard

Sanford, Florida 32773-7127

STATEMENT OF THE ISSUE

The issue in this case is whether the Seminole County

School Board (Respondent) discriminated against Gerald L. Betts

(Petitioner) on the basis of disability or otherwise retaliated

against the Petitioner for requesting an accommodation of a

disability.

PRELIMINARY STATEMENT

By a complaint dated October 7, 2008, and filed with the

Florida Commission on Human Relations (FCHR), the Petitioner

alleged that the Respondent discriminated against him by denying

a reasonable accommodation for a disability (chemical

sensitivity). The Petitioner also alleged that the Respondent

retaliated against him for requesting the accommodation.

By a Determination: No Cause dated March 25, 2009, FCHR

stated that there was "no reasonable cause to believe that an

unlawful employment practice occurred" and advised the

Petitioner of his right to dispute the determination. The

Petitioner did so by filing a Petition for Relief dated

April 23, 2009, with FCHR. The petition was forwarded to the

Division of Administrative Hearings, which scheduled and

conducted the proceeding.

At the hearing, the Petitioner testified on his own behalf,

presented the testimony of one witness, and had Exhibits

numbered 1 through 4 admitted into evidence. The Respondent

presented the testimony of three witnesses and had Exhibits

numbered 3, 5, 7 through 9, 17 through 20, 22 through 25, 30

through 32, and 38 admitted into evidence.

The Transcript of the hearing was filed on September 17,

2009. On September 28, 2009, the Respondent filed a Consented

Motion for Extension of Time to File Proposed Recommended Order,

which was granted by Order of September 28, 2009. Both parties

filed Proposed Recommended Orders on October 19, 2009, that have

been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times material to this case, the Petitioner was

employed by the Respondent as a part-time custodian. For the

past 11 years, the Petitioner was assigned to work at Indian

Trails Middle School (Indian Trails).

2. The Petitioner's work schedule at Indian Trails, since

his initial employment and through the 2007-2008 school year,

required that he work from 6:00 p.m. to 10:00 p.m., Monday

through Friday.

3. In addition to working for the Respondent at Indian

Trails, the Petitioner worked for Siemens AG (Siemens) as a

full-time custodian, working 40 hours per week.

4. The Petitioner had been an employee of Siemens (or

predecessor companies) for about 16 years. The Petitioner's

schedule at Siemens required him to work from 8:30 a.m. to

5:00 p.m., Monday through Friday.

5. On April 28, 2008, Lois Chavis assumed the position of

principal at Indian Trails. Ms. Chavis was charged with

resolving various problems that existed at the school.

6. Ms. Chavis quickly observed that the condition of the

school facility was, as described at the hearing, "filthy." In

addition to her own observation, she heard complaints from both

teachers and parents of children attending Indian Trails about

the cleanliness and condition of the school.

7. Soon after becoming the school principal, Ms. Chavis

met with the custodial staff and expressed her concern about the

condition of the school campus. She anticipated that the

conditions of the school would then improve, but the progress

was minimal.

8. Ms. Chavis became aware that some custodial employees

used work hours for television viewing or phone conversations,

that some custodial employees routinely left campus before

completion of assigned work schedules, and that one custodian

operated a "car detailing" business from the back of the school.

There was no credible evidence presented that the Petitioner

engaged in any of the referenced behavior.

9. Ms. Chavis initiated efforts to contract with a private

cleaning service to assume janitorial responsibilities for the

school, a solution she successfully implemented at another

school to which she had been previous assigned.

10. In June 2008, the Petitioner advised Ms. Chavis that

he was having medical problems related to his use of "DMQ," a

cleaning product used to clean the Indian Trails locker rooms.

He provided to Ms. Chavis a copy of a physician's letter dated

June 5, 2008, advising that the Respondent not be exposed to

"solvents" for at least three months.

11. The Respondent used DMQ in an effort to combat

Methicillin-Resistant Staphylococcus Aureus (MRSA), a contagious

bacterial infection. There was no evidence presented that DMQ

is not a safe cleaning product when used properly.

12. The Petitioner has alleged that use of DMQ caused him

to lose his sense of taste and smell. There was no medical

evidence presented at the hearing to establish that the

Petitioner's alleged condition was related to the use of DMQ or

of any other cleaning products used by the Respondent.

13. The Petitioner has claimed that Ms. Chavis advised him

he would be terminated if he could not use the DMQ. The

evidence established that after the Petitioner informed

Ms. Chavis of the situation, he was advised that he could use

cleaning products other than DMQ, and his work assignment was

changed from locker room to cafeteria cleaning. There was no

medical evidence presented at the hearing that the Petitioner

was unable to safely use cleaning products other than DMQ.

14. There was no credible evidence presented that the

Respondent failed or refused to provide a reasonable

accommodation to the Petitioner for the alleged sensitivity to

DMQ.

15. In June 2008, the Respondent executed a contract with

a private cleaning service that became effective on July 1,

2008. After contracting with the private vendor, several of the

Indian Trails custodians had their employment terminated.

16. In August 2008, Ms. Chavis decided to alter the work

schedules of the remaining Indian Trails custodial staff in an

effort to improve accountability and job performance. The

revised schedules, which were to take effect on August 18, 2008,

required the custodial staff to work from 2:00 p.m. to

6:00 p.m., Monday through Friday, which placed the custodial

staff on the campus when other employees were present.

17. The Indian Trails assistant principal provided copies

of the revised schedules to the remaining custodians.

18. After receiving the revised schedule, the Petitioner

requested that Ms. Chavis permit him to continue working his

previous schedule from 6:00 p.m. to 10:00 p.m. because the new

2:00 p.m. to 6:00 p.m. schedule conflicted with his primary

employment at Siemens. The Petitioner also made the same

request to the Respondent’s executive director of Human

Resources and Professional Standards, John Reichert. Both

Ms. Chavis and Mr. Reichert denied the Petitioner's request.

19. There is no evidence that the Petitioner's request to

retain his original work schedule was related to any medical

condition.

20. The Petitioner did not report for work at Indian

Trails on August 18 through 20, 2008. He called in "sick" on

August 18, 2008, but was not ill. The Petitioner reported to

Indian Trails for work at 6:00 p.m. on August 21, 2008, but was

advised that he was required to work his assigned shift from

2:00 p.m. to 6:00 p.m.

21. The Petitioner reported for work at Siemens on each

day during August 18 through 21, 2008, and on each scheduled

work day during September 2008.

22. After August 21, 2008, the Petitioner did not again

report for work at Indian Trails.

23. The Petitioner's accrued leave time with the

Respondent was expended as of August 25, 2008.

24. After the Petitioner's leave time was exhausted, he

was initially suspended without pay and subsequently terminated

from employment for repeated and continuing absence from duty

without approved leave. The Petitioner's termination was

effective on October 15, 2008.

25. The suspension and termination were implemented

pursuant to the relevant provisions of the collective bargaining

agreement between the Respondent and the Non-Instructional

Personnel of Seminole County. There is no evidence that the

Respondent failed to properly and appropriately apply the

referenced contractual provisions.

26. There was no evidence that the Petitioner's work

schedule was altered by the Respondent in retaliation for his

request that his disability be accommodated or for any other

reason.

CONCLUSIONS OF LAW

27. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2009).

28. Chapter 760, Part I, Florida Statutes (2008), sets

forth the Florida Civil Rights Act of 1992 (the "Act") that

prohibits employers from discriminating against employees on the

basis of handicap. Florida courts have determined that

Title VII federal discrimination law should be used as guidance

when applying the provisions of the Act. Florida Department of

Community Affairs v. Bryant , 586 So. 2d 1205 (Fla. 1st DCA

1991); School Board of Leon County v. Hargis , 400 So. 2d 103

(Fla. 1st DCA 1981).

29. The Respondent is an “employer” as defined in

Subsection 760.02(7), Florida Statutes (2008).

30. Subsection 760.10, Florida Statutes (2008), states, in

relevant part, as follows:

(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.

* * *

(7) It is an unlawful employment practice

for an employer, an employment agency, a

joint labor-management committee, or a labor

organization to discriminate against any

person because that person has opposed any

practice which is an unlawful employment

practice under this section, or because that

person has made a charge, testified,

assisted, or participated in any manner in

an investigation, proceeding, or hearing

under this section.

31. In this case, the Petitioner has alleged that the

Respondent discriminated against him on the basis of disability

and, thereafter, retaliated against him for requesting an

accommodation for his disability.

32. The Petitioner has the burden of establishing

discrimination either by direct or indirect evidence. Direct

evidence is that which would prove the fact of discrimination

without use of inference or presumption, such as deliberate

speech. There is no evidence of direct discrimination by the

Respondent in this case. Lacking direct evidence of

discrimination, the Petitioner must establish a case of indirect

discrimination.

33. The United States Supreme Court set forth the analysis

that must be applied in considering an employment discrimination

claim under Title VII in McDonnell Douglas Corporation v. Green ,

411 U.S. 792 (1973), as refined in Texas Department of Community

Affairs v. Burdine , 450 U.S. 248 (1981), and St. Mary's Honor

Center v. Hicks , 509 U.S. 502 (1993).

34. The Petitioner has the initial burden of establishing

a prima facie case of unlawful discrimination. In order to meet

the initial burden, the Petitioner must establish that: (1) he

is a member of a protected class; (2) he was subjected to an

adverse employment action; (3) the Respondent treated similarly

situated employees more favorably; and (4) he was qualified to

do the job.

35. When a charge of discrimination is based on a

disability, the Act is construed in accordance with the

Americans with Disabilities Act (ADA), 42 U.S.C. Section 12101,

et seq. D'Angelo v. ConAgra Foods, Inc. , 422 F.3d 1220 (11th

Cir. 2005); Razner v. Wellington Regional Medical Center, Inc. ,

837 So. 2d 437 (Fla. 4th DCA 2002).

36. The Act does not set forth a definition of the term

"handicap." In relevant part, the ADA defines "disability" as a

physical or mental impairment that substantially limits one or

more major life activities, a record of such an impairment, or

having been regarded as having such an impairment. See

42 U.S.C. § 12102(1).

37. Regulations adopted by the Equal Employment

Opportunity Commission (EEOC) define major life activities as

"functions such as caring for oneself, performing manual tasks,

walking, seeing, hearing, speaking, breathing, learning, and

working." See 29 C.F.R. § 1630.2(i).

38. The EEOC regulations provide that "substantially

limits" means an individual is "unable to perform a major life

activity that the average person in the general population can

perform" or that the individual is "significantly restricted as

to the condition, manner, or duration under which an individual

can perform a particular major life activity as compared to the

condition, manner, or duration under which the average person in

the general population can perform that same major life

activity." See 29 C.F.R. § 1630.2(j).

39. The EEOC regulations identify three factors relevant

to the determination of whether an individual is substantially

limited in a major life activity: (1) the nature and severity

of the impairment, (2) the duration or expected duration of the

impairment, and (3) the permanent or long-term impact, or the

expected permanent or long-term impact of or resulting from the

impairment. See 29 C.F.R. § 1630.2(j)(2).

40. In this case, the evidence failed to establish that

the Petitioner is a member of a protected class by way of a

disability. There was no evidence that the Petitioner was or is

substantially limited in any major life activity. There was no

evidence that the Petitioner was or is unable to care for

himself, perform manual tasks, walk, see, hear, speak, breathe,

learn or work. There was no evidence that the Petitioner was

ever regarded as having a substantial limitation on any major

life activity. The fact that the Respondent was advised he

could use cleaning products other than DMQ is insufficient to

establish that the Petitioner was regarded by the Respondent as

disabled, particularly in light of the fact that the Petitioner

continued to work for the Respondent as well as in his primary

employment as a custodian for Siemens.

41. As for the remaining factors in the prima facie

discrimination analysis, there was no evidence that the

Petitioner was required to continue using the DMQ cleaning

solution about which he complained after he advised Ms. Chavis

of the situation. The Petitioner was subjected to an adverse

employment action (termination), but the action was clearly

related to the Petitioner's failure to report for work at the

scheduled time. There was no evidence that the schedule change

or the termination was related to any disability or that either

one occurred as retaliation for his request for accommodation of

his medical condition.

42. There was no evidence that the Respondent treated

similarly situated employees more favorably than the Petitioner.

All of the custodial staff remaining after the private vendor

took over cleaning responsibilities at the school had their

working schedules altered to require that they be present on

campus during the day.

43. The evidence established that the Petitioner was

qualified to do the job, as he continued to work as a custodian

at Indian Trails until the date upon which the schedule change

became effective, as well as in the same position at his primary

job at Siemens even after the termination action commenced.

44. Because the Petitioner failed to establish a prima

facie case of discrimination, the analysis normally ends, and

the Respondent has no obligation to articulate a legitimate non-

discriminatory reason for taking the action. Pace v. Southern

Railway System , 701 F.2d 1383, 1391 (11th Cir. 1983)("By

definition, failure to establish a prima facie case means that

the plaintiff has failed to proffer proof sufficient to impose

even a burden of rebuttal on the defendant" and citing Burdine

at 253-254).

45. Assuming that the Petitioner is determined to have

established a prima facie case of discrimination, this

Recommended Order includes consideration of the evidence

presented at the hearing by the Respondent which was intended to

establish a legitimate, nondiscriminatory reason for the

employment decision.

46. The Respondent is required only to "produce admissible

evidence which would allow the trier of fact rationally to

conclude that the employment decision had not been motivated by

discriminatory animus." Burdine , at 257. The Respondent "need

not persuade the court that it was actually motivated by the

proffered reasons . . ." Id. , at 254. The burden has been

characterized as "exceedingly light" ( Perryman v. Johnson

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

47. The Respondent has articulated a legitimate,

nondiscriminatory reason for the employment actions taken.

Here, the evidence established that the rationale for the

schedule change was based on the Respondent's interest in

requiring the custodial staff to be on campus when other

employees were present. The new schedules were a reasonable

response to the apparent abuses that previously occurred when

the custodial staff arrived at the end of the regular workday.

The termination of the Petitioner's employment was directly

related to his failure to report for duty.

48. Assuming the Petitioner's establishment of a prima

facie case and the Respondent's articulation of a legitimate,

nondiscriminatory reason for the employment decision, the burden

shifts back to the Petitioner, who must prove that the reason

offered by the Respondent is not the true reason, but is mere

pretext for the decision. McDonnell Douglas at 805. There is

no evidence in this case that the Respondent's rationale was a

pretext for discrimination on the basis of disability.

49. The ultimate burden of persuading the trier of fact

that there was intentional discrimination by the Respondent

remains at all times with the Petitioner. Burdine at 253. In

this case, the burden has not been met.

50. The analysis as to the charge of retaliation is

essentially similar to that of the discrimination charge. The

Petitioner first must establish a prima facie case of

retaliation at which point the burden shifts to the Respondent

to negate the inference of retaliation by presenting legitimate,

non-discriminatory reasons for its actions taken. Finally, the

burden returns to the Petitioner to prove that the Respondent's

rationale was mere pretext for the retaliation. Woodruff v.

Sch. Bd. of Seminole County , 304 Fed. Appx. 795 (11th Cir. Fla.

2008); Stewart v. Happy Herman's Cheshire Bridge , 117 F.3d 1278,

1287 (11th Cir. 1997).

51. To establish a prima facie case of retaliation, the

Petitioner must establish that: (1) he engaged in a statutorily

protected expression; (2) he was the subject of an adverse

employment action; and (3) there was a causal link between the

protected expression and the adverse action. Farley v.

Nationwide Mutual Insurance Co. , 197 F.3d 1322, 1337 (11th Cir.

1999); Rocky v. Columbia Lawnwood Reg. Medical Center , 54

F. Supp. 2d 1159, 1165 (S.D. Fla. 1999). It is unnecessary to

address the first two factors because there is no evidence

whatsoever that there was any connection between the

Petitioner's request for an accommodation and either the revised

work schedule or his subsequent termination for failure to

report for work.

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 the Petition for Relief

filed by Gerald L. Betts in this case.

DONE AND ENTERED this 20th day of November, 2009, in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

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 November, 2009.

COPIES FURNISHED :

Robert J. Sniffen, Esquire

Sniffen & Spellman, P.A.

211 East Call Street

Tallahassee, Florida 32301

Serita D. Beamon, Esquire

Seminole County School Board

Legal Service Department

400 East Lake Mary Boulevard

Sanford, Florida 32773-7127

Gerald L. Betts

427 Sheoah Boulevard, Apartment 35

Winter Springs, Florida 32708

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.