18-006309 Keith Sewell vs. City Of Fort Lauderdale Status: Closed Recommended Order on Monday, May 13, 2019.

Summary: Petitioner failed to prove a prima facie case of handicap discrimination. Recommend dismissal of FCHR petition.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KEITH SEWELL,

Petitioner,

vs. Case No. 18 - 6309

CITY OF FORT LAUDERDALE,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice , a formal administrativ e hearing was

conducted before Administrative Law Judge Mary Li Creasy in

Fort Lauderdale, Florida , on March 28, 2019 .

APPEARANCES

For Petitioner: Keith Sewell, pro se

Apartment 106

1103 Southwest 15th Street

Deerfield Beach, Florida 33441

For Respondent: Carmen Rodriguez , Esquire

Law Offices of Carmen Rodriguez , P . A .

15715 South Dixie Highway , Suite 411

Miami , Florida 33157

STATEMENT OF THE ISSUE S

Whether Petitioner was unla wfully discriminated against

by Respondent , based on his disability , in violation of

chapter 760 , Florida Statutes, the Florida Civil Rights Act

("FCRA"); and , if so , what is the appropriate remedy?

PRELIMINARY STATEMENT

On March 14, 2018, Petitioner , Keith Sewell ( "Sewell" or

" Petitioner " ) , filed a Charge of Discrimination ( " Charge " ) with

the Florida Commission on Human Relations (" FCHR ") alleging that

Respondent , City of Fort Lauderdale ("City" or "Respondent" ) ,

unlawfu lly terminated his employment as a Parking Enforcement

Specialist ("PES") by discriminating against him based on h is

disability/handicap. On September 18, 2018, the FCHR issued a

Notice of Determination to Sewell indicating that the FCHR found

"no reasona ble cause" to believe that discrimination occurred.

Sewell elected to contest the decision and pursue administrative

remedies by filing a Petition for Relief with the FCHR . The

FCHR transmitted the Petition to the Division of Administrati ve

Hearings ("DO AH") on November 30, 2018, and the undersigned was

assigned to hear the case .

After one c ontinuance at the request of Respondent, t he

final hearing was held as scheduled on March 28, 2019. At the

hearing , Sewell testified on h is own behalf . Respondent

presented the testimony of three witnesses: Bryan Greene,

Parking Enforcement Supervisor; S tephanie Sanchez, PES; and

Jose Vazquez, Acting Parking Shift Coordinator. Petitioner ' s

Exhibit s 1 through 15 were admitted into evidence . Respondent ' s

Exhibits 1 , 2, 4, 7 through 10, 12, 13, and 16 were admitted

into evidence .

The Transcript of the final hea ring was filed April 24,

2019, and Respondent timely filed a proposed recommended order

that has been carefully considered by the undersigned in the

preparatio n of this Recommended Order .

Except as otherwise indicated , citations to Florida

Statutes or Florida Administrative Code r ules refer to the

versions in effect at the time of the alleged violations .

FINDING S OF FACT

1 . From October 2 through December 7, 20 17, Petitioner was

employed by the City as a PES in its Transportation and Mobility

Department ("TAM").

Nature of the Parking Enforcement Specialist Job

2. The role of a PES is to ensure that members of the

public follow the City ' s parking ordinances and regulations .

Job duties include patrolling an assigned area in a vehicle or

on foot , inspecting for parking violations , issuing summonses

and tickets to vi olators, and assisting the public by answering

questions . A PES must be able to work independe ntly with little

or no supervisory assistance and deal courteously and fairly

with the public .

3. The PES position is governed by the Collective

Bargaining Agreement ( " CBA " ) between the City and the Teamsters '

Union . Under the CBA , assignment of wor k shifts is based on

seniority . A PES may be assigned to work night and weekend

shifts .

4. Before being assigned a shift to work alone , a newly -

hired PES participates in two phases of training . Phase one

consists of familiarization with equipment , systems , parking

ordinances and regulations , and typically lasts four to six

weeks . Phase two is focused on hands - on training and a trainee

is given more opportunity to operate the vehicles and equipment .

One of the purposes of phase two is to ensure th at the trainee

is able to appropriately handle problems and stressful

situations that may arise on the job , such as dealing with irate

members of the public while immobilizing a vehicle .

5. Each phase of training is conducted by a fellow PES who

is t emporarily designated as a training officer under the CBA .

A PES serving in the temporary designation of training officer

is not considered a supervisor .

6. The C ity issues each PES certain take - home equipment ,

including a public safety police radio , key s , flashlight , and

identification card , for use while on the job . A PES takes

these items home when not on the job and is at all times

responsible for his or her City - issued equipment .

7. To perform the job , a PES is also required to u se a

License Plate Reader ("LPR" ) and related systems . A LPR scans

license plates and indicates when a car should be i ssued a

citation or boot. A PES is expected to drive a City vehicle and

view the screens of the machine that alert when the camera scans

a vehicle with ou tstanding citations . When a LPR alerts a PES

of a vehicle with outstanding citations , the PES must carefully

pull over and turn on the caution lights to advise oncoming

traffic of t he stopped City vehicle. Once safely pulled over ,

the PES may then check whether the vehicle has outstanding

citations and issue tickets .

The City ' s Polic ies and Work Rules

8. Prior to commencing employment at the City , each newly -

hired employee is provided with copies of the City ' s written

policies . The City has a Polic y Concerning Persons with a

Disability and Procedures for Accommodation ( " ADA Policy " ) . It

prohibits discrimination against a qualified individual because

of his or her disability and states that the City will provide

reasonable accommodation when necessa ry . It also explains the

procedures for requesting accommodation and that a request may

be made by contacting the City ' s Office of Professional

Standards ( " OPS " ) . OPS handles requests for workplace

accommodation and determines whether an accommodation wi ll be

provided .

9. On September 27 , 2017 , Petitioner was given a copy of

the City ' s ADA Policy and executed a form acknowledging receipt

of same . At no time during his employment did Petitioner

indicate that he was a qualified individual with a disa bility or

that he needed an accommodation for a disability or handicap

from the City. In fact, at final hearing, Petitioner ad mitted

he did not believe he had a handicap or needed an accommodation

to perform his role as a PES.

10. The C ity has Gener al Employees ' Work Rules ( " General

Work Rules " ) , which define Major Rule violations . Leaving the

City premises during work hours without a supervisor ' s

permission is listed as a Major Rule violation for which any

employee can be discharged immediately wit hout warning .

11. All newly - hired employees at the City receive training

on the City ' s General Work Rules . E ach Department is required

to post the City ' s General Work Rules in work areas . TAM posts

the City ' s General Work Rules document in the mai n security

office , which is where PESs check out their parking enforcement

equipment and pick up the keys to their vehicles.

12. On September 27 , 2017 , Petitioner was given a copy of

the City ' s General Work Rules and executed a fo rm acknowledging

its receipt.

Petitioner ' s Employment with PES

13. Effective October 2 , 2017 , Petitioner commenced

employment at the City as a probationary PES .

14. Parking Enforcement Supervisor Bryan Greene

( " Mr . Greene " ) was involved in the process of interview ing and

hiring Petitioner for the PES position . When Mr . Greene

initially contacted Petitioner to set up an interview , he asked

if Petitioner would need any accommodation . Petitioner stated

that he did not need any accommodation . Petitioner never told

M r . Greene that he had a disability or needed an accommodation

to perform the job . Mr . Greene was not aware that Petitioner

self - identified as a disabled veteran on his job application

with the City .

15. For phase one of training, Petitioner was assi gned to

train on the day shift . For phase two , Petitioner was assigned

to train on the night - shift with fellow PES and training

officer , Stephanie Sanchez ( " Ms . Sanchez " ) . Petitioner began

his night - shift training with Ms . Sanchez in November 2017 .

16. Acting Parking Shift Coordinato r Jose Vazquez

(" Mr . Vazquez " ) was the immediate supervisor of Petitioner and

Ms . Sanchez . Mr . Vazquez ' s immediate supervisor was Mr . Greene .

In the day - to - day performance of his job , Petitioner could

communicate with Mr . Vazquez by phone or e - mail . Petitioner

never told Mr . Vazquez or his co worker trainers that he had a

disability or needed any accommodation .

17. From time to time , Mr . Vazquez would check in with

Petitioner on his progress as a regular part of t he training

process . Petitioner never reported any problems with

Ms . Sanchez to Mr . Vazquez or Mr . Greene .

18. On December 6 , 2017 , Mr . Vazquez sent Petitioner a

series of routine e - mails regarding the status of various

equipment and training . In o ne of his e - mails , Mr . Vazquez

asked Petitioner if he felt comfortable with enforcement

operations and procedures and to let him know if there was

anything he was uncertain about . Petitioner sent a respo nse

stating, in relevant part, " Thanks Jose , I am co mfortable with

enforcement . Would like a little more training with the LPR and

the different computer programs used in the field." Petitioner

did not request to review anything else as part of training .

Events Leading to Petitioner ' s Termination

19. On December 7 , 2017 , at 12:30 p . m ., Mr . Vazquez

forwarded Petitioner ' s e - mail to Ms . Sanchez in reference to

training . He instructed her to go over the LPR process and how

it works with Pe titioner again and told her to " [l]et him drive

and control every thin g so that he gets a feel of it " and " [h]ave

him input manual tags too so that he is aware that the LPR will

not read all tags."

20. On December 7 , 2017 , at 5:00 p . m ., Petitioner started

his shift. Ms . Sanchez let Petitioner drive the City vehicl e in

the parking garage while she sat in the back . They stopped ,

parked behind another vehicle , and turned the caution lights on

so that Ms . Sanchez could review the LPR process with Petitioner

as he had requested. Ms . Sanchez encouraged Petitioner to

re view his notes on the LPR from the night before and asked him

to replicate the process to check if a vehicle w as eligible for

immobilization.

21. Petitioner became angry that rather than verbally

reviewing the instructions over and over with him, Ms. Sanchez

directed him to review his notes. Ms. Sanchez explained that

she previously had repeated the verbal instruction and wanted to

be sure that Petitioner could understand his own notes because

he was nearing the end of his training and would soon be on his

own with nothing to rely on but his notes.

22. At that point , Petitioner burst out a t Ms. Sanchez in

a raised voi ce , " You ' re aggravating me , I can ' t stand working

with you -- you just want me to fail . I ' m going home ."

23. Sanchez calmly e xplained that she was trying to help

him and reiterated that they would have to go through the steps

to learn the process . Petitioner did not listen . He

immediately put the City vehicle into drive and sped off to the

other side of the garage with Ms . San chez still in the vehicle .

Petitioner then parked , got out of the vehicle , and went into

the main security office with his belongings .

24. Because of Petitioner ' s outburst and behavior ,

Ms . Sanchez did not feel that it was safe for her to approach

h im and waited in the vehicle . After approximately five

minutes , Petitioner exited the main security office . He went

towards the pa rking elevator and left. Petitioner left his

City - issued take - home equipment , including police radio , keys to

access the bu ilding , and identification , inside the main

security office which was unsecured . Prior to leaving ,

Petitioner ha d only been at work for about one hour .

25. Ms . Sanchez immediately contacted Mr . Vazquez . She

notified him that Petitioner left work wi thout permission and

sent him an e - mail detailing the incident that occurred while

training Petitioner on use of LPR systems . Mr . Vazquez advised

Mr . Greene of the incident and forwarded him Ms . Sanchez ' s

e - mail . At no time during his December 7 , 2017, shift did

Petitione r communicate to any supervisor that he was leaving

work or not returning that night .

26. Mr . G reene recommended through chain - of - command that

Petitioner , as a probationary employee , be termina ted from City

employment. He felt tha t Petitioner would not be a good fit for

the PES position because he left work without a supervisor ' s

permission in violation of a Maj or Rule and left his City - issued

take - home equipment unattended in an unsecured building . This

raised serious safety conc erns given the sensitive nature of the

equipment , which in cluded a police radio. Additionally ,

Petitioner ' s rude , disrespectful , and troubling behavior towards

Ms . Sanchez raised concerns as to his abilit y to appropriately

deal with co workers and members of the public .

27. The C ity determined that Petit ioner voluntarily

resigned when he left work without contacting a supervisor and

le ft his City - issued take - home equipment unsecured in the

security office . Accordingly , the City accepted Petitioner ' s

voluntary resignation from employment , effective December 7 ,

2017 .

Petitioner ' s Argument

28. Petitioner claims that he had no intention of

resigning and that his separation from employment was a

termination based upon his disability or handicap. Petitioner

believes that his training by Ms. Sanchez should have conformed

to his preference on how to learn (repeated verbal instructions

without reference to notes or the guide book) and that he was

justifiably upset with her.

29. Petitioner expl aine d that his interaction with

Ms. Sanchez triggered intestinal distress , necessitating his

need to go home and change clothing. He intended to return to

work that night but claims he saw an e - mail from management that

if Petitioner returned to work, he was to be told to go back

home.

30. Petitioner was not copied on that e - mail nor could he

explain at final hearing how he saw that e - mail prior to the

initiation of his administrative complaint. Petitioner's

testimony on this point is not credible .

31. Further, Petitioner admits he did not contact a

supervisor prior to leaving his shift. Despite receiving and

reviewing the General Work Rules, Petitioner irrationally

assumed it was management's responsibility to reach out to him

to find out what was going on, rather than him requesting time

off. After going home, Petitioner made no effort that evening

to contact a supervisor to explain why he left the job.

32. Petitioner's suggestion, that leaving his work

equipment was not an indicat ion of quitting, is also not

credible. Petitioner claims that he left the keys and equipment

in what he believed was his own mailbox, assumed no one would

touch it, and that the building was secure. Petitioner cross -

examined the City witnesses at final h earing in detail about

where his equipment was actually left (on a desk or in his

mailbox) but , ultimately, he provided no rational explanation

why he left everything in an unsecured building on December 7,

2017, when after every other shift , he previously took those

things home.

33. Petitioner did not identify any handicap or disability

either while employed with the City or at final hearing. Nor

did he request any accommodation that would have enabled him to

perform the essential functions of the P ES job.

CONCLUSIONS OF LAW

3 4. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this case .

§§ 120 . 569 and 120 . 57 , Fla . Stat .

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

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

otherwise discriminate against an individual on the basis of

handicap.

36. The FCHR and Florida courts have determined that

federal discrimination laws should be used 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) .

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

unlawfully terminated by the City a s a PES on the basis of his

handicap.

Establishing Discrimination

38. 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 e vidence 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 , 1289 (11th Cir . 2003) .

39. " Direct evidence is composed of ' only the m ost 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

presented no direct evidence of handicap discrimination or

retaliation .

4 0. " [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 discrimination " are permitted to establish their

cases through inferen tial and circumstantial proof ." Kline v .

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

41. Where a complainant attempts to prove intentional

discrimination using circumstantial evidence , the shifting

burden analysis established by the United Sta tes 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 - established model of proof ,

the complainant bears the initial burden of esta blishing a prima

facie case of discrimination .

42. 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 legitimate , non - discriminatory explanation for the

employment action . See D ep ' 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 persuasion . Id . ; Alexander v . Fulton Cty ., Ga . ,

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

43. 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 , 168

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

dir ectly 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 . Dep ' t of Corr . v . Chandler , 582 So . 2d at 1186 ;

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

not met this burden .

44. " Although the intermediate burdens of production shift

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

fact that the employer intentionally discriminated against the

[Peti tioner] 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

2007)( " The ultimate burden of proving intentional discrimination

again st the plaintiff remains with the plaintiff at all

times ." ) .

Proving Handicap 1/ Discrimination

45. Handicap discrimination claims under the FCRA are

analyzed under t he same framework as federal disability claims .

D ' Angelo v . Conagra Foods , Inc . , 422 F . 3 d 1220 , 1224 n . 2 (11th

Cir . 2005) .

46. 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 disabili ty . Greenberg v . BellSouth

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

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

47. The burden then shifts to defendant to articulate a

legitimate , non - discriminatory reason for plaintiff ' s

term ination . 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 pretext for discrimination . See

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

(11th Cir . 2004) .

48. In this case , Petitioner provided no direct evidence

of discrimination . Accordingly , the burden - shifting analysis is

appropriate . Petitioner failed to demonstrate two prongs of the

prima facie case - Î that he h as a "disability " and that he wa s

discriminated against " because of " his disability .

49. Petitioner apparently assumes that he is handicapped

or disabled within the meaning of the FCRA because he is a

"disabled veteran." However , Petitioner introduced no evidence

of his alleged handica p or disability at final hearing .

50. The ADA defines a person with a disability as a person

who has a physical or mental impairment that substantially

limits one or more major life activities. This includes people

who have a record of such impairment , e ven if they do not

currently have a disability . It also includes individuals who

do not have a disability but are regarded as having a

disability . See 42 U.S.C. § 12102 (1).

51. The closest Petitioner came at final hearing to

explaining his situation wa s to state that on the night in

question, he was forced to go home prematurely before the end of

his shift du e to stress - induced intestinal issues. Petitioner

did not explain the nature of his alleged handicap or

disability, any record of being disabled, or the manner in which

his condition affects his major life activities.

52. Even assuming arguendo that Petitioner is disabled or

handicapped within the meaning of the FCRA, Petitioner failed to

demonstrate his termination was "because of" his handicap.

Petitioner cannot meet this prong of the prima facie case

because there is no evidence that any decision - maker involved

with Petitioner's separation had any information about his

alleged handicap.

53. Further, Petitioner fails to satisfy his initial

burde n because he never requested any accommodation . The C ity

has a written ADA Policy that sets forth procedures for

requesting a workplace accommodation . It is undisputed that

Petitioner received a copy of the City ' s ADA Policy prior to

starting employment in his PES position . Petitioner admits he

never made a request for an accommodation to perform the job to

any supervisor or management personnel . Moreover , Petitioner ' s

own testimony is that he never felt that he needed an

accommodation . To the extent t hat Petitioner claims he asked

for additional training , the City provided him with additional

training on the LPR systems precisely as he requested .

54. If Petitioner met the prongs of the prima facie case,

his case would still fail because the City offer ed a legitimate ,

non - discriminatory r eason for Petitioner's separation.

Petitioner's outburst against a co worker, leaving his shift

without prior authorization, and leaving his PES equipment

unsecured, constitute Major Rule violations and are legitimate

r easons to assum e Petitioner voluntarily walked off the job with

no intent to return.

55. The PES position requires the employee to work

independently, frequently interacting with upset parkers in

stressful situations. In light o f the events of December 7,

2017 , the City properly determined that placing Petitioner in

the position of PES was not in its best interest. No rational

employer would chose to retain a probationary employee under

these circumstances .

56. Petitioner offered no evidence that any of the City ' s

reasons for his separation from employment w ere a pretext for

discrimination .

57. Regardless of whether Petitioner's separation is

categorized as a resignation or termination, Petitioner failed

to demonstrate that he was discriminated on the basis of his

handicap. 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 RECOM MENDED that the Florida Commission on Human

Relations issue a final order dismissing the FCHR Petition 2018 -

04710.

DONE AND ENTERED this 13th day of May , 2019 , in

Tallahassee, Leon County, Florida.

S

MARY LI CREASY

Admin istrative 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 Hearin gs

this 13th day of May , 2019 .

ENDNOTE

1/ The FCRA prohibits discrimination in employment on the basis

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

" disability ." For purposes of this Recommended O rder, the terms

are used interchang eably.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399 - 7020

(eServed)

Carmen Rodriguez, Esquire

Law Offices of Carmen Rodriguez, P.A.

15715 South Dixie Highw ay , Suite 411

Miami, Florida 33157

(eServed)

Keith Sewell

Apartment 106

1103 Southwest 15th Street

Deerfield Beach, Florida 33441

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Flo rida 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 tha t

will issue the Final Order in this case.