14-000040 Jessie Hill vs. Five Star Quality Care, Inc. (Riviera) Status: Closed Recommended Order on Monday, July 21, 2014.

Summary: Petitioner failed to establish a prima facie case of employment discrimination based upon disability; accordingly, the Petition is dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JESSIE HILL ,

Petitioner,

vs. Case No. 14 - 0040

FIVE STAR QUALITY CARE, INC.

(RIVERIA) ,

Respondent.

_______________________________/

R ECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was

conducted on Ma rch 7 , 2014, in D aytona Beach , Florida, before

W. David Watkins , the duly - designated Administrative Law Judge of

the Florida Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: David W. Glasser, Esquire

116 Orange Avenue

Daytona Beach, Florida 32114

For Respondent: J. Robert McCormack , Esquire

Ogletree, Deakins, Nash,

Smoak, and Stewart, P.C.

100 North Tampa Street, Suite 3600

Tampa , Florida 33602

STATEMENT OF THE ISSUE

W hether Respondent terminated the Petitioner from employment

based upon the PetitionerÓs disability and/or perceived disability

in violation of the Florida Civil Rights Act of 1992 .

PRELIMINARY STATEMENT

On June 1 2, 2013, Petitioner filed an Employment Complaint of

Discrimination (Complaint) against Five Star Quality Care, Inc.

(Riviera Assisted Living) (Respondent). The Complaint alleged an

unlawful employment practice against Petitioner based on his

disability and stated :

I was hired in the position of carpet cleaner/

maintenance/housekeeping. After I completed

the training and a background check, my

employer asked me t o take a reading test.

After I took the reading test, they told me

they could not use me because they wanted an

experienced reader.

While I am able to read, I do have some

reading problems and/or a learning disability

and cannot read as well as I would like to. I

have experience as a carpet cleaner and

believe I can read well enough and/or I could

have received help in the workplace to assist

with my reading problems and/or been given

oral directions to be able to perform.

I believe I was let go based upon my

disability and/or perceived disability in

violation of the Americans with Disabilities

Act and the Florida Civil Rights Act of 1992.

The company policy says the company helps

people with disabilities.

Following its investigation, by Notice dated December 13 ,

201 3 , the Florida Commission on Human Relations (FCHR) issued a

Ð Determination: No Cause Ñ ( Determination). The Determination was

forwarded to Petitioner and to Respondent Ós counsel. Thereafter,

being dissatisfied with the FCHR determi nation, Petitioner filed a

Petition for Relief (Petition) that was date - stamped by the FCHR

as being received on December 30 , 201 3.

The matter was referred to the Division of Administrative

Hearings (DOAH) on January 7, 2014 , and assigned to the

undersigned to conduct a formal administrative hearing . On

February 17, 2014 , a Notice of Hearing was issued setting the

final hearing for March 7, 2014. Prior to t he hearing , the

parties filed a Joint Pre - hearing S tipulation, which included a

stipulation of facts not in dispute. To the extent relevant,

those stipulated facts have been incorporated into this

Recommended Order.

T he final hearing was held as noticed at the Volusia County

Courthouse Annex, in Daytona Beach, Florida . At the hearing,

Petitioner testified on his own behalf and presented the testimony

of his father, Karol Knox Hill. Petitioner offered one exhibit,

which was received in evidence subject to a hearsay objection.

Respondent presented the testimony of David Ho rnfeck and Emily

Shannon, and offered 19 exhibits which were received in evidence

without objection.

A t the conclusion of the hearing the parties requested that

they be permitted to file their proposed recommended orders within

20 days of the filing of the official t ranscript at DOAH . That

request was granted. However, on March 27, 2014 , the parties

requested an extension of time for filing their proposed orders to

30 days from the date of transcript filing. That request was

granted.

The hearing Transcr ipt was filed on April 10, 2014.

Thereafter, Respondent filed its Proposed R ecommended Order on

May 1 3, 2014. On June 6, 2014 , Petitioner filed a Motion for

Enlargement of Time to file his proposed recommended order,

stating that he had only recently lea rned that the T ranscript had

been filed at DOAH on April 10, 2014. The motion was served by

electronic mail on counsel for Respondent. By Order dated

June 16, 2014, the undersigned granted the requested extension of

time, requiring Petitioner to file his proposed recommended order

by not later than July 1, 2014. The Order also provided:

3. In order to minimize any prejudice to

Respondent by virtue of it having already

filed its Proposed Recommended Order,

Respondent may, at its option, file a response

t o PetitionerÓs proposed recommended order

within 10 days of it being filed at the

Division.

Two days later, on June 18, 2014, Respondent filed its

Objection to PetitionerÓs Motion for Enlargement and/or Motion for

Reconsideration. RespondentÓs Motion for Reconsideration was

denied by Order dated June 20, 2014. On June 23, 2014, Petitioner

filed his P roposed R ecommended O rder, and on July 3, 2014,

Respondent filed an Objection to PetitionerÓs Proposed Recommended

Order. The undersigned has given due consideration to both

P roposed R ecommended O rders and RespondentÓs July 3, 2014 , filing

in the preparation of this Recommended Order.

Unless otherwise noted, all statutory references are to

Florida Statutes (2013).

FINDING S OF FACT

Based upon the testimony and documentary evidence presented

at hearing, the demeanor and credibility of the witnesses, and on

the entire record of this proceeding, the following findings of

fact are made:

1 . Respondent is an assisted - living facility/nursing home

providing care to elderly individuals and/or individuals needing

care on a consistent basis.

2 . On March 13 th and 17 th , 2013, Respondent ran

announcements in the Daytona Beach News Journal that it had an

opening for a fulltime Ðhouseman . Ñ The same publication also

announced openings for CNAÓs, and Med Techs, but not for a carpet

cleaner.

3 . On April 11, 2013, Petitioner appeared at RespondentÓs

location to submit an application for employ ment . Both Petitioner

and PetitionerÓs father had heard from an acquaintance who was

employed by Respondent that a position was being created by

Respondent for a carpet cleaner . Petitioner was interested in

that position since he was experienced in clean ing carpets. There

is no indication in this record that Petitioner or his father was

aware of the published opening for a Ðhouseman . Ñ

4 . As a matter of convenience, PetitionerÓs father completed

the application because, as he testified, Petitioner was ab le to

complete the application on his own, but not as quickly as the

father. Since they had other appointments to get to later that

morning, it was decided to have the father fill out the

application .

5 . The employment application completed by Petitioner Ós

father included a space for applicants to indicate what type of

employment was desired. In this space , PetitionerÓs father wrote

Ðcarpet cleaning . Ñ

6 . Subsequent to the submittal of PetitionerÓs application,

RespondentÓs Director of Environmental Maintenance and

Housekee ping, David Hornfeck, took Petitioner on a tour of the

facility . During this tour, Mr. Hornfeck advised Petitioner that

if hired, his job duties would include housekeeping, maintenance,

carpet cleaning, and painting , among others .

7 . Respondent does not have and never has had a position

limited to cleaning carpets .

8 . By letter dated April 17, 2013, Petitioner was

conditionally offered the position of housekeeper by Respondent.

The letter advised Petitioner that before he could be hired it

would be necessary for him to obtain fingerprints, have a

background screening, and pass a drug screen. P etitioner

successfully completed those requirements.

9 . After completing the application process , Petitioner was

told by Respondent to r eturn to RespondentÓs location to attend

orientation. Petitioner appeared at the facility and attended a

two - day orientation during which he watched various videos and was

oriented to the facility.

10 . On April 24, 2013, Petitioner sign ed a job descript ion

acknowledging that he was aware he would be working as a

Ðhous ekeeper Ñ within the housekeeping department and that he

understood the nature and scope of the position .

11 . According to the written job description, t he position

of housekeeper required ÐSufficient education to demonstrate

functional literacy . Ñ Additionally, under ÐEssential Functions

and Responsibilities,Ñ the job description required that the

candidate: be Ð A ble to understand and to follow written and verbal

directionsÑ ; be Ð A ble effec tively to communicate with the staff

members and residents through ver bal and/or written meansÑ ; be

able to Ð P ost signs indicating a safety hazard any time

housekeeping activities pose environmental hazards to staff,

residents, visitors or others in the bu ildingÑ; and be able to

ÐF amiliarize self with Material Safety Data Sheets (MSDS) and

Universal Worker Precautions for all housekeeping chemicals and

cleaning supplies . Ñ

12 . Upon successfully complet ing the orientation , Petitioner

was given a name tag with his name and the word ÐhousekeepingÑ on

it . He was told he would be called by Respondent and informed

when he would be starting work .

13 . Petitioner was h ired for the 11:00 p.m. to 7:30 a.m.

shift . He would have been the only one working in maintenance

during that shift . If needed, Petitioner would have been

responsible for the entire facility during his shift .

14 . During orientation, it was brought to Mr. HornfeckÓs

attention that Petitioner m igh t not have the ability to read well .

As a result, Petitioner was invited back to the facility and asked

to read some passages from the job description.

15 . Petitioner failed to demonstrate sufficient literary

skills , which resulted in Mr. Hornfeck advis ing him that his

employment was terminated. Mr. Hornfeck made the decision to

terminate the Petitioner Ós employment on this basis .

16 . Petitioner attended normal classes in school through the

end of the sixth grade. H owever, he was placed in special

education classes which were specific ally focused on improving his

reading skills for the seventh and eighth grade. Thereafter,

Petitioner was homeschooled beginning in the ninth grade .

17 . PetitionerÓs father conced ed that even he didnÓt realize

the extent of his sonÓs reading difficulties until he reviewed the

intellectual, behavior , and academic evaluation report prepared by

Dr. JoEllen Rogers , a licensed school psychologist, in August

2013.

18 . Psychologist Rogers was retaine d by PetitionerÓs counsel

to conduct her evaluation of Petitioner sometime subsequent to

PetitionerÓs termination by Respondent. Psychologist RogersÓ

evaluation reported that Petitioner has a Full Scale I.Q. of 97

and Ðis currently functioning in the Mild Mental Retardation range

of intellectual development.Ñ

19 . The job description signed by Petitioner on April 24,

2013 , included a space for applicants to indicate Ðany

accommodations that are required to enable me to perform these

duties.Ñ Petitioner did not list any desired accommodations.

20 . At hearing , Petitioner conceded that he never told any

employee of Responden t that he had a disability.

21 . When asked on direct examination to describe his need

for help reading, Petitioner testified simply that he has t rouble

reading in that he does no t understand some words and that he

ÐcanÓt read that well . Ñ

22 . There was no evidence adduced at hearing which indicated

or s uggested that Respondent knew Petitioner had taken sp ecial

education classes in the seventh and eigh th grades , or that

Respondent had any actual or constructive knowledge of any alleged

disability .

CONCLUSIONS OF LAW

23 . The Division of Administrative Hearings has jurisdiction

over the parties and the subject matter of this cause pursuant to

sections 120.569 and 120.57(1), Florida Statutes (2013) .

24 . Petitioner claim s he was terminate d from employment

based upon disability or perceived disability , in violation of the

Florida Civil Rights Act of 1992 ( Ð FCRA Ñ ).

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

unlawful for an employer to take adverse action against an

individual because of the individual's handicap . Under the FCRA,

an employer commits an unlawful employment practice if it

terminates or retalia tes against employees based on their

protected status, which in this case, is handicap . See

§ 760.10(1)(a), Fla . Stat.

26 . Section 760.11(7) permits a party who receives a no

cause determination to request a formal administrative hearing

before the Divi sion of Administrative Hearings. Ð 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 recommendi ng affirmative relief from the effects of

the practice, including back pay. Ñ Id.

27 . Florida's chapter 760 is patterned after Title VII of

the Civil Rights Act of 1964, as amended. Consequently, Florida

courts look to federal case law when interpretin g chapter 760.

Valenzuela v . GlobeGround N. Am., LLC. , 18 So. 3d 17 (Fla. 3rd DCA

2009).

28 . Petitioner ha s the burden of proving by a preponderance

of the evidence that Respo ndent discriminated against him . See

Fla. Dep't of Transp. v. J.W.C. Co., 39 6 So. 2d 778 (Fla. 1st DCA

1981). A party may prove unlawful discrimination by direct or

circumstantial evidence. Smith v. Fla. Dep't of Corr. , Case No.

2:07 - cv - 631, (M.D. Fla. May 27, 2009); 2009 U.S. Dist. LEXIS 44885

(M.D. Fla. 2009).

29 . Direct e vidence is evidence, that, Ð if believed, proves

[the] existence of [a] fact in issue without inference or

presumption. Ñ Burrell v. Bd. of Tr. of Ga. Military College , 125

F.3d 1390, 1393 (11th Cir. 1997). Direct evidence consists of

Ð only the most blatant remarks, whose intent could be nothing

other than to discriminate Ñ on the basis of an impermissible

factor. Carter v. City of Miami , 870 F.2d 578, 582 (11th Cir.

1989).

30 . The record in this case did not establish unlawful

discrimination by dir ect evidence.

31 . To prove unlawful discrimination by circumstantial

evidence, a party must establish a prima facie case of

discrimination by a preponderance of the evidence. If successful,

this creates a pres umption of discrimination. The burden then

shifts to the employer to offer a legitimate, non - discriminatory

reason for the adverse employment action. If the employer meets

that burden, the presumption disappears and the employee must

prove that the legitimate reasons were a pretext. Valenzuela v.

GlobeGround N. Am., LLC. , supra . Facts that are sufficient to

establish a prima facie case must be adequate to permit an

inference of discrimination. Id.

32 . Accordingly, Petitioner must prove discrimination by

indirect or circumstantial evidence und er the McDonnell Douglas

framework. Petitioner must first establish a prima facie case by

showing: (1 ) he is a member of a protected class; (2) he was

qualified for the job; (3) he was subjected to an adverse

employment action; and (4) other similarly - situated employees, who

are not members of the protected group, were treated more

favorably than Petitioner . See McDonnell Douglas Corp. v. Green ,

411 U.S. 792, 802 (1973). Ð When compari ng similarly situated

individuals to raise an inference of discriminatory motivation,

these individuals must be similarly situated in all relevant

respects. Ñ Jackson v. BellSouth Telecomm. , 372 F.3d 1250, 1273

(l1th Cir. 2004).

33 . The term ÐhandicapÑ i n the FCRA is treated as equivalent

to the term ÐdisabilityÑ in the Americans with Disabilities Act.

Ross v. Jim Adams Ford, Inc. , 871 So. 2d 312 (Fla. 2d DCA 2004).

34 . Pursuant to 42 U.S.C. § 12102(1) the term ÐdisabilityÑ

is defined as either (a) a physical or mental impairment that

substantially limits one or more of the major life activities of

such individual; (b) a record of such impairment; or (c) being

regarded as having such an impairme nt.Ñ ÐR eadingÑ is one of the

enumerated Ðmajor life activitiesÑ contained within 42 U.S.C.

§ 12102(2).

35 . However, as the court stated in Morisky v. Broward

County , 80 F.3d 445, 448 (11th Cir. 1996): ÐWhile illiteracy is a

serious problem, it does not always follow that someone who is

illiterate is necessarily suffering from a physical or mental

impairment. Id . at 4 48, citing Jones v. Bowen , 660 F. Supp. 1115,

1121 (C.D. Ill. 1987).

36 . A diagnosis of mild mental retardation coupled with

t estimony that one is Ða very slow learnerÑ and is Ðvery slow at

comprehending things,Ñ has been held to be insufficient to

demonstrate a disability under the ADA. Martin v. Discount Smoke

Shop, Inc. , 443 F. Supp. 2d 981 (C.D. Ill. 2006). The evidence

presented by Petitioner in this record is no greater than that

adduced in the Martin case. Hence, Petitioner has failed to meet

his burden of demonstrating a substantially limiting impairment.

37 . 42 U.S.C. § 12111(8) requires that a plaintiff under the

ADA be abl e to perform the essential functions of the job which

such individual holds or desires. Slomcenski v. Citibank, N.A. ,

432 F.3d 1271 (11th Cir. 2005). The ADA and hence the FCRA

therefore impose a requirement that Ðqualified individuals with

disabilitiesÑ be capable of performing the essential functions of

the job either with or without a reasonable accommodation. Id .

38 . In determining the essential functions of the job,

consi deration is given to an employerÓs judgment as to what

functions of a job are essential and to the employerÓs written job

description . 42 U.S.C. § 12111(8); Davis v. Fla. Power & Light

Co. , 205 F.3d 1301 (11th Cir. 2000). In the instant case, several

asp ects of RespondentÓs ÐHousekeeper Ñ j ob d escription required, at

a minimum, functional literacy. Accordingly, Petitioner has

failed to demonstrate that he was a Ðqualified i ndividual with a

disabilityÑ as defined under the requisite laws.

39 . The ADA only imposes a duty to provide reasonable

accommodations for Ðknown disabilitiesÑ unless doing so would

result in undue hardship to the employer 42 U.S.C. § 12112(5).

40 . Thus, even if Petitioner had successfully demonstrated

that he suffers from a disab ility, liability under the ADA

requires the employer to have discriminated Ðbecause of the

employeeÓs disability.Ñ Courts have held that this requires the

employer to have actual knowledge of the alleged disability at the

time it took the adverse employme nt action. Howard v. Steris

Corp. , 121 FEP Cases (BNA) 357 (11th Cir. 2013) citing, Cordoba v.

DillardÓs, Inc. , 419 F.3d 1169, 1185 (11th Cir. 2005). Other

courts have required, at a minimum, constructive knowledge of the

alleged disability . Hedberg v. I ndiana Bell Telephone Co. , Inc.,

47 F.3d 928 (7th Cir. 1995).

41. Vague or conclusory statements revealing an unspecified

incapacity are not sufficient to put an employer on notice of its

obligations under the ADA. Morisky v. Broward C nty . , 80 F.3d 445,

448 (11th Cir. 1996). The vague and conclusory statements

referenced in the Morisky case consisted of the plaintiff

informing the employer that she had taken special education

courses and could not read or write. The 11th Circuit addressed

the narrow issue of whether knowledge t hat an applicant for

employment has a disability is imputed to a prospective employer

which has knowledge that the applicant has taken special education

courses and cannot read or write.

42 . In the instant case, Pe titioner provided far less

information than the plaintiff in Morisky . While Petitioner

testified that he took special education courses in the seventh

and eighth grade s , there was no evidence that Respondent was ever

informed of this fact . Further, Petit ioner insisted that he

possessed the ability to read. His comment to the Respondent at

the critical juncture simply acknowledged that he could not read

very well. He never indicated that he could not read or that his

poor reading skills were attributable to a disability . Indeed,

even at the hearing, Petitioner testified that he merely had

difficulty understanding certain words and that his reading skills

were sufficient to enable him to complete employment applications

(albeit more slowly than his father).

43 . Petitioner did not demonstrate that his poor reading

skills were a disability. Psychologist RogersÓ evaluation merely

reported a slightly below average IQ. More importantly,

P etitioner did not establish that Respondent was aware of any

all eged disabi lity at the time PetitionerÓs employment was

terminated . Rather, Respondent reasonably concluded that

Petitioner did not possess the requisite reading skills to enable

him to safely and effectively perform the duties associated with

the houseke eper position. This conclusion constitutes a

legitimate business reason for terminating PetitionerÓs

employment.

44 . Based on the foregoing, it is concluded that Petitioner

has failed to meet his burden of demonstrating he suffers from a

disability , and further has failed to meet his burden of

demonstrating Respondent had actual ( or even constructive )

knowledge of any such disability at the time PetitionerÓs

employment was terminated.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations dismiss the Petition for Relief from an Unlawful

Employment Practice filed against Respondent.

DONE AND ENTERED this 21st day of Ju ly , 2014 , in Tallahassee,

Leon County, Florida.

S

W. DAVID WATKINS

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 21st day of July , 2014 .

COPIES FURNISHED :

Violet Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway , Suite 100

Tallahassee, Florida 32301

David W. Glasser, Esquire

Law Office of David W. Glasser

116 Orange Avenue

Daytona Beach, Florida 32114

Dorothy Parson, Esquire

Ogletree, Deakins, Nash,

Smoak, and Stewart, P.C.

111 Monument Circle , Suite 4600

Indianapolis, Indiana 4 6204

J. Robert McCormack, Esquire

Ogletree, Deakins, Nash,

Smoak, and Stewart, P.C.

100 North Tampa Street , Suite 3600

Tampa, Florida 33602

Cheyanne Costilla, Gen eral 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.