STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM E. BERGEN, )

)

Petitioner, )

)

vs. ) CASE NO. 93-5814

) BELLSOUTH TELECOMMUNICATIONS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on April 25 and 26, 1994, in Gainesville, Florida.

APPEARANCES

For Petitioner: George F. Schaefer, Esquire

The Liberty House

1005 Southwest 2nd Avenue Gainesville, Florida 32601-6116

For Respondent: Paul T. Stagliano, Esquire

Stephen T. Breaux, Esquire

675 West Peachtree Street, Northeast Suite 4300

Atlanta, Georgia 30375 STATEMENT OF THE ISSUE

Whether respondent is guilty of an unlawful employment practice as alleged by petitioner.

PRELIMINARY STATEMENT

This matter arose on March 2, 1993, when petitioner, William E. Bergen, filed a charge of discrimination with the Florida Commission on Human Relations alleging that respondent, BellSouth Telecommunications, Inc., had violated Section 760.10, Florida Statutes, by unlawfully failing to provide "reasonable accommodations" for his handicap. After the agency conducted a preliminary investigation, its executive director issued a Notice of Determination: No Cause on August 24, 1993. Petitioner then filed a petition for relief on September 22, 1993. In the petition, he contended that "my department did not make requested medical modifications or adhere to my medical restrictions like they have done for other employees with disabilities in my department." The matter was referred by the agency to the Division of Administrative Hearings on October 11, 1993, with a request that a Hearing Officer be assigned to conduct a formal hearing.

By notice of hearing dated November 9, 1993, a final hearing was scheduled on February 10, 1994, in Gainesville, Florida. At the parties' request, the matter was subsequently rescheduled to April 25 and 26, 1994, at the same location. On April 19, 1994, the case was transferred from Hearing Officer Charles C. Adams to the undersigned.

At final hearing, petitioner testified on his own behalf and presented the testimony of Patricia J. Peres and Judy LaSalle, both BellSouth employees.

Also, he offered petitioner's exhibits 1-49. All exhibits were received in evidence. Respondent presented the testimony of Rebecca P. Leynes, Sally B. Morgan, and Mary Swart, all BellSouth employees, Dr. Oregon K. Hunter, Jr., a clinical medicine rehabilitation physician, and Dr. Barry Kern, a board certified occupational medicine physician and accepted as an expert in occupational medicine. Also, it offered respondent's exhibits 1-18. All exhibits were received in evidence.

The transcript of hearing (three volumes) was filed on June 14, 1994.

Proposed findings of fact and conclusions of law were filed by both parties on June 30, 1994. A ruling on each proposed finding of fact is made in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based upon the entire record, the following findings of fact are determined:

1. This controversy involves an allegation by petitioner, William E. Bergen (Bergen or petitioner), that respondent, BellSouth Telecommunications, Inc. (BellSouth), refused to reasonably accommodate his handicap. BellSouth is an employer that employs fifteen or more employees and thus is subject to the Florida Civil Rights Act of 1992. BellSouth denies the allegation, and a preliminary investigation by the Florida Commission on Human Relations (Commission) found no probable cause that an unlawful employment practice had occurred.

   
   

2. Petitioner began his employment with BellSouth (then known as Southern Bell) in 1979. He was initially stationed in the Metro Dade service area (greater Miami area) but six months later was transferred to the North Dade service area. While employed in South Florida, Bergen briefly worked as an outside plant technician but soon changed to the position of service technician. In that position, he was required to install and repair residential and business telephone lines. In May 1990, Bergen moved to Gainesville, Florida, which lies within the North Florida Division of BellSouth. After taking a test, he began working in operator services on July 13, 1990.

   
   

3. An operator generally assists customers in placing calls, arranges credit for misdialed numbers, assists handicapped customers in dialing numbers, answers customer inquiries and performs other related tasks. At the Gainesville office, an operator sits or stands at one of a number of unassigned work stations, all having a standard size desk with a computer terminal and keyboard. At least two work stations have stand-up desks for those operators who choose to work in a standing position. All operators generally work a seven and one-half hour shift with one-half hour for meals. In Bergen's case, he usually worked the 3:30 p. m. - 11:30 p. m. shift. Except for Bergen, who stands six feet four and one-half inches tall, all other operators working in the Gainesville office were less than six feet. Thus, Bergen could not fit his knees underneath the standard size desk and the computer screens were not at eye level. Also,

   because his hands were so large, Bergen used an erasor rather than his fingers to key the keyboard. Until October 1992, petitioner says that, except for absences due to injuries to his lower back and eye, his attendance had been "perfect" over the prior 13-year period, and BellSouth did not dispute this contention.

   
   

4. BellSouth has a Benefits Administration Department, which makes determinations regarding an employee's disability status, as well as decisions regarding any medical restrictions that will be imposed upon an employee after returning to work. In doing so, that Department relies upon the treating physician's notes and "quite often" it requires the employee to have a functional capacity evaluation performed. In some cases, the employee is required to have an independent medical evaluation performed by another doctor. Finally, the Department relies upon advice from its own in-house medical consultant, Dr. Barry Kern, who is board certified in occupational medicine. As will be recounted in subsequent findings, in making a decision as to petitioner's status, the Benefits Administration Department relied upon the doctor's notes, a functional capacity evaluation, an independent medical evaluation, three work site evaluations by occupational therapists, and input from its in-house medical specialist.

   
   

5. In the latter part of October 1992, petitioner woke up one morning with his shoulder and neck "bothering" him. He continued to work that week but the condition became progressively worse. He eventually went to the emergency room at a local hospital on Friday, October 23, 1992. Petitioner was given pain medication and told to put his right arm in a sling. The following Monday, October 26, 1992, petitioner visited his family physician (Dr. Guillen) who believed he might be suffering from a pulled muscle. After returning to work, petitioner had his computer and keyboard moved to the left side of his desk so that he could rest his right arm on the desk and "key" the keyboard using his left arm.

   
   

6. Petitioner continued working with his left hand until Thanksgiving Day, November 26, but went home that day because he says he "couldn't stand the pain anymore." He called in sick the next day and began a week's vacation the following Monday. In early December, petitioner visited a chiropractic physician, who recommended that an MRI be performed and that petitioner consult a neurosurgeon. Accordingly, petitioner had an MRI performed and on December 3 visited a Gainesville neurosurgeon, Dr. Freeman. He was told by Dr. Freeman that he had probable cervical disc disease (multiple level cervical spondylosis), a condition that causes pain in the neck area, and a possible herniated disc in the C-5 and C-6 area. In layman's terms, cervical spondylosis means arthritis of the neck and wear and tear on the discs and small joints of the neck. It is a degenerative condition that comes with age and produces bony growth in the spine that can put pressure on nerves in the neck. Dr. Freeman suggested petitioner undergo physical therapy on a twice-weekly basis. Bergen did so beginning December 10. Because of his ailments, petitioner was placed on short-term disability leave with pay from December 7 until January 8, 1993.

   This type of leave is required when an employee is absent from work due to illness or injury more than seven consecutive days.

   
   

7. By January 5, 1993, Bergen was no longer experiencing any neck pain and he was able to "use (his) arms." Accordingly, he asked Dr. Freeman for permission to return to work. Dr. Freeman prepared a disability certificate authorizing Bergen to return to work effective January 11 and assume his "regular" work duties with no restrictions. When he returned to work that day, petitioner asked his second level manager, Rebecca P. Leynes, if he could be

   "loaned" from the operator services section to "outside forces" but Leynes declined to do so. Bergen then assumed his regular operator job duties.

   Because of pain in his arm and neck, however, he again went on short-term disability leave on January 20 and remained on leave with pay until February 3. During his absence, petitioner was treated by Dr. Freeman, who suggested that an occupational therapist evaluate his work site to determine what changes could be made to alleviate some of his discomfort.

   
   

8. The therapist visited the work site on January 25 and prepared a report the same date. The report recommended that BellSouth provide an anti-glare screen, provide a larger swivel desk chair at least twenty-two inches high, raise the desk to at least thirty-two inches to accommodate Bergen's height, place the keyboard at a forty-five degree angle, and "provide use of an adequate standing table daily."

   
   

9. Petitioner returned to work on February 3 and was told to use the stand-up position as an accommodation to his ailment. After a heated conversation with Leynes because no work station had been modified, Leynes advised him that the Gainesville operator services center was slated for two adjustable work surfaces but they were delayed for budgetary reasons since the center already had two stand-up positions. Leynes then proceeded to modify a

   stand-up work station for Bergen by raising the CRT, keyboard and multileaf to a height that she says was "comfortable to (petitioner)." She did this in part by placing six or seven reams of paper under the computer screen to raise it to eye level. Even so, Bergen left work early that day because of pain.

   
   

10. The next day, a nurse in the Benefits Administration Department telephoned Leynes and advised her that if Bergen had a disability, federal law required that his work station be modified. During a telephone conference call with the nurse and Leynes on February 5, Leynes' supervisor stated that if the company ordered special furniture for Bergen, it would have to accommodate every employee who had an injury. He raised the possibility of "effect(ing) a job change" for Bergen and changing the job requirements for an operator to exclude all persons over six feet. Finally, he told the nurse to advise her Department that he did not want to order the special equipment and set a precedent.

    
    

11. On February 4 petitioner again visited Dr. Freeman, who agreed to prepare a note suggesting that certain medical restrictions be imposed. The note stated that, based upon the therapist's recommendations and Dr. Freeman's own evaluation, petitioner should "be placed in a work environment where he can frequently change positions," the computer terminal should be placed at eye level, his chair should be raised high enough to allow partial weight bearing by the lower extremities, and "the keyboard should be positioned so as to avoid continued cervical flexion and rotation while operating the keyboard and viewing the terminal screen simultaneously." Dr. Freeman also recommended that Bergen be allowed ten minute breaks every thirty minutes during working hours. This note was faxed by Dr. Freeman to the Benefits Administration Department. The same day, Bergen telephoned a representative of that Department, Kathy Green, who told him a ten minute break was "excessive" but he would be authorized to take five minute breaks every thirty minutes.

    
    

12. Petitioner returned to work on February 5 and 6 and was counseled for poor attendance by his immediate supervisor. On those two days, he was given five-minute breaks every thirty minutes. On Monday, February 8, however, Leynes terminated the breaks since she says the Benefits Administration Department had never sanctioned them. When Bergen's union representative made a suggestion to Leynes that Bergen work only four hours per day, Leynes replied that such a

    restriction would have to come from his doctor. The next day, February 9, petitioner visited Dr. Freeman and obtained a "disability certificate" with the following restriction: "pt to work only 4 hours per day" in "light" as opposed to regular work duties. In a follow-up letter prepared on February 10, Dr.

    Freeman also suggested that BellSouth investigate the possibility of changing petitioner's job duties to provide him more mobility and less stress. The same day, a BellSouth nurse who observed Bergen at work commented that he was working in an incorrect job because of his size. The certificate of disability was given to Leynes, who referred it to the Benefits Administration Department for evaluation. That Department advised Leynes that such a restriction was not a "reasonable accommodation" under the Americans with Disabilities Act, it would reduce the productivity of the employee, and she should not honor the restriction.

    
    

13. After returning to work on February 11 for one day, petitioner took "excused time and vacation days" and was absent for six days. During this absence, he had a second MRI taken which reconfirmed his earlier diagnosis. On February 17, he returned to work. On February 18, he left work due to pain and was taken to the emergency room of a local hospital. On the same day, he was given a written disciplinary warning by Leynes for unimproved attendance. In conjunction with a worker's compensation claim filed by Bergen against BellSouth on February 18, he prepared an affidavit which stated in part that "(o)n February 9, 1993, my desk was raised eight inches. My computer, keyboard and chair were not raised." A copy of the affidavit was given to Leynes. While absent on and off between February 3 and February 25, he continued to be paid on what is known as temporary partial disability. On February 23, Dr. Freeman prepared another letter recommending that petitioner refrain from working at his current operator job until he could be evaluated by an orthopedic surgeon for reconstructive surgery versus continuation of conservative therapy. This letter was given to Leynes. As it turned out, the orthopedic surgeon agreed with the continuation of conservative therapy as previously recommended by Dr. Freeman, and this opinion is embodied in a letter from the surgeon dated March 18, 1993. Finally, on March 1, 1993, Bergen's personal physician prepared a letter stating that prolonged standing by Bergen had caused "significant varicosities and leg edema" which would get worse without measures to correct the prolonged standing.

    
    

14. With the approval of the Benefits Administration Department, Leynes began making modifications and ordering new equipment in order to accommodate petitioner's disability. Specifically, on February 9 the desk at one operator position was raised to thirty-two inches, a chair with a higher seat and larger seat pad was obtained as an interim measure, and a new, special adjustable chair was ordered on May 5. A glare-proof screen was obtained on February 16, the computer terminal was raised by placing several reams of paper under it, and the keyboard was placed at a forty-five degree angle. Finally, BellSouth created a modified stand-up position specially fitted for petitioner to allow him to alternate between a sitting and a standing position. Because these changes had not been completed by late February, and Bergen had missed his employer-arranged appointment with an ergonomics specialist as a follow-up to evaluate the changes to the work station, Bergen continued to be paid while on leave in February.

    
    

15. On March 2, 1993, petitioner filed a complaint of discrimination with the Commission alleging that (a) he was disciplined for absences relating to his disability, (b) he was denied reasonable accommodation in his position, and (c) he was discriminated against due to his disability and sex. In his petition for relief filed on September 22, 1993, however, he alleged only that BellSouth "did not make requested medical modifications or adhere to (his) medical restrictions like they have for other employees with disabilities in (his) department." As

    clarified by counsel at hearing, petitioner now contends that BellSouth failed to reasonably accommodate his handicap, which prevented him from working a regular, full-time job.

    
    

16. After the initial complaint of discrimination was executed by petitioner on February 25, 1993, he completely stopped working. At that time, Bergen was offered the opportunity to work only four hours per day, but he declined this offer saying he wanted to be paid disability leave for the other four hours and could not afford a part-time job. Thereafter, Bergen continued to be paid for his first seven days of absence, but he was then placed on furlough, which is a non-pay code, since he was not authorized by the Benefits Administration Department to be on sick leave. While absent from work in March, Bergen obtained a statement from a physical therapist recommending that he change his work position every thirty minutes and be granted a ten minute break twice an hour.

    
    

17. In early April 1993, petitioner was at risk of being dropped from the payroll due to his excessive absences. Pending further medical evaluation, and the opportunity to fully assess petitioner's medical condition, and perhaps motivated by the discrimination complaint, BellSouth decided to temporarily loan Bergen to its engineering department where he served as an engineering clerk from April 12 until November 1993. Prior to then, BellSouth had not seriously explored whether there were other positions to which petitioner could be transferred. In any event, this satisfied petitioner's earlier request that he be temporarily placed in another job which allowed him to be more mobile.

    During one week in July, however, Bergen temporarily worked half a day as an operator and the other half as an engineering clerk. By then, the modifications to the work station were in place. Afterwards, Leynes asked for his comments on the work station modifications and Bergen complained that his operator desk was still not high enough, the computer screen was not at eye-level, and the keyboard needed to be moved. Also, there was no longer a standing position available for him.

    
    

18. At the recommendation of Dr. Freeman, on August 18, 1993, petitioner was given an independent medical evaluation by Dr. Oregon K. Hunter, Jr., who specializes in clinical medicine rehabilitation. His diagnosis was cervical spondylosis without evidence of myeleopathy and possible bilateral cervical radiculopathy, which corresponded to Dr. Freeman's diagnosis. Because Dr. Hunter was unable to assess the modifications to Bergen's work station, he recommended that a further evaluation of Bergen's work station be made by an occupational therapist, and until that time, he be given "continued alternate duty." Also, he concluded that Bergen "will eventually be able to return to his operator duties, however, he may continue to experience pain and radicular symptoms even in a modified work station." BellSouth honored Dr. Hunter's recommendation and continued to allow Bergen to work as an engineering clerk pending the outcome of the work site evaluation.

    
    

19. On September 24, 1993, a work site evaluation was conducted by an occupational therapist who evaluated the best suited position for Bergen given his height and the appropriate placement of the video display terminal (VDT). The therapist recommended that when Bergen returned to his work station, the following modifications be made:

    
    

    1. Two reams of paper be kept under the VDT:

    2. A neoprene wrist support be provided to the leading edge of the table work surface

       on which Bergen could rest his forearms; and

    3. A foot rest be provided to allow Bergen to rest his feet.

       
       

       This report was forwarded to the Benefits Administration Department, and copies were also given to Drs. Freeman, Hunter and Kern.

       
       

20. In early November 1993, the Benefits Administration Department determined that petitioner was medically capable of performing in his job as an operator with the workplace modifications suggested in the most recent work site evaluation. That decision was made in consultation with Dr. Kern, who reviewed the medical information regarding Bergen, including the results of the independent medical examination by Dr. Hunter. Accordingly, on November 11, 1993, Leynes advised petitioner by letter that beginning November 28, 1993, he would be reassigned to his regular position in operator services. The letter noted that BellSouth had made the following accommodations:

    
    

    1. An adjustable sitting position with VOT height and wrist rest additions specified in the job analysis;

    2. A chair ordered specifically for his frame size;

    3. A foot rest;

    4. A glare-proof screen for his video display terminal; and

    5. Use of a standing position as needed for his comfort.

       
       

       The letter added that those accommodations would allow him to perform his job without special hours or work breaks.

       
       

21. Petitioner was officially reassigned to his operator position on November 28, 1993. Because Bergen used vacation leave, his first day back at work was actually on December 18, 1993. Three days later, Bergen says he again started "having problems," and the same day he visited Dr. Freeman who prepared another disability certificate certifying that petitioner could only return to "light" work duties subject, however, to the restrictions as outlined in the physical abilities assessment performed on March 30, 1993. The earlier assessment had recommended part-time, light duties. When the certificate was presented to Leynes, she said she could not honor those restrictions since the Benefits Administration Department had not approved the same, and he must continue working a full tour.

    
    

22. Because of continuing complaints by Bergen, BellSouth made arrangements for a functional capacity test to be given on December 28, 1993, by the Medical Rehab and Sports Medicine Center in Jacksonville to determine if permanent medical restrictions or limited work hours were appropriate. The report's assessment concluded in part that Bergen was

    
    

    functional to return to work within his demonstrated capacities; restricted heavy to very heavy labor category with unrestricted positional tolerances, although sitting as well as prolonged upper extremity forward reaching produces the greatest amount of pressure on the disc. His symptoms would be likely to increase with these positions/job tasks.

    In plainer terms, this meant that because petitioner's job category (operator) was considered "light," and the assessment indicated that Bergen could perform a job in the heavy labor category without restrictions, he could return to a modified work station without restrictions. In an addendum to the report issued on February 28, 1994, it was pointed out that "stationary static positions can result in limited flow of fluid through spinal facet joints and disc resulting in stiffness and decreased nutrition to joints and discs." Also, a recommendation was made that Bergen "frequently change position as frequently as possible, (i. e., every 30 minutes) and maintain an active exercise program." Otherwise, there was no impediment to Bergen assuming his regular duties. A copy of this report was given by BellSouth to Dr. Freeman, who was asked to consider the report in light of his most recent disability certificate prepared on December 21, 1993, and petitioner's continuing "complaints," even after modifications to his work station had been made.

    
    

23. Based upon the results of this latest test, Dr. Hunter concluded in a letter dated March 15, 1994, that petitioner should "be released to work based on the level of function that he demonstrated within that evaluation." In a second letter dated March 29, 1994, he concurred with a recommendation of Dr. Freeman that "job duties which require the use of (petitioner's) arms held in an extended position would probably exacerbate his symptoms and this would best be modified appropriately." As clarified at hearing, Dr. Hunter explained that petitioner should not extend his arms straight out while working, and he could not sit in one place continuously for hour after hour without being able to change positions. With proper ergonomic modifications and a certain degree of mobility, however, Dr. Hunter was of the opinion that petitioner could assume his regular job responsibilities without exacerbating his condition. Dr. Hunter further concluded that the physical condition was permanent, and that petitioner would likely experience pain the rest of his life, no matter what he did at work.

    
    

24. Although Dr. Freeman continued to recommend ten minute breaks every hour "if possible," he basically concurred in Dr. Hunter's ultimate recommendation and deferred to that doctor's judgment in terms of restrictions and limitations. At the same time, Dr. Kern concluded that ten minute breaks every hour are not medically necessary because petitioner's problem is in the neck and only neck mobility is required. According to Dr. Kern, petitioner has aggravated his condition by using improper work techniques at his work station, such as sitting with his arms outstretched. If this technique is corrected, petitioner should eliminate many of his problems.

    
    

25. On March 2, 1994, the Benefits Administration Department advised Bergen by letter that in view of the various medical evaluations and modifications to his work site, permanent medical restrictions, including a ten minute break every thirty minutes, were not appropriate. It is noted that since December 1993, Bergen had been given ten minute breaks every thirty minutes even though such breaks had not been approved by the Benefits Administration Department. The letter added that this conclusion was based on the fact that he "demonstrated no inability to function in a heavy duty job, let alone a sedentary job such as (his) present assignment." This information was reconveyed to Bergen in a meeting with Leynes on March 28, 1994.

    
    

26. At the time of hearing, BellSouth had only four operator vacancies in Gainesville and no vacancies in that office's engineering department. This is because there is relatively little employee turnover in the Gainesville office. Since 1993, petitioner has had on file requests (bids) to transfer to a position

    as an outside plant technician in Daytona, Gainesville, and Lake City, engineering clerk in Gainesville, and service technician in Gainesville. However, none of these positions have been open. In April 1994 the company offered to transfer Bergen to a vacant service technician position in Dade County but he declined to accept a transfer to that location.

    
    

27. Since March 9, 1994, and through the time of hearing, all of Bergen's absences from work have been without pay and coded as "FMLA" (Family Medical Leave Act). Under that federal law, which became effective on February 5, 1994, covered employees are authorized absences due to medical reasons of up to ninety days without pay. Therefore, by now, petitioner's authorized absences have probably ended.

    
    

28. In challenging the accommodations offered him, Bergen asserts that other BellSouth employees, all of whom happen to be female, were given accommodations consistent with the recommendation of their doctors after suffering injuries and illnesses. Such accommodations included part-time work and reassignment to other jobs within the company. All of these cases, however, are distinguishable from Bergen's situation. For example, Patricia Peres, formerly an operator but now a sales representative, received special accommodations after she suffered three ruptured discs and misaligned her pelvic area in an automobile accident in May 1989. Because of the severity of these injuries, Peres was absent from work for two months and then worked on a part- time basis for two weeks after returning. She reinjured her neck in another automobile accident in February 1994. At her doctor's request, and without requiring a second medical opinion, BellSouth allowed Peres to work only half days and take a five-minute break every thirty minutes until she fully recuperated.

    
    

29. Another operator, Judy LaSalle, had surgery in 1991 on her arms due to Degarian's disease and was forced to wear casts for five months on both arms from shoulder to wrist. After she returned to work, BellSouth agreed to her doctor's suggested weight lifting limitations, it placed ergoarms on her desk to rest her arms, and it allowed her to work a four-hour shift the first week, a six-hour shift the second week, and a seven and one-half hour shift the third week. Also, it authorized her to take work breaks every thirty or forty-five minutes. She is now back to work full time without restrictions.

    
    

30. Petitioner also noted that a former operator, Rosemary Jackson, was given medical restrictions in 1992. In that case, the employee had Crohn's Disease (an enlargement of the intestines) which necessitated numerous restrictions, and Jackson died a short time later. Finally, Linda Davis, a service representative, had a rheumatoid arthritis bilateral hip and was unable to climb stairs to her permanent job. Because of this condition, she was temporarily loaned for five months to another department where she was able to work on the ground floor.

    
    

31. Although Bergen continues to experience some degree of pain, his latest functional capacity evaluation places him in the "very heavy labor" category without restrictions. This means that he can engage in that category of work without medical restrictions. As a consequence, his present ability to engage in major life activities, such as work, is not substantially limited by his medical condition. In some measure, however, he does not enjoy the full and normal use of his physical facilities, and Dr. Hunter has established that the condition is permanent. Therefore, under this latter test, Bergen is a person with a handicap.

    CONCLUSIONS OF LAW

    
    

32. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes.

    
    

33. Subsection 760.10(1)(a), Florida Statutes, which governs this controversy, provides in pertinent part as follows:

    
    

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

       1. To . . . discriminate against any individual with respect to . . . terms, conditions, or privileges of employment because of such individual's . . . handicap . . .

    
    

34. The issues as framed by counsel are as follows. Petitioner contends simply that BellSouth failed to reasonably accommodate his handicap and thus he suffered discrimination with respect to the "terms" or "conditions" of his employment. In response, BellSouth argues that petitioner is not an individual with a disability, and even if he is, it provided reasonable accommodation through various modifications to his work station.

    
    

35. In determining whether Bergen is an individual with a disability (handicap), and is thus subject to the protection of subsection 760.10(1)(a), it is noted that the Commission has seemingly adopted a definition of handicap which "generally parallels that provided in the federal statute." Brand v. Florida Power Corporation, 633 So.2d 504, 510 n. 10 (Fla. 1st DCA 1994). Under the Americans with Disability Act (42 U.S.C. ss. 12101 et seq.), a disabled individual is one who has "a physical or mental impairment that substantially limits one or more of the major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment." 42 U.S.C.

    s. 12102(2). A major life activity is generally defined to include such things as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. In Bergen's case, he contends his ability to work is substantially limited.

    
    

36. By comparison, the Commission has long held that "a person with a handicap does not enjoy in some measure the full and normal use of his sensory, mental or physical facilities." See, e. g., Thomas v. Floridin Company, 8

    F.A.L.R. 5457, 5458 (FCHR, October 9, 1986). Arguably, the Commission's definition is much broader in scope that its federal counterpart. That is to say, it deems a person to be handicapped if he does not enjoy the full and normal use of his physical facilities "in some measure," as opposed to the federal requirement that the person be "substantially" limited in some respect. Thus, under the state test, anyone who does not enjoy the full and normal use of his physical facilities in some measure, no matter how small or limited, would ostensibly qualify as a handicapped person. While the federal definition appears to be the more preferable test, the Commission has specifically rejected the more narrow federal definition, at least in those cases arising before the adoption of the ADA. Thomas at 5458-59.

    
    

37. Using the state definition of a handicapped person, the established facts support a conclusion that petitioner qualifies as a handicapped person. This is because he suffers from cervical spondylosis and a herniated disc with associated pain and immobility, and as a consequence, he does "not enjoy in some

    measure the full and normal use of his . . . physical facilities." Accordingly, he is entitled to pursue this remedy.

    
    

38. In this surmountable barrier case, the employee has not been discharged or denied employment on account of a handicap. Rather, Bergen contends that he was never reasonably accommodated by his employer. Given this type of dispute, the traditional analysis used to test discrimination claims is inappropriate. Although neither party has articulated a test to be used under this factual scenario, it appears that Bergen must show, at a minimum, that he is handicapped, that with reasonable accommodations he could perform the essential functions of the job without endangering his health, and that the employer failed to provide the requested accommodations. If this burden is satisfied, the burden then shifts to BellSouth to rebut the prima facie case by showing that the accommodations offered were reasonable and enabled Bergen to perform the essential functions of his job without exacerbating his condition. Once this showing is made, the burden then shifts back to the employee to rebut that proof.

    
    

39. By showing that he was handicapped, that with certain accommodations he could perform the job of operator without further exacerbating his condition, and that BellSouth did not provide the accommodations recommended by his doctor, petitioner has established a prima facie case. In response to this showing, the evidence supports a conclusion that the accommodations offered by BellSouth were reasonable and enabled Bergen to perform the essential functions of his job without endangering his condition. As noted in previous findings, Bergen's work station was modified and new equipment ordered in accordance with recommendations from occupational therapists and physicians. When these changes were coupled with proper ergonomic techniques, they would assure that Bergen could assume his regular duties without limitation or fear of exacerbating his condition. Finally, once the work site modifications were in place, a transfer to a new position was not warranted, and BellSouth had no corresponding obligation to create a new position or "bump" another employee out of that position to accommodate Bergen. Because this showing was not persuasively rebutted, it must be concluded that no unlawful employment practice occurred.

    
    

40. Assuming the ultimate accommodations were reasonable, Bergen nonetheless argues that BellSouth violated subsection 760.10(1)(a) by failing to promptly accommodate him before his complaint was filed with the Commission on March 2, 1993. He contends that only after the complaint was filed did the employer begin to initiate changes. In this respect, the evidence supports a conclusion that, prior to March 1993, the employer acted reasonably under the circumstances. This conclusion is supported by the established facts that an occupational therapist examined the work site and recommended needed changes, Bergen was allowed to take paid disability leave, various modifications to his work station were initiated, and he was offered part-time work until his condition improved. Therefore, this contention is rejected.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order denying the petition

for relief.

DONE AND ENTERED this 22nd day of July, 1994, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5814

Petitioner:

1. Partially accepted in finding of fact 1. 2-3. Partially accepted in finding of fact 15.

4. Covered in conclusions of law.

Respondent:

1. Partially accepted in finding of fact 2.

2. Rejected as being unnecessary.

3. Partially accepted in finding of fact 7.

4. Partially accepted in finding of fact 5.

5. Partially accepted in finding of fact 6.

6. Partially accepted in findings of fact 4 and 6.

7. Partially accepted in findings of fact 8 and 14.

8. Partially accepted in finding of fact 17.

9. Partially accepted in finding of fact 18.

10. Partially accepted in finding of fact 20.

11. Partially accepted in findings of fact 20 and 21.

12. Partially accepted in finding of fact 25.

13. Partially accepted in finding of fact 16.

14. Partially accepted in finding of fact 26.

15-16. Partially accepted in findings of fact 23 and 24.

Note - Where a proposed finding of fact has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, not supported by the more credible and persuasive evidence, or a conclusion of law.

COPIES FURNISHED:

Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

Dana C. Baird, Esquire Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

George F. Schaefer, Esquire The Liberty House

1005 S. W. 2nd Avenue Gainesville, Florida 32601-6116

Paul T. Stagliano, Esquire Stephen T. Breaux, Esquire Suite 4300

675 West Peachtree Street, N. E. Atlanta, Georgia 30375

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency 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.

Docket for Case No: 93-005814

Orders for Case No: 93-005814