JACK E. FRANKLIN, )
vs. ) CASE NO. 96-2870
Respondent. )
Pursuant to notice, this cause came on for formal hearing before Stephen F. Dean, duly-designated Administrative Law Judge of the Division of Administrative Hearings, on September 24, 1996, in Tallahassee, Florida.
For Petitioner: Jack E. Franklin, pro se
For Respondent: Gene T. Sellers, Esquire
Whether the Respondent discriminated against the Petitioner on account of his disability.
The Petitioner was discharged by the Respondent from his employment. The Petitioner filed a claim with the Florida Commission on Human Relations (Commission) alleging that the Respondent had discharged the Petitioner because of its perception that the Petitioner was mentally ill and as retaliation for reporting sexual harassment.
The Petitioner filed a complaint and request for relief with the Florida Commission on Human Relations on February 9, 1995, FCHR Case No. 95-B088 and EEOC Case No. 15D0284. A Notice of Determination: No Cause was issued to the Petitioner on May 16, 1996. On June 3, 1996, the Petitioner filed an appeal Petition with the Commission, which forwarded the case to Division of Administrative Hearings. The case was noticed for hearing and the hearing was heard as noticed September 24, 1996.
The Petitioner called Dr. Terence Leland, Dr. Indirarani Prasad, and Roger Hinson to testify. Petitioner's Exhibits P-1 through P-5 were admitted into
evidence. The Respondent called the same witnesses as the Petitioner to testify, together with the transcribed testimony of Suzan Taylor. Respondent's Exhibits R-1 through R-10 were admitted into evidence. In addition, Administrative Law Judge's Exhibit HO-1 was admitted into evidence.
Both parties submitted proposed findings which were read and considered.
The Petitioner filed a response to the Respondent's proposed order which was not authorized and was not read nor considered.
The Petitioner was employed by the Respondent as an Accountant II on December 1, 1987 and in December of 1993, was promoted to Tax Auditor II.
In September of 1991, the Respondent received a complaint regarding Petitioner from a taxpayer. The taxpayer alleged that the Petitioner had accused the taxpayer of attempting to sabotage the Petitioner's van. When questioned about the complaint, the Petitioner stated that the taxpayer had attempted to damage his van because the Petitioner had denied the taxpayer's refund claim.
The Petitioner's supervisor investigated Petitioner's claims, counseled him and suggested that the Petitioner participate in the Employee Assistance Program (EAP). The Petitioner declined assistance.
In October and November of 1992, the Petitioner began making bizarre allegations about his co-workers and supervisors engaging in outrageous and deviant sexual conduct and activities, and began to behave strangely.
The Petitioner told his supervisors that his co-workers were engaging in sex with his mother, aunt, uncle and other members of his family. According to the Petitioner, these sexual activities were taking place in the office. The Petitioner was upset particularly at one co-worker, who Petitioner stated had moved in next door to him or into his neighborhood in order to spy on Petitioner. In addition, Petitioner stated that the "sex police" were observing him at Walmart. The police would get on top of his van to spy on him according to Petitioner.
During this time, the Petitioner filed a "sexual harassment" complaint with the Respondent's Inspector General. Petitioner's statement to the investigators repeated the bizarre accusations outlined above regarding his co- workers.
After investigating the Petitioner's claim, the Respondent's Inspector General found no evidence to substantiate these allegations and statements.
Because the Petitioner's increasingly bizarre behavior, the Respondent became concerned about the Petitioner's ability to perform his duties as a Tax Auditor I. Therefore, the Respondent requested that the Petitioner go to a psychiatrist for an evaluation.
The Petitioner agreed and went to the Apalachee Center for Human Services, where he was examined by Dr. Terence Leland, a psychologist and Dr. Inez Bragado-Spence, a psychiatrist. The evaluation consisted of three, one- hour interviews and various written tests. It was understood that the results of this examination would be shared with Respondent.
Dr. Leland reported to the Respondent that the Petitioner had made delusional statements of the type made to and investigated by the Inspector General and found to be baseless. The Petitioner reported that co-workers and others were spying on him. The Petitioner reported alleged sexual liaisons at the office between various employees and supervisors. The Petitioner reported plots against him by various conspirators and "hit men" of the Respondent.
Dr. Leland's diagnosis was that the Petitioner suffered from a delusional (paranoid) disorder, persecutory type. It was Dr. Leland's opinion that the Petitioner clearly needed treatment. Dr. Leland felt that the Petitioner could not perform his duties without treatment, and recommended requiring treatment as a condition of the Petitioner's continued employment.
During this period, the Petitioner's job performance suffered. Based upon Dr. Leland's reports, the Respondent required that the Petitioner obtain treatment as a condition of continued employment. The Petitioner and the Respondent entered into an agreement which required the following as a condition of continued employment:
Seeking psychiatric treatment within
40 days.
Furnishing documentation that treat- ment had commenced and was continuing for as long as treatment was recommended.
Following the prescribed treatment so long as it was recommended.
The Petitioner commenced treatment in June of 1993, Dr. Prasad, a psychiatrist, prescribed medication for the control of Petitioner's illness and Suzan Taylor, a counselor associated with Dr. Prasad, held regular counseling sessions with Petitioner.
As a result of his treatment, the Petitioner was asymptomatic, his work improved, and he was promoted to Tax Auditor II in December of 1993.
In the summer of 1994, approximately one year after commencing treatment, Dr. Prasad and Suzan Taylor began to suspect that the Petitioner was no longer taking his medication when he again began making delusional statements.
At the same time, the Petitioner's supervisor began to notice the reoccurrence of Petitioner's prior conduct.
When confronted by his doctors in November of 1994 about the failure to take his medication, the Petitioner stated that he had quit taking it. He was given the option of getting shots of the same medication on a regular basis, but he declined.
On November 18, 1994, the Petitioner had an altercation with a co- worker and received a one-day suspension.
Dr. Prasad had diagnosed the Petitioner as having major depression with psychotic features of persecution and delusion. Dr. Prasad's opinion was that the Petitioner could not perform his essential job functions without treatment.
On or about November 21, 1994, the Petitioner told his supervisor that his last visit to Dr. Prasad was on November 16, 1994.
Dr. Prasad was contacted by Petitioner's employer, and Dr. Prasad issued a final report dated November 23, 1994, in which she stated that the Petitioner refused to take any further medication or follow her directions; therefore, there was nothing further she could do to help him if he refused her recommended treatment. She did not release Petitioner from treatment.
The Respondent issued its proposed letter of termination based upon the Petitioner's refusal to continue treatment contrary to his agreement and the Petitioner's behavior on the job.
In a response to the letter of termination, the Petitioner made bizarre statements about the co-worker with whom he had had the altercation with on November 18, 1994.
At a pre-determination conference conducted by William Fritchman, the Respondent's Chief of Personnel and Training (at the time), it was suggested that the Petitioner go to another doctor for evaluation and treatment, if necessary. The Petitioner stated that he would not seek further medical help and stated that he would not take any drugs.
The Respondent had real concerns about the Petitioner's ability to perform his job duties, his interaction with taxpayers, and potential harm to fellow employees.
Based upon Dr. Prasad's diagnosis and opinion that Petitioner required continuing treatment and Petitioner's declining job performance, Mr. Fritchman issued the Final Action Letter of Termination citing the Petitioner's breach of the conditions of employment, as agreed in the letter of April 30, 1993, which constituted insubordination.
Petitioner offered no evidence showing he was sexually harassed.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Section 120.57(1), Florida Statutes.
The Petitioner's claim is brought under Chapter 760, Florida Statutes. The Petitioner claims that he was discharged because of the Respondent's perception that he has a handicap.
In Brand v. Florida Power Corporation, 633 So.2d 504 (Fla. 1st DCA 1994), the court lays out the method for analyzing a claim under Florida law. Brand set forth the following test as follows:
. . . For example, Section 760.10(1)(a), Florida Statutes, prohibits, as does section 504, an employer from 'discharg[ing] or .
. . fail[ing] or refus[ing] to hire any individual, or otherwise . . . discrimin- ating] against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such
individual's . . . handicap[.]' Section 760.10(8)(a) continues, however, that it is not an unlawful employment practice for an employer to '[t]ake or fail to take any action on the basis of handicap' in instances in which such condition is 'a bona fide occupational qualification
reasonably necessary for the performance of the particular employment to which such action or inaction is related.' Section 504 similarly implies, by the use of the language 'otherwise qualified,' that an employer may rely on the defense of a bona fide occupational qualification in a handicap discrimination claim if the plaintiff is not shown to be qualified for the position in question. At 509.
Brand further states that where a Florida Statute is modeled after a federal law on the same subject, the Florida law will use the same construction given the federal law insofar as such interpretation is harmonious with the spirit and policy of the Florida Legislation. Brand at 509. (Cases cited).
The criteria established by section 504 place the burden on a plaintiff to establish a prima facie case of employment discrimina-
tion by showing (1) that he or she is a handi- capped individual under the act; (2) that he or she is otherwise qualified for the
position sought or hired; (3) that he or she was excluded from the position sought solely by reason of his or her handicap . . . .
See Harris v. Thigpen, 941 F.2d 1495, 1522 (11 Cir. 1991); Rosiak v. United States Dep't of the Army, 679 F.Supp. 444, 449-50 (M.D. Pa. 1987); Dexter v. Tisch, 660 F.
Supp. 1418, 1427 (D. Conn. 1987). Brand at 510.
Brand sets forth criteria that are uniquely pertinent to actions under handicap claims. First, a plaintiff must set forth a prima facie case. If a claimant is unable to set forth a prima facie case of handicap discrimination, the burden of producing rebuttal evidence does not shift to the employer and judgment is entered in favor of the employer. If a prima facie case is established, the burden of producing evidence is then placed on the employer to show its consideration of the handicap was relevant to the qualifications of the position. In this regard, a "reasonable accommodation" must be shown unless it would impose an undue burden on the operation of its program.
The EEOC regulations are used for the reasonable accommodation test,
29 C.F.R. Section 613.704 (1993). The agency can meet its burden by showing (1) the petitioner's handicap is such that it simply cannot possibly be accommodated or (2) the proposed accommodation is unreasonable because it would result in an undue hardship on the employer's activities. Once the defendant places into evidence valid reasons for the rejection, the plaintiff cannot remain silent but must rebut the employer's position with evidence concerning his or her individual capabilities "and suggestions for possible accommodations."
Treadwell v. Alexander, 707 F.2d 473, 478 (11th Cir. 1983). Accord Prewitt v.
United States Postal Serv., 662 F.2d 292, 308 (5th Cir. 1981). However, "the plaintiff . . . bears the ultimate burden of showing by a preponderance of the evidence that in spite of the handicap, he is qualified[.]" See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 2749, 125 L.Ed.2d 407, 419
(1993).
The Petitioner proved that he was initially qualified; he had or was perceived to have a handicap; and he was terminated.
The Agency proved that the Petitioner was suffering from a mental illness which adversely effected the way he performed his duties. When suffering from the disease, the Petitioner was not qualified to perform the duties of the job. The Respondent agreed to employ the Petitioner if he would seek treatment. The Petitioner agreed, received treatment, and was symptom free while being treated. The Petitioner stopped taking the treatment and soon retrogressed to the point where he was not a "qualified individual" under the law because he could not perform the essential duties of his position. The facts show the Agency reasonably accommodated the Petitioner's illness; however, after initially participating in treatment which successfully controlled Petitioner's illness, the Petitioner refused treatment and again became unqualified.
Franklin v. U.S. Postal Service, 687 F.Supp. 1214 (S.D. Ohio W.D. 1988) is literally on "all fours" with our case. Franklin, Id. involved a person with a mental illness which was controllable with medication. The employee refused to take her medication and behaved in a delusional manner, including attempts to enter the White House and the Ohio Governor's Mansion. The employer (United Stated Postal Service) retained the employee although she had violent episodes, under an agreement wherein she would take her prescribed
medication. She ultimately refused to take her medications, and was discharged. The court held that the agency had made reasonable accommodations, and the employee is not an "otherwise qualified handicapped individual", within the meaning of Section 504.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner's claim be dismissed.
DONE AND ENTERED this 28th day of October, 1996, in Tallahassee, Florida.
STEPHEN F. DEAN
Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1996.
Jack E. Franklin Post Office Box 572
Gene T. Sellers, Esquire Department of Revenue Post Office Box 6668
All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
