16-006142 Luis Rosado, Iii vs. Florida Department Of Children And Families Status: Closed Recommended Order on Wednesday, March 15, 2017.

Summary: Petitioner did not prove discrimination because of disability or age. He was fired while on probation as a child protection investigator because he could not perform the job's essential duties.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LUIS ROSADO, III,

Petitioner,

vs. Case No. 16 - 6142

FLORIDA DEPARTMENT OF CHILDREN

AND FAMILIES,

Respondent.

_______________________________/

RECOMMENDED ORDER

On January 3 and 4 , 2017, an evidentiary hearing was held by

video teleconference at sites in Tallahassee and St. Petersburg,

Florida, before Elizabeth W. McArthur, Administrative Law Judge,

Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Luis Rosad o, III, pro se

Post Office Box 401

Tarpon Springs, Florida 34688

For Respondent: Elmer C. Ignacio, Esquire

Office of the Attorney General

The Capitol, P laza Level 01

Ta llahassee, F lorida 32399 - 1050

STATEMENT OF THE ISSUE

The issue to be determined is whether Respondent committed

an unlawful employment practice against Petitioner by

discriminating against him on the basis of disability and/or age.

PRELIMINARY STATEMENT

On February 15, 2016, Luis Rosado, III (Petitioner), filed

with the Florida Commission on Human Relations (FCHR) a charge of

discrimination against his former employer, the Department of

Children and Families (Respondent or DCF), in which he alleged

that he was terminated because of his disability and age. FCHR

conducted an investigation, after which it determined there was

no reasonable cause to believe that an unlawful employment

practice occurred. Petitioner timely requested an administrative

hearing, and on October 19, 2016, FCHR referred the case to DOAH

to conduct the requested hearing.

The hearing was scheduled based on the partiesÓ input and a

telephonic pre - hearing conference was also scheduled.

On November 15, 2016, Joseph D. Rosado, PetitionerÓ s son,

filed a one - paragraph ÐRequest for Qualified Representative.Ñ

He asserted that he Ðshall be representingÑ Petitioner, and he

stated that he was qualified, paraphrasing the considerations in

Florida Administrative Code Rule 28 - 106.106. By Order is sued

November 21, 2016, the request was denied, as improper in form

(in that the request is to come from Petitioner), and inadequate

in substance to prove that the proposed representative is

qualified (such as by an affidavit attesting to facts that show

h ow the proposed representative has attained the various

qualifications to be considered). The Order was without

prejudice to Petitioner submitting a proper request, supported by

evidence of his sonÓs qualifications.

During the telephonic pre - hearing conf erence on December 15,

2016, Petitioner was asked if he intended to file a request for

approval of a qualified representative; and, if so, he was told

that h is r e quest should be file d as soon as possible. His son,

Joseph Rosado, who was present with Petit ioner, stated that no

request would be submitted. The undersigned provided an overview

of the de novo hearing process and the issues for determination,

explaining that Petitioner would bear the burden of proving his

claims, and that he would need to dete rmine what sworn testimony

and documentary evidence to present to meet his burden of proof.

The partiesÓ responsibilities to exchange and submit to DOAH

witness lists and proposed exhibits were discussed .

Prior to the hearing, Respondent filed its wit ness list,

exhibit list, and proposed exhibits. Nothing was received from

Petitioner.

The hearing went forward as scheduled. Petitioner

represented himself. He testified on his own behalf and called

no other witnesses. Petitioner did not offer any docu mentary

evidence. Respondent presented the testimony of the following

witnesses: Karen Gibson, former child protective investigator

supervisor; Amy Baldree, former program administrator; Ranjana

Bhandari, former employee relations coordinator; Rosa Baez,

former family and community services director; Gilda Ferradaz,

deputy regional managing director; Elvin Quinones, former child

protective investigator; Lisa Careaga, child protective

investigator; and Petitioner. RespondentÓs Exhibits 1 through 11

were a dmitted in evidence, without objection.

At the conclusion of the hearing, the parties agreed to a

two - week deadline after the filing of the hearing transcript for

filing proposed recommended orders (PROs). The two - volume

Transcript of the final hearing wa s filed on January 23, 2017.

Petitioner filed his PRO and closing statement on January 30,

2017. 1/ Respondent timely filed its PRO on February 6, 2017.

To the extent permissible ( see endnote 1), both partiesÓ filings

have been considered in the preparati on of this Recommended

Order.

FINDING S OF FACT

1. Petitioner worked for Respondent as a child protective

investigator (CPI) in Key West, Florida, for just over eight

months, from June 30, 2014, until March 2, 2015.

2. Petitioner generally described his b ackground prior to

working for Respondent as including 30 years of work experience

as a police officer, parole and probation officer, and insurance

investigator.

3. Petitioner began working for Respondent in a temporary

part - time OPS position on June 30, 2014.

4. Petitioner was required to complete a 10 - to 12 - week CPI

training course and pass a test to attain provisional CPI

certification in order to become eligible for a career service

CPI position on a probationary basis. The probationary period

for C PIs is one year from the effective date of employment in the

career service position.

5. The CPI training program for the DCF region that

includes Key West was held on three days each week in Miami.

Petitioner began the training program sometime in July 2014.

Petitioner commuted from Key West to Miami for the training

sessions, and spent the other two days each week working in his

OPS position in Key West, shadowing and observing CPIs. During

this time, he was not assigned cases or allowed to take

respo nsibility in investigations, but may have performed minor

tasks, such as making phone calls to assist the CPIs.

CPI Essential Job Functions

6. The official state of Florida position description for

the CPI position provides the following overview of the job:

ÐThis is professional work protecting children, working with

families and conducting investigations of alleged abused,

abandoned, neglected or exploited children.Ñ (R. Exh. 2). The

job description sets forth a long list of CPI duties and

responsib ilities necessary to carry out that overall function,

including the following (among others):

• Collects information through interviews with the

children, parents, relatives, neighbors, and

other parties associated with the case;

• Engages families, identi fies needs and determines

the level of intervention needed to include

voluntary services or court ordered dependency

services;

• Conducts initial/ongoing child Present and

Impending Danger assessments;

• Develops with the family a signed Present Danger

Pla n and a signed safety plan for any identified

threats and interventions;

• Arranges emergency placement for any child that

cannot safely remain at home;

• Prepares appropriate reports/documentation in

coordination with ChildrenÓs Legal Services and

provide s testimony in court;

• Maintains thorough documentation in client

records/appropriate information system(s) and

maintains organized client files.

7. The official job description also identifies chapter 39,

Florida Statutes, as the statutory chapter that establishes or

defines the work performed in the CPI position. Statutes in this

chapter, such as section 39.301, elaborate on the requirements

for conducting child protective investigations when allegations

of child abuse, neglect, abandonment, or exploi tation are made to

the central abuse hotline and referred to DCF. The statutes

governing child protective investigations, along with DCF

implementing rules and internal operating procedures, provide for

strict time requirements for promptly initiating inv estigations

when new cases are referred from the central abuse hotline,

identifying and interviewing witnesses, assessing danger,

developing plans to address dangerous situations and to ensure

child safety, monitoring plans, marshalling community resources ,

and ultimately, completing and closing the investigation within

an outside limit of 60 days in all cases. Only two exceptions

are provided in the statute to the strict 60 - day case closure

deadline: when there is an active concurrent criminal

investigat ion that would be compromised; or in child death cases

when the medical examinerÓs final report is necessary but not

received within 60 days. See § 39.301(16), Fla. Stat.

8. In short, as well described by RespondentÓs witnesses,

from PetitionerÓs supervi sor on up the chain of command through

the DCF deputy regional manag ing director for Miami - Dade and

Monroe Counties, timely and thorough performance and

documentation of all of the critical steps of child protective

investigations described above are essen tial to ensure the safety

and well - being of FloridaÓs children. A misstep, a delayed step,

or a step taken but not thoroughly documented could result in

harm (or worse) perpetrated on a vulnerable child, which might

otherwise have been prevented. The CPI job is not an easy one;

it is a difficult, demanding job with no leeway for sliding on

deadlines or cutting corners on job performance.

9. The official CPI job description specifies that on - call

duty is required. New case reports from the central abuse

registry that require child protective investigations can arise

at any time of the day or night. Depending on the nature of the

case, the assigned CPI will be required to make first contact

with the child either immediately or, at the outside, within 24

h ours. Since the DCF offices are only open eight hours per day,

five days per week, the rest of the hours -- nights and weekends --

have to be covered by at least one on - call investigator and one

on - call supervisor, so that cases can be opened and the

investig ation process started. On - call CPI duty is rotated; on

average, a CPI is expected to take on - call duty one night of the

week and one weekend per month.

10. Another essential function of the CPI position is to

become proficient using the Florida Safe Fami lies Network (FSFN)

computer system, which is a central system used by the central

abuse registry to submit new case reports to the appropriate DCF

office, and by DCF to document every aspect of an investigation,

from inception to closure. Use of the FSFN system is

specifically incorporated in the requirements for child

protective investigations set forth in Florida Administrative

Code Chapter 65C - 29. See, e.g. , Fla. Admin. Code R. 65C -

29.003(1)(a) (requiring documentation in FSFN of a CPIÓs

rationale for downgrading an Ðimmediate responseÑ case to a Ð24 -

hour responseÑ case).

aining in the use of the FSFN system begins in the

10 - to 12 - week CPI training course required to obtain provisional

CPI certification. Thereafter, FSFN proficiency is gained

through on - the - job use. New CPIs may initially need some

assistance from more seasoned CPIs in their offices and/or from

their supervisor until they learn all aspects of the system, but

the FSFN system is not considered difficult to master and it

should n ot take long for new CPIs to learn to the point of not

requiring assistance.

12. Another essential job requirement for the CPI position,

according to the official position description, is a valid

driverÓs license. In conducting investigations, CPIs must be

able to quickly and independently navigate from the DCF office to

the homes of the subjects of an abuse report, to other homes and

businesses to interview witnesses and conduct inspections, to

schools where children to be interviewed might be found, to court

when necessary to offer testimony, and other places.

PetitionerÓs Undisclosed Stroke Episode

13. According to Petitioner, on July 31, 2014, while

Petitioner was in Miami in the early weeks of his CPI training,

he woke up feeling strange and stiff. However, he was able to go

to his training course. When he arrived, a classmate allegedly

asked Petitioner if he was feeling okay. Petitioner remained in

class for the dayÓs training session. After class, the same

classmate allegedly said that Petitio ner should go to the

hospital to get checked out. Petitioner said that after some

resistance, he agreed and allowed the classmate to take him to an

emergency room. The classmate did not testify at hearing.

14. Petitioner testified that his classmate wa ited with him

at the emergency room for a short time, then left. Petitioner

remained alone at the emergency room for about six and one - half

hours without being seen by a physician. At that point,

Petitioner was feeling better and was unwilling to wait an y

longer, so he had his son take him to his brotherÓs home where

Petitioner stayed when attending the Miami training sessions.

15. The next day (Friday, August 1, 2014), Petitioner still

felt stiff, but well enough to attend the dayÓs training session.

After the training, he drove from Miami to Port Orange, where his

wife lived. (He had only recently relocated to Key West to begin

his new OPS job, and his wife had not yet joined him there.)

16. Petitioner said that his wife wanted to take him to the

h ospital to be checked out upon his arrival Friday evening,

because she did not think he looked good (after a dayÓs training

followed by a long drive). Petitioner Ðdismissed her concernsÑ

(Tr. 40), and stayed home that night. The next day -- two full

days a fter Petitioner woke up feeling strange and stiff -- his wife

repeated her request that he get checked, and this time he

agreed. Petitioner went to an emergency room and was

subsequently admitted to the hospital from Saturday afternoon to

Monday afternoon f or testing. Petitioner said that he was

informed by the doctor that the test results indicated that he

had had two strokes, one affecting each frontal lobe of his

brain. No documentation of this hospital stay, the test results,

or the diagnosis was offer ed in evidence.

17. From the hospital, Petitioner called his direct

supervisor, Karen Gibson, the child protective investigator

supervisor (CPIS) for the Key West office. Petitioner told her

that he was in the hospital because of diabetes, explaining th at

he had not been following his diet and had let himself get out of

control. He did not ask for any accommodation for the diabetic

condition (indeed, it is unknown whether Petitioner actually has

or had diabetes, as no evidence was offered on that subjec t).

Instead, Petitioner assured his supervisor he would be able to

return to work and training right away. According to Petitioner,

it was Ms. Gibson who told him to take some time off. She said

that he should not return to Key West Monday or Tuesday, b ut

rather, he should go straight to Miami on Wednesday to resume

training. He did as she suggested. 2/

18. Petitioner admits that he did not tell Ms. Gibson in

the beginning of August 2014, or for many months thereafter, that

he had been diagnosed with h aving had two strokes. Petitioner

did not deny Ms. GibsonÓs testimony that he had told her he was

in the hospital due to diabetes. Petitioner acknowledges that it

was his choice to not disclose the truth about the hospital stay.

It was not until Petitio ner had been counseled repeatedly by

Ms. Gibson for not properly performing his CPI duties, and after

he had been told that if he could not perform his duties he would

not be able to keep the job, that Petitioner disclosed that he

had had a stroke.

19. No medical information was provided to Ms. Gibson, nor

was any offered at hearing, to illuminate PetitionerÓs condition

in August 2014 or at any time thereafter while he was employed by

Respondent. It is unknown whether PetitionerÓs description of

what he was told by a doctor in August 2014 is accurate. 3/

20. Petitioner failed to prove, other than in the most

general anecdotal way, the nature or extent of his condition in

August 2014 or thereafter while employed by Respondent. It is

unknown whether the strokes he said he was told about were

considered minor, severe, or somewhere in between; what sort of

medical professional(s) Petitioner saw and how frequently; what

medication was prescribed for Petitioner for what purpose; what

specific symptoms were at tributed by such medical professional(s)

to his July 31, 2014, episode; what sort of treatment or therapy

may have been recommended by any such professional(s); and how

the medical professional(s) have described PetitionerÓs prognosis

then or at any time s ince then. 4/

21. What is known about PetitionerÓs condition following

the undisclosed stroke incident is that after Petitioner took the

extra one or two days off as Ms. Gibson suggested, Petitioner was

able to return to a full schedule of training in Mia mi, plus

working two days per week in Key West, for the rest of August and

September 2014. There is no evidence that Petitioner expressed

any concerns about his physical or mental health, or experienced

any health problems that interfered with his ability to work, to

participate and learn in training sessions, and to frequently

drive back and forth between Miami and Key West.

22. Petitioner successfully completed his CPI training on

September 26, 2014, and he took and passed the test to obtain

provisiona l CPI certification. With the training and provisional

CPI certification, Petitioner qualified for a career service CPI

position with probationary status. He was offered that position

and accepted . He was transferred into the position on October 3,

2014 , marking the beginning of his one - year probation.

PetitionerÓs J ob P erformance

23. Petitioner was eased into his new CPI position with a

lot of direct supervision by CPIS Gibson and assistance from the

other CPIs working in the Key West office.

24. Al though Petitioner was eligible to receive new case

assignments upon obtaining his provisional CPI certification, as

a matter of course with all new CPIs, PetitionerÓs supervisor

would assign fewer cases at first, direct the more difficult

cases to other CP Is for at least the first month or two, and

staff cases so that new CPIs would be working on their cases

along with other CPIs to the extent possible. She did this for

Petitioner, so that at first, he had a lower volume of easier

cases on which other CPIs assisted him. 5/ He was also not

immediately put into the on - call rotation, taking his first on -

call assignment on a weekend late in December 2014.

25. PetitionerÓs performance on individual cases was

documented in FSFN entries in the individual case f iles. At

defined stages of an investigation, the progress would be

reviewed by the CPIS, who would discuss the case with the CPI and

issue or revise supervisory directives to identify tasks that the

CPI needed to accomplish in the investigation. These be nchmark

points included: initial intake assessment performed by the CPI

within 48 hours of case assignment and submitted to the

supervisor for the initial supervisory review; case update

submitted by the CPI after 30 days for the supervisory 30 - day

review ; and investigation completed by the CPI and submitted to

the supervisor for closure after 45 days. These supervisory

reviews were documented in the FSFN case file by the CPIS.

26. As an example in evidence, an excerpt of the FSFN

chronological notes re port for one investigation assigned to

Petitioner contains a summary entered by PetitionerÓs supervisor

on October 31, 2014, documenting the initial supervisory review.

Supervisory directives to Petitioner were listed as items that

ÐCPI needs toÑ do, incl uding requesting law enforcement calls to

the home and requesting medical records from the hospital where

the 14 - year - old child had been admitted under the Baker Act.

In a follow - up note on review of the investigation submitted for

45 - day closure, Ms. Gibs on set forth a list of items that

Petitioner still needed to do, including documenting the law

enforcement calls to the home that he was to have requested as a

result of the initial supervisory review. In another follow - up

note on December 24, 2014, Ms. G ibson reported that she had to

request the hospital records for the 14 - year - oldÓs Baker Act

stay, because ÐCPI Rosado had previously requested from incorrect

hospital.Ñ (R. Exh. 1 at 4).

27. FSFN notes from other individual case files reflect

other issu es of concern with PetitionerÓs performance as a CPI.

In one investigation of a three - year old child with a burn mark,

the initial supervisory review notes entered by Ms. Gibson on

December 22, 2014, reported that the mother has two children,

ages three a nd one, by two fathers, and that she recently

separated from the youngest childÓs father and began living with

her current paramour. Supervisory directives to Petitioner

included: requesting medical collateral documentation;

interviewing the boyfriend se parate from the mother; interviewing

both fathers and, if the children go to their homes, visiting the

fathersÓ homes; and attempting a collateral interview with a

maternal relative. On January 23, 2015, the 30 - day supervisory

review notes entered by Ms. Gibson reported that Petitioner still

needed to interview both fathers, document observations of both

fathersÓ homes, request medical collateral documentation for the

children and upload the records to FSFN, and attempt a collateral

interview with a matern al relative. Pointing out that there was

not much time to accomplish these directives (many of which

remained undone for over 30 days), the entry noted that the

investigation was due to be submitted for closure on February 6,

2015. On February 1, 2015, M s. Gibson completed an entry

reporting that Petitioner submitted the investigation for 45 - day

closure, but the investigation was incomplete and recalled,

because ÐCPI has not completed prior supervisory directives in

first and 30 - day reviews.Ñ (R. Exh. 1 at 18).

28. Several other examples were shown in the FSFN notes of

investigations submitted by Petitioner for closure, but which

were incomplete and recalled. Petitioner admitted what is

documented in the records of his investigations: that he had

prob lems meeting the time frames imposed for completing the

investigations, and that he had problems completing and

documenting all of the supervisory directives.

29. FSFN notes of other investigations show that Petitioner

did not thoroughly document the inv estigative steps he did

complete. Instead, in supervisory reviews, Petitioner frequently

had to be asked to upload documents he had collected, to document

that he accomplished certain supervisory directives, to clarify

his interview summaries, and to clar ify whether he had asked

certain questions germane to the specific case. A particular

problem in this regard was PetitionerÓs inability to hone in on

the critical information needed to assess the childÓs safety,

when conducting and summarizing interviews and providing back - up

documentation in the FSFN case files. As PetitionerÓs supervisor

credibly described the problem, Petitioner would amass a lot of

information in the course of his investigations, but not

necessarily the information needed to assess th e childÓs safety

in light of the allegations to be investigated.

30. One FSFN note of particular concern documented a 30 - day

supervisory review of an investigation assigned to Petitioner.

The intake was received on January 4, 2015, for investigation of

a childÓs safety. Both the mother and stepfather were arrested

for domestic violence. Petitioner had developed a safety plan,

meaning that he determined that the plan was necessary to ensure

the childÓs safety. The safety plan, signed by the mother o nly,

indicated that the stepfather would not return home. Petitioner

discussed the safety plan with the stepfather, but did not ask

him to sign it. Of greatest concern was the note that as of the

30 - day review, Petitioner had not worked on the case since the

initial supervisory review, had not monitored the safety plan,

could not report as to the familyÓs circumstances or safety plan

compliance, and had not been back to the home. Ms. Gibson noted

that she counseled Petitioner regarding the importance of

monitoring safety plans. She added that Petitioner still needed

to complete the initial supervisory directives issued in January.

31. PetitionerÓs supervisor testified credibly that the

foregoing example was symptomatic of PetitionerÓs overall

inability to effectively manage his cases. He did not

demonstrate good choices in prioritizing his tasks within a case

or among his cases. E xamples such as the foregoing one in which

a case that required a safety plan to ensure the childÓs safety

was left dormant by Petitioner for 30 days demonstrate that it is

a matter of sheer fortuity that there were not dramatic, tragic

consequences from PetitionerÓs failure to properly perform his

duties as a CPI.

32. At hearing, Petitioner acknowledged his performance

prob lems. He was well aware that when he was a CPI, he was

having problems meeting case deadlines, completing the necessary

tasks for each investigation by those case deadlines, and

completing the supervisory directives in his cases. He was well

aware that c ases he submitted for closure were being recalled to

him because they were not ready for closure. Indeed, all of

these performance problems were repeatedly called to PetitionerÓs

attention in supervisory case reviews, as documented in the FSFN

case files.

33. In addition to these investigation - specific problems of

not meeting the time frames necessary to complete investigations

for timely closure, not completing specific supervisory

directives, not documenting what was done, not uploading

documentation c ollected, and not clearly summarizing interviews

and information, Petitioner had trouble learning how to use FSFN.

34. Some learning - curve time is to be expected to master

all of the mechanics of logging in, checking for new cases

referred by the central abuse hotline, creating a new case file,

entering interview summaries, reviewing existing case files for

information entered in supervisory reviews or by other CPIs

working on the investigation, uploading documents such as medical

records and signed safet y plans, and similar tasks. However,

PetitionerÓs supervisor credibly testified that after allowing

for reasonable learning - curve time, Petitioner was still not

catching on and was not showing any signs of progress. Instead,

he required constant help fro m her and from other CPIs to perform

even the most basic steps. He repeated the same requests for

help and received the same instructions multiple times. As

another CPI who worked with Petitioner in the Key West office

described PetitionerÓs difficulties with basic, everyday FSFN

tasks, ÐHe would ask for assistance and you would explain it to

him and then a short time later or the next day he would ask the

same question . . . as if he couldnÓt remember to -- how it was

done.Ñ (Tr. 327).

35. Petitioner ad mitted that he had to be given the same

instructions over and over by his supervisors because he could

not remember the instructions previously given to him. He

admitted that he asked the same questions and asked for

assistance with the same tasks because he had problems

remembering that he had been given those instructions before.

36. As an example, Petitioner was assigned to on - call duty

on the weekend of February 28, 2015. Although it was

PetitionerÓs third on - call duty experience, and although

Pet itioner had been working in his career service CPI position

for five months, he could not remember how to check the FSFN new

case screen for referrals from the central abuse registry. He

had to ask for help from another on - call CPI, who walked him

through the process to check the new case screen, accept the new

case that was waiting, and open a new investigation file. The

other worker had to give Petitioner advice to review the new case

with the on - call supervisor. Petitioner went in to see

Ms. Gibson, and even though he had just been walked through the

process, Petitioner had to ask Ms. Gibson to show him how to

access the new case file. He told her he was embarrassed to have

to ask again. At hearing, Petitioner admitted that he had to

repeatedly ask for assistance when using FSFN because he had

trouble remembering how to use the system.

PetitionerÓs Disclosure

37. Even before the on - call problem on February 28, 2015,

PetitionerÓs supervisor had discussions with her supervisor,

P rogram A dministrator Amy Baldree, regarding dissatisfaction with

PetitionerÓs performance, despite the repeated counseling and

directives evident from the FSFN case notes discussed above.

38. Ms. Gibson candidly acknowledged that Ðat this point

[mid - February 2015] we were trying to move towards termination

with Mr. Rosado.Ñ (Tr. 131). She was told that she needed to

document her counseling of Petitioner. Although there was

documentation of counseling in the FSFN notes for individual

cases, Ms. Gibson admitted that she h ad not prepared any

probationary progress reviews for Petitioner. According to

RespondentÓs employee relations coordinator, ideally supervisors

complete probationary progress reviews monthly for CPIs during

their one year on probation.

39. Ms. Gibson p roceeded to complete probationary progress

review forms for Petitioner for the months of December 2014,

January 2015, and February 2015. The completed evaluation forms

were all presented to Petitioner and signed by Ms. Gibson and

Petitioner on the same da y, February 23, 2015. 6/ Although it

would have been better practice for each of these progress

reviews to have been prepared and presented to Petitioner close

to the time period addressed in each review, Ms. Gibson credibly

explained that nothing written in the three months of progress

reviews was new to Petitioner. Instead, the review forms contain

samplings of the same types of performance problems that she had

been discussing repeatedly with Petitioner in supervisory reviews

of individual cases assigne d to him. Her explanation is

supported by the FSFN individual case notes. 7/

40. According to Petitioner, he responded to the

performance reviews by disclosing to Ms. Gibson on February 23,

2015, one week before he was terminated, that he had suffered t wo

strokes, as if to explain his performance issues. He claims that

Ms. GibsonÓs comment was that he just needed to work faster if he

wanted to keep his job.

41. Ms. Gibson acknowledged that at some point close in

time to the February 23, 2015, performa nce review discussion, and

shortly before Petitioner was terminated, Petitioner disclosed to

her that he had had a stroke (one, not two). However, she

recalled the conversation differently. According to Ms. Gibson,

she and Petitioner were having one of t heir periodic discussions

about performance problems, such as missing deadlines or failing

to complete supervisory directives, and he acknowledged that he

was having difficulty remembering things. Her response was that

he could not stay in the CPI positio n unless he could perform his

duties and remember his directives and responsibilities. It was

at that point that he said that he guessed he had to tell her

that he had a stroke.

42. Ms. Baldree was present when Ms. Gibson presented the

performance revie ws to Petitioner on February 23, 2015. She

testified that Petitioner asked her whether Ms. Gibson had told

her that he had had a stroke recently. She said yes, and

Petitioner responded that he just wanted to make sure she was

aware. She asked him how he was doing and he said, ÐFine. IÓm

seeing a doctor.Ñ That was the end of the conversation.

43. Regardless of how or exactly when Petitioner finally

disclosed to his supervisors the fact that he had had a stroke or

two strokes (not so recently, but ra ther, nearly seven months

before his disclosure), the evidence establishes that Petitioner

was unable to perform the essential functions of his job.

Petitioner admitted as much.

44. Petitioner acknowledges that he never requested a

specific accommodat ion t o enable him to perform his job.

Petitioner seemed to suggest that if only he had been told to

take a leave of absence, he could have undergone rehabilitation

and gotten better. However, he never asked for days off, much

less any extended leave of a bsence, so that he could undergo

rehabilitation.

45. Petitioner testified that while he was employed with

Respondent, he had an insurance policy that he had obtained

through the state. Although the policy was not offered in

evidence, it was described in terms that sounded like short - term

disability insurance (which would have been made available for

Petitioner to purchase, but was not a benefit actually provided

by DCF). Petitioner contends that he should have been allowed to

take time off using that in surance policy to receive income while

not working. However, Petitioner admitted that he never asked to

take time off. Moreover, he never submitted a claim under the

short - term disability policy, because he said he did not know he

could (and whether he c ould have or not is unknown, as there is

no record evidence to answer that question).

46. Petitioner testified that he never asked for any

accommodation because he was afraid to ask for an accommodation

while a probationary employee. Alternatively, an d somewhat

inconsistently, he also testified that he did not ask for a

specific accommodation because he thought his supervisors would

know what he needed and would refer him to the right place for

assistance.

47. At hearing, Petitioner was unable to ide ntify any

specific accommodation that would have enabled him to perform the

essential functions of his CPI position. The best he could offer

was that he should have been allowed to go slower, or should have

been assigned a full - time mentor to work with hi m every day to

slowly explain to him how to do his job, since he believes his

main performance problem was that he could not complete

investigations quickly enough. However, the fast time lines for

moving forward on investigations, with the interim superv isory

reviews and benchmarks, are essential to the job because of the

statutorily - mandated investigation closure deadline.

PetitionerÓs Termination

48. Ms. Gibson and Ms. Baldree discussed their concerns

about PetitionerÓs performance with the DCF emp loyee relations

coordinator, Ranjana Bhandari, and they offered their view that

PetitionerÓs employment should be terminated.

49. Ms. Bhandari reviewed the three probationary progress

reviews, and asked for additional documentation.

50. Ms. Gibson and Ms. Baldree prepared a memorandum

providing more detail regarding the history of performance

problems since Petitioner was transferred into the career service

CPI position, the additional instruction and oversight provided

to Petitioner because of his inability to perform his duties

without constant assistance, the lack of improvement, and the

constant counseling that had been provided to him to impress upon

him the importance of meeting the deadlines for investigations

and carrying out supervisory dire ctives.

51. Additional specific examples of performance problems

were provided in the memo. One such example was a recent

investigation involving three children, with allegations of

sexual abuse. The case was initially assigned to Petitioner on

January 30, 2015. Ms. Gibson asked another CPI, Mr. Quinones, to

go with Petitioner to interview the children, and they did so on

a Friday at the childrenÓs school. The next Monday, Ms. Gibson

asked Petitioner about the case, which she identified by name.

Petit ioner did not recognize the name. Ms. Gibson added details:

ÐYou know -- the sexual abuse case with the three African American

children you interviewed at [name of school] on Friday?Ñ

Petitioner responded with a blank look; he had no recollection of

the c ase. Ms. Gibson reassigned the case to another CPI.

52. Another more recent example was provided, in which

Petitioner was assigned a new case on February 18, 2015, and he

told Ms. Gibson he planned to see the children at school the next

day. The next d ay, after the 24 - hour response deadline had

passed, Ms. Gibson asked him about the case, and he responded

that he had not yet seen the children because he had gone out on

another investigation that Ms. Gibson determined was not as high

a priority as meetin g the 24 - hour deadline in the new case. Not

only was he late seeing the children for the first time in the

new case, but he was also late finishing the child safety

assessment for those same children.

53. Bringing the performance report completely cur rent,

among other examples detailed in the memo, Ms. Gibson and

Ms. Baldree recounted PetitionerÓs continued FSFN failures that

hampered his performance of his on - call duty over the weekend of

February 28, 2015.

54. Ms. Bhandari reviewed the memorandum a nd determined

that the documentation was sufficient and supported the

recommendation that Petitioner be terminated because of his

demonstrated inability to perform the duties of a CPI.

Ms. Bhandari did not know about PetitionerÓs recent disclosure of

his s troke episode seven months earlier. Ms. Bhandari did not

know PetitionerÓs age.

55. Rosa Baez also reviewed the documentation supporting

the proposed termination of PetitionerÓs employment. At the

time, Ms. Baez was a family and community services dire ctor who

oversaw DCF programs , including child protective investigations.

Her role was to review the reasons why the program administrator

and the employeeÓs supervisor were recommending termination, and

unless she disagreed with the recommendation, she w ould let the

process go forward. After reviewing the documentation regarding

PetitionerÓs performance provided by Ms. Bhandari, she did not

disagree with the proposed termination, since child safety was an

issue. Ms. Baez did not know about PetitionerÓs recent

disclosure of a stroke episode seven months earlier, nor did she

know PetitionerÓs age; there was nothing in the memo or progress

reviews regarding either subject.

56. The documentation and recommendations were provided to

Gilda Ferradaz, the depu ty regional managing director , who made

decisions on proposed dismissals of probationary employees. She

reviewed the material and made the decision to terminate

PetitionerÓs employment, signing the letter informing Petitioner

of that decision. She explai ned the basis for her decision:

[T]his was a probationary employee in a child

protective investigation role. This work is

very critical work; it is very detail -

oriented. We have to make sure that the

staff we have working have -- are fully

grasping all of the responsibilities of this

position, making sure all of the assessments

are fully done, all of the appropriate people

are interviewed, and that decisions are made

based on all of the information available to

make sure that children arenÓt at risk. And

i t seemed that this employee was not able to

grasp the scope of responsibility for this

critical position. (Tr. 305).

57. Ms. Gibson and Ms. Baldree met with Petitioner on

March 2, 2015, to deliver the termination letter signed by

Ms. Ferradaz. Petiti oner signed the letter to acknowledge that

he received it.

58. Petitioner testified that when he was presented with

the termination letter on March 2, 2015, he asked Ms. Gibson and

Ms. Baldree whether they could extend the same courtesy that they

provide d to former CPI Jeffrey Qualls, by demoting him to another

position instead of terminating him.

59. Contrary to PetitionerÓs testimony, both Ms. Gibson and

Ms. Baldree denied that Petitioner made any such request. There

is nothing in writing to substant iate PetitionerÓs claim that he

asked to be treated the same as Mr. Qualls. 8/

60. Even if Petitioner had requested a demotion, Petitioner

offered no proof that there was a vacant position available for

him at the time. Instead, Petitioner admitted t hat he does not

know if there was any position available at the time to which he

could have been demoted. The only evidence on the subject was

Ms. BaldreeÓs testimony that, in fact, there was no open position

at the time to which Petitioner could have bee n demoted. As

program administrator, she would be in a position to know or to

research that question when PetitionerÓs claim was made known

during this proceeding (such as in his deposition).

61. Even if Petitioner had proven that there was an

available lower - level position at the time of his termination,

PetitionerÓs own testimony raises considerable doubt as to

whether Petitioner was capable of working at all in any kind of

DCF position had one been available.

62. Petitioner was asked about the effor ts he made to find

another job after he was fired. Petitioner responded: ÐI was

not able to make -- have any efforts to look for other employment

because of my mental health status. . . . I didnÓt feel I was

able to perform a job with the residual effects from the two

strokes I was having.Ñ (Tr. 64).

63. Petitioner added that although he was not looking for

work, during the spring of 2015 after he moved to Tarpon Springs,

he agreed to work part - time at Old McMickyÓs Farm, a childrenÓs

farm in Odessa. H is job was to lead groups of children on a

walking tour of six or seven stations. Multiple tours would be

conducted at the same time, with other groups led by other

employees. To evenly distribute the tour groups among the

stations, each tour leader was required to lead his or her group

through the stations in a certain order, and the assigned order

w ould change depending on the number of tour groups. Petitioner

was terminated from the job after a few weeks, because he could

not remember the order of the stations to which he was supposed

to lead his group, and he would sometimes skip a station or two.

64. Petitioner explained that the reason he took the job at

Old McMickyÓs Farm was: ÐI wanted to get my feet wet and see if

I could do a job. It turned out that even though [the job

involved] most[ly] menial tasks , I was failing at it.Ñ (Tr. 90).

Petitioner has not attempted work since then.

65. For purposes of pursuing his charge of discrimination

on the basis of a disability, Petitioner was required to submit

to FCHR either medical records to prove a disability or a

completed medical certification form. After receiving an

extension of the deadline, Petitioner submitted a medical

certification form completed on July 5, 2016, by a doctor

identifying h imself or herself as having a specialty in the area

of neurology. The doctor checked the ÐyesÑ box in answer to the

question asking whether he /she is the complainantÓs treating

medical professional with knowledge of the complainantÓs medical

condition and history. No details were provided. Also answered

yes was the question asking whether the complainant has a

physical or mental impairment that substantially limits one or

more major life activities. On the following pages, the doctor

identified those li fe activities as seeing (sufficiently to

perform daily functions/general hygiene ) , learning (Ðhas a hard

time learning new things, memory affects thisÑ), performing

manual tasks (Ðdrops things with right handÑ), speaking (Ðwhen

tired has slurred speechÑ), and walking (Ðloses balance easily,

stumbles, fallsÑ). (R. Exh. 7). This form was accepted by FCHR .

A lthough for purposes of this hearing, the completed form is

hearsay, it does lend some credence to the notion that Petitioner

has a disabling condition (at least as of July 2016) .

6 6 . Petitioner said that over time, he has gotten worse.

He testified that he is hardly able to drive now, and his memory

is worse -- he is not able to remember his street address.

Claimed Damages

6 7 . Petitioner did not pro ve the existence or amount of

damages caused by the claimed unlawful employment practice .

6 8 . Petitioner testified that h e was seeking one yearÓs

salary and benefits as back pay. However, PetitionerÓs own

testimony establishes that he was unable to perf orm the CPI

duties , or any job duties, in the year after he was terminated.

If Petitioner had been able to work but simply chose not to , then

he would have failed to mitigate damages by not looking for

another job -- but he said that he was completely unabl e to work.

6 9 . PetitionerÓs inability to work in eve n a less demanding

job with menial duties is demonstrated by his failed experience

working at Old McMickyÓs Farm only a month or so after he was

terminated .

70 . Petitioner cannot claim compensatory damages for income

lost by reason of having been terminated when he admits that he

was unable to do any kind of work.

7 1 . Petitioner alluded to other damages, such as moving

expenses, but he offered no evidence to prove what h is actual

expenses were in a ny of these areas of claimed loss.

Ultimate Facts

7 2 . Accepting PetitionerÓs marginal showing that he was, at

the relevant time, a person with a disability, Petitioner failed

to prove that he was qualified to perform the essential functions

of the CPI p osition, with or without accommodation. Instead, the

evidence established that Petitioner was unable to perform the

essential functions of a CPI, with or without accommodation.

7 3 . Petitioner never requested a specific accommodation to

enable him to per form his duties as a CPI.

7 4 . Petitioner failed to prove that there was any

reasonable accommodation he could have requested that would have

enabled him to perform the essential functions of his job.

7 5 . Respondent offered a legitimate non - discriminato ry

reason for terminating PetitionerÓs employment. Beyond just

articulating a reason, Respondent proved that PetitionerÓs

employment was terminated based on well - documented performance

problems in virtually all essential areas of the CPI position,

and not as a pretext for unlawful discrimination.

7 6 . Petitioner failed to prove that Respondent

intentionally discriminated against Petitioner because of his

disability.

7 7 . Petitioner did not prove that there was any similarly

situated person who was not di sabled and who was treated more

favorably than Petitioner.

7 8 . Petitioner failed to prove that Respondent

intentionally discriminated against Petitioner because of his

age. Indeed, the record is devoid of any evidence,

circumstantial or otherwise, direc ted to PetitionerÓs charge of

age discrimination.

7 9 . Petitioner did not prove that there was any similarly

situated person of a different age than Petitioner and who was

treated more favorably than Petitioner.

CONCLUSIONS OF LAW

80 . The Division of Ad ministrative Hearings has

jurisdiction over the subject matter of, and parties to, this

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

760.11(7), Florida Statutes (2016). 9/

8 1 . Section 760.10(1) provides that it is an unlawful

employment practic e for an employer to discharge or otherwise

discriminate against an employee Ðbecause ofÑ the employeeÓs

handicap (used interchangeably with disability ) or age.

8 2 . Invoking this statute, Petitioner claims that he was

unlawfully discharged by Respondent b ecause of his disability

and/or his age, resulting in damages. Petitioner bears the

burden of proving his claim and the resulting damages by a

preponderance of the evidence. See EEOC v. JoeÓs Stone Crabs,

Inc. , 296 F. 3d 1265, 1273 (11th Cir. 2002) ( c lai mant bears the

ultimate burden of persuading the trier of fact that the employer

intentionally discriminated against the employee);

§ 120.57(1)(j), Fla. Stat.

8 3 . Respondent is an "employer" within the meaning of the

Florida Civil Rights Act (FCRA). § 760.02(7), Fla. Stat.

8 4 . FCHR and Florida courts have determined that federal

discrimination law should be used as guidance when construing the

FCRA. See Valenzuela v. GlobeGround N. Am., LLC , 18 So. 3d 17,

21 (Fla. 3d DCA 2009); Brand v. Fla. Powe r Corp. , 633 So. 2d 504,

509 (Fla. 1st DCA 1994).

85. Discriminatory intent can be established through direct

or circumstantial evidence. Schoenfeld v. Babbitt , 168 F.3d

1257, 1266 (11th Cir. 1999). Direct evidence of discrimination

is evidence that, i f believed, establishes the existence of

discriminatory intent behind an employment decision without

inference or presumption. Maynard v. Bd. of Regents , 342 F.3d

1281, 1289 (11th Cir. 2003).

8 6 . Ð [D]irect evidence is composed of Ò only the most

blatant r emarks, whose intent could be nothing other than to

discriminate Ó on the basi s of some impermissible factor.Ñ

Schoenfeld v. Babbitt , supra . In this case, Petitioner has

presented no direct evidence of discrimination based on

disability or age. Instead, P etitioner re lies on circumstantial

evidence to prove intentional discrimination .

8 7 . The burden - shifting analysis set forth in McDonnell

Douglas Corp. v. Green , 411 U.S. 792 (1973), and Texas Department

of Community Affairs v. Burdine , 450 U.S. 248 (1981 ), is applie d

in circumstantial evidence - based discrimination cases . Under

this analysis, Petitioner bears the initial burden of

establishing a prima facie case of discrimination. Failure to do

so ends the inquiry. If Petitioner is able to prove a prima

facie case, the burden shifts to the employer to articulate a

legitimate, non - discriminatory explanation for the employment

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

(Fla. 1st DCA 1991) (discussing shifting burdens in

discrimination c ases under McDonnell and Burdine ). The employer

has the burden of production, not persuasion, and need only

articulate a non - discriminatory reason for the action . Id. ;

Alexander v. Fulton Cnty, Ga. , 207 F.3d 1303, 1339 (11th Cir.

2000). The employee mus t then prove t hat the reason given by the

employer is a pretext for discrimination. The employee must meet

the proffered reason head on and rebut it. Chapman v. Al

Transp. , 229 F.3d 1012, 1030 (11th Cir. 2000) (en banc).

8 8 . ÐA lthough the intermediat e burdens of production shift

back and forth, the ultimate burden of persuading the trier of

fact that the employer intentionally discriminated against the

[Petitioner] remains at all times with the [Petitioner]." Joe's

Stone Crabs , 296 F.3d at 1273; see also Byrd v. BT Foods, Inc. ,

948 So. 2d 921, 927 (Fla. 4th DCA 2007) ( Ð The ultimate burden of

proving intentional discrimination against the plaintiff remains

with the plaintiff at all times. Ñ ).

Disability Discrimination Claim

8 9 . Disability discriminat ion claims under the FCRA are

analyze d using the same framework as claims under the Americans

with Disabilities Act (ADA). Holly v. Clairson Indus., L . L . C . ,

492 F.3d 1247, 1255 (11th Cir. 2007).

90 . To establish a prima facie case of disability

discri mination, Petitioner must prove that: (1) he is disabled ;

(2) he is a qualified individual; and (3) he was subjected to

unlawful discrimination because of his disability. St. Johns

Cnty. Sch. Dist. v. OÓBrien , 973 So. 2d 535 (Fla. 5th DCA 2007);

Holly , 4 92 F.3d at 125 5 - 1256 .

91. Unlawful disability discrimination includes either

intentional discrimination because of a disabili ty, or failure to

accommodate an employeeÓs disability . A somewhat differe nt

analysis applies to the latter theory, which does no t apply the

McDonnell Douglas burden - shifting analysis. Instead, Petitioner

must prove the following to establish unlawful discrimination

based on the theory of failure to accommodate: (1) he is

disabled; (2) he is otherwise qualified for the position, w ith or

without a reasonable accommodation; (3) his employer knew or had

reason to know about his disability; (4) he requested a

reasonable accommodation; and (5) his employer failed to prove

the necessary accommodation. Marshall v. Aryan Unl imited

Staf fin g Solution , 2013 U.S. Dist. LEXIS 30308, *12 (S.D. Fla.

Mar. 6, 2013). Thus, under either theory of unlawful

discrimination based on a disability, the first two components

are the same.

9 2 . A disability is an impairment that substantially limits

a maj or life activity. Lenard v. A.L.P.H.A. ÐA Beginning,Ñ Inc. ,

945 So. 2d 618, 622 (Fla. 2d DCA 2006).

93 . Respondent does not contest PetitionerÓs contention

that he has a disability because of a stroke episode on July 31,

2014. Some evidence, even in th e form of hearsay documentation

from medical professionals, would have been helpful to

corroborate PetitionerÓs testimony regarding what happened on

July 31, 2014, and what the test results or diagnoses were on

August 1 - 3, 2014, when Petitioner said he was in the hospital in

Port Orange, particularly since he gave his employer a different

explanation for his hospitalization then. In addition, some

evidence would have been helpful to establish what treatments

Petitioner has undergone since August 2014, and what the medical

professionalsÓ diagnoses and prognoses for Petitioner have been.

Nonetheless, PetitionerÓs testimony is accepted as marginally

sufficient to prove disability, albeit an undisclosed disability

for almost the entire time of his employment w ith Respondent.

9 4 . As to the second criterion, i n order to be a Ðqualified

individual,Ñ Petitioner Ðmust show that he can perform the

essential functions of his position with or without reasonable

accommodations.Ñ Williams v. Revco Disc. Drug C trs. , In c. , 552

Fed. Appx. 919, * 921 (11th Cir. 2014).

9 5 . When determining what functions are essential to a job,

consideration is given to a number of factors, including the

employerÓs judgment of what it believes to be the essential

functions (to which subs tantial weight is given) , any written

description of the position, the amount of time spent on the job

performing the function, and the consequences of not requiring

the employee to perform the function. Id. (citing DÓAngelo v.

ConAgra Foods, Inc. , 422 F. 3d 1220, 1230 (11th Cir. 2005) ) .

9 6 . Respondent established an array of essential functions

for the CPI position based on the official job description , the

regulatory requirements for the job imposed by statutes and

rules, and RespondentÓs judgment , as expressed through the

credible testimony of PetitionerÓs supervisors as to the

essential nature of these functions . Another significant factor

in this particular case, as explained by RespondentÓs witnesses,

is consideration of the consequences of not re quiring CPIs to

c onduct and document investigations with a sense of urgency

commensurate with the risk to childrenÓs safety and well - being.

9 7 . Petitioner was and is unable to perform the essential

functions of the CPI position. His performance proble ms were

widespread and well - documented during his time working in that

position.

9 8 . Where, as here, Petitioner was unable to perform the

essential functions of his job without accommodation, it i s

PetitionerÓs burden to identify an available reasonable

accommodation that would allow him to perform the essential

functions of his job , and then establish that Respondent denied

him this accommodation . Medearis v. CVS Pharm., Inc. , 646 Fed.

Appx. 891 , *896 (11th Cir. 2016); Spears v. Creel , 607 Fed. Appx.

94 3, *948 (11th Cir. 2015).

99 . At hearing, Petitioner stated that he might have been

able to perform the essential functions of his job if a mentor

had been assigned to him to work with him daily to slowly show

him how to do his job. Significantly , Peti tioner never made a

specific demand for this accommodation to Resp ondent. But even

if he had, s uch a request has been rejected as beyond what the

ADA demands of employers , because it would require a reallocation

of job duties that would alter the essentia l functions of the CPI

position and shift PetitionerÓs job duties to another employee.

See Williams v. Revco Disc. Drug Ctr s . , 552 Fed. Appx. at *922 .

A request for accommodation is not reasonable unless it would

enable Petitioner, not another employee , to perform the essential

functions of PetitionerÓs CPI position. Id.

10 0 . At hearing, Petitioner also offered the theory that he

might have gotten better if he had been allowed to take a leave

of absence as an accommodation . As an initial point, Petiti oner

offered no proof to support his understandable hope that he might

have gotten better during a leave of absence of unspecified

duration , much less that any improvement would have enabled

Petitioner to perform the essential job duties of a CPI . Even if

Petitioner had offered such proof, Petitioner admitted that he

never asked to take a leave of absence , even when he disclosed

his disability to his supervisor s a week or so before he was

terminated . Petitioner did not ask for any accommodation t o

enable him to perform the essential functions of his job.

10 1 . Invoking language in disability discrimination cases,

Petitioner assert ed in his Petition for Relief that Respondent

failed to engage in an interactive process to help Petitioner

identify a reason able accommodation that would have enabled him

to perform in his CPI job. However, as explained in Spears :

Where the employee fails to identify a

reasonable accommodation, the employer has no

affirmative duty to engage in an "interactive

process" or to show undue hardship. . . . We

have likewise held that "the duty to provide

a reasonable accommodation is not triggered

unless a specific demand for an accommodation

ha s been made .

Spears , 607 Fed. Appx. at * 948 (citations omitted). As in

Spears , Petiti oner in this case failed to identify a reasonable

accommodation , so Respondent had no affirmative duty to engage in

an interactive process. Since Petitioner never made a specific

demand for an accommodation, RespondentÓs duty to provide a

reasonable accom modation was never triggered.

10 2 . Petitioner also claimed that when he was terminated,

he requested a n accommodation by asking his supervisors if he

could be demot ed like Jeffrey Qualls in lieu of termination . In

some instances, a specific demand for an accommodation might be

in the form of a transfer request to another available position.

See Id. at *948 - *949 . Here, however, the more credible evidence

did not support Petitioner Ós claim that he made such a request.

10 3 . Even if such a request had been made, Petitioner bears

the burden of proving that there w as an available vacant job for

which he was qualified at the time of his termination. Id. ; cf.

Mengine v. Runyon , 114 F.3d 415, 418 (3d Cir. 1997) (noting that

federal employer s may have to reassig n non - probationary employee s

who become unable to perform the ir essential job functions , if

there are already funded, vacant position s available ; but the

employee has the burden to prove there was a vacant, funded

position whose essential functions he was able to perform ).

10 4 . Petitioner failed to prove that there was an available

vacant position that he was qualified for to which Respondent

could have transferred him (if he had asked). Instead, the

evidence established that there was no vacant position to which

Petitioner could have been demoted. An employer is not required

to create a position as an accommodation, nor is an employer

required to bump another employee from a position in order to

accommodate a disabled employee. See Medearis , 646 Fed. A ppx.

at *895 ; Lucas v. W.W. Grainger , Inc. , 257 F.3d 1249, 1256 (11th

Cir. 2001).

10 5 . Petitioner Ós claim of disability discrimination fails,

whether under a theory of int entional discrimination or a theory

of failure to accommodate , because Petitioner fa iled to prove

that he is a qualified individual and that he ever made a

specific demand for any reasonable accommodation.

10 6 . Even if Petitioner ha d establish ed a prima facie case

of disability discrimination, Respondent offered a legitimate,

non - discr iminatory reason for PetitionerÓs termination:

Petitioner was unable to perform the essential job duties of a

CPI. Although Respondent was not required to prove the validity

of its reason, it did so. The evidence was compelling that

RespondentÓs perfor mance problems were widespread, encompassing

most facets of the CPI job responsibilities.

10 7 . Petitioner did not rebut, or even attempt to refute,

the well - documented performance problems he had as a CPI.

Instead, he only argued that the performance pro blems were the

result of residual effects of his stroke episode. However, the

fact that a disabling condition may render an employee unable to

perform the essential functions of his job does not mean that the

employer engages in unlawful discrimination by not continuing to

employ someone in a job they cannot perform. Employers are not

required to eliminate an essential function of an employeeÓs job

or reallocate job duties to change the essential functions of the

job. Williams v. Revco Disc. Drug Ctrs. , 552 Fed. Appx. at * 922

( citing Lucas v. W.W. Grainger, Inc. , 257 F.3d at 1255 ) .

10 8 . Petitioner failed to meet his burden of proving that

Respondent discriminated against him because of his disability.

Instead, Respondent reasonably determined that Pe titioner was

unable to perform the essential functions of a CPI. Petitioner

was terminated because he was unable to do the job.

Age Discrimination Claim

1 09 . To establish a prima facie case of age discrimination

under the FCRA, Petitioner must show that: (1) he was a member

of a protected age group; (2) he was subject to an adverse

employment action; (3) he was qualified to do the job; and

(4) he was replaced by, or treated less favorably than, a person

of a different age. McQueen v. Wells Fargo , 573 F ed. Appx. 836,

* 839 (11th Cir. 2014); see Ellis v. Am. Aluminum , Case No. 14 -

5355 (Fla. DOAH July 14, 2015, FCHR Sept. 17, 2015), FO at 2 - 3

(noting different interpretation of FCRA regarding whether

comparator must be younger or just of a different age).

1 1 0 . Petitioner failed to establish a prima facie case of

age discrimination. Most significantly, Petitioner failed to

present evidence of any similarly situated comparator.

Petitioner failed to prove that a person of a different age , who

was otherwise similarly situated , was treated more favorably than

Petitioner, or replaced Petitioner.

1 1 1 . Petitioner attempted to demonstrate that former CPI

Jeffrey Qualls was demoted instead of discharged when he was

arrested for driving under the influence and po ssession of

marijuana. As found above, Mr. Qualls (whose age is unknown, and

thus, might be the same age as Petitioner ) was not similarly

situated. He was a career service employee, not a probationary

employee like Petitioner. There was no evidence that Mr. Qualls

had serious performance problems like Petitioner, extending to

such basic functions as using a computer system that could

present problems for demoted positions. And significantly, there

was a vacant position that Mr. Qualls qualified for, whe reas

there was no evidence that there was a vacant position available

that Petitioner would have qualified for when he was terminated.

1 1 2 . As with the disability discrimination claim, even if

Petitioner had established a prima facie case, Respondent not

only produced, but proved that Petitioner was terminated because

of a legitimate, non - discriminatory reason -- the well - documented

performance problems -- and not because of his age. Petitioner did

not attempt to refute or rebut the performance - based reasons for

his termination, hence it cannot be concluded that the documented

performance - based reasons for terminating Petitioner were a

pretext for unlawful discrimination based on PetitionerÓs age.

RECOMMENDATION

Based on the foregoing Findings of Fact and Con clusions of

Law, it is RECOMMENDED that the Petition for Relief filed by

Petitioner, Luis Rosado, III, be DISMISSED.

DONE AND ENTERED this 15th day of March , 2017 , in

Tallahassee, Leon County, Florida.

S

ELIZABETH W. MCAR THUR

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 Administrat ive Hearings

this 15th day of March , 2017 .

ENDNOTE S

1/ PetitionerÓs filing did not comply with certain procedural

requirements, such as the requirements that each filing contain

the partyÓs signature and include a certificate of service

attesting that a copy of the filing was furnished to the adverse

party. Fla. Admin. Code R. 28 - 106.104(2)(e) and (f). A Notice

of Ex Parte Communication was issued, and a copy of PetitionerÓs

filing was provided to Respondent. PetitionerÓs filing also

strayed beyond t he proper bounds for a PRO with closing argument.

As Petitioner was informed at the conclusion of the evidentiary

hearing, the post - hearing filing is not an opportunity to present

additional evidence, but rather, to set forth proposed facts that

are suppo rted by the hearing testimony and exhibits admitted in

evidence, and to set forth the legal conclusions that flow from

those facts. In addition, closing argument could be included,

but again, the argument had to be based on the evidentiary record

that was closed at the end of the two - day hearing. Contrary to

this instruction, PetitionerÓs filing set forth facts unsupported

by any evidence presented at hearing, and argument based on facts

not in the record. See, e.g. , PetitionerÓs filing at 5

(describing how he had been pondering a question after the

hearing concluded, and then attempting to augment his hearing

testimony with additional facts that were not offered in sworn

testimony, subject to cross - examination, at hearing);

PetitionerÓs filing at 7 (offe ring an estimate of damages not

contained in the hearing record). All such references have been

disregarded, as required by section 120.57(1)(j), Florida

Statutes (findings of fact in a proceeding such as this one must

be based exclusively on the evidence of record).

2/ According to Petitioner, Monday, August 4, 2014, was a

holiday, but he did not identify what holiday he believed it was.

It was not a state holiday, falling in between the designated

state holidays for Independence Day (July 4) and Labor Day (first

Monday in September). Petitioner testified with some pride that

Tuesday , August 5, 2014, was the only day he lost from work as a

result of his stroke episode until his termination. Whether

Petitioner took one day or two days off at Ms. Gibson Ós urging,

the point is that insofar as Ms. Gibson was informed, the reason

for the time off was to recover after an episode of uncontrolled

diabetes, not to recover from a stroke episode. And when he

returned to work, he assured Ms. Gibson that he was fi ne. She

had no reason to think otherwise; Petitioner always appeared to

be in good health.

3/ As Petitioner was repeatedly informed, his testimony regarding

what others told him -- such as what the doctor told him at the

hospital -- was hearsay, and could not be relied on as the sole

basis for a finding of fact. See § 120.57(1)(c), Fla. Stat.;

Fla. Admin. Code R. 28 - 106.213(3).

4/ Petitioner testified that after the July 31, 2014, episode, a

neurologist felt that with proper treatment, he would regai n his

health after some time. Petitioner referred generally to

prescribed medications by his physician in Key West, which he had

difficulty renewing after he moved to Tarpon Springs in spring ,

2015. He also said that for one or two months shortly before he

was terminated, he was seeing two psychologists in Key West, and

they were conducting evaluations and testing to determine what he

needed to do to improve. Petitioner stated generally that after

he was terminated from his CPI position, he was not able to make

any effort to look for other employment Ðbecause of my mental

health status.Ñ (Tr. 84). It is impossible to discern from

these scattered references what PetitionerÓs physical or mental

health condition was at any point from July 31, 2014, forward .

5/ Petitioner attempted to prove that his on - the - job training was

hampered when Jeffrey Qualls, described by Petitioner as his

primary mentor and the CPI with whom he worked the most, was

arrested for driving under the influence and possession of

mari juana, and demoted to a clerical position in the food stamps

office. None of RespondentÓs witnesses agreed with PetitionerÓs

assertion that Mr. Qualls had been PetitionerÓs primary mentor

for on - the - job CPI training. In fact, Mr. Qualls was removed

from his CPI position on October 1, 2014, before Petitioner began

as a career service CPI. Petitioner may have done some shadowing

with Mr. Qualls, along with the other CPIs, in July, August, and

September 2014, but Petitioner was in training in Miami for the

majority of that time, and in any event, would only have been

permitted to do minor tasks. PetitionerÓs real on - the - job CPI

training did not begin until Petitioner was qualified to do that

work on October 3, 2014, when Mr. Qualls was no longer a CPI.

6/ Petitioner attempted to make much of the fact that Ms. Gibson

put the wrong date -- February 23, 2014, instead of February 23,

2015, next to her signature on one of the progress reviews;

Petitioner characterized the review form as Ðfalsified.Ñ

Ms. Gi bson admitted that she made a simple mistake that is not

only patently obvious, but also, is completely inconsequential.

It is not as if she backdated the reviews to give the appearance

that they had been done monthly. Ms. Gibson could have no

conceivabl e nefarious purpose for dating her signature on

February 23, 2014, on one of the reviews; Petitioner had not even

begun working for Respondent then.

7/ Petitioner argued unpersuasively that his ability to improve

his performance to address the critic isms in the progress reviews

was hampered because he did not receive them monthly, but rather,

all at once shortly before he was terminated. Petitioner was

fully aware of the performance problems discussed in the progress

reviews, and admitted as much. T hese performance problems were

discussed in supervisory reviews o f PetitionerÓs individual cases

and documented by Ms. Gibson in the FSFN case notes. Moreover,

PetitionerÓs assertion that he could have improved his

performance is at odds with his contrary assertion that he could

not help his performance problems because he was suffering from

mental health issues caused by his strokes. Notably, Petitioner

does not contend that the performance problems summarized in the

progress reviews were not true.

8/ Unlike Petitioner, Mr. Qualls had reached full CPI

certification and was a permanent career service employee, not a

probationary employee. Mr. Qualls was not proposed for

termination from his CPI position because of an inability to

perform the es sential functions of the job. Rather, he had been

arrested for DUI and possession of marijuana. After his arrest,

but before any conviction, he was allowed to be demoted to the

food stamps office. He left that position after five weeks, for

unknown reas ons. There is no record evidence of Mr. QuallsÓ age.

9/ References herein to Florida Statutes are to the 2016

codification, unless otherwise provided. It is noted that there

were no material amendments to the FCHR laws since 2014, the

version in effe ct when Petitioner was terminated.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed)

Herschel C. Minnis, Esquire

Department of Children and Famil ies

B uilding 2, Room 204 - P

1317 Winewood Boulevard

Tallahassee, Florida 32399

(eServed)

Luis Rosado, III

Post Office Box 401

Tarpon Springs, Florida 34688

Lynn Soon Hewitt, Esquire

Department of Children and Families

Building 2, Room 204Q

1317 Winewood Boule vard

Tallahassee, Florida 32399

(eServed)

Rhonda D. Morris, Esquire

Department of Children and Families

Building 2, Room 204

1317 Winewood B ou l e v ard

Tallahassee, Florida 32399

(eServed)

Elmer C. Ignacio, Esquire

Office of the Attorney General

The Capit ol, P laza Level 01

Tallahassee, Florida 32399 - 1050

(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.