11-004558 Keith A. Galloway vs. G-Force/Wackenhut Corp. Status: Closed Recommended Order on Wednesday, May 22, 2013.

Summary: Petitioner proved his employer discriminated against him by failing to provide reasonable accomodation for his disability and is entitled to an award of back pay and reinstatement.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KEITH A. GALLOWAY , )

)

Petitioner, )

)

vs. ) Case No. 11 - 4558

)

G - FORCE/WACKENHUT CORP , 1/ )

)

Respondent. )

_ _ )

RECOMMENDED ORDER

A n administrative h earing was conducted in this case on

June 28 and 29 , 2012 , in Pensacol a , Florida , before James H.

Peterson, III, Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Letta Dillard Gorman, Esquire

Post Office Box 207

Hartford, Alabama 36344

For Respondent: Latasha Garrison - Fullwood, Esquire

Taylor, Day, Currie, Boyd, and Johnson

50 North Laura Street, Suite 3500

Jacksonville , Florida 32202

STATEMENT OF THE ISSUE

Whethe r G4S Secure Solutions f/k / a The Wackenhut

Corporation (Respondent or G4S ) discriminated against Keith A.

Galloway ( Petitioner ) in violation of the Florida Civil Rights

Act of 1992, section s 760.01 - 760.11 and 509, Florida Statutes, 2/

and if so, what is the appropriate remedy.

PRELIMINARY STATEMENT

On December 20 , 20 10, Petitioner filed an Employment

Complaint of Discrimination (Complaint) with the Florida

Commission on Human Relations (the Commissio n or FCHR) alleging

employment discrimination by Respondent based on Petitioner's

disability. The Complaint was assigned FCHR No . 201100240 .

The Commission investigated the Complaint and o n June 27 ,

201 1 , issued a Determination which found Ð c ause. Ñ On th at same

day, the Commission issued a Notice of Determinatio n of Cause

(Notice) on the Complaint stating that the Commission Ð has

determined that there is reasonable cause to believe that an

unlawful employment practi c e occurred. Ñ The Notice advised

Petitioner of h is right to file a P etition for Relief for an

admi nistrative hearing on h is Complaint within 3 5 days or a

civil action within one year from the date of the Notice .

Petitioner timely filed a Petition for Relief on August 1, 2011 .

On September 12, 201 1 , t he Commission transmitted

Petitioner's Petition for Relief to the Division of

Administrative Hearings (DOAH) for assignment of an

administrative law judge to conduct a n administrative hearing .

The hearing was originally scheduled to be heard on

November 9, 2011, but was continued three times and rescheduled

for June 28 and 29, 2012.

At the final hearing, Petitioner called eight witnesses ,

testified on his own behalf , and offered eight e xhibit s received

into evidence as Petitioner Ó s E xhibit s P - 4 through P - 7, P - 12,

P - 13, P - 18, P - 20, and P - 32. Respondent pres ented the testimony

of three witnesses , including Petitioner, and offered 10

e xhibit s received into evidence as Respondent Ó s Exhibit s R - 2,

R - 4, R - 7, R - 9 through R - 11 , R - 14 through R - 16, and R - 19 .

The proceedings were recorded and a Transcript was ordered.

T he parties were given 45 days from the filing of the Transcript

within which to submit their p ropose d recommended o rders. The

Transcript, consisting of one volume, was filed on September 12 ,

2012, and the parties timely filed their respective Proposed

Recommended Orders, which have been considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. G4S is a company that provide s security services to

businesses and governments.

2. Infrastructure Corporation of America (ICA) contract s

with the State of Florida Department of Transportation (DOT),

for asset management of DOT's rest stops along interstate

highways in Florida .

3. P ursuant to a sub contract with ICA, G4S provides

security services for DOT rest stops managed by ICA .

4. ICA is one of the lar gest clients of G4S 's office

located in Pensacola, Florida.

5. G4S has more than 600,000 employees. G4S's Pensacola

office employs approximately 200 security officers . Security

services provided by G4S's Pensacola office includ e nine

locations for ICA, and approximately 25 non - ICA locations ,

including resorts, hospitals, and at least one shopping center.

6. Petitioner was employed by G4S from 2005 to 2008, and

again from 2009 to October 2010 . Although Petitioner has not

done any work for G4S since October 2010 , G4S's Pensacola office

still considers Petitioner to be an employee.

7. In 2008, Petitioner left the employ of G4S to take a

job as a police of ficer in the State of Alabama. As a result of

an injury received while working in that capacity , Petitioner

had p art of his leg amputated in December, 2008.

8. Petitioner also has diabetes, which may have

contributed to the severity of his injury.

9. As a result, Petitioner now wears a prosthetic leg,

can only walk short distances, and cannot climb.

10. Petitioner also had pa rt of his foot on his other leg

amputated.

11. U nable to return to work for the police department in

Alabama , Petitioner applied for and, in 2009, was once again

hired by G4S .

12. Upon his re - hire, Petitioner was assigned to work as a

security guard at an ICA site in Florida , the Ponce de Leon rest

stop along Interstate 10.

13. G4S's job description for Petitioner's position as a

rest stop security guard lists the position title as Ð Custom

Protection Officer. Ñ The activities and corresponding estimated

time spent perf orming each activity are listed in the Ð Safety,

Exertion, and General Ergonomics Ñ portion of the job description

as follows :

Using a computer, 25%

Using a telephone, 25%

Sitting, 50%

Standing, 50%

Walking, 50%

Reaching, 15%

Listening, 50%

Stooping, 15%

Cli mbing, 15%

Kneeling, 10%

Speaking, 50%

Observing, 100%

Lifting objects over 10 pounds, 15%

Running, 2.5%

Writing, 50%

Working outdoors, 50%

Working indoors, 0%

Working in confined spaces as defined by OSHA, 0%

Working in extreme temperatures, 25%

14. Although walking is listed as a 50 percent activity in

the ergonomics section of the job description , the Ð Nature of

Specific Duties Performed Ñ section of the job description

estimates that only 30 percent of a security guard's time will

be spent performing Ð secur ity patrols of designated areas on

foot or in vehicle . Ñ (e mphasis added) .

15. While Petitioner was working for G4S at the Ponce de

Leon rest stop, it was common knowledge among Petitioner's co -

workers and supervisors that Petitioner had a prosthetic leg.

Whe n Petitioner began working at the Ponce de Leon rest stop,

Petitioner advised his supervisor that he had a prostheti c leg

and had trouble walking. 3/

16. PetitionerÓs immediate supervisor, a lieutenant with

G4S, and the lieutenant's supervisor, a project manage r with G4S

over the ICA account, were aware of PetitionerÓs prosthetic leg

and his limited walking ability. They allowed Petitioner to use

his personal vehicle as an accommodation.

17. Although Petitioner walked on occasion, most of his

patrol at the rest s top was accomplished using his personal

vehicle. With that accommodation , Petitioner was able to

satisfactorily perform the essential functions of his job.

18. During the same time period that Petitioner was

working at the Ponce de Leon rest stop, ICA had an employee

named Rick Rou sseau. Mr. Rousseau was employed by ICA as a

senior wastewater operator with responsibilities over the water

testing, water and wastewater plants , and lift stations at the

Interstate 10 rest stops between mile marker 96 in Holmes

Co unty, Florida, and mile marker 194 in Leon County, Florida.

19. Mr. Rousseau was formerly an inmate incarcerated i n

Holmes Correctional Institution, Holmes County, Florida.

20. Several of the G4S security guards assigned to the

rest stops where Mr. Rousseau had re sponsibilities had been

guards at Holmes Correctional Institution while Mr. Rousseau was

incarcerated there. They remembered Mr. Rousseau and,

apparently, he remembered them.

21. Part of the contract between ICA and DOT required ICA

to inspect the G4S securit y officers. ICA project manager

Joseph Mastro did some of those inspections himself, including

routine, announced inspections, as well as surprise inspections.

22. Mr. Mastro authorized Mr. Rousseau and other ICA

employees , as part of their duties, to obser ve and report

whether the G4S security officers were doing their jobs at the

rest stops. In fulfilling this role, Mr. Rousseau would often

sneak up on G4S security officers in the dark to see whether

they were sleeping, take pictures, and shine his flashl ight at

the officers and into their vehicles . These activities caused

friction between the G4S security officers and Mr. Rousseau ,

some of whom remembered him from his days as an inmate at Holmes

Correctional Institution.

23. Although Petitioner had never bee n a correctional

officer, he was subjected to the same surprise Ð inspections Ñ

conducted by Mr. Rousseau. Petitioner knew that Mr. Rousseau

was a former inmate. Petitioner felt as though Mr. Rousseau's

activities amounted to Ð stalking Ñ type behavior and a sked a

supervisor with G4S for permission to file a complaint against

Mr. Rousseau with law enforcement .

24. The supervisor, John Helms, who at the time was a

project manager over the G4S account for the ICA interstate

highway protection program, gave Petition er permission to report

Mr. Rousseau to law enforcement. As explained by Mr. Helms:

The issue with Rick [Rousseau] came to

light. [Petitioner] had complaine d several

times on [Rousseau] -- as well as the other

guards - - about this stalking and sneaking

a nd lurking activity, and this went on long

enough that I believe [Petitioner] finally

got fed up with it. We certainly saw this

as a safety issue at least. [Petitioner]

asked me if he could report this to law

enforcement. And, of course, he's a

citizen, I can't keep him from reporting

anything to law enforcement if he's a victim

of crime, so I told him yes.

25. After receiving permission to do so, Petitioner filed

a complaint with the Holmes Cou nty Sheriff's Office on

October 5, 2010, complaining about Mr. Rousseau's stalking

behavior.

26. When Mr. Mastro found out that Petitioner had filed an

official complaint against Mr. Rousseau , he wa s upset. He felt

as though the G4S security guards had been unfair to

Mr. Rousseau because of Mr. Rousseau's past incarcerat ion, and

that Mr. Rousseau had just been doing his job.

27. Previously, someone had posted a mug shot of

Mr. Rousseau on a security door with a note that stated, Ð Be on

the lookout for. Ñ Although there was no evidence that

Petitioner was involved in the posti ng of Mr. Rousseau's mug

shot, Mr. Mastro was sensitive to the issue. He felt as though

Petitioner's filing of the complaint against Mr. Rousseau was a

violation of Petitioner's chain - of - command.

28. On October 22, Mr. Mastro e - mailed G4S's general

manager of the Pensacola office, Patrick Dawson. The e - mail

stated:

Patrick,

After talking with my supervisor, I am

requesting that [Petitioner] be REMOVED from

ICA's project, effective ASAP. I cannot

require you to terminate him but can require

for him to be re moved. If you wish to talk

about this matter please give me a call.

We may be able to work something out by

moving this officer west to Okaloosa Rest

area.

After talking to you yesterday this officer

did not follow the required chain of command

that wa s sent to ICA in a letter and

provided to all officers.

Thanks.

29. Mr. Mastro was aware that Petitioner had a disability

related to his foot or toes, but was unaware that he could not

walk for long distances or that he had been using his truck to

patrol the P once de Leon rest stop. There is no evidence that

Mr. Mastro's request that Petitioner be removed was related to

Petitioner's disability.

30. Based upon the client's request , Mr. Dawson decided to

remove Petitioner from the ICA account . The decision was not

based upon Petitioner's work performance, which was

satisfactory. In addition, the evidence does not reasonably

suggest that the decision to remove Petitioner from the ICA

account was based upon Petitioner's disability.

31. While preparing to go back to work on the Sunday after

filing the complaint against Mr. Rousseau, Petitioner received a

call from Captain Helms, who advised Petitioner that he was

being removed from the rest area.

32. The next day, Jason Taylor contacted Petitioner and

told him that he was be ing removed from the ICA account and

would be reassigned. Petitioner asked Mr. Taylor , to no avail,

why he could not just be reassigned from the rest stop at Ponce

de Leon to the rest stop at Okaloosa.

33. Later that afternoon, Mr. Dawson called Petitioner a nd

told him that he was being taken off the ICA account at

Mr. Mastro 's request. When Petitioner asked about reassign ment ,

Mr. Dawson said that he believed his reassignment would be to a

place where Petitioner would be checking in clients and would

have a vehicle to do road patrol.

34. Mr. Dawson did not tell Petitioner that Mr. Mastro had

suggested reassignment to the Okaloosa rest stop as a

possibility.

35. Mr. Dawson had never met Petitioner before he called

him on the telephone to advise that he was being take n off the

ICA account. While Mr. Dawson told Petitioner that he believed

Petitioner would have use of a vehicle to do road patrol, there

is no evidence that Petitioner and Mr. Dawson specifically

discussed Petitioner's disability or that Petitioner needed an

accommodation because of hi s disability. According to

Mr. Dawson, he did not know of Petitioner's disability when he

asked for Petitioner's reassignment .

36. Mr. Dawson , however, did not concern himself with the

details of Petitioner's reassignment. Rath er, he left those

details to Jason Taylor and Theresa Flores .

37. Mr. Dawson told Jason Taylor, operations manager with

responsibilities over day - to - day operation for G4S's Pensacola

Office, to reassign Petitioner. Mr. Taylor was aware of the

fact that there had been problems with Mr. Rousseau. In fact,

the first time he met Petitioner during an inspection at the

Pon ce de Leon rest stop around May 2009, Petitioner informed him

of the problems that he and other security officers were having

with Mr. Rousseau.

38. Mr. Taylor was also aware that Petitioner had a

prosthetic leg. During that same May 2009, inspection ,

Petitioner showed Mr. Taylor his prosthetic leg.

39. Despite his responsibilities and knowledge of

Petitioner's prosthetic leg, Mr. Taylor testified that he was

unaware of Petitioner's limitations or the fact that Petitioner

had been allowed by his supervisors to use his personal vehicle

to make his rounds at the Ponce de Leon rest stop.

40. Mr. Taylor, however, was aware of the requirements of

the ADA and agreed that, to the extent that Petitioner could not

walk or stand, Petitioner's use of his personal vehicle to make

his rounds was a reasonable accommodation.

41. Although Mr. Taylor was aware of Petitioner's

prosthetic leg and the requirements of the ADA , he did n ot play

a direct role in selecting Petitioner's reassignment. Rather,

he relied on Theresa Flores, a G4S area supervisor under his

supervision, to deal with Petitioner's reassignment.

42. When asked whether G4S made reasonable a ccommodations

for Petitioner in his reassignment so that Petitioner could

perform the essential functions of the job , Mr. Taylor

testified, Ð That was given to Ms. Theresa Flores and Ms. Flores

did that. Ñ

43. Ms. Flores was in charge of payroll and duty

assignments for G4S's Pensacola area office . She assisted site

supervisors and was directly in charge of schedules and security

guards at sites that had no other supervisors. She knew that

Petitioner had problems with his leg, but did not know any

specifics about his prosthetic leg . She a cknowledged that she

would have received Petitioner's leave requests, including a

medical leave request that Petitioner had previously submitted

for surgery on his leg , but she was not Ð specifically Ñ aware

that Petitioner had taken leave for leg surgery.

44. Ms. Flores was not aware of the Rousseau situation.

Her involvement in finding a reassignment for Petitioner was

based solely on Mr. Taylor's request that she reassign

Petitioner to a non - ICA location.

45. At the final hearing, Ms. Flores testified that she

had no ADA training. Ms. Flores never talked to Petitioner

face - to - face. She did , however, have a basic understanding of

the concept of Ð accommodation Ñ as it relates to disabilities.

46. Ms. Flores recall ed a telephone conversation with

Petitioner during t he time she was looking for reassignments to

offer him , in which Petitioner told her he could not walk for a

long period of time.

47. Ms. Flores offered Petitioner three position s. She

testified:

So I first offered him one position,

and he turned it down bec ause it was, I

believe, too much walking is what I

remember. So it was kind of tough at that

point, because of the positions at that time

required walking, some kind of walking. So

I offered him a second position, and the

same thing, you know, it was too much

walking. Okay. And then I believe this was

the last position, Sanctuary by the Sea, and

I did tell him it is walki ng, but to me, it

was nothing - - it wasn't too hard. I didn't

think it would be too physically hard

because it's just walking, you wa lk at your

own pace, you know. It's nothing that I

thought would be hard physically on him. So

he said okay, I'll give it a try.

48. Indeed, Petitioner accepted the position at Sanctuary

by the Sea . He was under the impression that the position would

not r equire much walking. H is start date was delayed a day

because of car trouble . He showed up for training on the

evening of October 28, 2010. In his testimony, Petitioner

described what happened that evening :

Well, I got out - - I went and parked.

He sa i d use - - the guard there said use any

parking space, said you'll go down up under

the condos and everything to park. I parked

there, and he came and got me and we went to

the guard shack and everything. I walked in

and I got to looking, and I said, dang, you -

all got a computer and a TV. He said you

ain't got time to do it. I said what do you

mean? He said just one round alone is going

to take you anywhere from three to four

hours to complete. He said you've got to

walk this whole facility. I said tha t's not

what they told me. He said, well, someone

must have lied to you. He said this whole

facility is 33 and a half acres, and he said

that is not including going to the beach

area and Gulf, you've got to walk the beach.

I asked him to specifically te ll me

what my orders are of what I've got to do.

He said it's simple, you've got to walk

these grounds here, go to the pool area,

walk them, make sure there's nobody down

there in the pool that's not supposed to be.

I said how do you know that? He said it was

pre - sent to you who all has permission to be

there. He said your job is that you're

going to have to walk the stairwells, and

there's five stairwells in this facility,

and make sure none of the people have come

in through the outside and sleeping i n the

stairwell. I said okay. He said also

you've got to go to each individual condo

that is not occupied, and he says you've got

to open it up and check it, then you've got

to go out to the balcony and make sure

there's nobody there, and then you've got to

turn around, and he says you've got to climb

ladders up to the roof latches. I said

what's that for? He said you've got to make

sure that nobody has cut the locks off or

nobody has broken in through the roof.

* * *

I went through the training as l ong as

I could, and then my leg gave out on me to

where I could not walk anymore.

* * *

The leg, it had swollen up and it had a

split on the corner of where it had split

open.

* * *

I told him [the guard] I'm not going to

be able to make this, my leg is gone, I

cannot do the work or anything, I cannot

walk, I said you need to call Theresa. And

he said I agree, and he said I can see that

you're in pain right now. We called Theresa

and we waited for a response and we never

got a response back. I told him I'm going

to have to leave, I've got to get this

prosthetic off before it swells up to the

point where I can't. And when I got home,

it was so swollen I had to have my wife

literally pull the prosthetic off my leg

while I held onto the bed so she wou ldn't

drag me.

49. Petitioner's testimony was believable and is credited.

50. The next morning, Petitioner spoke to Ms. Flores on

the telephone. She told him that she did not have any positions

for him that did not require walking. In his testimony,

Petitione r explained:

I talked to Theresa the next morning.

She told me she didn't have anything at that

time that I could do and that I was

basically useless to her. I told her, I

said, well, if you could find something to

accommodate me I will take it and

ever ything, but I do have to have overnights

and I need something within reasonable

driving distance. And that was the last I

had any communication with Wackenhut.

51. Consistent with Petitioner's testimony, Ms. Flores's

e - mail to Mr. Taylor containing her state ment provides in

pertinent part:

On the night of 10/28, at midnight, I

received a missed call from [Petitioner]. I

called him back at 10 minutes after midnight

with no answer. Immediately after

attempting to contact [Petitioner], I

received a call from the Officer on duty at

the Sanctuary by the Sea. He informed me

that [Petitioner] left at midnight and was

not going to return. He stated that his

reason for leaving was that he was having a

hard time walking the property.

On Saturday, 10/30, I receiv ed a call

from [Petitioner] , explaining to me what had

happened the previous night. He stated that

he was having a hard time walking the

property, therefore he decided to leave. He

also stated he needed to work at a place

where he wasn't going to be requ ired to

walk. I informed him that almost all of our

sites in the Destin area required some

walking. The only two positions that

required very little walking were at Regatta

Bay and Watercolor. I asked him if he would

be interested to work at Regatta Bay , being

that we had some hours to offer him. He

said it was too far. He asked me about

Watercolor but there were no openings at

Watercolor at the time.

52. At the final hearing, Ms. Flores admitted that Regatta

Bay was probably too far away.

53. Mr. Taylor admi tted that, in working with Ms. Flo res

to try to find Petitioner another position, G4S had an

obligation to comply with the requirements of ADA and

accommodate Petitioner's disability.

54. Mr. Taylor further suggested in his testimony that the

job offers made t o Petitioner were attempts to accommodate

Petitioner. It is clear, ho wever, that they were not.

Mr. Taylor admitted that no reasonable accommodation was offered

to Petitioner with regard to the position offer at Sanctuary at

the Sea . There is otherwise no evidence that Petitioner's

disability was accommodated after he was removed from his job at

Ponce de Leon.

55. While Mr. Taylor and Mr. Dawson state in their

testimonies that Petitioner never requested accommodation, the

evidence demonstrates that he did, b oth prior to and after his

removal from his position at the Ponce de Leon rest area.

Petitioner's immediate supervisors at Ponce de Leon were aware

of Petitioner's disability and allowed hi m the accommodation of

using his private vehicle. Thereafter, Pet itioner made it known

to Ms. Flores that he could not walk long distances and needed

accommodation. The evidence demonstrated that Petitioner's

request s for accommodation were ignored.

56. As a result of his attempt to complete his training

for the position a t Sanctuary by the Sea without accommodation,

Petitioner was injured. Without accommodation, Petitioner could

not perform the duties of that position or other positions that

requir ed a lot of walking. Despite his requests, he was not

offered reassignment at locations within reasonable distances

where he could perform the duties with out much walking or with

reasonable accommodation as previously allowed.

57. At the time of the hearing, G4S still had Petitioner

listed as an employee and considered Petitioner to be an

employee.

58. Although it had knowledge through PetitionerÓs

supervisors at G4S that Petitioner could satisfactorily perform

the essential duties of a rest stop security officer as long as

he was allowed to use a vehicle, G4S never again offered

Petit ioner a position with that accommodation.

59. As a result, Petitioner could not continue to work for

G4S and had to seek other employment .

60. On November 8, 2010, Petitioner called the G4S

Ð Employee Concerns Hotline Ñ to complain about the treatment he

had receive d concerning his employment and disability. He later

received a call from someone at G4S denying liability, and a

follow - up letter from G4S's director of employee relations dated

February 14, 2011, thanking Petitioner for utilizing the hotline

and stating , Ð I have been informed that the review of your

concern has been concluded and that you have been informed of

the subsequent actions. Ñ

61. Approximately two weeks after the night he could not

complete his training at Sanctuary by the Sea, Petitioner found

part - time work with the Geneva County Sheriff's Office, where he

worked until June, 2012. His part - time pay at Geneva County

Sheriff's Office was $ 180.22 per month less than the

approximately $1,000 per month he received when last employed at

G4S.

62. In addition to his earnings, Petitioner receives

Social Security disability benefits. At the final hearing,

Petitioner advised that he could not earn more than $1,000 per

month an d maintain his present level of Social Security

benefits.

63. Petitioner also contended at the final hearing that as

a result of G4SÓs failure to provide reasonable accommodation,

he suffered compensatory damages, including medical expenses,

mental anguish, pain , and suffering. Relief for those claims,

however, is not available in this administ rative proceeding.

See Conclusions of Law, infra .

CONCLUSIONS OF LAW

64. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding. See §§ 120.569, 120.57(1), and 760. 11 (4 )( b) , Fla.

Stat. (20 1 2 ); see also Fla. Admin. Code R. 60Y - 4.016 .

65. The Florida Civil Rights Act of 1992 , as amended, (the

Act) is codified in sections 760.01 through 760.11, Florida

Statutes.

66. Section 760. 10 provides, in pertinent part:

(1) It is an unlawful employment practice

for an emp loyer:

(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 Ó s race, color, religion, se x,

national origin, age, handicap , or marital

status.

(b) To limit, segregate, or classify

employees or applicants for employment in

any way which would deprive or tend to

deprive any individual of employment

opportunities, or adversely affect any

indiv idual Ó s status as an employee, because

of such individual Ó s race, color, religion,

sex, national origin, age, handicap , or

marital status.

(e mphasis added ) .

67. G4S is an Ð employer Ñ within the meaning of the Act.

See § 760.02, Fla. Stat. ( Ð 'Employer' means any person

[including individuals, corporations, etc.] 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. Ñ ).

68. The Act was patterned after Title VII of the Civil

Rights Acts of 1964 and 1991, 42 U.S.C. § 2000, et seq. , as well

as the Age Di s crimination in Employment Act (ADEA), 29 U.S.C.

§ 623 . Federal case law interpreting Title VII and the ADEA is

applicable to cases arising under the Act. F la. S tate U niv. v.

Sondel , 685 So. 2d 923, 925 n.1 (Fla. 1st DCA 1996) ( citing Fl a.

Dep Ó t of C m ty . Aff . v. Bryant , 586 So. 2d 1205 (Fla. 1st DCA

1991) ) . In addition, as applied to claims of discrimination

based on handicap, the Act is construed in conformity with the

federal American ' s with Disabilities Act of 1990, as amended

(ADA) . 4/ Byrd v. BT Foods, Inc. , 948 So. 2d 921, 925 (Fla . 4th

DCA 2007).

69. As developed in federal cases, a prima facie case of

discrimination under Title VII may be established by direc t

evidence which, if believed, would prove the existence of

discrimination without inference or presumption. Where direct

evidence is lacking , one seeking to prove discrimination must

rely on circumstantial evidence of discriminatory intent, using

the thr ee - part shifting Ð burden of proof Ñ pattern established in

McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973) . See

Holifield v. Reno , 115 F.3d 1555, 1562 (11th Cir. 1997).

70. Under that test , f irst, Petitioner has the burden of

proving a prima facie case o f discrimination by a preponderance

of the evidence. Second, if Petitioner sufficiently establishes

a prima facie case, t he burden shifts to Respondent to

Ð articulate some legitimate, nondiscriminatory reason Ñ for its

action. Third, if Respondent satisfi es this burden, Petitioner

has the opportunity to prove by a preponderance of the evidence

that the legitimate reasons asserted by Respondent are in fact

mere pretext. 411 U.S. at 802 - 04 .

71. To establish a prima facie case of discrimination

based on disabili ty , Petitioner must prove by a pre ponderance of

the evidence: (1) that he is a handicapped [or disabled] person

within the meaning of s ubsection 760.10(1)(a); (2) that he is a

qualified individual; and (3) that Respondent discriminated

against him on the b asis of his disability. See Earl v.

Mervyns , 207 F.3d 1361, 1365 (11th Cir. 2000); Byrd , 948 So. 2d

at 925 .

72. As to the first element, t he term Ð handicap Ñ in the

Florida Civil Rights Act is treated as equivalent to the term

Ð disability Ñ in the Americans wit h Disabilities Act. 948 So. 2d

at 926.

73. Ð The ADA defines a Ò disabi lity Ó as a Ò physical Ó or

mental impairment that substantially limits one or more of the

major lif e activities of such individual; a record of such

impairment; or being regarde d as having suc h an impairment. Ñ

42 U.S.C. § 12102(2). Ð Ò Major life activities Ó i nclude

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

walking , seeing, hearing, speaking, b reathing, learning and

working. Ó Ñ 948 So. 2d at 926 ( citing Bragdon v. Abbott ,

524 U.S. 624 (1998); 45 C.F.R. § 84.3(j)(2)(ii); and 28 C.F.R.

4 1.31(b)(2)(1997) ) .

74. Petitioner met the first element by showing that he is

handicapped or disabled within the meaning of the Act and the

ADA, respectively. The evidence presented by Petitioner

demonstrated that , because of a physical impairment, Petitioner

cannot walk or stand for an extended period of time, cannot

climb , and is substantially limited in one or more of his major

life activities . Ð Walking Ñ has consistently appeared in the

defini tive examples under Ð m ajor life activities Ñ listed in the

applicable Code of Federal Regulation. 45 C.F.R.

§ 84.3(j)(2)(ii). Considering the nature, severity, and

permanent impact of PetitionerÓs impairment, it is found that

Petitioner is Ð disabled Ñ with in the meaning of the ADA and

Ð handicapped Ñ within the meaning of the Act. See Lenard v.

A.L.P.H.A Ð A Beginning Ñ , Inc. , 945 So. 2d 618, 621 - 22 (Fla. 2d

DCA 2006)( discussing definition of Ð substantially limits Ñ in

context of determining whether plaintiff i s disabled or

handicapped).

75. In order show that he is Ð qualified, Ñ Petitioner must

show that he can perform the essential functions of the job ,

either with or without reasonable accommodation . McCaw Cellular

Commc Ó ns of Fla. v . Kwiate k , 763 So. 2 d 1063, 1 065 (Fla . 4th DCA

1999) ( citing 42 U.S.C.A. § 1211(8) ) .

76. Although walking, standing, and climbing are mentioned

in G4S's official job description for the security officer

position occupied by Petitioner , the evidence showed that , with

accommodation, Petition er could perform the essential functions

of the job . E vidence of Petitioner 's satisfactory performance

at the Ponce de Leon rest stop with use of his personal vehicle

demonstrated that Petitioner was qualified and could meet the

essential requirement of t he job if accommodated with the use of

a vehicle .

77. Finally, Petitioner must show that Respondent

discriminated against him because of his disability . A

petitioner Ð may prove discrimination [based on disability] in

two ways, disparate treatment and a failur e to make a reasonable

accommodation. Ñ Nadler v. Harvey , No. 06 - 12692, 2007 U.S. App.

LEXIS 20272 at *10 (11th Cir. Aug. 24, 2007)(analyzing a claim

of discrimination under the federal Rehabilitation Act and the

ADA). As explained by the United States El eventh Circuit Court

of Appeals:

Disparate treatment involves

discriminatory animus or intent and occurs

when a disabled individual is treated

differently than a non - disabled or less

disabled individual because of his

disability. [ Citation omitted] By

c ontrast, a failure to make reasonable

accommodation claim requires no animus and

occurs when a covered entity fails to

fulfill its affirmative duty to Ð make

reasonable accommodation to the known

physical or mental limitations of an

otherwise qualified appl icant or employee

with a disability Ñ without demonstrating

that Ð the accommodation would impose an

undue hardship on the operation of the

business. Ñ [ Citation omitted] Thus, while

disparate treatment claims are concerned

with policing employers' actions based on

invidious discriminatory intent, Ð [t]he

reasonable accommodation requirement is best

understood as a means by which barriers to

the equal employment opportunity of an

individual with a disability are removed or

alleviated. Ñ [ Citation omitted]

Id. at *10 - 11.

78. Petitioner did not show that G4S discriminated against

him based on disparate treatment. Rather than indicating that

the adverse employment action against Petitioner was because of

his disability, the evidence showed that G4S removed Petitione r

from his post at Ponce de Leon to satisfy ICA, its largest

client in the Pensacola area. Ð The employer may fire an

employee for a good reason, a bad reason, a reason based on

erroneous facts, or for no reason at all, as long as its action

is not for a d iscriminatory reason. Ñ See Dept. of Corrections

v. Chandler , 582 So. 2d 1183 , 1187 (Fla. 1st DCA 1991) (quoting

Nix v. WLCY Radio/Rahall Commc'ns , 738 F.2d 1181, 1187 (11th

Cir. 1984)) and the cases cited therein. Petitioner did not

show that G4S's stated reason for removing Petitioner from the

rest stop at Ponce de Leon was mere pretext, and the evidence

was otherwise insufficient to demonstrate discriminatory animus

on the part of G4S.

79. Petitioner was successful, however, in proving by a

preponderance o f the evidence that G4S failed to provide

reasonable accommodation for his disability.

80. The McDonnell Douglas burden - shifting analysis is not

applicable to reasonable accommodation cases. Nadler , supra , at

*28. Ð Once a plaintiff has shown that he is an ot herwise

qualified disabled individual . . . and that a defendant has not

provided a reasonable accommodation, a defendant must provide a

reasonable accommodation unless he can assert an undue hardship

as an affirmative defense . Ñ Id . at *29.

81. Petitioner , ho wever, Ð bears the burden of identifying

an accommodation, and of demonstrating that the accommodation

allows him to perform the job's essential functions. Ñ McKane v.

UBS Financial Servs. , Inc. , 363 Fed. Appx. 679, 681 (11th Cir.

2010)(quoting Lucas v. W.W . Grainger, Inc. , 257 F.3d 1249, 1255 -

56 (11th Cir. 2001)).

82. The accommodation identified by Petitioner , well known

to his immediate supervisors and co - workers , and known by G4S,

was PetitionerÓs use of a vehicle to help him in making his

rounds. Those sam e supervisors and co - workers reported that,

with that accommodation, Petitioner satisfactorily performed his

job , and the evidence showed that Petitioner could perform the

essential functions of the job with use of a vehicle. G 4SÓs own

witness agreed that such an accommodation was reasonable for one

who could not walk .

83. G4S argues that, after it removed Petitioner from the

Ponce de Leon position, there were no positions available that

did not require walking. Indeed, while the ADA may require

reassignment as an accommodation, it Ð does not require the

employer to bump another employee from a position in order to

accommodate a disabled employee. Ñ Lucas v. W.W. Grainger, Inc. ,

257 F.3d 1249, 1256 (11th Cir. 2001). G4SÓs argument ignores,

however, that the ac commodation Petitioner needed was the use of

a vehicle so that he could perform the job. Petitioner had

previously been allowed to use his vehicle , his past performance

was satisfactory, and Mr. Dawson discussed the use of a vehicle

with Petitioner after it was decided that Petitioner would be

reassigned.

84. Moreover, the need for PetitionerÓs r eassignment was

not a Ð reassignment Ñ as anticipated under the ADA. It was not a

reassignment for PetitionerÓs accommodation or at PetitionÓs

request . Instead, the ne ed for PetitionerÓs reassignment was

occasioned by G4SÓ s decision to remove Petitioner from his pos t

at Ponce de Leon , even though Petitioner was satisfactorily

performing the essential functions of his job and had done

nothing wrong to deserve reassignmen t .

85. Further, G4S failed to show that accommodation of

PetitionerÓs disability would be an undue hardship. Other than

evidence that Ms. Flores offered Petitioner three jobs, none of

which accommodated his known disability, G4S failed to produce

evidence adequate to demonstrate that there were no positions

where Petitioner could use a vehicle, or that the accommodation

of his disability would be an undue hardship.

86. In sum, the evidence showed that G4S denied

PetitionerÓs request for a reasonable accommodat ion , and G4S

otherwise failed to demonstrate that providing Petitioner with

reasonable accommodation would be an undue hardship. Therefore,

Petitioner proved his claim of discrimination under the Act

against G4S based upon its failure to accommodate his

d isability.

87. Further, as a result of G4SÓs failure to accommodate

PetitionerÓs disability, Petitioner could not continue to work

for G4S and was forced to seek employment elsewhere.

88. As Petitioner brought this action a s an administrative

proceeding pursuant t o section 760.11(4)(b), Florida Statutes,

as opposed to a civil action in court pursuant to section

760.11(4)(a), the relief under the Act to which he is entitled

is limited 5/ to that authorized in s ection 760.11(6), which

provides in pertinent part:

. . . If the administrative law judge,

after the hearing, finds that a violation of

the Florida Civil Rights Act of 1992 has

occurred, the administrative law judge shall

issue an appropriate recommended order in

accordance with chapter 120 prohibiting the

prac tice and providing affirmative relief

from the effects of the practice, including

back pay . . . .

89. In accordance with section 760.11(6) and federal case

law, Petitioner is Ð presumptively entitled to back pay. Ñ Weaver

v. Casa Gallardo, Inc. , 922 F.2d 1515 , 1526 (11 th Cir.

1991)( superseded by statute on other grounds).

90. The evidence show ed that from mid October 2010,

Petitioner has been earning approximately $180.22 less a month

than he did while employed by G4S. Therefo re, he should be

entitled to 2 5 and 1 /2 m onths of back pay at the rate of $180.22

per month, 6/ for a total back pay award of $ 4,595.61, through the

date of this Recommended Order, plus $180.22 per month

thereafter through the date of the final order to be entered by

the Commission in this cas e. See Nord , 758 F.2d at 1473 ("make

whole" purpose of Title VII requires back pay period to be

extended through date of judgment) ; Champion Intern. Corp. v.

Wideman , 733 So. 2d 559, 562 (Fla. 1st DCA 1999)(plaintiff in

employment discrimination suit requ ired to minimize damages by

attempting to find suitable employment).

91. In addition, as the evidence showed that Petitioner

was, in effect, forced to leave the employ of G4S, he should be

entitled to reinstatement. See § 760.11(6), Fla. Stat.; cf.

OÓLough lin v. Pinchback , 579 So. 2d 788, 795 (Fla. 1st DCA

1991)( Ð prevailing plaintiff in a wrongful discharge case is

entitled to reinstatement absent unusual circumstances Ñ )

(citations omitted) . As an alternative to reinstatement, front

pay may also be availab le as a remedy. Nord v. U.S. Steel

Corp. , 758 F.2d 1462, 1473 (11th Cir. 1985); but cf. LaborersÓ

International Union, Local 478 v. Burroughs , 541 So. 2d 1160,

1163 (Fla. 1989)(questioned whether administrative agency could

award front pay because it is Ð somewhat indefiniteÑ).

92. Although Petitioner stated at the final hearing that

he does not want to be reinstated, he advised that he was able

to work more hours than afforded by his current job.

Considering the indefinite nature of front pa y, PetitionerÓs

ob ligation to mitigate by seeking other employment , and the

facts of this case, it is concluded that G4SÓs reinstatement of

Petitioner on a part - time basis, even if only to supplement

other employment so that he can earn a total $1000 per month, is

a better solution for both parties than an award of front pay.

93. Section 760.11(6), further provides:

In any action or proceeding under this

subsection, the commission in its

discretion, may allow the prevailing party a

reasonable attorneyÓs fee as part of the

costs. It is the intent of the Legislature

that this provision for attorneyÓs fees be

interpreted in a manner consistent with

federal case law involving a Title VII

action.

94. While the undersigned lacks the authority to make an

award of attorney fees, considerin g the circumstances of this

case, it is recommended that the Commission award Petitioner his

costs and a reasonable attorneyÓs fee, and, to the extent

necessary, remand the case for issuance of a recommended order

regarding the amount of attorneyÓs fees an d costs owed to

Petitioner. See , e.g. , Caiminti v. The Furniture Enterprises,

LLC , DOAH No. 09 - 3961 ( Fla. DOAH Dec. 16, 2009; FCHR Feb. 26,

2010).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the F lorida Commission on Human Relations

enter a final order :

1. Finding that Respondent, G4S Secure Solutions , f/k/a

The Wackenhut Corporation , discriminated against Petitioner,

Keith A. Galloway, in violation of the Act, by failing to

accommodate his disabi lity.

2. Ordering Res pondent to pay Petitioner $ 4,595.61 in back

pay through the date of this Recommended Order , plus $180.22 per

month thereafter through the date of the Commission's final

order, with interest accruing on the total amount at the

applicab le statutory rate from the date of the Commission's

final order ;

3. Ordering Respondent to reinstate Petitioner to a part -

time position , so that Petitioner can earn approximately, but no

more than , $1000 per month, in which he is permitted to use a

vehicl e to perform the essential functions or his job, or is

provided with such other reasonable accommodation that will

permit Petitioner to perform the essential functions of the job ;

failing which, Petitioner shall be entitled to an award of front

pay from Re spondent, taking into account Petitioner's obligation

to m itigate by finding other suitable employment.

4. Prohibiting any future acts of discrimination by

Respondent; and

5. Awarding Petitioner his costs and a reasonable

attorneyÓs fee.

DONE AND ENTERED this 30th day of November , 201 2 , in

Tallahassee, Leon County, Florida.

S

JAMES H. PETERSON, III

Administrative Law Judge

Division of Administrative Hearings

The DeSoto 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 30th day of Novem ber, 2012 .

ENDNOTES

1 / Respondent's correct name is G4S Secure Solutions f/k/a The

Wacken hut Corporation.

2 / Unless otherwise indicated, all references to statutes or

rules are to the current, 20 12 , versions, which have not been

substantively revised since the relevan t facts in this case.

3 / There is no evidence, however, that Petitioner i nformed

anyone at G4S that he had diabetes prior to filing the

Complaint.

4 / 4 2 U.S.C. § 12101, et seq. Titles I, II, III, and V of the

original law are codified in Title 42, chapter 126, of the U.S.

Code beginning at section 12101. Title IV of the ori ginal law

is codified in Title 47, chapter 5, of the U.S. Code . See

Editor's Note to ADA, as amended in 2008.

5 / Although Petitioner argued for an award of compensatory and

punitive damages, such relief is not available in this

administrative action. Su ch relief is only available under the

Act for judicial actions brought under section 760.11(4)(a).

Relief available for judicial actions, as opposed to

administrative proceedings, under the Act is authorized by

section 760.11(5). The first sentence of se ction 760.11(5) has

almost identical language to the relief available for

administrative proceedings. The second sentence of section

760.11(5), however, authorizes additional relief for judicial

actions that is well beyond the relief available to Petition er

in this administrative proceeding. It provides in pertinent

part:

The court may also award compensatory

damages, including, but not limited to,

damages for mental anguish, loss of dignity,

and any other intangible injuries, and

punitive damages.

Id . The failure of section 760.11(6) to authorize similar

relief for administrative actions under 760.11(4)(b) is fatal to

Petitioner's claim for compensatory and punitive damages. See ,

e.g. , James v. Dept. of Corrections , 424 So. 2d 826, 827 (Fla.

1st DCA 1982), wherein the First District Court of Appeal

explained:

Expressio unius est exclusion alterius is a

general principle of statutory construction

which states that the mention of one thing

implies the exclusion of another. Thus,

where a statute enume rates the things on

which it is to operate, it is ordinarily

construed as excluding from its operation

all those not expressly mentioned.

(Emphasis in original) .

6/ The figure of $180.22 per month is derived from Petitioner's

review of his bi - weekly pay stub from his new employer showing

gross earnings of $378.36, which, when multiplied by 26, then

divided by twelve, results in a figure of $819.78, which is

$180.22 less than the approximately $1,000 a month Petitioner

was earning at G4S. Petitioner's as serted in his Proposed

Recommended Order that he is now unemployed . That assertion,

however, is beyond the scope of the record in this proceeding

and has not been considered.

COPIES FURNISHED

Denise Crawford, Agency Clerk

Florida Commission on Human Rela tions

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

Letta Dillard Gorman, Esquire

Post Office Box 207

Hartford, Alabama 36344

Christine L. Wilson, Esquire

Jackson Lewis LLP

1 Biscayne Tower, Suite 3500

2 South Biscayne Boulevard

Miami Bea ch, Florida 33131

Che yanne Costilla, Interim 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 exceptio ns 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.