20-004767 Matthew P. Mathews vs. Lennon National Account Services Status: Closed Recommended Order on Tuesday, June 22, 2021.

Summary: Petitioner failed to prove his claim of discrimination based on a disability or retaliation. Recommend dismissal.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

M ATTHEW P. M ATHEWS ,

Petitioner,

vs. Case No. 20 - 4767

L ENNO X N ATIONA L A CCOUNT S ERVICES ,

Respondent .

/

R ECOMMENDED O RDER

An administrative hearing was conducted in this case on March 1 5

and 16 , 2021 , via Zoom, before James H. Peterson III, Administrative

Law Judge with the Division of Administrative Hearings (DOAH).

A PPEARANCES

For Pet itioner: Matthew P. Mathews, pro se

Apartment 305

7940 Front Beach Road

Panama City Beach, Florida 32407

For Respondent: Sherril M. Colombo, Esquire

Littler Mendelson, P.C.

Wells Fargo Center , Suite 2700

333 Southea st Seco nd Avenue

Miami, Florida 33131

S TATEMENT OF T HE I SSUE

Whether Respondent, Lenno x National Account Services ( Lennox or

Respondent), violated the Florida Civil Rights Act of 1992 , 1 by discriminating

1 Unless otherwise indicated, all references to the Florida Statutes, Florida Administrative Code, and

federal laws are to the current versions, which have not substantively changed since the time of the alleged

discrimination.

against the employment of Matthew P. Mathew s (Petitioner) because of his

disability , or in retaliation for his engagement in protected activities.

P RELIMINARY S TATEMENT

Petitioner filed an Employment Complaint of Discrimination

(Discrimination Complaint) with the Florida Commission on Human

Relati ons (the Commission or FCHR) on April 8 , 2020 , which was assigned

FCHR Case No . 20202 4568 .

After investigating Petitioner Ô s allegations, the Commission Ô s executive

director issued a document entitled Ñ Determination : No Reasonable Cause , Ò

dated October 5, 2020 , accepting the Commission Ô s Office of General

Counsel Ô s recommendation Ñ that it is unlikely that unlawful discrimination

occurred in this matter. Ò An accompanying Notice of Determination notified

Petitioner of his right to file a Petition for Relief for an administrative

proceeding within 35 days of the Notice. On October 25, 2020 , Petitioner

timely filed a Petition for Relief, and the Commission forwarded the petition

to DOAH for the assignment of an administrative law judge to conduct a

hearing.

Th e undersigned was assigned the case and scheduled the administrative

hearing to be held January 11, 2021, but that hearing date was continued

until March 15, 2021 , when the final hearing was held via Zoom conference .

During the hearing, Petitioner testifie d on his own behalf , called

Respondent Ô s H uman R esources D irector Karen Cerrato, Respondent Ô s S afety

D irector Steve Coe, and Respondent Ô s Panama City Branch Manager Keith

Green as witnesses , and offered 21 exhibits received into evidence as Exhibits

P - 1 th rough P - 7, P - 10 through P - 19, P - 21, P - 22, P - 24 , and P - 25, as described

i n Petitioner Ô s Exhibit List attached as Exhibit A to the Prehearing

Stipulation filed in this case on March 11 , 2021. Although the exhibit

numbers may differ, all of PetitionerÔs exhib its identified in the Pre - hearing

Stipulation were electronically filed on the docket of this case . Also, at the

final hearing, a video file was played. That video file is contained on a flash

drive and was received into evidence as Exhibit P - 26. Responden t presented

its case through expanded cross - examination of Petitioner and his witnesses

and offered 32 exhibits received into evidence as Exhibits R - 1 through R - 11,

R - 13, R - 14, R - 17, R - 18, R - 20, and R - 22 through R - 37, as described i n

Respondent Ô s Exhibit L ist attached as Exhibit B to the Prehearing

Stipulation . In addition, by agreement of the parties, the first five docket

entries in this case were received into evidence as Joint Exhibits 1 through 5.

The proceedings were recorded and a transcript was ord ered. The parties

were given 30 days from the filing of the transcript to submit their proposed

recommended orders. The four - volume Transcript of the hearing was filed

April 28, 2021 . On May 26, 2021, the parties filed a Joint Request for

Extension of Time to Submit the Post - Hearing Proposed Findings of Fact and

Conclusions of Law , which was granted by an Order Granting Extension of

Time entered May 26, 2021, giving the parties until June 3, 2021, within

which to file their respective Proposed Recommended O rder s . Thereafter, the

parties filed their Proposed Recommended Orders on June 3, 2021, both of

which ha ve been considered in the preparation of this Recommended Order.

F INDINGS OF F ACT

1. Lennox sells, installs, recycles , and maintains commercial heating,

ventilation, and air - conditioning equipment for large, national companies.

Lennox Ô s services are performed by s ervice t echnicians assigned to branch

offices throughout the United States.

2. Petitioner accepted employment with Lennox as a Level II Service

T echnician on June 10 , 2019 .

3. Petitioner Ô s Discrimination Complaint alleges:

Complainant (CP), began his employment with

Respondent in 06/2019 and holds the position of

Level II Tech. CP was subjected to retaliation,

different terms and conditions of emp loyment and

was held to a different standard because of his

disability and Respondent failed to accommodate

him. CP sustained a job - related inju r y on

02 /11 /2020, CP reported the inj ur y to his Manager

Keith Green on 02/12 / 2020. CP told Keith he

needed to se e a doctor; Keith pressed CP to do more

work. CP told Keith in a loud, cl ear voice that he

needed to see the doctor. CP saw Dr. Bernier and

sent Keith a copy of his doctor slip. On 02 / 24/2020,

CP went to Lennox NAS corporate for a week of

classroom trainin g and went on tour with all other

students. CP met all corporate leadership and they

all saw he was injured. Steve Coe (Safety Director)

pulled CP from class to a closed - door meeting with

Chris and began to yell at him and berate CP about

his injury. CP wa s asked why he didn Ô t report the

injury, but CP told them he did. CP asked Steve

Coe to consider his credentials and allow him the

opportunity to do other work , CP was dismissed.

On 03/04/2020, Respondent retaliated against CP

by retrieving the equipment p rovided to him such

as, hi s wor k van, company cell phone and he no

longer had access to his work emai l. CP contacted

Joanna Amy to inquiry why they had taken away

his work equipment and why he no longer had

access to his work email. Joanna info rm ed CP it

w as because he had filed for Workman Ô s Comp. CP

st atus is currently unknown, he is not considered

terminated and he has not resigned but , is not

currently working.

4. During his employment with Lennox, Petitioner was assigned to the

Panama City Beach Branch, where he reported to B ranch M anager Keith

Green. Steve Coe was the assigned safety director at the time.

5. As part of his orientation process for employment with Lennox ,

Petitioner acknowledged receipt of the company h andbook (Handbook) . The

Handbook states that Lennox offers reasonable accommodations to qualified,

disabled candidates and employees. The Handbook further states that the

accommodation process (including work restrictions) is administered by

Lennox Ô s office of h uman r esources and must be proper ly documented.

Specifically, section 5.9 of the Handbook entitled Ñ Accommodations , Ò

provides:

The accommodation process (including Ó light duty, Ô

work restrictions, etc.), is administered Ï

exclusively Ï by Human Resources and must be

proper l y documented. I f the need for

accommodation is not obvious, you will be required

to submit medical documentation about your

disability and the limitation(s) that you are

experiencing. You may also be asked to provide an

explanation the workplace barrier(s) that need to

b e accommodated and a description of the desired

accommodation. The forms in question Ï the

Ó Healthcare Provider Information Request Form Ô

and the Ó Accommodation Request Form, Ô

respectively Ï are available from Human Resources

and will serve as the basis fo r your interactive

discussions with them.

6. During his active employment, Lennox provided Petitioner with access

to a c ompany cell phone, email , and fleet work van solely for work - related

purposes.

7. In addition to the H andbook, Petitioner acknowledged recei ving the

NAS Policy & Procedures Booklet, which included the Company Vehicle Use

Requirements and the Fleet Safety Policy . That vehicle policy stated, in

relevant part:

B. Vehicle Use

Understand that you will be assigned a Company

vehicle to be used to p erform your job

responsibilities. You will also be allowed to use the

vehicle to travel between home and work (i.e. for

commuting) È. You will not È use the vehicle for

personal use beyond that which is incidental to your

commute to or from work. (emphasis added).

8. In addition to the use of a company vehicle, Petitioner acknowledged

the cell phone agreement wherein he agreed that Lennox was providing him

with a cell phone for Ñ business use. Ò

9. Petitioner also acknowledged receipt of the Lennox Ô s co de of b us iness

c onduct (Code of Conduct) . The Code of Conduct includes Lennox Ô s policy

prohibiting discrimination and/or harassment due to a disability or any other

status protected by federal, state , and/or local law. The Code of Conduct

includes reporting procedu res encouraging reporting of alleged

discrimination, harassment , or retaliation.

10. Access to information about Lennox Ô s policies, including the Code of

Conduct and reporting procedures, is available to employees online (among

other places), and explained thr ough training sessions, new - hire orientation ,

and company publications and postings.

11. According to Petitioner, o n October 24, 2019, while working for Lennox

in the Panama City area, he was ordered by Keith Green to pick up a crane

pad above his head, and wh en he did, Ñ he felt something in his knee. Ò

Petitioner allegedly spoke to Mr. Green on the phone when Mr. Green sent

him to another job and said to Mr. Green, Ñ Will you please be mindful of your

tradesman because my knee is hurting. Ò

12. Petitioner testified that the phone call became Ñ hostile Ò and that he

ended up talking to S afety D irector Steve Coe, who sent Petitioner to

Tallahassee for a four - hour ladder training course. There is no documentation

indicating that Petitioner reported the alleged knee injury as an on - the - job

injury that day.

13. After that, Petitioner allegedly either aggravated his knee injury,

or injured his knee again , while using an Ñ unapproved Ò ladder on

February 11, 2020, at the direction of Mr. Green.

14. On February 13, 2020, Petitioner spok e with Lennox Ô s s afety d irector,

Steve Coe, about discomfort with his right knee . When asked by Mr. Coe if he

injured his knee at work, Petitioner replied he was going for an MRI and if he

needs surgery, he will report the injury as Ñ work - related Ò ; otherwi se, he

would handle it with his own insurance. Mr. Coe explained to Petitioner that

is not an appropriate way of handling the matter and then outlined the

process for reporting work - related injuries. Petitioner did not report the

injury as work - related to Mr. Coe or his supervisor, Mr. Green , and he

subsequently returned to work to attend a training class.

15. Petitioner requested, and was allowed time off work on February 28,

2020, to attend an MRI appointment for his right knee.

16. On March 2, 2020, Petitioner n otified Lennox that he was unable to

return to work due to his knee injury. On the same day , Petitioner applied for

both short - term disability and workers Ô compensation. Petitioner Ô s short - term

disability claim was handled by Lennox Ô s third - party disabilit y

administrator , Sedgwick.

17. T he short - term disability notification to Lennox from Sedgwick , which

also included Petitioner as a recipient, referenced Petitioner Ô s last day

worked as February 27, 2020 , and first day of absen ce as March 2, 2020 . The

n otifica tion further stated that Petitioner would also be evaluated under the

Family Medical Leave Act (FMLA) for available coverage .

18. Sedgewick Ô s March 2, 2020 , short - term disability notification also

informed Petitioner that he may want to apply for a Ñ reasonable

accommodation Ò in addition to other potential benefits, such as unpaid

personal leave of absence. The notification further stated that during its

review process, Petitioner Ô s absences should be treated as pending , with

neither approval nor disapproval und er Lennox Ô s attendance policy.

19. Because Petitioner indicated in his short - term disability filing that his

knee injury occurred at work, a workers Ô compensation claim was initiated

with Lennox Ô s third - party workers Ô compensation administrator, ESIS.

20. Because Petitioner was no longer actively working, on March 4, 2020,

consistent with company practice and policy, Lennox collected its fleet van

that had been issued to Petitioner.

21. Also, since Petitioner had not returned to work or provided a return to

work dat e, Lennox disabled Petitioner Ô s access to the company email since he

was no longer at work.

22. Petitioner claims that he was treated differently than another Lennox

service technician, Julian Wiles, who allegedly was permitted to retain access

to the compan y portal while on leave. Petitioner Ô s evidence of this was the

fact that Mr. Wiles was included in company training emails while on leave.

23. Further evidence indicated, however, that simply because Mr. Wiles

was included as a recipient on company email s sent to numerous other

employees about training requirements, it did not indicate that Mr. Wiles

had access to the portal while on approved leave. Rather, the training email

evidence submitted by Petitioner was simply reflective of training emails that

were se nt out in clusters for those who had not completed training .

24. Further, it was shown that, unlike Petit i o n er, Mr. Wiles was on

approved medical leave during the period he was absent because he had

provided necessary medical documentation, and then he eventua lly returned

to work.

25. Although Petitioner was removed from Lennox Ô s portal, at Petitioner Ô s

request, Lennox agreed to allow Petitioner to retain his company - issued cell

phone.

26. Petitioner Ô s short - term disability was denied by Sedgwick on March 9 ,

2020. Sedg wick Ô s short - term disability denial letter stated, in part, that

Petitioner Ô s leaves of absence, unless excused by another form of leave or a

reasonable accommodation, were unapproved under Lennox Ô s attendance

policy, which is set forth in the Handbook. Sp ecifically, the March 9, 2020 ,

short - term disability denial letter from Sedgwick advised Petitioner:

¤ Attendance: The denial of your claim means that the

absences in question Ï unless excused by another form

of leave or a reasonable accommodation Ï are

unap proved under your Company Attendance Policy

(Appendix C to the Employee Handbook). Excessive

Unapproved absences or 3 consecutive work days of

No - Call, No - Show will result in discipline, up to and

including the termination of your employment. Please

talk t o your Human Resources Business Partner if you

have questions.

¤ Reasonable Accommodations: In addition to paid and

unpaid leave, your company also offers reasonable

accommodations (including additional unpaid time - off)

to qualified disabled employees. Re asonable

accommodations are managed by Human Resources Ï

not by the LII Disability Leave Service Center. For

more information, please refer to the Employee

Handbook. To apply for an accommodation, please

contact your Human Resources Business Partner at

the number listed in Appendix A to the Employee

Handbook.

(emphasis added).

27. Subsequently, on March 10, 2020, Sedgwick notified Mr. Green and

Lennox that Petitioner Ô s short - term disability b enefit claim was denied as of

March 2, 2020 , due to the worker Ô s c ompensation exclusion, and that

Petitioner was not eligible for leave under FMLA due to length of service.

28. Because Petitioner did not qualify for leave under FMLA, he was

deemed on unapproved absence from Lennox as of March 2, 2020.

29. On May 14, 2020, Lenno x Ô s human resources director, Karen Cerrato ,

sent Petitioner a letter ( the May 14th letter) advising Petitioner that he

needed to contact Lennox Ô s office of human resources by May 19, 2020 , to

arrange a convenient time to discuss leave options or return to work with or

without reasonable accommodations.

30. The May 14 th letter made it clear that , if Petitioner wanted to obtain

approved leave or reasonable accommodations, he was responsible for making

the requests and filling out necessary paperwork. Accommodati on paperwork

was attached to the May 14 th letter, including an Ñ Accommodation Request

Form Ò and a Ñ Health Care Provider Information Form. Ò The attached

accommodation paperwork stated:

You are responsible for making sure that HR

receives the completed forms and any other

information needed to support your accommodation

request. In most cases, this will require you to

return documentation and/or follow - up with your

health care provider to ensure that they are doing

their part.

31. On March 18, 2020, Petitioner Ô s worker Ô s compensation claim was

denied by the Florida Department of Financial Services, Division of Workers Ô

Compensation, on the basis that Ñ there was no accident as defined by

440.02(1) that resulted in said injury. Ò

32. On May 19, 2020, Petitioner respon ded to Ms. Cerrato Ô s May 14 th

letter by providing a document from Sedgwick indicating that he was able to

return to work on May 3, 2020 , without restrictions.

33. The next day, May 20, 2020 , Ms. Cerrato sent an email to Petitioner

advising that he had not adeq uately responded to the May 14 th letter Ô s

request for his leave options or return to work. The email stated that , not

only was the Sedgwick document that Petitioner provided her insufficient to

comprise an accommodation request, it rather Ñ provides an unre stricted

return to work date of 5/3 (more than 2 weeks ago). Ò The final paragraph of

the email stated:

Please call me before 4:00 pm today so we can

discuss the option you plan to pursue . If I do not

receive your call by 4:00 pm today, I will

understand (b ased on the paperwork you provided)

that you have been able to work without

restrictions since 5/3 and have elected to resign.

34. In response, that same day, May 20, 2020, Petitioner Ô s workers Ô

compensation counsel, Chris Cumberland, sent an email to Ms. Cer rato, but

failed to provide a return to work date or clarify whether reasonable

accommodations were needed. Rather, Petitioner Ô s counsel Ô s email stated in

pertinent part :

Mr. Mathews is willing to return to work, but as

the carrier has not provided an auth orized workers

compensation physician, he is unaware at this time

as to what his work restrictions truly are. He

knows personally that he is in a great deal of pain

and that he likely has a torn meniscus in his knee

which needs to be repaired before he can perform

tasks a t a full duty level. I would ask that you

please discuss this with your counsel and I will

advise my client accordingly.

35. Jodie Michalski, counsel for Lennox, responded to Mr. Cumberland via

email that same day, May 20, 2020 , noting Petiti oner Ô s u napproved a bsence

status since early March because of his previously denied short - term

disability, workers Ô compensation, and FMLA claims , and suggesting the

option of applying for a reasonable accommodation under the American s with

Disabilities Ac t (ADA) . Ms. Michalski Ô s email also advised Petitioner Ô s

counsel that Lennox was willing to grant a reasonable period for additional

unpaid leave so that Petitioner could complete the necessary paperwork.

Ms. Michalski Ô s email posed the following question s:

1. Is your client interested in pursuing an

accommodation (including additional, unpaid time

off)?

2. If so, can he commit to providing the completed

paperwork to Human Resources within 15 calendar

days, which we consider a reasonable amount of

time?

36. The last sentence of Ms. Michalski Ô s email stated: Ñ I look forward to

your response by 4:00 p.m . Alternatively, your client can reach out to Karen

Cerrato directly with his response. Ò

37. When neither Mr. Cumberland nor Petitioner timely responded to

Ms. Mich alski Ô s May 20th email to Petitioner Ô s counsel, o n May 26, 2020 ,

Ms. Cerrato email ed Petitioner and advised him that , in the absence of an

appropriate response, Lennox would conclude there was no interest in a

reasonable accommodation and would process Pet itioner Ô s separation of

employment after 4:00 p . m . on May 27, 2020. At the time, Petitioner had

received approximately 84 days of unapproved absence and was advised that

if he would like to pursue a reasonable accommodation, including additional

unpaid lea ve, that he must contact Ms. Cerrato immediately.

38. On May 27, 2020, after the 4:00 p.m. deadline, instead of responding

directly to Ms. Cerrato Ô s requests for clarification, Petitioner sent three

separate email s to Ms. Cerrato indicating that he was willing to work within

the restrictions from his doctor ( which were not provided ) , referring to the

disability statement previously provided (the one stating that he could return

to work May 3 rd ) , and advising t hat he had an upcoming doctor visit .

Petitioner Ô s co rrespondence failed to provide the requested accommodation

paperwork and , instead, alleged, Ñ To this point, your demands have been

impossible because Lennox has prevented me from various resources. Ò

39. Ms. Cerrato responded to Petitioner by email that same d ay, again

requesting that he engage in good faith with Lennox, address the questions

previously directed to him, provide any restrictions from his doctor , and

complete the accommodation paperwork , including the Employee

Accommodation Request Form and Healt h Care Provider Information Form.

Ms. Cerrato Ô s email gave Petitioner more time , until May 28, 2020, to provide

the previously requested information and necessary paperwork. She also

advised Petitioner that if he failed to provide th e information and paper work

by June 12, 2020, it would be assumed that Petitioner w as cleared to return

to work without restrictions but that he had chosen not to return to

employment with Lennox .

40. Petitioner responded with another email later that same day,

May 2 7th , promising to submit the accommodation paperwork following his

doctor Ô s appointment scheduled for May 28, 2020. In his email , Petitioner

also made complaints directed against Mr. Green and Mr. Coe regarding

Petitioner Ô s alleged injury and alleging discrimination.

41. Ms . Cerrato contacted Petitioner via email the next morning, May 28,

2020, stating, in part, that she looked forward to receiving the completed

paperwork and engaging in the interactive process. In her email, Ms. Cerrato

also advised Petitioner that his comp laint against Ms. Cerrato, Mr. Green ,

and others for discrimination, harassment , and bullying, had been

investigated and that the allegations were not substantiated.

42. Petitioner responded to Ms. Cerrato via email later that day,

May 2 8th, advising that his doctor Ô s appointment had been rescheduled for

May 29th , suggesting that Ms. Cerrato was unwilling to fairly address issues

he had reported to her, suggesting that she had made an Ñ offer Ò and

requesting arbitration.

43. Ms. Cerrato responded by email the next day stating:

I am happy to grant you an additional day to

submit your accommodation paperwork.

In the meantime, please clarify the following two

points:

1. You reference my Ñ offer Ô . What offer did I

make?

2. You reference Ñ arbitration Ò several times.

Pl ease explain what you mean.

I look forward to receiving your paperwork today.

44. Petitioner did not provide the paperwork or respond.

45. On June 5, 2020, Ms. Cerrato sent an email to Petitioner stating:

I understood from you r May 28, 2020 email that

you would be sending me your accommodation

request and supporting medical documentation on

May 29 after your doctor Ô s appointment.

Another week has passed, but we have not received

anything further from you (e.g. your request form,

medical support, a request for mo re time, or a

r es p onse to the questions I asked on May 28). We

must concluded [sic] , therefore, that you will not be

pursuing an accommodation or returning to work.

As such, we have processed your separation,

effective today.

If you feel there has been an error ( e.g. if I missed

an email from you), please let me know.

If I do not hear from you, we wish you well in your

future endeavors.

46. Petitioner failed to respond. Petitioner was never considered by

Lennox to be disabled , never properly requested acco mmodations , and failed

to prove that he had a work - related injury. Petitioner never provide d

required paperwork , did not clarify any workplace restrictions , never

requested more time before returning to work, and never advised whether he

even intended to r eturn to work.

47. Petitioner Ô s workers Ô compensation claim was denied, and the

evidence submitted in this case was insufficient to prove Petitioner Ô s claims of

discrimination or retaliation.

C ONCLUSIONS OF L AW

48. The Division of Administrative Hearings has ju risdiction over the

parties and subject matter of this proceeding. See §§ 120.569, 120.57(1), and

760.11(4)(b), Fla. Stat.; see also Fla. Admin. Code R. 60Y - 4.016.

49. The Florida Civil Rights Act of 1992, as amended ( FCRA ), is codified

in sections 760.01 thr ough 760.11, Florida Statutes.

50. The FCRA is modeled after Title VII of the Civil Rights Acts of 1964

and 1991, 42 U.S.C. § 2000, et seq . (Title VII) , so that federal case law

regarding Title VII is applicable to construe the FCRA . See Castleberry v.

Edward M. Chadbourne, Inc. , 810 So. 2d 1028, 1030 (Fla. 1st DCA 2002).

51. Section 760.10(1) provides, 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 discri minate against any

individual with respect to compensation, terms,

conditions, or privileges of employment, because of

such individual Ô s race, color, religion, sex, national

origin, age, handicap, or marital status.

(b) To limit, segregate, or classify emp loyees or

applicants for employment in any way which would

deprive or tend to deprive any individual of

employment opportunities, or adversely affect any

individual Ô s status as an employee, because of such

individual Ô s race, color, religion, sex, national

origin, age, handicap, or marital status.

52 . The language in section 760. 10(1) parallels language in Title I of the

ADA, 42 U . S . C . § 121 12 (a), which prohibits discrimination in employment

based on disabilities, 2 as follows:

General rule . No covered enti ty shall discriminate

against a qualified individual on the basis of

disability in regard to job application procedures,

the hiring, advancement, or discharge of employees,

employee compensation, job training, and other

terms, conditions, and privileges of employment.

53. Noting differences in the federal analysis of discrimination claims

based on handicap from analyses applied to other discrimination claims, in an

opinion rendered not long after enactment of the Americans with Disabilities

Act of 1990 , 42 U.S.C. §§ 12101 - 12213 (ADA) , the Florida First District Court

of Appeal in Brand v. Florida Power Corporation , 633 So. 2d 504, 510, n.8

(Fla. 1st DCA 1994), observed:

2 ÑThe ADA has thre e separate titles: Title I covers employment discrimination, 42 U.S.C.

§§ 12111 - 12117; Title II covers discrimination by government entities, Id. §§ 12131 - 12165;

and Title III covers discrimination by places of public accommodation, Id. §§ 12181 - 12189.Ò

Co lorado Cross Disab . Coal . v. Hermanson Fam . L t d . P Ô ship I , 264 F.3d 999, 1006 (10th Cir.

2001)

Due to its recent enactment, we do not comment on

what effect the Americans with D isabilities Act of

1990 (ADA) (42 U.S.C. §§ 12101 - 12213) may have

on handicap discrimination claims prosecuted

pursuant to Florida Ô s Human Rights Act, but it

appears from our examination of certain key

provisions in the ADA paralleling section 504 that

Con gress intended to extend protections against

handicap discrimination equal to or greater than

that provided by section 504 to qualified individuals

with handicaps. Hence, we are of the view that case

law interpreting section 504 is highly persuasive

author ity in actions brought under the ADA to the

extent that the provisions in the two acts coincide.

54. Subsequently, Florida courts have construed the FCRA in conformity

with the federal Rehabilitation Act, 29 U.S.C. § 701 et seq., as well as the

ADA and r elated regulations. See e.g., McCaw Cellular Commc Ô ns of Fla., Inc.

v. AT&T Wireless Serv. , 763 So. 2d 1063, 1065 (Fla. 4th DCA 1999); Green v.

Seminole Elec. Coop. , 701 So. 2d 646, 647 (Fla. 5th DCA 1997); cf., Chanda v.

Engelhart/ICC , 234 F.3d 1219, 1221 (11th Cir. 2000)( Ñ [A]ctions under the

Florida Civil Rights Act are analyzed under the same framework as the

ADA. Ò ).

55. As developed in federal cases, a prima facie case of discrimination

under Title VII may be established by direct evidence, which, if be lieved,

would prove the existence of discrimination without inference or

presumption. Direct evidence, consisting of blatant remarks whose intent

could be nothing other than discriminatory, does not exist in this case. See

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

Cir 1999). Where direct evidence is lacking, one seeking to prove

discrimination must rely on circumstantial evidence of discriminatory intent,

using the three - part shifting Ñ burden of proof Ò pattern established in

McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973). See Holifield v. Reno ,

115 F.3d 1555, 1562 (11th Cir. 1997).

56. Under McDonnell Douglas , first, Petitioner has the burden of proving

a prima facie case of discrimination by a preponderance of the evid ence.

Second, if Petitioner sufficiently establishes a prima facie case, the burden

shifts to Respondent to Ñ articulate some legitimate, nondiscriminatory

reason Ò for its action. Third, if Respondent satisfies this burden, Petitioner

has the opportunity to prove by a preponderance of the evidence that the

legitimate reasons asserted by Respondent are, in fact, mere pretext.

McDonnell Douglas Corp ., 411 U.S. at 802 - 04.

57. Considering applicable federal case law analyses under both Title VII

and the ADA , in order to establish a prima facie case of discrimination based

on handicap under the FCRA , Petitioner must prove: (1) that he is a

handicapped person within the meaning of section 760.10(1)(a); (2) that he is

a qualified individual; and (3) that Respondent discriminated against him

base d on his disability. See e.g., Byrd v. BT Foods, Inc ., 948 So. 2d 921, 925 -

26 (Fla. 4th DCA 2007), citing Earl v. Mervyns , 207 F.3d 1361, 1365

(11th Cir. 2000); Pritchard v. S. Co. Servs ., 92 F.3d 1130 (11th Cir. 1 996) .

58. As explained by the Fort h District Court of Appeal in Byrd :

Regarding the first element of a prima facie case,

the FCRA does not define the term Ñ handicap. Ò We

therefore look to the ADA Ô s definition of a

Ñ disability. Ò See Ross v. Jim Adams Ford, Inc. ,

871 So . 2d 312 (Fla. 2d DCA 2004). The ADA

defines a Ñ disability Ò as Ñ a physical or mental

impairment that substantially limits one or more of

the major life activities of such individual, a record

of such impairment; or being regarded as having

such an impairme nt. Ò 42 U.S.C. § 12102(2). Ñ Major

life activities Ò include Ñ functions such as caring for

oneself, performing manual tasks, walking, seeing,

hearing, speaking, breathing, learning and

working. Ò Bragdon v. Abbott , 524 U.S. 624, 118

S.Ct. 2196, 141 L.Ed.2d 54 0 (1998); see 45 C.F.R.

§ 84.3(j)(2)(ii); 28 C.F.R. § 41.31(b)(2)(1997).

948 So. 2d at 926

59. As to the first element, Petitioner failed to establish that he had a

handicap or disability. His application for short - term disability was denied by

the third - party disability administrator, Sedgwick. He never provided

information or evidence that he had an impairment that substantially limited

one or more of his major life activities. In fact, the information he provided to

Lennox indicated that he was able to return to work as of May 3, 2020.

60. Regarding the second element, Petitioner failed to show he was a

qualified individual.

The ADA provides that a Ñ qualified individual Ò is

an individual with a disability who, with or without

reasonable accommodation, c an perform the

essential functions of the job. 42 U.S.C.A.

§ 12111(8) . If a qualified individual with a

disability can perform the essential functions of the

job with reasonable accommodation, then the

employer is required to provide the accommodation

unle ss doing so would constitute an undue

hardship for the employer. 42 U.S.C.A.

§ 12112(b)(5)(A) . Reasonable accommodations to

the employee may include, but are not limited to,

additional unpaid leave, job restructuring, a

modified work schedule, or reassignm ent.

42 U.S.C.A. § 12112(9)(B) .

Byrd , 948 So. 2d at 925, quoting McCaw Cellular Commc Ô ns of Fla. v.

Kwiatek , 763 So. 2d at 1065.

61. Despite repeated requests from Lennox asking Petitioner to provide

information regarding what reasonable accommodations he was seeking,

Petitioner failed to provide that information. Petitioner presented no

evidence that he could perform the essential functions of his job with Lennox

with reasonable accommodations.

62. Further , in view of unrefuted evidence indicating Petitio ner Ô s lack of

response to repeated requests from Lennox asking Petitioner to provide

necessary information and paperwork for an accommodation, it is found that

it was Petitioner Ô s lack of response, and not Lennox Ô s refusal, that resulted in

the failure of Petitioner to secure a reasonable accommodation.

63. Petitioner also failed to prove that he was discriminated against

because of his disability.

64. Other than his own speculative belief, Petitioner submitted no

evidence to support his contention that he was discriminated against because

of his disability . Mere speculation or self - serving belief on the part of a

complainant concerning motives of a respondent is insufficient, standing

alone, to establish a prima facie case of intentional discrimination. See

Lizardo v. Denny Ô s, Inc. , 270 F.3d 94, 104 (2d Cir. 2001)( Ñ Plaintiffs have done

little more than cite to their mistreatment and ask the court to conclude that

it must have been related to their race. This is not sufficient. Ò ).

65. In sum, Petitioner faile d to present a prima facie case. Ñ Failure to

establish a prima facie case of . . . discrimination ends the inquiry. Ò Ratliff v.

State, 666 So. 2d, 1008, 1013 n.6 (Fla. 1st DCA 1996)(citations omitted).

66. Despite numerous communications between Petitioner and Lennox,

including communications in which his attorney was involved, Petitioner did

not engage in the accommodation process in good faith and failed to return to

work. Instead, under the facts, it is found that Petitioner abandoned his job.

As such, h is separation from employment with Lennox does not constitute an

adverse action. See, e.g ., Nero v. Hosp. Auth. of Wilkes Cty . , 86 F.Supp.2d

1214, 1228 (S.D. Ga. 1998) , aff Ô d 202 F.3d 288 (11 th Cir. 1999) , where the

United States District Court explained :

Ñ Adverse employment action Ô is broadly defined and

as a matter of law includes not only discharges, but

also demotions, refusals to hire, refusals to

promote, and reprimands. Ò McCabe v. Sharrett ,

12 F.3d 1558, 1563 (11th Cir. 1994). An adverse

employment action can also take the form of a

constructive discharge where an employee resigns.

To show a constructive discharge, however, a

plaintiff must provide evidence that his or her

working conditions were so intolerable that a

reasonable person in that positi on would be

compelled to resign. Morgan v. Ford, 750 F.3d 750,

754 , (11th Cir. 1993) . Thus, Ñ when an employee

voluntarily quits under circumstances insufficient

to amount to a constructive discharge, there has

been no adverse employment action. Ò Hartsell v .

Duplex Prod., Inc. , 123 F.3d 766, 775 (4th Cir.

1997) (internal quotes omitted). Ñ [R]esignations can

be voluntary even where the only alternative to

resignation is facing possible termination. Ò Hargray

v. City of Hallandale , 57 F.3d 1560, 1568 (11th Cir.

1995).

67. In sum, there was no adverse employment action. Petitioner lost his

position with Lennox due to job abandonment and not because of

discrimination.

68. Moreover, even if Petitioner had established the elements to show a

prima facie case, the fa ct that he abandoned his job was a legitimate, non -

discriminatory reason supporting Lennox Ô s decision to terminate Petitioner.

There was no evidence indicating Lennox Ô s reason for terminating Petitioner

because of his job abandonment was mere pretext for d iscrimination. As

explained by the Eleventh Circuit in Chapman v. AI Transport , 229 F.3d

1012, 1030 (11th Cir. 2000):

A plaintiff is not allowed to recast an employer Ô s

proffered nondiscriminatory reasons or substitute

his business judgment for that of the employer.

Provided that the proffered reason is one that

might motivate a reasonable employer, an

employee must meet that reason head on and rebut

it, and the employee cannot succeed by simply

quarreling with the wisdom of that reason.

See Alexander v. F ulton County, Ga., 207 F.3d

1303, 1341 (11th Cir. 2000) (Title VII case) ( Ñ [I]t is

not the court Ô s role to second - guess the wisdom of

an employer Ô s decisions as long as the decisions are

not racially motivated. Ò ); Combs v. Plantation

Patterns, 106 F.3d 151 9, 1541 - 1543 (11th Cir.

1997) ] . We have recognized previously and we

reiterate today that:

[f]ederal courts Ñ do not sit as a super - personnel

department that reexamines an entity Ô s business

decisions. No matter how medieval a firm Ô s

practices, no matter how high - handed its decisional

process, no matter how mistaken the firm Ô s

managers, the ADEA does not interfere. Rather our

inquiry is limited to whether the employer gave an

honest explanation of its behavior. Ò Elrod v. Sears,

Roebuck & Co., 939 F.2d 1466, 1 470 (11th Cir.

1991) (quoting Mechnig v. Sears, Roebuck &

Co., 864 F.2d 1359, 1365 (7th Cir. 1988) (citations

omitted)); see also Nix v. WLCY Radio/Rahall

Communications, 738 F.2d 1181, 1187 (11th Cir.

1984) (An Ñ employer may fire an employee for a

good re ason, 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. Ò ); Abel

v. Dubberly, 210 F.3d 1334, 1339 n. 5 (11th Cir.

2000) . We Ñ do not ... second - guess the business

judgment of e mployers. Ò Combs, 106 F.3d at 1543;

accord Alexander, 207 F.3d at 1339 , 1341; Damon

v. Fleming Supermarkets of Florida, Inc., 196 F.3d

1354, 1361 (11th Cir. 1999) ( Ñ We have repeatedly

and emphatically held that a defendant may

terminate an employee for a g ood or bad reason

without violating federal law. We are not in the

business of adjudging whether employment

decisions are prudent or fair. Ò (internal citation

omitted)).

69. Petitioner also failed to demonstrate a prima facie case of unlawful

retaliation in violation of the ADA or Title VII. Title VII makes it unlawful

for employers to retaliate against employees for opposing unlawful

employment practices. See 42 U.S.C. § 2000e - 3(a); see also § 760.10(7), Fla.

Stat. (It is an unlawful employment practice f or an employer to discriminate

against a person because that person has Ñ opposed any practice which is an

unlawful employment practice Ò or because that person Ñ has made a charge . .

. under this subsection.). Ò

70. Just as in discrimination claims based on status, a plaintiff or

petitioner may establish a claim of illegal retaliation using either direct or

circumstantial evidence. Direct evidence of retaliation does not exist in this

case. In relying on circumstantial evidence, tribunals use the McDonnell

Do uglas analytical framework. See Bryant v. Jones , 575 F.3d 1281, 1308

(11th Cir. 2009). Ñ Under [that] framework, a plaintiff alleging retaliation

must first establish a prima facie case by showing that: (1) he engaged in a

statutorily protected activity; (2 ) he suffered an adverse employment action;

and (3) he established a causal link between the protected activity and the

adverse action. Ò Id. at 1307 - 08 .

71. In this case, Petitioner failed to establish a prima facie case of

retaliation. At the outset, the evidence did not demonstrate that Petitioner

engaged in statutorily protected expression regarding his alleged disability.

While Petitioner complained of harassment, bullying , and discrimination , he

did not provide any evidence to support his complaint nor did he indicate that

the alleged conduct was related to his alleged disability or any protected

expression.

72. In addition , the alleged retaliatory a ct of retrieving his work van and

ending his access to the c ompany portal, including his email access , we re not

adverse actions, but rather consistent with c ompany policy . Because

Petitioner was not entitled to use the fleet van for non - business use, or to

receive c ompany information on the internal portal while he was not working ,

he could not have suffered an adverse action with respect to these items. In

other words, removing these items could not have negatively impacted a term

or condition of Petitioner Ô s employment as he was not entitled to retain the

van or continue as an authorized recipient on the por tal system.

73. Moreover, even if Petitioner had engage d in protect ed activity and the

alleged retaliatory acts were adverse actions (which they were not), there is

no causal link between th ose actions and his separation. Furthermore , he

was not terminate d until June 5 , 2020, months after the van was retrieved

and access to Lennox Ô s portal and email was denied .

74. As explained in Thomas v. Cooper Lighting, Inc. , 506 F.3d 1361, 1364

(11th Cir. 2001):

The burden of causation can be met by showing

close te mporal proximity between the statutorily

protected activity and the adverse employment

action. See Brungart v. BellSouth Telecomms., Inc. ,

231 F.3d 791, 798 - 99 (11th Cir. 2000) . But mere

temporal proximity, without more, must be Ñ very

close. Ò Clark County Sch. Dist. v. Breeden , 532 U.S.

268, 273, 121 S. Ct. 1508, 1511, 149 L. Ed. 2d 509

(2001) (internal citations omitted). A three to four

month disparity between the statutorily protected

expression and the adverse employment action is

not enough. See id. (c iting Richmond v. ONEOK ,

120 F.3d 205, 209 (10th Cir. 1997) (3 month period

insufficient) and Hughes v. Derwinski , 967 F.2d

1168, 1174 - 75 (7th Cir. 1992) (4 month period

insufficient)). Thus, in the absence of other

evidence tending to show causation, if t here is a

substantial delay between the protected expression

and the adverse action, the complaint of retaliation

fails as a matter of law. See Higdon v. Jackson ,

393 F.3d 1211, 1220 (11th Cir. 2004) (citing [**6]

Wascura v. City of South Miami , 257 F.3d 1 238,

1248 (11th Cir. 2001)) .

75. Overall , because of lack of evidence, fail ure to show causation, and

failing to demonstrate that Lennox Ô s articulated reason for Petitioner Ô s

separation from employment was pretextual, Petitioner failed to

demonstrate, by a preponderance of the evidence, that Lennox engaged in

unlawful discrimination or retaliation when Petitioner Ô s employment was

terminated for abandonment of his position .

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it i s

R ECOMMENDED that the Florida Commission on Human Relations enter a

final order dismissing Petitioner Ô s Discrimination Complaint and Petition for

Relief consistent with the terms of this Recommended Order.

D ONE A ND E NTERED this 22nd day of June 2021 , in T allahassee, Leon

County, Florida.

S

J AMES H. P ETERSON , III

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day o f June , 2021 .

C OPIES F URNISHED :

Matthew Mathews Tammy S. Barton, Agency Clerk

Apartment 305 Florida Commission on Human Relations

7940 Front Beach Road 4075 Esplanade Way , Room 110

P anama City Beach, Florida 32407 Tallahassee, Florida 32399 - 7020

Sherril M. Colombo, Esquire Cheyanne Costilla, Gen eral Counsel

Littler Mendelson, P.C. Florida Commission on Human Relations

Wells Fargo Center , Suite 2700 4075 Esplanade Way, Room 110

333 Southeast 2nd Avenue Tallahassee, Florida 32399 - 7020

Miami, Florida 33131

Laura Dietrich, Esquire

St efanie Mederos , Esquire Littler Mendelson, P.C.

Littler Mendelson, P.C. Suite 1500, Lock Box 116

Wells Fargo Center , Suite 2700 2001 Ross Avenue

333 Southeast 2nd Avenue Dallas, Texas 75201

Miami, Florida 33131

N OTI CE OF R IGHT T O S UBMIT E XCEPTIONS

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 thi s

case.