STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL D. ENGLEKA, )

)

Petitioner, )

)

vs. ) CASE NO. 92-6338

)

SUN COAST HOSPITAL, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on January 27, 1993, in Clearwater, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Michael David Engleka, Pro se

2826 Oak Lawn Avenue Apartment B Largo, Florida 34641

For Respondent: Robin E. Greiwe, Esquire

Thompson, Sizemore & Gonzalez, P.A.

109 Brush North Suite 200 Tampa, Florida 34641

STATEMENT OF THE ISSUES

Whether Petitioner was the subject of an Unlawful Employment Practice by being discharged from his employment due to his handicap, obesity with resulting sleep apnea, in violation of the Florida Human Rights Act, Section 760.10, Florida Statutes.

PRELIMINARY STATEMENT

Petitioner filed a Petition for Relief from an unlawful employment practice with the Florida Commission on Human Relations on October 3, 1992, charging Respondent with a violation of Section 760.10, Florida Statutes. After proper service of process on the corporation, it denied the allegations. The matter was referred to the Division of Administrative Hearings for a Formal Hearing and the submission of a recommended order to the Commission, on October 26, 1993.

Upon proper notice, a formal hearing was conducted in Clearwater, Florida, on January 27, 1993.

At the hearing, Petitioner testified in his own behalf and called his wife as a witness, and offered ten (10) exhibits into evidence. Respondent called four (4) witnesses and offered twelve (12) exhibits in evidence.

Upon conclusion of the hearing, the parties waived the ten-day rule and were provided the opportunity to submit proposed findings of fact, conclusions of law and legal argument within fourteen days of the filing of the transcript. The transcript was filed on February 18, 1993. Petitioner has not filed proposed findings as of the date of this order. Respondent filed its proposed findings on March 2, 1993. The Respondent's proposed findings of fact conclusions of law and argument have been given careful consideration, and my specific rulings on the proposed findings of fact are addressed in the Appendix attached hereto.

Based upon all of the evidence, the following findings of fact are determined.

FINDINGS OF FACT

1. Petitioner was hired as a radiology escort in March, 1981, at Sun Coast Hospital. At that time Petitioner weighed approximately 325 - 335 pounds.

   
   

2. The essential functions of Petitioner's job require that he transport patients by stretcher and wheelchair to and from the radiology department, and lift and maneuver up to 300 pounds without assistance. Other primary duties include assisting in the radiographic rooms as needed, removing soiled linen to a designated area, monitoring oxygen tanks, cleaning radiographic rooms and performing dark room duties as needed.

   
   

3. In 1985, Petitioner received an average work performance evaluation.

   
   

4. In 1986, Petitioner did not meet standards in four out of nine areas. Petitioner needed to improve his work habits and relationships with his coworkers.

   
   

5. Petitioner frequently complained when requested he perform special tasks.

   
   

6. Petitioner received two counsel sheets in 1986. Counsel sheets are the last stage of the progressive discipline procedure. One counsel sheet arose from Petitioner refusing to perform one of his job duties. The other sheet specified that Petitioner was not performing his share of the work. Petitioner complained about his work, slept on the job, and insisted on taking lunch breaks, even if there was a patient that needed assistance.

   
   

7. Petitioner's performance improved in 1987. Nevertheless, Petitioner's self motivation was still below standard.

   
   

8. In 1988, Petitioner experienced performance problems once again. Petitioner's 1988 annual evaluation specified that Petitioner needed to increase his productivity and decrease his absenteeism. In addition, Petitioner needed to be more self-motivating.

   
   

9. In September, 1988, Petitioner received a written warning for falling asleep in the hospital's front lobby. Petitioner was warned not to sleep on hospital time or work premises. When Petitioner returned with a patient, he was short of breath and sweating.

   
   

10. In November, 1988, Petitioner received a written counsel sheet again for his poor job performance. Petitioner was slow, did not do his share of the work, and complained in front of patients. Again, when Petitioner returned with

    a patient, he was short of breath and sweating. Petitioner insisted on sitting down and resting before he transported another patient. Other employees complained to his supervisor that they could not perform their job when Mr.

    Engleka was not getting patients to them.

    
    

11. In 1988, Petitioner did not indicate that he needed reasonable accommodation.

    
    

12. Petitioner's position as an escort was a one person job. Petitioner could not rest in between patients because other employees could not get their work done. Delay resulted in radiological tests not being done in a timely fashion which resulted in delayed patient care.

    
    

13. At the request of management, Petitioner was evaluated to determine if he was physically able to perform the essential requirements of his position.

    
    

14. Dr. Rea, Respondent's personal physician, determined that continued employment of Petitioner would pose a reasonable probability of substantial harm to Petitioner.

    
    

15. Petitioner's labile hypertension, evidence of heart disease, obesity, low blood oxygen levels, and the physical requirements of his job placed Petitioner at substantial risk of having a heart attack and/or stroke. Petitioner's prognosis as it stood was determined to be very guarded to poor.

    
    

16. There was no way to decrease the substantial risk of potential heart attack or stroke, but for Petitioner to go on medical leave and lose weight. No reasonable accommodations could be made to enable Petitioner to perform his essential job functions and eliminate or reduce the significant risk of heart attack or stroke to Petitioner.

    
    

17. It was decided to recommend that Petitioner go on medical leave and participate in a weight loss program to improve his physical well being which could result in improvement of his work performance.

    
    

18. Petitioner was advised that the Hospital was placing Petitioner on a medical leave of absence requiring Petitioner to enter the Optifast Weight Loss Program, and get treatment for sleep apnea. Respondent agreed to and did pay for eighty percent (80 percent) of the weight loss program.

    
    

19. Petitioner's last day of work was February 14, 1989. When Petitioner was initially told about the requirement for weight loss, he thought it was a good idea.

    
    

20. The next Optifast program started in March, 1989.

    
    

21. Petitioner was paid all outstanding vacation, holidays, and sick leave until the Hospital outlined the specifics of placing Petitioner on medical leave.

    
    

22. On or about March 24, 1989, Petitioner signed the leave agreement which specified Petitioner would be terminated if he did not comply with the weight loss program. Additionally, the Hospital agreed to assist Petitioner in receiving some income. The document specified that Petitioner understood that he would be replaced in his job.

23. The Optifast program lasted at least twenty-six (26) weeks. Petitioner was expected to be on a leave of absence for at least the twenty-six

    (26) weeks time period, and return to his position once he completed the Optifast program.

    
    

24. Petitioner applied for unemployment compensation in February, 1989, but was denied unemployment when Petitioner told the Unemployment Commission that he was on a medical leave of absence.

    
    

25. Petitioner started the Optifast program on March 14, 1989. At that time Petitioner weighed four hundred fifty-three (453) pounds.

    
    

26. Petitioner had problems with weight loss program compliance in week 6 (April 18, 1989); week 12 (May 30, 1989); and Week 15 (June 20, 1989) when Petitioner gained more than five (5) pounds.

    
    

27. Petitioner stopped attending the Optifast program after week 16, (June 27, 1989), of the 26 week program, and did not see the doctor after that date.

    
    

28. A very important phase of a fasting program is the behavior modification phase where eating habits are actually changed so the patient does not regain the weight he lost.

    
    

29. Petitioner quit the Optifast program before reaching maintenance. Petitioner was not released, nor did he graduate from the Optifast program.

    
    

30. Petitioner did not comply with the Optifast Weight Loss Program, because he stopped the program after 16 weeks. Therefore, Petitioner did not comply with the agreement between himself and Sun Coast Hospital.

    
    

31. Petitioner understood that he would be terminated by the Hospital if he did not complete the Optifast program.

    
    

32. Petitioner was denied Social Security disability benefits in July 17, 1989.

    
    

33. At that time, Petitioner told Ken Deibel, former Director of Human Resources for Suncoast Hospital, that he was in desperate need of some type of income. Deibel told Petitioner the Hospital would change Petitioner's status to layoff so he could receive unemployment. Petitioner immediately received two

    1. weeks severance pay in keeping with layoff status.

       
       

34. Shortly thereafter, Dr. Rea wrote an undated note stating that Petitioner could return to a working status, in order for Petitioner to qualify for unemployment. Dr. Rea wrote this note after Petitioner complained that he would not be able to continue the weight loss program unless he had a source of income. Dr. Rea did not release Petitioner to return to his position of radiology escort.

    
    

35. The note was not addressed to or received by the Hospital. The note did not qualify Mr. Engleka to return to work as an escort at Sun Coast Hospital.

    
    

36. Petitioner did not receive unemployment compensation following the change of his status from medical leave of absence to layoff.

    
    

37. Petitioner did not restart the Optifast program.

38. Petitioner never brought a release from the Optifast program or told the Hospital that he was ready to return to work.

39. On January 14, 1990, Dr. Rea wrote another letter stating Petitioner could return to a "working status."

    
    

40. In January, 1990, when Sun Coast Hospital received the release for Petitioner to return to a "working status," Petitioner was not otherwise qualified for the escort position because he had not lost weight, and still represented a substantial risk to himself.

    
    

41. At that time Petitioner had regained almost all the weight that he lost while on the Optifast program, weighing 443 pounds.

    
    

42. In January, 1992, Petitioner was diagnosed as having congestive heart failure.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

44. The Petitioner contends that he was unlawfully discharged by the Hospital when it discriminated against him due to his handicap, obesity, with secondary sleep apnea. The Petitioner relies on the Florida Human Rights Act of 1977, Section 760.10 et seq., Florida Statututes (1987). The Human Rights Act prohibits specified unlawful employment practices and provides remedies for such violations. The statute provides in pertinent part:

    
    

    760.01, Purposes, Construction, Title -

    1. The general purposes of Section 760.01

       - 760.10 are to secure for all individuals in the State freedom from discrimination because of race, color, religion, sex, national origin, age, handicap, or marital status, and thereby to protect their interest or personal dignity, to make available to the State their full protective capacity to secure the State against domestic strife and unrest, to provide the public safety, health, and general welfare, and to provide the interest, rights, and privileges of individuals within the State.

    2. Sections 760.01 - 760.10 shall be construed according to the fair import of its terms and shall be liberally construed to further the general purposes stated in this section and special purposes of the particular provision involved.

    760.10 Unlawful employment practices; remedies, construction -

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

       1. To discharge or to fail or refuse to hire any individual, or 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.

    1. Notwithstanding any other provisions of this section, it is not an unlawful employment practice under Subsection 760.01 - 760.10 for an employer, employment agency, labor organization, or joint labor management committee to:

       1. Take or fail to take any action on the basis of religion, sex, national origin, age, handicap, or marital status, and 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.

    
    

45. The Florida Human Rights Act is patterned after Title VII of the Civil Rights Act of 19064, 42 U.S.C. Section 2000e-2. School Board of Leon County v. Weaver, 556 So.2d 443 (Fla. 1st DCA 1990). In Florida, there is a long-standing rule of statutory construction which recognizes that if a state law is patterned after a federal law on the same subject, the Florida law will be accorded the same construction as in federal courts to the extent the construction is harmonious with the spirit of the Florida legislation. O'Loughlin v. Pinchback, 579 So.2d 788 (Fla. 1st DCA 1991).

    
    

46. The Petitioner in this case has sought to establish a disparate treatment claim. In Department of Corrections v. Chandler, 581 So.2d 1183 (Fla. 1st DCA 1991), the Court specified the burden of proof for the Petitioner and the Respondent in such case of disparate treatment. The Court said:

    
    

    . . .The United States Supreme Court set forth a procedure essential for establishing such claims in McDonnell-Douglas Corp. v. Greene, 411 U.S. 792 Fla. S.Ct. 1817, 36 L.Ed.2d 668

    (1973), which was then revisited in detail in Texas Department of Community Affairs v.

    Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67

    L.Ed.2d 207 (1981).

    
    

    Pursuant to the Burdine formula, the employee has the initial burden of establishing a prima facie case of intentional discrimination, 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 one of persuasion which remains with the employee, it is required to persuade the trier of fact that its decisions was actually motivated by the reason given. If the employer satisfies the burden, the employee must then persuade the fact finder that the proffered reason for the employment decision was pretext for the 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 other ultimate burden of demonstrating by a preponderance of evidence that he or she has been the victim of intentional discrimination. [citations omitted.]

    
    

47. The Florida Commission on Human Relations has adopted federal standards for allocating the burden of proof in handicap discrimination claims as specified above. Accordingly, to prove a prima facie case, Petitioner must provide evidence that: (1) he was handicapped; (2) that he was able to perform his assigned duties satisfactorily; and (3) that despite each satisfactory performance, he was terminated. Retton v. Department of Corrections, 9 FALR 2423, FCHR Order No. 86-045, December 18, 1986, citing McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 37 L.Ed.2d 668 (1973); Wolfe v. Department of Agriculture and Consumer Services, 8 FALR 426 (FCHR Sept. 27, 1985).

    
    

48. The Petitioner has failed to establish that his condition, obesity, with associated sleep apnea is physiological in origin and his condition is not a handicap within the meaning of the Act. Save for religion, the discrimination on which discrimination laws focus are those that are either beyond the victim's power to alter or that impose a burden on an employee on one of the prohibited bases. Voluntary obesity with associated secondary complications does not come within the meaning of handicap as specified by the Act.

    
    

49. The Petitioner has failed to show that he performed or is able to perform his assigned duties satisfactorily. Additionally, under Retton, the Petitioner failed to show that he could perform the duties as radiology escort without a substantial risk of injury to himself.

    
    

50. There was no way to reasonably accommodate Petitioner in his position. The escort position was a single person position. Moreover, Petitioner would not be needed if someone was hired to assist him. Further, Petitioner could not be permitted to rest between transports. Petitioner's resting resulted in putting other employees behind in their work and radiology tests not getting done in a timely manner. Therefore, trying to accommodate Petitioner in the position would have been an undue hardship.

    
    

51. Respondent did reasonably accommodate Petitioner by affording him a medical leave of absence and paying eighty percent (80 percent) of the expenses of the weight loss program. Nevertheless, Petitioner rejected the accommodation when he quit the weight loss program after only 16 weeks of the 26 week program.

52. Respondent could have terminated Petitioner's employment once he quit the weight loss program without successful completion because he was "unqualified". Specifically, Petitioner still represented a potential risk of harm to himself.

    
    

53. Assuming, arguendo, Petitioner could prove a prima facie case, Respondent met its burden of proving that Petitioner could not safely and effectively perform his job. See Kelly v. Bechtel Power Corp., 633 F. Supp. 927 (S.D. Fla. 1986). Respondent took the steps necessary to reasonably determine that Petitioner could not perform the essential functions of his job without presenting a substantial risk of harm to himself. Respondent thoroughly familiarized itself with Petitioner's job requirements, and conducted a complete investigation that Petitioner represented a substantial risk of harm to himself in February 1989, and January 1990.

    
    

54. The Respondent's decision was made on an individualized case by case analysis as required by law. Mantolet v. Bolger, 767 F.2d 1416, 1422 - 23 (9th Cir. 1985). Moreover, Respondent relied on Petitioner's own personal physician for direction in this case.

    
    

55. Respondent changed Petitioner's status from medical leave to layoff in response to Petitioner's demands that he be given some source of income while attempting to complete the program.

    
    

56. Petitioner was not capable of returning to work as a radiology escort in July 1989, or January 1990, as Petitioner represented a substantial risk of injury to himself at those times.

    
    

57. In conclusion, Petitioner was not discriminated against on the basis of a handicap.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED THAT:

That a Final Order be issued which DENIES Petitioner's Charge of Discrimination.

DONE AND ENTERED this 26th day of May, 1993, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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 26th day of May, 1993.

APPENDIX

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Proposed Findings of Fact Submitted by Petitioner:

Petitioner did not submit proposed findings of fact Proposed Findings of Fact Submitted by Respondent:

Accepted in substance: paragraphs - 1, 2, 4-11, 18-20, 21(in part), 22-42,

45-49, 50 in part

Rejected as irrelevant or subsumed: paragraphs - 3, 12, 13, 14, 15, 16,

17, 21(in part), 43, 44

COPIES FURNISHED:

Robin E. Greiwe, Esquire

Thompson, Sizemore & Gonzalez, P.A.

109 Brush North Suite 200

Tampa, Florida 33602

Mr. Michael David Engleka 2826 Oak Lawn Avenue Apartment B

Largo, Florida 34641

Sharon Moultry, Clerk Commission on Human Relations

325 John Knox Road Building F

Suite 240

Tallahassee, Florida 32303-4149

Dana Baird, Esquire Commission on Human Relations

325 John Knox Road Building F

Suite 240

Tallahassee, Florida 32303-4149

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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL D. ENGLEKA, )

)

Petitioner, )

)

vs. ) CASE NO. 92-6338

) SUN COAST HOSPITAL, INC., )

)

Respondent. )

)

CORRECTION TO RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Daniel M. Kilbride, Hearing Officer with the Division of Administrative Hearings, on January 27, 1993, in Clearwater, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Michael David Engleka, Pro se

2826 Oak Lawn Avenue, Apartment B Largo, Florida 34641

For Respondent: Robin E. Greiwe, Esquire

Thompson, Sizemore & Gonzalez, P.A.

109 Brush North, Suite 200 Tampa, Florida 34641

PRELIMINARY STATEMENT

Petitioner filed a Petition for Relief from an unlawful employment practice with the Florida Commission on Human Relations on October 3, 1992. After referral to the Division of Administrative Hearings and the holding of a formal hearing, a Recommended Order was submitted to the Commission on May 26, 1993.

Subsequently, it has come to the attention of the Hearing Officer that a scrivener's error appears in paragraph 36, page 8 of the Recommended Order. Therefore, pursuant to the authority granted in Rule 60Q-2.032, Florida Administrative Code, a Hearing Officer may enter a corrected order at any time sua sponte to correct a clerical mistake or error.

In view of the foregoing, it is ORDERED:

That the Recommended Order, dated May 26, 1993, pertaining to the above- styled cause is corrected as follows:

Paragraph 36 of the Findings of Fact is corrected to read as follows:

36. Petitioner did receive unemployment compensation following the change of his status from medical leave of absence to layoff.

All other provisions of the Recommended Order shall stand as written.

DONE and ORDERED this 11th day of June, 1993, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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 11th day of June, 1993.

COPIES FURNISHED:

Robin E. Greiwe, Esquire

Thompson, Sizemore & Gonzalez, P.A.

109 Brush North Suite 200

Tampa, Florida 33602

Mr. Michael David Engleka 2826 Oak Lawn Avenue Apartment B

Largo, Florida 34641

Sharon Moultry, Clerk Commission on Human Relations

325 John Knox Road Building F

Suite 240

Tallahassee, Florida 32303-4149

Dana Baird, Esquire Commission on Human Relations

325 John Knox Road Building F

Suite 240

Tallahassee, Florida 32303-4149

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

MICHAEL D. ENGLEKA, )

)

Petitioner, )

) EEOC Case No. n/a

1. ) FCHR Case No. 89-8687

   ) DOAH Case No. 92-6338 SUN COAST HOSPITAL, INC., ) FCHR Order No. 94-007

   )

   Respondent. )

   )

   FINAL ORDER DISMISSING PETITION FOR RELIEF FROM AN UNLAWFUL

   EMPLOYMENT PRACTICE

   
   

   1. Panel of Commissioners

      
      

      The following three Commissioners participated in the disposition of this matter:

      
      

      Commissioner James Mallue, Panel Chairperson;

      Commissioner Judith Kavanaugh; and Commissioner Sandra Garcia.

      
      

   2. Appearances

      
      

      Petitioner Michael D. Engleka did not appear at the deliberations. For Respondent Sun Coast Hospital, Inc.:

      Robin E. Greiwe, Esquire

      Thompson, Sizemore & Gonzalez, P.A. Post Office Box 639

      Tampa, Florida 33601

      
      

   3. Preliminary Matters

      
      

      Michael D. Engleka, Petitioner herein, filed a complaint of discrimination with this Commission pursuant to the Human Rights Act of 1977, as amended, Sections 760.01-760.10, Florida Statutes (1991), alleging that Sun Coast Hospital, Inc., Respondent herein, unlawfully discriminated against him on the basis of handicap.

      
      

      In accordance with the Commission's rules, the allegations of discrimination were investigated and an Investigatory Report was submitted to the Executive Director who issued his determination finding reasonable cause to believe that an unlawful employment practice occurred. Formal efforts to conciliate this matter were unsuccessful.

      
      

      Petitioner filed a Petition for Relief from an Unlawful Employment Practice and the case was transferred to the Division of Administrative Hearings (DOAH) for the conduct of a formal proceeding.

      
      

      An administrative hearing was held in Clearwater, Florida, before DOAH hearing officer Daniel M. Kilbride, who issued a Recommended Order of dismissal.

      
      

      Pursuant to notice, public deliberations were held in Tampa, Florida, before the aforementioned panel of Commissioners, at which deliberations the panel determined the action to be taken upon the Petition for Relief.

      
      

   4. Findings of Facts

      
      

      The DOAH hearing officer's findings of fact are supported by competent substantial evidence. We adopt the hearing officer's finding of fact.

   5. Conclusions of Law

      
      

      The application of law is a correct disposition of this case. We adopt the overall legal conclusion holding that Respondent did not commit an unlawful employment practice. We do not adopt that portion of the legal conclusions holding that Petitioner Engleka failed to establish that he is an individual with a handicap.

      
      

      The impairments resulting from Petitioner's obesity, namely the sleep apnea and the labile hypertension, means that Mr. Engleka does not enjoy, in some measure, full and normal use of his sensory, mental, or physical faculties.

      Accordingly, he is an individual with a handicap within the meaning of Section 760.10, Florida Statutes (1991). Accord Stewart v. Wackenhut Corporation, 10

      F.A.L.R. 4624 (FCHR 1988), and Fenesy v. G.T.E. Data Services, Inc., 3 F.A.L.R. 1764A (FCHR 1981). In accordance with the Stewart case, even without proof that his obesity is physiological in origin, Petitioner meets the legal standards to be an individual with a handicap. Accord Cook v. State of Rhode Island, 10 F.3d 17, 2 AD Cases 1476 (1st Cir. 1993). We note that the hearing officer addressed the merits of this case and that the correct disposition was attained. Therefore, no reversible error occurred.

      
      

      With the above noted analysis incorporated, we adopt the hearing officer's conclusions of law.

      
      

   6. Dismissal

The Petition for Relief From an Unlawful Employment Practice and the Complaint of Discrimination are DISMISSED with prejudice.

Each party is advised of his right to petition the Florida District Court of Appeal for judicial review of this Final Agency Order. Such Notice of Appeal must be filed within 30 days of the date that this order is filed with the clerk of the Commission. Section 120.68, Florida Statutes, and Fla.R.App.P. 9.110(b).

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

BY:

Commissioner James Mallue, Panel Chairperson;

Commissioner Judith Kavanaugh; and Commissioner Sandra Garcia.

FILED this 21st day of March 1994, in Tallahassee, Florida.

Sharon Moultry

Clerk of the Commission

Copies furnished to:

Michael D. Engleka, pro se 2826 Oak Lawn Avenue Apartment #B

Largo, Florida 34641

Robin E. Greiwe, Esquire

Thompson, Sizemore & Gonzalez, P.A. Post Office Box 639

Tampa, Florida 33601

Daniel M. Kilbride, DOAH Hearing Officer Harden King, Legal Advisor

Docket for Case No: 92-006338

Orders for Case No: 92-006338