11-000562 Simon Rowland vs. Winn Dixie Status: Closed Recommended Order on Tuesday, April 19, 2011.

Summary: Petitioner did not prove that he was discriminated against by Respondent.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SIMON ROWLAND , )

)

Petitioner , )

)

vs. ) Case No. 11 - 0562

)

WINN DIXIE , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice to all parties , a final hearing was

conducted in this case on April 7 , 2011, in Winter Haven ,

Florida, before Administrative Law Judge R. Bruce McKibben of

the Division of Administrative Hearings. The parties were

represented as set forth below.

APPEARANCES

For Petiti oner: Simon Rowland, pro se

5936 Silver Fox Drive

Winter Haven, Florida 33884

For Respondent: Cherie L. Silberman, Esquire

Constangy, Brooks & Smith, LLP

100 North Tampa Street, Suite 3350

Tampa, Florida 33601 - 1840

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent, Winn Dixie,

discriminated against Petitioner, Simon Rowland, on the basis of

his disability ( c erebral p alsy) in violation of the Florida

Civil Rights Act.

PRELIMINARY STATEMENT

On or ab out June 28, 2010, Petitioner filed an Employment

Complaint of Discrimination with the Florida Commission on Human

Relations ("Commission") . The Commission entered a

Determination: No Cause dated January 6, 2011. Petitioner

timely filed a Petition for R elief which was forwarded to the

Division of Administrative Hearings on February 11, 2011. The

undersigned A dministrative L aw J udge was assigned to the case ,

and a final hearing was set on the date and place indicated

above.

At the final hearing, Petition er testified on his own

behalf and offered no exhibits into evidence. Respondent called

one witness, Lora Prine, and offered no exhibits into evidence.

A transcript of the final hearing was not ordered by the

parties. By rule, parties were allowed ten da ys to submit

proposed recommended orders. Respondent timely submitted a

P roposed R ecommended O rder , and it was duly considered in the

prepara tion of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is an elderly man who has had cerebral palsy

since birth.

2. In August 2004, Petitioner went to work at the Dundee,

Florida , Winn Dixie store as a courtesy clerk or bagger. His

duties were to retrieve shopping carts from the parking lot,

help customers, clean restrooms, and other general duties. He

w as not as fast a worker as others, but Winn Dixie accommodated

him so that he could continue working.

3. Petitioner claims that he was initially told he would

work 20 to 25 hours per week. Winn Dixie asserts that he was

given no indication of hours he might work. It is clear that

Petitioner worked approximately ten hours per week during his

employment. Lora Prine was the manager of the Dundee store , and

Petitioner enjoyed working with Prine.

4. Prine was later transferred to the Winter Haven store ,

and Petitioner asked to be transferred there , as well. There

was no position open at first, but when a position became

available, Prine contacted Petitioner to apply. When he was

hired at the Winter Haven store, Petitioner was told that he

would average between ten and 15 hours per week.

5. While Petitioner was working at the Winter Haven store,

Prine would make sure that his duties were consistent with his

capabilities. She would make sure that Petitioner had

assistance when lifting heavy objects, for example, when he was

bagging groceries. Prine also allowed Petitioner to leave work

early on many occasions due to illness and to miss work

altogether at times, e.g., when he needed to visit his ailing

brother in Gainesville. Petitioner freely admits th at Prine and

Winn Dixie accommodated him when he was working there.

6. In November 2009, Petitioner was hospitalized for a

week. The hospitalization involved an unnamed malady, but

Petitioner was adamant that it did not involve a stroke. There

is no evi dence that Winn Dixie believes Petitioner suffered a

stroke at that time. Upon release from the hospital, Petitioner

was provided with portable oxygen. He said that the oxygen was

supposed to be used while he was sleeping, but he used it a few

times duri ng the day right after he got out of the hospital.

Prine learned from Petitioner's son that Petitioner was using

oxygen.

7. In mid - January 2010, Petitioner called Prine to see

about coming back to work. Prine had just returned from medical

leave and ask ed Petitioner to call her back in a few days. When

Petitioner called back, he discussed his hospitalization and

convalescence with Prine. He informed Prine of his need to

utilize oxygen as a result of his illness. Prine suggested to

Petitioner that mayb e it was time for him to retire; Petitioner

agreed with Prine that it was time.

8. Prine annotated Petitioner's work file to indicate he

was on retired status.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has

jurisdiction over the parti es to and the subject matter of this

proceeding pursuant to se ctions 120.569 and 120.57(1), Florida

Statutes (2010). 1/

10. The Florida Civil Rights Act of 1992 (the "Act") is

codified in se ctions 760.01 through 760.11 and s ection 509.092,

Florida Statutes. Among other things, the Act makes certain

actions by employers "unlawful employment practices" and gives

the Commission authority , following an administrative hearing

conducted pursuant to s ections 120.569 and 120.57 , to issue an

order "prohibiting the p ractice and providing affirmative relief

from the effects of the practice, including back pay."

§§ 760.10 and 760.11(6).

11. Petitioner has the burden of proof that he was the

victim of a discriminatory act. See Dep't of Banking and Fin.

v. Osborne Stern and Co. , 670 So. 2d 932, 934 (Fla. 1996),

wherein the Court stated: "The general rule is that a party

asserting the affirmative of an issue has the burden of

presenting evidence as to that issue."

12. In order to support a claim of discrimination under

t he Florida Civil Rights Act, Petitioner must first establish

that he is a member of a protected class. His uncontroverted

testimony is that he suffers from cerebral palsy.

13. In a discrimination case, the petitioner has the

initial burden of establishing a prima facie case of

discrimination. McDonnell Douglas Corp. v. Green , 411 U.S. 792,

93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Once the petitioner

proves a prima facie case of discrimination, the burden shifts

to the respondent to proffer a legitimate, non - discriminatory

reason for the action it took. Texas Dep 't of C mty . Aff . v.

Burdine , 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981).

The respondent's burden is one of production, not persuasion.

14. In the present case, however, Petitioner met his

initial burden of proof as to his status as a member of a

protected class. However, Petitioner then freely admitted that

Winn Dixie had not discriminated against him and had provided

him all necessary accommodations to perform his work tasks.

How ever, he had communicated his decision to retire to his

employer, who acted on that communication by having other

employees cover the hours Petitioner would have worked.

15. Petitioner is frustrated because he now wants to go

back to work. However, he did not prove that he was

discriminated against for any reason.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by the Florida

Commission on Human Relations denying Petitioner, S imon

Rowland's, Petition for Relief in full.

DONE AND ENT ERED this 1 9 th day of April , 2011 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of Administrative Hearings

The DeSo to Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 9 th day of April , 2011 .

ENDNOTE

1/ Unless specifica lly stated otherwise herein, all references

to Florida Statutes shall be to the 2010 version.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry Krane rt, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Simon Rowland

5936 Silver Fox Drive

Winter Haven, Florida 33884

Cherie L. Silberman, Esquire

Constangy, Brooks & Smith, LLP

100 Nort h Tampa Street , Suite 3350

Tampa, Florida 33601 - 1840

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 b e filed with the agency that

will issue the Final Order in this case.