STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GLADYS LAROCHE, )

)

Petitioner, )

)

vs. ) CASE NO. 89-6823

)

DEPARTMENT OF LABOR AND )

EMPLOYMENT SECURITY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on July 25, 1990, in Miami, Florida.

APPEARANCES

For Petitioner: Paul H. Stevens, Esquire

Paul H. Stevens, P.A. 7620 S.W. 105th Terrace Miami, Florida 33156

For Respondent: Edward A. Dion, Esquire

Assistant General Counsel Florida Department of Labor

and Employment Security Hartman Building, Suite 307 2012 Capital Circle, Southeast

Tallahassee, Florida 32399-0657 STATEMENT OF THE ISSUES

Whether Petitioner is a handicapped person within the meaning of the Florida Human Rights Act of 1977 and, if so, whether Respondent engaged in an unlawful employment practice by discriminating against Petitioner based upon her handicap.

PRELIMINARY STATEMENT

Petitioner began employment with Respondent in 1974 in a secretarial position. In 1987, Petitioner was employed by Respondent as a "Secretary Specialist". Petitioner's immediate supervisor since 1982 was Dr. Arnold Cortazzo, Respondent's District Program Administrator. In January 1987, Respondent published a Job Opportunity Notice for the newly created position of "Staff Assistant" in the Miami District Office. Petitioner was one of several applicants for this position, but another applicant was selected for the position. Thereafter, Petitioner filed a complaint alleging that she was a

handicapped person within the meaning of the Florida Human Rights Act of 1977 and that she was discriminated against based on her handicap in the filling of the Staff Assistant's job. This proceeding followed.

At the formal hearing Petitioner testified on her own behalf and presented seven exhibits. One of Petitioner's exhibits, marked Petitioner's Exhibit 4 was proffered as an exhibit, but it was not accepted into evidence because Petitioner failed to disclose it as required by the prehearing order.

Petitioner's Exhibit 5 was marked for identification but was not moved into evidence. Petitioner's remaining exhibits were accepted into evidence.

Respondent called two witnesses and presented 9 exhibits. Respondent's Exhibit

8 was marked for identification but was not moved into evidence. Respondent's remaining exhibits were accepted into evidence.

A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 22I-6.031, Florida Administrative Code. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner was, at all times pertinent to these proceedings, an employee of Respondent in its Miami District Office. Petitioner began her employment with Respondent on September 18, 1974, in the position of Secretary

   1. During her employment, she was promoted to Secretary II and then to Secretary III. The position of Secretary III was subsequently reclassified to the position of Secretary Specialist. Petitioner's immediate supervisor since 1982 was Dr. Arnold Cortazzo, Respondent's District Program Administrator. At the time of the alleged event of discrimination, Petitioner was employed as a Secretary Specialist and was under the immediate supervision of Dr. Cortazzo.

      
      

2. On January 30, 1987, Respondent published a Job Opportunity Announcement for the position of Staff Assistant in the Miami District Office. Dr. Cortazzo prepared the Position Description which included the following descriptions of duties and responsibilities, and the respective percentages of time for each:

   
   

   15% - Conducts client satisfaction surveys and reports on results to Program Manager.

   15% - Conducts follow-up studies on Vocational Rehabilitation clients, compiles and analyzes results, and submits findings to Program Manager.

   10% - Performs special assignments for Program

   Manager such as monitoring the action plans, surveys, and requests for information.

   15% - Coordinates the work flow of the District XI Division of Vocational Rehabilitation Office.

   05% - Orders forms and supplies of the District Program Office.

   10% - Checks for accuracy monthly attendance and

   leave reports for District Program Office. Also keeps record of accumulative leave earned and used.

   Distributes monthly leave report to district offices.

   25% - Acts as liaison to Support Staff Council, assists the training coordinator in training support and clerical staff.

   05% - Other related duties as required.

   
   

3. The Position Description for the Staff Assistant position set forth the following as being the knowledge, skills, and abilities necessary to perform the job:

   
   

   Knowledge of office procedures and practices.

   Knowledge of the principles and techniques of effective verbal and written communication.

   Knowledge of the methods of data collection. Knowledge of basic arithmetic.

   Ability to understand and apply applicable rules, regulations, policies, and procedures.

   Ability to deal with the public in a tactful and courteous manner.

   Ability to perform basic arithmetical calculations. Ability to work independently.

   Ability to utilize problem solving techniques. Ability to plan, organize, and coordinate work assignments.

   Ability to communicate effectively verbally and in writing.

   Ability to establish and maintain effective working relationships with others.

   
   

4. The Position Description for the Secretary Specialist position held by Petitioner in 1987 contained the following duties and responsibilities and the percentage of time for each:

   
   

   35% - Transcribes dictation from dictating equipment or rough drafts from Program Manager. Types documents for Program Manager.

   12% - Receives and reads incoming mail for Program Manager, screens items which can be handled personally, and forwards the rest to Program Manager. Screens Program Manager's incoming calls.

   05% - Maintains calendar tickler file for Program Manager on important correspondence and documents, follows up on work in process to insure timely reply or action.

   03% - Acts as office receptionist in the absence of other secretarial/clerical staff.

   35% - Assembles and summarizes information upon request of Program Manager from files and documents in the office or other available sources.

   05% - Composes and signs routine correspondence of a nontechnical nature from verbal instructions of Program Manager.

   02% - Keeps Program Manager's calendar by scheduling appointments and conferences with or without prior clearance.

   03% - Files Program Manager's correspondence and other materials and maintains the Program Manager's file.

5. The following were listed as the knowledge, skills, and abilities required for the Secretary Specialist position:

   
   

   Knowledge of the techniques for handling telephone calls in a courteous and efficient manner.

   Skill in typing.

   Ability to transcribe dictation using notes or a dictating machine.

   Ability to organize files and other records. Ability to perform basic arithmetical calculations. Ability to use correct spelling, punctuation, and grammar.

   Ability to type letters, memoranda and other standar business forms in correct format.

   Ability to operate general office equipment.

   Ability to handle telephone calls in a courteous and effective manner.

   Ability to plan, organize, and coordinate work assignments.

   Ability to communicate effectively verbally and in writing.

   Ability to establish and maintain effective working relationships with others.

   
   

6. At the times pertinent to this proceeding, Dr. Cortazzo was the Program Manager referred to by the job descriptions for both the Staff Assistant position and the Secretary Specialist position.

   
   

7. The deadline for the filing of applications to fill the Staff Assistant position was set for February 12, 1987. Prior to the deadline, six applications for the position were received for the position. One applicant withdrew her application prior to the interview stage. Included among the applications received in a timely manner were the application of Petitioner and the application of Eulalia Diaz. The applicants were asked to resubmit their applications because the original applications were misplaced. Consequently, the applications in Respondent's files are replacement applications that were received after the advertized deadline.

   
   

8. Dr. Cortazzo prepared a list of criteria to be used in the ranking of the applicants and a list of interview questions. Dr. Cortazzo thereafter interviewed the remaining five applicants and asked each of them the same interview questions. Dr. Cortazzo then selected three finalists for the position. Both Petitioner and Ms. Diaz were among the three finalists.

   
   

9. Prior to his interviews, Dr. Cortazzo had asked that the four Human Services Program Administrators employed by Respondent in the District interview the top three candidates and to recommend to him their top candidate for the position. Dr. Cortazzo made no effort to influence the interview process followed by these administrators. These administrators were unanimous in their recommendation of Eulalia Diaz as the top candidate for the position.

10. After receiving the recommendation from the four Human Services Program Administrators, Dr. Cortazzo ranked the three finalists using the criteria he had previously developed. Ms. Diaz received the highest ranking of the three finalists. Dr. Cortazzo thereafter made the decision to employ Ms. Diaz as the Staff Assistant. Petitioner's alleged handicap had no bearing on Dr. Cortazzo's decision to hire Ms. Diaz as the Staff Assistant.

    
    

11. Petitioner has a congenital deformity of the right leg which resulted from her umbilical cord being wrapped around her right leg at birth. As a consequence, her right leg did not fully develop. She has circulation problems in her right leg and her right leg is both shorter and weaker than her left. Petitioner cannot sit, stand or walk for long periods of time. She wears an orthopedic shoe and walks with a slight limp and an unsteady gait. During the course of her employment with Respondent, she has had to utilize crutches on two occasions for brief periods of time after her right leg had become infected from a cut.

    
    

12. Her condition has had, at most, a minimal impact on her ability to perform her job. During the period of time of July 1977 to October 1986, Petitioner received thirteen job evaluations. For each of these evaluations, Petitioner received an overall evaluation of either outstanding or exceeds performance standards. The last six of these evaluations were by Dr. Cortazzo.

    
    

13. There was a conflict in the testimony as to the duties Petitioner was actually performing. Petitioner contends that the job description for the Secretary Specialist position does not adequately describe the duties she was actually fulfilling. Petitioner contends that she was essentially performing the duties and responsibilities of the Staff Assistant before the position was created. Respondent contends that the duties Petitioner was performing were primarily secretarial and that the job descriptions and the skills required to fill these positions are separate and distinct. This dispute is resolved by finding that the Secretary Specialist job description adequately describes the job Petitioner was performing and that she was not essentially performing the duties and responsibilities that were expected of the Staff Assistant.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

15. Petitioner bears the initial burden of establishing a prima facie case of discrimination. If Petitioner meets its initial burden, the burden shifts to Respondent to establish some legitimate, nondiscriminatory reason for the action taken in order to rebut the inference of discrimination. Thereafter, if Petitioner can establish that Respondent's actions were simply a pretext for discrimination, Petitioner may still prevail. McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1973); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Anderson v. Lykes Pasco Packing Co., 503 So.2d 1269 (Fla. 2d DCA 1986).

16. The Florida Human Rights Act of 1977 is codified in Sections 760.01 - 760.10, Florida Statutes. Section 760.10(1)(a), Florida Statutes, provides, in pertinent part, as follows:

    
    

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

       1. To ... fail or refuse to hire any individual, or to otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's

          ... handicap ... .

          
          

17. To establish a prima facie case of discrimination , the Petitioner must establish the following elements:

    1. That she was a member of a protected class, i.e., that she was a handicapped person within the meaning of the Act;

       
       

    2. That she applied and was qualified for a vacant position;

    3. That she was rejected; and

    4. That someone else was selected.

    
    

18. Since there is no statutory or pertinent rule definition of the term "handicap", it is helpful to look to decisions of the Florida Commission on Human Relations for its interpretation of that term. In Thomas v. Floridin Company, 8 FALR 5457, at 5458 (1986), the Commission discussed the term "handicap" as follows:

    
    

    In interpreting the term handicap, the Human Rights Act of 1977, 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. ...

    
    

19. A broad reading of the term "handicap" is appropriate considering the remedial nature of the Florida Human Rights Act. When one considers the remedial nature of the Act and that Petitioner's physical condition was shown to have had a minimal impact upon her job performance, it can be concluded that Petitioner is an individual with a "handicap" within the meaning of the Act.

    
    

20. Petitioner established a prima facie case of discrimination. She established that she was a handicapped person within the meaning of the Act who applied for a vacant position for which she was qualified, that she was rejected, and someone else was selected.

    
    

21. The burden shifted to Respondent to establish some legitimate, nondiscriminatory reason for the action taken in order to rebut the inference of discrimination. Respondent rebutted any inference of discrimination established by Petitioner by proving that its actions were entirely motivated by legitimate, nondiscriminatory reasons. Petitioner failed to establish that Respondent's reasons were pretexts for discrimination.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner's charge of discrimination against Respondent.

DONE AND ENTERED this 1st day of October, 1990, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Hearing Officer

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550 904/488-9675

Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1990.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-6823

The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner.

1. The proposed findings of fact in paragraphs 1 and 2 are rejected as being conclusions of law.

2. The proposed findings of fact in paragraph 3 are adopted in part by the Recommended Order and are rejected in part as being conclusions of law.

3. The proposed findings of fact in paragraph 4, 5, and 8 are adopted in material part by the Recommended Order.

4. The proposed findings of fact in paragraphs 6 and 7 are rejected as being contrary to the greater weight of the evidence.

The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent.

1. The proposed findings of fact in paragraphs 1-2, 4, 7, 9-11, and 13-19 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraphs 3-6, 8, 12, and 20-21 are rejected as being unnecessary to the conclusions reached. (There are two paragraphs numbered 3, both of which are rejected as being unnecessary to the conclusions reached.)

Copies furnished:

Edward A. Dion, Esquire Assistant General Counsel Department of Labor and

Employment Security

2562 Executive Center Circle West, Suite 131

Tallahassee, Florida 32399-0657

Margaret Jones, Clerk Commission on Human Relations

325 John Knox Road, Building F Suite 240

Tallahassee, Florida 32399-1570

Hugo Menendez, Secretary Department of Labor and

Employment Security Berkeley Building Suite 200

2590 Executive Center Circle, East Tallahassee, Florida 32399-2152

Stephen Barron, Esquire General Counsel

307 Hartman Building 2012 Capital Circle S.E.

Tallahassee, Florida 32399-0658

Gladys Laroche

455 N.E. 159th Street

North Miami Beach, Florida 33162

Arnold Cortazzo Department of Labor and

Employment Security

401 N.W. Second Avenue, Room S221 Miami, Florida 33128

Donald A. Griffin Executive Director Florida Commission on

Human Relations

325 John Knox Road --Suite #240 Building F

Tallahassee, Florida 32399-1570

Docket for Case No: 89-006823

Orders for Case No: 89-006823