16-000984 Johnnie Canady vs. Volusia County Schools Status: Closed Recommended Order on Tuesday, September 27, 2016.

Summary: Petitioner failed to prove his claim of discrimination based on race or disability.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHNNIE CANADY,

Petitioner,

vs. Case No. 16 - 0984

VOLUSIA COUNTY SCHOOLS,

Respondent.

_______________________________/

R ECOMMENDED ORDER

An administrative hearing was conducted in this case on

July 1, 2016, in De L and, Florida, before James H. Peterson III,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Johnnie Lee Canady, pro se

Post Office Box 1002

New Smyrna Beach, Florida 32170

For Respondent: Erin G. Jackson, Esquire

Christopher M. Bentley, Esquire

Thompson, Sizemore, Gonzalez

& Hearing, P.A.

One Tampa City Center

201 North Franklin Street , Suite 1600

T ampa, Florida 3360 2

STATEMENT OF THE ISSUE

Whether Respondent, Volusia County School Board , Florida

(Respondent , Volusia County Schools, or the School Board ),

violated the Florida Civil Rights Act of 1992, sections 760.01

through 760.11, Florida Statutes, 1/ b y discriminating against

Petitioner, Johnnie Lee Canady (Petitioner), based upon

PetitionerÓs race or disability.

PRELIMINARY STATEMENT

On April 8, 201 5 , Petitioner , Johnnie Canady , filed a

charge of discrimination with the Florida Commission on Human

Relations (FCHR or the Commission), which wa s assigned FCHR No.

201500274 ( Complaint of Discrimination). The Complaint of

Discrimination allege d that the S chool Board discriminated

against Petitioner based on his race and disability. 2/

Specifically, Petitioner allege d that he was denied a reasonable

accommodation after he was removed from his classroom following

a psychologi stÓs evaluation finding that Petitioner should not

work with students.

After investigating Petitioner Ós allegations, the

CommissionÓs executive director issued a Reasonable Cause

Determination on January 13, 2016, finding Ðthere is reasonable

cause to believeÑ Petitioner was discriminated against on the

basis of his race when he was denied Ðposition s to which he

applied in 2014.Ñ An accompanying Notice of Determination

notified Petitioner of his right to file a Petition for Relief

for an administrative proceeding within 35 days of the Notice.

On February 10, 2016, Petitioner timely filed a Petition for

Relief, and the Commission forwarded the petition to the

Division of Administrative Hearings for the assignment of an

administrative law judge to conduct a hearing. The c ase was

assigned to the undersigned and was scheduled for a hearing to

begin on April 29, 2016. Following Respondent Ós written request

for a continuance, the final hearing was rescheduled for July 1,

2016.

During the administrative hearing, Petitioner testified on

his own behalf , but called no other witness es . He introduced

13 exhibits , received into evidence as Exhibits P - 1 through

P - 13. Respondent presented the testimony of three witn esses and

introduced 25 exhibits , received into evidence as Ex hibits

R - 1 through R - 25.

The proceedings were recorded and a transcript was ordered.

The parties were given 30 days from the filing of the transcript

within which to file their respective proposed recommended

orders . The two - volume T ranscript of the hear ing was filed on

July 19, 2016. Thereafter, t he parties timely filed their

respective Proposed Recommended Orders, which have been

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The School Board is the duly authorized entity

responsible for providing public education in Volusia County,

Florida.

2. At all material times , Petitioner was employed b y the

School Board as a seventh - grade social studies teacher at River

Springs Middle School ( River Springs ). The principal of R iver

Springs was Stacy Gotlib .

3. Petitioner served as the River Springs Professional

Learning Community Coordinator (PLC C ) du ring the 2012 -

2013 school year. As a PLC C , Petitioner was responsible for

organizing staff meetings to collaboratively discuss issues

arising in the classrooms. Petitioner testified that he Ðsigned

upÑ for the PLC C supplemental duty position, which was awarded

to him by Ms. Gotlib.

4. During the 2013 - 2014 school year, Don Sarro, who, at the

time, was the d epartment c hair for River SpringsÓ s ocial s tudies

d epartment, publicly announced that that he was running for the

School Board. Under the circumstances, m ost employees at River

Springs were probably aware that Mr. Sarro would be resigning as

department c hair, creating a vacancy in the position the

following school year. Petitioner claims River Springs

discriminated against him on the basis of his race because he

Ðwas not told of the vacancyÑ and Ða less q ualified white

femaleÑ was selected for the position. Petitioner did not prove

these allegations.

5. At the conclusion of the 2013 - 2014 school year,

Petitioner completed a teaching preference form. Petitioner did

not express an interest in serving as the d epartment c hair for

the s ocial s tudies d epartment or any other supplemental duty

positions.

6. At the conclusion of the 2013 - 2014 sch ool year, River

Springs teacher , Kelly Moore , notified River Springs that she

was interested in serving as the de partment c hair for the s ocial

s tudies d epartment. River Springs did not advertise the

supplemental duty position, and no teachers made formal

applications for the position. Chester Boles, a ssistant

p rincipal intern at River Springs, selected Ms. Moore for the

supplemental duty position. She was the only candidate who

expressed any interest in the position. She was looking for a

leadership position because she was working toward a degree to

become an administrator.

7. Petitioner did not offer evidence that he was treated

any differently than any other teacher at River Springs

regarding the social studies department chair position . In

fact, al though he alleges that he was discriminated against

because he was not told of the vacancy , he admits that he does

not know of anyone who was told . He offered no evidence to show

how Ms. Moore was informed. In fact, there was no

advertisement . And, Petitioner did not show that race was a

factor in the hiring decision.

8. Prior to the start of the 2014 - 2015 school year,

Petitioner applied to the School Board for seven teaching

positions at four schools outside of River Springs . He

interviewed with the principals of those schools for each of

those positions, but was not sel ected. Petitioner believes that

he was discriminated against on the basis of his race because

the selected applicants Ðwere less qualifiedÑ than Petitioner .

Petitioner , however, did not prove his claim. In fact, he

testified that he does not have specific knowledge of the

individuals who were hired for each position , the race of the

selected applicants , or the reasons the applicants were chosen

for the positions.

9. Petitioner testified, in relevant part, as follows:

Q: Do you know what position Brian McClary

was hired into?

A: No.

Q: Do you know his race?

A: No.

Q: Do you know why he was hired?

A: No.

Q: Okay. How about Jordan Tager, do you

know what position he was hired into?

A: No.

Q: Do you know who hired him?

A: No.

Q: Do you know his race?

A: No.

Q: How about Joseph Martin, do you know

what job he was entered Î hired into?

A: No.

Q: Do you know who hired him?

A: No.

Q: Do you know why he was hired?

A: No.

Q: Do you know his race?

A: No.

Q: Amy Tolley, do you know what job she was

hired into?

A: No.

Q: Do you know who hired her?

A: No.

Q: Do you know why she was hired?

A: No.

Q: Do you know her race?

A: No.

Q: How about Elizabeth Stople, do you know

what job she was hired into?

A: No.

Q: Do you know w ho hired her?

A: No.

Q: Do you know why she was hired?

A: No.

Q: Do you know her race?

A: No. [...]

Q: Do you know Chelsea Ambrose?

A: No.

Q: Do you know her race?

A: No.

Q: Do you know what position she was hired

into?

A: No.

Q: Do you know why she was hired?

A: No.

Q: How about Amanda Muessing, do you know

what job she was hired into?

A: No.

Q: Do you know who hired her?

A: No.

Q: Do you know why she was hired?

A: No.

Q: Do you know her race?

A: No.

10. Petitioner offered no evidence of the race of the

individuals selected for the seven positions . Although he

off ered the résumés of five of the applicant s allegedly hired

for five of the positions, h e failed to substantiate his claims

that he was discriminated again st on the basis of his race when

he was not selected for one of the seven teaching positions.

11. Petitioner testified that , during the 2013 - 2014 school

year, several teachers were having problems Ðbecause the

[seventh grade] wing was out of control.Ñ He testified that

s tudents were being very ÐdisruptiveÑ and there was a general

lack of discipline. According to Petitioner , the situation

created a Ðvery difficult and stressfulÑ atmosphere for the

teachers.

12. On June 8, 2014, Petitioner emailed the School Board's

a ssistant s uperintendent, Peromnia Grant . His email stated that

the stress from the previous school year may Ðhave aggravated

some of [his] Persian Gulf War Syndrome [i]ssues.Ñ The email

stated, in relevant part:

I have participated in the transfer fair and

applied for high schools. If I must return

to River Springs or middle school, I might

need to take a leave of absence until

January, 2015 so the Veterans Administration

can conduct a full evaluation of my medical

concerns and discuss my retraining for an

alternative job.

13. Petitioner sought treatment over the summer with the

Veteran Adm inistration Outpatient Clinic ( VA). The VA worked

Ðto help stabilizeÑ his condition. He Ðwas in distressÑ after

Ða bad [school] year.Ñ He was placed on prescription medication

for approximately three months.

14. At the beginning of the 2014 - 2015 school year,

Petitioner had a conversation with Eric Ellis, an eighth - grade

teache r at River Springs . Petitioner informed Mr . Ellis that he

wa s admitted to the VA hospital over the summer. Petitioner

told Mr. Ellis that the VA had asked him if he had any suicidal

thoughts and that he advised the VA that he did not. Petitioner

further told Mr. Ellis that when the VA asked him if he had any

thou ghts of harming or killing anyone else, he responded,

ÐAmanda Wiles. Ñ 3 / Amanda Wiles was the assistant p rincipal at

River Springs.

15. On or about August 19, 2014, Petitioner attended a pre -

planning meeting at River Springs. During the meeting,

Petitioner got into a loud verbal exchange with Mr. Sarro.

River Springs assistant principal intern , Chester Boles ,

attended the meeting . Petitioner was upset because he believed

Mr. Sarro was using the meeting as a platform to give Ða

political speechÑ and to talk about Ðhow wonderful everythingÑ

was at the school. Petitioner believed Mr. Sa rro was breaking

school policy and that he Ðhad to stop him.Ñ Petitioner

proceeded to engage in a heated discussion with Mr. Sarro. At

some point during the conversation, Petitioner stated something

to the effect that, "I better shut my mouth, I'm getting

racist , Ñ and shoved a crump led up piece of paper into his mouth.

After the meeting, Mr. Bol es informed Ms. Go tlib of the

situation.

16. Shortly after the meeting, Mr. Sarro approached

Mr. Ellis about Petitioner . Mr. Ellis explained to Mr. Sarro

that he too was concerned about Petitioner . Mr. Sarro asked

Mr. Ellis if he would like to go with him to the principalÓs

office to share their concerns about Petitioner with Ms. Gotlib.

Mr. Ellis agreed and they both went to the principal's office

and spoke to Ms. Gotlib .

17. After speaking with Mr. Sarro and Mr. Ell is, Ms. Gotlib

contacted the School Board's d irector of Professional Standards ,

Sandy Hovis . Ms. Gotlib informed Mr. Hovis about Petitioner Ós

reportedly threatening comments and unusual behavior. Mr. Hovis

then met with Mr. Ellis and Mr. Sarro to discuss their concerns.

Mr. Ellis told Mr. Hovis that Petitioner made a comment to the

VA that he would like to hurt or kill the assistant principal at

River Springs.

18. On August 19, 2014, Mr. Hovis met with Petitioner and

informed Petitioner of the information that was reported to him

by administration and his fellow teachers. He advised

Petitioner that Petitioner was being administratively assigned

to home with pay pending a safety evaluation to be conducted

under the School BoardÓs Employe e Assistance Program (EAP ).

S afety evaluation s are requested by the School Board when there

are concerns that an employee may be an Ðimminent risk of danger

to [himself] or to others.Ñ

19. Following the meeting, Petitioner sent Mr. Hovis an

email, entitled Ð[a]ccusations from staff at River Springs

Middle.Ñ In his email, Petitioner stated that the Ðfirst

accusation about [him] biting down on folder paper is correct.Ñ

Petitioner claimed that it was a heated discussion, which led

him to tell Mr. Sar ro Ða thing or two, or three about himself

(about 3 minutesÓ worth).Ñ

20. When referring an employee to EAP, the School Board

wor ks with Horizon Health, a third - party administrator that

contracts with the School Board. Mike Nash with Horizon Health

was t he liaison between the School Board and independent health

care provider s . Mr. Nash , who was located in Colorado, was

responsible for ensuring that Petitioner met with appropriate

health care provider s to conduct evaluation s .

21. In accordance with arrangements made by Mr. Nash,

Petitioner met with a licensed mental health counselor, Brianard

Hines , PhD , in August and September 2014, for a safety

evaluation .

22. Sandy Hovis did not have any conversations with

Dr. Hines.

23. Although no contempor aneous written report from

Dr. Hines was submitted into evidence, Petitioner introduced a

"To whom it may concern" letter from Dr. Hines , dated May 15,

2016, stating:

Dr. Johnny Canady was referred to me through

the Volusia County Scho ols Employee

Assistance Program as a mandatory referral

for three sessions to evaluate current risk

to self and others. Mr. Canady had

allegedly made statements which other

employees believed contained some degree of

implicit threat to staff at his school , was

suspended from his teaching duties and

directed to participate in the assessment

sessions with me.

Dr. Canady attended sessions at my office in

Port Orange Florida on August 24,

September 4 and September 11, 2014. On

those occasions he participated actively and

denied any current or past homicidal or

suicidal ideation. He also adamantly denied

making any statements which were intended to

be or could of been considered to be

threatening in any way. He reported some

symptoms of Posttraumatic Stress Disorder,

which he attributed to his earlier service

in the military.

Af t er completing his three sessions, the

Volusia County School Board apparently

decided that he should participate in a

fitness for duty evaluation before returning

to his job. Fitness for duty evaluations

are not performed by Employee Assistance

Programs, and it is my understanding that

Mr. Canady obtained his evaluation from

another provider.

Please let me know if I can provide any

further information, although complete

records are a vailable through the Employee

Assistance Program at any time, which were

provided through Horizon Health.

24. On or about September 18, 2014, Mr. Nash informed

Mr. Hovis that Horizon Health recommended that Petitioner submit

to a fitness - for - duty evaluation. Mr. Ho vis was not provided

with written documentation of Horizon Health's recommendation.

Later t hat day, M r. Hovis met with Petitioner and di rected him

to undergo a fitness - for - duty evaluation.

25. Unlike a safety evaluation, a fitness - for - duty

evaluation determines whether the employee is capable and able

to perform the duties and responsibilities of his or her

position.

26. As indicated in the letter from Dr. Hines, Dr. Hines

did not perform Peti tionerÓs fitness - for - duty evaluation .

Rather, it was performed by licensed psychologist Dr. William

Friedenberg. Petitioner was on placed on paid administrative

leave pending the outcome of the evaluation.

27. Dr. Friedenberg Ós fitness - for - duty evaluation of

Petitioner determined that Petitioner suffered from ÐAdjustment

Disorder with mixed anxiety and depressed mood.Ñ Specifically,

Dr. Friedenberg determined:

Although it does not appear that Dr. Canady

poses a risk of danger to himself or other s,

he realizes that it is not advisable for him

to return to a classroom teaching setting at

this time due to the stress associated with

this job and his previous reaction to such

stressors. It is thus the opinion of this

examiner that, within a reasonabl e degree of

psychological certainty, Dr. Canady is not

currently fit for return to duty in his

previous capacity as a classroom teacher.

He will likely, however, be able to return

successfully to employment with the Volusia

County School system in an admi nistrative

capacity.

28. Upon receiving Petitioner's fitness - for - duty -

evaluation, the School Board requested further clarification

from Dr. Friedenberg . D r. Friedenberg explained that

"administrative capacity" was a non - student contact position.

Dr. Friedenberg was unable to provide a timeline as to when

Petitioner would be able to return to his previous position as a

classroom teacher. Based on Dr. FriedenbergÓs assessment, the

School Board reviewed its vacancies and determined that there

were no va cant positions for which Petitioner was qualified

because the positions all involved student interaction.

29. On October 21, 2014, Mr. Hovis met with Petitioner and

reviewed Dr. FriedenbergÓs evaluation with Petitioner . Because

there were no vacant positions available, the School Board,

through Mr. Hovis , offered Petitioner the option of resigning,

being terminated, or taking a leave of absence in lieu of

termination. Petitioner elected to take a leave of absence.

During his le ave of absence, on May 11, 2015, Petitioner

voluntarily resigned from his position.

30. In his Complaint of Discrimination filed with FCHR on

April 8, 2015, Petitioner claims that he was discriminated on

the basis of his alleged disability. Particularly , Petitioner

claims that he was Ðdenied [a] reasonable accommodationÑ when he

was not placed in another position within the school district.

31. Petitioner did not offer any evidence that there were

any vacant positions available at the time that he was granted a

leave of absence. Since that time, Petitioner has not applied

for a single administrative position. At the final hearing,

during cross examinatio n, Petitioner testified:

Q: [After you received] Dr. FriedenbergÓs

report, [d]id you apply for any

administrative position within the

School Board?

A: No, because Mr. Hovis said we have

nothing for you.

[...]

Q: Did you ever go on to the Volusia County

School Board web site to look to see

whether there was any position that you

were interested in?

A: No. [Mr. Hovis] said they had nothing

for me, so there was no reason for me to

Î in my mind to waste my time doing

that. He said they have nothin g for me.

Q: And to this day you havenÓt applied for

any other position within the school

district, correct.

A: No, because they say IÓm not fit for

duty. I canÓt be around Î I canÓt be in

the classroom setting . . .

32. The evidence submitted by Petitioner was insufficient

to establish that he was denied a reasonable accommodation or

that the School Board otherwise discriminated against him

because of his disability .

CONCLUSIONS OF LAW

33. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to sections 120.569 and 120.57(1), Florida

Statutes, and Florida Administrative Code Rule 60Y - 4.016(1).

34. The s tate of Florida, under the legislative sche me

contained in sections 760.01 through 760.11, Florida Statutes,

known as the Florida Civil Rights Act of 1992 (the Act),

incorporates and adopts the legal principals and precedents

established in the federal anti - discrimination laws specifically

set forth under Title VII of the Civil Rights Act of 1964, as

amended. 42 U.S.C. § 2000e, et seq.

35. The Florida law prohibiting unlawful employment

practi ces is found in section 760.10. T he Act makes it an

unlawful employment practice , among other things, for an

employer:

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

individualÓs race, color, religion, sex,

pregnancy, national origin, age, handicap,

or marital status.

§ 760.10(b)(2), Fla. Stat.

36. Florida courts have held that because the Act is

patterned after Title VII of the Civil Rights Act of 1964, as

amended, federal case law dealing with Title VII is applicable.

See, e.g. , Fla. DepÓt of Cmty. Aff. v. Bryant , 586 So. 2d 1205,

1209 (Fla. 1 st DCA 1991).

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

discrimination under Title VII may be established by statistical

proof of a pattern of discrimination, or on the basis of direct

evidence which, if believed, would prove the existence of

discrimination without inference or presumption. Usually,

however, as in this case, direct evidence is lacking and one

seeking to prove discrimination must rely on circumstantial

evidence of discriminatory intent, using the shifting burden of

proof pattern established in McDonnell Douglas Corp. v. Green ,

411 U.S. 792 (1973). See Holifield v. Reno , 115 F. 3d 1555,

1562 (11 th Cir. 1997).

38. Under the shifting burden pattern developed in

McDonnell Douglas :

First, [Petitioner] has the burden of

proving a prima facie case of discrimination

by a preponderance of the evidence. Second,

if [Petitioner] sufficiently establishes a

prima facie case, the burden shifts to

[Respondent] to Ðarticulate some legitimate,

non - discriminatory reasonÑ for its action.

Third, if [Respondent] satisfies 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 p retext.

U.S. DepÓt of Hous . & Urban Dev. v. Blackwell , 908 F.2d 864,

870 11th Cir. 1990) (housing discrimination claim); accord ,

Valenzuela v. Globe Ground N. Am., LLC , 18 So. 3d 17, 22 (Fla.

3d DCA 2009)(gender discrimination claim)("Under the McDonnell

Douglas framework, a plaintiff must first establish, by a

preponderance of the evidence, a prima facie case of

discrimination.").

39. Therefore , in order to prevail in his claim against

Respondent , Petitioner must first establish a prima facie case

by a preponderance of the evidence. Id. ; § 120.57(1)(j); cf. ,

Gross v. Lyons , 763 So. 2d 276, 280 n.1 (Fla. 2000)(ÐA

preponderance of the evidence is Òthe greater weight of the

evidence,Ó [citation omitted] or evidence that Òmore than notÓ

tends to prove a certain proposition.Ñ) .

40. Petitioner failed to establish a prima facie case of

discrimination on his claim that he was denied seven teaching

positions at four different schools by four different principals

on the basis of his race.

41. In or der to establish a prima facie case of failure -

to - hire or failure - to - promote based upon discrimination,

Petitioner must establish : (1) he is a member of a protected

class; (2) he was qualified for and applied for the position;

(3) he was rejected despite his qualifications; and (4) other

employees who are equally or less qualified, but were not

members of the protected class, were selected for the position.

Underwood v. Perry Cnty. CommÓn , 431 F. 3d 788, 794 (11th Cir.

2005)(failure to hire); Marable v. M arion Military Inst. ,

595 Fed. AppÓx. 921, 926 (11th Cir. 2014) (failure to promote).

42. Petitioner did not present any evidence that the

individuals selected for the teaching positions were outside of

his protected class. Petitioner could not identify the teachers

who were selected for the position s ; the race of those selected ;

who made the decision s to hire ; or the reasons why they were

selected . Instead, Petitioner relies on nothing more than

conclusory allegations that are not su pported by facts or law.

43. Even if Petitioner was able to establish a prima facie

case of race discrimination, Petitioner cannot prove pretext by

arguing or even showing that he was better qualified than

another employee. Petitioner Ðmust show not merely that

[ Respondent Ós] employment decision [was] mistaken but that [it

was] in fact motivated by race. [As the Eleventh Circuit has]

explained, a plaintiff may not establish that an employerÓs

proffered reason is pretext merely by ques tioning the wisdom of

the employerÓs reasons, at least not where . . . the reason is

one that might motivate a reasonable employer .Ñ Thomas v. Hall ,

2011 U.S. Dist. LEXIS 101873 , * 12 (N.D. Fla. 2011 ). Petitioner

must show that the disparities in qualifications must be of

Ð such weight and significance that no reasonable person, in the

exercise of impartial judgment, could have chosen the candidate

selected over the plaintiff .Ñ Brooks v. Cnty. CommÓn of

Jefferson C nty. , 446 F. 3d 1160, 1163 (11th Cir. 2006). ÐAn

employeeÓs own testimony about his qualifications is Òweak and

insubstantialÓ evidence of comparative qualifications.Ñ Brooks

v. CSX Transportation, Inc. , 555 Fed. Appx. 878, 882 (11th Cir.

2014).

44. Petitioner did not offer any evidence that his

qualifications were such that no reasonable person could have

chosen the other applicants over him for a particular position.

He offered no evidence for the reasons why he believed the other

applicants were l ess qualified than he for those positions.

Petitioner offered no evidence that his race played any role in

the four principalsÓ decisions to not select him for one of the

seven teaching positions.

45. Petitioner also did not offer any evidence that he wa s

discriminated against when River Springs gave Ms. Moore the

supplemental duty position. Petitioner acknowledged that he

never applied for or expressed any interest in the supplemental

duty position. In fact, on June 8 , 2014, Petitioner informed

River S prings that he might not return for the 2014 - 2015 school

year. Furthermore, the evidence demonstrate d that Ms. Moore was

the only teacher who expressed any interest in the supplemental

dut y position, and, therefore, she was selected .

46. Petitioner also failed to establish a claim for

disability discrimination. The American Disabilities Act ( ADA )

and the FCRA prohibit discrimination against a qualified

individual on the basis of disability. 42 U.S.C § 1211 2(a) (uses

the term ÐdisabilityÑ); § 760.10(a) , F la. Stat. (use s the term

ÐhandicapÑ) . To prevail on his disability discrimination claim,

Petitioner must show that: (1) he is disabled ; (2) he was a

Ðqualified individualÑ when he was terminated ; and (3) he was

discriminated against on the account of his disability . Wood v.

Green , 323 F. 3d 1309, 1312 ( 11th Cir. 2003).

47. The Eleventh Circuit has held that an employer Ðcan

lawfully require a psychiatric/psychological fitness - for - duty

evaluation under [the ADA] if it has information suggesting that

an employee is unstable and may pose a danger to others.Ñ

Owusu - Ansah v. Coca - Cola C o. , 715 F. 3d 1306, 1312 (11th Cir.

2013). Ð[T]he ADA does not, indeed cannot, require [an

employer] to forgo a fit ness for duty examination to wait until

a perceived threat becomes real or questionable behavior results

in injuries.Ñ Id. at 1311 ( quoting Watson v. City of Miami

Beach , 177 F. 3d 932, 935 ( 11th Cir. 1999) ) ; S ee also Krocka v.

City of Chicago , 203 F. 3d 507, 515 ( 7th Cir. 2000) (ÐWe have

stated that where inquiries into the psychiatric health of an

employee are job related and reflect a Ò concern [] with the

safety of . . . employees, Ó the employer may . . . require that

the employee undergo a physical examination designated to

determine his ability to work.Ñ) .

48. An employer does not need to investigate the

allegations before requiring a n employee to undergo a fitness -

for - duty evaluation. In Owusu - Ansah , the Eleventh Circuit

stated, in relevant part:

When he was deposed, [the plaintiff] denied

having behaved that way during his meeting

with [his supervisor], and he now points out

that there were no prior incidents showing

that he had a propensity for workplace

violence. That, however, is not

disposit ive. Although [the employer]

apparently never asked [the Plaintiff] for

his version of what happened at the meeting,

it did not rely solely on [the su pervisorÓs]

account in ordering the evaluation. [The

employer] knew that [the plaintiff] had

refused to speak to [the human resources

manager] and [one of the psychiatrists]

about his workplace problems.

715 F. 3d at 1312.

49. The Eleventh Circuit determined that the employer had

Ða reasonable, objective concern about the employeeÓs mental

state, which affected job performance and potentially threatened

the safety of its other employees.Ñ Id. ; see also Rodriguez v.

Sch. Bd . of Hillsborough C nty . , 60 F. Supp. 3d 1273 (M.D. Fla.

2014) (holding that if the employer has a reasonable, objective

concern about the plai ntiffÓs mental state, a fitness - for - duty

evaluation is permitted).

50. The evidence establishes that the School Board had a

reasonable, objective concern regarding Petitioner Ós mental

state. Two teachers reported to the principal their concerns

regarding Petitioner , including a comment that he allegedly made

to t he VA about killing or harming assistant p rincipal Wiles.

Petitioner also was involved in a heated exchange with another

teacher during a faculty meeting, which led him to crum p le up a

piece of paper and shove it into his mouth. Based on these

reports, the School Board had legitimate concerns about

Petitioner and the safety of its employees and students.

See Rodriguez , 60 F. Supp. 3d at 1277 (ÐCourts have acknowledged

that in t he context of school employees, Òa school boardÓs

psychological examination of an employee is both job - related and

consistent with a business necessity if that employee exhibits

even mild signs of paranoid or agitated behavior that causes the

school admini stration to question the employeeÓs ability to

p erform essential job duties.ÓÑ) (emphasis added); see also

Miller v. Champaign Cm ty . Unit Sch. Dist. , 983 F. Supp. 1201,

1206 (C.D. Ill. 1997) (ÐAs a matter of law a psychiatric

examination is Òjob - related and consistent with business

necessityÓ when an elementary school employee shows even mild

signs of ÒschizophreniformÓ behavior. Because elementary s chool

personnel deal directly with very young children, it is

appropriate for principals and other school employees to require

medical/psychiatric follow - up to any and all allegations of

paran oia or other mental disorder.Ñ).

51. Although Petitioner de nies making any comments about

assistant p rincipal Wiles, the School Board had an objective,

reasonable belief to require him to submit to a fitness - for - duty

evaluation. The School Board was not required to conduct an

investigation before referring him to EAP and th en submitting

him for a fitness - for - duty evaluation. The School Board did not

discipline Petitioner for alleged misconduct , but rather was

acting out of concern for the well - being of Petitioner and

others. Petitioner did not offer any evidence to the contrary.

52. The ADA requires an employer to make Ðreasonable

accommodationsÑ to an otherwise qualified employee with a

disability, Ðunless doing so would impose [an] undue hardship.Ñ

Lucas v. W.W. Grainger, Inc. , 257 F. 3d 1249, 1255 (11 th Cir.

2001). As the Eleventh Circuit stated in Frazier - White v. Gee ,

818 F. 3d 1249 (11th Cir. 2016) :

The employee has the burden of identifying

an accommodation and demonstrating that it

is reasonable. Lucas , 257 F. 3d at 1255 - 56.

Assuming she cannot do so, the employer has

no affirmative duty to show undue hardship.

Earl v. Mervyns, Inc. , 207 F. 3d 1361,

1367 (11 th Cir. 2000). Moreover, an

employerÓs Ðduty to provide a reasonable

accommodation is not triggered unless a

specific demand for an accommodation has

been made.Ñ Gaston v. Bellingrath Gardens &

Home, Inc. , 167 F.3d 1361, 1363 - 64 (11 th

Cir. 1999) (Ð[T]he initial burden of

requesting an accommodation is on the

employee. Only after the employee has

satisfied this burden and the employer fails

to provide that accommodation can the

employee prevail on a claim that her

employer has discriminated against her.Ñ).

Id. at 1255 - 1256.

53. At the hearing, Petitioner expressly acknowledged that

he did not make a specific demand for an accommodation.

Instead, Petitioner takes the position that the initial burden

for providing accommodatio n lies with the school system. He

believes that Dr. Friedenberg, who was not an employee of the

School Board, was required to identify Ðin his medical summary

any classroom accommodations that [he] could have had to return

to the classroom.Ñ

54. Petitioner Ós argument is contrary to established case

law. Petitioner , and not the School Board, has the initial

burden of identifying an accommodation that would allow him to

perform the essential functions of his position . Lucas ,

257 F. 3d at 1255 - 56 . Based on Dr. FriedenbergÓ s psychological

evaluation, Dr. Friedenberg determined tha t Petitioner could not

Ðreturn to a classroom teaching setting,Ñ but only to Ða non -

student contact position.Ñ The School Board reviewed

Dr. FriedenbergÓs recommendations with Petitioner . Petitioner

understood that he was not medically cleared to return to the

classroom. He did not identify any accommodations (nor could

he) that would allow him t o work in a classroom setting.

Petitioner did not seek a second medical opinion, or try to

refute Dr. Fri edenbergÓs evaluation. He did not file a

grievance as set forth in the collective bargaining agreement.

In fact, Petitioner testified that the union representative, who

attended the meeting on his behalf, Ðdid not suggest [that he]

pursue a second opinio n or anything.Ñ

55. Petitioner did not re quest any accommodation. The

School Board offered one in the form of a leave absence .

Petitioner now claim s that there may have been some other

accommodation that would have allowed him to remain in the

classroo m despite the determination that he should not be around

students. He never offered any suggestions on what that

accommodation might look like , nor is it likely that an

accommodation could be offered in that regard. Regardless, the

ADA does not provide a Ðcause of action for failure to

investigate possible accommodations.Ñ McKane v. UBS Fin.

Serv s ., Inc. , 363 Fed. Appx. 679 , 681 (11th Cir. 2010).

56. Reassignment to a vacant position may be a reasonable

accommodation under the law. ÐWhen a transfer to another

position is the proffered Òreasonable accommodation,Ó a

plaintiff must identify a specific and vacant position.Ñ

2 6

Booth v. Henderson , 31 F. Supp. 2d 988, 995 (S.D. Ga. 1998) .

Ð[W]hether a reasonable accommodation can be made for that

employee is determined by a reference to a specific position.Ñ

Duckett v. Dunlop Tire Corp. , 120 F. 3d 1222, 1224 - 25 (11th Cir.

1997) .

57. Based on Dr. FriedenbergÓs assessment, Respondent

reviewe d its vacancies. There were no vacant positions for

which Petitioner was qualified because the positions all

involved student interaction. The School Board gave Petitioner

the option to take a leave of absence or resign from his

position. Petitioner chose to take the leave of absence. He

never applied for or expressed interest in any vacant position.

58. To the extent Petitioner claims that he was

discriminated against based on his race when he was allowed a

leave of absence, Petitioner did not off er any evidence to

support his allegations. To prove that the School Board was

motivated by unlawful discriminatory intent, Petitioner must

identify an employee who was similarly - situated, but was treated

more favorably. See Mannicia v. Brown , 171 F. 3d 1 364,

1368 (11 th Cir. 1999). In order to be similarly - situated, the

courts require that the Ðquantity and quality of the

comparatorÓs misconduct be nearly identical to prevent courts

from second - guessing employerÓs reasonable decisions and

confusing apples and oranges.Ñ Id. Petitioner did not identify

a si ngle employee who was similarly - situated and was treated

differently after a licensed psychologist determined that he or

she was not currently fit to return to duty.

59. Considering the evidence adduced at the final hearing,

it is concluded that Respondent did not deny Petitioner any

reasonable accommodations, and is not liable to Petitioner for

discrimination in employment.

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 Petitioner's Complaint of

Discrimination and Petition for Relief consistent with the terms

of t his Recommended Order.

DONE AND ENTERED this 27th day of September , 2016, 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 27th day of September , 2016.

ENDNOTES

1 / Unless otherwise indicated, all references to the Florida

Statutes, Florida Administrative Code, and federal laws are to

the current versions which have not substantively changed since

the time of the alleged discrimination.

2/ Although PetitionerÓs Complaint of Discrimination also

alleged unlawful workplace retaliation, at the final hearing,

Petitioner advised that he was not pursuing his claim of

workplace retaliation.

3/ At the final hearing, Mr. Ellis could not remember the

specific word that as used by Petitioner regarding what he would

like to do to Ms. Wiles. He was certain, however, that

Petitioner told him he wanted to Ðkil l,Ñ Ðhurt,Ñ or ÐharmÑ

Ms. Wiles.

COPIES FURNISHED :

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed)

Johnnie Lee Canady

Post Office Box 1002

New Smyrna Beach, Florida 32170

(eServed)

Erin G. Jackson, Esquire

Christopher M. Bentley, Esquire

Thompson, Sizemore, Gonzalez

& Hearing, P.A.

One Tampa City Center

201 North Franklin Street, Suite 1600

Tampa, Florida 33602

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

(eServed)

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.