16-006585 Patrick Quercioli vs. Florida Department Of Corrections Status: Closed Recommended Order on Tuesday, May 16, 2017.

Summary: Petitioner failed to prove discrimination by his employer.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PATRICK QUERCIOLI,

Petitioner,

vs. Case No. 16 - 6585

FLORIDA DEPARTMENT OF

CORRECTIONS,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice to all par ties , the final hearing was

conducted in this case on March 23, 2017 , in Ocala , Florida,

before Administrative Law Judge (ÐALJÑ) R. Bruce McKibben of the

Division of Administrative Hearings (ÐDOAHÑ) .

APPEARANCES

For Petitioner: H. Richard Bisbee, Esqu ire

Law Office of H. Richard Bisbee, P.A.

Suite 206

18 82 Capital Circle Northeast

Tallahassee, Florida 3230 9

For Respondent: M. Lilja Dandelake , Esquire

Department of Corrections

The Carlton Building

501 S outh Calhoun Street

Tallahassee, Florida 32399 - 2500

STATEMENT OF THE ISSUE S

The issue in this case is whether Respondent, Department of

Corrections (ÐDOCÑ or the ÐDepartmentÑ), engaged in

discriminatory practices against Petitioner, Patrick Quercioli,

on the ba sis of his disability ; and, if so, what relief should

be granted .

PRELIMINARY STATEMENT

PetitionerÓs employment with DOC was terminated on or about

August 4, 2016 . At that time, Petitioner had taken extensive

leave under the Family Medical Leave Act (Ð FMLAÑ) and the

Employee Assistance Program (ÐEAPÑ) due to an incident arising

during his employment with the Department. As a result of the

incident, Petitioner had developed P ost Traumatic Stress

Disorder (Ð PTSDÑ). Petitioner filed a Charge of Discrimin ation

with the Florida Commission on Human Relations (ÐFCHRÑ), which

issued a Determination: Reasonable Cause on October 15, 2016.

Based upon that determination, Petitioner filed a Petition for

Relief from Discriminatory Employment Practices with FCHR . FCHR

transferred the Petition to DOAH, where it was assigned to the

undersigned ALJ. A hearing on the Petition was held on the date

and time set forth above.

At the final hearing, Petitioner testified on his

own behalf and called three other witnesses: M arjorie

Elisabeth Maharaj , d/b/a Beth Robinson (referred to herein as

Ð Mrs. RobinsonÑ ), a mental health professional - Î accepted as an

expert in therapy, including the area of PTSD; Elisabeth

Wilkerson, retired chief of personnel for DOC; and Angela

Gordon, D OC Region I D irector (and former warden of Lowell

Correctional Institution ). PetitionerÓs E xhibits 1 through 12

and 14 through 22 were admitted into evidence. The Department

did not cal l any witnesses during its case in chief. DOC

E xhibits 1 and 2 were admitted into evidence.

The parties advised that a transcript of the final hearing

would be ordered. By rule , the parties have ten days fr om the

date the t ranscript is filed to file proposed recommended orders

(ÐPROsÑ) . The Transcript was filed on Apri l 14, 2017 ; the PROs

were due on April 24 , 2017 . However, Respondent requested and

was granted an extension of time until May 5 , 2017, for the

parties to file their PROs . The parties each timely filed their

PRO . Each party's PRO was duly considered in t he preparation of

this Recommended Order.

FINDINGS OF FACT

1 . Petitioner is a 53 - year - old Caucasian male . From

approximately November 19, 2004 , until August 4, 2016,

Petitioner was employed by the Department as a C orrectional

O fficer. He was promoted to the rank of Correctional Officer

Sergeant on July 28, 2006. At all times relevant hereto,

Petitioner was working at the Annex section of the Lowell

Correctional Institution (ÐLowellÑ) located in Marion County.

Lowell is a maximum security prison for fem ale inmates ; it has

an average daily count of approximately 2,800 prisoners .

2 . The Department is an agency of the State of Florida,

created pursuant to section 20.315, Florida Statutes , and is

responsible for, inter alia, hiring and monitoring all emplo yees

engaged in operat ions at a state prison.

3 . Petitioner was separated from his employment with DOC

due to the fact that he could not Ðperform the essential

functions of his job.Ñ That determination was based on a report

from PetitionerÓs therapist, Mrs. Robinson , and her opinion that

Petitioner could not effectively perform his duties in the

presence of inmates. Inasmuch as all C orrectional Officer

S ergeant positions require contact with inmates, DOC terminated

PetitionerÓs employment.

4 . The fact s leading to the ultimate termination of

PetitionerÓs employment are anything other than ordinary. A

discussion of those facts follow s.

5 . In October 2014, a female inmate at Lowell was found

dead in her cell . Petitioner was named as a suspect in the

d eath, despite the fact that at the time of death he was on

vacation with his family , i.e., he was not working at the

prison . Local and national news outlets began reporting about

the death, and Petitioner was named numerous times as a suspect

and possible participant. Apparently, PetitionerÓs name had

been provided to the inmateÓs family prior to her death as

someone who had been harassing her . Nonetheless, PetitionerÓs

character and reputation were impugned by the news stories.

6 . Petitioner was plac ed on administrative leave pending

further review by the Department. Meanwhile, the Florida

Department of Law Enforcement (ÐFDLEÑ) commenced its own

extensive investigation into the death of the inmate. The

investigation focused quite heavily on Petition er and one other

correctional officer , but FDLE ultimately concluded that there

was no evidence to prove either of the men had taken part in the

inmateÓs death. The inmateÓs death, in fact, was ruled to be

from natural causes. 1/ The FDLE investigation wa s concluded on

January 21 , 2015.

7 . The Department did not issue a particular statement

concerning PetitionerÓs vindication, nor did it publish a notice

about the FDLE findings. Petitioner takes great umbrage at this

perceived failure by DOC , but cited t o no requirement that the

Department do so . The Department acknowledges that it did not

make any effort to make public the findings of the FDL E

investigation .

8 . During the FDLE investigation and while PetitionerÓs

alleged involvement in the incident was being broadcast by the

news services, Petitioner began receiving threats against his

life and the lives of his family members . Who made such threats

or why such threats may have been made was not made clear at

final hearing . Whether it was family and fr iends of the inmate,

concerned citizens who perceived Petitioner as some kind of

monster, or someone else making the threats , Petitioner was

concerned for his safety . He was especially worried for his

daughter, who had been living part - time with Petitione r on a

split schedule with his ex - wife. When the news stories began to

appear, the ex - wife refused to allow the daughter to visit with

Petitioner . While he wanted to see his child, Petitioner knew

that it was better for her to stay away from him until th e

situation improved .

9 . As a result of the publicity, the threats, and the

stress on him and his family, Petitioner developed PTSD. The

Department approved Petitioner fo r participation in EAP on

March 6, 2015. EAP paid for counseling sessions with

Pet itionerÓs chosen therapist, Mrs. Robinson. Petitioner had

about 12 sessions with Mrs. Robinson while he was covered by

EAP. After his EAP coverage expired, Petitioner met with

Mrs. Robinson for two more sessions paid for as part of his FMLA

leave.

10 . Mrs. Robinson identified PetitionerÓs condition at the

beginning of their sessions as quite extreme. He suffered from

nightmares, crippling fear , paranoia, and unwillingness to leave

his home. He had dark circles under his eyes and was obviously

distrau ght. Mrs. Robinson began to work with Petitioner to help

him view his fears and concerns differently. She taught him to

utilize mindfulness medi t ation techniques. He was shown how to

perform activities of daily life without being reminded of the

trauma he had experienced. The number of sessions he spent with

Mrs. Robinson was not sufficient for her to fully address his

needs , however . She was able to diagnose his PTSD and began

treatment for that condition, but their relationship ended

before she could do much for him. By the time her treatment of

Petitioner was concluded, they were working toward PetitionerÓs

acceptance of some inmates in his workplace , as long as they

were not Ðgeneral population inmates.Ñ Ms. Robinson reiterated

that Petitioner sho uld not work within the prison compound,

i.e., within the perimeter, at this time. She believed that

with further assistance , Petitioner may one day be able to do

so.

11 . By letter dated March 13, 2015, Mrs. Robins on notified

the Department that, conce rning Petitioner, ÐIt is recommended

that he does not return to work until further notice due to the

hostility he has faced from the public, his co - workers and other

inmates that he would be responsible for which could trigger

further de - compensation and c ontribute to greater emotional

disturbance. Mr. Quercioli is open to learning positive coping

skills for improved feelings management as well as the

treatments necessary for recovering from PTSD.Ñ For about three

months, the Department attempted to deter mine whether Petitioner

would be able to return to work as a Correctional Officer

Sergeant.

12 . On June 9, 2015, DOC no tified Petitioner that his

FMLA leave had been exhausted and he needed to talk to his

supervisor, Major Patterson, about when he could c ome back to

work. Mr. Patterson contacted Petitioner and basically said he

would need to come back to work at the Lowell Annex, i.e.,

return to his old job.

13 . Meanwhile, t he Department, by letter dated June 16,

2015, asked Mrs. Robinson for her opini on regarding whether

Petitioner could work as a Correctional Officer Sergeant. The

parties to this matter characterize the tone of that letter

quite differently. It is therefore quoted here in its entirety

for the purpose of objectivity:

Dear Mrs. Robins on:

The above employee [Petitioner] is a

Correctional Office Sergeant with the

Florida Department of Corrections at Lowell

Correctional Institution. Your opinion

regarding Mr. QuercioliÓ s medical status

while working in a potentially dangerous

environmen t will assist management in their

decision to retain Mr. Quercioli in his

current position.

In order for us to determine whether or not

Mr. Quercioli can safely perform his duties

as a Correct i onal Officer Sergeant, we

request that you complete this quest ionnaire

as to his ability to perform the duties and

responsibilities of a Correctional Officer

Sergeant to full capacity. Please bear in

mind that Correctional Officer Sergeants

must be able to work split, rotating or

f ixed shifts, weekends, holidays and

overtime possibly without notice as

required. Overtime may include double

shifts and working on off duty days. In

order to assist you in making this

determina tion, I am enclosing a

position description and a list of essential

functions for the Correctio nal Office r

Sergeant position held by Mr. Quercioli.

Also, please bear in mind that

Mr. QuercioliÓs job does require that he be

able to possess a firearm. Furthermore, he

could at any time be placed in a situation

where the use of physical force, includi ng

deadly force may be necessary, to control

violent inmates or prevent imminent threat

to life. We ask that you provide

information regarding how Mr. Quercioli can

treat and control his condition in a

correctional environment. In addition, we

need to kn ow what precautionary measures are

required to ensure his physical condition is

not exacerbated when he is involved in a

highly dangerous situation with inmates or

volatile situations with supervisors and/or

co - workers.

In rendering your opinion, if you d etermine

Mr. Quercioli can perform some duties but

not others, please specify which duties

cannot be performed and the reason why.

Additionally, if there is anything that can

be done to allow him to perform these

duties, please provide this information.

14 . In the letter making this request, the Department

included a job description and a brief questionnaire to be

filled out by the therapist. The questionnaire asked, ÐAfter

review ing the position description of Correctional Officer

Sergeant, can Mr. Que rcioli perform the duties of a Correctional

Officer Sergeant with no restrictions?Ñ The questionnaire went

on to ask for any reasons that the question was answered in the

negative.

15 . Mrs. Robinson replied that Ð No, Ñ Petitioner could not

perform the du ties without restric tions. She went on to say

that, ÐWith 100% supervision of inmates as his primary duties

and his constellation of PTSD symptoms, Mr. Quercioli would be

at risk of decompensation. A job with no inmate contact may be

possible in the futu re. Ñ Mrs. Robinson had previously , in

response to a Medical Certification request from FCHR, listed a

few alternative jobs that Petitioner may be able to do,

including: Ðadministration away from inmates; staff security

away from general population inmate s; key keeper or arsenal

maintenance away from general population inmates.Ñ The evidence

is unclear as to whether the Department was aware of her

suggestions regarding those potential jobs for Petitioner.

16 . At final hearing, Ms. Robison reiterated he r concern

about Petitioner being asked to work in an area where general

population inmates might be present. Her testimony, in part,

was as follows:

Q: Ð[W]ould he have been able to perform

the required functions of his employment

position based on what you read in his

personnel description, the essential

functions of his position, had the

department considered or approved any

request for accommodations Mr. Quercioli

made on the department?

A: The current job description, position

description for a serg eant as a correctional

o fficer, he couldnÓt do that job.

Q: Could he do others?

A: He could do other jobs and we were

working towards limited, you know, his

acceptance and, you know, with the cognitive

behavioral therapy helps you think different

about things and he was ope n ing up to the

idea that yes, there will be inmates around

but theyÓre at a lower level of ris k , and so

he was open to that and for trying to work

in a different position.

* * *

Q: So, earlier or a few moments ago when

you said h e couldnÓt perform under [sic] the

position of a correctional sergeant, thatÓs

not a hundred percent accurate, correct?

A: Right, that was the job description,

that is what he was doing in general

population, supervising inmates. He canÓt

supervise inma tes and that has a hundred

percent by it, supervision of male or female

inmates. That what he -- the part of his

job that he couldnÓt do.

Q: Uh - huh, but with an accommodation, he

could do that?

A: Yes. In another job, other than

supervising his prima ry one hundred percent

duties of supervising male or female

inmates.

Tr ., pp. 48 - 50.

17 . Exactly what duties Petitioner could perform without

difficulty is unclear. It is certain he could not supervise

inmates 100 percent of the time . Whether he could work around

inmates in an environment separated from the prison compound is

not certain. Whether he could respond to an emergency situation

inside the compound is extremely doubtful. 2/

18 . P etitionerÓs attorney submitted a letter to DOC

dated June 26, 2015. The letter request ed accommodations that

might make it possible for Petitioner to perform one or more

jobs at Lowell. The letter suggested part - time or modified

work schedules, job restructuring, and other possibilities.

The letter also stated, in part, ÐInstead of requiring

Sergeant Quercioli to once again re - live the nightmares arising

from his previous duty in the Lowell Annex, the Department could

instead assign him to a less stressful desk job.Ñ DOC responded

that a less stressful desk job is not a feasible accommodation

because a person in that position would not be able to perform

the essential duties of a Correctional Officer Sergeant. The

attorney responded to the Department that his previous request

for an accommodation was not meant to be limited to a Ðdesk jobÑ

only; he meant to include any reasonable accommodations. Though

the two conversants used different terminology, it is obvious

they were both addressing alternative jobs that did not require

Petitioner to work within the prison c ompound , whether that

meant literally sitting at a desk or not . Petitioner intimated,

but did not conclusively prove, that there were certain jobs in

the administration offices, i.e., outside the compound, that he

might be capable of filling. No evidence was presented

concerning the exact nature of those jobs, the responsibilities

attached thereto, or PetitionerÓs qualifications to fill them.

19 . Following the exchange of letters between DOC and

Petitioner (through his attorney), the Department notifi ed

Petitioner via letter date d July 9, 2015, that a Ðpersonnel

actionÑ was being contemplated by DOC which could result in his

dismissal from employment. The basis for a personnel action was

that PetitionerÓs therapist said he was Ðcurrently unable to

per form the duties of . . . a Correctional Officer Sergeant.Ñ

Petitioner was given the opportunity to attend a pre -

determination conference with DOC personnel to provide oral or

written statement s in regards to the personnel action . A

conference was held on July 23, 2015 . The Department was

represented by Warden Gordon and Col onel Edith Pride . A

t eamster representative, Michael Riley, accompanied Petitioner

to the conference . PetitionerÓs attorney, Mr. Bisbee, attended

the conference via telephone. Petit ioner did not bring his

therapist, Ms. Robinson, to the meeting because Ðit never

crossed my mindÑ that she should attend. At th e conference ,

Petitioner reiterated his desire to return to work, but stated

he would rather not interact with inmates , even th ough he

believed he might be able do so . His belief was inconsistent

with his therapistÓ s determination and contrary to his

attorneyÓs representations.

20 . It is unclear whether DOC could have assigned

Petitioner to a position that did not involve some c ontact with

inmates. There were a few jobs mentioned that take place in the

prisonÓs administration building, outside the perimeter. S ome

of the ÐtrusteeÑ type inmates working within the administration

building may have been much less threatening to Peti tioner than

general population inmates. But because every C orrectional

O fficer S ergeant is deemed to be on call to attend to

disturbances within the prison compound, regardless of their job

o r workplace, Petitioner c ould be subject to having close

contact with the general population inmates.

21 . Petitioner identified one specific job in

administration that he thought he might be able to handle

despite some inmate contact. That job, in the area of training,

was filled by another Correctional Officer S erge ant. Petitioner

did not ever formally apply for the job.

22 . Subsequent to the predetermination conference, the

Department issued a letter to Petitioner advising him that ÐYou

will be dismissed from your position as a Correctional Officer

Sergeant effec tive August 4, 2015.Ñ The letter gave Petitioner

the right to grieve the action or to appeal it to the Public

Employees Relations Commission. Petitioner did not avail

himself of either of those options. Instead, he filed a claim

with FCHR, resulting ult imately in the present action.

23 . DOC based its decision to terminate PetitionerÓs

employment on the fact that his own therapist had opined that he

could not perform the essential functions of a Correctional

Officer Sergeant. That is because persons i n that position Î - no

matter w hat duties they were performing - - must be able at a

momentÓs notice to react personally to any emergency situation

that may arise with in the inmate population. A correctional

officer working in the motor pool, for example, may hav e to drop

what h e is doing, pick up a firearm, and rush into the compound

to quell a disturbance. A sergeant who is performing training

for other officers may have to cease her training and

immediately report to duty inside the compound to respond to

inma te unrest. T here is no job under the Correctional Officer

Sergeant umbrella that is immune from contact with inmates at

any given time. There was, in short, no reasonable

accommodation the Department could offer Petitioner.

24 . Two pertinent quotes from the record explain concisely

the basis of the DepartmentÓs position in this case:

As a general rule, we donÓt ÐaccommodateÑ

correctional officers because the

accommodations requested generally include

exemption from the essential functions. We

provide al ternate duty for those officers

who are temporarily unable to perform the

duties of their position because of a work

related injury. However, while on alternate

duty, they do not wear a uniform, nor do

they perform the duties of a [Correction al

Officer].

* * *

QuercioliÓs therapist, Beth Robinson, stated

he was not able to perform the duties of his

position, although a job with no inmate

contact may be possible in the future.

There are no correctional officer positions,

regardless of rank, whose essenti al

functions do not include dealing with

inmates.

Exhibit 4 to Petitioner Exhibit 1, email from Patricia Linn ,

human resources analyst .

25 . It is not unusual for employees to request so - called

Ð accommodations Ñ from DOC relating to their duties as

correc tional officers. Such r equests may include exceptions to

the dress code, a need for ergonomic chairs, leave extensions,

parking space changes, alternate work schedules, and the like .

Each request is reviewed on its own merits and some are granted,

some a re denied.

26 . In fact, Petitioner alluded to the fact that after the

inmate death incident, he had been reassigned to alternate

duties not having to do with inmate monitoring. His duties were

related to assisting applicants for jobs at Lowell to fill ou t

their applications. Petitioner intimated that he did not enjoy

th at position.

27 . Petitioner asserts that DOC made no effort to contact

him to discuss possible accommodations. He did not cite to any

existing policy or rule which would require the Depa rtment to do

so, however. Further, Petitioner admitted that he did not

attempt to initiate such conversations with the Department,

either.

28 . Since losing his job at Lowell, Petitioner has been

unable to obtain gainful employment. Of the scores of int ernet

applications for employment (and one in - person interview), not a

single position came to fruition. As a result, Petitioner

cashed out his state retirement plan, using the money to pay

bills and provide for his daughterÓs needs.

29 . Petitioner prese nted no evidence in this case that

persons with disabilities were treated any differently by the

Department when they requested accommodations.

CONCLUSIONS OF LAW

30 . The Division of Administrative Hearings has

jurisdiction over this matter pursuant to sections 120.569 and

120.57, Florida Statutes. Unless otherwise stated herein, all

references to Florida Statutes will be to the 2016 version.

31 . Petitioner claims that DOC discriminated against him

in violation of the Florida Civil Rights Act of 1992 (ÐFCRAÑ) ,

codified in chapter 760, Florida Statutes . Specifically,

section 760.10 states:

(1) It is an unlawful employment practice

for an employer:

(a) 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.

(b) To limit, segregate, or classify

employees or applicants for employment

in any way which would deprive or tend

to deprive any individual of employment

opportunities, or adversely affect any

individualÓs status as an employee,

because of such indiv i dualÓs race,

color, religion, sex pregnancy,

national origin, ag e, handicap, or

marital status.

32 . The FRCA is patterned after Title VII of the federal

Civil Rights Act of 1964, as amended. As such, Florida courts

have held that federal decisions construing Title VII are

applicable when considering claims under the FCRA. Harper v.

Blockbuster EntmÓt Corp. , 139 F.3d 1385, 1387 (1 1th Cir. 1998);

Valenzuela v. GlobeGround. N. Am., LLC , 18 So. 3d 17, 21 (Fla.

3d DCA 2009).

33 . Petitioner carries the burden of proving by a

p reponderance of the evidence that the Departm ent, an ÐemployerÑ

as defined in the FRCA, discriminated against him. See Fla.

DepÓt of Transp. v. J.W.C. Co. , 396 So. 2d 778 (Fla. 1st DCA

1981) ; § 760.02(7), Fla. Stat .

34 . Claimants may prove discrimination by direct,

statistical, or circumstantial e vidence. Valenzuela , 18 So. 3d

at 22. Direct evidence is evidence that, if believed, would

prove the existence of discriminatory intent behind the

employment decision without any inference or presumption.

Denney v. City of Alban y , 247 F.3d 1172, 1182 (1 1th Cir. 2001) ;

Ho lifield v. Reno , 115 F.3d 1555, 1561 (11th Cir. 1997). Courts

have held that Ð Ò only the most blatant remarks, whose intent

could be nothing other than to discriminate . . .Ó will

constitute direct evidence of discrimination.Ñ Damon v. F leming

Supermarkets of Fla., Inc. , 196 F.3d 1354, 1358 - 59 (11th Cir.

1999)(citations omitted).

35 . In this case, Petitioner did not present any direct or

statistical evidence indicating discrimination by the

Department. That is, he did not provide direct evidence that

the Department refused to retain him in his position as

Correctional Officer Sergeant due to his disability, PTSD.

36 . In order to prove a prima facie case of unlawful

employment discrimination under chapter 760 based on

circumstantial evid ence , Petitioner must establish that: (1) he

is a member of the protected group; (2) he was subject to

adverse employment action; (3) his employer treated similarly

situated employees outside of his protected classification more

favorably; and (4) Petitio ner was qualified to do the job.

See , e.g. , Jiles v. United Parcel Serv., Inc. , 360 F. App Ó x. 61,

64 (11th Cir. 2010); Burke - Fowler v. Orange Cnty. , 447 F.3d

1319, 1323 (11th Cir. 2006); McKenzie v. EAP Mgmt. Corp. , 40 F.

Supp. 2d 1369, 1374 - 75 (S.D. Fla. 1999).

37 . Petitioner established that he is a member of a

protected class by way of his disability, PTSD , about which the

Department was aware . He also proved he was subjected to an

adverse employment action; he was terminated from his position

as Corr ectional Officer Sergeant.

38 . Petitioner must also prove that he was Ðotherwise

qualifiedÑ for his job in that he could perform the essential

functions of that job with or without reasonable accommodation.

Lucas v. W.W. Grainger, Inc. , 257 F.3d 1249 , 12 55 - 56 (11th Cir.

2001); see also Wood v. Green , 323 F . 3d 1309, 1312 (11th Cir.

2003) (a disabled individual is ÐqualifiedÑ under the ADA if he

can perform the Ðessential functionsÑ of his job Ðwith or

without a reasonable accommodation.Ñ) . Furthermore, an

accommodation can qualify as Ðreasonable,Ñ and thus be required

by the ADA, only if it enables the employee to perform the

essential functions of his existing job position. Lucas ,

257 F . 3d at 1255 - 56.

39 . The ultimate test to be satisfied in a handicap

d iscrimination case is whether the employee Ðcan perform the

essential functions of the position in question without

endangering the health and safety of the individual or others.Ñ

29 C.F.R. § 1613.702(f). As stated in Chiari v. City of League

City , 920 F .2d 311, 317 (5th Cir. 1991), Ð[A]n individual is not

qualified for a job if there is a genuine substantial risk that

he or she could be injured or could injure others , and the

employer cannot modify the job to eliminate that risk.Ñ

According to the Depar tment, it is necessary that all

Correctional Officer Sergeants be available for inmate control

in an emergency situation. Thus, the job could not modified to

fit PetitionerÓs disability.

40 . An employer is not required to accommodate an employee

in any m anner in which th e employee desires and is not required

to grant employees preferential treatment. Terrell v. USAir ,

123 F.3d 621, 626 (1 1th Cir. 1998). Thus, the duty to provide a

reasonable accommodation Ðdoes not require th at an employer

create a ligh t - duty position or a new permanent positionÑ for

the employee. Van v. Miami - Dade Cnty. , 509 F. Supp. 2d 1295,

1302 (S.D. Fla. 2007).

41 . In this case, Petitioner did not prove that he could

do the essential functions of his job. Petitioner maintains

tha t, with accommodations, he could work in one or more jobs at

Lowell Correctional Facility. He named three or four categories

of jobs or general positions that he believes he might be able

to handle. When faced with the prospect that inmates may be in

the vicinity, Petitioner is less sure of his ability to perform.

42 . The Department, however, maint ains that any of the

positions c ould potentially require interaction with the

prisoner population within the fenced - in compound. It is clear

Petitioner cann ot be expected to participate in an emergency

that required going into the compound, so he cannot claim to be

Ðqualified to do the jobÑ of Correctional Officer Sergeant. The

basis for termination of PetitionerÓs employment is therefore

reasonable and legi timate. Inasmuch as Petitioner could not

deal with the general population inmates inside the compound, he

could not fulfill the essential functions of his job.

43 . Whether DOC treated other employees who were not

disabled any differently is not clear fro m the evidence.

Petitioner failed to establish whether any Correctional Officer

Sergeant , disabled or not, might be unable to respond to a

prisoner disturbance within the compound . While Peti ti oner

pointe d out some limited instances where DOC granted an employee

some Ðaccommodations,Ñ those were temporary in nature and

related to the employeesÓ current medical conditions .

44 . None of the general ÐaccommodationsÑ mentioned by

PetitionerÓs attorney in his letters to DOC established that

Petitioner could a ctually perform the duties of a Correctional

Officer Sergeant. Rather, the jobs suggested by PetitionerÓs

attorney as possible alternatives were considered and rejected

by DOC as untenable.

45 . Petitioner f ailed to establish that the reasons given

by th e Department for terminating his employment were false,

unworthy of credence, or otherwise pretextual. Accordingly, the

Petition for Relief should be dismissed.

46 . The Department left open the possibility of Petitioner

applying for a position other tha n as a Correctional Officer

Sergeant. Other positions may not require Petitioner to

interact with prisoners. However, DOC was justified in denying

Petitioner the accommodation he desires for a correctional

officer position.

RECOMMENDATION

RECOMMENDED tha t a final order be issued by the Florida

Commission on Human Relations, determining that the Department

of Corrections had legitimate cause for the dismissal of

employment of Petitioner, Patrick Quercioli , and that there is

no evidence of discrimination .

DONE AND ENTERED this 16 th day of May , 2017 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahasse e, 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 16 th day of May, 2017 .

ENDNOTES

1/ There was no evidence presented as to the other correctional

o fficer who was charged along with Petitioner. Whether he

received threats or developed a mental condition from the event

is not known.

2/ At final hearing, Petitioner presented as a quiet, pleasant

individual. He is tall and muscular, but soft spoken. He

seemed somewhat uncomfortable testifying, but no more so than

many witnesses. From his appearance alone, it is difficult to

imagine why Petitioner would have a fear of interacting with

female inmates, but therein lies the gravamen of this matter.

C OPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed)

H. Richard Bisbee, Esquire

Law Office of H. Richard Bisbee, P.A.

Suite 206

1882 Capital Circle Northeas t

Tallahassee, Florida 32308

(eServed)

M. Lilja Dandelake, Esquire

Department of Corrections

The Carlton Building

501 South Calhoun Street

Tallahassee, Florida 32399 - 2500

(eServed)

Cheyanne Costilla, Gen eral Co unsel

Florida Commission on Human Relatio ns

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 Recommend ed Order should be filed with the agency that

will issue the Final Order in this case.