18-002764 James Walker vs. Superior Construction Company Southeast, Llc Status: Closed Recommended Order on Friday, January 4, 2019.

Summary: Resp. did not discriminate against Pet. in violation of FCRA based on Pet.'s disability. Resp. provided reasonable accommodations until Pet. was unable to perform any job duties; later Resp. did not rehire Pet. because it had no vacancies.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES WALKER,

Petitioner,

vs. Case No. 18 - 2764

SUPERIOR CONSTRUCTION COMPANY

SOUTHEAST, LLC,

Respondent.

_______________________________/

RECOMMENDED ORDER

On October 29, 2018, Administrative Law Judge Hetal Desai of

the Division of Administrative Hearings (DOAH) conducted t he

final hearing in this matter in Jacksonville , Florida.

APPEARANCES

For Petitioner: Jennifer Shoaf Richardson, Esquire

Jackson Lewis P.C.

Suite 902

501 Riverside Avenue

Jacksonville, Florida 32202

For Respondent: James K ie th Walker

18 North Terry Avenue

Orlando, Florida 32801

STATEMENT OF THE ISSUE

Whe ther Respondent, Superior Construction Company Southeast,

LLC (Superior), wrongfully terminated Petitioner, James Walker,

and refused to rehire him based on his disability in violation of

the Florida Civil Rights Act (FCRA).

PRELIMINARY STATEMENT

On August 4, 2017, Petitioner filed an Employment Complaint

of Discrimination with the Florida Commission on Human Relations

( the Commission ) alleging discrimination based on ÐDisability.Ñ

Specifically, he alleged Respondent (1) terminated him after he

returned fro m medic al leave, and (2) refused to re hire him.

The Commission issued a ÐDetermination: No Reas onable

CauseÑ on April 19, 2018, and Petitioner filed a timely Petition

for Relief to contest the CommissionÓs determination. The

Commission transmitted the P etition to DOAH , where it was

assigned to the undersigned and originally noticed for a final

hearing on July 30, 2018.

The hearing in this matter was reschedu led numerous times.

Petitioner request ed a 90 - day continuance which wa s denied, but

the hearing w as rescheduled to August 30, 2018. After the

parties jointly notified DOAH they had reached a tentative

settlement, the file was closed on August 23, 2018. On

August 29, 2018, however, the matter was re - opened and

rescheduled for October 29, 2018. 1/

At the final hearing, Petitioner presented his own testimony

and offered Exhibits P1 and P2 , both of which were admitted into

evidence. Respondent offered the testimony of two employee

witnesses: Oscar Matson Jr., a retired s uperintendent; and Jose

Gom ez, a f ormer p roject m anager and SuperiorÓs current Director

for Strategic Initiatives. RespondentÓs E xhibits R1 through R9

and R11 through R14 were admitted into evidence . Although

Exhibit R10 (PetitionerÓs deposition with attachments) was deemed

admiss ible, Respondent was to redact PetitionerÓs personal

medical information an d submit it to DOAH post - hearing, but R10

was never filed or submitted . As such , the undersigned did not

consider Exhibit R 10 or any testimony related to that exhibit .

The Transcri pt was filed November 11, 2018. Petitioner

timely filed his p roposed recommended order ( PRO); Respondent was

granted an extension and filed its PRO on December 7, 2018.

Respondent filed a corrected/amended PRO on December 11, 2018.

All PROs were duly con sidered in preparing this Recommended

Order .

Unless otherwise indicated, a ll statutory references are to

the 2016 version of the Florida Statutes .

FINDING S OF FACT

Parties

1. Petitioner was hired as a laborer by Superior in March

2016. During his tenur e with Superior, Petitioner also worked as

a flagger and a roller machine operator (roller operator).

2 . Superior is a construction company specializing in

roadway and highway improvement projects. Superior was

PetitionerÓs employer as defined by the FC RA. § 760.02(7),

Fla. Stat.

3 . During the relevant time period, Petitioner worked for

Superior on a construction assignment known as Ð15901 Wekiva

ProjectÑ (Wekiva Project).

4 . Oscar Matson, SuperiorÓs s uperintendent at the relevant

time, was Peti tionerÓs ultimate supervisor and made day - to - day

decisions regarding equipment and staffing. Mr. Matson made all

e mployment decisions with regard to Petitioner , including his

hiring and job assignments.

5 . Jose Gomez, the project m anager at the relevant time,

oversaw the administrative side of Wekiva Project and supervised

the engineering staff. Mr. Matson consulted with Mr. Gomez

regarding the construction staff, and Mr. Gomez was familiar with

all of the employees working on this project, including

Pe titioner.

6 . The parties stipulated Petitioner suffers from a

disability.

Relevant Policies

7 . Although Superior offered evidence of its Equal

Opportunity Policy (EOP) , there is no evidence it provides

protections for applicants or employees with disab ilities. The

EOP states in relevant part :

A. Statement of Policy

To further the provisions of equal employment

opportunity to all persons without regard to

their race, color, religion, sex, or national

origin, and to promote the full realization

of eq ual opportunity through a positive

continuing program [,] i t is the policy of

Superior Construction Company to assure that

applicants are employed and that employees

are treated during employment without regard

to their race, religion, sex, color or

nationa l origin.

* * *

N. Handicapped

R elative to direct federal contracts, we

shall not discriminate against any employee

or applicant for employment because o f a

physical or mental handicap in regard to any

position of which the employee or applican t

for employment is qualified.

There was no evidence whether the Wekiva Project was federally

funded or part of a federal contract.

8 . Although there was no evidence of a written policy,

there was testimony that Superior had a reasonable accommodation

p rocess that allows an employee who requires an accommodation to

request one through his or her supervisor or through a Human

Resources hotline. This process was followed by Petitioner.

PetitionerÓs Accommodations

9 . Petitioner began working for Superior as a laborer with

the primary duties of shoveling dirt and cleaning roads. The

laborer position was physically demanding and required standing,

climbing, crawling, and lifting up to 40 pounds. The position

also required constant walking and moving within the project

site.

10 . Petitioner worked ten - hour shift s on we ekdays and

eight - hour shift s on weekend days.

11 . In April 2016, approximately a month after he was

hired, Petitioner was hospitalized for a toe injury incurred at

work . Although he was inju red on the job and kn ew he was

obligated to report the injury to his supervisors, Petitioner did

not. He failed to report the incident to Mr. Matson or anyone

else because he did not want Ða workmanÓs compÑ issue.

12 . On or around April 19, 2016, Petit ioner brought medical

documentation titled ÐWork/School StatusÑ to Superior indicating

that his work duties should be modified until May 10, 2016. The

medical documentation indicated Petitioner should be limited to

Ðlight duty.Ñ It also indicated Petitio ner could perform the

following activities: ÐLimit[ed] standing/walkingÑ and ÐLight

weight activity.Ñ

13 . As a result, Mr. Matson initially placed him in a

ÐflaggerÑ position. This position involved directing traffic in

one place, and was considered Ðli ght dutyÑ because it did not

involve heavy lifting or continuous walking.

14 . Although the timing is unclear, Mr. Matson later placed

Petitioner in the position of roller operator, where he operated

a large piece of equipment. As a roller operator, Pet itioner was

not required to stand, walk or lift.

15 . There was no evidence Petitioner complained to

Mr. Matson regarding the assignment to either the flagger or

roller operator position, nor did he request further

accommodation. The undersigned finds Superior accommodated

Petitioner Ós request for Ðlight duty.Ñ

16 . Petitioner had no attendance, disciplinary , or other

issues from April 2016 through the summer of 2016 in the flagger

or roller operator position.

17 . On August 12, 2016, Petitioner was ad mitted into a

medical facility and was out of work.

18 . Upon his return on or about August 18, 2016, Petitioner

gave Mr. Matson medical documentation titled ÐDisability

Certificate.Ñ That document certified that Petitioner was

Ðunable to return to work Ñ and was Ðnot able to work until

further notice.Ñ

19 . As a result of the August 18, 2016 , m eeting, Mr. Matson

prepared PetitionerÓs termination paperwork.

20 . What triggered the termination paperwork on August 18,

2016, is in dispute. Petitioner asse rts when he returned to

Superior, Mr. Matson told him he was concerned about his health

and fired him. Superior co unters that Petitioner informed

Mr. Matson he had to quit because he was unable to work due to

his medical condition, and Su perior advised P etitioner to re apply

when he was ready. For the reasons below, the undersigned finds

SuperiorÓs version of the facts is more consistent with the

credible evidence and testimony.

21 . First, SuperiorÓs version of events is corroborated by

PetitionerÓs own sworn statements made in his Charge and Amended

Charge of Discrimination, in which he states Superior Ðadvised me

to come back to work when I was ready.Ñ

22. Second, Mr. MatsonÓs testimony that Petitioner told him

he was unable to work is consistent wit h the Disability

Certificate provided by Petitioner and with Mr. MatsonÓs work

notes made on August 18, 2016. Those notes indicate Petitioner

Ðsaid he had to quit because he has austioprosis [sic] . We

filled out a termination paper for him.Ñ Although Pe titioner

challenges the reliability of these notes because he actually had

Ðosteomyelitis,Ñ it is plausible that Mr. Matson mislabeled or

misspell ed the illness given his unfamiliarity with it and the

phonetic similarity between the two terms.

23 . Third, PetitionerÓs assertion that he was fire d is

inconsistent with statements he made on subsequent applications

when asked the Ðreason for leavingÑ Superior. In one application

he answers Ðno workÑ ; in another he lists Ðmedical reasons.Ñ

No where does he disc lose or state that he was fired or

terminated.

24 . Finally, based on PetitionerÓs demeanor and the

inaccuracies and inconsistencies between his testimony and the

other evidence, the undersigned finds PetitionerÓs testimony less

credible than that of Mr. G omez and Mr. Matson. Petitioner was

unable to recall specific dates or details about alleged

conversations or his work/medical status. Petitioner admitted he

lied to Superior about the injury causing him to go out on leave

in April 2016. He blamed discr epancies between his hearing

testimony and sworn statements in the documents submitted to t he

Commission on his attorney; he blamed inconsistencies in the

statements made in his disability benefits paperwork on the

insurance company; and he explained misle ading statements in

subsequent job applications as necessary white lies.

25 . The undersigned finds SuperiorÓs explanation that it

processed PetitionerÓs termination after it was clear he could

not work and there was no date certain as to when he could

re turn, and its version of facts surrounding PetitionerÓs

separation more credible .

26 . Regardless, however, of whether he quit or was fired,

Petitioner was not qualified to work on August 18, 2016. He

offered no evidence, nor is there anything in the reco rd,

indicating that his inability to work had ever changed , or that

the restrictions and limitations set forth in the Disability

Certificate were ever lifted. As such, the undersigned finds

Petitioner could not perform his job duties and could not work as

of August 18, 2016.

Petition erÓs Re application

27 . Petitioner claims he reapplied for a position with

Superior numerous times after August 2016 . Other than a July

2017 application, it is unclear how often or what other times he

reapplied .

28 . Petit ioner claims Superior did not rehire him because

of his disability. As proof , he states Mr. Matson and Mr. Gomez

made comments inquiring about his health. The undersigned finds

these comments were innocuous and were expressions of concern for

his well - be ing, rather than related to his specific disability.

29. PetitionerÓs attempt at reemploymen t with Superior is

also suspect. There was no admissible evidence to prove that

Superior was actually hiring in July 2017 . In fact, there was

evidence Petitione r only reapplied for work at Superior to better

his legal position for future litigation ; Petitioner admitted he

reapplied for a position at Superior Ðbecause my attorney said to

reapply to see how they would react.Ñ Petitioner also made

statements in dis ability insurance applications that he was

u nable to work at the time he re applied for work at Superior.

Specifically, as of July 17, 2017, the date of PetitionerÓs

Social Security Application for Disability Insurance, Petitioner

indicated he could not wor k and had been unable to work since

September 1, 2016.

30 . Irrespective of PetitionerÓs motives, Superior asserts

it did not consider his disability when Petitioner reapplied, but

rather that it did not re hire Petitio ner because it had no

vacancies . Mr. Matson credibly testified that in July 2017, the

Wekiva Project was coming to an end and he was struggling to keep

the staff occupied until the next assignment. Mr. Matson

explained, Ðwe were long on help at that time.Ñ

31 . Mr. Gomez also met with Petit ioner in July 2017

regarding his reapplication. At the time Superior was working on

an other project, Project 16903. Mr. Gomez told Petitioner that

he would be eligible for the next project, Project 17904, but

that project was not starting until late 2017 or early 2018.

This is consistent with PetitionerÓs application dated July 5,

2017, which has a hand written notation: ÐConsider Rehire for

16903 per Jose G. till 17904 Ready.Ñ

32 . Mr. Gomez was not responsible for Project 17904, nor

was there any evid ence that the person hiring for Project 17904

was aware of PetitionerÓs disability.

33 . Superior never re hired Petitioner.

34 . The undersigned finds Superior did not consider

PetitionerÓs disability , but r ather, based it s decision not to

rehire Petiti oner on the fact it did not have any vacancies.

CONCLUSIONS OF LAW

35 . 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 Statu tes. See Fla. Admin. Code R. 60Y - 4.016 .

36 . The FCRA protects individuals from discrimination in

the workplace. See §§ 760.10 and 760.11, Fla. Stat. 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 otherwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges of employment, because of such

individual Ó s race, color, religion, sex,

pregna ncy, national origin, age, handicap, or

marital status. (emphasis added).

37 . Because the FCRA is patterned after federal anti -

discrimination laws, such as the Americans with Disabilit ies Act

(ADA), courts rely on ADA cases w hen analyzing disability

di scrimination claims brought pursuant to the FCRA .

38 . The burden of proof in an administrative proceeding is

on Petitioner as the complainant. See Dep Ó t of Banking & Fin.,

Div. of Sec. & Investor Prot. v. Osborne Stern & Co. , 670 So. 2d

932, 935 (Fla. 1996)( Ð The general rule is that a party asserting

the affirmative of an issue has the burden of presenting evidence

as to that issue. Ñ ). To show a violation of the FCRA, Petitioner

must establish, by a preponderance of the evidence, a prima facie

case of discrimination . See St. Louis v. Fla. Int'l Univ. , 60 So.

3d 455, 458 - 59 (Fla. 3d DCA 2011)(reversing jury verdict awarding

damages on FCRA racial discrimination and retaliation claims where

employee fai led to show similarly situated employees outside his

protected class were treated more favorably ; finding prima facie

case not established ).

39 . ÐPreponderance of the evidenceÑ is the Ð greater weight Ñ

of the evidence, or evidence that Ðmore likely than notÑ tends to

prove the fact at issue. This means t hat if the undersigned found

the parties presented equally compe tent substantial evidence,

Petitioner would not have proved his claims by the Ðg r eater

weight Ñ of the evidence, and would not prevail in this proceeding.

See Gross v. Lyons , 763 So. 2d 276, 2 89 n.1 (Fla. 2000) .

40 . C ourts follow the framework set forth in McDonnell

Douglas Corp. v. Green , 411 U.S. 792, 802 - 04, 93 S. Ct. 1817,

36 L. Ed. 2d 668 (1973), for establishing a n FCRA disability

discrimination claim . See Gonzalez v. Wells Fargo Bank, N.A. ,

2013 WL 5435789 , at *7 ( S.D. Fla. Sept. 27, 2013) ( citing Albra v.

Advan, Inc. , 490 F.3d 826, 835 (11th Cir. 2007) ) ; Byrd v. BT

Foods, Inc. , 948 So. 2d 921, 925 (Fla. 4th DCA 2007).

41 . In this case, the framework involves a three - step

process. Fi rst, Petitioner must establish a prim a facie case of

disability discrimination; i f Petitioner does so, a presumption of

disc rimination arises against Respondent . If Petitioner completes

step one , Respondent has the burden to present a legitimate, non -

disc riminatory reason for its employment acti ons; if Respondent

can put forth such a reason, PetitionerÓs presumption of

discrimination evaporates. Finally, if Respondent can complete

the second step, Petitioner has the burden of proving the reason

establishe d by Respondent was a pretext for discrimination. A

ÐpretextÑ is a reason giv en in justification for conduct that is

not the real reason . McDonnell Douglas Corp. , 411 U.S. at 802;

Scholz v. RDV Sports, Inc. , 710 So. 2d 618, 624 ( Fla. 5th DCA

1998)( evalua ting a race discrimination claim under FCRA ).

42 . To meet the first step, Petitioner must establish a

prima facie case of wrongful termination or failure to hire based

on disability : 1) he has a disability; 2) he was qualified for

the job with or without an accommodation; and 3) Superior took

adverse action against him on the basis of his disability. See

Winnie v. Infectious Disease Assocs., P.A. , 2018 U.S. App. LEXIS

31609, at *13 (11th Cir. Nov. 8, 2018) (citing Williams v.

Motorola, Inc. , 303 F.3d 1284 , 1290 (11th Cir. 2002) ) .

43 . Regarding the first element, the parties stipulated

Petitioner suffers from a medical condition that would qualify as

a disability under the FCRA.

44 . Nonetheless, Petitioner has not shown the second element

by proving he w as qualified for his position of laborer, flagger,

or roller operator either in August 2016 (when he separated from

Superior) or in July 2017 (when he reapplied for a position). To

be qualified, Petitioner must show that he could perform the

essential fun ctions of the job, either with or without reasonable

accommodation. See 42 U.S.C. § 12111(8) (providing a Ð qualified

individual Ñ is an individual with a disability who, with or

without reasonable accommodation, can perform the essential

functions of a job ) . He failed to do so.

45 . With regard to his wrongful termination claim,

PetitionerÓs testimony and the medical documentation he provided

to Superior indicated that he was unable to work until further

notice. There is no competent evidence of when this work

restriction was lifted or if he reported to Superior that he was

able to work again. Regarding his failure to rehire claim, as

explained in the Findings of Fact, there was no credible evidence

PetitionerÓs medical restrictions had been lifted and tha t he was

able to work in July 2017. Thus, based on the record evidence,

Petitioner was unable to perform any position starting August 18

2016, until a date unknown. Therefore, he was not qualified. See

Winnie , 2018 U.S. App. LEXIS 31609, at *16 (affirmi ng summary

judgment against employee where doctor had not released her to

return to work; finding employee could not perform her duties).

46 . Nor did Petitioner establish the third element for his

wrongful termination claim. As explained in the Findings of

Fact, Superior did n ot terminate or fire Petitioner. H e resigned

or quit because he could no longer work. A resignation is not an

Ðadverse actionÑ in most employment discrimination contexts. As

explained recently in Waite v. B oar d of Tr ustee s of the Univ ersity

of Ala bama , 2018 U.S. Dist. LEXIS 187933, at *34 (N.D. Ala.

Nov. 2, 2018) :

Generally speaking, an employee's decision to

resign is presumed to be voluntary, in which

case it does not give rise t o an adverse

employment action. It is true that , under

some circumstances, a plaintiff's resignation

may be t reated as involuntary and thus

tantamount to an actual discharge. However,

such a Ðconstructive dischargeÑ claim requires

the plaintiff to e stablish that the employer

has discriminated against her to the point

such that her working conditions bec ame so

intolerable that a reasonable person in the

employee's position would have felt compelled

to resign. (citations and quotations

omitted).

Here, there is no assertion Petitioner was constructivel y

discharged or evidence that PetitionerÓs working conditions rose

to the level of feeling forced to resign. To the contrary,

Superior allowed him to take time off when necessary, and told him

to reapply when he was cleared to return to work.

47 . Regard ing his failure to rehire claim, assuming

Petitioner was qualified (which he was not) and could establish a

prima facie case, Superior has fulfilled step two in the shifting

McDonnell Douglas process by articulating a legitimate

non - discriminatory reason for its actions. Superior more than

meets this burden by establishing it had no vacancies in July

2017. 2/

48 . Completing the McDonnell Douglas burden - shifting

analysis, Petitioner did not prove that SuperiorÓs reason for not

rehiring Petitioner was mer ely a Ð pretext Ñ for discrimination.

The evidentiary record does not support a finding or conclusion

that SuperiorÓs explanation is false or not worthy of credence.

49 . Consequently, Petitioner did not meet h is ultimate

burden of proving by a preponderanc e of the evidence that

SuperiorÓs actions wer e discriminatory or in violation of the

FCRA . Accordingly, Petitioner Ó s Petition for Relief must be

dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED th at the Florida Commission on Human

Relations issue a final order finding that Petitioner, James

Walker, did not prove that Respondent, Superior Construction

Company Southeast, LLC, committed an unlawful em ployment practice

against him ; and dismissing h is P etition for Relief from an

unlawful employment practice.

DONE AND ENTERED this 4th day of January , 2019 , in

Tallahassee, Leon County, Florida.

S

HETAL DESAI

Administrative Law Judge

Division of Administrative Hearings

Th e 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 4th day of January , 2019 .

ENDNOTE S

1/ The unus ual procedural history regarding the Joint Notice of

Settlement, Motion to Set Aside Joint Notice of Settlement, and

Pe titionerÓs Motion to Withdraw is detailed in the Order Granting

Motion to Set Aside Joint Notice of Settlement and Re - opening

File , rende red August 29, 2018.

2/ In evaluating the employerÓs reason for its actions, the

reason should be clear, reasonably specific, and worthy of

credence. See DepÓt of Corr. v. Chandler , 582 So. 2d 1183, 1186

(Fla. 1st DCA 1991). The employer has the burden of production,

not the burden of persuasion, to demonstrate to the finder of

fact that the decision was non - discriminatory. See Flowers v.

Troup Cnty. , 803 F.3d 1327, 1336 (11th Cir. 2015). 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

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

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission o n Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020

(eServed)

Jennifer Shoaf Richardson, Esquire

Jackson Lewis P.C.

Suite 902

501 Riverside Avenue

Jacksonville, Florida 32202

(eServed)

James K ie th Walker

18 North Terry Avenue

Orlando, Florida 32801

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.