STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JESSE J. MCCLARY, )

)

Petitioner, )

)

vs. ) CASE NO. 88-5285

)

SCHOOL BOARD OF PINELLAS )

COUNTY, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in this case was held on February 23, 1989, in Clearwater, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings. The parties were represented as follows:

For Petitioner: Gary Moore, Esquire

Gulf Coast Legal Services, Inc.

6 South Fort Harrison Avenue Second Floor

Clearwater, Florida 34616

For Respondent: Bruce F. Taylor, Esquire

Post Office Box 4688 Clearwater, Florida 34618

The issue in this case is whether the School Board of Pinellas County (Respondent) unlawfully discriminated against Jesse J. McClary (Petitioner) based upon retaliation for a previous discrimination complaint which he had filed. At the hearing, the Petitioner testified on his own behalf, and called three additional witnesses. The Respondent called two witnesses. Fifteen exhibits were introduced by each party, while one exhibit offered by the Petitioner was rejected.

The transcript of the final hearing was filed on March 7, 1989, and the parties were thereafter allowed ten days to file proposed recommended orders. The Appendix to this Recommended Order contains a ruling on each timely filed proposed finding of fact.

FINDINGS OF FACT

1. Petitioner began employment with Respondent as a school bus driver in December, 1975. School bus drivers are part of the bargaining unit with the International Brotherhood of Firemen and Oilers, and at all times material hereto, the collective bargaining agreement between this union and the Respondent provided that employees who had not returned to work for one year following an on the job injury could be terminated without prejudice.

2. During 1981, Petitioner was injured on the job when he twisted his back falling off a school bus, and thereafter he was determined to be disabled, and received worker's compensation benefits. Because he felt he would never be able to return to his job as a school bus driver due to his injury, Petitioner settled his claim against Respondent resulting from his 1981 injury for a lump sum payment of $15,000.

   
   

3. In 1983, Petitioner was released by his treating physician, and applied for reinstatement with Respondent. When Respondent did not initially reinstate him, Petitioner filed a handicap discrimination complaint with the Florida Commission on Human Relations. Ultimately, Respondent did rehire Petitioner during 1983 as a school bus driver, but his salary was set at the beginning level without credit for his prior experience.

   
   

4. Petitioner continued to work as a school bus driver after he was rehired in 1983, receiving excellent performance evaluations, until April, 1985, when the bus he was driving was hit by a truck that ran a red light. In attempting to get the bus under control after it was hit, Petitioner twisted and reinjured his back. He was not at fault in this accident. Thereafter, Petitioner was again determined to be disabled, and received worker's compensation benefits.

   
   

5. One month after his second accident, Petitioner was released by his treating physician, Dr. Patrick J. Logue, and was allowed to return to work with Respondent in May, 1985. However, after attempting to drive a school bus, and perform the other duties of a driver, Petitioner decided he could not continue working. He determined he was not physically able to do his job. Thereupon, he was referred by worker's compensation to two additional physicians, Drs. Charles

   D. Nach and H. G. Siek, orthopedic surgeons licensed to practice in this State.

   
   

6. Dr. Nach prepared a medical absence report after examining Petitioner on July 5, 1985, and concluded that Petitioner would be able to return to work on that date, July 5, 1985. Petitioner did not return to work, however, and began seeing Dr. Siek in August, 1985, as well as Dr. J. Baird, a physician at the Martha Stetson Health Center, on referral by the Respondent. Respondent's Rule 6Gx52-7.05, Florida Administrative Code, authorizes the examination of injured employees at this Health Center. Dr. Baird filed a report dated October 22, 1985, indicating Petitioner could return to work, but could not lift, bend, stoop, squat, pull or push. Dr. Siek concluded that Petitioner could return to work on November 5, 1985, but with no heavy lifting.

   
   

7. On November 14, 1985, Respondent's Assistant Transportation Director, Walter Allison, prepared a detailed description of duties a school bus driver must perform, and requested that Petitioner allow his treating physician to review this description, and provide written verification of the fact that he could, in fact, perform these duties. The parties took, and introduced in evidence, the deposition of Dr. Siek wherein Dr. Siek testified that he had reviewed Allison's letter with Petitioner on November 18, 1985, and determined that he "didn't find that these prerequisites are too strenuous if he (Petitioner) felt they were within his capabilities." There is no evidence in the record, however, that Dr. Siek's conclusion on November 18 was ever conveyed to Walter Allison or any other representative of Respondent.

   
   

8. In late November, 1985, Petition was referred to a "work hardening" program administered by Physical Capacities, Inc. This program is used by Respondent and other employers to prepare employees who have been off the job for some time for the physical demands of their jobs, and to avoid aggravating

   their conditions while increasing mobility and strength. It consists of a physical assessment, training and work simulation exercises. However, after only two days in the work hardening program, Petitioner quit the program, and refused to return. He felt the exercises were aggravating his condition.

   
   

9. Thereafter, Petitioner resumed seeing Dr. Siek, and in April, 1986, Dr. Siek concluded that Petitioner could return to work, with light duty. However, Petitioner never insured that Dr. Siek provide Respondent with a response to Walter Allison's letter of November 14, 1985, which had clearly stated that once written verifications were received from Dr. Siek and Dr. Baird that Petitioner could perform the duties of a school bus driver, he would be permitted to return to work.

   
   

10. Petitioner completed and filed Statements of Continuing Disability from January through June, 1986, on which he indicated he was unable to return to work due to his back and hip condition.

    
    

11. In August, 1986, Petitioner began employment with the Upper Pinellas Association for Retarded Citizens (UPARC) as a bus driver, and has been continuously employed with UPARC to the present.

    
    

12. On December 5, 1986, Petitioner and Respondent executed a Stipulation and Joint Petition for Lump Sum Payment of his worker's compensation claim arising from the April, 1985 accident. Under the terms of this agreement, Respondent released a lien which it had against Petitioner's recovery against the driver of the truck which hit the school bus. The lien was in the amount of

    $21,845.71, resulting from worker's compensation benefits paid by Respondent to Petitioner, which Respondent could have collected against the $40,000 recovery Petitioner received from the tortfeasor. The parties also stipulated that maximum medical improvement was reached on April 14, 1986. The Stipulation and Agreement was approved by the Deputy Commissioner for worker's compensation.

    
    

13. On January 16, 1987, Petitioner filed a complaint of discrimination against Respondent alleging that since April, 1986, he had been denied reemployment by the Respondent due to retaliation for his filing of an earlier complaint of handicap discrimination in 1983. After investigation, the Executive Director of the Commission made a determination of "no cause" concerning Petitioner's complaint, and Petitioner timely filed a Petition for Relief, resulting in this hearing.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties, and the subject matter in this cause. Section 120.57(1), Florida Statutes.

    
    

15. The Petitioner bears the initial burden of establishing a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Teamsters v. United States, 431 U.S. 324 (1977). If the Petitioner sustains his initial burden, the Respondent would then have to establish some legitimate, non- discriminatory reason for the action taken in order to rebut the inference of discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S.

    248 (1981). Thereafter, if Petitioner can show that Respondent's actions were simply a pretext for discrimination, Petitioner may still prevail. McDonnell Douglas, at 804-805; Burdine, at 256. See also Anderson v. Lykes Pasco Packing Co., 503 So.2d 1269 (Fla. 2nd DCA 1986).

16. There is no evidence in the record to support Petitioner's allegation of discrimination due to retaliation for a previous complaint. Petitioner has, therefore, failed to sustain his burden of proof. Respondent rehired Petitioner in 1983 and gave him consistently excellent performance evaluations until his second accident in 1985. One month after this second accident, he was allowed to return to work to see if he could perform his duties, and he determined he could not.

    
    

17. On November 14, 1985, he was provided with a specific listing of duties which a bus driver must perform, and was informed that as soon as medical verification was received that he could perform these duties, he would be rehired. Respondent never has received such medical verification. The physicians who treated Petitioner did release him to return to work, but conditioned that release with an indication that he could not lift, bend, pull or push, and could perform only light duty. Under such conditions, Respondent reasonably insisted upon a specific verification of the duties he would have to perform, and set them forth in the letter dated November 14, 1985. Thereafter, Petitioner was referred to a work hardening program to prepare him for the duties he would have to perform as a school bus driver. After two days, he quit this program. Although he continued to see Dr. Siek until April, 1986, Dr. Siek never gave him an unconditional release to return to the duties set forth in Walter Allison's letter. Instead, he was released to return to light duties.

    
    

18. Respondent has rebutted any inference of discrimination which might be drawn in this case. There was a reasonable basis for requiring attending physicians to review and verify that Petitioner could perform the specific duties of a bus driver before allowing him to return to work. The safety of school children on his bus requires that he be fully able to perform all of his duties, and not just "light duty". Thus, there were legitimate, nondiscriminatory reasons for not allowing Petitioner to return to work in the absence of a written medical verification, as requested in the November 14, 1985, letter.

RECOMMENDATION

Based upon the foregoing, it is recommended that Petitioner's charge of discrimination against Respondent be DISMISSED.

DONE AND ENTERED this 29th day of March 1989, in Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5285

The Petitioner did not file a Proposed Recommended Order with Proposed Findings of Fact.

Rulings on the Respondent's Proposed Findings of Fact:

1. Adopted in Finding of Fact 1. 2-3. Adopted in Finding of Fact 2. 4-5. Rejected as unnecessary.

6-7. Adopted in Finding of Fact 3. 8-9. Adopted in Finding of Fact 4. 10-12. Adopted in Finding of Fact 5.

13. Adopted in Finding of Fact 6. 14-15. Rejected in Finding of Fact 5.

1. Rejected as unnecessary.

2. Adopted in Finding of Fact 6.

18-20. Rejected as unnecessary and irrelevant.

21. Rejected as simply a summation of testimony. 22-24. Adopted in Finding of Fact 5.

25. Rejected as unnecessary and irrelevant. 26-27. Adopted in Finding of Fact 6.

1. Rejected as unnecessary and irrelevant.

2. Adopted in Finding of Fact 6. 30-31. Adopted in Finding of Fact 7.

1. Adopted and Rejected in part in Finding of Fact 8.

2. Rejected as unnecessary.

34-35. Adopted in Finding of Fact 8.

1. Rejected as irrelevant and not based on competent substantial evidence.

2. Adopted in Finding of Fact 8.

38-49. Rejected as irrelevant, unnecessary and not based on competent substantial evidence.

1. Adopted and Rejected in part in Finding of Fact 12.

2. Adopted in Finding of Fact 13.

3. Adopted in Finding of Fact 6, but otherwise rejected as a conclusion of law.

4. Adopted in Finding of Fact 1.

5. Adopted and Rejected in part in Findings of Fact 10, 11.

6. Rejected as unnecessary.

7. Rejected as not based on competent substantial evidence.

COPIES FURNISHED:

Gary Moore, Esquire

Gulf Coast Legal Services, Inc.

6 South Ft. Harrison Avenue Second Floor

Clearwater, Florida 34616

Bruce P. Taylor, Esquire Post Office Box 4688 Clearwater, Florida 34618

Scott N. Rose, Ed.D.

Superintendent

Post Office Box 4688 Clearwater, Florida 34618

Margaret Agerton, Clerk Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1925

Donald A. Griffin Executive Director

Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1925

Docket for Case No: 88-005285

Orders for Case No: 88-005285