STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ARTHUR LEE THOMAS, )

)

Petitioner, )

)

vs. ) Case No. 85-4096

)

FLORIDIN COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in the above-styled action was held on April

28 and 29, 1986 in Quincy, Florida, before Mary Clark, duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented as follows: For Petitioner: Marva Davis, Esquire

P.O. Drawer 551 Quincy, Florida 32351

For Respondent: Jann Johnson, Esquire

Ausley, McMullen, McGehee, Carothers and Proctor

P.O. Box 391

Tallahassee, Florida 32302

Background and Procedural Matters

On March 29, 1984, Arthur Lee Thomas filed a complaint of discrimination against Floridin Company, "Floridin", alleging that Floridin unlawfully terminated him from employment and·refused to reasonably accommodate his physical handicap, a cyst on his right wrist.

The Florida Commission on Human Relations investigated the complaint and issued its notice of determination: no jurisdiction. Arthur Lee Thomas filed a timely petition for relief and the case was forwarded to the Division of Administrative Hearings for conduct of an evidentiary hearing pursuant to Section 120.57(1) Florida Statutes. Floridin filed its answer denying the charge.

Petitioner testified at the hearing in his own behalf and called five additional witnesses. Twenty exhibits were admitted during the hearing and, by stipulation after the hearing, the "unemployment compensation claims control and history" was admitted. The Respondent's corporate representative was Larry Allen. He and six additional witness testified at hearing, and twelve exhibits were admitted.

Both parties submitted proposed recommended orders with proposed findings of fact and conclusions of law. These have been carefully considered and, where appropriate, have been incorporated in this recommended order. Specific rulings on each proposed finding of fact are included in the Appendix attached to this order.

Petitioner has filed a motion for attorney's fees and costs.

Issues

This case concerns the primary issues of whether or not the petitioner is handicapped and a member of that protected class addressed in Section 760.10 Florida Statutes; if so, whether respondent committed an unlawful employment practice as described in Section 760.10, Florida Statutes; and if so, what relief should be granted.

Findings of Fact

1. Arthur Lee Thomas is thirty-five years of age. He has an eleventh grade education. He has received vocational training through CETA (Comprehensive Education and Training Act) in carpentry and mechanics and was an OPS (other personnel services) teacher assistant and carpenter for Florida A & M University in the CETA program. During the relevant period he was employed by Floridin as a shipper.

2. Floridin is a mining company in Quincy, Florida which employs more than fifteen individuals.

3. As a shipper, Arthur Lee Thomas was required, among other jobs, to run the valve packer (a machine that fills empty bags with a clay-like substance), stack bags, and flip those bags which come off the conveyor belt with the label side down. On October 12, 1981, Arthur Lee Thomas injured his wrist while stacking. His right wrist popped and a knot the size of a penny or nickel came up on his wrist. He finished his shift with a less strenuous job and reported his injury. He is right handed.

4. After the injury, Arthur Lee Thomas was authorized to see the company physician, Dr. I.B. Price. Minimal swelling was noted, and the X-ray was negative (Petitioner's exhibit #2).

   Dr. Price diagnosed the lump as a ganglion cyst and treated it with an injection. Mr. Thomas went back to work.

5. After returning to see Dr. Price in March and July 1982, Arthur Lee Thomas was advised to have surgery to remove this cyst. This surgery was accomplished on August 9, 1982, by Dr. Ippolito, in Tallahassee. The cyst recurred and Mr. Thomas went to see a Dr. Furlowe who referred him to a plastic surgeon, Dr. Moore. Dr. Moore saw him on October 28, 1982 and noted some fullness under the surgical scar, suggesting a new cyst formation. He recommended against further surgery in the next six months and suggested that he return to Dr. Price for steroid injections and wear an ace bandage.

6. Dr. Price refused to see him again so he went back to Dr. Furlowe to get the steroid injection. Dr. Furlowe also referred him to a physical therapist. While he was evaluated for therapy, he did not participate because he had no insurance coverage.

7. On April 26, 1983, Mr. Thomas saw an orthopedic surgeon, Dr. McAuley, in Jacksonville. In the report to the company's insurance carrier, Dr. McAuley noted the patient's complaint of dull aching pain in the right wrist, but found on examination no acute or chronic distress. He found the scar, but no localized tenderness. He found a small, less than 0.5cm nodule. The range of motion was the same for both wrists and the circumferences for both wrists were the same. The patient was able to make a tight fist with the right hand and, while the right-hand grip was 28 kg. and the left was 33 kg., the physician noted that he felt Mr. Thomas was not putting out maximum effort with the right side. Dr. McAuley summarized with the opinion that no permanent partial disability was suffered. (Petitioner's exhibit #6).

8. On October 11, 1983, Arthur Lee Thomas was referred to Dr. Emko by Floridin for re-check of the cyst. The diagnosis was "recurrent ganglion of the right wrist". He was told to see an orthopedist or plastic surgeon to have the cyst removed and was cautioned on the use of his right wrist for flipping action. He was also told that there was a good chance the ganglion would return (about 30% chance). (Petitioner's exhibit #7)

9. At work on November 11,1983, Arthur Lee Thomas complained of pain in the wrist and said he couldn't flip bags. He was told to go home if he couldn't flip. He said he wanted to stay but couldn't flip, and he was again told to go home. When he returned to work the next day he was informed that he was suspended for five days, pending discharge. On November 15,

   he went to see Dr. Emko again and got a note that he could return to work but should not do flipping of the right hand. Dr. Emko also referred him to a Tallahassee orthopedist, G. Pierce Jones, M.D.

10. On November 23, 1983, Arthur Lee Thomas filed a grievance alleging unjust suspension and violation of the union agreement. He reiterated that he could do any work except flipping. (Petitioner's exhibit #8-19) The company responded with a letter to the local union president stating that it was willing to reinstate the employee without back pay when his medical problem was corrected and he was released 100% fit to return with no restrictions. (Petitioner's Exhibit #9.) The union accepted the company offer.

11. On December 13, 1983, Mr. Thomas saw Dr. Jones, as arranged by Dr. Emko. Dr. Jones found the scar and a mass in the area of the scar. The mass was not tender and there was normal range of motion in the wrist. He recommended waiting on the surgery and suggested draining the cyst and injecting cortisone. Mr. Thomas did not agree with this so Dr. Jones discharged him.

    (Petitioner's Exhibit #7, December 13, 1983, letter from Jones to Emko.)

12. On January 5, 1984 Mr. Thomas went back to Dr. Emko still complaining of pain. Dr. Emko noted no change in the appearance of the cyst, found a strong hand grip and no loss of motor nor sensory. The patient was able to do dorsi and palmer flexion. Dr. Emko did not change his opinion. (Petitioner's Exhibit #7)

13. During a visit to the emergency room at Tallahassee Memorial Regional Medical Center Mr. Thomas was still complaining of pain, he was given Florinal #3 and was referred to the Tallahassee Orthopedic Clinic. In follow-up, Mr. Thomas went to see Dr. Haney on February 1, 1984. He was scheduled for surgery by Dr. Haney's associate, Dr. Schmidt. Dr. Haney noted that the ". . . patient has no restrictions at this time and has been advised that he may perform any activities prior to his surgery since this would not be detrimental to his wrist". (Petitioner's Exhibit #10)

14. At Mr. Thomas' request the surgery was done as an inpatient, with general anesthesia. The surgery, by Dr. Schmidt, on March 20, 1984, was uneventful. After surgery he had some limited range of motion, but that was when he was wearing his splint. On April 27, 1984, Dr. Schmidt noted that Mr. Thomas had no more than 5-10 degrees of lack of flexion at the wrist and could return to work May 1st. (Petitioner's Exhibit #10).

15. Mr. Thomas admits that he knew he could return to work

    on May 1st. (Transcript-P410) He did not return to work and when he called into the office on May 29, 1984, he was notified he was terminated as of May 1, 1984. The company had a letter from his doctor clearing him to return that date. (Respondent's Exhibit 10-44)

16. Lane, Birnbaum and Hoffman, Lane Medical Litigation Guide, Section 21.25 Ganglion, at pp. 12-13, provides the following medical insight into the nature of a ganglion cyst:

    
    

    This cystic structure can occur on any joint or tendon sheath. It appears most commonly on the wrist. The etiology this lesion is unknown.

    Diagnosis

    History: This disorder usually occurs in the 15-35 year old age group. It grows slowly and the patient will usually give such a history. They cause few symptoms if any. They may regress or disappear spontaneously. They may also recur.

    Physical Examination: Will usually reveal a cystic mass that can be palpated.

    Treatment

    Left untreated, the lesion may regress or disappear. Treatment is instituted if it is symptomatic or cosmetically displeasing to the patient. Aspiration, chemical cauterization, pressure bandage, or corticosteroid injections are sometimes employed. Surgical removal has proven to be the most successful form of treatment, although the ganglion may recur.

    Prognosis

    The lesion is considered to be of a benign character and may regress or disappear spontaneously. Unless pain is prominent, there is no disability. (Emphasis added.)

17. Pain is a highly subjective phenomena. Even so, except for Mr. Thomas' statements at the hearing that he was in constant pain and some medical record notations of his complaints of pain, there are virtually no external indicia that he suffered. From the date of injury in October 1981, until his suspension in November 1983, Mr. Thomas missed only one day from work due to his wrist. From October 1981 until May 1984 he saw at least ten doctors, and except during the recuperative period following his two surgeries, only Dr. Emko put any restriction

    on the use of his wrist. Except for the post-operative period in the hospital, only Dr. Feierstein, who treated him in New Brunswick, New Jersey, in October through December 1985, and the emergency room physicians appear to have prescribed pain medication for Mr. Thomas. These medications include Fiorinal #3, Tylenol #3, and Ascriptin #3 with codeine. Mr. Thomas admitted that he does not take pain medication regularly. After his suspension in November 1983, Mr. Thomas worked as a carpenter for about a month and a half until the job ended.

    After his injury and during two layoffs from Floridin that were unrelated to his wrist, Mr. Thomas applied for a variety of jobs: mechanics helper, dishwasher, laborer at a concrete company, delivery-van driver, parts man at an automobile company, forklift operator, furniture deliverer and custodial worker. Mr. Thomas claims that he could do any of those jobs and that the only job he couldn't do was flip bags at Floridin. This part of Mr. Thomas' testimony is consistent with the opinion of Floridin's expert, Harmon D. Burck, Ph.D., who is a consultant and researcher in vocational and career development and in the placement and assessment of handicapped and disabled people. Dr. Burak reviewed the deposition of Arthur Lee Thomas and his medical records and concluded that Mr. Thomas had no functional limitation because of his wrist. In the Quincy/Tallahassee geographical area, there are from 50 to over

    200 jobs available that Mr. Thomas could perform.

18. Arthur Lee Thomas litigated his worker's compensation claim against Floridin and the company paid, as ordered, $814.55 for temporary total disability benefits to cover the period of March 26, 1984 until May 1, 1984. (Petitioner's Exhibit #14, admitted without objection) This period corresponds to the recuperative period after the second surgery.

19. As predicted by the various treating physicians and true to its characteristics as described in Lane, supra, Arthur Lee Thomas' ganglion cyst has recurred. He was seen by two doctors in New Jersey in latter 1985 and early 1986, and in April 1986, went to the emergency room at Tallahassee Memorial Regional Medical Center when the cyst "burst". The notations from the New Jersey doctor, Mark Feierstein, are similar to the notations of his predecessor treating physicians: ". . . discomfort with palmer flexion of the wrist, but has full range of motion ... No instability of the joint. Full function of all tendons and a normal neurologic exam. X-rays . . . were negative. . .. He is suitable to work at the present time. . . I have suggested . . . aspirate the cyst and inject some cortisone but he is not interested in proceeding in that fashion at the present time . . ." (Petitioner's Exhibit #12) At the emergency room it was noted that pain medication was prescribed

    but not administered as the patient drove himself home. (Petitioner's Exhibit #19)

20. Arthur Lee Thomas' testimony as to his handicap was at times confused and contradictory. His claim of constant pain was belied by substantial objective evidence to the contrary and by his own statements as to the jobs he could perform.

    
    

    Conclusions of Law

21. The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this proceeding. Section 120.57(1), Florida Statutes, Rule 22T-8.16 Florida Administrative Code.

22. Section 760.10 Florida Statutes provides in pertinent parts:

    760.10 Unlawful employment practices; remedies; construction.

    1. It is an unlawful employment practice for an employer:

       1. 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's... handicap,...

       2. To limit, segregate, or classify employees or applicants for employment in any way which would deprive or tend to de- prive any individual of employment opportunities, or adversely affect any individual's status as an employee, because of such individual's... handicap,...

    
    

    * * *

    
    

23. Respondent, Floridin Company, is an employer within the definition in subsection 760.02(6) Florida Statutes.

24. Petitioner, Arthur Lee Thomas failed to establish a prima facie case that he was an otherwise qualified handicapped person who was rejected under circumstances that gave rise to the inference that the rejection was based soley on the handicap. Pushkin v. University of Colorado, 658 F 2nd 1372. (lOth Cir. 1981).

25. "Handicap" is not defined in the Human Rights Act of 1977 (Sections 760.01-760.10 Florida Statutes). In the absence of a definition, the Florida Commission on Human Relations has adopted a common usage definition:

    Generally 'handicap' connotes a condition that prevents normal functioning in some way: 'A person with a handicap does not enjoy, in some manner, the full and normal use of his sensory, mental or physical faculties.'

    Michael Coyle v. Lindsay Newspapers,Inc., F FALR 5108 (order dated March 7, 1985 ), citing Fla. Commission on Human Relations v. the Brevard County Sheriff's Department 4 FALR 604A, 608A (March 22, 1982), reversed on other grounds in 429 So 2nd 1235 (Fla 5th DCA 1983)

    More recently the Commission adopted with approval a slightly modified version of the definition," ... a disadvantage that makes achievement unusually difficult; esp: a physical disability that limits the capacity to work." James S. Miller v. Quincy IGA, 8 FALR 2690 (order dated April 4, 1986, adopting Recommended Order of Division of Administrative Hearings Hearing Officer, W. Matthew Stevenson, dated December 12, 1985) In the instant case, the parties are urging the application of an entirely different definition of "handicap". By Stipulation, dated April 24, 1986, both parties agree that the definition should be that found in the Fair Housing Act (Sections 760.20-

    760.37 Florida Statutes):

    'Handicap' means that a person has a physical impairment which substantially limits one or more major life activities or that he has a record of having, or is regarded as having, such physical impairment. Subsection 760.22(5) Florida Statutes.

    Parties, for obvious reasons, cannot bind a judicial or quasi- judicial body to their stipulation as to the law; however, to the extent that the definition urged here is a divergence from prior Commission decisions, good rationale exists for such divergence. Rule 22T-8.26 Florida Administrative Code. The definition is a clear statement of legislative intent as to handicap in a similar anti-discrimination law. The definition is also the same as that in the federal act relating to discrimination against handicapped individuals, Title 29 USC, Section 706(7)(B). The Florida Commission on Human Relations has looked to that act, the Rehabilitation Act of 1973, for interpretations of its own act, as it relates to what constitutes a "handicap". See Richard H. Blake v. City of Tallahassee, 7 FALR 5347, 5350 (order dated August 16, 1985) Many other states' statutes prohibiting employment discrimination based on disability obtain direction from the statutory definition of "handicapped individual" in the Rehabilitation Act. A substantial body of case law now exists interpreting "handicap". See, "E.E. Black, Ltd., v. Marshall: A Penetrating Interpretation of 'Handicapped Individual' for Sections 503 and 504 of the Rehabilitation Act of 1973 and for

    Various State Equal Employment Opportunity Statutes", Haines, 16 Loyola L.A. Law Review 527. The plain meaning of 'handicap', therefore, in the legal sense is best derived, not from a dictionary, but from related laws and cases construing those laws.

26. Petitioner's testimony regarding constant, severe pain is not credible. He admitted that he could do virtually

anything on the job except flip bags. He admitted that he could do a variety of other types of work and sought employment in those areas. His background and training have equipped him for a variety of jobs currently available in the geographical area in which he resides. His impairment, the ganglion cyst, does not "substantially limit a major life activity". E.E. Black, Ltd v. Marshall, 497 F. Supp. 1088 (D. Hawaii 1980)., Jasany v. U.S. Postal Service, 755 F 2nd 1244 (U.S. 6th Cir. 1985). The record is void of proof that he was regarded as having such an impairment.

Recommendation Based upon the foregoing, it is RECOMMENDED:

That the petition of Arthur Lee Thomas alleging unlawful discrimination based upon handicap be dismissed.

DONE AND RECOMMENDED this 24th day of July, 1986, at Tallahassee, Florida.

MARY CLARK, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1986.

COPIES FURNISHED:

Jann Johnson Esquire Ausley, McMuilen, McGehee, Carothers & Proctor

Post Office Box 391 Tallahassee, Florida 32302

Marva Davis, Esquire

229 East Washington Street Quincy, Florida 32351

APPENDIX

The following constitute my specific rulings pursuant to Section 120.59(2) Florida Statutes,on all of the Proposed Findings of Fact submitted by the parties to this case.

Rulings on Proposed Findings of Fact submitted by the

Petitioner.

1. Adopted in Paragraph 1.

2. Adopted in Paragraphs 2. and 3.

3. Rejected as unnecessary.

4. Adopted in substance in Paragraph 3. 5.-18. Rejected as unnecessary.

1. Adopted in Paragraph 4.

2. 21. Adopted in Paragraph 16.

1. Rejected as unsupported by the weight of evidence (as to the pain). Otherwise adopted in Paragraph 5.

2. Adopted in general in Paragraphs 5 and 6, except that the conclusion that the surgery was unsuccessful is rejected.

3. Adopted in part in Paragraph 6, otherwise rejected as unnecessary.

4. Rejected as repetitive.

5. Rejected as the statements of pain are unsubstantiated.

6. Rejected as unsubstantiated and in contradiction with the doctor's reports.

7. Rejected as to the pain, otherwise adopted in Paragraph 17.

8. Adopted in Paragraph 3.

9. Rejected as irrelevant.

10. Dr. McAuley's evaluation is addressed in Paragraph 7.

11. Rejected as unsubstantiated.

12. Adopted in general in Paragraph 8.

13. Rejected as irrelevant.

14. Adopted in Paragraph 9.

15. Rejected as unsubstantiated, except for the referral, which is adopted in Paragraph 9.

37-41. Rejected as unnecessary except the statement that he could go home if he couldn't flip bags, which is adopted in paragraph 9.

1. Rejected as unnecessary.

2. Adopted in substance in Paragraph 9.

3. Adopted in substance in Paragraph 9.

4. Adopted in Paragraph 10.

5. Adopted in summary form in Paragraph 10.

6. (no paragraph with this number)

7. Rejected as unnecessary.

8. Rejected as unnecessary and unclear.

9. Rejected as unsubstantiated except for the visit to Dr. Jones, which is addressed in Paragraph 11.

10. Adopted in substance in Paragraph 13.

11. Adopted as to Dr. Haney's advice in Paragraph 13, otherwise rejected as unnecessary.

53,54. Rejected as unnecessary.

55,56. Adopted in substance in Paragraphs 13 and 14.

57. Rejected as contrary to the weight of evidence and

unnecessary.

58-59. Rejected as unnecessary.

60. Adopted in substance in Paragraph 15. 61-69. Rejected as unnecessary.

1. Rejected (as to the pain) as unsubstantiated; the recurrence of the cyst is adopted in Paragraph 19.

2. and 72. Adopted in substance in Paragraph 19.

1. Rejected, except as to non-temporary, as contrary to the. weight of evidence.

2. Adopted in Paragraph 17.

75-80. Rejected as unnecessary.

Rulings on Proposed Findings of Fact Submitted by the Respondent

1. Adopted in Paragraph 1.

2. Adopted in Paragraph 3.

3. Rejected as unnecessary.

4. Rejected as unnecessary.

5. Rejected as unnecessary.

6. Characterization as "Simply Refused" is rejected as contrary to the weight of evidence.

7-20. Rejected as unnecessary.

1. Adopted in Paragraph 10.

2. Adopted in substance in Paragraph 10.

3. Rejected as unnecessary.

4. Adopted in Paragraph 3.

25,26. Adopted in Paragraphs 14 and 15.

1. Adopted in Paragraph 14.

2. Adopted in substance in Paragraph 15.4@( 29-33. Rejected as unnecessary.

34. Adopted in substance in Paragraph 20.

35-45. Adopted in substance in Paragraphs 17 and 19.

1. Rejected as unnecessary.

2. Adopted in Paragraph 20.

48-56. Rejected as cumulative and unnecessary.

AGENCY FINAL ORDER

STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

ARTHUR LEE THOMAS,

Petitioner, EEOC Case No. n/a

FCHR Case No. 84-1974

1. DOAH Case No. 85-4096

   FCHR Order No. 86-043

   FLORIDIN COMPANY,

   Respondent.*

   /

   
   

   ORDER DISMISSING PETITION FOR RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

   
   

   1. Panel of Commissioners

      The following three Commissioners participated in the disposition of this matter:

      Commissioner Robert L. Billingelea, Panel Chairperson; Commissioner Elena Flom; and Commissioner Ronald P. Townsend.

      
      

   2. Appearances

      No appearance was entered at the Commission deliberation by or on behalf of Petitioner or Respondent.

   3. Preliminary Matters

      Arthur Lee Thomas, Petitioner herein, filed a complaint of discrimination with this Commission pursuant to the Human Rights Act of 1977, as amended, Sections 760.01-760.10, Florida Statutes1 {1985),1 alleging that Floridin Company, Respondent herein, unlawfully discriminated against Petitioner on the basis of his handicap, a cyst on his right wrist.

      In accordance with the Commission's rules, the allegations of discrimination set forth in the complaint of discrimination were investigated and a report of said investigation was submitted to the Executive Director. On October 25, 1985, the Executive Director issued his Determination finding that the Petitioner was not a handicapped individual within the protection of the Human Rights Act of 1977.

      On November 19, 1985, the Petitioner filed a Petition for Relief from an Unlawful Employment Practice. The petition was referred to the Division of Administrative Hearings (DOAH) for the conduct of a formal proceeding pursuant to Rule 22T-8.16(1). The formal proceeding was held on April 28 and 29, 1986 in Quincy, Florida, before Mary Clark, DOAH Hearing Officer. The Hearing Officer entered a Recommended Order in this matter on July 24, 1986.

      Neither party filed exceptions to the Recommended Order. Pursuant to notice, public deliberations were held on

      
      

      
      

      1

      August 29, 1986, in Orlando, Florida, before the aforementioned Panel of Commissioners at which deliberations the Panel determined the action to be taken upon the petition.

   4. Findings of Fact

      Having considered the Hearing Officer's findings of fact and having reviewed the record in this proceeding, the Panel finds that the Hearing Officer's findings of fact are supported by competent, substantial evidence. The Hearing Officer's findings of fact are hereby adopted.

   5. Conclusions of Law

      The parties and the Hearing Officer have urged this Panel to adopt the definition of handicap contained in the Fair Housing Act, Section 760.22(5), Florida Statutes, as the applicable definition of handicap for the Human Rights Act of 1977. We have recently declined to adopt such definition. See Lanham v. Seamless Hospital Products, FCHR Order No. 86-032 (August 5, 1986),where the Commission stated:

      In interpreting the term handicap under the Human Rights Act of 19772, the Commission has consistently chosen to give handicap a meaning in accordance with common usage: Generally, handicap connotes a condition that prevents normal functioning in some way: A person with a handicap does not enjoy, in some measure, the full and normal- use of his sensory, mental or physical faculties.

      Fenesy v. GTE Data Services, Inc., FCHR Order No. 81-0042, 3 FALR 1764-A, 1765-A

      (August 11, 1981), aff'g, DOAH Case No. 80-

      473, slip op. December 13, 1980 at 14; Brevard County

      Sheriff's Department v. Florida Commission on Human Relations, 4 FALR 604-A, 608-A (February 23, 1982), rev'd on other grounds,

      429 So.2d 1235 (Fla. 5th DCA 1983); HyQu v. Arab Pest Control Company, FCHR Order No. 82-072 (December 1, 1982). Accord Kelley v. Bechtel Power Corporation Case No. 85-0624, slip op. at 5, 6 (S.D.Fla. March 13,986),

      where the federal court held that the Fenesy definition of handicap applied on plaintiff's state claim brought under the Human Rights Act of 1977. The Court rejected the defendant's argument that the

      
      

      
      

      2

      definition of handicapped person found in the federal Rehabilitation Act of 1973, 29

      U.S.C. Section 706(7)(B), controlled:

      This Court finds that the FCHR definition of handicap. as set forth in Fenesy, supra, is the applicable definition in this cause.

      The Court defers to the agency's definition. Dept. of Prof. Reg. v. Durrani, 455 So.2d 515, 517 (Fla. 1st DCA 1984). Thus, the Court rejects the contention of Defendant that the federal definition applies to this cause. Since the federal definition of "handicapped individual. does not apply, the case law construing the federal definition is a less appropriate guide here than the Florida administrative decisions.

      The FCHR had the opportunity to adopt the federal definition in this cause, yet declined to do so.

      Furthermore, the Human Rights Act of 1977 and the Fair Housing Act are separate and distinct statutory provisions, patterned on separate and distinct federal provisions.3 In the absence of legislative intent that the definition of handicap contained within the Fair Housing Act was intended to apply to the earlier enacted Human Rights Act of 1977, we decline to change our longstanding interpretation.

      
      

      However cogent the Hearing Officer's reasons for recommending that we change our policy interpretation appears to be, we decline to change our interpretation especially where, as here, the Commission has just ruled on this issue.

      Additionally, contrary to the Hearing Officer's statement that the definition of handicap contained in the Fair Housing Act is the same as that contained in the Rehabilitation Act of 1973, 29

      U.S.C. Section 706(7)(B), we find these acts dissimilar in one major respect. The Fair Housing Act's definition includes only physical handicaps, whereas the Rehabilitation Act of 1973's definition includes both physical and mental handicaps. Moreover, were we to alter the body of precedent which now exists, the Panel believes the most appropriate method for doing so would be through the rulemaking process.

      
      

      
      

      3

      Accordingly, the Hearing Officer's recommended construction of the term handicap under the Human Rights Act of 1977 is rejected. The Panel, however, concurs with the Hearing Officer's remaining conclusions.

      The Hearing Officer's conclusions of law, as modified above, are a correct application of law. The Hearing Officer's conclusions of law, as modified, are hereby adopted.

   6. Dismissal

The Hearing Officer's recommendation is adopted and her Recommended Order is incorporated herein by reference.

Accordingly, the Petition for Relief from an Unlawful Employment Practice and the complaint of discrimination are hereby DISMISSED with prejudice.

Petitioner is advised of his right to petition the Florida District Court of Appeal for review of this Order within 30 days of the date that this Order is filed with the Clerk of the Commission. Section 120.68, Fla. Stat.; Fla. R. App. P.

9.110(b).

It is so ORDERED.

DATED this 15th day of September, 1986.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

BY:

Commissioner Robert L. Billingslea, Panel Chairperson

Commissioner Elena Flom; and Commissioner Ronald P. Townsend

FILED this 15th day of September, 1986, in Tallahassee, Florida.

Betsy Howard

Clerk of the Commission

ENDNOTES

1/ Unless otherwise indicated, all statutory references are to Florida Statutes {1985), and all rule references are to Florida Administrative Code.

2/ In contrast to the Fair Housing Act, the Human Rights Act of 1977 does not provide a statutory definition for the term handicap.

3/ The Human Rights Act of 1977 is patterned on Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e-2. School Board of Leon County v. Hargis, 400 So.2d 103, 108 n.2 (Fla. 1st DCA 1981). The Fair Housing Act is patterned on Title VIII of the Civil Rights Act of 1968, 42 U.S.C. Section 3601 et seq.

COPIES FURNISHED:

Marva Davis, Attorney for Petitioner (CM#P3255778032) Jahn Johnson, Attorney for Respondent (CM#P325578033) Dana Baired, Legal Advisor for Commission Panel

Paulette H. Simmes, Administrator of Employment Investigations Mary Clark, DOAH Hearing Officer

Docket for Case No: 85-004096

Orders for Case No: 85-004096