STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GEORGE CABANY, )

)

Petitioner, )

vs. ) CASE NO. 89-0237

) HOLLYWOOD MEMORIAL RESPONDENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Daniel Manry, held a formal hearing in the above-styled case on July 14, 1989, in Hollywood, Florida.

APPEARANCES

FOR PETITIONER: George Cabany, pro se

3905 Garfield Street

Hollywood, Florida 33021

FOR RESPONDENT: James S. Bramnick, Esquire

Muller, Mintz, Kornreich, Caldwell, Casey, Crosland & Bramnick, P. A. Hollywood Memorial Hospital

Suite 3600

Southeast Financial Center

200 South Biscayne Boulevard Miami, Florida 33131-2338

PRELIMINARY STATEMENT

Petitioner filed a charge on March 9, 1987, with the Broward County Human Rights Board, Human Relations Division, alleging that the Respondent, Hollywood Memorial Hospital (Respondent) had discriminated against him because of his handicap. Petitioner alleged that he was unlawfully terminated from his employment with the Respondent. After the Broward County Human Rights Board held a fact-finding conference, Petitioner requested that the case be referred to the Florida Commission on Human Relations (the "Commission").

Petitioner filed a complaint of handicap discrimination with the Commission on June 1, 1987. A "Notice of Determination: No Cause" was served upon the parties on December 14, 1988, pursuant to Rules 22T-9.004(5) and (6), Florida Administrative Code. Petitioner filed a Petition for Relief, and the Commission referred the matter to the Division of Administrative Hearings on January 3, 1989.

On or about January 27, 1989, the Respondent filed a Motion to Dismiss Petition for Relief for failure to comply with the Florida Administrative Code, and, alternatively, for failure to state a claim upon which relief may be

granted. On or about January 31, 1989, the Respondent filed its Answer and Affirmative Defenses pursuant to Rule 22T-9.008(5), Florida Administrative Code. On February 9, 1989, Hearing Officer Diane D. Tremor issued an Order requiring Petitioner to file a more definite statement of the issues in dispute, the rules or statutes which entitle the Petitioner to relief, and a statement of the relief requested in this proceeding.

Petitioner filed an additional "statement" and a copy was served on the Respondent by Hearing Officer Tremor. Respondent filed a Second Motion to Dismiss Petition for Relief and an Amended Answer and Affirmative Defenses. On March 31, 1989, the case was transferred to the undersigned. An Order Denying Respondent's Motion to Dismiss and Scheduling Final Hearing was issued by the undersigned on May 3, 1989. A Notice of Hearing was served upon the parties on April 28, 1989, and subsequently rescheduled pursuant to an Amended Notice of Hearing issued on May 22, 1989. The formal hearing was conducted on July 14, 1989, in Hollywood Florida.

Petitioner submitted 11 exhibits, and Respondent submitted 20 exhibits.

Petitioner's exhibits 3 and 7 were admitted over objection. Respondent's exhibits 6, 8, 12, 13, 14, 16, and 20 were admitted over objection. All other exhibits were admitted without objection.

Petitioner called 3 witnesses and testified in his own behalf. Respondent called the same 3 witnesses and 4 additional witnesses. Respondent ordered a transcript which was filed on August 11, 1989. Proposed Findings of Fact and Conclusions of Law were due on August 31, 1989. Respondent timely filed its Proposed Findings of Fact and Conclusions of Law on August 30, 1989. As of the date of this Order, Petitioner has filed no Proposed Findings of Fact and Conclusions of Law.

STATEMENT OF THE ISSUES

The ultimate issue for determination is whether the Petitioner's discharge by the Respondent constituted discrimination on the basis of handicap within the meaning of the Florida Human Rights Act.

FINDINGS OF FACT

Having considered all of the evidence in the record, the Hearing Officer makes the following findings of fact:

1. Petitioner was hired as a Mechanic II (Electrician) by Respondent on January 25, 1982 in the Plant Engineering Department. The term "Mechanic II" denoted Petitioner's pay grade. The term "Electrician" designated Petitioner's speciality. Petitioner's pay grade was changed to Electrician and the Mechanic II pay grade was eliminated by Respondent for all such employees on or about November 16, 1983.

   
   

2. Petitioner's duties as an Electrician included ladder work, running conduit and wire, repairing laundry and laboratory equipment and appliances, changing ballasts, and repairing electrical beds and nurse-call equipment. Petitioner performed all of the duties of an electrician, including ladder work until approximately November 27, 1985.

3. Three months after he was employed in 1982, Petitioner injured his back while repairing electrical beds. Repairing electrical beds required much bending and stooping. Petitioner filed for Worker's Compensation benefits for the injury he sustained in repairing electrical beds.

   
   

4. Petitioner suffered an off-the-job injury in 1983. Respondent permitted Petitioner to go on medical leave for two months.

   
   

5. Petitioner again injured his back while working at the Hospital on or about November 27, 1985. Due to his injury, Petitioner was on leave of absence from November 30, 1985, through December 11, 1985. Petitioner returned to work but again went on leave of absence from January 9, 1986, through February 17, 1986.

   
   

6. Petitioner returned to work subject to a "light duty" restriction imposed by his physician. On or about June 10, 1986, Petitioner's physician released him for full duty subject to a 15 pound restriction on any lifting. In September, 1986, Petitioner's physician indicated that it was "probably best" for Petitioner to work only 4 hours per day. The Respondent again allowed Petitioner to work 4 hours per day even though he occupied a full-time, 8 hour per day position.

   
   

7. In early October, 1986, Petitioner was released by his physician to perform full duty work, even though Petitioner was restricted to half days. Frank Kleese, Petitioner's foreman, asked Petitioner to investigate a problem with an overhead light. Petitioner refused Kleese's directive and stated that, even though he had been released for full duty work, he would not climb a ladder unless his doctor approved it.

   
   

8. Petitioner argued with Kleese and used "strong language". Petitioner became belligerent. Petitioner received reprimands for insubordination. When Petitioner refused Kleese's second request to do ladder work, Petitioner received a reprimand for refusing to do the job assigned to him.

   
   

9. Both reprimands were discussed with Petitioner. Petitioner later presented a doctor's note stating he could "return to full active duty," but could work only half days with no ladder work.

   
   

10. As a result of Petitioner's half day schedule, other electricians were required to do more work. The department as a whole fell behind in its work. Furthermore, light duty work was not always available for Petitioner.

    
    

11. While working half days in late 1986, Petitioner was late to work on three occasions. Petitioner's reason for being late, as explained to Frank Kleese, his foreman, was that Petitioner's injury made it difficult for him to get out of bed in the morning.

    
    

12. In November, 1986, Clark, Kleese, and Kunz met with Petitioner and advised him that he could not remain on half days indefinitely. Petitioner was advised that unless his condition was found to have improved by his upcoming doctor's appointment on December 1, 1986, he would be placed on medical leave.

    
    

13. On December 1, 1986, Petitioner visited his physician, Dr. Richard D. Strain, Jr. Dr. Strain stated that there was no reason to think that Petitioner's condition would change quickly. Dr. Strain was going to send

    Petitioner home and put him on physician therapy (i.e., not allow him to work at all). Petitioner asked Dr. Strain if he could work half days, and Dr. Strain agreed.

    
    

14. Kleese, Kunz, and Clark met with Petitioner and informed him that he would be placed on medical leave as a result of the Petitioner's medical condition. Continuation of his half-day status without any foreseeable cutoff date was not acceptable to the Respondent.

    
    

15. On December 4, 1986, Respondent Benefits Supervisor Ralph Rettig advised Dr. Strain that Petitioner had been placed on medical leave of absence because there were no part-time positions available in Petitioner's department. Rettig requested Dr. Strain to advise him as to whether Petitioner's condition was the result of his injury at work and whether Petitioner would ever improve to the level where he could work more than half day duty.

    
    

16. Dr. Strain responded to Mr. Rettig in a letter dated December 22, 1986, which indicated that Petitioner's condition was partially caused by degenerative changes. Dr. Strain further stated:

    
    

    Mr. Cabany tells me he is unable to work more than a half day, and I think that is a reasonable thing for him to do. Certainly, a man of his elderly years with the degenerative changes that he has, with super

    imposed trauma, that would be a good way to go.

    
    

17. Petitioner went on medical leave beginning December 17, 1986. Prior to the beginning of his leave, Petitioner failed to fill out the leave of absence request form. When this came to Rettig's attention, Rettig requested that Vernon Clark send Petitioner the form.

    
    

18. Clark wrote to Petitioner and informed him that he must fill out the leave of absence request form Clark had enclosed. Clark further informed Petitioner that he would have to request renewal of his leave when it expired in mid-January, 1987, in accordance with Respondent policies. During a telephone conversation several days prior to the expiration of Petitioner's leave, Clark reminded Petitioner that he still had not sent in the original request form for the leave he was then under. Clark also reminded Petitioner that, if he wished to extend his leave, Petitioner would have to submit a written request for extension.

    
    

19. Petitioner eventually sent in the signed request form for the leave of absence which he was then under. The signed form stated: "If I do not request an extension of my Leave prior to expiration . . . my employment at Memorial Respondent will be terminated. . . ." Petitioner never submitted a request for an extension of his leave, and Petitioner was terminated.

    
    

20. In February, 1987, Ralph Rettig became aware of a part-time porter position in the Respondent's Dietary Department. Mr. Rettig contacted Petitioner and asked him to meet with Joseph Marino, Administrative Director of Food and Nutrition Services, with regard to a job in the Dietary Department.

    
    

21. Marino offered Petitioner a porter position which required only half days and involved no bending or lifting of heavy objects. Marino explained the duties and responsibilities of the position to Petitioner and showed him the

    work area. Petitioner refused the position because he felt it was "beneath his dignity". Petitioner said virtually the same thing to Rettig.

    
    

22. Hospital Benefits Supervisor Rettig, a quadriplegic, was involved throughout in dealing with Petitioner's medical situation. Rettig testified that he has never witnessed discrimination by the Respondent based upon handicap and felt that the Respondent reasonably accommodated Petitioner's back problem.

    
    

23. Eighty percent of an Electrician's work at the Respondent involved the use of a ladder. Petitioner could not do ladder work. Petitioner also could not work on ceilings or do much bending or lifting.

    
    

24. Petitioner cannot work at all now, still has pain, and has not worked since leaving the Respondent's employ. Petitioner did not know of any available half-day jobs he could have performed at the Hospital other than the porter position that was offered to Petitioner by Mr. Marino.

    
    

25. Prior to his 1985 injury, Petitioner had repeatedly requested to work part time as an Electrician because his wife had arthritis and he needed to care for her. Petitioner was consistently turned down because no such part-time position existed in his department.

    
    

26. During his employment with Respondent, a few half-day positions existed throughout the Hospital as PBX Operators, Cashiers, and Porters. No part-time Electrician positions in the Plant Engineering Department where Petitioner was employed were ever available. Petitioner occupied a full-time position even though he worked only part-time.

    
    

27. Sandy McNeil, a former Electrician, is now a Systems Technician/Welder who works full days on a part-time basis. Mr. McNeil operates a lathe and works full weeks when needed. Petitioner is not a welder and could not perform the duties required of Mr. McNeil.

    
    

28. Richmond Blatch is a painter who works a full week every other week. Petitioner is not a painter and could not perform Mr. Blatch's duties.

    
    

29. Tom Nottage, another individual who had been working in the Engineering Department, obtained a courier position with the Hospital. For a brief period, Mr. Nottage worked 2 full days a week in the Engineering Department and 3 days week as a courier.

    
    

30. Since mid-January, 1987, Mr. Nottage has worked full-time as a courier. His job requires driving over 25,000 miles per year, lifting mail tubs weighing between 20 and 50 pounds, often lifting heavier packages, and getting in and out of his car between 20 and 40 times per day. Petitioner could not perform the duties required of Mr. Nottage.

    
    

31. A part-time position could not be created for an Electrician. Electricians are given jobs which frequently carry through from day to day. Permanently employing someone on a half-day, health-restricted basis presented scheduling and work load problems. Jobs that do not carry through from day to day are frequently comprised of so-called bench work. Some bench work requires an entire day to complete. There was not always a half-day's worth of bench work available.

    
    

32. During his employment with the Respondent, Petitioner had been receiving Social Security pension benefits. In 1987, Petitioner would have been

    required to reimburse Social Security for a portion of his pension benefits if he earned more than $8,000,00. Half day employment would have afforded Petitioner the ability to earn the maximum allowed by Social Security.

    
    

33. Because Petitioner refused to accept a job for which he was physically qualified, the worker's compensation benefits begun as a result of his injury on the job in 1982, were stopped. If Petitioner had accepted the porter position offered to him by Mr. Marino, his worker's compensation benefits would have compensated him for the wage loss resulting from the lower paying job.

    
    

34. Petitioner's termination had no effect on the worker's compensation benefits Respondent was paying Petitioner. Respondent would have gained a financial benefit from retaining Petitioner as a part time Electrician because there would have been less of a wage loss to make up through worker's compensation benefits.

    
    

35. Glen Mora and Luis Villanueva, two other Electricians, were injured while Petitioner was working half days. Both individuals were allowed to take medical leave, and return to work on light duty until they returned to full duty status. Both individuals in fact returned to full duty status.

    
    

36. Petitioner received a merit pay check from Respondent in 1986 even though Petitioner had not achieved the requisite "fully proficient" rating in his evaluation. Vernon Clark, Director of Plant Engineering, intervened on behalf of Petitioner. Mr. Clark recommended that Petitioner receive the merit pay because Petitioner would have received a higher rating had it not been for Petitioner's injury.

    
    

    CONCLUSIONS OF LAW

    
    

37. The Department of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding pursuant to Section 120.57(1), Florida Statutes (1987)

    
    

38. Petitioner has the burden of proof in this proceeding. Petitioner must prove by a preponderance of the evidence that the Respondent violated the Human Rights Act of 1977, as amended. Retton v. Department of Corrections, FCHR Order 86-045, 9 FALR 2423 (December 15, 1986). See also McDonnell Douglas Corp.

    v. Green, 411 U.S. 792 (1973); Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981).

    
    

39. At all times material to this proceeding, Petitioner was handicapped within the meaning of Sections 760.10(1)(a), 760.10(8)(a) and 760.22(5), Florida Statutes (1987).

    
    

40. Section 760.10(1)(a), Florida Statutes (1987), makes it an unlawful employment practice for an employer to discriminate against a person with respect to terms and conditions of employment because of such individual's handicap.

    
    

41. Petitioner has the initial burden of establishing a prima facie case of handicap discrimination. If he establishes a prima facie case, Respondent is required to articulate some legitimate nondiscriminatory reason for its actions. At that point, Petitioner could only prevail if he could prove by a preponderance of the evidence that the reasons offered by Respondent were a pretext for discrimination. Texas Department of Community Affairs v. Burdine,

    450 U.S. at 253; Stewart v. Wackenhut Corporation, FCHR Order 88-015, 10 FALR 4624 (June 30, 1988), Retton, 10 FALR at 2433-34.

    
    

42. To state a prima facie case of handicap discrimination, Petitioner must prove that (1) he is handicapped within the meaning of Section 760.10, Florida Statutes (1987); (2) he is otherwise qualified for the position; and (3) he suffered an adverse employment action under circumstances which give rise to an inference that the employment action was based solely on his handicap. See Pushkin v. Regents of University of Colorado, 658 F.2d 1372, 1387 (10th Cir. 1981)

    
    

43. The Petitioner has not established a prima facie case of handicap discrimination because he has admitted that he could not perform the duties of his full-time Electrician position. He could not do ladder work, he could not work more than half days, he had severe restrictions as to bending and lifting, and now cannot work at all. Petitioner has thus failed to show that he is "otherwise qualified" or to prove by a preponderance of the evidence that, despite his handicap, he was able to perform the job duties of an Electrician.

    
    

44. Petitioner failed to make a showing of disparate treatment. He neither alleged nor proved any other instance in which a similarly situated employee was treated differently.

    
    

45. Respondent evidenced legitimate, nondiscriminatory reasons for its actions with respect to Petitioner. Petitioner could not perform the essential functions of his full time job as an Electrician. Cf. Pericich v. Climatrol,

    523 So.2d 684, 685 (Fla. 3d DCA 1988)(in retaliation action, "[e]mployers still retain their traditional right to terminate employees for legitimate business reasons, such as unsatisfactory job performance or excessive absenteeism"). Respondent discharged Petitioner for Petitioner's failure to request an extension of his leave of absence. Such action is consistent with Respondent's policy and practice, Petitioner had actual notice of the Respondent's policy, and Petitioner failed to comply with that policy.

    
    

46. Petitioner failed to demonstrate that the reason given for his discharge was not Respondent's true reason, but was, instead, a pretext for discrimination. Thus, Petitioner failed to meet his ultimate burden of proof.

    
    

47. For over a year after the Petitioner's injury, Respondent allowed Petitioner to use various medical leaves and to work light duty and half days even though Petitioner occupied a full time position. Respondent more than reasonably accommodated Petitioner's handicap. Cf. Pericich, 523 So.2d at 686 (no violation of anti-retaliation provision in Worker's Compensation statute where employer dismissed employee who was unable to physically perform job even after one year on "light duty" status).

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Human Rights Commission issue a Final Order that

Respondent is not guilty of discharging Petitioner in violation of the Human Rights Act.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 5th day of October, 1989.

DANIEL MANRY

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 5th day of October, 1989.

APPENDIX

Petitioner submitted no proposed findings of fact. Respondent submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

NONE

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1 Included in Findings 1, 2

2-3 Rejected as irrelevant

4-9 Included in Findings 3-10

1. Included in Finding 35

2. Included in Finding 11

3. Included in Finding 25

4. Included in Finding 26

5. Included in Finding 31

15-17 Included in Findings 27-30

1. Included in Finding 17

2. Included in Finding 36

3. Included in Finding 32

21-28 Included in Findings 12-21

29 Included in Finding 22

30-31 Included in Findings 33-34

1. Included in Finding 22

2. Included in Findings 15, 17

34-35 Included in Findings 23, 24

COPIES FURNISHED:

George Cabany

3905 Garfield Street

Hollywood, Florida 33021

James S. Bramnick

Muller, Mintz, Kornreich, Caldwell, Casey, Crosland & Bramnick, P. A. Hollywood Memorial Respondent

Suite 3600

Southeast Financial Center

200 South Biscayne Boulevard Miami, Florida 33131-2338

Donald A. Griffin Executive Director

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1925

Dana Baird General Counsel

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1925

Docket for Case No: 89-000237

Orders for Case No: 89-000237