STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

PATRICIA R. FRANKS )

)

)

Petitioner, )

)

vs. ) CASE NO. 91-1084

)

HILLSBOROUGH COUNTY )

HOSPITAL AUTHORITY )

)

Respondent. )

)

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above styled case on June 5, 1991, at Tampa, Florida.

APPEARANCES

For Petitioner: Patricia R. Franks, pro se

11212 Garfield Court

Seffner, Florida 33584

For Respondent: E. John Dinkle III, Esquire

P.O. Box 1427

Tampa, Florida 33601 STATEMENT OF THE ISSUES

Whether Petitioner was discriminated against in employment by reason of her handicap.

PRELIMINARY STATEMENT

By charge of discrimination dated August 28, 1989, Patricia Franks, Petitioner, alleges she was discriminated against in employment by reason of her handicap, polycystic kidney disease, when her employment at Tampa General Hospital was terminated. Tampa General Hospital is operated by Hillsborough County Hospital Authority, Respondent.

At the hearing, Petitioner called two witnesses, including herself; Respondent called three witnesses, and five exhibits were admitted into evidence. Petitioner withdrew Exhibit 7, the late-filed deposition of Diane Hudson, prior to its taking.

Proposed findings submitted by the Respondent are not separated from the conclusions of law and enumerated; however, those proposed findings recognizable as such are generally accepted.

FINDINGS OF FACT

Based upon the evidence presented, I submit the following:

1. Patricia R. Franks was employed at Tampa General Hospital on November 14, 1988 and discharged August 7, 1989 for the stated reason of "continued rendering of unsatisfactory service after instruction and counselling for neglect of duty or failure to perform assigned duties." (Exhibit 2)

   
   

2. Petitioner was admitted to Tampa General Hospital as an inpatient on July 20, 1989 with polycystic kidney disease (Exhibit 3) and discharged July 28, 1990 with instructions she would be able to return to work August 8, 1989. (Exhibit 3)

   
   

3. During the period between December 27, 1988 and August 7, 1989, Petitioner had the following absences:

   
   

   1. December 27, 1988 - called in sick

      
      

   2. December 29, 1988 - called in sick

      
      

   3. March 29, 1989 - called in sick

      
      

   4. April 27, 1989 - May 2, 1989 - called in sick

      
      

   5. May 28, 1989 - called in sick

      
      

   6. June 24, 1989 - July 5, 1989 - called in sick

      
      

   7. July 20, 1989 - August 7, 1989 - sick.

   
   

4. Following the absence in April 1989, Petitioner was given a verbal warning regarding the hospital policy that over four absences or tardiness within a twelve months period was considered excessive and subjected the employee to disciplinary action.

   
   

5. Following the May 28, 1989 absence, Petitioner was given a written warning. Another written warning was given Petitioner following the absence ending July 5, 1989.

   
   

6. In her six months evaluation given 5/01/89, Petitioner received only one unsatisfactory mark but received only 49 points out of a maximum of 136 for an average of 1.167 points out of a maximum average of 3. Under this scoring unsatisfactory performance received 0 points, effective received 1 point, frequently exceeds received 2 points, and consistently exceeds received 3 points. (Exhibit 4)

   
   

7. In June 1989, Petitioner was counseled concerning inconsistences in ordering supplies, reports were received from floor nurses concerning Petitioner's excessive length of "breaks", and on one occasion Petitioner was seen smoking on the balcony, in a non-smoking area. Petitioner testified she was unaware this was a non-smoking area and did not repeat this infraction.

8. During the period Petitioner was hospitalized in late July, she requested permission to work between the time she needed to be in her room for treatment. This request was denied. Petitioner offered the testimony of a former employee of the hospital who was allowed to work in the lab between the time she needed to be in her room for her insulin tests. No employee who was in an infectious state, such as was Petitioner while an inpatient, had ever been permitted to work on the wards at Tampa General Hospital.

   
   

9. In her Petition alleging discrimination Petitioner acknowledges that she missed six weeks of work in a three months period.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

11. Section 760.10(1)(a), Florida Statutes, provides it is an unlawful employment practice to discriminate against any individual with respect of employment because of such individual's handicap. Chapter 760 is patterned after Title VII of the Civil Rights Act of 1964, 42 U.S.C. ss. 2000e(2). School Board of Leon County v. Weaver, 556 So.2d 443 (Fla. 1st DCA 1990). As such, federal precedents construing similar provisions in Title VII should be accorded great deference. Pasco County School Board v. PERC, 353 So.2d 108, 116 (Fla. 1st DCA 1979); Wood v. K-mart Corp, 10 F.A.L.R. 6189 (FCHR 1985).

    
    

12. Handicapped individuals are covered under federal law by 29 U.S.C. s. 701 at seq. 29 U.S.C. 706(8) provides in pertinent part:

    
    

    1. Except as otherwise provided in subparagraph (B), the term "indi-vidual with handicaps" means an individual who (i) has a physical or mental disability which for such individual constitutes or results in a substantial handicap to employment and (ii) can reasonably be expected to benefit in terms of employability from vocational rehabilitation services provided pursuant to titles I and III of this Act.

    2. Subject to the second sentence of this paragraph, the term "individual with handicaps" means, for purposes of Title IV and V of this Act [29 U.S.C. ss. 780 et seq.], any person who (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities,

       1. has a record of such impairment, or

       2. is regarded as having such an impairment.

       
       

13. While employed at Tampa General Hospital Petitioner never claimed she was "an individual with handicaps," and she was aware of the hospital's policy regarding absences. Further, no credible evidence was presented that Petitioner's kidney disease constituted a handicap as defined in 29 U.S.C. 706.

    
    

14. A person who had a knee injury which required surgery was not an individual with a handicap within the meaning of 29 U.S.C. 794, where, although an injury might have limited the person's life activities during his

    recuperation, the person did not allege that it continued to do so, nor did he contend that others regarded him as having an impairment that continued to do so. Evans v. Dallas, 861 F.2d 846 (CA 5 Tex. 1988).

    
    

15. However, even if Petitioner's kidney disease constitutes a handicap, it is necessary for Petitioner to show that she is otherwise qualified for the job. Otherwise qualified does not mean the handicapped individual must be hired despite the handicap, since statute prohibits nonhiring of handicapped individuals only when the disability does not prevent that individual from performing job. Carmi v. Metropolitan St. Louis Sewer Dist., 47 F. Supp. 119 (E.D. Mo. 1979). Aff'd 620 F.2d 692, cert. den. 101 S.Ct. 249.

    
    

16. Petitioner was here terminated from employment by reason of excess absenteeism as well as substandard performance. Petitioner's excess absenteeism was fully documented and clearly exceeded the allowable absences deemed acceptable by the hospital in a 12 months period. Further, Petitioners performance evaluation was, at best, marginal if not unacceptable.

    
    

17. In case of alleged discrimination an employer may raise the affirmative defense of "bona fide occupational qualification" (BFOQ). Here there is no question that Petitioner was unable to work because of her illness. It is axiomatic that before one can claim discrimination she must show that she is capable of performing the job assigned. By missing six weeks work in a three month period Petitioner has shown she was not capable of performing the job assigned.

    
    

18. From the foregoing, it is concluded that Petitioner is not an individual with a handicap as that term as defined in 29 U.S.C. 706, and, even if she is so handicapped, she has presented no evidence that she is capable of performing the assigned duties despite her handicap.

RECOMMENDATION

It is recommended that the charge of discrimination by reason of handicap filed by Patricia R. Franks against Hillsborough County Hospital Authority, be dismissed.

ENTERED this 3rd day of July, 1991, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July, 1991.

COPIES FURNISHED:

Patricia R. Franks 11212 Garfield Court

Seffner, Florida 33584

E. John Dinkle III, Esquire

P.O. Box 1427

Tampa, Florida 33601

Dana Baird General Counsel

Commission on Human Relations

325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570

Margaret Jones Agency Clerk

Commission on Human Relations

325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the 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 consult with the agency that will issue the final order in this case concerning their 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.

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AGENCY FINAL ORDER

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STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

PATRICIA R. FRANKS,

Petitioner, EEOC Case No. n/a FCHR Case No. 89-8694

vs. DOAH Case No. 91-1084

FCHR Order No. 92-025

HILLSBOROUGH COUNTY HOSPITAL AUTHORITY,

Respondent.

/

FINAL ORDER DISMISSING PETITION FOR RELIEF FROM AN UNLAWFUL

EMPLOYMENT PRACTICE

Petitioner Patricia R. Franks filed a complaint of discrimination with the Commission pursuant to the Human Rights Act of 1977, as amended. Sections 760.01-760.10, Fla. Stat. (1991). Petitioner alleged Respondent Hillsborough County Hospital Authority unlawfully discriminated against her on the basis of handicap (polycystic kidney disease).

The allegations of discrimination set forth in the complaint were investigated. On December 31, 1990, the Executive Director found no reasonable cause to believe an unlawful employment practice occurred.

Thereafter, Petitioner filed a Petition for Relief from an Unlawful Employment Practice, requesting that a formal proceeding be conducted on the claim. The petition was referred to the Division of Administrative Hearings (DOAH). Fla. Admin. Code Rule 22T-8.0l6(1). On July 3, 1991, DOAH Hearing Officer K. N. Ayers entered a Recommended Order of dismissal. Public deliberations were held on November 8, 1991, in Tampa, Florida before this panel of commissioners.

Findings of Fact

We have considered the hearing officer's Findings of Fact and are mindful of the record in this cause. As the hearing officer's findings are supported by competent substantial evidence, they are hereby adopted. Section 120.57(1)(b)10), Fla. Stat. (1991).

Conclusions of Law

We agree with the hearing officer's analysis of the legal issues and conclusions based upon the factual findings, except in the following regard. On pages 4-5, paragraph 1 of the Conclusions of Law, the hearing officer states that federal law should be accorded great deference, specifically with respect to the definition of handicap as found in the Rehabilitation Act of 1973. The panel modifies the conclusions of law section to reflect the definition of handicap as found in Fenesy v. GTE Data Service, Inc. 3 FALR 1764-A (FCHR August 11, 1981): "Generally `handicap' connotes a condition that prevents normal functioning in some way. A person with a handicap does not enjoy, in some manner, the full and normal use of his sensory, mental or physical faculties." Accordingly, we adopt the hearing officer's conclusions of law with the aforementioned modification.

Dismissal

The Petition for Relief from an Unlawful Employment Practice and the complaint of discrimination are DISMISSED with prejudice.

Petitioner has the right to seek judicial review of this Order. The Commission and the appropriate district court of appeal must receive a notice of appeal within 30 days of the date this Order is filed with the clerk of the Commission. Explanation of the right to appeal is found in Section 120.68, Florida Statutes, and in Florida Rules of Appellate Procedure 9.110.

DONE AND ORDERED this 8 day of June 1992. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Geraldine F. Thompson, Panel Chairperson;

Commissioner Bob Joyce; and Commissioner Ronald P. Townsend.

FILED this 10 day of June 1992 in Tallahassee, Florida.

Margaret A. Jones

Clerk of the Commission

Copies Furnished:

Patricia R. Franks, Petitioner

E. John Dinkle, III, Attorney for Respondent

K. N. Ayers, DOAH Hearing Officer

Dana Baird, Legal Advisor for Commission Panel

Docket for Case No: 91-001084

Orders for Case No: 91-001084