15-003941 Dave Harvey vs. Meal On Wheels Etc., Inc. Status: Closed Recommended Order on Tuesday, November 24, 2015.

Summary: Petitioner failed to prove discrimination based on race, disability, or retaliation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVE HARVEY,

Petitioner ,

vs. Case No. 1 5 - 3941

MEAL S ON WHEELS, ETC., INC.,

Respondent .

_______________________________/

RECOMMENDED ORDER

On October 15, 2015, this case was heard at videoconferenc e

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 : Dave Harvey , pro se

1224 Cathcart Circle

Sanford , Florida 32771 - 5406

For Respondent : Richard V. Blystone, Esquire

Garganese, Weiss & D'Agresta, P.A.

Suite 2000

111 North Orange Avenue

Orlando, F lorida 32801 - 23 2 7

STATEMENT OF THE ISSUE

The issue is whether Petitioner was subject to an unlawful

employment practice by Respondent, Meals on Wheels, Etc., Inc.,

on account of his race and disability , as a resul t of

Respondent's maintenance of a hostile work environment , or as

retaliation to his opposition to an unlawful employment

practice, in violation of section 760.10, Florida Statutes.

PRELIMINARY STATEMENT

On November 25 , 201 4 , Petitioner filed an Employmen t C harge

of Discrimination with the Florida Commission on Human Relations

(FCHR) alleging that he was subjected to an unlawful employment

practice by his employer, Meals on Wheels, Etc., Inc., on

account of his race and disability , as a result of a hostile

working environment , and in retaliation for protesting these

discriminatory actions. After the FCHR determined th ere was no

reasonable cause to believe that an unlawful employment practice

occurred , Petitioner filed his Petition for Relief . The matter

w as then referred by the FCHR to DOAH to resolve the dispute.

At the hearing, Petitioner testified on his own behalf and

presented two witness es . Also, he pre - filed 141 pages of

documents relating to a variety of topics. A ruling on their

admissibility was reserved. To the very limited extent they are

reasonably authentic and are relevant, and the hearsay

statements therein corroborate other competent testimony, the

documents have been c onsidered . 1/ Respondent presented the

testimony of two witnesses. Respondent's E xhibits 1 through 25

were accepted in evidence.

There is no tr anscript of the hearing . Respondent filed a

p roposed r ecommended o rder (PRO) , wh ile Petitioner filed a two -

page letter, with 18 pages of attachments . The PRO and letter

(but n ot the attachments) ha ve been considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. As its name implies, Respondent is a non - profit

charitable organization engaged in the business of providing

free meals, transportation services , an d related assistance to

senior citizens in the Sanford, Florida, area. Petitioner is a

6 4 - year - old black male of Jamaican origin . He worked as a

driver for Respondent from August 13, 2012 , until October 23,

2014, when he was discharged for violating a co mpany policy.

2. As a condition of employment as a driver , P etitioner

was required to submit a medical fitness form regarding his

current medical condition. In the form filed on July 30, 2012 ,

he denied having any medical issues except non - insulin depe ndent

diabetes, which is controlled by diet. See Ex. 21. An updated

form was submitted on August 25, 2014, r eflecting no change in

his medical condition. Id. No other medical records were

submitted to substantiate any other medical condition. When he

interviewed for the position, Petitioner did not tell Respondent

that he needed an accommodation for his diabetes or that he had

any work restrictions . As such, management never considered

Petitioner to have a disability.

3. Petitioner also provided a p ost - employment medical

questionnaire on August 8, 2012, which stated that he had

diabetes but t hat it was controlled by diet. Id. No other

injuries, illnesses, or health abnormalities were reported.

4. As a driver, Petitioner was expected to adhere to

R espondent's safety rules. To ensure compliance with the rules,

s hortly after being hired, Pet itioner was required to read , and

then sign a statement acknowledging that he understood, the

organization's General Policies . See Ex. 1, p. 4. He was also

requ ired to ackn owledge receipt of its Employee Handbook

containing the Safety Policies and Procedures. See Ex. 3. In

addition, Respondent's Transportation Coordinator, Mark Taylor,

condu cted periodic refresher training sessions with all drivers,

including R espondent.

5. One of Respondent's most significant safety rules, if

not the most significant, is a rule that requires drive r s to

provide door - to - door service. It provides in relevant part that

"[u] pon arrival at a client's home, [a driver must] go to [th e]

door and knock. If the client needs help, you will be right

there to assist." Ex. 1, p. 1, ¶ 6. This rule is intended to

promote client safety and to ensure, to the extent possible,

that Respondent will not face legal exposure because , for

example, a client falls down while walking un assisted to or from

the vehicle.

6. To comply with the above rule, drivers are required to

get out of the van, go to the front door, knock, and then assist

the client walking to the van . This is because the clients ar e

elderly, some use walkers, and they need assistance from the

driver while getting to and from the van. On August 21, 2014,

Petitioner signed a nother statement acknowledging that he

understood the policy, he agreed to follow it at all times, and

he under stood that "[t]ermination will result in not following

this important safety rule." Ex. 7.

7. As a corollary to the above safety rule, drivers are

instructed that they should never honk the vehicle's horn when

they arrive at a client's home. Instead, th ey should get out of

the vehicle and go to the front door of the residence.

Petitioner was specifically told about the no - honking rule at

two safety meetings.

8 . The incident underlying Petitioner's discharge occurred

on the morning of October 23, 2014. Petitioner was told to pick

up Angelo Rosario and transport him to an appointment. The

client is in his 80s, suffers from Alz h eimer's disease, and uses

a walker. He resides in a mobile home - type community with his

daughter; and the driveway in front of the mobile home is

unpaved with exposed roots making it easy to trip or fall.

Although Mr. Rosario was not one of his regular clients,

Petitioner had picked him up at least 12 times in the previous

30 days and was familiar with his condition and the area in

which he lived.

9 . The testimony describing the incident is conflicting .

However , the accepted testimony shows that Petitioner arrived at

the Rosario residence while Petitioner was on a personal cell

phone call to his sister . When he finished the c all, Petitioner

blew the horn to alert the client that he was there. The

honking was loud enough to annoy Rosario's neighbor who

approached Petitioner 's vehicle complaining about the noise.

Suspecting th at the neighbor's concern might cause a problem,

Pe titioner immediately telephoned M r. T aylor and told him that

he had blown the horn and anticipated that someone might be

calling him with a complaint . Mr. Taylor told Petitioner that

honking the horn was inappropriate , it violated an important

safety rule , and he could not just sit in the van waiting for

the client . Petitioner admits that during the telephone call,

he shouted at Mr. Taylor and claimed he was unaware of the rule.

After M r. Taylor instructed Petitioner to go to the front door

to pick up th e client , Petitioner exited the vehicle and

escort ed the client to the van.

10 . A fter speaking with Petitioner, Mr. Taylor immediately

telephoned the client's daughter to get her version of events.

Mr. Taylor learned that honking had recently occurred r ather

frequently at the client's home , and he believed that Petitioner

was the responsible driver , as Petitioner had transported the

client at least 12 times during the previous 30 days.

1 1 . Mr. Taylor immediately reported the incident to the

Executive Director, Sherry Fincher, who evaluated the matter,

and then decided to terminate Petitioner for violating the

organization's most important safety rule. Notwithstanding

Petitioner's claim to the contrary, it is the Executive Director

alone , and not Mr. T aylor, who makes the decision to terminate

an employee. A memorandum was prepared by Ms. Fincher that day

indicating that Petitioner was being terminated "due to not

following agency policies regarding door - to - door pick up of

clients[,] . . . one of the m ost important policies to ensure

the safety of all clients." Ex. 20. This was consistent with

Respondent's policy, and one that Petitioner clearly understood.

Petitioner's race and di abetic condition played no role in the

decision.

12. Petitioner's E mployment C harge of Discrimination was

filed one month later. Prior to that time, there is no

competent evidence that Petitioner had ever complained to Taylor

or Fincher about any discriminatory practices by the

organization.

1 3 . Since the inception of t his case, Petitioner has

contend ed that he has a disability within the meaning of the

law. At hearing, however, he acknowledged that his diabetic

condition d oes not affect any major life activity. To support

his disability discrimination claim, h e testif ied that on an

undisclosed date in 2014 , he asked Mr. Taylor if he could eat

meals or snacks at designated times because of his diabetic

condition but was told he could not. The accepted testimony

shows, however, that Mr. Taylor advised him that he could eat

whenever necessary, as lunch and break hours are not set in

stone . To avoid a drop in his blood sugar, Petitioner was told

that he was free to eat or drink something at any time , or even

bring a bag lunch with him while driving his routes . Even

assum ing arguendo that Petitioner had a disability, which he

does not, the contention that a disability formed the basis for

an unlawful employment practice must fail.

1 4 . Petitioner also contended that Belinda S t um, a white

female lead driver , was treated dif ferently than he and was

given more "leeway" when she violated a rule. However, the only

evidence concerning a rule violation by Ms. Stum involved a

different rule . After a client accidentally slipped while being

assisted out of the van, M s. Stum immedia tely reported t he

incident to Mr. Taylor and then filed a completed incident

report. Other than Ms. Stum, Petitioner was unable to

specifically identify any other similarly - situated employees

outside his protected class (or even ones within his own class)

who were allegedly treated differently than he.

1 5 . Although a client testified at hearing that on several

occasions she had observed Ms. Stum sitting in her van when

picking up clients, even if this is true, the client admitted

that she never reported t his to anyone at Respondent's

organization so that the alleged violation could be investigated

and disciplinary action taken, if appropriate .

1 6 . Petitioner also contends he was subjected to a hostile

work ing environment due to his race and disability . He claimed

that Mr. Taylor , a white male, called him "boy , " required him to

answer "yes sir , " and would gest ure a "cut throat" sign towards

him, threatening him to keep his mouth shut . This assertion was

not corroborated by any other evidence, and Mr. Ta ylor denied

th e charge. The testimony of Mr. Tayl or is accepted as being

more credible on this issue. Assuming arguendo that he had a

disability, t here is no evidence whatsoever that Petitioner was

subjected to a hostile work ing environment due to his di abetic

condition .

1 7 . Finally, t here is no evidence regarding the charge

that Petitioner was terminated in retaliation for engaging in a

protected activity. Indeed, Petitioner submitted no credible

proof that he complained to management regarding any

dis criminatory practices that precipitated the alleged

retaliation , other than "standing up for his rights" on the day

he was term inated, and Taylor and Fincher credibly testified

that they were unaware of any such complaints . Complaints made

at hearing that he is still owed money and was never paid for

training are not germane to this dispute.

1 8 . Petitioner is now working part - time as a driver for a

retirement center in the Sanford area. He says he is also

employed as a substitute teacher for the Seminole County School

Board. Both jobs equate to full - time employment. According to

evaluations and testimony at hearing, Petitioner was considered

a "good worker," "likeable," and someone who "did a pretty good

job." While h is evaluations showed he met expect ations, h is

last evaluation noted that he needed improvement in following

orders. Except for being "written up" one time for being late

to work, Petitioner had no other disciplinary action.

CONCLUSIONS OF LAW

1 9 . Petitioner has the burden of proving by a

preponderance of the evidence that Respondent committed an

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

In his Employment Charge of Discrimination, Petitioner alleges

that as a black male with a disability, he "was discriminated

against on the bases or [sic] race, disability and retaliation

by [his] former employer. "

20 . Discrimination by an employer against an individual

because of race or disability, or in retaliation for engaging in

a protected activity , are unlawful employment practi ces under

the law. See § § 760.10(1)(a) and (7) , Fla. Stat.

2 1 . Petitioner can establish a prima facie case for

discrimination based on race or disability through the use of

direct evidence, which requires actual proof that the employer

acted with a dis criminatory motive when making the employment

decision in question, or by circumstantial evidence, which

typically requires a plaintiff to satisfy the four - prong test

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

792 (1973). Here, becaus e no direct proof was shown,

Petitioner's claim is based solely on circumstantial evidence.

Johnson v. Great Expressions Dental C trs. of Fla. , 132 So. 3d

1174 (Fla. 3d DCA 2014). Under this burden - shifting framework,

once a plaintiff makes out a prima fa cie case, the burden shifts

to the defendant to articulate a non - discriminatory explanation

for the employment action, and if the defendant does so, the

burden shifts back to the plaintiff to prove that the

defendant's explanation is pretextual.

2 2 . Petit ioner seeks to prove race discrimination

circumstantially through a disparate treatment theory.

Accordingly, Petitioner must prove the following to establish a

prima facie case: (1) Petitioner is a member of a protected

group; (2) Petitioner was subjecte d to adverse employment

action; (3) Respondent treated similarly - situated employees

outside of the protected class more favorably than Petitioner;

and (4) Petitioner was qualified for the position. City of West

Palm Bch. v . McCray , 91 So. 3d 165, 171 (Fla . 4th DCA 2012).

2 3 . Petitioner has failed to prove discrimination by

indirect or circumstantial evidence. More specifically, he

failed to provide sufficient evidence that any other similarly -

situated employees outside his protected group were treated mo re

favorably than he. Even if a prima facie case w ere made, there

is evidence to show that Petitioner's termination was due solely

to his violating an established work rule.

2 4 . Petitioner also alleges that he was subject to

discrimination on account of his disability. As a threshold

issue to substantiate this charge , Petitioner must first prove

that he has a disability.

25. An impairment's minor interference in major life

activities does not quality as a disability. Toyota Motor Mfg.,

Kentucky, Inc. v. Williams , 534 U.S. 184, 198 (2002). An

impairment's impact must be permanent or long - term. Id. If an

impairment is readily corrected by medication or other measures

such as a diet, it is not an impairment that substantially

limits a major life activ ity. Vande Zande v. Wisc. Dep't of

Admin. , 44 F.3d 538, 544 (7th Cir. 1995). On this issue, the

evidence shows clearly that Petitioner's impairment was not

permanent, and that it could be controlled by medication or

diet. Accordingly, Petitioner has fai led to prove that he has a

physical impairment that substantially limits a major life

activity. The disability complaint must fail.

2 6 . Finally, to establish a prima facie case of

retaliation, Petitioner must show that : (1) he was engaged in

an activity protected by chapter 760; (2) he suffered an adverse

employment action by his employer; and (3) there was a causal

connection between the protected activity and the adverse

employment action. See Pennington v. City of Huntsville , 261

F.3d 1262, 1266 (11t h Cir. 2001).

2 7 . Petitioner has failed to satisfy the first prong of

the test. His Employment C harge of Discrimination was not filed

until one month after he was discharged. Though he asserts in

that document that he was terminated for protesting Res pondent's

"discriminatory employment practices," no record evidence was

submitted to support this c laim . Indeed, there is no evidence

whatsoever that Petitioner engaged in a protected activity

within the meaning of the law , or that Respondent had any

know ledge of such an activity. Accordingly, the charge of

retaliation must fail.

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 the Petition for Relief , with

prejudice .

DONE AND ENTERED this 24th day of November , 2015, in

T alla hassee, Leon County, Florida.

S

D . R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallaha ssee, 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 24th day of November , 201 5 .

ENDNOTE

1/ For purposes of the record, the undersigned has designa ted the

141 pages as Petitioner's Composite Exhibit 1.

C OPIES FURNISHED:

Tammy Barton , Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way , Suite 110

Tallahassee, Florida 323 99 - 7020

(eServed)

Dave Harvey

1224 Cathcart Circle

Sanford , Florida 32771 - 5406

Richard V. Blystone, Esquire

Garganese, Weiss & D'Agresta, P.A.

Suite 2000

111 North Orange Avenue

Orlando, Florida 32 8 01 - 2327

(eServed)

Cheyanne M. Costill a , General Counsel

Florida Commission on Human Relations

4075 Esplanade Way , Suite 110

Tallahassee, Florida 323 99 - 7020

(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 b e filed with the agency that will

render a final order in this matter.