JORGE R. PACHECO, )
vs. ) CASE NO. 93-5819
Respondent. )
A hearing was held in this case in Tampa, Florida on February 22, 1993, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.
For Petitioner: Norman A. Palumbo, Jr. Esquire
For Respondent: Terry Rinehart, Qualified Representative Aircraft Service International, Inc.
The issue for consideration in this hearing is whether Petitioner was unlawfully discharged from employment with Respondent because of his handicap, (diabetes).
On March 11, 1993, Petitioner filed a complaint with the Florida Commission on Human Relations alleging that he had been unlawfully discharged from his employment with the Respondent because of his handicap. After investigation, on August 19, 1993, the Commission filed its Determination of No Cause in the above matter, and on September 20, 1993, Petitioner filed his Petition for Relief From an Unlawful Employment Practice, alleging again that his discharge by Respondent was unlawful, having been based on his handicap. The matter was thereafter forwarded to the Division of Administrative Hearings, and on November 3, 1993, the undersigned set the case for hearing on February 22, 1994, at which time it was held as scheduled.
At the hearing, Petitioner testified in his own behalf and presented the testimony of Dr. Ricardo Santayana, an expert in internal medicine. Petitioner also introduced Petitioner's Exhibits 1 through 6. Respondent presented the
testimony of Sam McClure, its station manager at Tampa International Airport; Grady G. Wells, manager of its cabin services division; and Cynthia G. Amorelli, a secretary in the cabin services division. Though Respondent referred to numerous pieces of documentation during the presentation of its case, it failed to offer any of them into evidence.
No transcript was provided. Subsequent to the hearing, Counsel for Petitioner submitted a closing statement on Petitioner's behalf which has been carefully considered in the preparation of this Recommended Order. No matters were submitted by Respondent.
At all times pertinent to the allegations herein, Petitioner was employed as a cabin services attendant by the Respondent, Aircraft Service International, Inc., at the Tampa International Airport. For the most part, he was working the 8:00 PM to 5:00 AM shift.
Petitioner started working for Respondent in October, 1988. His duties were to maintain both the inside and outside of commercial passenger aircraft, the owners of which had contracted with Respondent for their cleaning, servicing and supply. When he was first hired by Respondent, Petitioner was given training in the requirements of his duties by video tape. The language used was English and Petitioner is not fluent in English. Nonetheless, he was able to understand the requirements of his job from observing the video and what was depicted thereon. The duties did not change over the approximately 4 years he worked for the Respondent. Petitioner claims that the majority of his duties were outside the aircraft.
At the time of his employment, Petitioner was also furnished with several documents, all of which were in English, and none of which did he understand. He signed them all, however, on the recommendation of his friend who had brought him to the company and assisted him in getting the job. Other documentation was explained to him by Mr. Goerbelini, one of his supervisors. At no time, however, did Petitioner feel comfortable with the use of English, and he relied upon others to explain to him what he was signing when any documentation was given to him for signature.
Petitioner claims that throughout the entire period he was employed by Respondent he was never late for work. Notwithstanding that claim, Petitioner admitted having received one counselling form and one letter of warning, both of which, it appears, referred to his continuing tardiness and absenteeism. The absenteeism did not begin, however, until toward the end of his employment. Company records show that during 1990 he was absent only 5 days, all of which were sick days. In 1991 he was also absent for 5 sick days. In 1992, however, he was absent 22 days, of which 14 are reflected as sick days, and this was prior to his termination from employment in September, 1992.
Petitioner claims that he had no trouble with his coworkers and was satisfied with his job. His performance was described as adequate when he was on duty, and he was never disciplined for improper performance of his duties.
In June, 1992, however, after Petitioner had experienced several episodes of dizziness and sleepiness on the job, he went to see Dr. Santayana, an internal medicine specialist, who, after testing, determined that Petitioner was suffering from the onset of diabetes which, the doctor felt, could be treated and controlled by diet. He so advised the Petitioner. The first visit
was on June 25, 1992. On August 10, 1992, Petitioner returned to the doctor, having lost 10 pounds, and reported he felt "much better." Again, on September 11, 1992, Petitioner reported to the doctor he had lost an additional 6 pounds and felt "great." Petitioner did not return to see Dr. Santayana after that visit, however.
Petitioner claims that while he was suffering the symptoms of his onset diabetes, he would become dizzy, sometimes while he was driving service equipment around aircraft or while he was climbing the 21 or more feet of an entrance gateway in order to service the plane. When he reported this to Mr. Goerbelini, he asserts, he was advised to go home and stay there until he felt better. He did this, but Dr. Santayana indicates there was no medical reason for Petitioner to remain away from work and at no time did he indicate to Petitioner it was necessary for him to do this. On one occasion, Petitioner requested a physician's statement testifying to the diabetic condition, which the doctor provided. On several other occasions, Petitioner requested notes from the doctor that it was all right for him to return to work, and on both occasions, the doctor obliged. On neither, however, did he indicate the reason for Petitioner's absence though Petitioner asserts it was because of his diabetic condition.
Petitioner claims he delivered not only the physician's written diagnosis of diabetes but also the two return to work excuses given him by the doctor to Ms. Amorelli, the secretary in the office. She, however, has no recollection of ever having received them, though it appears the work excuses were in the company records. They were not introduced into evidence, however.
It appears that the discharge of Petitioner was predicated upon his absenteeism and his tardiness. The company documentation supporting this was not offered into evidence. Testimony of Respondent's witnesses, nonetheless, appears to indicate a repeated period of tardiness, most of which, however, are indicated as being no more than one or two minutes in duration. Petitioner, while denying he was ever tardy, nonetheless indicated that he was shown to be tardy because when he would appear at work to clock in on time, he was not allowed to do so before the regular start of work time. As a result, all shift workers, some 8 to 10 people, were attempting to clock in at the same time. This was impossible, and some, including Petitioner, were, perforce, late. The clock records were not offered, however, and it is difficult to determine the
exact number of tardinesses or when they occurred. However, the company witness indicated that Petitioner was late 18 times in 1990, 31 times in 1991, and 8 times in 1992 until his discharge on September 10. There is also some evidence, and Petitioner admits, that while he was working for Respondent, he was also detailing automobiles for extra income.
Dr. Santayana indicated that Petitioner's condition should not have any impact on his use of equipment. The diabetes was to be controlled by diet, not medication. At no time did the doctor ever tell Petitioner not to work with the equipment. So long as the diabetes was controlled and did not result in either drowsiness or dizziness, there was no reason that Petitioner could not work. It would appear from the doctor's testimony and records, that the diabetes was being satisfactorily controlled by diet since Petitioner reported his condition had improved and his health was much better. In any case, his diabetes would not have required any special work accommodation. Petitioner alleges that on one visit to the doctor he was advised to remain home from work, but the doctor denies ever having told him this.
Petitioner reports that while his diabetes was a problem, he went to Mr. Goerbelini and requested a change to the day shift. He never received it. Petitioner also allegedly reported his condition to a Mr. Rodriguez and to several of his coworkers, yet testimony of the witnesses called by Respondent indicated neither of these ever reported they were aware of his condition. Mr. McClure, the station manager, at no time was made aware of Petitioner's physical problems. He first found out Petitioner had diabetes when he learned the EEOC complaint was filed.
Of the more than 200 employees Respondent has at its Tampa operation, approximately 40 percent are Latin. Of the balance, approximately 15 percent are African American and 45 percent are Caucasian. Seventy percent of those who do the type of work done by Petitioner are Latin. Nonetheless, all operations manuals are in English and Respondent has a requirement that all people who work for it at this installation must be able to speak and understand English. This is predicated upon safety conditions and the requirements of at least one of the carriers whose planes are serviced by Respondent, who requires employees working on its aircraft be conversant in English. The written job description also requires familiarity with English. Though Mr. McClure did not hire Petitioner, he is satisfied the procedures in this case, requiring a demonstrated ability to use and understand English, would have been followed in Petitioner's case as they have been in the past.
Respondent is familiar with and complies with the requirements of the Americans with Disabilities Act and the Florida Civil Rights Act. Mr. McClure has notified his supervisors that any employee claiming a disability should be brought to his attention personally so that, if possible, an accommodation can be made for that handicap. This is done routinely, and at the present time, there are several employees, many of whom were hired as early as the late 1960's, whose handicaps are accommodated by the Respondent.
Respondent contends, and there is no evidence to show it not to be true, that its requirements, rules and regulations dealing with tardiness, absenteeism, and the requirement to be conversant in English are uniformly applied throughout and across the work force. Other employees have been counselled for tardiness and some have been discharged because of attendance problems including tardiness.
Notwithstanding Petitioner's claims that he was not counselled regarding his tardiness, Mr. Wells indicates he had discussed Petitioner's tardiness and absenteeism, along with other employees, with Mr. Goerbelini. The latter counselled the Petitioner and this was memorialized on counselling forms, but it is important to note that Petitioner was not the only person being counselled for attendance problems. He was warned in both English and Spanish that his job was in jeopardy, and when his attendance did not improve after the warnings, he was terminated.
Notwithstanding the appearance of the doctor's return to work notes in Respondent's records, Mr. Wells indicates that at no time did Petitioner give any explanation for his absences, other than that he was sick. None of Petitioner's drowsy or dizzy spells were brought to his attention. Had he been told that Petitioner's condition was hazardous to him or other workers, they would have found other work for him to do until he improved. Mr. Wells indicates he had difficulty speaking with Petitioner because of language, but after Petitioner was trained, it was clear he spoke enough English to do the job
required of him. Wells did not know of Petitioner's diabetes until after he had been fired. Neither Petitioner nor anyone else had brought that information to his attention.
Ms. Amorelli was the person who dealt primarily with Petitioner when he would come to work, other than his supervisor. She conversed with him primarily in Spanish since he had difficulty expressing himself in English. Nevertheless, she is satisfied he understood English. When the first written counselling regarding Petitioner's absenteeism and tardiness was completed, she gave it to him to read and he did so. She is satisfied he understood it. The second warning, which was also in writing, was given to him to read and he appeared to understand it as well. She did not receive the discharge statement nor the doctor's undated letter of diagnosis. By the same token, she asserts Petitioner never discussed his illness with her nor did she know he had been diagnosed as having diabetes.
According to company policy, when an employee is ill and not going to come to work, he or she is supposed to call her or, in her absence, the immediate supervisor. At no time did Petitioner ever call her about an absence. Her duty hours were usually inconsistent with his, however. She does not know if he called his immediate supervisor.
All of Respondent's witnesses testified that while a lateness of one minute would not result in discharge, continued and repeated lateness does, and though other employees were disciplined and ultimately discharged for tardiness, Petitioner stands out, in Ms. Amorelli's mind, as being late more than most employees.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.
Section 760.10(1)(a), Florida Statutes, makes it an unlawful employment practice to discriminate against any person because of such person's race, color, religion, sex, national origin, age, handicap or marital status. Here, Petitioner has claimed Respondent discriminated against him, alleging it discharged him from employment because of his handicap.
Petitioner has the initial burden of proving a prima facie case of discrimination, McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). The Florida Commission on Human Relations has adopted this evidentiary model, Kilpatrick v. Howard Johnson Co., 7 FALR 5468 (FCHR 1985).
Once the Petitioner has proven all the elements necessary to establish a prima facie case of discrimination, the employer must then articulate some legitimate, nondiscriminatory reason for the employment decision to allow the trier of fact to conclude the employer's action had not been motivated by a discriminatory mind set.
In this case, Petitioner also has the initial burden to establish a prima facie case of handicap discrimination and in order to successfully do that, he must show that (1) he is handicapped; (2) he performed or is able to perform his assigned duties satisfactorily; and (3) he was terminated despite his satisfactory performance, McDonnell Douglas, supra.
The pertinent Florida statute does not define the term "handicap." Therefore, in assessing this issue, one must rely upon the decisions of the Commission, and handicap has been defined by the Commission, in accordance with common usage, as a condition that prevents normal functioning in some way. A person with a handicap does not enjoy in some measure the full and normal use of his sensory, mental, or physical faculties. See Thomas v. Floridin Company, 8 FALR 5457, (1986).
The evidence of record establishes that Petitioner suffers from diabetes. However, his doctor has indicated, and no evidence was introduced to show otherwise, that given proper diet, Petitioner can fully function with no impairment of his faculties or his ability to be a safe and competent worker. To be sure, Petitioner did suffer some dizziness and sleepiness on the job before the diabetic condition was discovered, and his supervisor advised him to go home and stay home until he felt better. It was at this point that Petitioner first went to the doctor because of his symptoms and was placed on a diet which, over the several months he was on it, had a definite beneficial effect on his condition. The medical records reflect that Petitioner lost weight and reported to the physician that he felt "great."
Though there is some question as to whether Petitioner brought a doctor's written statement diagnosing his diabetes to his supervisor, for the purpose of resolution of the issues herein it will be conceded he did. It will also be conceded that he brought in at least two return to work authorizations from the doctor after he had been absent on two occasions. Nothing indicates, however, that his absences were due to his diabetic condition, and there is some evidence, partially admitted by Petitioner, that during at least some of his absences he continued detailing automobiles as a source of other income.
Petitioner asserts in his post hearing submission, that the Respondent made no effort to accommodate Petitioner's diabetic condition to provide other work he could do in lieu of that which his condition prevented. There is no evidence that Petitioner was disqualified, either by performance or as a result of medical evidence, from doing any of the tasks incorporated within his job duties. Petitioner claims he sought a shift change but was denied it. Respondent's representative clearly indicated company policy is to make any reasonable accommodation to an employee's condition but it can find no indication in its records that Petitioner sought an accommodation because of his condition. Had it been so advised, it represents it would have worked with Petitioner to try and accommodate him as it has done for others.
Petitioner also asserted that his inability to converse in English constituted a hindrance to his ability to work within the Respondent's organizational framework. Petitioner admits that at least 40 percent of the Respondent's work force and 70 percent of those doing the same work as Respondent was Spanish speaking. Ms. Amorelli, the secretary to Petitioner's section supervisor routinely spoke with him in Spanish and had no indication that his linguistic deficiencies were an impediment to his performance. Petitioner's counsel asserts, in his post-hearing submittal, that one of the airlines for whom Respondent provided service requested that only "non-Spanish speaking personnel" be used on certain aircraft. The evidence indicates that Respondent had an agreement with Delta Airlines that all personnel who worked on their aircraft be able to read and understand English. At no time was there any requirement that those employees not be able to speak Spanish. The requirement
to read and understand English, in light of the fact that maintenance manuals and technical data are primarily in English, is not unreasonable. In any case, it has no bearing on Petitioner's being discharged due to handicap.
Another point raised by Petitioner is that many of his alleged tardinesses were for one minute or so, and this was caused by Respondent's prohibition against signing in before shift change and the press of several employees trying to punch in at change time. To be sure, if true, this situation placed Petitioner in an untoward and disadvantaged position. However, even if true, proof of this situation does not support Petitioner's claim he was discharged because of his handicap. The evidence of record, less than complete though it may be, nonetheless tends to establish that Respondent's discharge policies on the basis of absenteeism and tardiness were equitably and uniformly applied. Other employees were terminated for the same reason, and there is no evidence Petitioner was singled out for disparate treatment. Notwithstanding his claim that he was never counselled about his absenteeism and tardiness, it is clear from personnel records that he was, at least twice prior to termination.
Taken as a whole, the evidence presented by the parties hereto fails to show that Petitioner's termination from employment with the Respondent was for any reason other than as stated in the notice of termination, to-wit: excessive absenteeism and tardiness. In addition, Petitioner failed to show any connection between his absenteeism/tardiness and his diabetic condition. It cannot, in all fairness, be concluded that Petitioner has met the burden he had to establish his termination was unlawful discrimination based on handicap or any other proscribed basis.
Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:
RECOMMENDED that Jorge Pacheco's Petition for Relief from a discriminatory employment practice alleging discrimination on the basis of handicap be denied.
RECOMMENDED this 23rd day of March, 1994 in Tallahassee, Florida.
ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building
Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 1994.
Norman A. Palumbo, Esquire Post Office Box 10845 Tampa, Florida 33679
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 consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.
