STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEPHEN RETTON, )

)

Petitioner, )

)

vs. ) CASE NO. 86-0975

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent, )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before William R. Cave, Hearing Officer with the Division of Administrative Hearings on June 27, 1986 in Gainesville, Florida. The issue for determination is whether the Respondent, Department of Corrections, discriminated against the Petitioner, Stephen Retton, when Respondent terminated Petitioner's employment.

APPEARANCES

For Petitioner: Thomas R. Williams, Esquire

309 Northeast First Street Gainesville, Florida 32601

For Respondent: Ernest L. Reddick, Esquire

Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32399-2500 BACKGROUND

In this proceeding, Petitioner is challenging Respondent's termination of his employment and alleges that Respondent discharged Petitioner from his position of employment because of Petitioner's physical handicap, to wit: diabetic nephropathy.

In support of his position, Petitioner testified on his own behalf and presented the testimony of Donald R. Mars, M.D. Petitioner's Exhibit No. 1 was received into evidence.

Respondent presented the testimony of Lester Dinkins, A. Rodriquez, M.D., Diane Fuller, L. Kuebler, Lawrence D. Chuck, Lynn Hill and George Denman.

Respondent's Exhibit Nos. 1 through 5 were received into evidence.

In addition, Joint Exhibit No. 1, to the extent of matters stipulated and admitted in the Joint Prehearing Stipulation, was received into evidence.

The parties submitted posthearing Proposed Findings of Fact and Conclusions of Law. A ruling on each proposed finding of fact has been made as reflected in the Appendix to this Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. The Petitioner is a thirty-one (31) year old male who has been a diabetic for approximately twenty-five (25) years and during this time has always taken his insulin as prescribed.

   
   

2. Petitioner was hired by Respondent as a Correctional Officer 1 (Recreational) and assigned to work at the Florida Correctional Institution at Lowell, Florida (FCI). Petitioner began his employment with Respondent effective April 22, 1985.

   
   

3. FCI is a facility for housing female felony offenders who require minimum to close security. The grounds of FCI consist of approximately eight hundred (800) acres, of which one hundred (100) acres is within the compound. FCI houses approximately six hundred seventy-five (675) inmates.

   
   

4. FCI has a staff of two hundred twenty (220) employees, however, on weekends and on the 12 midnight to 8:00 a.m. shift, as few as eighteen (18) staff members may be on duty.

   
   

5. Petitioner was responsible for maintaining the care, custody and control of the inmates involved in recreational activities and his duties would require his response to emergency situations to prevent escape or suppress inmate disorders.

   
   

6. Petitioner advised Respondent prior to being hired that he was diabetic but that his diabetes was kept well under control and presented no problem and that he had sight in only one (1) eye.

   
   

7. From February 27, 1984, until Petitioner moved to Florida in April, 1985, Petitioner was being treated for his diabetes in West Virginia by Dr. John

   P. Griffiths. During this period, Petitioner consulted Dr. Griffiths regarding "blackouts". Although Dr. Griffiths mentioned Petitioner's "kidney problem", he did not diagnose the "kidney problem" as being the potential cause of the Petitioner's "blackouts" and did not suggest a way for Petitioner to avoid having these "blackouts" in the future.

   
   

8. Petitioner suffered several "blackouts" while living in West Virginia before accepting employment with Respondent, the last one being approximately a year before moving to Florida. These "blackouts" resulted in Petitioner being taken to the hospital emergency room for treatment. Petitioner did not make Respondent aware of these "blackouts" at the time he applied and was accepted for employment by the Respondent.

   
   

9. At the beginning of his employment, Petitioner was required to have a complete physical examination which was administered by Dr. A. Rodriquez, Chief Medical Officer, FCI, and his staff. Among the tests administered was a urinalysis which revealed an abnormal level of protein in the urine. Being concerned over the level of protein in Petitioner's urine, Dr. Rodriquez requested Lester Dinkins, Personnel Manager, FCI, to advise Petitioner to see a private physician in this regard. About a week later, Petitioner consulted Dr. Rodriquez who explained the test results and advised Petitioner to see a nephrologist (kidney specialist).

10. On May 2, 1985, Petitioner was examined by Dr. James J. Mahoney, private physician in Gainesville, Florida. Dr. Mahoney did not discuss a possible "kidney problem" or tell Petitioner why there was excess protein in his urine. Dr. Mahoney recommended that Petitioner continue on his blood pressure medication, have his blood pressure checked once a day so that medication adjustments could be made as needed, to see an opthamologist, and to keep check on his diabetes. FCI does not provide non-emergency health care for staff, therefore, Petitioner was unable to get his blood pressure checked by the FCI medical staff and did not get it checked by any outside private facility.

    
    

11. Petitioner scheduled a second appointment with Dr. Mahoney which was rescheduled by Dr. Mahoney for a later date. Petitioner was dismissed by Respondent before the second appointment and, therefore, he did not keep the second appointment.

    
    

12. On May 3, 1985, the day after Petitioner was examined by Dr. Mahoney, he suffered his first "blackout" while on the job. Petitioner was taken to the emergency room at Monroe Regional Medical Center where the medical personnel raised his glucose level and restored him to consciousness. After Petitioner regained consciousness he refused any further medical treatment.

    
    

13. When Petitioner returned to FCI after his first "blackout", he was told to take Saturday and Sunday off and report to work on Monday. On Monday, Petitioner assured George Denman, Superintendent of FCI, that he could and would prevent another "blackout". Although Mr. Denman was concerned about Petitioner's ability to discharge his duties properly, he nevertheless allowed Petitioner to return to work on Petitioner's assurance that he could control the "blackouts".

    
    

14. On May 9, 1985, Dr. Mahoney advised Respondent by letter that Petitioner's present condition should not interfere with his employment if Petitioner followed Dr. Mahoney's recommendations set out in Finding of Fact 10. There is sufficient evidence to show that Petitioner did not follow Dr. Mahoney's advice.

    
    

15. Petitioner "blacked out" again on May 18, 1985, while he was preparing for a softball game between inmates of FCI and another institution. Petitioner was transported to the FCI infirmary and from there to Harold's Clinic and from there to another hospital. This "blackout" occurred on a Saturday when a staff of approximately eighteen (18) employees were on duty at FCI. Petitioner had keys to various parts of the institution in his possession at this time.

    
    

16. Once Petitioner was stabilized after the "blackout", he was instructed to take Sunday off and report in on Monday. On Monday, he reported first to Lester Dinkins and then to Mr. Denman who informed him that he would be dismissed on Friday, May 24, 1986 because of Petitioner's inability to perform his duty to maintain proper care, custody and control of the inmates which placed the security of the institution in jeopardy.

    
    

17. The prison superintendent is authorized to allow employees up to three

    (3) weeks leave without pay under extenuating circumstances, however, for a "brand new" employee, such as Petitioner, it would be exceptional. Leave without pay was not offered to Petitioner at any time before his dismissal to seek help with the problem of "blackouts" because Petitioner assured Mr. Denman that he had his problem under control. Additionally, Petitioner did not request any time off to seek help with his problem of "blackouts".

18. Although Petitioner thought his "blackouts" were related to a serious automobile accident that he was involved in during 1972, there was no medical evidence introduced at the hearing to support Petitioner's theory.

    
    

19. At the time Petitioner was dismissed, both parties were aware of Petitioner's kidney problem, but neither knew the exact cause or if the kidney problem was related to the "blackouts" or to the diabetes.

    
    

20. Although Petitioner would have accepted other alternatives to dismissal, Respondent had no job openings for which Petitioner qualified for at the time. Lester Dinkins did inquire with other agencies and found a job as a Recreational Therapist with the Department of Health and Rehabilitative Services at the Gulf Coast Center in Ft. Myers, Florida. Petitioner rejected that job on the basis of being unable to cope with the emotional stress of working with mentally and physically handicapped individuals, and that by moving he would lose Dr. Donald Mars as his primary care physician.

    
    

21. In June, 1985, Dr. Mars, Assistant Professor of Medicine, Division of Nephrology and Hypertension, Shands Teaching Hospital, Gainesville, Florida, diagnosed the cause of Petitioner's "blackouts" as the result of Petitioner's continued use of insulin adversely affecting his kidneys so that protein was being excreted with Petitioner's urine instead of being used by his body which caused episodes of hypoglycemia (low blood sugar) and, since corrective measures were not taken by Petitioner, "blackouts" resulted.

    
    

22. A diabetic can take a measurement of the glucose (sugar) level in his body by using the "finger stick" test. This test can be performed in approximately two (2) minutes, and if there is an indication of a low level of glucose, the diabetic can correct the condition by eating some form of carbohydrate, such as bread or pastry, for quick energy. A diabetic can avoid "blackout's" by performing the required number of "finger stick" tests each day and properly responding to the results. In Petitioner's case, it would require two (2) to four (4) tests each day which could be performed on the job.

    
    

23. There are other diabetics on the staff at FCI.

    
    

24. Petitioner's job performance, other than during the time of the "blackouts", was satisfactory.

    
    

25. Petitioner's "blackouts" put the security of FCI in jeopardy.

    
    

    CONCLUSIONS OF LAW

    
    

26. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 120.57(1), Florida Statutes (1985).

    
    

27. Section 760.10(1)(a), Florida Statutes (1985), makes it an unlawful employment practice to discharge or otherwise discriminate against any individual because of such individual's handicap. Diabetes is a handicap within the meaning of Section 760.10 Florida Statutes (1985). Fenesy v. GTE Data Services, Inc., FCH Order 81-0042, 3 FALR 1764-A (August 11, 1981). In a discrimination case, the Petitioner has the initial burden of establishing a prima facie case of discrimination. If Petitioner succeeds in proving the prima facie case, the burden shifts to the Respondent to articulate some legitimate non-discriminatory reason for the action complained of. Should the Respondent

    carry this burden, Petitioner must then have the opportunity to prove, by a preponderance of the evidence that the legitimate reasons offered by the Respondent were not its true reason, but were a pretext for discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089,

    67 L Ed. 207 (1981). To establish the prima facie case, Petitioner must present facts which raise "an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors." Id. at 450 U.S. 254.

    
    

28. Considering the evidence here presented in the light most favorable to Petitioner, it shows that Respondent hired Petitioner with full knowledge of his handicap; that Respondent encouraged, and even insisted that, Petitioner seek help from a kidney specialist in regard to his kidney problem; that Respondent did not know before discharging Petitioner that his "blackouts" were indirectly related to Petitioner's treatment of his diabetes; that Respondent kept Petitioner employed after his first "blackout" on Petitioner's assurance that he could and would control the "blackouts"; that it was only after the second "blackout" occurred within fifteen (15) days that Respondent decided that Petitioner's inability to preform during these "blackouts" put the institution in jeopardy and discharged Petitioner; and that Respondent found other similar employment for Petitioner which he rejected. The Petitioner has failed to establish a prima facie case of discrimination.

    
    

29. In order to present a prima facie case of discrimination, the Petitioner must show: (1) that he is handicapped; (2) that he performed his assigned duties satisfactorily; and (3) that despite his performance he was discharged. Cf. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817,

37 L.Ed. 668 (1973). The only one of these elements shown here was that Petitioner was handicapped. Petitioner acknowledges that neither party knew that the "blackouts" were indirectly related to his diabetes and that at no time did Respondent ever inform Petitioner that he was being discharged because of his diabetes. There is no evidence that Respondent discriminated against Petitioner because of his handicap when he was discharged. However, assuming arguendo that Petitioner presented evidence tending to establish a prima facie case of discrimination, Respondent clearly articulated a non-discriminatory reason for Petitioner's dismissal.

Based on the foregoing, it is concluded that Petitioner has failed to establish a prima facie case that he was discharged by the Respondent, Department of Corrections, because of his physical handicap.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petition For Relief filed by the Petitioner, Stephen Retton.

Respectfully submitted and entered this 10th day of September, 1986, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

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 10th day of September, 1986.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-0975

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

Rulings on Proposed Findings of Fact Submitted by the Petitioner

1. Findings of Fact 1 and 2 covered in background material.

Rulings on Proposed Findings of Fact Submitted by the Respondent

1. Adopted in Finding of Fact 1.

COPIES FURNISHED:

Thomas R. Williams, Esquire

359 N.E. First Street Gainesville, Florida 32601

Donald A. Griffin Executive Director

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303

Ernest L. Reddick, Esquire Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32301

Louie L. Wainwright Secretary

Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 3230

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

STEPHEN RETTON,

EEOC Case No. n/a

Petitioner, FCHR Case No. 86-0210 DOAH Case No. 86-0975

vs. FCHR Order No. 86-045

DEPARTMENT OF CORRECTIONS,

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 John J. Sulik, Panel Chairperson;

   Commissioner Robert R. Joyce; and Commissioner Thomas H. Poole, Sr.

   
   

2. APPEARANCES For Petitioner, Stephen Retton:

   Thomas R. Williams, Esquire

   309 North East First Street Gainesville, Florida 32601

   For Respondent, Department of Corrections: Ernest L. Reddick, Esquire

   Department of Corrections

   1311 Winewood Boulevard

   Tallahassee, Florida 32399-2500

   
   

3. Preliminary Matters

   
   

   Stephen Retton, Petitioner herein, filed a complaint of discrimination with this Commission pursuant to the Human Rights Act of 1977, as amended, Sections 760.01-60.10, Florida Statutes (1985), alleging that Department of Corrections,

   Respondent herein, unlawfully discriminated against Petitioner on the basis of handicap (diabetic nephropathy).

   
   

   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 February 19, 1986, the Executive Director issued his Determination finding no reasonable cause to believe that an unlawful employment practice occurred.

   
   

   On March 19, 1986, 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-8.016(1). The formal proceeding was held on June 27, 1986, in Gainesville, Florida, before William R. Cave, DOAH Hearing Officer. The Hearing Officer entered a Recommended Order in this matter on September 10, 1986.

   
   

   Petitioner filed exceptions to the Recommended Order. Respondent did not file a response to Petitioner's exceptions.

   
   

   Pursuant to notice, public deliberations were held on December 5, 1986, in Jacksonville, Florida, before the aforementioned Panel of Commissioners, at which deliberations the Panel determined the action to be taken upon the petition.

   
   

4. Petitioner's Exceptions

   
   

   1. Petitioner excepts to the hearing officer's finding that Petitioner's medical condition would not have interfered with his employment had he followed Dr. Mahoney's recommendations.

      
      

   2. Petitioner excepts to the hearing officer's finding regarding Respondent's reason for declining to offer Petitioner leave without pay.

      
      

   3. Petitioner excepts to the hearing officer's finding that Respondent found Petitioner a job with another employer.

      
      

   4. Petitioner excepts to the hearing officer's finding that Petitioner did not take corrective measures to prevent his blackouts inasmuch as he did not learn how to avoid the blackouts until after his termination.

      
      

   5. Petitioner excepts to the hearing officer's finding that there were approximately eighteen employees on duty when Petitioner had his blackout on May 18, 1985, as not supported by competent, substantial evidence.

      
      

   6. Finally, Petitioner excepts to the Hearing Officer's conclusions of law and asserts that his complaint of unlawful discrimination should be taken as established in that he presented a prima facie case and Respondent failed to clearly articulate a nondiscriminatory reason for its employment decision.

   
   

5. Rulings on Exceptions

   
   

   The Panel rejects Petitioner's exceptions numbered 1, 2 and 4, as set forth above, as the record contains at least some competent, substantial evidence supportive of these factual findings. In the presence of such evidence, the Panel will not disturb the Hearing officer's findings as to disputed facts.

   Brevard County Sheriff's Department v. FCHR, 429 So.2d 1235 (Fla. 5th DCA 1983); City of Umatilla v. PERC, 422 So.2d 905 (Fla. 5th DCA 1982). It is the Hearing

   Officer's function to consider all of the evidence presented and reach ultimate findings based upon competent substantial evidence by resolving conflicts, judging the credibility of witnesses and drawing permissible inferences therefrom. If the evidence presented supports two inconsistent findings, it is the Hearing Officer's role to decide between them. Heifetz v. Department of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985); Accord De Groot v.

   Sheffield, 95 So.2d 912 (Fla. 1957).

   
   

   The Panel adopts Petitioner's exceptions numbered 3 and 5, as set forth above. Accordingly, the Hearing Officer's finding of fact No. 20 is hereby modified to read: " Mr. Dinkins recommended Petitioner for the job as Recreational Therapist" (instead of "found a job as a Recreational Therapist"); and the Hearing Officer's finding of fact No. 15 is hereby modified to read: "This blackout occurred on a Saturday when there is a skeleton crew of as few as eighteen (18) correctional officers at FCI" (instead of "This blackout occurred on a Saturday when a staff of approximately eighteen (18) employees were on duty at FCI"). Such acceptance of Petitioner's exceptions to these two factual findings, however, does not alter our concurrence with the Hearing Officer's ultimate factual finding.

   
   

   Lastly, the Panel rejects Respondent's exceptions to the Hearing Officer's conclusions of law and recommendations. The Hearing Officer concluded that the Petitioner failed to establish a prima facie case of handicap discrimination or in the alternative if Petitioner did establish his prima facie case, Respondent overcame it by articulating a nondiscriminatory reason for its employment decision.

   
   

   In order to establish a prima facie case of handicap discrimination, Petitioner must show: (1) that he is handicapped; (2) that be performed or is able to perform his assigned duties satisfactorily; and (3) that despite his satisfactory performance, he was terminated. McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973); Wolfe v. Department of Agriculture and Consumer Services, 8 FALR 426 (FCHR September 27, 1985).

   
   

   In Fenesy v. GTE Data Services, Inc., 3 FALR 1764-A (FCHR August 11, 1981), the Commission adopted a plain language interpretation of the term "handicap" as follows:

   
   

   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.

   
   

   Here, Petitioner established that he was handicapped under the Fenesy definition, but he could not show that he could perform the hazardous duty of his Correctional Officer I position without a substantial risk of injury to himself or to the security of the institution. School Board of Pinellas County

   v. Rateau, 449 So.2d 839 (Fla. 1st DCA 1984); Lewis v. Remmele Engineering, Inc., 29 FEP Cases 576 (Minn. 1981). Petitioner experienced uncontrollable blackouts during the period prior to and during his employment with Respondent. The fact that Petitioner was able to control these blackouts subsequent to the nation ones not negative the finding that he was unable to safely perform requirements of the position at the time of termination. Pannell v. Wanke Panel, 36 FEP Cases 1849 (D.Ore. 1985), where the court stated that the not whether petitioner's disability was presently under control, but rather whether

   the disability was under control during the period of employment with Respondent.

   
   

   Accordingly, Petitioner has failed to establish a prima facie case of handicap discrimination.

   
   

6. Findings of Fact

   
   

   Having considered the Hearing Officer's findings of fact, and being particularly mindful of the record in this cause, the Panel finds that the Hearing Officer's findings of fact are supported by competent, substantial evidence, except as previously modified herein. The Hearing Officer's findings of fact, as modified, are hereby adopted.

   
   

7. Conclusion of Law

   
   

   The Hearing Officer's conclusion of law, based upon his findings of fact, are a correct application of law. The Hearing Officer's conclusions of law are hereby adopted.

   
   

8. Dismissal

The Hearing Officer's recommendation is adopted and his 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 December, 1986.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner John J. Sulik, Panel Chairperson;

Commissioner Robert R. Joyce; and Commissioner Thomas H. Poole, Sr.

FILED this 18th day of December, 1986, in Tallahassee, Florida.

Clerk of the Commission

ENDNOTE

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

COPIES FURNISHED:

Thomas R. Williams, Attorney for Petitioner (C.M.#P318726167) Ernest L. Reddick, Attorney for Respondent (C.M.#P318726168) Danica W. Parker, Legal Advisor for Commission Panel

Paulette H. Simms, Administrator of Employment Investigations William R. Cave, DOAH Hearing Officer

Docket for Case No: 86-000975

Orders for Case No: 86-000975