STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DENNIS W. THOMAS, )

)

Petitioner, )

)

vs. ) CASE NO. 94-2126

) UNIMAC COMPANY, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings, on September 20, 1994, in Marianna, Florida.

APPEARANCES

For Petitioner: Dennis W. Thomas, pro se

4396 Clyde Lane Post Office Box 56

Marianna, Florida 32447

For Respondent: Roger W. Horton, III

Human Resources Director Unimac Company, Inc.

3595 Industrial Park Drive Marianna, FL 32446-9458

STATEMENT OF THE ISSUES

The issue to be resolved in this proceeding concerns whether the Petitioner has been the victim of an unlawful employment practice by the alleged failure to re-hire him by the Respondent because of his alleged disability.

PRELIMINARY STATEMENT

This cause arose upon the filing of a complaint of discrimination by the Petitioner alleging, in essence, that he was denied reinstatement as a machinist on January 7, 1993, after having been laid off on August 17, 1992, allegedly due to a disability (stroke). The Commission on Human Relations (HRC) conducted an investigation of the charges and ultimately determined that there was no reasonable cause to believe that an unlawful employment practice had occurred.

Upon the entry of this finding, the Petitioner filed a Petition for Relief, availing himself of the right to a proceeding before the Division of Administrative Hearings and the undersigned Hearing Officer.

The cause came on for hearing as noticed. The Petitioner presented his own testimony and two exhibits which were admitted into evidence. The Respondent presented the testimony of Roger Horton and three exhibits, all of which were

admitted into evidence. Proposed Recommended Orders were submitted, which were treated in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. The Petitioner was employed as a machinist operating a "pega" machine for the Respondent at times pertinent hereto, in 1992 and 1993. On or about February 24, 1992, while he was home for lunch, the Petitioner apparently suffered a stroke. He was hospitalized and his wife and a nurse informed his employer of his medical condition. The Respondent is an employer within the meaning of Chapter 760, Florida Statutes. It is a manufacturer of commercial laundry equipment and employs more than 15 employees.

   
   

2. Because of the medical condition related to his stroke, the Petitioner applied for and was granted a medical leave of absence on or about February 24, 1992 or shortly thereafter. There is apparently some question whether the Petitioner's supervisor actually signed the leave request, but the employer does not dispute that he was legitimately on a medical leave of absence until August 13, 1992. There is also some dispute concerning whether the Respondent employer knew that the Petitioner had suffered a stroke or not. The complainant's personnel file, however, contained two notes dated March 12, 1992 and August 17, 1992 from Dr. Watts, his treating and attending physician. The March 12, 1992 note confirmed that the Petitioner had been hospitalized and had had an abnormal cerebral imaging result, also suffered from hypertension and, at that time, was unable to return to work. The August 17, 1992 note from Dr. Watts stated that the Petitioner could return to work and stated that there were no restrictions on his activities. Thus, the evidence of record indicates that there was a basis for the Respondent to know that the Petitioner had a stroke or some type of disability between February 24, 1992 and August 17, 1992.

   
   

3. Upon his release by his attending physician on August 17, 1992, without medical restriction of his activities, so that he could return to employment, there was no basis for the Respondent to believe from that point forward that the Petitioner had any disability. This is borne out by the Petitioner's own testimony revealing that he repeatedly sought re-employment with the Respondent during the period from August 1992 through February 1993 without advising the Respondent of any employment restrictions due to his medical condition or any purported disability.

   
   

4. When the Petitioner returned to the Respondent's place of business on August 17, 1992 and sought to come back to work after his medical leave, the plant manager informed him that he had no openings for him at that time. There were two positions being filled at that time, but they were not positions for which the Petitioner was qualified. One was a position requiring skill at electrical schematic reading, which was an electrical assembly position. The Petitioner was not qualified for this position. The other position was as a "tig welder", a highly-skilled type of welding process. The Petitioner was not qualified to perform this, as well, because of his lack of knowledge of welding. The position, and similar positions, operating "pega" machines (machine tools), which the Petitioner had filled and performed prior to his illness, were all filled and unavailable at the time the Petitioner sought to return to work in August of 1992.

   
   

5. Neither the Petitioner nor his physician had given any indication of when the Petitioner could return to work, prior to August 13, 1992, nor was there any communication with the Petitioner or his physician for six months during his leave of absence, other than the provision to the company of the

   physician's note in March 1992 concerning the brief description of his medical condition. Consequently, on August 13, 1992, when Mr. Rieff, the plant manager, received a note from the Petitioner's physician stating that he could return to work without restriction, there were no positions available for his type of skill and training. Therefore, the company recorded the Petitioner's status, as of August 1992, as being discharged due to the conclusion of his medical leave with no open positions suitable for him being available.

   
   

6. The Petitioner testified that he sought employment several times during the period of August 1992 through January 1993 by attempting to contact or contacting Mr. Rieff. He stated that Mr. Rieff told him to check with him every two or three weeks because each time he spoke with him, Mr. Rieff informed him that no openings were available at that time. The Petitioner, however, filed no application for employment until he learned, from a visit to the state employment service office in February of 1993, that the Respondent was looking for a "pega machine operator". The Petitioner filed an application with the company at that time.

   
   

7. Upon receiving the application or learning of it, Mr. Horton, Human Resources Director of the company, reviewed it and noted that the Petitioner had had previous experience with the company performing this same job. Mr. Horton had not been with the company at the time the Petitioner had left for his medical leave and, therefore, had no knowledge of his medical history, skills, abilities, and other past history with the company. Consequently, he consulted with Mr. Rieff concerning the advisability of re-hiring the Petitioner. Mr. Rieff advised against re-hiring the Petitioner because the Petitioner had had an attendance problem while he was employed by the company. In fact, although his other job skill and performance ratings were the highest, his attendance rating was the poorest in the company's system and means of rating performance. Consequently, because of Mr. Rieff's negative recommendation, on the basis of the Petitioner's past poor attendance record, which is substantiated by the evidence, Mr. Horton elected not to re-hire him. Mr. Horton did not know at that time of the medical history of the Petitioner because the medical records were housed in a different department of the company. Mr. Horton was the decision-maker for that employment decision.

   
   

8. The employment action which resulted in the Petitioner filing the charge of discrimination at issue occurred when the Respondent failed to hire the Petitioner. The Petitioner maintains that it was on account of his medical condition or disability. The Petitioner verbally sought employment by contacting Mr. Rieff periodically from August 1992 through January 1993. On approximately January 7, 1993, Mr. Rieff effectively told the Petitioner that he would not hire him in the foreseeable future and that if he needed the Petitioner, he could call him. In February 1993, the application was actually filed by the Petitioner for employment, and Mr. Horton took the above negative action with regard to it. It is undisputed that the Respondent granted the Petitioner six months of medical leave. Whether or not the Respondent knew of the precise nature of the medical problem for which the Petitioner was given medical leave, the fact is established that upon the Petitioner being released by his treating physician with no restrictions and able to return to work, the Petitioner had no disability in terms of any impediment to his full employment, performing the full range of duties he had performed before the medical incident occurred in February 1992. Consequently, the Petitioner was not disabled from August 13, 1992 forward. The established reason that the Petitioner was not hired again by the Respondent company was because of his poor attendance record and not because of any perceived disability suffered by the Petitioner. In fact, at the times pertinent hereto when the decision at issue was made not to

   re-hire the Petitioner, the Petitioner suffered from no disability, and the Respondent had no perception that he did.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. Section 760.22, Florida Statutes, defines handicap as follows:

    
    

    . . . (7) 'Handicap' means:

    1. A person who has a physical or mental impairment which substantially limits one or more major life activities, or he has a record of having, or is regarded as having, such physical or mental impairment; . . .

       
       

11. The question of burden of proof in discrimination cases, including those involving the issue of discrimination because of disability, has been recently examined in the case of Department of Corrections v. Chandler, 582 So.2d 1183 (Fla. 1st DCA 1991), opinion on rehrg. dated July 10, 1991. The Chandler court described the method of proof in such a proceeding as follows:

    
    

    Pursuant to the Burdine formula, [Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed. 2nd 207

    (1981)], the employee has the initial burden of establishing a prima facie case of intentional discrimination, which once established raises a presumption that the employer discriminated against the employee. If the presumption arises, the burden then shifts to the employer to present sufficient evidence to raise a genuine issue of fact as to whether the employer discriminated against the employee. The employer may do this by stating

    a legitimate, nondiscriminatory reason for the employment decision, a reason which is clear, reasonably specific, and worthy of credence.

    Because the employer has the burden of production, not of persuasion, which remains with the employee, it is not required to persuade the trier of fact that its decision was actually motivated by the reason given. If the employer satisfied its burden, the employee must then persuade the fact finder that the proffered reason for the employment decision was

    a pretext for intentional discrimination. The employee may satisfy this burden by showing directly that a discriminatory reason more likely than not motivated the decision, or indirectly by showing that the proffered reason for the employment decision was not worthy of belief. If such proof is adequately presented, the employee satisfies his or her ultimate burden of demonstrating by a preponderance of the evidence that he or she has been a victim of intentional discrimination.

12. Thus, for purposes of proving a prima facie case of discrimination on the basis of handicap or disability, the Petitioner must show that he has a physical impairment meeting the above-quoted definitional standard for handicap. The Petitioner herein has not established that he is a handicapped person, as contemplated by the statute.

    
    

13. The Petitioner established that he reported his medical condition at the time he suffered the purported stroke to his employer and, indeed, it is undisputed by the employer that he was granted and properly obtained a medical leave of absence from the above-mentioned dates in February 1992 through August 13, 1992. Other than the doctor's note in the Petitioner's personnel file dated March 1992, which indicates some cerebral incident as a part of his condition, there was no showing that the employer was specifically informed of the nature of the Petitioner's medical problem. Indeed, the decision-maker, Mr. Horton, did not know of his medical problem at all at the time he made the employment decision not to re-hire the Petitioner in February 1993.

    
    

14. Mr. Rieff no doubt knew that the Petitioner had some sort of medical problem, because Mr. Rieff knew that the Petitioner was on medical leave. The fact remains, however, that on August 13, 1992, the treating physician released the Petitioner for full employment duties with no restrictions. The Petitioner so informed the Respondent upon seeking an employment position with the Respondent on August 17, 1992 and thereafter. The Petitioner never represented to the Respondent that he had a disability. Even if the Respondent knew of his medical condition and the specifics of it, at the time the Petitioner presented himself for re-hire on August 17, 1992, periodically thereafter, and upon the formal filing of an application in February 1993, the Petitioner never advised the employer that he had any disability, whether residual from the medical incident occurring in February 1992 or otherwise.

    
    

15. Thus, the Petitioner could not demonstrate that the Respondent had failed to re-hire him based upon any perceived disability. In fact, the evidence shows that he has no disability in any event. Consequently, the Petitioner cannot demonstrate a prima facie case because he has not proven that he has any disability, nor that the employer believed that he had a disability. Therefore, he cannot prove that he has been discriminated against because of any disability.

    
    

16. Moreover, even had the Petitioner established that he had a disability and suffered an adverse employment decision (termination or failure to re-hire), the Respondent articulated a legitimate, sufficient, nondiscriminatory reason for its failure to hire him at any position with the company, whether as a machinist, pega machine operator, or any other type of position. That is, the Respondent established that the Petitioner had had a poor attendance record, ranking in the lowest category on reliability of attendance. Even though his performance evaluations in all other categories had been excellent, under the regular customs, practices, and policies of the company consistently followed, the failure to have a satisfactory attendance record is a justifiable reason for termination or for failure to re-hire. Accordingly, a legitimate, non- discriminatory reason for not hiring the Petitioner has been articulated by the Respondent and, indeed, proven, because the articulation is found by the Hearing Officer to be credible and supported by preponderant evidence.

    
    

17. Further, although the question of the Petitioner going forward with his burden of persuasion to show that the purported legitimate, articulated reason for not hiring him was pretextual need not be reached, because of the above conclusions, even if it were necessary in resolving this case to see if

the employee could come forward and establish that the purported reason was pretextual and a veil for what really amounted to intentional disability discrimination, the Petitioner has failed to meet that burden of proof. It cannot be shown that the employer intentionally discriminated against the Petitioner based upon his disability when it was unaware of any disability and, indeed, when the proof shows that no disability within the above definition existed. Consequently, for the above-stated reasons, based upon the findings of fact, supported by the preponderant evidence of record, it must be concluded that the Petitioner has failed to proof his case of employment discrimination based upon disability.

RECOMMENDATION

Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is

RECOMMENDED that a Final Order be entered by the Commission on Human Relations dismissing the petition filed by the Petitioner, Dennis W. Thomas, in its entirety.

DONE AND ENTERED this 1st day of December, 1994, in Tallahassee, Florida.

P. MICHAEL RUFF 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 2nd day of December, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2126

The parties were accorded the opportunity to submit proposed findings of fact and conclusions of law in the form of Proposed Recommended Orders. The Respondent submitted proposed findings of fact, which are accepted (Nos. 1-6) to the extent they do not conflict with or are inconsistent with the findings of fact made by the Hearing Officer. The Petitioner submitted a post-hearing pleading, in letter form, which really amounts to an argument as to the quantity, quality and weight to be ascribed to the evidence and included citation to the relevant statute, Section 760.10, Florida Statutes, and a court case which merely is cited for the purpose of pointing out that employment cannot be denied a person on account of illness and disability. That principle is not in dispute in this proceeding. The Petitioner did not separately state proposed findings of fact which can be specifically ruled upon by the Hearing Officer. Nevertheless, all legal and factual issues alluded to in the Petitioner's pleading have been addressed and ruled upon in the body of this Recommended Order.

COPIES FURNISHED:

Dennis W. Thomas 4396 Clyde Lane Post Office Box 56

Marianna, Florida 32447

Roger W. Horton, III Human Resources Director Unimac Company, Inc.

3595 Industrial Park Drive Marianna, FL 32446-9458

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

325 John Knox Road Tallahassee, FL 32303-4149

Dana C. Baird, Esq.

General Counsel

Human Relations Commission Building F, Suite 240

325 John Knox Road Tallahassee, FL 32303-4149

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: 94-002126

Orders for Case No: 94-002126