STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDWARD G. LINDSEY, )

)

Petitioner, )

)

vs. ) CASE NO. 91-1585

)

WHITE ELECTRIC & BATTERY )

SERVICE, INC., d/b/a WHITE )

AUTO PARTS, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on September 11, 1991, in Gainesville, Florida, before Ella Jane P. Davis, a duly assigned hearing officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Rodney W. Smith, Esquire

Post Office Box 628 Alachua, Florida 32615

For Respondent: William C. Andrews, Esquire

1 S.E. First Avenue Post Office Drawer C

Gainesville, Florida 32602 STATEMENT OF THE ISSUE

Has Respondent been guilty of an unlawful employment practice as defined in Sections 760.01-760.10, F.S., i.e., discrimination by termination of Petitioner from employment on the basis of age and/or handicap.

PRELIMINARY STATEMENT

Petitioner presented the oral testimony of Petitioner Edward G. Lindsey, Jean Lindsey, Sherry Deist, Joe Nave, and Howard D. Newsome. Respondent White Auto Parts presented the oral testimony of Gilbert Arnold Reed, William Thomas Hawkins, and Alan Davis and had one exhibit admitted in evidence.

A transcript has been filed and all timely filed proposed findings of fact have been ruled on in the Appendix to this Recommended Order, pursuant to Section 120.59(2), F.S.

FINDINGS OF FACT

1. Petitioner Edward Lindsey was continuously employed by Respondent White Auto Parts between 1952 and 1989 (37 years). He was 64 years old at the time of his separation from White Auto Parts.

   
   

2. White Auto Parts is a family-owned corporation for wholesale and retail auto parts sales. At all times material, it had eight stores and a warehouse operation in and around Gainesville, Florida. Retail sales are made over the respective store counters, and outside salesmen and inside salesmen handle wholesale sales. Inside salesmen stay at a desk in a specific assigned store and conduct most of their sales by telephone.

   
   

3. William Thomas Hawkins, M.D., is Chairman of the Board and President of White Auto Parts. Dr. Hawkins is involved in the policy decisions affecting the management of the corporation, but is not generally involved in day-to-day business operations, including personnel matters. However, during substantially the whole of his leadership, Dr. Hawkins has urged day-to-day management personnel to hire college educated persons and/or enthusiastic and aggressive people. Usually, in connection with these urgings, Dr. Hawkins has referred to these recruits as "young," "college-educated," "new blood," or the equivalent.

   
   

4. Despite occasional comments on individual employees being "old" or "slow," there is no evidence of a concerted effort by Dr. Hawkins to terminate or force early retirement on all employees 55, 60, or 65, or any other age for any reason, including replacement by younger, aggressive personnel.

   
   

5. Petitioner Lindsey was initially employed in the shipping department, then worked at the counter. For the last 25 years he was employed as an outside sales person, a position he truly enjoyed.

   
   

6. Petitioner's duties as an outside sales person included calls on independent accounts (garages, car dealers, and persons in the automotive business) to make presentations of stock, as well as to handle refunds and credits on defective returns and cores. He was also expected to develop new accounts. Outside salesmanship involved local travel by company car, getting in and out of the car many times a day, lifting heavy parts, and significant paperwork. By all accounts, it was significantly strenuous, physically.

   
   

7. In the early years of his employment as an outside sales person, Petitioner was compensated on a commission basis, but that was gradually changed after Joe Nave became general manager of the company.

   
   

8. At all times material, Joe Nave was general manager of White Auto Parts, with responsibility for managing day-to-day operations and for hiring and firing personnel.

   
   

9. Seven years before Petitioner's separation, Mr. Nave intended to replace Petitioner with a younger, more aggressive person because of Dr. Hawkins' directions to seek such people out and because he was dissatisfied with Petitioner's sales performance. However, Petitioner improved his performance on the road and complied with Mr. Nave's sales policy, and thereafter Mr. Nave had no further cause to speak on the subject to Petitioner again. The situation at that time had been either based on personality problems between the two men or upon Petitioner's work performance, but not upon Petitioner's age per se, and the problem was cleared up at that time.

10. Approximately one year before his separation, Petitioner was called in and by agreement was put on a straight salary of $370.00 per week. Later, Mr. Nave sought to reduce that amount, but Petitioner refused to accept the reduction. Nothing more was said thereafter about this request of Mr. Nave, and there is no evidence in the record to explain why the request was ever made.

    
    

11. On the whole, Petitioner and Joe Nave had a less than cordial business relationship over the whole of their association. Mr. Nave was, by all accounts, a "hyper" or choleric personality with an aggressive, if not downright belligerent, managerial style. Very simply, Mr. Nave wanted to know where all his employees were all the time, and he yelled and "cussed" a lot over every little thing. Petitioner found his superior's use of swear words particularly unappealing and inferred that the cussing was directed at him, even if Mr. Nave actually intended it toward other persons or inanimate objects.

    
    

12. On September 6, 1989, Petitioner had surgery for prostate cancer. He was hospitalized for approximately ten days.

    
    

13. Petitioner received a call from Mr. Nave after he got out of the hospital. At that time, Mr. Nave told Petitioner that his vacation and sick leave had been used up and his paychecks would stop, according to company policy.

    
    

14. Petitioner knew that company policy was exactly what Mr. Nave had represented, but he anticipated trouble which was never threatened. Petitioner thought:

    
    

    So then I got to thinking, once before

    Mr. Nave had asked me, when I was sick prior years back from that, now, this was a different time . . . and he wanted to know if the doctor released me, and I said, "No sir. He will not release me for another week." And he went out of the office saying, well, he's going to get him another guy to replace me then, which it didn't take place, of course.

    So then I got to thinking about this thing.

    He called me, reminding me about my vacation time, and I guess at that time I was thinking, well, maybe he's going to pull one and replace me, so -- (TR-16)

    
    

15. Petitioner returned to work on Monday in the second week of October 1989. At the time, he was still wearing a catheter and two drain tubes in each side.

    
    

16. Despite Petitioner's suspicions and despite Mr. Nave's phone call, the Respondent employer kept Petitioner on at full salary until he came back to work.

    
    

17. After being at work one week, Petitioner felt he had "over done it." On the following Monday, he told Joe Nave that he was going to try to work a few more days, but then might need some more time to recuperate.

    
    

18. The following Thursday, Petitioner attempted to speak with Mr. Nave regarding feeling too ill to continue any further that day, but was unable to do so because when Petitioner finished his paperwork, Mr. Nave had already left.

    Petitioner left the keys to the company car on Mr. Nave's desk and told Arnold Reed, the purchasing agent, that he was going to have to go home. Mr. Reed noticed that Petitioner was not looking well and offered to take him home, but Petitioner called his wife, who came and got him.

    
    

19. On Friday, Petitioner did not report for work or call in to Respondent. That day, he traveled to South Carolina with his son-in-law.

    
    

20. Petitioner did not return to work the next Monday. That day, Arnold Reed told Joe Nave that Petitioner had had to go home Thursday. After Mr. Nave expressed his shock that Petitioner had not talked to him personally, Mr. Reed explained to Mr. Nave that it was obvious that Petitioner had been ill.

    
    

21. Respondent presented no proof that it had a published personnel policy requiring Petitioner to remain on the premises, despite the circumstances, until he could be excused by Mr. Nave personally.

    
    

22. That same Monday, Joe Nave called Petitioner's home and left word for Petitioner to return his call.

    
    

23. Several days later, Petitioner's wife, Jean Lindsey, contacted Joe Nave to explain Petitioner's reasons for his absence. The tone and content of their conversation are disputed. Among other matters, Mrs. Lindsey testified that Mr. Nave informed her that Petitioner no longer had a job at White Auto Parts and was verbally abusive about Petitioner's absence and trip to South Carolina. Mr. Nave testified that he did not terminate Petitioner but only reiterated that Mrs. Lindsey should have Petitioner see Mr. Nave as soon as he returned home.

    
    

24. Despite the foregoing contradictions, the two witnesses concur that Mr. Nave did, in fact, also tell Mrs. Lindsey that he had already given the company car and the accounts assigned to Petitioner to someone else. It was from this comment, made in the "heat of battle" as it were, that Mrs. Lindsey reasonably inferred that Mr. Nave had hired a replacement for, or had transferred another employee into, Petitioner's outside salesman position. 1/ However, somewhat contradictorily, Mrs. Lindsey also testified that although Mr. Nave had stated that Petitioner could come in and work on a part-time basis, she still concluded that Petitioner had been fired outright. Visibly upset, she exited the store where she had spoken on the telephone with Mr. Nave and told Howard Newsome, a long time employee, that Mr. Nave had fired Petitioner.

    
    

25. As a result of her contact with Mr. Nave, Mrs. Lindsey called Dr. Hawkins, president of the corporation, to discuss Petitioner's job. She advised Dr. Hawkins during their telephone conversation that Petitioner was very ill, that he had not done well post-surgery, that he needed time off, that he had left the previous week to go to South Carolina to rest and recuperate, that previously he had come back to work with a catheter and two drains in him, and that he just was not up to coming back to work. She also told him Petitioner had been discharged for not coming to work. At that point, Dr. Hawkins directed Mrs. Lindsey to have Petitioner contact him upon his return so that a meeting could be set up to hear both sides and work out the situation.

    
    

26. Upon returning from South Carolina on Saturday, Petitioner was informed by his wife that he had been fired from his job at White Auto Parts by Joe Nave, but she also told him about Dr. Hawkins' message. Petitioner phoned Dr. Hawkins as requested who offered to "iron things out."

27. Dr. Hawkins set up a meeting among himself, Joe Nave, Petitioner Lindsey, and Mrs. Lindsey.

    
    

28. At the meeting, Dr. Hawkins assumed Petitioner was still wearing the drain and catheter Mrs. Lindsey had described to him. He did not inquire about them and so he did not know they had been removed sometime before the meeting, which took place on October 31, 1989.

    
    

29. The only persons present for the entire meeting were Petitioner, his wife, and Dr. Hawkins. Also present at the beginning of the meeting was Joe Nave, and at the very end of the meeting, Sherry Deist.

    
    

30. At the beginning of the meeting, Dr. Hawkins had Petitioner's sales reports in front of him because he and Joe Nave had just gone over Petitioner's entire record and agreed on what they could offer Petitioner to resolve the situation.

    
    

31. Dr. Hawkins perceived the situation to be that Petitioner was a long- time employee, not yet released from post-surgery medical care, who had come back to full-time employment too soon to be able to do the strenuous work of full-time outside salesman and who was afraid of losing his job because he had not and could not report in to do it. Petitioner and Mrs. Lindsey perceived the problem as Petitioner already having been unjustly terminated from his outside salesman job and that reinstatement to that position was the only result that would satisfy them.

    
    

32. Because the sales reports were in front of Dr. Hawkins at the beginning of their meeting, Petitioner became defensive, since, by his perception, for years he had never been told that his work was unsatisfactory or inadequate nor had he received any documentation to that effect. 2/ Despite obvious biases, Petitioner's description of this part of the meeting is the most credible of the several conflicting versions, and it is found that Dr. Hawkins did make comments about sales being down, about Petitioner slowing down, about Petitioner being unable to continue in outside sales work, and about Petitioner being "burned out" physically. Nonetheless, Dr. Hawkins offered Petitioner the opportunity to return to work at the less strenuous position of inside salesman. 3/

    
    

33. There is conflict in the testimony as to whether or not Dr. Hawkins ever clearly stated that Petitioner had never been terminated, but it is most probable from the circumstances that this was never specifically stated. There is also conflict in the testimony as to whether or not Dr. Hawkins ever clearly stated that he would pay Petitioner half pay until he could return to work, would pay Petitioner part-time wages for part-time work as an inside salesman until he could work full-time, and would pay Petitioner full-time pay as an inside salesman indefinitely. The evidence is also unclear as to whether or not the inside salesman Petitioner would replace was making $370.00 per week or slightly less. Consequently, it is possible and even reasonable that Petitioner could have inferred from Dr. Hawkins' offer that even as a full-time inside salesman, Petitioner would not make exactly the same pay rate as he had been making as a full-time outside salesman.

    
    

34. However, it is clear and undisputed that even if Dr. Hawkins was noncommittal in response to Petitioner's pleas to keep his outside job, Dr. Hawkins did offer Petitioner a less strenuous but substantially comparable inside job, which Petitioner rejected. Petitioner concedes that neither Mr. Nave nor Dr. Hawkins ever stated that he had been or was being terminated.

35. Petitioner's primary reason for rejecting the inside salesman's job was that the desk he would work from as an inside salesman was located in the same office with Joe Nave's desk. Petitioner, his wife, and Joe Nave all agree that Petitioner rejected the inside job regardless of any beliefs Petitioner held about what salary was involved and regardless of whether it was a part-time or full-time job, purely because the inside salesman job offer was not a return to his same outside sales job and because he refused to share an office with Joe Nave, the superior he believed had fired him.

    
    

36. At that point, Petitioner's refusal of the inside sales job, Petitioner's wife's insistence that Joe Nave had already fired Petitioner, and Joe Nave's response became so loud, adamant, and vitriolic that Dr. Hawkins tried to calm the situation down by asking Joe Nave to leave the meeting and the room.

    
    

37. After Joe Nave left, the meeting among Petitioner, his wife, and Dr. Hawkins continued in only a slightly calmer atmosphere. Petitioner never specifically told Dr. Hawkins he was able to return to his outside sales job that day. According to Petitioner's testimony at formal hearing, at the time of the meeting on October 31, 1989, he felt that he could have resumed his duties, but that he could not have daily serviced his usual number of accounts. At the meeting, Dr. Hawkins remained under the mistaken impression that Petitioner was still wearing the drains and catheter. Therefore, Dr. Hawkins still would not make any statement binding the Respondent corporation to return Petitioner to his outside salesman job. Dr. Hawkins asked Petitioner whether he had been released by his treating physician. Petitioner told Dr. Hawkins that he still needed to see his doctor on November 10. 4/ Dr. Hawkins told Petitioner they would meet after November 10 to "iron out" the situation. Dr. Hawkins called in the corporate comptroller, Sherry Deist, and instructed her to pay Petitioner half pay until November 10.

    
    

38. There is no evidence that Respondent had any policy or employee plan that would have provided Petitioner with any pay at all after his vacation and sick leave was used up. Even though Petitioner's vacation and sick leave had run out, Respondent had actually paid Petitioner full pay until he returned to work. 5/ Respondent also paid Petitioner full pay while he tried to work for approximately 10 days before he was "done in" and went home to recuperate. Respondent continued to pay Petitioner full pay while he was in South Carolina and for the few interim days up until the October 31 meeting. From October 31 until November 10, 1989, Respondent paid Petitioner half salary.

    
    

39. Dr. Hawkins anticipated hearing from Petitioner on or about November 10, 1989 as to whether or not he had been released by his doctor. Dr. Hawkins had planned to set up a new meeting to work out Petitioner's job status at that time, but Petitioner never called Dr. Hawkins to set up such a meeting. At Dr. Hawkins' request, Sherry Deist called Petitioner on or about November 10, 1989 to ask if he had called Dr. Hawkins. Petitioner told her that he had not called Dr. Hawkins and that it was Dr. Hawkins' duty to set up a new meeting. Ms. Deist offered Petitioner Dr. Hawkins' phone number, but Petitioner said he had it. Sherry Deist relayed this information to Dr. Hawkins.

    
    

40. It is Respondent's policy that unless an employee personally asks to have a check mailed, he must pick it up personally. At Ms. Deist's request, Petitioner came in to see her to pick up his check covering the November 10 date.

41. Dr. Hawkins could have initiated a phone call or set up another job status meeting at that point, but he deliberately did not. Based upon gossip that Petitioner had never been released by his doctor, was seeking employment elsewhere, and/or was hiring a lawyer to fight his termination, none of which conflicting hearsay statements were ever established to be true, Dr. Hawkins did not initiate any further direct contact between himself and Petitioner and told Sherry Deist to keep good notes whenever she talked to him.

    
    

42. Up to this point, Respondent had treated Petitioner in every way as if he were still employed. Dr. Hawkins' open-ended offer of another meeting to "iron out" the situation made it unreasonable of Petitioner to continue to insist that he had been terminated by Joe Nave and refuse to contact Dr. Hawkins. Also, it was reasonable, on the basis of his past experience in the Respondent's employ, for Petitioner to know, regardless of the confusion, that the burden was on him to make clear to his employer, probably through a written medical release, that he was medically able to resume his duties. 6/

    
    

43. Sherry Deist then phoned Petitioner, pursuant to COBRA, to inquire whether Petitioner wished to continue his group medical insurance. When he replied affirmatively, she told Petitioner he could mail Respondent a check. No evidence was presented to show that COBRA requires offering this insurance option only if Petitioner were terminated or if the employer would also have had to offer it upon Petitioner's retirement.

    
    

44. Later, Ms. Deist called Petitioner and asked him to fill out his retirement papers. Although Petitioner told Ms. Deist that he had not retired, but had been terminated, he also requested her to fill out the retirement papers for him. He signed them in January 1990.

    
    

45. Prior to his surgery, Petitioner was 64 years old, and the other outside salesman, Ed Girton, was 58. Mr. Girton left Respondent's employ for another job in August 1989, a month before Petitioner's surgery. Shortly prior to the time Petitioner had surgery, Respondent offered an outside sales job to Mike Monaghman, age 35. Mr. Monaghman did not accept the offer. There is no clear evidence which outside sales position was being offered to Mr. Monaghman, but it is most probable that it was the one previously held by Mr. Girton. Eventually, Rick Thames, age 36-37 took that position. Rick Thames was not hired from outside but previously had been a counter man for Respondent. He lasted only eight months on the outside and requested to return to counter work.

    
    

46. Petitioner's position was not covered by anyone for the first two weeks he was out sick. From approximately the time of Joe Nave's acrimonious phone conversation with Mrs. Lindsey, wherein he told her he had given Petitioner's accounts and car to someone else, until May 1990, Petitioner's accounts were covered by Burt Oliver, 66 years old, who already worked for Respondent in parts management only three days a week to supplement his Social Security retirement income. When Mr. Oliver could no longer cover the accounts in three days, he returned to inside employment in parts work and his outside accounts were given to a younger man, Mark Roberts, who was 32 years old. Mark Roberts was hired from outside, but the record is unclear as to precisely when.

    
    

47. Since 1989, both outside sales positions have been filled by a succession of people at various times and the territories were reorganized at approximately the time Burt Oliver returned to inside employment. Eventually, the persons placed in outside sales were Mark Roberts, 32, Phil Snyder, a man in his 50's, and Wayne Butler, age 40.

48. Respondent's car formerly used by Petitioner in outside sales was used by Burt Oliver and by just about every other White Auto Parts employee on a haphazard basis until it was sent for repair.

    
    

49. The Respondent currently employs at least 20 people over the age of

1. The Respondent currently employs, and consistently has employed, many employees over the age of 60, but most of these work/worked only part-time to supplement their Social Security retirement income. There are currently two full-time employees over sixty. One is approximately 70 years old and was hired after Joe Nave left the Respondent for other employment.

   
   

   1. Petitioner has remained under a physician's care on a three-months- return-visit basis.

      
      

      CONCLUSIONS OF LAW

      
      

   2. The Division of Administrative Hearings has jurisdiction of the parties and the subject matter of this cause. See Section 120.57(1), F.S.

      
      

   3. The shifting burdens of proof in discrimination cases have most recently been examined in Department of Corrections v. Chandler, Case No. 90-648 (Fla. 1st DCA), opinion on rehearing dated July 10, 1991. They are:

      
      

      Pursuant to the [Texas Department of Community Affairs v.] Burdine, [450 U.S. 248, 101 S. Ct.

      1089, 67 L. Ed. 2d 207 (1981)] formula, the employee has the initial burden of establish- ing a prima facie case of intentional discri- mination, which once established raises a presumption that the employer discriminated against the employee. If the presumption arises, the burden shifts to the employer to present sufficient evidence to raise a genuine issue of fact as to whether the employer discriminated against the employee. The employer may do this by stating a legitimate, nondiscriminatory reason for the employment decision, a reason which is clear, reasonably specific, and worthy of credence. Because the employer has the burden of production, not of persuasion, which remains with the employee, it is not required to persuade the trier of fact that its decision was actually motivated by the reason given. If the employer satisfies its burden, the employee must then persuade the fact finder that the proffered reason for the employment decision was a pretext for intentional discrimination. The employee may satisfy this burden by showing directly that a discriminatory reason more likely than not motivated the decision, or indirectly by showing that the proffered reason for the employment decision is not worthy of belief. If such proof is

      adequately presented, the employee satisfies

      his or her ultimate burden of demonstrating by a preponderance of the evidence that he or she has been a victim of intentional discrimina- tion.

      
      

   4. The original petition herein alleged discrimination by unlawful termination for age and/or handicap. No significant argument was made by either party with regard to handicap. However, both issues are addressed within these conclusions of law.

      
      

   5. In an age discrimination case, Petitioner must meet a four-pronged test merely to establish a prima facie case. To make out a prima facie case of age discrimination, Petitioner must initially establish:

      
      

      1. That he is a member of a protected group.

         
         

      2. That he was disadvantaged by an adverse action of the employer, in this case, termination.

         
         

      3. That he was qualified for the position affected.

         
         

      4. That the employer kept the position open and replaced him with, or continued to seek applications from, younger persons.

         
         

         See, Stanfield v. Answering Service, 50 FEP 1151 (11th Cir. 1989); Kreig v. Paul Revere Life Insurance Co., 718 Fed. 2d 998 (11th Cir. 1983); Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981); Cova v. Coca Cola Bottling Co., 574 Fed. 2d 958 (8th Cir. 1978).

         
         

   6. For purposes of proving a prima facie case of discrimination on the basis of handicap, Petitioner must minimally affirmatively show that he has a physical impairment which substantially limits one or more of his major life activities, that the employer knew of the handicap, and that the employer failed to find a job function consistent with those physical limitations. See, Section 760.22(7)(a) F.S.

      
      

   7. Petitioner, at 64, was within the protected age class, and he was clearly qualified by education, training, and experience for the outside sales position he wanted.

      
      

   8. Petitioner was not terminated by Joe Nave due to his age; he was not terminated by Dr. Hawkins due to his age. When his vacation and sick leave were used up, Petitioner was kept on at full pay for the entire interim during which, admittedly, he maintained contact with Respondent but was unable to work or only able to work with reduced efficiency. The entire thrust of the October 31, 1989 meeting was to find something less strenuous that he could do other than his outside job. On that occasion, Petitioner did not clearly demonstrate that he was fully physically able to return to his outside job, and therefore the Respondent was entitled to operate as if he were not fully physically qualified for the outside job even while it acknowledged that he was fully qualified for it by education, training and experience.

      
      

   9. Dr. Hawkins' job offer of a inside sales position requiring substantially similar job skills constituted the offer of a substantially

      comparable job shift which the employer would have been entitled to make, even if the Petitioner had demonstrated that he possessed the physical ability to do the outside job, provided the pay and working conditions were comparable and not designed to effect a constructive discharge. All other things being equal, no employee has an unqualified right to a specific position within a private corporation. In this instance, the Respondent intended the inside job to be comparable as to salary but did not effectively convey that information to Petitioner due to the acrimonious tone of the October 31 meeting, but since the offer of another meeting was held open, the question of pay also remained also negotiable. Just the proximity of the inside sales desk to Mr. Nave's desk without something new on Mr. Nave's part would not be sufficient to render this constructive discharge. Petitioner had an obligation to try the position to see if he and Mr. Nave could work together after the alleged "firing" situation had been "ironed out" or at least to negotiate further. Respondent left negotiations open until Petitioner declined to negotiate further on November 10.

      
      

   10. Assuming, but not ruling, that Respondent's failure to set up further meetings and its inquiry re COBRA constituted termination, the termination was for Petitioner's failure to produce a release by his doctor or otherwise clearly demonstrate his ability to return to work, not a termination for advanced age. Moreover, the undersigned is not persuaded that a younger person was finally hired for Petitioner's position or, alternatively, that Respondent reorganized its sales territories to "camouflage" the hiring of a younger person, or even that Petitioner's old outside sales position remains open for recruitment today. Respondent temporarily filled Petitioner's position with someone approximately his age and eventually reorganized the territory with younger personnel. This falls short of meeting either of the necessary tests. Accordingly, Petitioner has not established a prima facie violation of the Human Rights Act of 1977 by termination on the basis of age discrimination.

       
       

   11. Assuming arguendo, but not ruling, that Petitioner's cancer meets the definition of "handicap" for purposes of the Act, once Petitioner claimed a handicap at the October 31, 1989 meeting, Respondent's only duty was to make reasonable accommodations for his handicap. This was done through the inside job offer, which Petitioner absolutely refused. Respondent remained ready to set up another meeting to negotiate, but Petitioner would neither provide a release indicating no impairment/handicap so he could return full-time to his outside job nor would he agree to the available inside employment on any terms. Accordingly, Petitioner has not established a prima facie violation of the Human Rights Act of 1977 on the basis of handicap discrimination. See, Coyle v. Lindsay Newspapers, Inc., 7 FALR 5108 (FCHR 1985); Southeastern Community College v. Davis, 442 U.S. 397, 99 S. Ct. 2361, 60 L. Ed. 980 (1979).

       
       

   12. Despite Petitioner's failure to prove his prima facie case of age or handicap discrimination, the proof demonstrated that a legitimate, nondiscriminatory reason for Respondent's action existed.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law it is recommended that the Florida Commission on Human Relations enter a Final Order dismissing the Petition and denying the prayed-for relief.

RECOMMENDED this 25th day of November, 1991 in Tallahassee, Leon County, Florida.

ELLA JANE P. DAVIS

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 25th day of November, 1991.

4/ There may have been some further misunderstanding on this issue. At formal hearing, it was clear from the candor, demeanor, and language style of both Petitioner and his wife that they understood the word "release" to encompass never having to see a doctor again or only having a standard or periodic checkup appointment left, while Dr. Hawkins' use of the word "release" encompassed an agreement (probably in writing) by Petitioner's treating physician stating that Petitioner could return to full-time employment, in short, that post-surgical recovery was complete. Also, Petitioner at times thought Dr. Hawkins' only inquiry was when Petitioner's next doctor's appointment would be, not whether Petitioner had a release yet.

5/ See Finding of Fact No. 16, supra. 6/ See Finding of Fact No. 14 supra.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-1585

The parties' respective proposed findings of fact (PFOF) have been ruled on pursuant to Section 120.59(2) F.S., as follows:

Petitioner's 71 Proposed Findings of Fact:

1-7, 9-19, 26-46, 51, 55, 57-58, 60-61, 63-66: Accepted.

8, 24-25, 47, 49-50, 52, 54, 56, 59, 62, 67: Accepted in part and rejected in part as not supported by the greater weight of the credible evidence as a whole. [PFOF 47 and 52 are also rejected as legal conclusions.]

20-23, 48, 53, 68-71: Subordinate, unnecessary, or cumulative to the facts as found.

Respondent's 46 Proposed Findings of Fact:

1-4, 6-13, 15-28, 30, 33-34, 36-40, 42-46: Accepted.

31-32, 35, 41: Accepted in part and rejected in part as not supported by the greater weight of the credible evidence as a whole.

5, 14, 29: Subordinate, unnecessary, or cumulative to the facts as found.

COPIES FURNISHED:

Rodney W. Smith, Esquire Post Office Box 628 Alachua, FL 32615

William C. Andrews, Esquire

1 S.E. First Avenue Post Office Drawer C Gainesville, FL 32602

Dana Baird, General Counsel Florida Commission on

Human Relations Building F, Suite 240

325 John Knox Road Tallahassee, FL 32399-1570

Ronald M. McElrath Executive Director Florida Commission on

Human Relations Building F, Suite 240

325 John Knox Road Tallahassee, FL 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 consult with 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: 91-001585

Orders for Case No: 91-001585