STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BARBARA LOEWE, )

)

Petitioner, )

)

vs. ) CASE NO. 93-5334

)

HILLSBOROUGH COMMUNITY )

COLLEGE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a formal hearing in this case on March 22, 1994, in Tampa, Florida.

APPEARANCES

For Petitioner: Raymond Haas, Esquire

Post Office Box 2151 Tampa, Florida 33601

For Respondent: Francis H. Sheppard, Esquire and

Charles P. Mitchell, Esquire Post Office Box 1873 Orlando, Florida 32802

STATEMENT OF THE ISSUES

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

PRELIMINARY STATEMENT

During 1992, Petitioner, Barbara Loewe, filed a complaint of discrimination against Respondent, Hillsborough Community College, alleging that she was discriminated against by Respondent in violation of the Human Rights Act of 1977, as amended. The Florida Commission on Human Relations (FCHR) conducted an investigation of Petitioner's complaint and by letter dated February 5, 1993, issued its determination: NO CAUSE. Petitioner was advised by FCHR that she could request that its executive director reconsider his determination which was done timely. FCHR reconsidered its determination and on June 9, 1993, issued its re-determination: NO CAUSE.

On September 13, 1993, FCHR transferred this matter to the Division of Administrative Hearings for the assignment of a hearing officer to conduct a formal hearing. Following responses from the parties, on October 7, 1993, this matter was noticed for hearing for December 9, 1993. The matter was thereafter twice continued on November 9, 1993, and on January 31, 1994. At that time, the

matter was scheduled for hearing for March 22, 1994 by the then Hearing Officer,

1. Lawrence Johnston. The matter was thereafter reassigned and heard by the undersigned on March 22, 1994. Following the hearing, the parties filed a joint stipulation for stay which resulted in an abeyance of this case through October 5, 1994, based on the parties' attempt to mediate a settlement without the filing of proposed recommended orders and the issuance of a recommended order. When the parties were unable to amicably resolve the matter and reported this development to the undersigned, on October 5, 1994, the parties were allowed until November 1, 1994, to file proposed recommended orders.

   
   

   The parties filed proposed recommended orders which were considered in preparation of this recommended order. Proposed findings of fact which are not incorporated herein are the subject of specific rulings in an appendix.

   
   

   FINDINGS OF FACT

   
   

   1. Petitioner is a speech professor employed in Respondent's communications department, formerly called humanities. Petitioner teaches at Respondent's largest campus, Dale Mabry. Petitioner is the only full time speech professor at Dale Mabry. Petitioner has been so employed by Respondent since approximately 1969 and she is tenured.

      
      

   2. In May, 1992, Petitioner filed a discrimination charge against Respondent with FCHR alleging that she was discriminated against by Petitioner based on her disabilities in violation of Section 760.10, Florida Statutes.

      
      

   3. The parties stipulated that the issue for final hearing was limited to a charge that Respondent refused to allow Petitioner an opportunity to teach an intensive tandem weekend course for additional compensation in the fall of 1991.

      
      

   4. Petitioner has been otherwise provided with a satisfactory class schedule meeting her contractual teaching requirements. Likewise, Respondent has offered her the classes she is entitled to teach beyond her minimum required load for additional compensation ("overload" classes). Her dispute with Respondent is that she was not allowed to select the specific overload course that she requested in 1991.

      
      

   5. The collective bargaining agreement between the parties governs the class schedules of faculty members. A faculty member's regular contractual load for the fall or spring semester consists of a total of fifteen credit hours. These fifteen credit hours may include, but are not limited to, such variations as (a) five three-credit classes or (b) four three-credit classes and three one- credit classes.

      
      

   6. A faculty member may teach "overload" classes beyond the regular contractual load and receive additional compensation. Overload classes are, however, optional. Pursuant to the agreement between the parties, no faculty member has a right to select which class they will teach as an overload.

      
      

   7. Petitioner was involved in an on-the-job accident at the college on January 25, 1988. At the time of the accident, Petitioner was already handicapped and mobility impaired. Petitioner had previously sustained a back injury from a slip and fall incident that injured and weakened her shoulder.

   8. The January 25, 1988 accident caused injuries which required two major operations. The first operation was on December 8, 1988 to repair a torn rotator cup in her shoulder and the procedure involved the removal of part of her clavicle. The second surgical operation was in October, 1990, a lumbar laminectomy in which Dr. Ralph Rydell removed a disc from Petitioner's spine.

      
      

   9. Petitioner returned to full time employment with Respondent in January 1991; however, she remained under the care and treatment of Dr. Rydell during 1991.

      
      

   10. Petitioner describes her health as "spotty". Some days she feels pretty good and other days she feels like she should be "flushed". Petitioner's stamina is "very fragile".

       
       

   11. Petitioner requested and received the "intensive weekend class" as an overload teaching assignment for the spring 1991 semester. However, shortly before the class was to begin, Petitioner asked to be released from teaching it due to her poor physical condition. Petitioner "did not feel that she could do it and didn't feel it would be fair to try it without being able to complete it." Respondent excused her from the assignment.

       
       

   12. Petitioner also requested to be excused from the college graduation ceremonies in 1991 and 1992, due to her poor health.

       
       

   13. Petitioner submitted memos to the college in May 1991 stating that her attendance at the 1991 graduation ceremony would "endanger" her health. She also related that her poor physical condition precluded prolonged sitting and standing. Petitioner also submitted a May 7, 1991 letter from her personal physician, Dr. Rydell, to the effect that she should have bed rest when she is not actively working. Petitioner submitted a similar request in April, 1992 regarding the May, 1992 graduation ceremony. Petitioner advised that she could not attend the graduation, even in a wheelchair, because it hurt her back too much. The graduation ceremony lasts from one to two hours.

       
       

   14. Petitioner admitted that in 1991 and 1992, she needed a compact class schedule to allow her large blocks of time to rest. A three hour break between classes was insufficient and classes spread throughout the day would not allow her the proper time to rest. If Petitioner were required to work many hours without a break, she would experience health problems and she needed to elevate her feet periodically. Petitioner could not teach four or five classes back to back and she needed a class schedule where there were breaks every hour or every hour and a half. If Petitioner were required to remain on campus for 10 to 12 hours, it would be detrimental to her health.

       
       

   15. Respondent denied Petitioner's request to teach a weekend intensive course in the fall 1991 semester on the basis that Petitioner's physical condition was not good enough to sustain that schedule. This was so based on the fact that Petitioner had been granted the opportunity to teach that same intensive weekend course during the spring of 1991, but was granted permission to be relieved from it due to health problems. There was no evidence presented that Petitioner's health had improved to any significant degree. The weekend course required a three and one half (3 1/2) hour session on Fridays and nine

       (9) hour sessions on Saturday and Sunday for two consecutive weekends.

   16. An employee who requests an accommodation based on a purported disability is commonly asked by the college to be examined by a physician selected by the college in order to evaluate the employee's needs. Accordingly, after receiving Dr. Rydell's letter asking that Petitioner be granted a compact schedule, Respondent sent Petitioner to Dr. Raphael Rodriguez for an examination. After examining Petitioner, Dr. Rodriguez prepared a report dated August 19, 1991, which listed Petitioner's chief complaints, her past medical history, the results of his neurological examination and assessment, and his recommendation.

       
       

   17. Dr. Rodriguez's report concludes that Petitioner has post laminectomy syndrome, chronic left sided L5 radiculopathy and probable diffused diabetic neuropathy. Dr. Rodriguez's report references Petitioner's complaint about her class schedule and the fact that she only had a two hour break in which to rest after driving home from campus and before having to return for her next class. Based on his report, Dr. Rodriguez recommended that Petitioner's schedule for Monday, Wednesday and Friday consist of classes that began at 8:00 a.m., and end by 12:00 noon.

       
       

   18. Petitioner is in agreement with Dr. Rodriguez's conclusion that she needed to have a compact schedule in 1991.

       
       

   19. Diana Yeager was director of Humanities at Dale Mabry and was Petitioner's supervisor for two years beginning through July, 1991. To resolve the issues regarding Petitioner's fall 1991 schedule, Mrs. Yeager met with Petitioner sometime prior to August 15, 1991.

       
       

   20. Ms. Yeager offered Petitioner a three-credit overload speech course which met on Thursday evenings for her fall 1991 overload but Petitioner refused the course because it violated the contractual requirement that at least 12 hours separate a faculty member's last class on one day and their first class the next.

       
       

   21. Upon receiving Dr. Rodriguez's August 15, 1991 report, Respondent's administration scheduled another meeting for August 23, one day prior to the beginning of the fall semester. The college's executive vice-president, Dr. Diana Ferreria, chaired the August 23, 1991 meeting. Dr. Ferreria oversaw the scheduling process at the Respondent's various campuses. Petitioner, along with Diana Yeager, Dr. Ferreria, Dr. Julie Orvis and Ms. Kaye Shannon attended the meeting. Ms. Shannon and Ms. Orvis were faculty union representatives who acted on Petitioner's behalf.

       
       

   22. During the August 1991 meeting, the college completely restructured Petitioner's schedule for the fall 1991 semester based upon Dr. Rodriguez's recommendations. One of the issues at the meeting was Petitioner's demand for the tandem intensive weekend course as an overload assignment for the fall. Dr. Ferreria advised Petitioner and her union representatives that she did not think Petitioner should teach the intensive overload course because it would violate the limits proposed by Dr. Rodriguez. Additionally, the long hours required by the weekend course would be inconsistent with Petitioner's assertion that her health could not withstand the two hour graduation ceremony and her requirement for a compact schedule with long rest periods.

       
       

   23. As a result, Dr. Ferreria believed the intensive weekend course would be detrimental to Petitioner's health and denied her request for the tandem course.

   24. During the August 23, 1991 meeting, Petitioner, Ms. Shannon and Ms. Orvis proposed a schedule for fall 1991 that violated the contractual provision requiring at least 12 hours between the last class on one day and the first class on the next day. This was the same provision that Petitioner cited when she earlier rejected an overload assignment consisting of three one-credit courses. When Dr. Ferreria pointed this out, Petitioner waived the requirement to get the schedule she wanted. Although Petitioner relied on the 12 hour rule to avoid one credit courses, she subsequently confirmed that she "would willingly waive" the rule to obtain the three credit classes she preferred.

       
       

   25. If Petitioner had been granted leave to teach the intensive weekend overload course, when taught along with her regular contractual load during the week, Petitioner would have been required to teach seven days a week for two consecutive weeks. In fact, Petitioner would have been forced to teach nineteen

       (19) consecutive days.

       
       

   26. Petitioner did not claim that any individual at the college made any decisions regarding her employment out of either bad faith or animosity.

       
       

       CONCLUSIONS OF LAW

       
       

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

       
       

   28. The parties were duly noticed pursuant to Chapter 120, Florida Statutes.

       
       

   29. The parties stipulated that Section 760.10, Florida Statutes, governs the issues raised in the final hearing. While the Florida Human Rights Act of 1992 amended Section 760.10 Florida Statutes, that act "only applies to conduct occurring on or after October, 1992." Laws of Florida 1992, Chapter 92-177, Section 13; see also Bender v. Salvation Army, 830 F.Supp. 1454, 1456 (Middle District of Florida, 1993). Since Petitioner filed her charge of discrimination with FCHR in May, 1992, complaining of acts and conduct during 1991, the Florida Human Rights Act of 1977, Section 760.10, Florida Statutes (1991), governs this action rather than the Florida Human Rights Act of 1992.

       
       

   30. Pursuant to Section 760.10(8)(a), Florida Statutes (1991), it is not an unlawful employment practice to "take or fail to take any action on the basis of . . . handicap . . . in those certain instances in which . . . absence of a particular handicap . . . is a bona fide occupational qualification reasonably necessary for the performance of the particular employment to which such action or inaction is related."

       
       

   31. When an employer denies an employee a job assignment on the basis of an employee's disability, the proper standards for judging whether there has been a violation of Section 760.10, Florida Statutes are the criteria under Section 504 of the Florida Rehabilitation Act of 1973 (29 U.S.C. Section 794) and the federal regulations and case law interpreting the Act. Brand v. Florida Power Corporation, 633 So.2d 504 (Fla. 1st DCA 1994). The ultimate test on whether an employer properly denied an employee a job assignment under Section 760.10, Florida Statues, is:

       
       

       whether the handicapped person who meets all the employment criteria except for the challenged discriminatory criteria "can

       perform the essential functions of the position in question without endangering the health and safety of the individual or others." Brand at 508-509.

       
       

   32. The overall burden of persuasion on the ultimate issue of whether the employee can perform the essential functions of the particular job remains with the employee. First, the employee must establish a prima facie case of employment discrimination by establishing that she was denied a position due to her disability even though she was otherwise qualified for the position. If the employee establishes a prima facie case, then the burden of providing evidence to articulate why the disability is relevant to the job qualifications and that the employee's medical limitations prevent her from safely performing the job shifts to the employer.

       
       

   33. The employer is not required to alter fundamentally its program to overcome the employee's physical limitations. Brand, supra at 512. The employer must articulate "a stereo-type-free assessment of the person's abilities and prospects rather than a correct decision". Brand, at 508. The employer's decision is nondiscriminatory if it is based upon "reason and medically sound judgements." Likewise, an employer is not required to give an employee a "trial run" at the job in question to determine if the employee's bad back will prevent her from performing the duties of the job without further injury. See, School Board of Pinellas County v. Rateau, 449 So.2d 839 (Fla. 1st DCA 1984).

       
       

   34. Once the employer offers evidence of valid reasons for its employment decision, the employee cannot remain silent and must offer evidence establishing her ability to perform the job within the restrictions imposed or recommended by her treating or examining physicians.

       
       

   35. The greater weight of the evidence establishes that the Petitioner was not physically able to teach the intensive weekend course as an overload in the fall 1991 semester.

       
       

   36. The Petitioner failed to establish that she was unlawfully denied the opportunity to teach overload courses in the fall of 1991. Although Petitioner was not satisfied with the specific overload courses offered, she received her full rights and benefits under the faculty union/college contract. Under the contract, each faculty member has the right to receive a certain amount of overload but not specific overload classes. Consequently, Petitioner has not met her burden of establishing a prima facie case of discrimination.

       
       

   37. Assuming arguendo that Petitioner established a prima facie case, the Respondent offered sound medical reasoning supporting its conclusions that Petitioner's disability disqualified her from teaching the intensive weekend course. First, Petitioner repeatedly demanded accommodations on the basis that her poor health and serious physical limitations, including lack of stamina, the inability to sit or stand for prolonged periods of time and the need for frequent and long rest periods, even demanding to be relieved from the annual two hour graduation ceremony in 1991, all on the basis that her physical limitations made her attendance to such activities hazardous and painful.

       
       

   38. Also, recommendations by both Petitioner's treating physician and an independent examining physician selected by Respondent established that Petitioner's health necessitated a compact schedule with large blocks of time to rest. The Respondent established that the intensive weekend course lasts for

       three and one half (3 1/2) hours on Friday night and nine (9) hours on both Saturday and Sunday for two (2) consecutive weekends. This would require Petitioner to teach nineteen (19) consecutive days without a break. For each of the two (2) weeks, she would have classes spread over a twelve (12) hour day on Friday followed by two straight nine (9) hour days on Saturday and Sunday and again followed by her regular weekly class load beginning on Monday morning.

       
       

   39. Petitioner failed to rebut Respondent's evidence by establishing how, with accommodations, she could teach the weekend course within the limitations recommended by her doctor and Respondent's examining physician. The intensive weekend course has long uninterrupted hours and it is difficult to anticipate how Petitioner's need for short blocks of class time and long rest periods could be accommodated without completely altering the fundamental nature of the weekend course.

       
       

   40. Consequently, Petitioner has failed to meet her burden of proving unlawful discrimination on the basis of Respondent's refusal to allow her to teach the fall 1991 intensive weekend course. Finally, there has been a complete absence of discriminatory motive in Respondent's denial of Petitioner's request to allow her to teach the fall 1991 intensive weekend course. By contrast, the evidence established that the Respondent's administrators made earnest and reasonable attempts to accommodate Petitioner's demands and needs.

RECOMMENDATION

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

The Florida Commission on Human Relations issue a final order finding that Respondent, Hillsborough Community College, committed no unlawful employment practice with regard to Petitioner during the fall of 1991 and dismiss Petitioner's discrimination charge in its entirety.

RECOMMENDED this 28th day of February, 1995, in Tallahassee, Leon County, Florida.

JAMES E. BRADWELL

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 28th day of February, 1995.

APPENDIX

The following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact.

Paragraph 1, adopted as modified, paragraph 3, Recommended Order. Paragraph 8, rejected, contrary to the greater weight of evidence,

paragraphs 9, 11, 17 and 18, Recommended Order.

Paragraph 9, rejected, unnecessary.

Paragraph 13, rejected, contrary to the greater weight of evidence, paragraph 25, Recommended Order.

Paragraphs 14 and 15, rejected, irrelevant.

Respondent's Proposed Findings of Fact.

Paragraph 6, rejected, unnecessary. Paragraph 12, rejected, unnecessary.

Paragraph 13, rejected, irrelevant and unnecessary. Paragraph 27, rejected, unnecessary.

Paragraphs 28-35, rejected, unnecessary. Paragraphs 39-43, rejected, unnecessary. Paragraph 47, rejected, unnecessary.

COPIES FURNISHED:

Raymond Haas, Esquire

P.O. Box 2151

Tampa, Florida 33601

Francis H. Sheppard, Esquire

P.O. Box 1873

Orlando, Florida 32802

Sharon Moultry

Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana Baird, General Counsel Human Relations Commission

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 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 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.

Docket for Case No: 93-005334

Orders for Case No: 93-005334