17-003106 David Riggins vs. Hillsborough County Status: Closed Recommended Order on Wednesday, November 29, 2017.

Summary: Petitioner failed to prove that Respondent discriminated against him based on his disability or in retaliation for his actions. Further, Respondent presented a legitimate, non-discriminatory reason for its employment decision.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID RIGGINS,

Petitioner,

vs. Case No. 17 - 3106

HILLSBOROUGH COUNTY,

Respondent.

_______________________________/

RECOMMENDED ORDER

The final hearing in this matter was conducte d before

J. Bruce Culpepper, Administrative Law Judge of the Division of

Administrative Hearings, pursuant to sections 120.569 and

120.57(1), Florida Statutes (2017), 1/ on October 3 , 2017, by video

teleconference sites in Tallahassee and Tampa , Florida.

AP PEARANCES

For Petitioner: David C. Riggins , pro se

1052 Axlewood Circle

Brandon, Florida 33511

For Respondent: Stephen M. Todd, Esquire

Hillsborough County AttorneyÓ s Office

Post Offic e Box 1110

Tampa, Florida 33601

STATEMENT OF THE ISSUE

Whether Petitioner, David Riggins, was subject to an

unlawful employment practice by Respondent, Hillsborough County,

based on his disability (handicap) in violation of the Florida

C ivil Rights Act.

PRELIMINARY STATEMENT

On November 14 , 2016, Petitioner filed a Charge of

Discrimination with the Florida Commission on Human Relations

(the ÐCommissionÑ) alleging that Respondent, Hillsborough County

(the ÐCountyÑ) , violated the Florida Ci vil Rights Act (ÐFCRAÑ) by

discriminating against him based on his disability (handicap) and

in retaliation for his practice of an activity protected by the

FCRA .

On May 12 , 2017, the Commission notified Petitioner that no

reasonable cause existed to belie ve that the County had committed

an unlawful employment practice.

On May 25 , 2017, Petitioner filed a Petition for Relief with

the Commission alleging a discriminatory employment practice.

The Commission transmitted the Petition to the Division of

Adminis trative Hearings (ÐDOAHÑ) to conduct a chapter 120

evidentiary hearing.

The County filed a Motion to Dismiss on June 19, 2017. The

Motion was denied. The County also filed a Request for Judicial

Notice on June 27, 2017. The Request for Judicial Notice w as

granted.

The final hearing was initially scheduled for July 10, 2017.

Following the CountyÓs motion, the final hearing was continued to

October 3, 2017 , and was held on that date. 2/ A t the final

hearing, Petitioner testified on his own behalf. Petitio ner also

called Michael Newsome, Louis Ocampo , and Mark Maples as

witnesses. PetitionerÓs Exhibits 1 through 37 and 40 were

admitted into evidence. The County called George Cassady as a

witness. The CountyÓs Exhibits 2 through 8 were admitted into

evide nce.

A two - volume Transcript of the final hearing was filed on

October 23 , 2017. At the close of the hearing, the parties were

advised of a ten - day timeframe following receipt of the hearing

transcript at DOAH to file post - hearing submittals. Both partie s

timely filed Proposed Recommended Orders which were duly

considered in preparing this Recommended Order.

FINDING S OF FACT

1. Petitioner brings this action alleging that his current

employer, the CountyÓs Public Utilities Department, discriminated

agains t him based on his disability and in retaliation for his

cha llenge to his job reassignment.

2. Petitioner started working for the County in January

2008. Petitioner was hired as an Electrician 3 in the Public

Utilities Department.

3. On January 18, 2011 , Petitioner was promoted to

Electronic Technician III. Generally, PetitionerÓs job was to

inspect, maintain, and repair field instrumentation related to

the CountyÓs water treatment and wastewater facilities. By all

accounts, he was a competent, knowled geable, and reliable

employee without any issues in his performance.

4. In January 2014, PetitionerÓs position was reclassified

from Electronic Technician III to Industrial Instrumentation and

Controls Technician (ÐIIC TechnicianÑ). The job duties for

El ectronic Technician III and IIC Technician were substantially

similar.

5. With the reclassification, PetitionerÓs pay was

increased to $ 28.48 per hour (effective October 1, 2013). On

October 1, 2014, Petitioner received a market equity pay increase

to $2 9.33 per hour.

6. On March 2, 2011, Petitioner suffered a serious work -

related accident. Petitioner was electrocuted while he was

servicing modules at a water treatment plant .

7. The electric shock left Petitioner with two medical

conditions identified as Syncope and Collapse. Syncope causes a

loss of consciousness resulting from insufficient blood flow to

the brain. Collapse causes an individual to fall down or become

unconscious due to sickness or exhaustion.

8. At the final hearing, Petitioner expl ained that the

shock he received caused the electrical impulses in his heart to

stop functioning efficiently. Petitioner relayed that his

medical condition causes him to experience episodes of dizziness

and light - headedness. He also periodically suffers from blurred

vision, tunnel vision, and on several occasions, loss of

consciousness. Petitioner cannot predict when he will experience

the symptoms of Syncope or Collapse. An episode could happen at

any time.

9. In a medical evaluation in July 2012 with his treating

cardiologist, Dr. J. Thompson Sullebarger, Petitioner recounted

that since his electric shock, he Ðhad several spontaneous

episoded [sic] of syncope with similar symptoms and still has

dizziness sometimes when he gets up in the morning.Ñ Pet itioner

also complained of dizziness, paresthesia (a tingling or numbness

on the skin), and vertigo.

10. Dr. Sullebarger opined that Petitioner Ðis unsafe to

work on ladders or in buckets or high places.Ñ Dr. Sullebarger

further instructed Petitioner to Ð[a]void ladder s and working in

high places.Ñ

11. On September 25, 2012, Petitioner returned to

Dr. Sullebarger. Petitioner Ðcontinued to complain of dizziness

and episodes of near syncope.Ñ Petitioner relayed that he Ðis

dizzy almost every day.Ñ

12. On August 14, 2013, Petitioner submitted a ÐRequest for

Reasonable AccommodationÑ to the County based on his medical

conditions. Petitioner relayed that he should avoid working from

heights, elevated platforms, or catwalks, as well as working

around open wet wells. In a follow - up letter to the County

clarifying his request, Petitioner represented that he could

perform his IIC Technician duties if he was allowed to wear a

safety harness and lanyard when working at heights and elevated

platforms .

13. In Ja nuary 2014, at the CountyÓs request, PetitionerÓs

job of Electronic Technician III was analyzed to determine the

essential physical requirements of his job. The study found that

Ðclimbing in [the Electron ic Technician III] position is

required.Ñ However, Ðthe frequency of climbing ladders was

determ ined to be approximately 10%.Ñ

14. On June 20, 2014, the County notified Petitioner that,

in light of his medical limitations, it would no longer allow him

to work as an Electronic Technician III/IIC Technicia n. The

County determined that climbing ladders of various heights was an

essential function of PetitionerÓs duties. Therefore, because

PetitionerÓs medical provider had instructed him to Ðavoid

climbing on ladders,Ñ the County determined that Petitioner could

no longer perform the duties of an IIC Technician .

15. The County offered Petitioner three months to search

for another job with the County. The County informed Petitioner

that if he did not find another job within the allotted time, the

County wou ld proceed with a Due Process Hearing to terminate his

employment.

16. Petitioner valued his IIC Technician job very much and

did not want to lose it. Consequently, over the ensuing three

months, Petitioner neither applied for nor requested another job

w ith the County. Instead, Petitioner elected to challenge the

CountyÓs employment decision at a Due Process Hearing.

17. The Due Process Hearing was held on February 9, 2015.

Petitioner did not prevail. Thereafter, on March 20, 2015,

George Cassady, the Director of the CountyÓs Public Utilities

Department, formally removed Petitioner from his IIC Technician

job .

18. However, rather than terminate Petitioner, Mr. Cassady

offered to place him in the position of Business Analyst II.

Mr. Cassady wrote in a letter to Petitioner, ÐI have decided to

accommodate your restriction(s) by transferring you to the job of

Business Analyst II in the Maintenance Planning Support Team.

Your salary will be $26.00 per hour. Your transfer is effective

Monday, March 23, 2 015.Ñ

19. Petitioner was very disappointed to lose his

IIC Technician job. He was also distressed that his salary was

to be reduced from $29.33 to $26.00 per hour. Therefore, before

he accepted the transfer, in June 2015, Petitioner appealed the

Due Pr ocess Hearing determination to the Hillsborough County

Civil Service Board. Petitioner argued that his reassignment to

Busines s Analyst II was a Ðdemotion.Ñ

20. The Civil Service Board held an evidentiary hearing on

March 16, 2016. The Civil Service Boa rd agreed with Petitioner

that, because his salary was reduced, his placement in the

Business Analyst II position should be considered a demotion.

However, the Civil Service Board concluded that Petitioner failed

to prove that the County Ðacted without ju st causeÑ to demote him

to Business Analyst II.

21. Subsequent to the Civil Service Board decision, on

May 4, 2016, Petitioner and the County entered into a settlement

agreement to amicably resolve the issue of his reassignment.

Through the settlement a greement, the County agreed to increase

PetitionerÓs base hourly rate of pay to $28.00 per hour (up from

$26.75). The County also agreed to pay Petitioner a lump sum of

$5,000. For his part, Petitioner agreed to Ðrelease and/or

withdraw . . . [a]ny and a ll claims, grievances, appeals in any

forum associated with the placement of [Petitioner] in the

Business Analyst II position as of March 23, 2015.Ñ Petitioner

also assented that his placement as a Business Analyst II was a

Ðtransfer of his em ployment and not a demotion.Ñ

22. PetitionerÓs current action focuses, not on his

placement in the Business Analyst II position, but on the

CountyÓs subsequent refusal to hire him back in his previous job

as an IIC Technician.

23. On two separate occasions, Petition er applied with the

County for an IIC Technician position. In February 2015, the

County advertised an IIC Technician opening. The advertisement

did not list any physical requirements for the position. The

County did not interview Petitioner for the job .

24. In July 2016, the County advertised to fill another

IIC Technician position. In this advertisement, the County

expressly listed that the job sp ecific competencies included,

Ð[a] bility to climb ladders.Ñ Petitioner applied again.

25. In September 2016, the County notified Petitioner that

he would not be considered for the IIC Technician position.

Petitioner received an e - mail from the County Hu man Resources

office stating, Ð[w] e were very impressed with your qualities as

an applicant and even thou gh other candidates overall

Qualifications were deemed most compatible with the duties and

responsibilities of this position, we hope your interest in

career opportunities with Hillsborough County will continue.Ñ

Petitioner asserts that, based on the Coun tyÓs hiring matrix, he

was the most qualified candidate given his years of experience

and his possession of the required certified central system

technician license , which no other candidate possessed.

Nevertheless, he was excluded from consideration for the

position.

26. Petitioner asserts that no legitimate reason existed

for the County to reject his application to fill the

IIC Technician position . Petitioner disputes that his current

medical restrictions prevent him from performing the essential

func tions of an IIC Technician.

27. At the final hearing, Petitioner expressed that he is

no longer medically prohibited from climbing ladders. On

September 21, 2015, following another medical examination,

Dr. Sullebarger stated that PetitionerÓs only restr iction was

ÐHarness at Heights (otherwise no restrictions). Ñ PetitionerÓs

understanding is that Dr. Sullebarger will allow him to climb

ladders if he wears a safety harness.

28. On March 3, 2016, Dr. Sullebarger completed a Medical

Certification Form for the Commission. On this form,

Dr. Sullebarger wrote that Petitioner is Ðat risk for dizziness

or fainting.Ñ Dr. Sullebarger opined that PetitionerÓs use of a

safety harness was reasonably necessary in order for him to

perform the required functions of an IIC Technician.

Dr. Sullebarger specified that Ðworking with a harness at heights

will reduce [PetitionerÓs] risk of injury due to falls.Ñ

29. Despite the apparent improvement of his condition, at

the final hearing, Petitioner affirmed that he still suffers from

Syncope and Collapse. Petitioner further acknowledged that his

medical condition could make performing the IIC Technician duties

more risky. For instance, if an IIC Technician needed to climb a

ladder to access a device, and the location did not support the

use of a safety harness, then Petitioner would have to work at

heights without the medically required safety equipment.

30. However, despite his unpredictable episodes of

dizziness and his need to use a safety harness, Petitioner argued

t hat he can competently perform the IIC Technician job.

Initially, Petitioner disputed that climbing ladders is an

essential function of an IIC Technician. Petitioner expressed

that an IIC Technician typically programs and calibrates

electronic equipment on level ground. Petitioner relayed that

for the months prior to losing his IIC Technician position, he

satisfactorily performed his responsibilities without climbing

ladders. At the final hearing, Petit ioner insisted that, at

most, ten percent of the II C Technician job involves climbing

ladders.

31. Furthermore, to the extent that climbing ladders is

required, reasonable accommodations exist to allow him to perform

the essential functions of the job. These accommodations include

hydraulic lifts, as wel l as the use of a safety harness at

heights. Petitioner asserted that neither preventive measure

would change the scope of the IIC Technician responsibilities.

Consequently, his medical con dition poses no safety threat.

32. Petitioner further argued tha t his medical restriction

should not preclude him from the IIC Technician job because every

IIC Technician is required to use a safety harness. 3/ Therefore,

because PetitionerÓs need to use a Ðsafety harness at heightsÑ is

a precaution that every IIC Tech nician must exercise, his medical

condition should not prevent the County from hiring him as an

IIC Technician .

33. Finally, Petitioner disputed the CountyÓs position that

situations exist in which IIC Technicians are not able to use a

safety harness to perform their duties. In particular,

Petitioner argued that it is standard industry practice for

technicians to wear a harness with two lanyards when

transitioning at heights, such as from a ladder to a platform.

Further, no County employee can perform i nspections or repair

work six feet or more above any work surface without a safety

harness or some other approved means o f fall protection, such as

guard rails. Therefore, PetitionerÓs medical restriction would

not affect his job performance in any way.

34 . Petitioner pursues four results with his action.

First, Petitioner seeks an immediate return to his IIC Technician

position. Next, Petitioner wants his salary restored to its

previous rate ($29.33 per hour) along with any lost merit

increases. Third, Petitioner desires to have his seniority

status restored. Prior to his demotion, he was the most senior

member of his team. He has no seniority as a Business

Analyst II. Finally, Petitioner seeks the ability to renew his

professional certifications. He alleged that the Business

Analyst II job severely hinders his professional prospects by

making it more difficult for him to renew and maintain his

professional certifications.

35. Mr. Cassady testified at the final hearing regarding

the CountyÓs refusa l to rehire Petitioner as an IIC Technician.

Mr. Cassady, as the Director of the Public Utilities Department,

oversees the division in which Petitioner works. Mr. Cassady

made the ultimate decision regarding PetitionerÓs current

employment status .

36. M r. Cassady described the CountyÓs public works

facilities as an Ðindustrial work environment.Ñ The County

oversees and monitors 17 separate water treatment and water

reclamation plants. Mr. Cassady commented that some chemical

storage tanks Ðexceed 40 fe et in height and have limited

guardrails around them.Ñ

37. Mr. Cassady recounted that he reviewed PetitionerÓs

situation a t great length. Mr. Cassady imparted that he is

constantly aware of, and watching out for, the safety of his

employees. Mr. Cassady relayed that an IIC Technician is

responsible for working around high voltages and in close

proximity to large machinery that includes rotating pieces of

equipment motors and pumps .

38. In considering PetitionerÓs medical restrictions,

Mr. Cassady deter mined that climbing ladders and working at

heights to access or inspect electronic controls and components

is an essential function of the IIC Technician job. Mr. Cassady

explained that, although the frequency of the use of ladders

might vary amongst assi gnments, all IIC Technicians must be able

to climb and use ladders.

39. Mr. Cassady described several routine tasks in which an

IIC Technician operates in or on elevated equipment that do not

support the use of a safety harness. These situations include

climbing ladders to service electronic instruments located on top

of raised pipes. In addition, IIC Technicians regularly ascend

ladders to small pla tforms located on top of the 40 - foot - tall

treatment tanks to calibrate level control devices within the

ta nk.

40. Consequently, Mr. Cassady concluded that the

responsibilities of the IIC Technician position would directly

expose Petitioner to the inherent dangers associated with working

at heights. Mr. Cassady did not dispute that Petitioner

possesses the sk ills and qualifications to perform the job of

ICC Technician (not consider ing his disability). However, he was

(and is) very concerned about the possibility that Petitioner

could be injured if he were to experience a sudden or unexpected

dizzy or faintin g spell while climbing a ladder or accessing a

high platform. Mr. Cassady adamantly believes that PetitionerÓs

unfortunate medical condition creates unacceptable safety hazard

for both Petitioner and the County should he return t o the

IIC Technician posi tion.

41. Mr. Cassady admitted that the County purposely did not

interview Petitioner for the IIC Technician job openings.

However, he denied that the County refused to consider Petitioner

just because he has a disability. Instead, the CountyÓs

overridi ng concern was that Petitioner could not work safely at

heights due to his medical condition , which causes him to

experience unpredictable dizzi ness or loss of consciousness.

42. On the other hand, while Petitioner was unable to

perform the job of IIC Tec hnician, Mr. Cassady believed that

PetitionerÓs analytical and practical skills remain an asset to

the County. Therefore, Mr. Cassady offered Petitioner the

Business Analyst II position. A Business Analyst focuses on data

collecting and analyzing as oppo sed to operations. Not only does

the Business Analyst II position provide Petitioner the

opportunity to use his knowledge and training in the same field

as an IIC Technician, but Petitioner can perform the job on the

ground and is not required to climb la dders or work at heights.

43. The Business Analyst II position includes a higher pay

scale than the IIC Technician. However, Mr. Cassady set

PetitionerÓs initial salary at a lower rate ($26 per hour) to

maintain equity with the four other County employee s who had been

assigned to the same position for a longer period of time .

44. Mr. Cassady denied that the County refused to hire

Petitioner as an IIC Technician job in retaliation for his

request for a Civil Service Board review of his placement in a

Busi ness Analyst II position. On the contrary, Mr. Cassady

believed that Petitioner was a valuable employee with the Public

Utilities Department. Mr. Cassady offered Petitioner the

Business Analyst II job specifically as a way for the County to

retain his se rvices.

45. Mr. Cassady explained that he has always been

supportive of PetitionerÓs career development with the Public

Utilities Department. In fact, he rejected Human ResourcesÓ

initial recommendation to terminate PetitionerÓs employment when

the Count y determined that Petitioner was unable to perform the

essential functions of his IIC Technician job. Mr. Cassady has

also encouraged Petitioner to improve his marketable skills by

furthering his education, courtesy of a County scholarship

program.

46. F inally, Mr. Cassady testified that implementing the

accommodations that Petitioner suggests is unworkable.

Mr. Cassady contended that a number of the locations in which an

IIC Technician must work do not support the use of a safety

harness and lanyard. For example, the treatment tanks are not

equipped to enable the use of a safety h arness while climbing up

the 40 - foot - tall ladder or when transitioning from the ladder to

the platform. Mr. Cassady asserted that any such modifications

would be prohibitivel y expensive or impractical to install.

47. Several County employees who are currently employed as

IIC Technicians testified at the final hearing regarding their

job requirements. These witnesses discussed the role of climbing

ladders and working in high places in performing their duties.

48. Mark Maples, an IIC Technician with the County,

testified that he regularly climbs ladders while performing his

job. Mr. Maples stated that he must use a ladder during several

of his routine work responsibilities, s uch as checking a flow

meter device at a water treatment plant. Mr. Maples estimated

that he uses a ladder approxim ately 40 percent of the time he

works.

49. Mr. Maples also remarked that he routinely climbs

ladders in work settings that do not offer a m echanism to tie off

a safety harness. Consequently, a safety harness would not

provide an IIC Technician complete protection while working at

heights.

50. Mr. Maples also expressed his discomfort with the idea

of working with an IIC Technician who was no t medically cleared

to work on elevated equipment. As an example, Mr. Maples

described how IIC Technicians are responsible for inspecting and

calibrating the level control devices situated on top of each

large treatment tank. Each tank is 40 feet high. To accomplish

such an inspection, the IIC Technician must scale a ladder

attached to the side of the tank. The tank provides no apparatus

to which a safety harness may be fastened. Based on PetitionerÓs

medical condition , which could cause sudden and una nticipated

dizziness , Mr. Maples was concerned whether Petitioner could

safely accomplish the required inspection. Mr. Maples would be

worried that Petitioner might faint and fall down the ladder or

tumble off the top of the tank. Mr. Maples declared tha t a Ðone -

time fall is one time too many.Ñ

51. Michael Newsome, another IIC Technician, testified that

he regularly uses a ladder to perform his job. Mr. Newsome

explained that his job requires him to work in elevated places,

and he has to climb a ladder to get there. Mr. Newsome estimated

tha t he needs a ladder less than five percent of the time.

52. Louis Ocampo has worked as an IIC Technician for the

County for approximately two years. Mr. Ocampo testified that he

regularly uses a ladder in his job. He works at heights and

elevated areas , such as treatment tanks and on video cameras.

Mr. Ocampo estimated that he needs a ladder approximately

ten percent of the time.

53. Based on the competent substantial evidence in the

record, the preponderance o f the evidence does not establish that

the County discriminated against Petitioner based on his

disability (handicap). Accordingly, Petitioner failed to meet

his burden of proving that the County discriminated against him

in violation of the FCRA.

CONCLUS IONS OF LAW

54 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

cause pursuant to sections 120.569, 120.57(1), and 760.11(7),

Florida Statutes. See also Fla. Admin. Code R. 60Y - 4.016.

55 . Petition er brings this action alleging that the County

discriminated against him by not hiring him back as an

IIC Technician. PetitionerÓs cause of action against the County

is based on: 1) discrimination based on a disability (handicap)

that, in actuality, doe s not prevent him from performing the

essential functions of an IIC Technician, and 2) retaliation

based on his decision to challenge his ÐdemotionÑ to Business

Analyst II with the CountyÓs Civil Service Board.

56 . The FCRA protects individuals from disab ility

discrimination in the workplace. See §§ 760.10 and 760.11,

Fla. Stat (2016). Section 760.10 states, in pertinent part:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire any individual, or o therwise 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.

57 . The F CRA also protects employees from certain

retaliatory acts. The FCRAÓs anti - retaliation provision is found

in section 760.10(7) and states, in pertinent part:

(7) It is an unlawful employment practice

for an employer . . . to discriminate against

any pers on because that person has opposed

any practice which is an unlawful employment

practice under this section, or because that

person has made a charge, testified,

assisted, or participated in any manner in an

investigation, proceeding, or hearing under

this section.

58 . Section 760.11(7) permits a party for whom the

Commission determines that there is not reasonable cause to

believe that a violation of the FCRA has occurred to request an

administrative hearing before DOAH. Following an administrative

hear ing, if the Administrative Law Judge (ÐALJÑ) finds that a

discriminatory act has occurred, the ALJ Ðshall issue an

appropriate recommended order to the commission prohibiting the

practice and recommending affirmative relief from the effects of

the practice , including back pay.Ñ £ 760.11(7), Fla. Stat.

59 . The burden of proof in administrative proceedings,

absent a statutory directive to the contrary, is on the party

asserting the affirmative of the issue. DepÓt of Transp. v.

J.W.C. Co. , 396 So. 2d 778 (F la. 1st DCA 1981); see also DepÓt of

Banking & Fin., Div. of Sec. & Investor Prot. v. Osborne Stern &

Co. , 670 So. 2d 932, 935 (Fla. 1996)(ÐThe general rule is that a

party asserting the affirmative of an issue has the burden of

presenting evidence as to t hat issue.Ñ). The preponderance of the

evidence standard is applicable to this matter. See

§ 120.57(1)(j), Fla. Stat.

6 0. The FCRA is patterned after Title VII of the Civil

Rights Act of 1964, as amended. Accordingly, Florida courts hold

that federal decisions construing Title VII are applicable when

considering claims under the FCRA. Harper v. Blockbuster EntmÓ t

Corp. , 139 F.3d 1385, 1387 (11th Cir. 1998); Valenzuela v.

GlobeGround N. Am., LLC , 18 So. 3d 17, 21 (Fla. 3d DCA 2009); and

Fla. State Univ . v. Sondel , 685 So. 2d 923, 925 n.1 (Fla. 1st DCA

1996).

6 1. Specifically regarding disability discrimination, the

FCRA is construed in conformity with the Americans with

Disabilities Act (ÐADAÑ) found in 42 U.S.C. £ 12101 et seq.

Cordoba v. DillardÓ s, Inc. , 419 F.3d 1169, 1175 (11th Cir. 2005)

(citing Wimberly v. Secs. Tech. Grp., Inc. , 866 So. 2d 146, 147

(Fla. 4th DCA 2004)) (ÐBecause Florida courts construe the FCRA in

conformity with the ADA, a disability discrimination cause of

action is analyzed un der the ADA.Ñ). See also Holly v. Clairson

Indus., L.L.C. , 492 F.3d 1247, 1255 (11th Cir. 2007)(FCRA claims

are analyzed under the same standards as the ADA.).

6 2 . Employees may prove discrimination by direct,

statistical, or circumstantial evidence. Va lenzuela , 18 So. 3d

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

prove the existence of discriminatory intent without resorting to

inference or presumption. Denney v. City of Albany , 247 F.3d

1172, 1182 (11th Cir. 2001); Holifield v. Reno , 115 F.3d 1555,

1561 (11th Cir. 1997) .

63 . Petitioner did not present direct evidence of

disability discrimination by the County. Similarly, the record

in this proceeding contains no statistical evidence of

discrimination related to the CountyÓs decision not to hire

Petitioner in an IIC Technician position.

6 4. In the absence of direct or statistical evidence of

discriminatory intent, Petitioner must rely on circumstantial

evidence of disability discrimination to prove his case. For

discrimination claim s involving circumstantial evidence, Florida

courts follow the three - part, burden - shifting framework set forth

in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S. Ct. 1817,

36 L. Ed. 2d 668 (1973), and its progeny. See also Valenzuela , 18

So. 3d at 2 1 - 22; and St. Louis v. Fla. Int'l Univ. , 60 So. 3d 455,

458 (Fla. 3d DCA 2011).

65 . Under the McDonnell Douglas framework, Petitioner bears

the initial burden of establishing, by a preponderance of the

evidence, a prima facie case of discrimination. McDo nnell

Douglas , 411 U.S. at 802 - 04; see also Burke - Fowler v. Orange

Cnty. , 447 F.3d 1319, 1323 (11th Cir. 2006). Demonstrating a

prima facie case is not Ðonerous,Ñ but rather only requires

Petitioner Ðto establish facts adequate to permit an inference of

d iscrimination.Ñ Holifield , 115 F.3d at 1562.

66 . If Petitioner establishes a prima facie case of

disability discrimination, he creates a presumption of

discrimination. At that point, the burden shifts to the employer

to articulate a legitimate, non - disc riminatory reason for taking

the adverse employment action. Valenzuela , 18 So. 3d at 22. The

reason for the employerÓs decision should be clear, reasonably

specific, and worthy of credence. DepÓt of Corr. v. Chandler ,

582 So. 2d 1183, 1186 (Fla. 1st DCA 1991). The employer has the

burden of production, not persuasion, to demonstrate to the

finder of fact that the decision was non - discriminatory. See

Wilson v. B/E Aerospace, Inc. , 376 F.3d 1079, 1087 (11th Cir.

2004). This burden of production is Ðexce edingly light.Ñ

Holifield , 115 F.3d at 1564. The employer only needs to produce

evidence of a reason for its decision. It is not required to

persuade the trier of fact that its decision was actually

motivated by the reason given. See St. MaryÓs Honor C tr. v.

Hicks , 509 U.S. 502 (1993).

67 . If the employer meets its burden, the presumption of

discrimination disappears. The burden then shifts back to the

employee to prove that the employerÓs proffered reason was not

the true reason but merely a Ðpretext Ñ for discrimination. See

Combs v. Plantation Patterns , 106 F.3d 1519, 1538 (11th Cir.

1997); Valenzuela , 18 So. 3d at 25. In order to satisfy this

final step of the process, the employee must Ðshow[] directly

that a discriminatory reason more likely tha n not motivated the

decision, or indirectly by showing that the proffered reason for

the employment decision is not worthy of belief.Ñ Chandler , 582

So. 2d at 1186 (citing Tex. DepÓt of Cmty. Aff. v. Burdine , 450

U.S. 248, 252 - 256 (1981). The proffered e xplanation is Ðnot

worthy of beliefÑ if the employee demonstrates Ðsuch weaknesses,

implausibilities, inconsistencies, incoherencies, or

contradictions in the employerÓs proffered legitimate reasons for

its action that a reasonable factfinder could find th em unworthy

of credence.Ñ Combs , 106 F.3d at 1538; see also Reeves v.

Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 143, 120 S. Ct.

2097, 147 L. Ed. 2d 105 (2000). Petitioner Ðmust prove that the

reasons articulated were false and that the discriminatio n was

the real reasonÑ for the defendantÓs actions. City of Miami v.

Hervis , 65 So. 3d 1110, 1117 (Fla. 3d DCA 2011)(citing St. MaryÓs

Honor Ctr . , 509 U.S. at 515 (Ð[A] reason cannot be proved to be

Òa pretext for discrimination Ó unless it is shown both t hat the

reason was false, and that discrimination was the real

reason.Ñ)).

68 . Despite the shifting burdens of proof, Ðthe ultimate

burden of persuading the trier of fact that the defendant

intentionally discriminated against the plaintiff remains at all

times with the plaintiff.Ñ Burdine , 450 U.S. at 253, 101 S. Ct.

at 1089, 67 L. Ed. 2d 207; Valenzuela , 18 So. 3d at 22. In other

words, r egardless of whether a petitioner presents direct

evidence or relies on the McDonnell Douglas presumption to

establish a discrimination claim, the petitioner "always has the

burden of demonstrating that, more probably than not, the

employer took an adverse employment action against him on the

basis of a protected personal characteristic.Ñ Leme v. S.

Baptist Hosp. of Fla. , Inc. , 248 F. Supp. 3d 1319 (M.D. Fla.

2017) ( citing Wright v. Southland Corp. , 187 F.3d 1287, 1292 (11th

Cir. 1999) ).

69 . To state a prima facie claim for disability

discrimination, Petitioner must show that 1) he is disabled;

2) he was a Ðqualified ind ividualÑ; and 3) he was discriminated

against because of his disability. See Lucas v. W.W. Grainger,

Inc. , 257 F.3d 1249, 1255 (11th Cir. 2001); Frazier - White v. Gee ,

818 F.3d 1249, 1255 (11th Cir. 2016); and 42 U.S .C. § 12112(a).

Petitioner is Ð qualifie d Ñ if he, with or without reasonable

accommodation, can perform the essential functions and job

requirements of the position he desires. Earl v. Meryns, Inc. ,

207 F.3d 1361, 1365 (11th Cir. 2000) . If Petitioner is unable to

perform an essential function of the job, even with an

accommodation, th en, by definition, he is not a Ð qualified

individual Ñ and, therefore, not covered under the ADA. Davis v.

Fla. Power & Light Co. , 205 F.3d 1301, 1305 (11th Cir. 2000).

70 . Turning to the facts found in this matte r, Petitioner

failed to prove a prima facie case of disability discrimination.

Petitioner did not demonstrate that he is a Ðqualified

individual.Ñ Specifically, Petitioner did not establish that he

can perform an essential function of the IIC Technician position

with or without a reasonable accommodation. 4/

71 . The essential functions of a job Ðare the fundamental

job duties of a position that an individual with a disability is

actually required to perform.Ñ Holly , 492 F.3d at 1257. Whether

a function is ÐessentialÑ is determined on a case - by - case basis.

Id. In determining what functions are deemed essential, the ADA

provides that consideration shall be given to the employerÓ s

judgment as to what functions of a job are essential and the

employerÓ s wri tten description for that job. Davis , 205 F.3d at

1305.

72 . Using this standard, the County persuasively argued

that an essential function of the IIC Technician position

requires Petitioner to climb ladders to work at heights.

Mr. Cassady persuasively attested that the CountyÓs

IIC Technicians must use ladders to perform the fundamental

requirements of the job. Mr. CassadyÓs assertion is supported by

testimony from three County IIC Technicians, as well as the

CountyÓs analysis in January 2014 of the p hysical requirements of

PetitionerÓs job. In addition, Petitioner himself conceded that

an IIC Technician will use a ladder for approximately ten percent

of the job.

7 3 . Petitioner does not dispute that he suffers from

recurrent dizziness and light - heade dness and still faces the

possibility of losing consciousness at any time. Petitioner

acknowledges that he cannot predict when or under what

circumstances he will experience these afflictions.

Consequently, Petitioner cannot refute the possibility that h e

might experience dizziness while he is working on elevated

equipment or machinery. Therefore, Petitioner has not shown that

he can safely perform the required responsibilities of an

IIC Technician without exposing himself, or his co - workers, to

the ris k of injury. 5/ Accordingly, because Petitioner cannot

perform an essential function of an IIC Technician by climbing

ladders or working at heights, without limitations, he is not a

Ðqualified individualÑ in order to establish a prima facie claim

for disab ility discrimination under t he FCRA.

74 . Despite his medical condition, Petitioner asserts that

he is a Ðqualified individualÑ because he can perform the

essential functions of an IIC Technician with a reasonable

accommodation. To prove unlawful discrimi nation in a failure to

accommodate claim, Petitioner must show that he was discriminated

against as a result of the CountyÓs failure to provide a

reasonable accommodation. An employerÓ s failure to make

reasonable accommodation for an otherwise qualified d isabled

employee constitutes discrimination. See DÓ Angelo v. Conagra

Foods , 422 F.3d 1220, 1225 - 26 (11th Cir. 2005); and 42 U.S.C.

§ 12112(b); see also Lucas , 257 F.3d at 1255 (Ð An employer

unlawfully discriminates against a qualified individual with a

d isability when the employer fails to provide Ò reasonable

accommodations Ó for the disability -- unless doing so would impose

undue hardship on the employer.Ñ ).

75 . Petitioner bears the burden both to identify an

accommodation and show that it is Ðreasonable. Ñ Id. At 1255.

ÐThe duty to provide a reasonable accommodation is not triggered

unless a specific demand for an accommodation has been made.Ñ

Gaston v. Bellingrath Gardens & Home, Inc. , 167 F.3d 1361, 1363

(11th Cir. 1999). ÐWhether an accommodation is reasonable

depends on specific circumstances.Ñ Terrell v. USAir , 132 F.3d

621, 626 (11th Cir. 1998).

76 . Moreover, a qualified individual is not entitled to the

accommodation of his choice, but rather only to a ÐreasonableÑ

accommodation. Stewart v. Ha ppy Herman's Cheshire Bridge, Inc. ,

117 F.3d 1278, 1286 (11th Cir. 1997). An accommodation is

ÐreasonableÑ and, therefore, required under the ADA, only if it

enables the employee to perform the essential functions of the

job. LaChance v. DuffyÓ s Draft Ho use , 146 F.3d 832, 835 (11th

Cir. 1998). An employer need not accommodate an employee in any

manner the employee desires, nor reallocate job duties to change

the essential functions of the job. Mervyns, Inc. , 207 F.3d at

1367. The intent of the ADA is t hat ÐÒan employer needs only to

provide meaningful equal employment opportunitiesÓ . . . Ò[t]he

ADA was never intended to turn nondiscrimination into

discriminationÓ against the non - disabled.Ñ St. JosephÓ s Hosp. ,

842 F.3d at 1346 (quoting Terrell , 132 F.3 d at 627).

77 . Furthermore, an employer is not required to provide an

employee with Ðthe maximum accommodation or every conceivable

accommodation possible.Ñ Stewart , 117 F.3d at 1285. Neither is

an employer required Ðto transform the position into anoth er one

by eliminating functions that are essential to the nature of the

job as it exists.Ñ Lucas , 257 F.3d at 1260.

78 . The accommodation Petitioner identifies is the use a

safety harness while working at heights. However, the evidence

in the record doe s not support PetitionerÓs requested

accommodation as ÐreasonableÑ under the specific circumstances

and job responsi bilities of an IIC Technician.

79 . The evidence in the record clearly establishes that

IIC Technicians must access elevated equipment and machinery to

perform their duties. While there is some divergence regarding

the exact percentage of the job that requires the climbing of

ladders, every witness, including Petitioner, testified that an

IIC Technician must use a ladder to reach such equipm ent.

Petitioner insisted that a safety harness would enable him to

perform all IIC Technician responsibilities. However, the

testimony from Mr. Cassady, as well as the other County

employees, persuasively represented that IIC Technicians will

work in cert ain elevated locations that do not support the use of

a safety harness in all circumstances. 6/

80 . Therefore, while Petitioner is physically capable of

climbing ladders, his medical condition prevents him from doing

so safely in all work environments. C onsequently, Petitioner did

not establish that he could perform the essential functions of

the IIC Technician job with a ÐreasonableÑ accommodation.

Therefore, Petitioner failed to meet his burden of proving that

he is a Ðqualified individualÑ who can per form the essential

functions of his job, with or without a reasonable accommodation.

Accordingly, Petitioner failed to establish a prima facie case of

discrimination based on his disability. 7/

8 1. Furthermore, Petitioner did not meet his burden of

provin g that the County retaliated against him based on his

decision to appeal his ÐdemotionÑ to the Civil Service Board.

8 2. The ADA (and the FCRA) provides that no person shall

discriminate against any individual because such individual has

opposed an act o r practice made unlawful by the ADA. See

Stewart , 117 F.3d at 1287; see also 42 U.S.C. § 12203(a) and

§ 760.10(7) Fla. Stat. To establish a prima facie case of

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

statutorily protected activ ity; (2) he suffered a materially

adverse employment action; and (3) there was a causal connection

between the protected activity and the adverse employment action.

Kidd v. Mando Am. Corp ., 731 F.3d 1196, 1211 (11th Cir. 2013);

Webb - Edwards v. Orange Cnty . SheriffÓs Off. , 525 F.3d 1013, 1028

(11th Cir. 2008).

83 . Retaliation claims under the FCRA use the same

evidentiary framework as Title VII retaliation claims. Stewart ,

117 F.3d at 1287; Harper , 139 F.3d at 1389 . As such, Petitioner

bears the ultima te burden of persuading the trier of fact that

the County intentionally discriminated against him. See Burdine ,

450 U.S. at 253, 101 S. Ct. at 1089, 67 L. Ed. 2d 207.

84 . Petitioner did not prove that his appeal to the Civil

Service Board in June 2015 ca used the County to decide not to

rehire him as an IIC Technician in July 2016. In June 2014, a

year before Petitioner appealed to the Civil Service Board,

Mr. Cassady determined that Petitioner could not safely work as

an IIC Technician due to his medica l condition (a legitimate non -

discriminatory reason). The County has unwaveringly maintained

this position both prior to and after PetitionerÓs application

for the IIC Technician job. Petitioner has not demonstrated that

the CountyÓs stated reason for re fusing to rehire him as an

IIC Technician was based on a retaliatory animus. Accordingly,

Petitioner did not meet his ultimate burden of proving that the

CountyÓs decision not to consider Petitioner for an

IIC Technician position was motivat ed by unlawf ul discrimination.

8 5. At the final hearing, Petitioner expressed his extreme

frustration with the CountyÓs refusal to consider him for an

IIC Technician position (despite his current medical

restriction). It should be noted, however, that in a proceedi ng

under the FCRA, the court is Ðnot in the business of adjudging

whether employment decisions are prudent or fair. Instead, [the

courtÓs] sole concern is whether unlawful discriminatory animus

motivates a challenged employment decision.Ñ Damon v. Flemin g

Supermarkets of Fla., Inc. , 196 F.3d 1354, 1361 (11th Cir. 1999).

Not everything that makes an employee unhappy is an actionable

adverse action. Davis v. Town of Lake Park , 245 F.3d 1232, 1238

(11th Cir. 2001). For example, an employer may fire an emp loyee

Ðfor a good reason, a bad reason, a reason based on erroneous

facts, or for no reason at all, as long as its action is not for

a discriminatory reason.Ñ Nix v. WLCY Radio/Rahall CommcÓ ns , 738

F.2d 1181, 1187 (11th Cir. 1984). An employee cannot suc ceed by

simply quarreling with the wisdom of the employerÓs reasons.

Chapman v. AI Transp. , 229 F.3d 1012 (l1th Cir. 2000); see also

Alexander v. Fulton Cnty., Ga . , 207 F.3d 1303, 1341 (11th Cir.

2000)(Ð[I]t is not the courtÓs role to second - guess the wis dom of

an employerÓs decisions as long as the decisions are not racially

motivated.Ñ).

86 . In sum, the evidence on record does not support

PetitionerÓs claim that the County discriminated against him

based on his disability. Petitioner did not show that the

CountyÓs stated reason for not hiring him as an IIC Technician

(that Petitioner could not safely perform the job) was false and

that d iscrimination was the real reason for the CountyÓs

decision. In addition, Petitioner did not establish that he was

a Ðqualified individualÑ who could perform the essential

functions of the IIC Technician position with a ÐreasonableÑ

accommodation (a safety harness). (The evidence in the record

persuasively establishes that IIC Technicians must climb ladders

and work at heights in locations that do not support the use of a

safety harness.) Finally, Petitioner did not prove that the

CountyÓs refusal to consider him for the open IIC Technician

position in 2016 was in retaliation for his appeal to the Civil

Service Board. Accordingly, PetitionerÓs Petition for Relief

must be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations issue a final order : finding that Petitioner, David

Riggins, did not prove that Respondent, Hillsborough County,

committed an unlawful employment practice against him ; and

dismiss ing h is Petition for Relief from an u nlawful e mployment

p ractice.

DONE AND ENTERED this 29 th day of November, 2017, in

Tall ahassee, Leon County, Florida.

S

J. BRUCE CULPEPPER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29 th day of November , 2017 .

ENDNOTE S

1/ All statutory references are to Florida Statutes (2017),

unless otherwise noted.

2/ The final hearing was init ially scheduled for July 10, 2017.

The final hearing was continued based on good cause as described

in the Order Canceling Hearing issued on July 10, 2017. This

matter was transferred to the undersigned on September 27, 2017.

3/ See Hillsborough County Public Utility Safety Manual, dated

M arch 7, 2012, which states that :

4. PERSONAL LIFE SAVING EQUIPMENT

g. Fall Protection Equipment

i. Safety Harnesses, Lifelines & Lanyards

1. Safety harnesses, lanyards, lifelines or

guardrails are required when employees are doing

construction work, repairing, or painting 6 feet

or more above any work surface.

2. Body harnesses and lanyards shall be worn

when working Ariel platforms, bucket trucks, or

forklift platforms.

3. Lifelines shall be secured above t he point of

operation to an anchorage or structural member

capable of supporting a dead weight of 5,400

pounds.

4. If a safety harness/lanyard or lifeline is

subject to in - service loading, it shall be

replaced and not used.

5. Body harnesses shall be u sed for fall

arresting and safety belts shall be used as

positioning devices.

6. Safety belts or equipment shall be used by

employees placing or tying reinforcement steel

more than 6 feet above any adjacent working

surface.

7. Only locking - type snap ho oks shall be used

for harnesses, lifelines and lanyards.

4/ The County does not dispute that Petitioner currently suffers

from a disability.

5/ Further, u nder the ADA, an individual who presents a Ðdirect

threatÑ which reasonable accommodations cannot r esolve, does not

qualify as a Ðqualified individualÑ able to perform the essential

functions of the job. See 42 U.S.C. § 12111(3)( Ð The term Òdirect

threatÓ means a significant risk to the health or safety of

others that cannot be eliminated by reasonable accommodation.Ñ

See also Waddell v. Valley Forge Dental Assocs., Inc. , 276 F .3d

1275, 1280 (11th Cir. 2001) (finding that a dental hygienist who

was HIV - positive was not a Ðqualified individualÑ under the ADA

and commenting that the plaintiff Ðcarries t he burden of

establishing that Ò he was not a direct threat or that reasonable

accommodations were available.ÓÑ ); LaChance v. DuffyÓs Draft

House , 146 F.3d 832, 834 - 35 (11th Cir. 1998) (affirming that an

emp loyee who had seizures at work Ð was not a qualified in dividual

because he could not perform the essential functions of the job

without threat of harm to himself or others. Ñ ); Moses v. Am.

Nonwovens, Inc. , 97 F.3d 446, 447 (11th Cir. 1996)(Ð The employee

retains at all times the burden of persuading the jury ei ther

that he was not a direct threat or that reasonable accommodations

were available.Ñ ); and Leme , 248 F. Supp. 3d at 1319 n.34 (ruling

that the plaintiff , who was removed from a position as an

anesthesia technician , bore the bur den of Ðproving that [he] is a

Ò qualified individual with a disability Ó Ï that is, a person Ò who,

with or without reasonable accommodation, can per form the

essential functionsÓ of [his] jobÑ with out jeopardizing patient

safety ) .

6/ Furthermore, PetitionerÓs use of a safety harness will only

reduce the risk of injury, not eliminate it. Petitioner admits

that he remains susceptible to dizziness or fainting Ðat

unpredictable times.Ñ

7/ Even if Petitioner did establish a prima facie case of

disability discrimination, the County artic ulated a legitimate,

non - discriminatory reason for not rehiring Petitioner in the

position of IIC Technician. Mr. Cassady testified convincingly

that the reason the County did not consider Petitioner for the

IIC Technician opening was not the fact that h e is disabled, but

because PetitionerÓs medical restrictions impair his ability to

safely perform the IIC Technician job duties.

Further, Petitioner did not prove that the CountyÓs proffered

reason for its decision not to hire Petitioner as an

IIC Techni cian was a ÐpretextÑ for discrimination. In other

words, Petitioner did not show that discrimination more likely

than not motivated the CountyÓs employment decision. Neither did

Petitioner demonstrate that Mr. CassadyÓs explanation was Ðnot

worthy of be lief.Ñ

In addition, t he undersigned notes that, even assuming,

arguendo, that Petitioner met his burden of proving that a

ÐreasonableÑ accommodation exists that allows him to perform the

IIC Technician job, the County may present evidence that the

reque sted accommodation imposes an Ðundue hardship.Ñ The ADA

requires an employer to make a reasonable accommodation to an

otherwise qualified employee with a disability, Ðunless doing so

would impose undue hardship on the employer.Ñ Lucas , 257 F.3d at

1255; Frazier - White , 818 F.3d at 1255. Undue hardship is a

complete defense to ADA liability. U nited States EEOC v.

St. JosephÓ s Hosp., Inc. , 842 F.3d 1333, 1349 (11th Cir. 2016).

The County makes a cogent point that modifying the CountyÓs

pub l ic utilityÓs work environment to support the use of a safety

harness in every location where an IIC Technician must climb a

ladder would impose an Ðundue hardship.Ñ As Mr. Cassady

expressed, such remodeling would likely prove extremely expensive

or impractical to eff ectuate. (The undersigned notes that the

County Ðhas no affirmative duty to show undue hardshipÑ unless

and until the employee identifies an accommodation and

demonstrates that it is reasonable. Mervyns, Inc. , 207 F.3d at

1367. )

Accordingly, Petitioner failed to carry his ultimate burden

of proving, by a preponderance of the evidence, that the County

took an adverse employment action against him o n the basis of his

disability.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399

(eServed)

David C. Riggins

1052 Axlewood Circle

Brandon, Florida 33511

(eServed)

Stephen M. Todd, Esquire

Hillsborough County AttorneyÓ s Office

Post Office Box 1110

Tampa, Florida 33 601

(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 with in

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.