12-001590 Kevin D. Fischer vs. Universal City Development Partners Status: Closed Recommended Order on Friday, August 17, 2012.

Summary: Petitioner/employee did not present persuasive credible evidence that Respondent/employer discharged him because of his age, a handicap, or a perception that he had a handicap.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KEVIN D. FISCHER , )

)

Petitioner , )

)

vs. ) Case No. 12 - 1590

)

UNIVERSAL CITY DEVELOPMENT )

PARTNERS , )

)

Respondent . )

)

RECOMMENDED ORDER

Ad ministrative Law Judge John D. C. Newton, II, of the

Division of Administrative Hearings (DOAH), heard this case, as

noticed, on July 2, 2012, in Orlando, Florida.

APPEARANCES

For Petitioner: Clifford Geismar, Esquire

Law Office of Cliffo rd J. Geismar, P.A.

Crealde Executive Center

2431 Aloma Avenue, Suite 114

Winter Park, Florida 32792

For Respondent: J. Lester Kaney, Esquire

Law Office of J. Lester Kaney

Post Office Box 731148

Ormond Beach, Florida 32173 - 1148

STATEMENT OF THE ISSUES

A. Did Respondent, Universal City Development Partners

(Universal), discharge Petitioner, Kevin D. Fischer, because of

his age?

B. Did Respondent, Univ ersal City Development Partners

(Universal), discharge Petitioner, Kevin D. Fischer, because of

a handicap or a perception that he had a handicap?

PRELIMINARY STATEMENT

Mr. Fischer filed a charge of discrimination with the

Florida Commission on Human Relat ions (Commission) against his

former employer, Universal, on October 24, 201 1 . On April 3,

2012, the Commission issued its "Determination: No Cause"

concluding that "no reasonable cause exists to believe than an

unlawful employment practice occurred, and this complaint is

hereby dismissed pursuant to F.S. 760.11(7)." Mr. Fischer filed

a Petition for Relief on May 1, 2012. The Commission referred

the matter to the Division of Administrative Hearings (DOAH) to

conduct a hearing. On June 1, 2012, DOAH iss ued a notice of

hearing, setting the hearing for July 24, 2012. The undersigned

conducted the hearing , as scheduled , in Orlando, Florida.

The parties presented opening arguments. Petitioner

presented his evidence. Exhibits 1 through 6 offered by

Mr. Fischer were accepted into evidence. Respondent's Exhibits

1 through 16 were also admitted into evidence . Respondent

rested without offering testimony. The parties presented

closing arguments.

At the start and at the end of the hearing, the undersigned

advised the parties of their right to submit proposed

recommended orders within ten days of the filing of the

transcript of the proceeding. The Transcript was filed on

July 18, 2012. Respondent filed its Proposed Recommended Order

on July 26, 2012. Pet itioner did not file a proposed

recommended order.

FINDINGS OF FACT

1. Universal operates a theme park in Orlando, Florida.

2. Universal employed Mr. Fischer as an Industrial

Automation Technician (Electrical) for approximately 20 years.

From May 27, 2011, until June 15, 2011, Mr. Fischer was on

approved medical leave. After that , he returned to work with no

activity restrictions.

3. Mr. Fischer's date of birth is July 2, 1960.

4. Universal discharged Mr. Fischer on July 11, 2011.

5. Universal di scharged Mr. Fischer for failure to

properly clean a bilge pump on June 26, 2011, and for falsely

certifying that he had cleaned the pump. Cleaning the pump was

a preventative maintenance procedure that Mr. Fischer had

performed for most of his career wit h Universal.

7. The pumps are in the bilge or bottom of the boats used

in Universal's Jaws ride. Each boat carries approximately 48

passengers around an artificial island in a man - made lagoon.

The ride simulates the experience passengers might have bo ating

in the waters depicted in the movies "Jaws" while the shark swam

the waters. The boats ride on rails and are moved about by

hydraulic arms.

8. The bilge pumps are important protection for the

$8,500 .00, engines in the boats. If the pumps fail, w ater

accumulates in the bilge and can cause very costly damage to the

engines.

9. On June 26, 2011, Mr. Fischer worked from 6:00 a.m.

until 2:30 p.m. His duties that day included cleaning and

servicing three bilge pumps. Mr. Fischer completed Universal' s

standard preventive maintenance form confirming he had cleaned

and serviced the pumps.

10. Mr. Christopher Cole, a former supervisor , examined

the pumps after Mr. Fischer's shift ended. They had not been

properly cleaned. The float switches were caked with sludge.

If properly cleaned, they would not have been.

11. The float switch is critical to operation of the pump.

It turns the pump on when water reaches an unacceptable level in

the bilge.

12. Ricky Stienker, Mr. Fischer's supervisor at the time ,

terminated Mr. Fischer on July 1 1 , 2011, for failure to properly

clean the pumps and falsely representing that he had cleaned

them.

13. In 2008 and 2009, Mr. Fischer' s annual review s rated

him as less effective. Then in 2010 , the review rated

Mr. Fisc her as highly valued. But during his career,

Mr. Fischer had received eight different counselings for poor

performance.

14. Mr. Fischer used Universal's appeal process to contest

his discharge. David Winslow, senior vice president of the

Technical Serv ices Division, denied his appeal.

15. There is no credible evidence of offenses committed by

other employees of any age or physical condition that were

similar to Mr. Fischer's failure to properly clean the pumps and

his misrepresentation that he had clea ned them.

16. Universal's employee handbook includes a clear policy

requiring employees to be honest and trustworthy in all of their

business activities and relationships. It also , clearly states

that acts of dishonesty are grounds for immediate discha rge.

17. Mr. Fischer received the employee handbook when he

began employment with Universal.

18. Mr. Fischer has diabetes. His previous supervisor,

Mr. Cole, knew this because he had observed Mr. Fischer taking

medication that Mr. Cole also took. Mr. Cole also has diabetes

and has had it for approximately 25 years. Mr. Cole did not

perceive having diabetes as a handicap.

19. There is no evidence that Mr. Stienker, who made the

decision to discharge Mr. Fischer, knew Mr. Fischer had

diabetes.

20. T here is no persuasive, credible evidence that

Mr. Fischer had a handicap or that his supervisors or any

management employee of Universal perceived Mr. Fischer as having

a handicap. Consequently , there is no persuasive, credible

evidence that a handicap o r perception of handicap was a factor

in Universal's discharge of Mr. Fischer.

21. There is no evidence establishing who filled

Mr. Fischer's position or the age of that person.

22. There is no persuasive, credible evidence that

Mr. Fischer's age was a factor in Universal's decision to

discharge him.

CONCLUSIONS OF LAW

23. Sections 120.569 and 120.57(1), Florida Statutes, 1/

grant DOAH jurisdiction over the subject matter of this

proceeding and of the parties.

24. Section 760.11(7), Florida Statutes, p ermits a party

who receives a no cause determination to request a formal

administrative hearing before DOAH. "If the administrative law

judge finds that a violation of the Florida Civil Rights Act of

1992 has occurred, he or she shall issue an appropriate

recommended order to the Commission prohibiting the practice and

recommending affirmative relief from the effects of the

practice, including back - pay." Id.

25. Section 760.10(1)(a), Florida Statutes, makes it

unlawful for an employer to take adverse act ion against an

individual because of the individual's age or handicap.

26. Mr. Fischer claims that Universal disciplined and

terminated him because of his age, a handicap, or a perception

of a handicap. Mr. Fischer must prove his claims by a

preponderanc e of the evidence. DepÓt. of Banking & Fin. Inv.

Prot. v. Osborne Stern & Co., Inc. , 670 So. 2d 932 (Fla. 1996).

27. Employers may not take adverse action against an

employee for an unlawful reason, such as age or a handicap. But

the law does not prohi bit erroneous, irrational, or unfair

employment actions. Sunbeam Television Corp. v. Marilyn A.

Mitzel , 83 So. 3d 865 (Fla. 3d DCA 2012). In Florida, employers

may terminate employees at will. Linafelt v. Bev, Inc. , 662 So.

2d 986, 989 (Fla. 1st DCA 199 5).

28. An employee may prove a discrimination claim by direct

evidence. Wilson v. B/E Aerospace, Inc. , 376 F.3d 1079, 1086

(11th Cir. 2004). Direct evidence of discrimination is evidence

that, if believed, proves the existence of a fact without

infer ence or presumption. Carter v. City of Miami , 870 F. 2d

578, 581 - 82 (11th Cir. 1989). Here, there is no persuasive,

competent direct evidence proving that Universal discharged

Mr. Fischer because of his age, a handicap, or a perception that

he had a han dicap.

29. An employee may also prove a claim of discrimination

by circumstantial evidence establishing that similarly situated

employees, who were not in his protected class, were treated

more favorably than he was. Wilson v. B/E Aerospace, Inc. , 376

F.3d 1079, 1087 (11th Cir. 2004). Here, there is no persuasive,

competent circumstantial evidence proving that Universal

discharged Mr. Fischer because of his age, a handicap, or a

perception that he had a handicap.

RECOMMENDATION

Based on the foregoing F indings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations deny Mr. Fischer's Petition for Relief.

DONE AND ENTERED this 17th day of August , 2012 , in

Tallahassee, Leon County, Florida.

S

JOHN D. C. NEWTON, II

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 o f the

Division of Administrative Hearings

this 17th day of August , 2012 .

ENDNOTE

1 / All references to Florida Statutes are to the 2011 edition

unless otherwise noted.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relat ions

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

Clifford J. Geismar, Esquire

Law Offices of Clifford J. Geismar, P.A.

Crealde Executive Center

2431 Aloma Avenue, Suite 150

Winter Park, Florida 32792

Tina Ingram

Universal Orlando Resort

1000 Universal Studios Plaza

Orlando, Florida 32819

J. Lester Kaney, Esquire

Law Office of J. Lester Kaney

Post Office Box 731148

Ormond Beach, Florida 32173 - 1148

Lawrence Kranert, General Counsel

Florida Commission on Human Relations

Suite 100

2009 A palachee Parkway

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 w ith the agency that

will issue the Final Order in this case.