14-004984 Dante Candelaria vs. City Of Orlando Status: Closed Recommended Order on Tuesday, April 21, 2015.

Summary: Petitioner failed to prove that he was terminated from employment as a police officer because of age, national origin, or a disability.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DANTE CANDELARIA,

Petitioner ,

vs. Case No. 14 - 4984

CITY OF ORLANDO,

Respondent.

_______________________________/

RECOMMENDED ORDER

This case w as heard on March 5 and 6, 2015, by video

teleconferenc ing at sites in Orlando and Tallahassee, Florida,

by D .R. Alexander, the assigned Administrative Law Judge of the

Division of Administrative Hearings (DOAH) .

APPEARANCES

For Petitioner : Gary D. Wils on , Esquire

Wilson McCoy , P.A.

Suite 202

711 North Orlando Avenue

Maitland , Florida 32751 - 4403

For Respondent : Martha Lee Lombardy , Esquire

As sistant City Attorney

Post Office Box 4990

Orlando , Florida 3280 2 - 4990

Steven A. McKillop, Esquire

Jones Hurley & Hand, P.A.

Suite 100

1040 Woodcock Road

Orlando, Florida 32803 - 3510

STATEMENT OF THE ISSUE

The issue is whether the City of Orlando (City) engaged in

an unlawful employment practice by terminating Petit i oner

because of his age, national origin, and disability.

PRELIMINARY STATEMENT

On May 5, 2014, P etitioner filed a Charge of Discrimination

with the Florida Commission on Human Relations (FCHR) alleging

that he was unlawfully terminated from his position as a police

o fficer with the City on account of his age, national origin,

and disability in violation of section 760.10(1), Florida

Statutes (2014). After the allegations were investigated, on

September 23, 2014, the FCHR issued a Notice of Determination:

No Cause. O n October 21, 2014, a Petition for Relief was filed ,

and the case was transmitted by FCHR to DOAH requesting that a

formal hearing be conducted.

At the final hearing, Petitioner testified on h is own

behalf and presented the testimony of nine witnesses .

Pe titioner ' s Exhibit s 1 through 1 3 and 15 through 36 were

accepted in evidence. 1/ The City presented no witnesses.

Respondent's Exhibits 1 through 2 0 were accepted in evidence.

Exhibit 20 is the deposition of Dr. Joseph Funk.

There is no transcript of th e hearing. The parties filed

p roposed r ecommended o rders , which have been considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is a 42 - year - old male of Puerto Rican

origin. After working as a paramedic in the Chicago a rea for

several years, Petitioner began employment with the City as a

police officer on May 11, 2003 . He continued in that capacity

until May 9, 2013, when he was terminated for violating three

Police Department (Department) regulations. This was two day s

short of the ten - year vesting period for retirement purposes.

2. Petitioner suffered an on - duty injury to his right foot

on December 7 , 2007 , while attempting to apprehend the driver of

a stolen vehicle . On January 2, 2008, t he injury was initially

dia gnosed by Dr. Funk , a podiatric surgeon, as a Lis f ranc

(midfoot) fracture with minor dislocation and a possible

compression injury or bone contusion to the na viculo - cuneiform

joint in the right foot. 2/ Based on the results of an MRI, and

further review of his records , Dr. Funk concluded Petitioner had

suffered a Lis f ranc sprain, rather than a fracture. At

Petitioner's request, h e was temporarily re assigned to

alternat iv e duty but returned to regular duty without limitation

on March 19, 2008. He was assig ned to the gang unit and

performed all functions required of a police officer.

3. Petitioner returned to see Dr. Funk in January and

December 2009 after feeling pain in his right foot while

running. There were no changes in his maximum medical

improvemen t during either visit and Petitioner was released to

work with no restrictions.

4 . O n September 12, 2010, w hile chasing on foot a suspect

who had burglarized his patrol car parked at his home,

Petitioner reinjured his right foot. He was diagnosed with an

aggravation of a pre - existing injury , restricted to light duty

for one week, and instructed to return to full duty thereafter . 3/

5 . On March 9, 2011, Petitioner was treated by Dr. Funk

who added an additional diagnosis of probable mild to moderate

dege nerative joint disease (DJD), also known as osteoarthritis ,

which had formed a few centimeters away from the midfoot sprain

in his right foot . Two weeks later, Dr. Funk noted that

Petitioner "may" be a candidate for fusion of the arthritic area

if "pain e xceeds his tolerance and conservative measures fail."

6 . On April 13, 2011, the City placed Petitioner on

alternative duty status/relieved of duty as a result of his

arrest on criminal charges (battery and false imprisonment) and

his participation in a tr ial on the charges.

7. While relieved of duty, on August 17, 2011, Petitioner

returned to Dr. Funk complaining of continued pain in his mid -

right foot. He was again diagnosed with a Lis f ranc injury and

DJD. At that point, however, Dr. Funk testified t hat the

Lis f ranc diagnosis "could easily fall off" leaving only DJD of

the naviculo - cuneiform joint. At Petitioner's request, his work

status remained "no limitations." Visits to Dr. Funk in January

and February 2012 did not change his work status.

8 . O n April 27, 2012, Petitioner was found not guilty of

the criminal charges and returned to active duty as a police

officer. He was initially assigned to a day patrol shift.

9. On May 4, 2012, Petitioner was examined by Dr. Funk

after complaining of radiat ing pain to his right foot and leg.

Dr. Funk diagnosed this as possible tarsal tunnel syndrome and

placed him on restrictions of no running or climbing.

10 . On May 7, 2012, Petition er submitted a memorandum

through the chain of command to the C hief of P olice requesting

that he be placed on light duty due to his foot injury sustained

in December 2007 . The memorandum , accompanied by a medical

report , stated that Dr. Funk had "placed [him] on light duty

until further notice with the restriction of no runn ing or

climbing of any kind." Petitioner requested that he remain in

his current assignment in Property and Evidence , one that did

not require any running or climbing.

11 . To reasonably accommodate his injury, t he request for

light duty was approved , b ut Petitioner was re assigned to the

Innovative Response to Improve Safety (IRIS) unit. IRIS is a

video surveillance network in the City designed to deter crime.

During a typical shift, no more than four officers sit at two

terminals, which display video from cameras located throughout

the City. Because there are no physical demands associated with

IRIS, officers on restricted duty are normally assigned to the

IRIS unit .

12 . The IRIS unit has a day and night shift. Officers

cannot make their own sched ule, as this depends on the

availability of manpower. However, r elying on his nine - year

seniority, Petitioner requested four ten - hour days per week on

the IRIS day shift, which was approved by his supervisor,

Sgt. Andrew Brennan.

1 3 . On August 2, 20 12, Petitioner s ent an email to his

supervisor complaining that one of his fellow officers on IRIS

duty was "wasting resources" and not doing anything. Six days

later, Petitioner was reassigned to the night shift. Although

Petitio n er says this change was in retaliation for complaining

about an officer who was a good friend of Deputy Chief O'Dell ,

t here is insufficient cre dible ev idence to support this claim.

1 4 . Petitioner was displeased with the night shift for

several reasons. First, h e testified th at it disrupted the

medication he was taking for his foot . He also stated that it

prevented him from adequately caring for his three children and

his wife, a former City police officer on a disability pension,

who at that time was afflicted with Meniere's Disease. Although

Petitioner made at least two requests to change to the day

shift, they were not approved.

1 5 . Department protocol require s that officers on

restricted duty submit medical updates every 30 days, along with

physician reports. In accor dance with that requirement,

Petitioner timely submitted updates in June, July, and August

2012. They essentially stated that his condition was unchanged

and that Dr. Funk was keeping him on light duty with

restrictions of no running or climbing.

1 6 . O n September 14, 2012, Petitioner visited an urgent

care facility complaining of numbness, pain , burning, and loss

of motor function in his right foot. He was treated by the on -

duty physician, Dr. Carlos, who gave him temporary restrictions

of no driving a ny vehicle, no walking, no standing, and no

performing any safety related duties until he saw his treating

orthopedist.

1 7 . On the same day, Petitioner submitted a medical update

to the Department stating in part that a work status change was

necessary in light of "the deteriorating condition of my injured

right foot." In the memorandum, he complained of occasional

"numbness" in his right foot that spread up to his calf and

knee. He also stated that Dr. Carlos had examined him and

"restricted me from d oing the following: I am not to stand,

walk, drive any vehicle, or perform any safety sensitive duties

until I am seen by an orthopedic physician." He added : "I am

to stay at home until I have been examined by a new physician."

A copy of Dr. Carlos' medical report was attached to the update.

1 8 . Petitioner returned to Dr. Funk on September 24, 2012,

and stated that he did not feel safe to drive given the pain in

his right foot. Based on Petitioner's subjective complaint s ,

rather than objective medic al evidence , Dr. Funk placed him on

restrictions of no driving, sit 90 percent of the time, and wear

a shoe of choice. Dr. Funk listed the diagnosis as "injury."

Notably, Dr. Funk testified that by then he had some concern

that Petitioner "was coming in often and it was something --

seemed to be something new every time" and that the different

diagnoses "ultimately came back as negative." He added that

there was not "a tremendous amount of objective pathology

present" even though Petitioner complained of significant

discomfort in a "multiplicity of locations."

1 9 . Although he had recommend ed approval of Petitioner's

requests for light duty each month , beginning in May 2012 Deputy

Chief O'Dell had doubts that the 2007 foot injury justified

continued ligh t duty, especially since Petitioner had been on

alternat iv e duty during the entire time he was charged with a

crime , and he had never raised the injury issue with the

Department .

20 . Deputy Chief O'Dell construed the new medical

assessment in the Septembe r 14, 2012 , memorandum as meaning that

Petitioner was unable to report to work. His skepticism of the

injury increased as this new restriction coincided with

Petitioner's displeasure with being reassigned to the IRIS night

shift.

2 1. Because of his ske pticism, and with the Chief of

Police 's approval, Deputy Chief O'Dell requested that the

Metropolitan Bureau of Investigation (MBI), a multi - agency task

force, conduct surveillance on Petitioner to confirm whether or

not his putative injury was real. Begi nning o n October 4, 2012,

and continuing until November 30, 2012, MBI agents conducted

p eriodic s urveillance of Petitioner's home to determine

Petitioner's level of activity .

22 . During this same time period, Petitioner remained at

home on full pay. He submitted medical u pdates on October 12

and 29 and November 6, 2012, stating that pursuant to physician

orders, the following restrictions were put in place for

Petitioner: "no driving, sitting 90% of time, and wear shoe of

choice for comfort." During t he November 6 visit, Dr. Funk told

Petitioner that he had nothing else to offer him from a

musculoskeletal standpoint and the only option was "good support

in his shoe and kind of common sense majors."

23. On November 7, 2012, Petitioner sent an email to the

Department stating that he was willing to come back to work in

the IRIS unit if the Department provided transportation, as it

had for other officer s on restricted duty . He also complained

that the midnight shift "caused havoc with sleep and

medication s," suggesting that he c ould only work the day shift.

2 4 . On November 27, 2012, a t a meeting convened by Deput y

Chief O'Dell , Petitioner was asked when he could return to work.

Petitioner responded that he was in constant pain, he could not

drive, and he had lost motor function in his foot.

2 5 . On November 30 , 2012, Petitioner was served at his

home with a R eturn to D uty N otice and instructed to return to

the IRIS night shift on December 2, 2012 . Petitioner replied by

email that he had loss of motor f unction in his right foot and

was not able to drive any motor vehicle. Notably, that same

day, he was observed by MBI agents driving his motor vehicle to

and from his home . Petitioner also stated that if he sat for

long periods of time his foot would go numb , even though one of

his medical restriction s required him to sit 90 percent of the

time. Petitioner warned the Department that unless it provided

him with transportation to and from work, he would be forced to

drive himself , and if an accident occurr ed, he would hold the

City responsible for any damages.

2 6 . In response to his email, the Deputy Chief advised

Petitioner that the Department was not directing him to drive

anywhere, but it was his responsibility to get to work. He was

told that he cou ld use public or private transportation, but the

Department did not have the responsibility of providing

transportation.

27. Petitioner lives approximately 18 miles from

Department headquarters , and he concluded that neither option

was practical. Petit ioner testified that two officers ,

Shoemaker and Almeida , who were not called as witnesses, told

him t he y had been provided transportation by the Department when

on light duty . However , th e Department's response was correct,

as providing transportation fo r officers on restricted duty was

contrary to Department policy. This was confirmed at hearing by

the then Chief of Police.

2 8 . Sometime in Oc t ober 2012, MBI agents placed a motion -

activated surveillance camera in the yard of Petitioner's

neighbor in ord er to monitor Petitioner's activities . The

camera remained at the neighbor's house through the month of

November. The surveillance video , as supplemented by visual

observations by the MBI agents, shows Petitioner driving his

daughter to a nearby school o n multiple occasions , driving to a

supermarket , walking two large dogs without a limp on a street

near his home , rolling trash cans to the curb, using a gas -

powered edger in his yard, rotating tires on his vehicle ,

walking to the gym to work out, and bendi ng over to retrieve

items on the ground . At hearing, Petitioner also acknowledged

that during this same time period , he twice drove his wife to a

hospital more than twenty miles from his home , as she was unable

to drive . According to the physician's repo rt, at least some of

t hese were restricted activities .

2 9 . At the request of Deputy Chief O'Dell, an Internal

Affairs investigation was initiated on December 7, 2012,

regarding a possible violation by Petitioner of Department

Regulation 1000 - 4, the so - c alled "truthfulness" regulation, for

misrepresenting his medical condition. The regulation states

that "[e]mployees are required to be truthful at all times

whether under oath or not." Given the evidence produced by MBI,

this was a reasonable course of a ction to take .

30 . After a lengthy investigation, Internal Affairs

submitted a written report on April 29, 2013. The report

concluded that besides violating the truthfulness regulation,

Petitioner violated Regulation 300.23, Reporting Sick, which

prohibi ts an officer feigning illness or injury, falsely

reporting himself as injured, or otherwise attempting to deceive

the Department as to his condition of health. The report also

concluded that Petitioner violated Regulation 200 - 8, Obedience

to Laws and Dep artment Procedures, by fraudulently pursuing a

workers ' compensation claim under section 440.105(4)(b)(2).

However, Petitioner was never criminally charged for this

violation. T he report recommended that Petitioner receive an

oral reprimand for violating Regulation 300.23, a 240 - hour

suspension for violating Regulation 200 - 8, and termination for

violating the truthfulness regulation. Although Petitioner

questioned why two new charges were added by Internal Affairs ,

it is not unusual for new charges to be added or substituted

during the course of an investigation.

3 1 . A Notice of Termination meeting was conducted on

May 6, 2013, to allow Petitioner an opportunity to "present any

new information or provide clarification that would lessen the

degree of d iscipline presently recommended." By then, Deputy

Chief O'Dell had retired. Petitioner and his union

representative attended the meeting.

32. On May 9, 2013, Petitioner was terminated for

violat ing the three r egulations. According to the Chief of

Pol ice, the evidence to support this decision was

"overwhelming." The termination decision was agreed upon by

every person in the chain of command , including the new Deputy

Chief . It was not based on Petitioner's national origin, age,

or disability ; r ather, it was based on the sustained charges in

the lengthy Internal Affairs report.

3 3 . Every officer , including those of Hispanic origin,

found guilty of violating the truthfulness regulation has been

terminated by the Department .

3 4 . Petitioner does not dispute what the video shows. He

testified that the driving activities were short trips of no

more than a mile or so from his home that were necessary because

his young daughter and sick wife were unable to drive . He

ad mitted that while it was unsafe, he always drove with his left

foot rather than with the injured right foot . Petitioner

contends that none of the activities in the video were

incon s istent with the doctor's restrictions , as he was always

allowed to perform "routine functions around home." However,

this explanation has not been accepted , as many of these

activities are not consistent with his treatment plan.

3 5 . Petitioner admits that many of his difficulties at the

Department were due to "running his mouth , " which gained him no

favors from his superiors and resulted in very little career

advancement . He contended that other officers , especially those

who played on the Department softball team with Deputy Chief

O'Dell , were given more favorable treatment, but no credible

evidence to support this contention was submitted.

3 6 . On May 7, 2013, or two days before he was terminated,

Petitioner filed an application for a line - of - duty disability ,

which would allow him to retire because of a disability suffered

in the line of duty . This applicat ion was denied by the Board

of Trustees of the City of Orlando Pension Trust Fund o n

December 5, 2013 , on the ground Petitioner never filed a

completed application package , a mandatory requirement .

However, h is contested application for unemployment benef its was

approved , and he continues to receive benefits under an open

worker s ' compensation case . On June 30, 2014, Dr. Funk operated

on Petitioner's right foot, fusing two joints , due to arthritic

changes and his subjective complaints . The cost was cover ed by

the City under Petitioner's open workers ' compensation c ase .

3 7 . Petitioner is presently employed as a life guard at

Disney World , not because of his 2007 injury, but because he

says the City's action makes it impossible for him to find a job

in l aw enforcement or even to work as a security guard. He

expressed a desire to return to law enforcement work if he

prevails in this matter .

CONCLUSIONS OF LAW

3 8 . Petitioner has the burden of proving by a

preponderance of the evidence that the City commit ted an

unlawful employment practice. See § 120.57(1)(j), Fla. Stat.

3 9 . Section 760.10(1) states that it is an unlawful

employment practice for an employer to discharge or otherwise

discriminate against an individual on the basis of age, national

origin, or disability.

40 . FCHR and Florida courts have determined that federal

discrimination law should be used as guidance when construing

provisions of section 760.10. See, e.g. , Fla. State Univ. v.

Sondel , 685 So. 2d 923, 925 n.1 (Fla. 1st DCA 1996) ; Val enzuela

v. Globe G round N. Am., LLC , 18 So. 3d 17, 21 (Fla. 3d DCA 2009).

4 1 . Complainants alleging unlawful discrimination may

prove their case using direct or circumstantial evidence of

discriminatory intent. Direct evidence is evidence that, if

belie ved, would prove the existence of discriminatory intent

without resort to inference or presumption. Denn e y v. City of

Albany , 247 F.3d 1172, 1182 (11th Cir. 2001). Only the most

blatant remarks, whose intent would be nothing more than to

discriminate on the basis of some impermissible factor ,

constitute direct evidence of discrimination. Wilson v. B/E

Aerospace, Inc. , 376 F.3d 1079, 1086 (11th Cir. 2004). No

direct proof was presented by Petitioner .

4 2 . When no direct proof of discrimination exists, th e

employee may attempt to establish a prima facie case

circumstantially through the burden - shifting framework

articulated in McDonnell Douglas Corporation v. Green , 411 U.S.

792, 802 - 805 (1973). Failure to establish a prima facie case of

discrimination en ds the inquiry. See Kidd v. Mando Am. Corp. ,

731 F.3d 1196, 1202 (11th Cir. 2013). If, however, the employee

succeeds in making a prima facie case, the burden then shifts to

the employer to articulate a legitimate, non - discriminatory

reason for its compl ained - of conduct. Id. T his intermediate

burden of persuasion is "exceedingly light." Vessels v. Atlanta

Indep. Sch. Sys. , 408 F . 3d 763, 769 - 70 (11th Cir. 2005). Should

the employer meet this burden, the employee must then establish

that the proffered r eason was not the true reason for the

employment decision, but rather a pretext for discrimination.

Kidd , 731 F . 3d at 1202. The employee must satisfy this burden

by showing directly that a discriminatory reason more likely

than not motivated the decision , or indirectly, by showing that

the proffered reason for the employment decision is not worthy

of belief. Dep't of Corr. v . Chandler , 582 So. 2d 1183, 1186

(Fla. 1st DCA 1991). The claimant must show not merely that the

employer's employment decisions w ere mistaken, but that they

were in fact motivated by discriminatory animus. Wilson , 376

F.3d at 1092. Notwithstanding these shifts in the burden of

production, the ultimate burden of persuasion remains at all

times with the employee. Byrd v. BT Foods, Inc. , 948 So. 2d

921, 927 (Fla. 4th DCA 2007).

4 3 . To establish a prima facie case of age discrimination

with circumstantial evidence, Petitioner must show that (a) he

was a member of a protected age group; (b) he was qualified for

the job; (c) he was s ubject to an adverse employment action; and

(d) he was replaced by someone of a different age, or, in the

case of disparate treatment, he must show that other similarly

situated employees of a different age were treated more

favorably. Andrade v. Morse Op erations, Inc. , 946 F. Supp. 979

(M.D. Fla. 1996). In cases under section 760.10(1)(a), however,

the FCHR has concluded that unlike cases brought under the

federal Age Discrimination in Employment Act, the age of 40 has

no significance in the interpretati on of the Florida Civil

Rights Act of 1992. See, e.g. , Grasso v. AHCA , Case No. 14 - 2523

(Fla. DOAH Sept. 9, 2014 ; FCHR Jan. 14, 2015). To satisfy the

last element of a prima facie case of age discrimination under

Florida law, it is sufficient for Petitio ner to show that he was

treated less favorably than similarly situated individuals of a

"different" age as opposed to a "younger" age.

4 4 . Petitioner has shown that he is a member of a

protected age group and was subject to an adverse employment

action. However, he failed to prove that other similarly

situated officers were treated differently. The evidence shows

that every officer found guilty of violating the truthfulness

regulation has been discharged, regardless of their age. Even

assuming that Pe titioner established a prima facie case, the

City articulated a legitimate, non - discriminatory reason for its

action , namely, that Petitioner was discharged because of

violations of Department policies and procedures that require

officers to be truthful, o bey laws, and report changes to

medical status to supervisors without misrepresentation or

deception. Petitioner did not prove that the articulated reason

was a pretext.

4 5 . To establish a prima facie case of discrimination

based on his national origin, Petitioner must show that he

belongs to a protected group; he was subjected to an adverse

employment action; his employer treated similarly situated

employees outside the protected group differently or more

favorably; and he was qualified to do the job. H olifield v.

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

4 6 . While Petitioner established that he is a member of a

protected class (Hispanic) and was subjected to an adverse

employment action, he failed to prove that the City treated

similarly situated e mployees outside his protected class more

favorably. S pecifically, Petitioner failed to present any

evidence that the City allowed non - Hispanic police officers to

violate its policy regarding truthfulness, obey ing laws, and

misrepresenting medical conditi on s to superiors without being

terminated.

4 7 . Even if a prima facie case w ere shown, the City

articulated legitimate, non - discriminatory reasons for

Petitioner's discharge. Petitioner failed to present any

evidence that would allow a reasonable person to conclude that

the City's explanation for his discharge is false.

4 8 . To state a prima facie case of discrimination based on

a disability, a complainant must prove that ( a ) he has a

disability; ( b ) he is a qualified individual with a disability;

and ( c ) he was subjected to unlawful discrimination because of

his disability. Morisky v. Broward Cnty. , 80 F.3d 445, 447

(11th Cir. 1996).

4 9 . To establish t he first prong of the test, Petitioner

was req uired to prove by a preponderance of the evidence that

(1) he had a physical disability that substantially limited one

or more of the major life activities; (2) he had a record of

such impairment; or (3 ) he was regarded by the City as having an

impairment. See 4 2 U.S.C. § 12102( 1 ) (A) - (C) .

50 . Driving is not a major life activity. Carlson v.

Liberty Mut. Ins . Co. , 237 Fed. Appx. 446 (M.D. Fla. 2007) ;

Delgado v. Sears Holdings Corp. , 2008 U.S. Dist. LEXIS 44393

(N.D. Ill. June 5, 2008) . Thus, an inability to drive to and

from work is not an impairment of a m ajor life activity within

the meaning of the law. See Chenoweth v. Hillsborough Cnty. ,

250 F.3d 1328, 1330 (11th Cir. 2001) ( claimant's inability to

drive to work for at least six months did not qualify as an

impairment) . See also Burgos v. Chertoff , 274 Fed. Appx. 839

(11th Cir. 2008)(a homeland security officer's inability to

drive was determined not to be a major life activity that would

qualify him as being disabled). Even assuming arguendo that

driving were a major life activity, an impairment's mino r

interference in major life activities does not qualify as a

disability. Toyota Motor Mfg., Kentucky, Inc. v. Williams , 534

U.S. 184, 198 (2002). The impairment's impact must be permanent

or long - term. Id. Intermitt e nt, episodic impairments are not

di sabilities. Vande Zande v. Wisc. Dep't of Admin. , 44 F.3d

538, 544 (7th Cir. 1995). Here, t he evidence shows that

Petitioner's impairment was not permanent, and at best was

intermittent or episodic. Petitioner has failed to establish

that he had a physi cal disability that substantially limited a

major life activity within the meaning of the law .

5 1 . While medical records can serve as a basis for

demonstrating a disability, Petitioner must prove from his

records that he actually suffered a physical impai rment in the

past that substantially limited his major life activities.

Cribbs v. City of Altamonte Springs , 2000 U.S. Dist. LEXIS 20084

( M.D. Fla. Oct. 18, 2000). As previously found, the medical

records do not show that Petitioner suffered a physical

i mpairment that substantially limited a major life activity.

5 2 . Finally, the City did not regard Petitioner as being

disabled . To the contrary, the City always believed that he was

capable of working with the temporary restrictions assigned.

Petitione r has failed to make a prima facie case for

discrimination based on a disability, and the inquiry on th is

issue must necessarily end. Kidd , 731 F.3d at 1202.

5 3 . Assuming arguendo that Petitioner made out a prima

facie case, the City articulated a non - d iscriminatory reason for

the adverse employment decision. Insufficient evidence was

presented to support a conclusion that the reasons given by the

City were not the real reasons for the employment decision.

5 4 . Given the foregoing considerations, t he Petition for

Relief should be d ismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing, with prejudice, the Petition for

Relief .

DONE AND ENTERED this 21st day of April , 20 1 5 , in

Talla hassee, Leon County, Florida.

S

D . R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 967 5

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of April , 201 5 .

ENDNOTES

1/ Petitioner's Exhibits 2 through 1 3 duplicate exhibits offered

by the City. F or the sake of effi ciency, Petit ioner only

submitted copies of Exhibits 1 and 1 5 through 3 6 .

2/ The parties submitted literally hundreds of pages of medical

records dating back to 2007. Rather than describing the records

in minute detail, the undersigned has summarized t he salient

points necessary to resolve this dispute.

3/ In general terms, a n officer on alternative duty is assigned

administrative tasks, while an officer on light duty is assigned

non - administrative work . However, the terms were often used

interchange ably during the hearing. A more precise description

of the two could have be en found in the record, had a transcript

been provided. Under the Agreement between the City and the

Fraternal Order of Police, b oth are considered restrict ed duty.

See Responde nt's Ex. 13, p. 40.

COPIES FURNISHED:

Tammy Crawford , Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way , Suite 110

Tallahassee, Florida 323 99 - 7020

Cheyanne M. Costilla, General Counsel

Florida Commission on Human Relations

4075 Esp lanade Way , Suite 110

Tallahassee, Florida 32399 - 7020

Gary D. Wilson, Esquire

Wilson McCoy, P.A.

Suite 202

711 North Orlando Avenue

Maitland , Florida 3 2751 - 4403

(eServed)

Martha Lee Lombardy , Esquire

Assistant City Attorney

Post Office Box 4990

Orlando , Florida 3280 2 - 4990

(eServed)

Steven A. McKillop, Esquire

Jones Hurley & Hand, P.A.

Suite 100

1040 Woodcock Road

Orlando, Florida 32803 - 3510

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

1 5 days of the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

render a final order in this matter.