STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS N. PERRYMAN, )

)

Petitioner, )

)

vs. ) CASE NO. 90-2975

) SUGAR CANE GROWERS COOPERATIVE ) OF FLORIDA, )

)

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 September 6-7, 1990, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Isidro M. Garcia, Esquire

Law Offices of

Joseph A. Vassallo, P.A. 3501 South Congress Avenue Lake Worth, Florida 33461

For Respondent: Margaret L. Cooper, Esquire

Ruth P. Clements, Esquire Jones, Foster, Johnston &

Stubbs, P.A.

505 South Flagler Drive, Suite 1100 Post Office Drawer E

West Palm Beach, Florida 33402 STATEMENT OF THE ISSUES

Whether the termination of Petitioner's employment by Respondent constituted an unlawful employment practice.

PRELIMINARY STATEMENT

Petitioner was employed by Respondent from September 29, 1975, until December 1988, when his employment was terminated. Petitioner timely filed a complaint with the Florida Commission on Human Rights contending that his termination was in violation of the Florida Human Rights Act of 1977 (Act), Section 760.01, et seq., Florida Statutes. Respondent denied that Petitioner was handicapped within the meaning of the Act and contended that even if Petitioner was determined to be handicapped within the meaning of the Act, Petitioner's employment was terminated for legitimate, nondiscriminatory reasons.

At the formal hearing, Petitioner testified on his own behalf and he called Raymond Campbell, Respondent's personnel manager, as an adverse witness.

Petitioner presented four documentary exhibits, each of which was accepted into evidence. Respondent presented the testimony of Raymond Campbell, Dale Stacy, Connie Perryman, Edward Mayo, Louis Boglioli, Denise Williams, LaVaughn Milligan, and the Petitioner. Mr. Campbell, Mr. Stacy, Mr. Mayo, Mr. Boglioli, Ms. Williams, and Mr. Milligan are employees of Respondent. Ms. Perryman is the Petitioner's wife. Respondent presented thirteen exhibits. Among Respondent's exhibits were depositions from four different doctors.

A transcript of the proceedings has been filed. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent is a cooperative association of 54 farm members that is engaged in the State of Florida in the business of harvesting sugar cane and the milling of raw sugar for its members. Respondent is divided for organizational purposes into a mill division and an agricultural division. Petitioner's employment with Respondent was exclusively with its agricultural division. The agricultural division is divided into a harvesting department, a transportation department, and an equipment maintenance and repair department. The equipment maintenance and repair department has a service center, three field operations, a truck and trailer maintenance repair shop, and a machinery maintenance repair shop. There are approximately 300 vehicles owned by Respondent, including large tractor trailers used for hauling sugar cane.

   
   

2. Petitioner was initially hired on September 29, 1975, in the transportation department as a tractor-trailer operator. In November 1976, Petitioner was promoted to assistant truck foreman where his primary duty was dispatching trucks to haul harvested sugar cane from the field to the mill. This is a responsible position that involves calculation of the tonnage requirements of the mill which must be coordinated with the availability of product and drivers.

   
   

3. In the early 1980's Petitioner began having problems with his immediate supervisor, LaVaughn Milligan. These problems continued to escalate since the supervisor believed that Petitioner was trying to undermine his authority and was making promises to the drivers that he could not keep. By 1985, Mr. Milligan was dissatisfied with Petitioner's job performance and was prepared to recommend the termination of his employment.

   
   

4. At all times pertinent to these proceedings, Edward Mayo was the head of Respondent's maintenance and repair department. In 1985, a vacancy occurred in the position as truck and trailer maintenance and repair shop supervisor. There is a conflict in the evidence in that Petitioner testified that Mr. Milligan and Mr. Mayo asked him to accept the transfer, but Mr. Mayo testified that Petitioner requested the transfer. The testimony of Mr. Mayo is accepted as being more credible and it is found that Petitioner asked Mr. Mayo for a transfer to this vacant position. Mr. Mayo was aware of the problems that Petitioner was having with Mr. Milligan, but he decided to transfer Petitioner to this position despite these difficulties. Mr. Mayo recognized that Petitioner's difficulties with Mr. Milligan may have been the result of a personality conflict between the two men and he wanted to give Petitioner the opportunity to prove himself.

5. The position Petitioner assumed in 1985 was the position he held when his employment was terminated.

   
   

6. The truck and trailer repair and maintenance shop is responsible for the maintenance and repair of all of Respondent's vehicles and employs approximately 22 mechanics. Respondent was aware that Petitioner had no training or experience as a mechanic, and he was specifically instructed to make no mechanical decisions. Petitioner's responsibilities included the requisitions of parts, supplies, and equipment for his shop and the supervision of mechanic's work schedules. He was to act in a personnel management and administrative capacity.

   
   

7. Petitioner satisfactorily performed his duties during his first year in the position. In late 1986, his job performance began to deteriorate and several complaints from different sources were made to Mr. Mayo about Petitioner's poor performance. Mr. Mayo became concerned about Petitioner's job performance and frequently discussed his concerns with Petitioner.

   
   

8. Prior to October 1987, Respondent was unaware that Petitioner had a medical problem. Petitioner had been hospitalized in June 1987 while he was on vacation, but Respondent did not learn of that hospitalization until after October 1987. In October 1987, Petitioner was hospitalized for depression and for detoxification from his addiction to antidepressant drugs. Unknown to Respondent, Petitioner had been, for several years, suffering from anxiety, depression, and paranoia. Petitioner had experienced hallucinations and had been treated by several different physicians. He had been taking drugs for his conditions for some eight years, including Ativan, an antidepressant in the benezodiazpine family of drugs, to which he became addicted.

   
   

9. Petitioner returned to work following his hospitalization in October 1987. He told Mr. Mayo that his hospitalization was related to the prolonged use of medication.

   
   

10. Following return from his hospitalization in October 1987, Petitioner's job performance deteriorated to the point that he was unable to function at work and he could not perform his job. Petitioner had difficulty concentrating, demonstrated a short term memory deficit, and lacked energy. Petitioner began making mechanical decisions that he was not qualified to make and which posed a safety hazard.

    
    

11. On December 10, 1987, Petitioner met with Dale Stacy, Respondent's Vice President of Agricultural Operations, Ray Campbell, Respondent's Personnel Manager, and Mr. Mayo. Petitioner was advised as to the deficiencies with his job performance. Respondent was willing to assist Petitioner and placed him on sick leave with pay until his doctors certified that it was medically sound for him to return to work. Medical assurances were requested out of a legitimate concern for the safety of Petitioner, Respondent's employees, and the general public.

    
    

12. On December 22, 1987, Dr. Adele MacKay, Petitioner's psychologist, informed Respondent's assistant personnel manager that Petitioner was very anxious about being out of work and that she thought it would be best for Petitioner if he were allowed to return to work. Respondent was advised by Dr. Mackay that Petitioner may need support.

13. On December 24, 1987, Petitioner was permitted to return to work. Mr. Mayo, Mr. Campbell, and Mr. Stacy continued to be concerned about Petitioner's ability to safely perform his job, but they also wanted to accommodate Petitioner because he was a long term employee. To achieve these ends, Arnie Raaum, Mr. Mayo's assistant and one of Petitioner's supervisors, was assigned the primary responsibility of monitoring Petitioner's performance to ensure that safety was not compromised and of providing assistance to Petitioner if necessary. In Mr. Raaum's absence, Louis Boglioli, another supervisor in the maintenance and repair department, was to perform these duties. In the absences of both Mr. Raaum and Mr. Boglioli, Mr. Mayo was to perform these duties. Between the time Mr. Raaum, Mr. Boglioli, and Mr. Mayo were assigned these duties and the termination of Petitioner's employment, Mr. Raaum spent considerable time in both monitoring Petitioner's performance and in correcting errors made by Petitioner. This assignment detracted from the ability of Mr. Raaum to perform his regular duties.

    
    

14. Petitioner's condition and his ability to safely perform his job continued to deteriorate between December 1987 and December 1988. Despite Mr. Raaum's close supervision, many safety related incidents occurred which were the result of Petitioner's job performance. These incidents were documented in Petitioner's employment file, but there was no injury to any person or significant damage to property.

    
    

15. By late 1988, Petitioner's condition had deteriorated to the point where he was unable to perform his job. He was unable to comprehend, remember, or follow instructions.

    
    

16. In December 1988, Mr. Mayo, who had been following Petitioner's job performance, determined with Mr. Campbell and Mr. Stacy that Petitioner could not perform his job. Mr. Mayo had lost confidence in Petitioner's ability as a supervisor and felt that safety was being compromised by Petitioner's continued employment.

    
    

17. Other job possibilities with Respondent were considered, but each possibility was rejected for legitimate business reasons. Petitioner believed that he had had a "nervous breakdown" and that he was capable of working in a position with less stress than his position as supervisor of the maintenance and repair shop. Because of this belief, Petitioner requested that he be transferred to his former position as an assistant truck foreman. This request was refused because of his previous difficulties in performing that job, because he was not capable of performing supervisory work, and because the position was not vacant. There were no supervisory level positions vacant that Petitioner was capable of filling.

    
    

18. Petitioner's employment with Respondent was terminated on December 28, 1988, and he was given two months severance pay. Petitioner's termination was not a disciplinary matter for willful misconduct. Rather, Petitioner's employment with Respondent was terminated because Petitioner was not capable of performing his job duties.

    
    

    CONCLUSIONS OF LAW

    
    

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

20. Petitioner bears the initial burden of establishing a prima facie case of discrimination. If Petitioner meets his 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).

    
    

21. 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:

       (a) To discharge or 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 ... .

       
       

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

    
    

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

    2. That he otherwise meets the qualifications for the position;

    3. That he was discharged from the position; and

    4. That after his discharge, the position was filled by someone outside the protected class.

    
    

23. 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. ...

24. 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 mental condition was shown to have had an impact upon his job performance and impaired his mental faculties, it can be concluded that Petitioner is an individual with a "handicap" within the meaning of the Act.

    
    

25. Petitioner nevertheless failed to establish a prima facie case of discrimination because he failed to establish that he was, despite his handicap, otherwise qualified to perform his job duties. Southeastern Community College v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979).

    
    

26. Even had Petitioner established a prima facie case of discrimination in this proceeding, Petitioner would not prevail because Respondent established legitimate, nondiscriminatory reasons for the termination of Petitioner's employment that rebutted any inference of discrimination established by Petitioner. 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 ORDERED in Tallahassee, Leon County, Florida, this 19th day of October, 1990.

CLAUDE B. ARRINGTON

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 19th day of October, 1990.

APPENDIX TO THE RECOMMENDED ORDER

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 1-3, 5, and 8 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraph 4 are rejected as being subordinate to the findings made.

3. The proposed findings of fact in paragraph 6 are rejected as being contrary to the greater weight of the evidence and to the findings made.

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

5. The proposed findings of fact in paragraphs 8-16 are rejected as being legal conclusions.

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 1-5, 7-10, 13, 15-16, 18-20, and

   25 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraphs 6, 11-12. 17, and 21-24 are adopted in part by the Recommended Order and are rejected in part as being subordinate to the findings made.

3. The proposed findings of fact in paragraph 14 are adopted in part by the Recommended Order and are rejected in part as being subordinate to the findings made.

4. The proposed findings of fact in paragraph 26 are rejected as being recitation of testimony.

5. The proposed findings of fact in paragraphs 27 and 28 are rejected as being unnecessary to the conclusions reached.

COPIES FURNISHED:

Isidro M. Garcia, Esquire Law Office of Joseph A.

Vassallo, P.A.

3501 South Congress Avenue Lake Worth, Florida 33461

Margaret L. Cooper, Esquire Ruth P. Clements, Esquire Jones, Foster, Johnston &

Stubbs, P.A.

505 South Flagler Drive, Suite 1100 Post Office Drawer E

West Palm Beach, Florida 33402

Margaret A. Jones, Clerk Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1570

Dana Baird

Acting Executive Director Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1570

NOTICE Of RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-002975

Orders for Case No: 90-002975