STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MALCOLM L. DEANE, II, )

)

Petitioner, )

)

vs. ) CASE NO. 92-7514

) FLEET TRANSPORT COMPANY, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

On March 1, 1993, a formal administrative hearing was held in this case in Tallahassee, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Malcolm L. Deane, II, pro se

727 Brook Street

Largo, Florida 34640 For Respondent: No Appearance

STATEMENT OF THE ISSUES

The issue in this case is whether the Petition for Relief, charging the Respondent with illegal discrimination on the basis of a perceived handicap (a history of back surgery and mild hypertension), should be granted.

PRELIMINARY STATEMENT

The record in this case reveals that the Petitioner, Malcolm L. Deane, II, filed with the Florida Commission on Human Relations (FCHR) a Charge of Discrimination against the Respondent, Fleet Transport Company, Inc., on or about June 11, 1991. The Charge of Discrimination alleged illegal discrimination on the basis of a perceived handicap (a history of back surgery and mild hypertension). The Charge of Discrimination was assigned FCHR No. 91- 6242.

The Charge of Discrimination was investigated, and on or about August 18, 1992, the FCHR issued a Notice of Determination: Cause, i.e., a determination was made that there was reasonable cause to believe that unlawful discrimination had occurred. On or about September 28, 1992, the FCHR issued a Notice of Failure of Conciliation, and the Petitioner filed with the FCHR a Petition for Relief on or about October 29, 1992. On or about December 21, 1992, the FCHR forwarded the Petition for Relief to the Division of Administrative Hearings for formal administrative proceedings under Section 120.57(1), Fla. Stat. (1991).

When neither party responded to the Initial Order in the case, a Notice of Hearing was issued on February 1, 1993.

The Respondent failed to appear for the final hearing. The Petitioner appeared and testified in his own behalf. The Petitioner also had Petitioner's Exhibits 1 through 4 admitted in evidence. Neither party ordered the preparation of a transcript of the final hearing, and neither party filed a proposed recommended order.

It should be noted that the FCHR Determination: Cause in this case refers to the position the Respondent took in the investigative phase of the case that "the expense involved to prepare a response was greater than the relief to which Complainant would be entitled." It also included a footnote reference to advice given by the Respondent that "it has petitioned for relief under Chapter 11 of the United States Bankruptcy Code." But the Respondent made no suggestion during the course of this formal administrative proceeding that this proceeding was stayed by the bankruptcy proceeding. Cf. also Finding of Fact 11.

FINDINGS OF FACT

1. On or about April 30, 1991, the Petitioner, Malcolm L. Deane, II, applied for a job as a tanker driver with the Respondent, Fleet Transport Company, Inc., at its Tampa, Florida, terminal. Tankers transport gasoline, which is classified as a hazardous material.

   
   

2. The Respondent hired the Petitioner, who had extensive tanker experience, conditioned on passing the physical and written examinations required by the Florida Department of Transportation (the DOT). He passed the written examination.

   
   

3. The Respondent's physician examined the Petitioner and determined that the Petitioner had mild hypertension, which the Petitioner believes was caused by stress in his personal life at the time. Under DOT guidelines, a systolic blood pressure reading of between 161 and 180, or a diastolic blood pressure reading of between 91 and 104, is considered mild hypertension. The Petitioner's blood pressure was 140/104.

   
   

4. In accordance with DOT regulations, the physician qualified the Petitioner to drive a tanker for three months, during which time the Petitioner would be required to reduce his blood pressure to 160/90, or better, in order to continue to be qualified, physically, to drive a tanker.

   
   

5. The Respondent's physician also prepared a medical report of his examination of the Petitioner. In it, he not only reported the Petitioner's mild hypertension, he also reported that the Petitioner had back surgery January 3, 1991, which was "O.K. now," and made the comment: "I advise Mr. Malcolm [sic] to refrain from doing heavy lifting due to his recent back surgery."

   
   

6. After the Petitioner's back surgery, the Petitioner successfully attended an eight-week back school and was released by his physician on or about March 6, 1991, to return to work driving a truck full-time with no restrictions.

   
   

7. Once the Petitioner received his three-month Medical Examiner's Certificate, the Respondent hired him. He started training, with another driver, on May 1, 1991. Training continued on May 2, 3 and 4, 1991. After a day off, the Petitioner began working solo. He worked May 6, was off the next day, worked May 8 and 9, was off the weekend of May 10-12, and worked May 13

   through 21, at which point he was "out of hours" for the month under DOT regulations and was required to take off.

   
   

8. Throughout his work with the Respondent, the Petitioner's work was satisfactory and merited commendations and exhortations to keep up the good work. Neither his mild hypertension nor his back hampered his ability to perform the work in any way.

   
   

9. At the end of the work day on May 21, 1991, the Respondent's terminal manager approached the Petitioner to tell him that the Respondent was terminating his employment. The manager conceded that the Petitioner's work had been excellent but that the company considered him a medical risk the company could not afford to take, due to the mild hypertension and the prior back surgery. The Petitioner was able to confirm through others in the company what the terminal manager had told him.

   
   

10. The Respondent pays its drivers between $500 and $550 a week. The Petitioner was unemployed for four weeks after the Respondent terminated him. (He did not collect unemployment compensation.) He then got a job as a heavy equipment operator for a landfill, making $330 a week. Under the circumstances of his discharge, he does not seek to be rehired by the Respondent. He believes that his discharge by the Respondent has made it impossible for him to be hired by any other company as a tanker driver.

    
    

11. On or about August 30, 1991, the Respondent (and other related companies) filed a petition for relief under Chapter 11 of the federal Bankruptcy Code and became a protected debtor in possession. Creditors were given notice of commencement of the proceeding and notice of the possible operation of Section 362 of the Bankruptcy Code (which prohibits some creditors from taking certain actions against a debtor in possession).

    
    

    CONCLUSIONS OF LAW

    
    

12. Section 760.10(1), Fla. Stat. (1991), makes it illegal to discharge or otherwise to discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment because of the individual's handicap (among other things). Section 760.10(10)-(14) sets out an administrative remedy for violations.

    
    

13. In a case such as this, the Petitioner initially has the burden to prove a prima facie case of illegal discrimination. If a prima facie case is proven, the burden shifts to the Respondent to articulate legitimate nondiscriminatory reasons for the disparate treatment or adverse action taken against the Petitioner. Then the burden returns to the Petitioner to prove that the articulated reasons are a mere pretext for intentional discrimination. See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981).

    
    

14. It is not clear that the Petitioner's history of back injury and mild hypertension amounted to a "handicap," as the term is used in Section 760.10, Fla. Stat. (1991). Cf. Final Order, Hydu v. Arab Pest Control, FCHR Case No. 80-0592, entered December 1, 1982. But the Petitioner made a prima facie case that the Respondent perceived the Petitioner to be handicapped as a result, at least for purposes of employment as a tanker driver for the Respondent.

    
    

15. In order to prove a case of discrimination based on a handicap, it is necessary to prove treatment different from other similarly situated employees

    without a handicap, or perceived handicap. See Final Order, Cabany v. Hollywood Memorial Hospital, DOAH Case No. 89-0237, entered January 11, 1990; Final Order, Felix v. Florida Real Estate Comm'n, 3 F.A.L.R. 2206A, 2207A (FCHR 1981). In this case, the Petitioner made a clear prima facie case that the Petitioner was treated differently than other employees who were not handicapped, or perceived to be handicapped.

    
    

16. Once the Petitioner proved a prima facie case that he was discriminated against on the basis of a handicap, or perceived handicap, the burden shifted to the Respondent to articulate legitimate nondiscriminatory reasons for the disparate treatment or adverse action taken against the Petitioner. See Texas Dept. of Community Affairs v. Burdine, supra.

    
    

17. Section 760.10(8)(a), Fla. Stat. (1991), provides that it is not an unlawful employment practice under Section 760.10(1) to take or fail to take any action on the basis of a handicap in those certain instances in which the handicap is a bona fide occupational qualification (BFOQ) reasonably necessary for the performance of the particular employment. The Respondent has the burden to prove a BFOQ defense. See United States v. Gregory, 818 F.2d 1114 (4th Cir. 1987).

    
    

18. Not having appeared for final hearing, the Respondent neither met its burden to articulate legitimate nondiscriminatory reasons for the disparate treatment or adverse action taken against the Petitioner, nor proved a BFOQ defense.

    
    

19. Section 760.10(13), Fla. Stat. (1991), provides that when an unlawful employment practice is found to have occurred, the Florida Commission on Human Relations shall issue an order prohibiting the practice and providing affirmative relief from the effects of the practice. Under the facts of this case, back pay in the amount of $2,000 is the appropriate affirmative relief. The Petitioner contends that the Respondent's wrongful conduct also resulted in him being unable to gain employment with another company as a tanker driver, costing him approximately $200 a week in lower salary for the 22 months up to the final hearing. But, if so, that would be the proximate result of the other companies' wrongful failure to hire moreso than a residual effect of the Respondent's conduct.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a final order granting the Petition for Relief filed in this case, prohibiting the Respondent from the practice of discriminating against the Petitioner on the basis of a perceived handicap, and requiring the Respondent to pay the Petitioner $2,000.

RECOMMENDED this 26th day of March, 1993, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 March, 1993.

COPIES FURNISHED:

Malcolm L. Deane, II 727 Brook Street

Largo, Florida 34640

Norman Block, Esquire Spengler Carlson Gubar

Brodsky & Frischling

520 Madison Avenue

New York, New York 10022

Ronald M. McElrath Executive Director

Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1570

Dana Baird, Esquire General Counsel

Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1570

Margaret Jones Clerk

Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1570

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the Florida Commission on Human Relations 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 consult with the Florida Commission on Human Relations concerning its rules on the deadline for filing exceptions to this Recommended Order.

Docket for Case No: 92-007514

Orders for Case No: 92-007514