Rock, Jr., Esquire, Orlando, Florida.
Petitioner Harold L. Farancz filed a complaint with the Florida Commission on Human Relations alleging that Respondent had discriminated against him by denying him employment based upon his handicap. A fact-finding investigation was conducted, which resulted in a determination that there was no probable cause to believe that an unlawful employment practice had occurred. The Commission reversed that determination, finding that probable cause existed.
Accordingly, Petitioner filed his Petition for Relief from an Unlawful Employment Practice, and the Petition was forwarded to the Division of Administrative Hearings for the conduct of a formal hearing. Therefore, the issue for determination herein is whether Respondent committed an unlawful employment practice against Petitioner by denying him employment based upon his handicap, and, if so, what relief should be afforded to Petitioner, if any.
Petitioner testified on his own behalf and presented the testimony of Gerald Gorman. Respondent presented the testimony of Gerald Gorman; Virginia Sharp; Amratlal M. Patel, M.D.; Andrew Roy Thompson; Patricia Miller; and Jo Ellen Dyer. Additionally, Joint Exhibits numbered 1-9; Petitioner's Exhibits numbered 1, 10, 12, and 13; and Respondent's Exhibits numbered 3, 7-9, 11, 12, 14, and 15 were admitted in evidence.
Both parties submitted post-hearing proposed findings of fact. Each proposed finding of fact has been ruled on in the Appendix to this Recommended Order.
In July of 1984, Jo Ellen Dyer, submitted her resignation as a Personnel Specialist at St. Mary's Hospital, and St. Mary's placed an ad for her position.
Petitioner submitted a resume to St. Mary's, with a cover letter seeking that position. St. Mary's contacted him for an interview, and he was interviewed by Gerald Gorman, Employee Relations Director, on July 25, 1984. As part of that interview Petitioner completed a St. Mary's Hospital employment application in which he represented that he did not have any physical handicaps or illnesses which in any way might hinder his ability to perform the job for which he had applied.
Gorman was impressed with Petitioner. However, he contacted Petitioner shortly after the interview to explain that there was some question over whether Jo Ellen Dyer's position would be filled due to potential hospital cost reduction needs.
Several weeks later Gorman contacted Petitioner to find out if Petitioner was still interested in the position. Upon ascertaining that Petitioner was, Gorman scheduled the next stage in the employment process, an interview with Gil Wright, the department head.
On October 5, 1984, Petitioner was interviewed by Wright and then again by Gorman. At that time Petitioner was offered the position of Personnel Specialist subject to reference checks and a preemployment physical examination.
It is the standard policy of St. Mary's to make employment contingent upon the passing of an initial employment physical that must be accomplished prior to employment and upon favorable reference checks.
During the interview of October 5, 1984 Petitioner told Gorman that Petitioner wanted or needed to give two weeks' notice to his current employer, Job Service of Florida, if Petitioner was going to be selected for the Personnel Specialist position. Because of that requirement for two weeks' notice, Gorman and Petitioner agreed that Petitioner must be advised no later than October 19, 1984 that he would be hired, and November 5, 1984 was agreed to be Petitioner's starting date of employment at St. Mary's. They further agreed that Petitioner would be scheduled for his pre-employment activities the week of October 15, 1984.
On October 9, 1984 Petitioner signed a form entitled "Condition of Employment" which advised him that his examination would include blood tests, urinalysis, chest x-ray, PPD, and an examination by a physician.
On October 15, 1984 Petitioner came to the hospital to continue his pre-employment activities by completing various forms. Since Gorman had a
scheduling conflict, he requested Personnel Specialist Andrew Thompson to assist Petitioner in completing the required paperwork. One of the forms was a personnel specialist position description which Petitioner read and then signed. That job description contained the statement "must be able to do a substantial amount of the [sic] walking throughout the hospital."
On that same day Petitioner filled out a medical history form advising that he had arthritis in his neck, that he had sustained a neck injury, that he had been under a doctor's care during the past two years at the Veterans administration, that he had a VA disability, a medical discharge, and "myositis." He further indicated that he had lost no time from work during the past year.
While Thompson and Petitioner were completing the paperwork, they were also engaging in conversation since they both expected to be working together as
two of the three Personal Specialists at St. Mary's. Petitioner told Thompson that Petitioner, due to a spinal injury, would periodically, without warning, suffer loss of hand coordination which would sometimes result in him dropping items being carried. Petitioner also told Thompson that one of Petitioner's legs was subject to sporadic disfunction that caused him to periodically fall, without warning to himself or to others. He told Thompson that this occurred several times while he was at his place of employment and that his falling had caused humorous incidents.
Thompson told Gorman on October 15 or 16, 1984, what Petitioner had said about his physical condition.
On October 16, 1984, Gorman sent Petitioner a letter confirming the offer of employment made on October 5, confirming the November 5 effective date, and scheduling Petitioner's orientation for November 5. The offer contained in that letter again stated that it was "subject to satisfactory reference checks and the passing of pre-employment health requirements."
On October 17, 1984, Petitioner was interviewed for a promotion that he had applied for at his current employer, Job Service of Florida.
On October 18, 1984, Petitioner was given a physical examination by Dr. Amratlal M. Patel, the hospital's employee health physician. Dr. Patel reviewed Petitioner's medical history which caused him concern as to Petitioner's physical condition. He asked Petitioner, who had been lying on a table or stretcher, to walk. When Patel saw that Petitioner, attempting to walk without his cane, was only able to take several steps while holding on to the table and that he was wobbling, Dr. Patel told him to lie back down and asked him how he was able to walk. Petitioner replied that he could walk with a cane.
Patel asked who had been treating him, and Petitioner advised that he had been receiving treatment at the Veterans Administration clinic and that his treating neurologist was a Dr. Wilson.
Patel told Petitioner that he needed additional information before he could make a decision regarding Petitioner's employability. Patel ordered a lumbar spine x-ray taken of Petitioner and told Petitioner that he needed Petitioner's medical records from the Veterans Administration and a report or the medical records from Dr. Wilson, Petitioner's treating physician, in order to determine Petitioner's current medical condition and prognosis.
Dr. Patel did not examine Petitioner in more depth than he would any other applicant for employment since he believed that the answers to Petitioner's condition would best come from a specialist who had been treating Petitioner, and Dr. Patel is not a neurologist. Dr. Patel did not request that Petitioner walk with his cane in order to observe Petitioner walk but merely took Petitioner's word for it that he would walk with a cane.
Although Patel will sometime contact an applicant's doctors if he has questions and if he knows them, Patel did not contact Petitioner's doctors whom he did not know. He instead requested copies of the records and advised Gorman that he was requiring Petitioner to bring him copies of Petitioner's records from the Veterans Administration and from Dr. Wilson before he would make any determination of Petitioner's ability to perform the job requirements. Dr. Patel knew that the Personnel Specialist position required a good deal of "running around."
After his physical examination, Petitioner called Dr. Wilson to request copies of his medical records, but Dr. Wilson was not in his office at the time that Petitioner called. Petitioner did not ask anyone else in Dr. Wilson's office to provide him with copies of his medical records and did not again attempt to contact Dr. Wilson to obtain a copy of those records. He did, however, go to the Veterans Administration Ambulatory Care Center where he picked up a copy of his most recent medical records. He then drove back to St. Mary's and gave the Veterans Administration's records to Gorman. Gorman reminded Petitioner that he must also supply a copy of Dr. Wilson's records, and Petitioner told Gorman that he needed to hear from Gorman by the following day as to what Dr. Patel had determined based upon Patel's review of the Veterans Administration's records.
The Veterans Administration records revealed that during Petitioner's visits to the doctor there in June, July, and August, 1984, Petitioner was deteriorating more, that he had difficulty in getting out of chairs unassisted, with eating, with holding things in his hands, with letting go of things that he was holding, and with getting up off of the floor.
On October 19, 1984, Dr. Patel reviewed the Veterans Administration's notes and concluded from that information that Petitioner's condition was more serious than Patel had thought, that there was very severe permanent central nervous system involvement, that Petitioner would not be able to physically move about the hospital as the personnel specialist job required, but that Dr. Patel still wanted the information from Dr. Wilson without which he felt he could not make a medical decision regarding Petitioner's employability.
Dr. Patel informed Gorman of his conclusion after his review of the Veterans Administration's notes, telling Gorman that Petitioner had a lot of problems with his muscles and central nervous system, and that Dr. Patel could not make a decision based only on the medical information thus far provided by Petitioner.
Because October 19 was the last day upon which two weeks' notice could have been given by Petitioner before his starting time at St. Mary's of November 5, 1984, and because of Petitioner's insistence that he be notified on October
19 of Dr. Patel's conclusion upon review of the Veterans Administration's records, Gorman contacted Petitioner on October 19. Gorman told Petitioner that Dr. Patel could not make a good medical decision based on the information contained in the Veterans Administration's records provided by Petitioner. Gorman told Petitioner that Dr. Patel did not know Petitioner's complete current medical condition and prognosis for the future without Dr. Wilson's records and that in view of the activities of the job Dr. Patel could not recommend Petitioner at that time.
During that same telephone conversation Petitioner told Gorman that he was "flying a desk" at his present job and could not understand why he could not do the same at St. Mary's. Gorman explained that the position to be filled at St. Mary's was not one of "flying a desk" but required much more physical activity, as indicated in the job description signed and acknowledged by Petitioner. Gorman further told Petitioner that since he could not offer Petitioner the position on October 19 (the deadline set by Petitioner), that the hospital would continue to look for qualified candidates to fill the position.
Gorman sent Petitioner a letter on that date confirming the substance of the telephone conversation between them.
No time limit was imposed by anyone from St. Mary's hospital as to when the medical documentation requested of Petitioner was to be provided. Petitioner never did provide St. Mary's with any documentation from Dr. Wilson although he knew that it had been requested as a condition precedent to his approved employment. Petitioner did not request that Gorman extend the October 19th deadline established by Petitioner for his two-weeks' notice in order that he could bring Dr. Wilson's records to Dr. Patel for his review.
Gorman's decision to look for other applicants due to Petitioner's failure to provide documentation from Dr. Wilson was influenced by Gorman's concern for Petitioner's safety and well-being, if employed at St. Mary's Hospital, and the safety and well-being of co-workers and patients of the hospital. The position for which Petitioner applied, the one being vacated by Jo Ellen Dyer, involved walking throughout the hospital a minimum of 70 percent of the work time. The hallways in the hospital are frequented by visitors, staff, and patients, and patients ambulate in the hallways with IVs attached. Further, persons on stretchers and in wheelchairs are frequently encountered in the hallways.
Petitioner received the promotion he was applying for at his then place of employment in November of 1984.
In November of 1984 St. Mary's Hospital's president issued instructions that new hirings of employees would be limited, and vacant positions should be filled prudently. The Personnel Specialist position for which Petitioner applied has never been filled and was eliminated, for practical purposes, in December of 1984. Although other persons have since been hired as Personnel Specialist at St. Mary's or have transferred from other departments into Personnel Specialist positions at St. Mary's, none of those persons have been hired for or transferred to the personnel Specialist position previously held by Jo Ellen Dyer, the one for which Petitioner had applied. The duties formerly performed by Jo Ellen Dyer were absorbed by Drew Thompson.
St. Mary's Hospital does employ handicapped employees when the handicap does not interfere with the performance of their duties and a reasonable accommodation can be made for those individuals.
St. Mary's Hospital's failure to hire Petitioner was due to Petitioner's failure to qualify for that employment by providing required medical information by the deadline that Petitioner had imposed in order that Petitioner could show that he was able to fulfill the job duties. A person using a cane could fulfill the job description so long as that was the only problem. At the time that St. Mary's was required by Petitioner to make its final decision on October 19, the information it had regarding Petitioner's current medical condition was the information that Petitioner had given to Drew Thompson about falling unexpectedly and dropping things unexpectedly and the information contained in the Veterans Administration's medical records Petitioner he had given to the physician at the Veterans Administration for purposes of obtaining medical treatment. Those who encountered him at St. Mary's Hospital, however, observed Petitioner having no difficulty walking with his cane. The partial medical information provided by Petitioner was inconclusive.
Petitioner is not a handicapped person and does not consider himself to be one. Petitioner testified at the final hearing that he walks with no difficulty, that when he interviewed at St. Mary's Hospital he parked his car two and one-half blocks away and walked to the interview (rather than parking in
a handicapped space), that he has never been physically unable to perform any of his job duties, that he suffers no limitations whatsoever on his ability to walk, to carry, to lift, to push, and that he is not precluded from doing anything. He testified that he writes with no difficulty and operates a computer daily despite the numbness in his hands. He lifts and moves furniture in his family's thrift store when he is there; he pushes his wife in a wheelchair; and he is a wood carver who uses knives, which requires fine finger manipulation.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes.
Section 760.10(1)(a), Florida Statutes, makes it an unlawful employment practice for an employer to refuse to hire an individual because of that individual's handicap. No authority has been cited for the proposition that all persons having a central nervous system disorder or having suffered a spinal cord injury or a neck injury are handicapped per se. Both parties agree, however, that a person is handicapped if that person does not enjoy in some manner the full and normal use of his sensory or mental or physical facilities. See Fenesy v. G.T.E. Data Services, Inc., 3 Fla. Admin. L. Rep. 1764-A (Aug. 11, 1981). Petitioner's testimony is that he suffers no limitations in his faculties, and there is nothing he cannot do. In short, Petitioner has failed to establish a prima facie case to show that he is a handicapped person.
Even if Petitioner were handicapped, it is not an unlawful employment practice for an employer to take or fail to take an action on the basis of a handicap in those instances in which the absence of a particular handicap is a bona fide occupational qualification reasonably necessary for the performance of the particular employment. Section 760.10(8)(a), Florida Statutes. The Personnel Specialist position for which Petitioner applied at St. Mary's Hospital has a bona fide occupational qualification that the person holding that position be physically able to walk about the hospital for a substantial period of time during the work day. Petitioner has not established that he is able to physically walk about the hospital for a substantial period of time in that he advised a St. Mary's Hospital employee that he falls unexpectedly and he drops things which he is carrying, particularly in view of the questions raised by the complaints given by Petitioner to his doctors at the Veterans Administration Ambulatory Care Center.
Although it is clear that Petitioner was offered the job at St. Mary's Hospital, it is also clear that the job was offered to him subject to several conditions. Petitioner never fulfilled those conditions and does not appear to have attempted to fulfill those conditions. One phone call to Dr. Wilson when the doctor was out of the office does not show a good faith attempt to comply with the conditions of employment. Further, Petitioner himself was insistent that he be advised no later than October 19 as to Dr. Patel's recommendation based on the Veterans Administration notes.
Dr. Patel was not able to give that recommendation on October 19 because without Dr. Wilson's records Patel was not in a position to say that Petitioner was medically fit to function in the job for which Petitioner had applied. An employer is permitted to require physical examinations of applicants to determine fitness for the job or positions sought. Section 760.10(8)(b), Florida Statutes. Although Petitioner argues that Respondent made
