JACK L. SHOEMAKER, )
vs. ) CASE NO. 96-4418
TARMAC AMERICA, INC. d/b/a )
Respondent. )
An administrative hearing was conducted on March 6, 1997, in Melbourne, Florida, by Daniel Manry, Administrative Law Judge, Division of Administrative Hearings.
For Petitioner: Jack L. Shoemaker, pro se
For Respondent: Charles S. Caulkins, Esquire
Wendy J. Smith, Esquire Fisher and Phillips 2300 Nations Bank Tower One Financial Plaza
The issue in this case is whether Respondent discriminated against Petitioner for the reasons stated in the Charge Of Discrimination and Petition For Relief.
Petitioner filed a Charge of Discrimination with the Florida Commission On Human Relations (the "Commission") on October 4,
1994. The Commission entered a Notice Of Determination on July 31, 1996, finding no cause to support the Charge of Discrimination.
On September 19, 1996, Petitioner filed a Petition For Relief with the Commission. The Petition and Charge of Discrimination were referred to the Division of Administrative Hearings to conduct an administrative hearing.
At the hearing, Petitioner withdrew allegations in the Charge Of Discrimination and Petition For Relief that Respondent discriminated against him on the basis of his age. The remaining issue for determination is whether Respondent discriminated against Petitioner on the basis of an alleged disability.
Petitioner testified in his own behalf and submitted three exhibits for admission in evidence. Respondent presented the testimony of two witnesses and submitted 32 exhibits for admission in evidence.
The identity of the witnesses and exhibits, and the rulings regarding each, are set forth in the record of the hearing.
Neither party ordered a transcript of the proceedings.
Petitioner did not file a proposed recommended order ("PRO").
Respondent timely filed its PRO on March 24, 1997.
Respondent is a Florida corporation engaged in the business of manufacturing, distributing, and selling cement and concrete. Respondent operates throughout the state and employs a substantial number of people.
Respondent maintains an Equal Employment Opportunity Policy (the "policy"). Respondent promulgates the policy to all employees in its various facilities throughout the state.
Respondent encourages the employment of disabled but qualified individuals. Respondent routinely makes reasonable accommodations for disabled employees.
Respondent first employed Petitioner on June 29, 1981, but terminated that employment. Respondent subsequently rehired Petitioner in February, 1983, as a ready-mix driver and front end
loader, and also as an occasional batcher.
Respondent employed Petitioner in various positions until Petitioner resigned his last position on October 5, 1993. During his employment, Petitioner suffered physical injuries that resulted in both temporary and permanent impairment.
All of the injuries occurred from work-related accidents. Petitioner suffered no other physical impairment.
Petitioner is not physically disabled as a result of the physical injuries he suffered from his work-related accidents. The injuries Petitioner suffered did not substantially limit his ability to perform his duties and responsibilities.
Respondent did not discriminate against Petitioner on the basis of Petitioner's physical impairment. Respondent provided Petitioner with reasonable accommodations.
The first injury to Petitioner occurred on August 5, 1986. While driving a cement truck for Respondent, Petitioner drove his
truck off of the road to avoid hitting a car that was stopped in front of him.
Petitioner was thrown into the steering wheel and injured his stomach. Petitioner also injured his back and was treated by a chiropractor.
On October 6, 1987, Petitioner reached maximum medical improvement under Workers' Compensation guidelines. His back injury left him with a total permanent impairment of seven percent.
Petitioner returned to work on March 5, 1987. Respondent offered both light duty and regular work to Petitioner from October
6 through March 27, 1987. However, Petitioner refused to return to work prior to March, 1987, due to a labor dispute involving Teamsters Local 769.
When the labor dispute was resolved, Petitioner returned to work as a batcher. The position was not defined specifically as a light duty job. However, it did accommodate the work restrictions prescribed after his previous accident.
Petitioner subsequently resumed driving a truck for the Respondent. Petitioner was able to drive without restrictions.
On March 17, 1988, Petitioner had the latest in a series of accidents as a truck driver for Respondent. On March 21, 1988, Respondent notified Petitioner that he had exceeded the number of accidents permitted under Respondent's "Accident Classification Policy" and prohibited Petitioner from operating any company vehicle for Respondent until further notice.
On January 29, 1990, Petitioner passed a physical
examination to be recertified as physically qualified to drive a truck. The examining physician certified Petitioner as physically able to drive a truck. Petitioner verified on the examination form that he did not suffer from any permanent defects resulting from illness, disease, or injury.
Petitioner continued treatment for chronic discomfort caused by the back injury he sustained in August 1986. Petitioner's chiropractor intermittently prescribed light duty to alleviate Petitioner's discomfort.
On September 6, 1991, Respondent attempted to accommodate Petitioner's chronic discomfort. Respondent offered Petitioner a position as a dispatcher in Respondent's Cocoa facility.
The dispatcher position was not a light duty job. However, it did accommodate Petitioner's intermittent need for light duty work to alleviate his discomfort.
Petitioner declined the dispatcher position. Petitioner elected to replace a junior truck driver in another location.
Petitioner's chronic back discomfort continued to cause absences from work and frequent need for light duty work. However, no permanent light duty positions existed. Respondent repeatedly created temporary light duty work for Petitioner in attempts to provide Petitioner with employment.
Respondent experienced increasing difficulty finding suitable work for Petitioner. The vast majority of positions involved a greater degree of manual labor than Petitioner was able to perform under his work restrictions.
On August 13, 1992, Respondent's Worker's Compensation carrier had Petitioner examined by an orthopedic surgeon. At the time, Petitioner was being treated once a week by his chiropractor.
Petitioner had a full range of motion in his cervical region, shoulders, elbows, wrists and fingers. X-rays showed no fracture, dislocation, or congenital abnormality.
The orthopedic surgeon diagnosed Petitioner as suffering from a cervical sprain or strain which had become somewhat chronic in nature. He found that Petitioner had reached maximum medical improvement with a total permanent impairment of four percent according to Workers' Compensation guidelines.
The orthopedic surgeon determined that Petitioner was able to work on a regular basis without restrictions. He concluded that Petitioner's permanent impairment did not interfere with the performance of his occupation.
Petitioner aggravated his back injury while driving a truck. Petitioner's chiropractor excused him from work from September 28 through September 30, 1992, and placed him on light duty from December 10, 1992 through January 14, 1993.
On December 17, 1992, the chiropractor sent a letter to Respondent's Risk Management Director discussing Petitioner's work restrictions. The letter designated Petitioner's work restrictions as: no prolonged sitting; no lifting over 30 pounds; no repetitive bending or twisting; and no climbing ladders. Climbing stairs was permitted. Petitioner's work restrictions continued in effect during the remainder of Petitioner's employment.
In December, 1992, Respondent was unable to create temporary light duty work for Petitioner. Respondent had no other work available that accommodated Petitioner's work restrictions. Petitioner applied for Worker's Compensation benefits and apparently sought other employment for approximately two weeks.
On January 5, 1993, Respondent located a suitable temporary position as a batcher at the Tarmac plant in Melbourne, Florida. Petitioner temporarily replaced the permanent batcher who was out on an extended illness.
The batcher position was not a light duty position. However, it did accommodate Petitioner's work restrictions.
After the permanent batcher returned, Respondent continued to find work Petitioner could perform. Respondent found temporary light duty work at the Melbourne plant.
Respondent created a temporary position for an "aggregate dispatcher." Two employees performed the functions of the aggregate dispatcher in addition to their other regular job duties.
The aggregate dispatcher position was not a position for which Respondent had a need. Respondent created the position for Petitioner in an attempt to accommodate his work restrictions and to keep him working. Respondent never represented the position as a permanent solution to Petitioner's need for light duty work.
In July 1993, the permanent dispatcher at the Melbourne plant asked to move to another position. Respondent offered the full-time position to Petitioner.
The dispatcher position was not a light duty position. However, it did accommodate Petitioner's work restrictions.
Petitioner accepted the dispatcher position at the Melbourne plant. On August 1, 1993, Respondent promoted Petitioner to dispatcher and increased Petitioner's salary accordingly.
Petitioner complained that he was unable to do the work by himself. Petitioner requested help to perform the job.
The dispatcher job at the Melbourne plant had always been performed by one person and was routinely performed by one person at other locations. However, Respondent instructed Petitioner's supervisors to give him assistance when needed.
In late August 1993, Petitioner stated to his supervisors that he could not perform the duties of dispatcher because he could not cope with the stress. Petitioner asked to be relieved of his responsibilities and resigned as dispatcher. No other suitable work was available.
Petitioner agreed to remain in the dispatcher position until a replacement was hired and trained. A dispatcher from another plant, a 42 year-old female, transferred and took over the job. Petitioner's last day of employment was October 5, 1993.
Unknown to Respondent, Petitioner was suffering from a severe major depression when he resigned from Respondent's employment. Sometime after August 13, 1996, an Administrative Law Judge for the U.S. Social Security Administration found that Petitioner had been disabled, within the meaning of the Social Security Act, since October 5, 1993.
Petitioner suffered from a dysthymic disorder. He had a history involving a depressed mood. Petitioner did not respond to treatment. Petitioner lost his appetite, suffered insomnia, lethargy, inability to modulate anger in an effective manner, and disinterest in almost all activities.
Petitioner was disabled. He was substantially limited in his ability to perform a major life activity such as work. Petitioner was significantly restricted, when compared with the average person having similar qualifications, from performing a class of jobs or a broad range of jobs in various classes.
Petitioner entertained thoughts of suicide. He did not have the ability to follow instructions or to function independently. He had very limited concentration. His memory was impaired. Petitioner had marked deficiencies in concentration, persistence, pace, daily living skills, and socialization.
Petitioner's disability prevented him from completing tasks in a timely manner. He suffered episodes of deterioration or decompensation in work resulting in withdrawal from the situation or exacerbation of his symptoms.
Respondent did not discriminate against Petitioner on the basis of Petitioner's disability. Petitioner's disability existed for some time before Petitioner resigned from Respondent's employment. During that time, Respondent repeatedly provided Petitioner with reasonable accommodations to enable Petitioner to continue his employment with Respondent.
Petitioner performed the duties of dispatcher satisfactorily prior to his resignation. There were no complaints about his work. Respondent had no reason to terminate Petitioner from the position.
Petitioner did not express an interest in the possibility of alternative employment with Respondent. Petitioner did not request any further accommodations to enable him to continue working for Respondent. Petitioner's physical impairment did not prevent him from performing the dispatcher job.
The dispatcher job at the Melbourne plant no longer exists because Respondent has undergone major restructuring. The functions of the dispatcher are presently divided among different individuals. Some of the functions are no longer performed at individual plants but are performed at centralized locations.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this proceeding. Section 120.57(1), Florida Statutes (1995). (All chapter and section references are to Florida Statutes (1995) unless otherwise stated). The parties were duly noticed for the administrative hearing.
The burden of proof is on Petitioner. Petitioner must show by a preponderance of the evidence that Respondent discriminated against him on the basis of his disability. Florida
Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).
In order to satisfy his burden of proof, Petitioner must show that: he has a disability; he is a qualified individual; and he was subjected to unlawful discrimination as the result of his disability. Pritchard v. Southern Company Services, 92 F.3d 1130 (11th Cir. 1996); Moriskey v. Broward County, 80 F.3d 445 (11th Cir. 1996).
Petitioner satisfied his burden of proof that he has a disability and that he is a qualified individual. Petitioner failed to show that Respondent discriminated against Petitioner on the basis of Petitioner's disability.
Section 760.10 (1)(a) makes it an unlawful employment practice for an employer to discriminate against a person because of the person's handicap. Chapter 760, entitled the Florida Human Rights Act (the "Act") adopts the legal principles and precedent set forth under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Section 2000e et seq., and the Americans with Disabilities Act, 42 U.S.C. §12101 et seq., (hereafter "ADA").
An impairment qualifies as a disability under the ADA if it substantially limits a person in working, as working is considered a major life activity. One is substantially limited in working if he or she:
. . .is significantly restricted when compared with the average person having similar qualifications from performing (1) a class of jobs or (2) a broad range of jobs in various classes.
29 C.F.R. Section 1630.2 (j)(3)(ii).
A physical impairment, alone, is not a disability. Pritchard, 92 F.3d at 1132; Ellison v. Software Spectrum, Inc., 85 F.3d 187, 191 (5th Cir. 1996).
Petitioner's physical impairment did not substantially limit any major life activity. It did not render Petitioner disabled within the meaning of the ADA. Mobley v. Bd. of Regents of University System, 924 F.Supp. 1178, 1187 (S.D. Ga. 1996); Dutcher v. Ingalls Shipbuilding, 53 F.3d 723 (5th Cir. 1995); Richardson v. William Powell Co., 3 AD Cases 1751 (S.D. Ohio 1994).
Petitioner's physical impairment interfered with his ability to do a particular job or a narrow range of jobs. Such a limitation is not adequate to prove that Petitioner is "substantially limited" in working. Lawrence v. Metro-Dade Police Dept., 872 F.Supp. 950 (S.D. Fla. 1993); Jasany v. United States Postal Service, 755 F.2d 1244 (6th Cir. 1985); Forresi v. Bowen, 794 F.2d 931 (4th Cir. 1986); Chandler v. City of Dallas, 2 F.3d 1385 (5th Cir. 1993). Even when an individual's disability precludes him from employment in the particular job or profession of his choice, the "inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working." Pritchard, 92 F.3d at 1133; Welsh v. City of Tulsa, Oklahoma, 977 F.2d 1415 (10th Cir. 1992).
Petitioner was disabled by his mental condition at the
time he resigned from his employment with Respondent. Petitioner was substantially limited in his ability to perform major life
activities such as work. When compared with the average person having similar qualifications, Petitioner could not perform a class of jobs or a broad range of jobs in various classes. 29 C.F.R. § 1630.2 (j)(3)(ii).
Petitioner must show that he could have performed the dispatcher job with reasonable accommodations and the accommodations that should have been made, including any alternative positions that should have been made. White v. York International Corp., 45 F.3rd 357, 361, (10th Circ. 1995); Shiring v. Runyon, 90 F.3d 827 (3d Cir. 1996); Buckingham v. United States, 998 F.2d 735 (9th Cir. 1993). Petitioner must show that such accommodations are possible. Buckingham, 998 F.2d at 740.
The only accommodation requested by Petitioner was for help in the dispatcher job. Respondent was not obligated to accommodate Petitioner by having employees "assist" Petitioner in the performance of his duties. An employer is not required to reallocate essential functions. 29 C.F.R. App. Section 1630.2(o).
An employer has no obligation to create a special job for an employee who cannot do the job for which he or she was hired. The reasonable accommodation required by the ADA does not require that an employer must create a light duty position or a new permanent position for a disabled employee. Howell v. Michelin Tire Corp., 860 F.Supp 1488 (M.D. Alabama, 1994); Shiring v. Runyon, 90 F.3d 827 (3d Cir. 1996).
A reasonable accommodation by reassignment is limited to vacant positions. 42 U.S.C. §12111 (9)(B). Reassignment to a
temporary job is limited to the temporary period. Respondent is not required to convert a temporary job into a permanent one.
Champ v. Baltimore County, 884 F.Supp. 991 (D.Md. 1995); Howell v. Michelin Tire Corp., 860 F.Supp. at 1492.
Respondent repeatedly accommodated Petitioner from 1987 through July 1993. Respondent created positions to enable Petitioner to continue his employment with Respondent.
Respondent did not represent that the jobs it created for him, or temporarily placed him in, were permanent positions. Respondent was not under an obligation to accommodate Petitioner indefinitely by continuing to create temporary light duty work or by creating a permanent light duty work. Respondent was not required to make the aggregate dispatcher job a permanent position.
The law affords no protection from discrimination unless the employer engages in an adverse employment action. Bristow v. Daily Press, 770 F.2d 1251 (4th Cir. 1985); Moriskey v. Broward County, 80 F.3d 445 (11th Cir. 1996). Respondent took no adverse employment action against Petitioner.
Petitioner resigned from his job. Respondent was satisfied with Petitioner's work and did not terminate Petitioner from his job. Petitioner decided he could not do the job.
RECOMMENDED that the Commission enter a Final Order finding Respondent not guilty of discriminating against Petitioner.
Jack L. Shoemaker, pro se
Charles S. Caulkins, Esquire Wendy J. Smith, Esquire Fisher and Phillips
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.
