STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JEFF BRONSDON, )
)
Petitioner, )
)
vs. ) CASE NO. 92-3758
)
CITY OF NAPLES, )
)
Respondent. )
) JEFF BRONSDON, )
)
Petitioner, )
)
vs. ) CASE NO. 92-3759
)
DEPARTMENT OF INSURANCE, ) DIVISION OF STATE FIRE MARSHAL, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on January 13, 1993, in Naples, Florida.
APPEARANCES
For Petitioner Jeff Bronsdon:
Thomas Franchino, Esquire LEHMAN, FRANCHINO & RAWSON, P.A.
700 11th Street South, Suite 203
Naples, Florida 33940 For Respondent City of Naples:
Peter J. Hurtgen, Esquire Wayne D. Rutman, Esquire MORGAN, LEWIS & BOCKIUS
5300 Southeast Financial Center
200 South Biscayne Boulevard Miami, Florida 33131
For Respondent Office of State Fire Marshal:
Lisa S. Santucci, Esquire Division of Legal Services
412 Larson Building Tallahassee, Florida 32399-0300
STATEMENT OF THE ISSUE
The issue in this case is whether the City of Naples, by denying Petitioner employment as a firefighter, or the Division of State Fire Marshal, by denying Petitioner certification as a firefighter, committed an unlawful employment practice.
PRELIMINARY STATEMENT
In 1988, Petitioner Jeff Bronsdon ("Petitioner"), began attempting to gain employment as a firefighter for the City of Naples. Based on medical information related to an alleged color vision perception deficiency, the City denied the employment due to the ineligibility of the Petitioner to meet the medical standards required for firefighter certification as established by rules adopted by the Division of State Fire Marshal ("Fire Marshal"). Several years later, the Petitioner obtained letters from vision practitioners which indicate that the color perception problem does not exist. The Petitioner thereafter became employed as a firefighter by the City and certified by the Fire Marshal.
By petitions filed with the Florida Commission on Human Relations ("FCHR") the Petitioner asserted his complaint that both Respondents discriminated against him by denying him certification and employment as a firefighter. The FCHR issued a determination of cause essentially finding that the Petitioner's complaint had merit. The Respondents requested a redetermination of cause. The redetermination upheld the original cause determination. An attempt at settlement was unsuccessful and Petitioner's complaints were transmitted to the Division of Administrative Hearings, which consolidated the cases and thereafter noticed and conducted the formal hearing.
At the hearing, Petitioner presented the testimony of three witnesses and had exhibits numbered 1-3, 10-11, and 13-14 admitted. Respondent Fire Marshal presented the testimony of two witnesses and had one exhibit admitted.
Respondent City presented the testimony of one witness and had exhibits numbered 1-24 admitted. A prehearing stipulation filed by the parties was admitted as a Hearing Officer's exhibit.
A transcript of the hearing was filed. All parties filed proposed recommended orders. The proposed findings of fact are ruled upon either directly or indirectly as reflected in this Recommended Order, and in the Appendix which is attached and hereby made a part of this Recommended Order.
FINDINGS OF FACT
The City of Naples ("City") is an "employer" for purposes of the Florida Human Rights Act of 1977 ("Act"). Both the Division of State Fire Marshal ("Fire Marshal") and Jeff Bronsdon ("Petitioner") are "persons" for purposes of the Act. All time limits have been met by the Petitioner for purposes of jurisdiction under the Act.
At some point in 1988, the Petitioner applied for the position of firefighter for the City.
Between 1988 and prior to July, 1989, the Petitioner successfully completed the written examination and the physical agility tests which are necessary to become a City firefighter.
Subsequent to the successful completion of the written and physical agility tests, the Petitioner was placed on a register of eligible candidates for employment.
On July 22, 1989, the Petitioner was notified that a firefighter's position was available and that the Petitioner would be hired for that position if he successfully completed a pre-employment physical examination.
A person must be certified or eligible for certification by the Fire Marshal in order to be employed by the City as a firefighter. The Fire Marshal is authorized by statute to prescribe certification requirements for all firefighters in the state. The Fire Marshal's certification requirements include the medical standards established by the National Fire Protection Association ("N.F.P.A.").
The N.F.P.A. standards include a color perception requirement, set forth at N.F.P.A. Section 1001 2-2.7.2(a) which provides that failure to visually identify red, or green, or both is cause for denial of a firefighter certification.
The Fire Marshal has produced a standard form which is used to report the result of the medical examination. At the top of page one, the form states as follows:
THE EXAMINING PHYSICIAN SHOULD HAVE IN HIS POSSESSION A COPY OF THE "MEDICAL REQUIREMENTS FOR FIRE DEPARTMENT CANDIDATES" AS OUTLINED IN THE NFPA PAMPHLET #1001, AND PRESCRIBED BY THE DIVISION, FOR REFERENCE DURING THE EXAMINATION.
The form includes a list of conditions which may cause disqualification for employment. Under the category of "EYES AND VISION" is a printed notation of "COLOR PERCEPTION-IDENTIFY RED, GREEN, YELLOW" after which follow a pair of "check-off" boxes denoting a normal or abnormal condition. After a physician performs a test, the results are denoted by checking one of the boxes.
The Petitioner's pre-employment physical examination was performed on July 20, 1989 by Dr. Scott Mastores.
There is no credible evidence that Dr. Mastores did not rely on the appropriate test methodology in performing the physical as is indicated on the form or in the cited pamphlet.
In the Petitioner's July 20, 1989 pre-employment physical examination report, Dr. Mastores checked the box which indicates that the Petitioner's color perception was abnormal and he was unable to distinguish red, green and yellow.
Written notes on the form, allegedly those of Dr. Mastores, state that the Petitioner has "significantly abnormal color vision--difficulty with I.D. of blue/green, brown/black, able to tell red/yellow and most greens."
On July 20, 1989, the Petitioner took the test results to the City's Fire Training Captain. The Captain saw the box checked, and saw, but did not read, the doctor's handwritten annotation to the vision tests.
After observing that the examining physician checked the abnormal color perception box, the Captain inquired as to the Petitioner's color perception. The Petitioner, apparently unaware that his condition could be disqualifying, indicated that he was unable to distinguish red and green.
Based on the checked box and his conversation with the Petitioner, the Captain informed the Petitioner that he would not be hired by the City because he could not meet the Fire Marshal's certification requirements.
The Captain and the Petitioner discussed the color perception requirement. The Petitioner asserted that he had worked as a fireman previously without incident and that the color perception requirement was unnecessary. The Captain explained to the Petitioner that it was a state, not a City, requirement
The Captain provided the Petitioner with a telephone number for the Fire Marshal's office and stated that if he could become certified, the City would be willing to hire him. The Captain also volunteered to contact the Fire Marshal's office as well.
The next day, the Captain contacted the Fire Marshal's office and relayed the Petitioner's abnormal test result to a representative of the office. The Captain was informed that in accordance with N.F.P.A. standards, normal color vision was still required for certification and that the Respondent did not appear to meet the requirement. The Captain immediately forwarded the information to the Petitioner.
In July 1989, the City hired another man identified on the eligibility list.
In November of 1989, the eligibility list upon which the Petitioner was listed expired and he was no longer eligible for employment. In order to retain eligibility, the Petitioner would have needed to retake the written and agility tests. He did not.
Although the Petitioner eventually contacted the Fire Marshal's office and obtained additional information about certification, he made no further serious attempt to pursue the matter until approximately May of 1990.
On May 18, 1990, the Petitioner met with the City's newly appointed Fire Chief and discussed his previous experience with the City's firefighter employment procedure. The Petitioner opined that his acknowledged color blindness should not bar his employment as a firefighter with the City.
The Fire Chief informed the Petitioner that he could only be hired if he became certified by the Fire Marshal. The Fire Chief also informed the Petitioner that he was no longer on the list of persons eligible for new hire.
Although a follow-up meeting between the Chief and the Petitioner was scheduled, the Chief subsequently cancelled the meeting.
At various times in 1991, the Petitioner discussed the issue with the City's human resource director ("HRD") at a health club where both exercised. She encouraged him to continue attempting to become certified and suggested that he seek City employment in a position which did not require Fire Marshal certification.
Attempting to be of some assistance to the Petitioner, the City's HRD, on April 29, 1992, forwarded the Petitioner's 1989 medical examination report to the Fire Marshal's office for review. The copy of the report was not entirely legible.
By letter to the HRD dated May 8, 1992, Lou Puka (Field Representative Supervisor for the Fire Marshal's Bureau of Fire Standards and Training) requested that a more recent and legible examination report be supplied.
Pursuant to the Fire Marshal's request, the City obtained two ophthalmic medical examinations of the Petitioner.
One examination was performed by the City's physician, Dr. Edmond Weidner, whose written report states that the Petitioner "[f]ailed the pseudo- isochronic color plates for red/green differentiation" and specifically notes that the failure is "[c]ause for rejection under rule 2-2.7.2 of the firefighter professional qualifications."
The second examination was performed by Dr. William D. Gaskins, the Petitioner's personal choice for the exam. Dr. Gaskins noted in his report that the Petitioner failed the "Ishahara Color Plate screening" and further noted that the Petitioner suffered from "deuteranopia" or "green blindess--color blindness in which there is a defect in the perception of green."
On May 28, 1991, the City's HRD sent the two new evaluations to Mr. Puka. Based upon his review of the reports, he responded to the HRD by letter of June 3, 1991, stating in part as follows:
Mr. Jeff Bronsdon's application for certification as a firefighter would be denied because he failed to meet the duly-adopted medical standards for color vision contained in Section 2-2.7.2, N.F.P.A. 1001, (1981).
The examinations indicate a defect in the perception of green.
The Fire Marshal's letter concluded by stating that the Petitioner had a right to request an administrative hearing challenging the supposed determination. At that time, the Petitioner had not applied to take the minimum standards training course conducted at the State Fire College in Ocala and accordingly had not been denied certification.
The City HRD forwarded a copy of the Fire Marshal's letter to the Petitioner.
At the hearing, a representative of the State Fire Marshal testified that, because the Petitioner had not applied for certification as a firefighter and had not been denied, the letter was only an opinion, and the Petitioner would not have been entitled to a hearing. In any event, the Petitioner did not request a hearing at that time.
In July of 1991, the Petitioner sent a letter to the State Commissioner of Insurance, setting forth his position in the matter regarding certification and expressing his extreme displeasure with the situation.
Apparently based on the letter, the Petitioner was contacted by an attorney for the Commissioner to discuss the matter and a series of telephone conversations ensued.
During several conversations about the requirements and the Petitioner's assertion that the requirements were unnecessary, representatives of the Fire Marshal explained to the Petitioner that the color perception requirements are related to the use of color coding which identifies explosive or hazardous materials which may be present in fire situations.
After a number of telephone conversations, it was apparently suggested to him that if he could successfully pass a test in which a red dot and a green dot were displayed against a white background, the Fire Marshal would not deny the certification because of his color perception deficiency.
The Petitioner scheduled an appointment for testing with Mary Lou Kircher, a vision specialist who also frequented the health club at which they both exercised.
There is no evidence of the nature of the color perception test Dr. Kircher administered, however, by her letter of August 22, 1991, she wrote that the Petitioner was able to determine green from red and red from green with 100 percent accuracy.
The Petitioner also scheduled another appointment with Dr. Gaskins and requested that he perform the "red dot/green dot" test. Dr. Gaskins utilized a red object and a green object, but did not display the items before a white background.
After the test, Dr. Gaskins provided a letter which states that the Petitioner "has a red/green color deficiency on Ishahara Color Plate screening and Deuteranopia on Farnsworth D-15 panel testing. At the patient's request, I asked the patient to identify the color of 12 red or green areas on a white background, and he was able to identify 12 of the 12 correctly."
Contrary to the letter, the evidence establishes that the objects were not displayed before a white background.
The Petitioner submitted the two letters to the Fire Marshal's office which (after a further exchange of correspondence and telephone calls) eventually resulted in the Fire Marshal issuing a letter dated September 18, 1991, stating that the Petitioner's color perception would not be a disqualifying factor for certification as a firefighter.
The Petitioner took the Fire Marshal's letter of September 18 to the City's HRD.
After receiving the September 18 letter, the HRD placed the Petitioner back on, and at the top of, the firefighter applicant elibility list. Although her actions were contrary to City policy, the HRD did so in an attempt to resolve the long-standing matter.
By April of 1992, no firefighter vacancies had opened in the Fire Department. On April 3, 1992, the City offered the Petitioner a position as a City firefighter in a position which was specifically created for him.
The Petitioner accepted the position offered effective April 20, 1992 at an annual salary of $20,871.
At the time the Petitioner was employed, he was awarded seniority retroactive to September of 1991, the time at which the City received the letter related to the Fire Marshal's determination that the Petitioner's color perception deficiency would not be used to disqualify him from certification.
On April 23, 1992, the Petitioner made his first application for admission to the State Fire College and certification as a firefighter.
He began minimum standards training on May 11, 1992 and completed the training on July 3, 1992 at which time he received his firefighter's certification.
The Petitioner continues to be employed by the City as a certified firefighter.
Prior to the application filed April 23, 1992, the Petitioner had not applied for admission to the minimum standards training course offered at the State Fire College and had not been denied certification as a firefighter.
The Division of State Fire Marshal is responsible for training and certification of firefighters, and is solely responsible for determining whether an applicant is eligible for certification. The City is not permitted to have non-certified and non-certifiable firefighters in its employ.
Although the Petitioner asserts that the color perception requirement is unreasonable, the Petitioner has not challenged the Fire Marshal's rules, which adopt and rely upon the N.F.P.A. medical standards. There is no credible evidence whatsoever to support his assertion that the rules or the requirements specifically related to color perception are unreasonable.
During the course of events, the Petitioner was examined by a total of five medical personnel, the first three of whom determined that the Petitioner's color perception was deficient. None of the physicians were called to testify.
At the hearing, the Petitioner admitted that he is unable to "differentiate some shades of red and some shades of brown or green or blues."
Given the conflicting opinions expressed in the exam reports, and absent any persuasive evidence on this point, it is currently no more likely that the Petitioner can distinguish red from green as it is that he can not.
The Petitioner seeks an award of back pay from the date upon which employment was initially denied. An award of back pay is not supported by the evidence in this case.
Between July 22, 1989, and April 20, 1992, the Petitioner was employed as an auto mechanic. The Petitioner earned $28,265 as an auto mechanic in 1990, and earned $29,389 in 1991. In the months of 1992 prior to becoming employed as a firefighter, he earned $10,883. He took a reduction in salary at the time he became employed as a firefighter.
The Petitioner seeks an award of secondary wages. Secondary wages are those the Petitioner asserts that he could have earned during his off-duty hours had he been employed as a firefighter from the time of his initial rejection by the City.
The Petitioner asserted that the denial of City employment had cost him a secondary income in the range of $12,000 to $20,000 annually. The Petitioner claimed that during the approximately seven months between becoming employed as a firefighter and the hearing date, he earned approximately $3500-
$4000. Neither the potential for secondary income nor the actual secondary earnings claimed are supported by credible evidence.
The Petitioner claimed he had been employed irregularly as a part time stock clerk at Publix. The Petitioner produced no wage records or other documentation of his employment at Publix. The evidence fails to establish that the wages from such employment merits serious consideration as secondary income.
The Petitioner stated that he performed yard work for his landlady. He initially stated that the landlady had deducted the yard work from his rent. He subsequently stated that the amount of compensation had not been determined but stated that would be agreed upon, that he believed it would be about $850, and she would then give him a receipt for tax purposes.
The Petitioner also claimed that he performed minor home cleaning and automotive work for a man who apparently resides in Florida on a seasonal basis. The Petitioner asserted that as his compensation for the work, the man gave the automobile to the Petitioner.
The Petitioner stated that he has done minor auto work for some coworkers for a total of $90.
Although the City requires an employee to gain approval before working additional jobs, the Petitioner has not filed such a request and has not received authorization from the City to engage in such outside income producing activities.
The Petitioner's testimony related to secondary wages was not supported by any documentation and is neither persuasive nor credible. Although clearly the Petitioner would have time to earn secondary income while employed as a firefighter, the evidence does not establish that the Petitioner could have done so.
There is no evidence that the failure of the City to employ the Petitioner was based on any factor other that his ineligibility for state certification based upon his color perception deficiency as indicated by the medical information obtained from examination reports from the Petitioner.
The Petitioner seeks an award of attorney fees and costs. The evidence fails to establish that such an award is appropriate.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Section 120.57(1), Florida Statutes.
The shifting burdens in a case under the Florida Human Rights Act of 1977 were explicated in National Industries, Inc. v. Commission on Human Relations, 527 So.2d 894 (Fla. 5th DCA 1988). In that case, the court discussed McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and stated:
...the plaintiff has the initial burden of proving by the preponderance of the evidence a prima facie case of discrimination. If the plaintiff succeeds in proving that prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." Id. at 802, 93 S.Ct. at 1824. Should the employer carry this burden, the burden then shifts back to the Petitioner to show by a preponderance of the evidence that the reasons offered by the employer were not its true reasons, but were a pretext for discrimination.
In order to establish a prima facie case of handicap discrimination, the Petitioner must show (1) that he is handicapped, (2) that he is able to perform the assigned duties satisfactorily and is otherwise qualified for the position, and (3) that he was not hired under circumstances which give rise to an inference that the employment decision was based solely on the handicap. Brand v. Florida Power Corporation, 14 FALR 3447 (FCHR 1992); Cabany v. Hollywood Memorial Hospital, 12 FALR 2020 (FCHR 1990); Green v. Mark III Industries, 12 FALR, 1888 (FCHR, 1990).
The term "handicap" is not defined by the Act. However, 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. Green v. Mark III Industries, 12 FALR, 1888 (FCHR, 1990). For purposes of this case, the Petitioner is handicapped.
Section 760.10, Florida Statutes, provides as follows:
It is an unlawful employment practice for an employer:
(a) 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 race, color, religion, sex, national origin, age, handicap, or marital status.
* * *
(5) Whenever, in order to engage in a profession, occupation, or trade, it is required that a person receive a license, certification, or other credential...it is an unlawful employment practice for any person to discriminate against any other person
seeking such license, certification, or other credential because of such person's race, color, religion, sex, national origin, age, handicap, or marital status.
* * *
Notwithstanding any other provision of this section, it is not an unlawful employment practice under ss.760.01-760.10 for an employer...to
Take or fail to take any action on the basis of religion, sex, national origin, age, handicap, or marital status in those certain instances in which religion, sex, national origin, age, absence of a particular handicap, or marital status is a bona fide occupational qualification reasonably necessary for the performance of the particular employment to which such action or inaction is related.
Section 633.35(2), Florida Statutes provides that:
The division [of State Fire Marshal] shall issue a certification of compliance to any person satisfactorily complying with the training program established in subsection (1) and the qualifications for employment in s.
633.34. No person may be employed as a regular or permanent firefighter by the employing agency for a period of time in excess of 1 year from the date of initial employment until he has obtained such certificate of compliance.
Section 633.34, Florida Statutes provides:
Any person initially employed as a firefighter must:
(5) Be in good physical condition as determined by a medical examination as prescribed by the division. Such examination may include, but need not be limited to, provisions of the National Fire Protection Association Pamphlet 1001.
Rule 4A-37.037, Florida Administrative Code, adopts standards for the medical examination required by Section 633.34 and provides as follows:
4A-37.037 Pre-employment Medical Examination
Establishment of good physical condition of the applicant by a medical examination is a pre-employment requirement which must be met prior to initial employment as a firefighter in compliance with Section 633.34(5), Florida Statutes.
Prior to initial employment as a firefighter, the applicant shall be given a thorough medical examination by a physician or
surgeon licensed to practice in the State of Florida...
Such examinations shall be conducted for the purpose of detecting or determining the presence of deficiencies or abnormalities which would reasonably be expected to limit the abilities of the applicant to satisfactorily and safely perform all the duties associated with firefighting and or predispose the applicant to injury or disability.
It is emphasized that the medical requirements establish a minimum standard for compliance. The medical test is the examination by the physician which searches for systemic, organic, or skeletal deficiencies that would be disqualifying or
limiting. The medical standards prescribed by the Division are those published by the National Fire Protection Association in its pamphlet NFPA No. 1001, "Firefighter Professional Qualifications", 1981 edition, Section 2-2, "Medical Requirements for Fire Department Candidates," pages 1001-8 through 1001- 35, inclusive, which is hereby incorporated in this rule and made a part of the rule by reference. A copy of this publication may be obtained by writing the association, whose address is: National Fire Protection Association, Inc., Batterymarch Park, Quincy, Massachusetts 02269. Any applicant not satisfying the minimum requirements prescribed by the Division for the medical examination shall not be qualified for employment...
Section 2-2.7.2(a) of N.F.P.A. 1001, (1981) provides that an applicant's failure to visually identify red, or green, or both is cause for denial of an application for firefighter certification.
The Petitioner has raised no challenge to any of the aforementioned rules or standards, but instead asserts that the requirements as applied in his case were discriminatory.
As to the allegations of discrimination by the City of Naples, the Petitioner asserts that the City of Naples committed an unlawful employment practice on July 20, 1989 when it refused to employ the Petitioner based upon his impaired color perception.
The Petitioner has failed to establish that at the time of the alleged discrimination he was able to perform the assigned duties satisfactorily and was otherwise qualified for the position, therefore he has failed to establish a prima facie case of handicap discrimination. Based upon the first test result and on the Petitioner's discussion of the deficit on July 20, 1989 with the City's Fire Training Captain, there existed clear evidence of a color perception deficit which would have prevented the Petitioner from being certified as a firefighter by the Bureau of Fire Standards and Training.
Because the Petitioner was not eligible for certification, he was not "otherwise qualified" for the position. The second and third tests, performed almost two years later, confirmed the results of the first. There is no evidence that these three physical examinations performed on the Petitioner were performed in any manner contrary to adopted standards.
After receiving directions on how the test should be administered, the Petitioner underwent two more exams. The evidence establishes that Dr. Gaskins did not administer the repeat examination according to the procedure by which the Petitioner was instructed. The evidence fails to establish what type of test was administered by Dr. Kircher. However, these examinations resulted in the Petitioner obtaining letters which indicated that he could distinguish red from green. Based on the letters, the Fire Marshal's office rendered a letter dated September 18, 1991, stating that color perception deficit would no longer serve to bar the Petitioner's certification. At that time, the Petitioner was placed at the top of the firefighter elibility list. When no vacancies became available, the City created a position for the Petitioner, and awarded retroactive seniority to the September 18, 1991 letter.
Throughout the period, the Petitioner continued to insist to city and to Fire Marshal representatives that his color blindness should not be a consideration in the certification decision. However he initiated no legal challenge to the standard as adopted by rule, which is and continues to be valid and presumed reasonable, absent any evidence to the contrary.
As to the Petitioner's assertion that the City unreasonably relied on the Fire Marshal's rules in denying employment, the evidence establishes that the rule was reasonably applied based on the available medical information from examination and from the Petitioner.
At hearing, the Petitioner asserted that, because Respondent City did not timely file an answer to the complaint of discrimination, all matters were deemed admitted and the Respondent City should not be permitted to offer testimony and evidence to the contrary. In order to permit a recommendation to be made on the merits of the case, the Hearing Office permitted the Respondent City to present its defense.
As to the Division of State Fire Marshal, the Petitioner asserts that the denial of firefighter certification based upon the Petitioner's color perception deficit was discrimination based upon a handicap. The evidence fails to establish that the Fire Marshal ever denied such certification.
Responding to an inquiry received in May of 1991, and with three medical examination reports indicating that the Petitioner could not distinguish red and green, a letter from the Bureau of Fire Standards dated June 3, 1991 opined that the Petitioner's application would be denied based on the defect in the perception of green. However, at that time, the Petitioner had not yet applied to take the minimum standards training course conducted at the State Fire College or to become certified.
When application for training and certification were finally made in April of 1992, the Petitioner's application for certification was approved after completion of the course.
At hearing, the Petitioner specifically stated that no challenge was being made to the rules of the State Fire Marshal. Such rules incorporate the
provision stating that failure to distinguish red or green or both is cause to deny certification.
At hearing there was uncontradicted testimony that the color perception requirements are related at least in part to the use of color coding which identifies explosive or hazardous materials which may be present in a fire situation.
Without challenge by the Petitioner or evidence to the contrary, the color perception requirement must be determined to be a bona fide occupational qualification reasonably necessary for the performance of the particular employment.
Based on the foregoing, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the complaints filed in this case.
DONE and RECOMMENDED this 2nd day of April, 1993 in Tallahassee, Florida.
WILLIAM F. QUATTLEBAUM
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 2nd day of April, 1993.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-3758
The following constitute rulings on proposed findings of facts submitted by the parties.
Petitioner
The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:
10. Rejected as to decision being based "solely" on a check mark in a box. The testimony of the Captain was that he and the Petitioner discussed the matter during which the Petitioner acknowledged a red/green visual deficiency.
Rejected as to implication that no further conversation occurred between the Captain and the Petitioner, not supported by greater weight of the evidence.
Rejected, not supported by greater weight of the evidence, which establishes that the Captain relayed the Petitioner's specific test result to the Fire College representative.
Rejected, not supported by credible and persuasive evidence.
Rejected, immaterial.
Rejected, not supported by credible and persuasive evidence.
20. Rejected. The question was "[i]f a check appears in the abnormal column does that in and of itself mean that person is disqualified from certification" to which the witness responded "no". The proposed finding inappropriately paraphrases the testimony.
23. Rejected. One of the examinations was performed by a doctor chosen by the Petitioner.
Rejected, immaterial.
Rejected as to use of phrase "reversed his position". The fourth and fifth test results submitted to the Fire Marshal indicated that the Petitioner could distinguish red from green, contrary to previous tests.
30. Rejected, evidence fails to establish that the Petitioner is entitled to such benefits.
Respondent City of Naples
Respondent City of Naples' proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:
14-15. References to prior related discrimination complaints are rejected as cumulative and unnecessary.
25-27. Rejected, cumulative and unnecessary.
28. Reference to human resource director being unaware of reevaluation activity is irrelevant.
34. Rejected. Although the finding essentially states the nature of the Petitioner's testimony related to secondary employment, the testimony is not credited, therefore the statement is not supported by credible and persuasive evidence.
Respondent Office of State Fire Marshal
Respondent Office of State Fire Marshal's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:
1-3. Rejected, unnecessary.
COPIES FURNISHED:
Thomas Franchino, Esq.
LEHMAN, FRANCHINO & RAWSON, P.A.
700 Eleventh Street South Suite 203
Naples, FL 33940
Peter J. Hurtgen, Esq. Wayne D. Rutman, Esq. MORGAN, LEWIS & BOCKIUS
5300 Southeast Financial Center
200 South Biscayne Boulevard Miami, FL 33131
Lisa S. Santucci, Esq. Division of Legal Services
412 Larson Building Tallahassee, FL 32399-0300
Margaret A. Jones, Clerk
Florida Commission on Human Relations
325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113
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 ten 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.
| Issue Date | Proceedings |
|---|---|
| Aug. 25, 1994 | Final Order Dismissing Petition for Relief From An Unlawful Employment Practice filed. |
| Apr. 02, 1993 | Recommended Order sent out. CASE CLOSED. Hearing held 1/13/93. |
| Mar. 11, 1993 | Petitioner's Responsive Memorandum filed. |
| Feb. 19, 1993 | (Dept of Insurance) Proposed Recommended Order filed. |
| Feb. 19, 1993 | Respondent City of Naples Proposed Findings of Fact and Post-Hearing Brief; (Appendix of) Cases Cited in Respondent City of Naples ProposedFindings of Fact and Post-Hearing Brief filed. |
| Feb. 18, 1993 | Letter to WFQ from Thomas W. Franchino (re: request premission to submit memorandum of law in response) filed. |
| Feb. 16, 1993 | Petitioner's Proposed Findings of Facts and Conclusions of Law filed. |
| Jan. 29, 1993 | Transcript filed. |
| Jan. 13, 1993 | CASE STATUS: Hearing Held. |
| Dec. 31, 1992 | Joint Pre-Hearing Stipulation (+ att. A-F; (NOTE: att. C filed. |
| Dec. 17, 1992 | Respondent's Request for Production of Documents filed. |
| Nov. 02, 1992 | Ltr to Donnell McClung from DLL re: court report confirmation sent out. |
| Oct. 30, 1992 | Letter to Donnie Lambert from Brenda D. Hyatt (re: ltr of October 26,1992) w/supporting attachment filed. |
| Oct. 26, 1992 | Ltr to D. McClung from D. Lambert re: correction for services of acourt reporter sent out. |
| Oct. 22, 1992 | Ltr to D. McClung from D. Lambert re: court report confirmation sent out. |
| Oct. 22, 1992 | Notice of Hearing sent out. (hearing set for 1-13-93; 1:00pm; Naples) |
| Oct. 22, 1992 | Order Establishing Prehearing Procedure sent out. |
| Oct. 09, 1992 | Joint Case Status Report filed. |
| Sep. 25, 1992 | Order Granting Continuance sent out. (hearing date to be rescheduledat a later date; parties to file status report by 10-9-92) |
| Sep. 11, 1992 | (Respondent) Motion for Continuance filed. |
| Aug. 27, 1992 | Order Establishing Prehearing Procedure sent out. |
| Aug. 27, 1992 | Notice of Hearing sent out. (hearing set for 10-14-92; 10:00am; Naples) |
| Aug. 27, 1992 | Order of Consolidation sent out. (Consolidated cases are: 92-3758 and 92-3759) |
| Aug. 27, 1992 | Ltr to J.F. Sineno & Assoc. from D. L. Lambert (RE: ltr requesting services for court reporter for final hearing on 10-14-92) sent out. |
| Aug. 07, 1992 | (Respondent) Response to Initial Order filed. |
| Aug. 03, 1992 | Petitioner's Request for Production of Documents filed. |
| Jul. 30, 1992 | (Respondent) Motion for Extension of Time filed. |
| Jul. 27, 1992 | (Petitioner) Resposne to InitialOrder filed. |
| Jul. 14, 1992 | Initial Order issued. |
| Jun. 24, 1992 | Transmittal of Petition; Complaint; Notice of Determination; Petitionfor Relief; Notice to Commissioners and Respondent's Notice of Transcription filed. |
| Jun. 24, 1992 | (Petitioner) Motion for Consolidated Hearing (with DOAH Case No/s. 92-3758 & 92-3759) filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 24, 1994 | Agency Final Order | |
| Apr. 02, 1993 | Recommended Order | Petitioner failed to establish handicap discrimination/color blindness by city; Fire marshall never denied certification. |
