17-006239 Marlowe D. Robinson vs. Broward County School District Status: Closed Recommended Order on Thursday, December 6, 2018.

Summary: Petitioner failed to show disability discrimination or retaliation in violation of the FCRA. Despite accomodations for his handicap, Petitioner continued an unacceptable and extensive pattern of tardiness, absenteeism, and working unauthorized hours.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARLOWE D. ROBINSON,

Petitioner,

vs. Case No. 17 - 6239

BROWARD COUNTY SCHOOL DISTRICT,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was

conducted before Administrative Law Judge Mary Li Creasy , by

video teleconference , with locations in Lauderdale Lakes and

Tallahassee, Florida, on July 18, 2018.

APPEARANCES

For Petitioner: Marlowe D. Robinson , pro se

4920 Northwest 73rd Avenue

Lauderhill, Florida 33319

For Respondent: Michael L. Elkins, Esquire

Denise Marie Heekin, Esquire

Bryant Miller Olive, P.A.

One Southeast Th ird Avenue, Suite 2200

Miami, Florida 33131

STATEMENT OF THE ISSUE S

Whether Petitioner, Marlowe D. Robinson ( " Petitioner " ), was

unlawfully discriminated against by Respondent, Broward County

School District ( " BCSD " ), his employer, based on his disability

and in retaliation for complaining about d iscrimination, in

violation of c hapter 760 of the Florida Statute s, the Florida

Civil Rights Act; and , if so, what is the appropriate remedy.

PRELIMINARY STATEMENT

On April 13, 2017, Petitioner fi led a charge of

discrimination ( " Charge " ) with the Florida Commission on Human

Relations ( " FCHR " ). Petitioner alleged that he was

discriminated against on the basis of his handicap and

retaliated against for engaging in protected activity (filing

internal labor grievances).

On October 10, 2017, the FCHR dismissed the Charge and

issued a No Reasonable Cause Determination. On November 14,

2017, Petitioner filed his Petition for Relief and for

Administrative Hearing from Florida Commission on Human

Relations " No Reasonable Cause " Determination ( " Petition " ) , and

the matter was referred to the Division of Administrative

Hearings. The matter was originally set for final hearing on

January 3, 2018. Several motions for continuance were granted ,

and the final hea ring was held on July 18, 2018.

Petitioner testified on his own behalf. Petitioner ' s

Exhibits 1, 3, and 4 were admitted into evidence. Responde n t ' s

E xhibits 4, 5, 7, 8, 12, 20 through 23, 26 through 31, 34, 37

through 40, 42, 44, 46 through 49, 53 throug h 55, 58, 62, 63,

and 67 were admitted into evidence.

The Transcript of the final hearing was filed on

September 2, 2018. Respondent requested, and was granted, two

extensions of time within which to file a proposed recommended

order , which was considered in the preparation of this

Recommended Order. Petitioner opted not to file a proposed

recommended order.

Except as otherwise indicated, citations to Florida

Statutes or rules of the Florida Administrative Code refer to

the versions in effect at the tim e of the alleged violations.

FINDING S OF FACT

1. Petitioner worked for BCSD for approximately 20 years

prior to the termination of his employment on May 8, 2018.

Petitioner is a disabled veteran. At the time of his

termination, Petitioner was employed a s the Head Facility

Serviceperson at BCSD ' s office in the Ka therine C. Wright

Building ( " KCW " ).

2. On February 5, 2016, Ri chard Volpi began working at KCW

as the Manager of Administrative Support and as Petitioner ' s

immediate supervisor. During Mr. Volpi ' s third day on the job,

Petitioner told him that he was not happy that Mr. Volpi was at

KCW and that KCW was " his house. " He also told Mr. Volpi that

he did not work because he " delegated to his crew. "

3. On February 18, 2016, P etitioner filed two inter nal

labor grievances. In the first , he asked to have his job title

changed to " Building Operations Supervisor. " In the second

grievance, Petitioner alleged that Mr. Volpi and Jeff Moquin,

Chief of Staff, created a hostile and unclean work environment.

4. Mr. Volpi processed the grievances by having a meeting

with Petitioner on February 25, 2016 . Finding no basis for the

grievances in the collective bargaining agreement, Mr. Volpi

denied them.

5. On October 10, 2016, Mr. Volpi met with Petitioner to

dis cuss a significant pattern of Petitioner coming in late,

failing to notify BCSD when arriving late, staying after his

scheduled shift to make up time without authorization, failing

to call in as required for sick days, and failing to have pre -

authorization for using accumulated leave.

6. After the meeting, Mr. Volpi issued a written " Meeting

Summary , " which included counseling , based on Petitioner having

come in late 24 days since August 1, 2016, and only notif ying

Mr. Volpi ' s assistant of the tardiness on three of those

24 days. The " Meeting Summary " was not considered discipline

and stated, " If for any reason you need to change your shift

hours to assist y ou in getting to work on time, please let me

know. "

7. On October 19, 2016, Petitioner filed his th ird

internal labor grievance after Mr. Volpi became his supervisor.

The third labor grievance made numerous allegations against

Mr. Volpi, including, but not limited to, sexual harassment,

unspecified Family and Medical Leave Act ("FMLA") violations,

and retaliation for filing prior grievances.

8. On October 26, 2016, Petitioner submitted a request for

intermittent leave pursuant to FMLA . The next day, Petitioner

was notified that his FMLA leave request was incomplete, and was

therefore denied. Petit ioner was later granted intermittent

FMLA leave with the agreement that he was to provide advance

notification of his anticipated absences.

9. On November 9, 2016, Petitioner was notified in writing

to appear at Mr. Volpi ' s office on November 16, 2016, fo r a pre -

disciplinary conference to discuss Petitioner's failure to

adhere to the directive of October 10 , 2016 , to notify Mr. Volpi

if he was going to be late, out for the day, or working outside

his scheduled hours. The letter specified that Petitioner w as

late October 11, 13, and 17, 2016, without notifying Mr. Volpi ,

and that Petitioner was late and worked past his regular

scheduled hours on October 21, 25, and November 7, 2016. The

letter also specified that Petitioner " called out " (took time

off) wit hout notifying Mr. Volpi on October 31 and November 1,

2, 3, 4, and 8, 2016.

10. In response, Petitioner filed a fourth grievance

against Mr. Volpi alleging retaliation, bullying, and violation s

of the Americans with Disabilities Act ( " ADA " ) and various

p olicies of B CSD .

11. On November 16, 2016, Mr. Volpi memorialized in

writing that Petitioner failed to show up for the November 16,

2016, pre - disciplinary meeting. On November 21, 2016,

Petitioner was notified in writing that he was to appear at

Mr. Volp i ' s office on November 30, 2016, for a pre - disciplinary

meeting to replace the original meeting scheduled for

November 16, 2016. Petitioner was not disciplined for not

showing up to the November 16, 2016, meeting.

12. The meeting on November 30, 2016, we nt forward as

scheduled and Petitioner was issued a verbal reprimand on

December 5, 2016, his first discipline from Mr. Volpi, for

Petitioner ' s ignoring the prior directive to contact his

supervisor if he was going to be late, absent, or wanted to work

bey ond his scheduled shift. He was again reminded that he had

to make such notifications and have permission in advance of

working hours other than his regular shift.

13. On January 12, 2017, Petitioner was granted a

reasonable accommodation pursuant to the ADA . The accommodation

granted permitted Petitioner to report to work within one hour

of his scheduled work time and leave within one hour of his

scheduled end time ("flex time") . Additionally, Petitioner was

required to notify his supervisor in advance of using flex time .

Mr. Volpi assisted Petitioner in the accommodation process.

Mr. Volpi provided Petitioner the accommodation paperwork and

advocated for Petitioner to be granted an accommodation.

14. On January 26, 2017, Petitioner again came in lat e

without providing Mr. Volpi advance notice of intent to use his

flex time. On January 27, 2017, Mr. Volpi sent an email to

Petitioner reminding Petitioner that he was required to notify

him if he is going to be late. This was not considered

discipline.

15. On March 21, 2017, Petitioner was notified in writing

that he was to appear at Mr. Volpi ' s office on March 27, 2017,

for a pre - di sciplinary meeting regarding on going excessive

tardiness and failure to adhere to his work schedule.

16. On March 23, 2017, Petitioner filed his fifth internal

labor grievance, again alleging harassment (among other claims)

against Mr. Volpi. On March 28, 2017, Petitioner filed his

sixth internal labor grievance, again making harassment

allegations against Mr. Volpi.

17. On April 6, 2017, Petitioner was issued a Written

Reprimand by Mr. Volpi for his nine days of tardiness in

February and March and his failure to notify Mr. Volpi in

advance.

18. On April 7, 2017, Petitioner appealed the Written

Reprimand. Petitioner al so filed his seventh and eighth

internal labor grievances alleging discrimination on the basis

of disability and retaliation.

19. Petitioner filed his Charge with the FCHR on April 13,

2017.

2 0. Mr. Volpi conducted a first - step grievance hearing on

April 27, 2017, and as a result of the discussion with

Petitioner, who agreed to notify Mr. Volpi in advance of his

inability to arrive at work as scheduled, the April 6, 2017,

Written Reprimand was reduced to a verbal warning.

21. The FCHR dismissed Petitione r ' s Charge with a No

Reasonable Cause D etermination on October 10, 2017.

22. Between January 1 and February 15, 2018, Petitioner

came to work late 14 days without providing prior notice, was

absent without leave two days, and worked overtime one day

witho ut prior authorization. As a result, BCSD issued a three -

day suspension on February 21, 2 018. On February 22, 2018,

Mr. Volpi met again with Petitioner to go over the expectations

and provided a reminder memo not to work unauthorized hours

without prior approval.

23. On March 13, 2018, Mr. Volpi asked BCSD to issue a

ten - day susp ension to Petitioner for his on going failure to

report to work at assigned times, unauthorized overtime, and

absences without leave. In response, Petitioner filed yet

another la bor grievance. BCSD approved the ten - day suspension

on April 10, 2018.

24. Despite the ADA accommodation, increasing discipline,

multiple counseling meetings and reminders, Petitioner continued

his pattern of tardiness, unauthorized overtime, and absence s.

Accordingly, BCS D terminated Petitioner ' s employment on May 8,

2018. Petitioner ' s discipline and ultimate termination were not

performance based , but rather , relate d solely to on going

attendance issues.

CONCLUSIONS OF LAW

25 . The Division of Administ rative Hearings has

jurisdiction over the parties a nd subject matter in this case.

§§ 120.569 and 120.57, Fla. Stat.

26 . Section 760.10(1) states that it is an unlawful

employment practice for an employer to fail or refuse to hire or

otherwise discriminat e against an individual on the basis of

handicap.

27 . Section 760.10(7) prohibits retaliation against those

who oppose unlawful discriminatory employment practices.

28 . FCHR and Florida courts have determined that federal

discrimination laws should be us ed as guidance when construing

provisions of section 760.10. See Valenzuela v. GlobeGround

N. Am., LLC , 18 So. 3d 17 (Fla. 3d DCA 2009); Brand v. Fla.

Power Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA 1994).

29. In the instant case, Petitioner alleges that he was

unlawfully discriminated against because of his handicap and

retaliated against for his grievances.

Establishing Discrimination

30. 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, if believed, establishes the

existence of discriminatory intent behind an employment decision

without inference or presumption. Maynard v. Bd. of Regents ,

342 F.3d 1281, 12 89 (11th Cir. 2003).

31. " Direct evidence is composed of ' only the most blatant

remarks, whose intent could be nothing other than to

discriminate ' on the basis of some impermissible factor. "

Schoenfeld v. Babbitt , 168 F.3d at 1257, 1266. Petitioner

pres ented no direct evidence of handicap discrimination or

retaliation.

32. " [D]irect evidence of intent is often unavailable. "

Shealy v. City of Albany, Ga. , 89 F.3d 804, 806 (11th Cir.

1996). For this reason, those who claim to be victims of

intentional d iscrimination " are permitted to establish their

cases through inferential and circumstantial proof. " Kline v.

Tenn. Valley Auth. , 128 F.3d 337, 348 (6th Cir. 1997).

33. Where a complainant attempts to prove intentional

discrimination using circumstantial evidence, the shifting

burden analysis established by the United States Supreme Court

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 applied. Under this well - establi shed model of proof,

the complainant bears the initial burden of establishing a prima

facie case of discrimination.

34. When the charging party is able to make out a prima

facie case, the burden to go forward shifts to the employer to

articulate a legitim ate, non - discriminatory explanation for the

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

1183 (Fla. 1st DCA 1991)(court discusses shifting burdens of

proof in discrimination cases). The employer has the burden of

production, not persuasi on . Id. ; Alexander v. Fulton C ty., Ga. ,

207 F.3d 1303 , 1336 (11th Cir. 2000).

35. The employee must then come forward with specific

evidence demonstrating that the reasons given by the employer

are a pretext for discrimination. Schoenfeld v. Babbitt , 16 8

F.3d at 1267. The employee must satisfy this burden by showing

directly that a discriminatory reason more likely than not

motivated the decision, or indirectly by showing that the

proffered reason for the employment decision is not worthy of

belief. De p ' t of Corr. v. Chandler , 582 So. 2d at 1186;

Alexander v. Fulton Cty., Ga. , 207 F.3d at 1303. Petitioner has

not met this burden.

36. " Although the intermediate burdens of production shift

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

f act that the employer intentionally discriminated against the

[Petitioner] remains at all times with the [Petitioner]. " EEOC

v. Joe ' s Stone Crabs, Inc. , 296 F.3d 1265 (11th Cir. 2002); see

also Byrd v. RT Foods, Inc. , 948 So. 2d 921, 927 (Fla. 4th DCA

200 7)( " The ultimate burden of proving intentional discrimination

against the plaintiff remains with the plaintiff at all

times. " ).

Proving Handicap 1/ Discrimination

37. Handicap discrimination claims under the Florida Civil

Rights Act are analyzed under the same framework as federal ADA

disability claims. D ' Angelo v. Conagra Foods, Inc. , 422 F.3d

1220, 1224 n.2 (11th Cir. 2005).

38. In order to demonstrate a prima facie case, under the

ADA, plaintiff must show that: ( 1) he has a disability; ( 2) he

is a " qualified " individual; and ( 3) defendant discriminated

against him because of his disability. Greenberg v. BellSouth

Telecommunications, Inc. , 498 F.3d 1258, 1263 (11th Cir. 2007);

Ellis v. England , 432 F.3d 1321, 1326 (11th Cir. 2005).

39. The burden then shifts to defendant to articulate a

legitimate, non - discriminatory reason for plaintiff ' s

termination. If defendant is able to do so, the burden then

returns to plaintiff, who must show that defendant ' s reason is

unworthy of credence and a mere prete xt for discrimination. See

Cleveland v. Home Shopping Network, Inc. , 369 F.3d 1189, 1193

(11th Cir. 2004).

40. In this case, Petitioner provided no direct evidence

of discrimination. Accordingly , the burden - shifting analysis is

appropriate. BCS D stipul ated that Petitioner is an individual

with a handicap. However, Petitioner failed to demonstrate two

prongs of the prima facie case - Î that he was " qualified " for the

job and that he was discriminated against " because of " his

disability.

41. Although Petit ioner was not criticized for job

performance, his extensive record of showing up late with no

prior notice, absenteeism without leave, and working outside his

shift without prior authorization show he was not " qualified. "

42. Notably, BCS D worked with P etitioner to provide a

reasonable accommodation that should have allowed him the

flexibility he needed to come to work as his medical condition

allowed. Despite this accommodation and intermittent FMLA

leave, Petitioner failed to meet minimum attendance e xpectations

of any reasonable employer.

43. Even assuming arguendo that Petitioner demonstrated

all elements of the prima facie case, BCS D offered a legitimate,

non - discriminatory reason for Petitioner ' s discharge.

Petitioner ' s record of chronic and pers istent tardiness,

absenteeism, and working unauthorized hours over an extended

period of time was unacceptable and became intolerable when it

continued despite progressive discipline.

44. Petitioner claims this is a pretext for

discrimination . However, P etitioner offered no persuasive

evidence of this , and no specific information about the identity

of any similarly - situated individuals who violated attendance

policies to the same extent and who were not disciplined.

Petitioner ' s speculation and personal belief concerning the

motives of BCSD are not sufficient to establish intentional

discrimination. See Lizardo v. Denny ' s, Inc. , 270 F.3d 94, 104

(2d Cir. 2001)( " [P]laintiffs have done little more than to cite

to their mistreatment and ask the court to con clude it must have

been related to their race. This is not sufficient. " ).

45. Petitioner failed to demonstrate that he was

discriminated on the basis of his handicap with regard to his

discipline or his termination.

Proving Retaliation

46. Section 760.1 0(7) prohibits retaliation in employment

as follows:

(7) It is an unlawful employment practice

for an employer . . . to discriminate

against any person because that person has

opposed any practice which is an unlawful

employment practice under this sectio n , or

because that person has made a charge,

testified, assisted, or participated in any

manner in an investigation, proceeding, or

hearing under this section. (emphasis

added).

47. The burden of proving retaliation follows the general

rules enunciated for proving discrimination. Reed v. A.W.

Lawrence & Co. , 95 F.3d 1170, 1178 (2d Cir. 1996). As discussed

above, Petitioner can meet his burden of proof with either

direct or circumstantial evidence.

48. Petitioner did not introduce direct evidence of

re taliation in this case. Thus, Petitioner must prove his

allegation of retaliation by circumstantial evidence.

Circumstantial evidence of retaliation is subject to the burden -

shifting framework established in McDonnell Douglas .

49. To establish a prima f acie case of retaliation,

Petitioner must show: (1) that he was engaged in statutorily -

protected expression or conduct; (2) that he suffered an adverse

employment action; and (3) that there is some causal

relationship between the two events. Holifield v. Reno ,

115 F.3d 1555, 1566 (11th Cir. 1997). The protected activity

must be the " but for " cause of the adverse action. Univ. of

Texas S w. Med. Ctr. v. Nassar , 570 U.S. 338 (2013). Petitioner

must prove that the adverse action would not have occurred in

the absence of the protected activity, which is the highest

standard of causation.

50. Petitioner alleges he was retaliated against for

filing his grievances. Some of those grievances specifically

mentioned handicap discrimination. Therefore, these grie vances

constituted protected activity.

51. Clearly, Petitioner suffered " adverse action " by

virtue of his discipline and discharge.

52. However, Petitioner failed to prove any causal

connection between the two. The evidence presented shows that

Petition er ' s labor grievances were timely processed and that

BCSD, through Mr. Volpi, repeatedly allowed Petitioner to

reschedule and present information at each step.

53. Petitioner began filing internal labor grievances

against Mr. Volpi from the moment Mr. Vol pi took over as his

supervisor. Despite this, Mr. Volpi did not address any

potential issues in writing wit h Petitioner until October 2016;

and , even then , he did not issue any discipline against

Petitioner. Thus began a pattern where Mr. Volpi would iss ue

Petitioner a notice to discuss potential issues (which was not

discipline) , and Petitioner would counter with the filing of an

internal labor grievance. The evidence shows that it was

Petitioner retaliating against Mr. Volpi, not the other way

around.

54. Petitioner presented no evidence that his labor

grievances were the " but for " cause of any perceived

retaliation. If anything, BCSD was exceptionally patient and

accommodating of Petitioner ' s refusal to abide with reasonable

attendance policies and p rogressive discipline.

Conclusion

55. Based upon the evidence and testimony offered at

hearing, Petitioner failed to establish a prima facie case

against BCSD for either handicap discrimination or retaliation

for opposing an unlawful employment practice . Therefore, the

employment discrimination charge should be dismissed, and none

of the damages claimed by Petitioner should be awarded to him.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that the Florid a Commission on

Human Relations issue a final order dismissing FCHR

Petition 201700954.

DONE AND ENTERED this 6 th day of December , 2018 , in

Tallahassee, Leon County, Florida.

S

MARY LI CREASY

Administrative Law Judge

Divi sion 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 6 th day of Dece mber , 2018 .

ENDNOTE

1/ The F lorida C ivil R ights A ct prohibits discrimination in

employment on the basis of " handicap. " The ADA prohibits

discrimination on the basis of " disability. "

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399 - 7020

(eServed)

Michael L. Elkins, Esquire

Denise Marie Heekin, Esquire

Bryant Miller Olive , P.A.

One Southeast Third Avenue , Suite 2200

Miami, Florida 33131

(eServed)

Marlowe R obinson

4920 Northwest 73rd Avenue

Lauderhill, Florida 33319

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399 - 7020

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTION S

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.