STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JEFFREY S. WYTRWAL, )

)

Petitioner, )

)

vs. ) Case No. 99-1782

) WASTE MANAGEMENT OF PUTNAM ) COUNTY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on August 5, 1999, in Palatka, Florida, before Donald R. Alexander, the assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jeffrey S. Wytrwal, pro se

Post Office Box 701 Satsuma, Florida 32189-0701

For Respondent: Joseph P. Shelton, Esquire

1500 Resurgens Plaza

945 East Paces Ferry Road Atlanta, Georgia 30326-1125

STATEMENT OF THE ISSUE

The issue is whether Respondent committed a violation of the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on January 2, 1998.

PRELIMINARY STATEMENT

This matter began on January 2, 1998, when Petitioner, Jeffrey S. Wytrwal, filed a Charge of Discrimination with the Florida Human Relations Commission alleging that Respondent, Waste Management of Putnam County, had violated Chapter 760, Florida Statutes, by discriminating against him on account of his handicap. When the agency had not completed its investigation within 180 days, Petitioner elected to proceed with a formal hearing under Section 120.569, Florida Statutes. The case was then referred by the agency to the Division of Administrative Hearings on April 19, 1999, with a request that an Administrative Law Judge conduct a formal hearing.

By Notice of Hearing dated May 10, 1999, a final hearing was scheduled on August 5, 1999, in Palatka, Florida. At the final hearing, Petitioner testified on his own behalf. Respondent presented the testimony of its district manager, Brian Watkins, and it offered Respondent's Exhibits 1-5. All exhibits were received in evidence. Exhibit 5 is the deposition testimony of Dr. Douglas K. Dew, an orthopedic surgeon.

There is no transcript of the hearing. Proposed Findings of Fact and Conclusions of Law were filed by Respondent on

August 23, 1999, and they have been considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. In his Charge of Discrimination, Petitioner, Jeffrey S. Wytrwal, alleges that after he had suffered a knee injury, Respondent, Waste Management of Putnam County, violated the Florida Civil Rights Act of 1992, as amended, by failing to find him a "light duty" position "due to [his] disability and [because of] unfair favoritism throughout this company." Respondent denies the charge of discrimination and contends that Petitioner does not suffer from a disability, and even if he did, it had no positions in the company which were compatible with his medical restrictions.

2. Respondent is engaged in the business of providing solid waste collection services for the residents of Putnam County, Florida. Testimony by Respondent's district manager, Brian Watkins, established that Respondent is an employer within the meaning of the law and is thus subject to the provisions of Chapter 760, Florida Statutes.

3. Petitioner worked for Respondent as a driver on a garbage truck from 1990 until 1993, and then again beginning in January 1995. The work is physically demanding, and it requires that the driver frequently jump in and out of the vehicle to sling or empty garbage cans into the rear-end loader.

4. After working a 12-15 hour shift on January 28, 1997, Petitioner was home sitting on his bed "half Indian style" when he attempted to stand up. His right knee locked; he was transported to a local hospital; and he later underwent arthroscopic surgery to correct the injury.

5. After suffering the foregoing injury, Petitioner qualified for disability payments from his employer, and he began receiving a monthly disability check in the amount of $888.00.

6. On an undisclosed date after Petitioner suffered his injury, Respondent changed its hauling operation from a two-man team (a driver and swingman) on each truck to a single driver. This meant that the bona fide occupational requirements for the position of driver required that he engage in bending, stooping, and climbing on a repetitive basis for long hours each day without the aid of a "swingman."

7. On October 14, 1997, Petitioner was released by his doctor to return to work and was given a certificate which read "No bending, stooping, climbing (Light Duty Only, if available)." These restrictions obviously did not allow Petitioner to return to his former job.

8. Upon obtaining the release, Petitioner telephoned his supervisor, John Rakoczy, and asked if he could go back to work on "light duty," performing duties that would be compatible with his medical restrictions. On a very few occasions, Respondent had authorized an injured worker to perform other temporary

   duties if his injuries "fit a temporary job." However, except for two already filled dispatcher positions in the office, Respondent had no jobs which did not require bending, stooping, or climbing. Therefore, without making fundamental alterations in the company's operations, which would result in an undue hardship to the company, Rakoczy could not offer Petitioner part- time or restricted work. Petitioner did not seek the office dispatcher position, and he produced no evidence that he was qualified to perform that job. Although Petitioner admits that his knee has improved since October 1997, he never again contacted his employer regarding reemployment.

9. At hearing, Petitioner acknowledged that he agreed with Rakoczy's assessment that no light duty jobs were available within the company. Even so, he and his wife "took it hard," and in January 1998 he filed his Charge of Discrimination.

10. Petitioner has not alleged, nor presented competent and credible evidence, that his knee injury continues to limit the full and normal uses of his physical facilities. While it is undisputed that the injury may have limited his physical facilities during his recuperation, there is no evidence that it continues to do so, or that others regard him as having a disability. Therefore, Petitioner has failed to demonstrate that he is disabled within the meaning of the law.

11. Respondent's decision to not offer Petitioner light duty was not based on discriminatory reasons, as Petitioner has

    alleged, but was based on the fact that there were no jobs which were compatible with Petitioner's medical restrictions.

12. While collecting medical disability payments, Petitioner also filed a worker's compensation claim against his employer in October 1997, and this claim was settled in May 1999 for the sum of $27,000.00. By agreeing to the settlement, Petitioner was no longer eligible for disability payments, and they terminated in May 1999.

13. Until he settled his worker's compensation claim, Petitioner did not look for other employment. After the case was settled, however, he secured a job within a week at a local country club doing maintenance and landscaping work, and he has worked there since that time. There is no evidence as to how his current job duties compare with the duties that he performed for Respondent. Further, the difference in compensation, if any, between the new job and Petitioner's former job is not of record.

14. Although Petitioner contended that Respondent had offered "light duty" to other injured workers in the past, he could only identify one such worker named "Keith," who had lost four fingers in an accident. Unlike Petitioner, however, that worker was able to perform a variety of temporary jobs despite the limitations caused by his injury.

15. Neither the Charge of Discrimination, nor the record evidence, reveals the specific relief that Petitioner is

    requesting. Rather, the complaint merely lodges allegations of discrimination against Respondent.

16. Respondent suggests that Petitioner's injury was pre-existing, and occurred before January 28, 1997, and that Petitioner may be malingering. This is based on the treating physician's notes which reflected that Petitioner had his symptoms prior to the date of the injury. Even if this were

    true, however, this fact would appear to bear on the legitimacy of Petitioner's worker's compensation claim, and not the charge of discrimination. Finally, even though the treating physician suspected that Petitioner might be malingering with his injury, this was only a suspicion and was not medically confirmed.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

18. In his Charge of Discrimination, Petitioner does not allege that he was terminated from employment on account of his disability. Rather, he has alleged that in October 1997 he was discriminated against "due to [his] disability" and "unfair favoritism throughout [the] company." This broad allegation is presumably based on the claim that his employer failed to offer him a light duty position consistent with his medical restrictions. Assuming this charge to be true, arguably it would

    constitute a violation of Section 760.10(1)(a), Florida Statutes (1997), which provides in relevant part as follows:

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

       
       

       (a) To . . . discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's

       . . . handicap.

       
       

19. The Florida Commission on Human Relations (Commission) has long held that in a case such as this, to make out a prima facie case of handicap discrimination under Section 760.10(1)(a), Petitioner must show that he is disabled; that he performed or was able to perform his assigned duties satisfactorily; and that despite his satisfactory performance, he was terminated from, or he was discriminated against with respect to the terms or conditions of, his employment. See, e.g., Clark v. Jackson County Hospital, 20 F.A.L.R. 1 182, 184 (Fla. Comm'n Human Relations, June 25, 1997). At the same time, in contrast to the more narrow federal definition of a disability, if a person "does not enjoy in some measure the full and normal uses of his sensory, mental or physical facilities," the Commission considers a person to have a handicap. See, e.g., Thomas v. Floridin Company, 8 F.A.L.R. 5457, 5458 (Fla. Comm'n Human Relations, October 9, 1986).

20. Here, Petitioner has failed to meet his burden of proving a prima facie case. To begin with, there is insufficient proof that Petitioner is disabled or handicapped within the

    meaning of the law. That is to say, there is no evidence, or even allegations for that matter, that Petitioner's injury was anything other than temporary. As a matter of fact, once Petitioner settled his worker's compensation claim, he immediately obtained a job involving landscaping and maintenance work at a local country club.

21. In the context of a discriminatory claim, under relevant federal case law, a temporary, as opposed to a permanent, injury does not constitute a disability. See, e.g., Evans v. City of Dallas, 861 F.2d 846, 853 (5th Cir. 1988) (employer not held liable for the discharge of an employee whose knee injury required leave and surgery because the injury was not continuing in nature); Visarraga v. Garrett, 1993 WL 20997 (N.D. Cal.)(back injury necessitating leave of absence and light duty restrictions not a handicap because only temporary); Prescutti v. Felton Brush, Inc., 927 F.Supp. 545, 550 (D. N. H. 1995) ("considering the plain wording of the applicable statutes, the interpretative guidelines and various court decisions . . . a temporary injury . . . cannot be the basis for a viable cause of action under the Americans with Disabilities Act"). These cases are persuasive, and their rationale should apply here. This being so, Petitioner has failed to meet the first part of his required evidentiary showing.

22. Even if the above were not so, Petitioner has failed to show that he was able to perform his assigned duties

    satisfactorily. While Petitioner could satisfactorily perform the functions of a driver prior to his injury, he was unable to do so with or without an accommodation when the challenged employment decision was made.

23. During Petitioner's recuperation period, there was no legal requirement on Respondent to create a light duty position to accommodate his temporary disability. See, EEOC, A Technical Assistance Manual on the Employment Provisions of the Americans with Disabilities Act, Section 9.4 (1992). See also EEOC Enforcement Guidance: Workers' Compensation and the ADA, Light Duty # 27 ("the principle that the ADA does not require employers to create positions as a form of reasonable accommodation applies equally to the creation of light duty positions"). In addition, case law teaches us that an employer is only required to make a reasonable accommodation if it does not impose an undue hardship, and if such accommodation can be extended "without making fundamental alterations to its program." Brand v. Fla. Power Corp., 633 So. 2d 504, 512 (Fla. 1st DCA 1994). Here, the evidence shows that Respondent could not have accommodated Petitioner's medical restrictions without making fundamental changes in its program.

24. Finally, even if Petitioner's allegation regarding "unfair favoritism" is construed to be a claim that he was forced to work in a hostile work environment, there was no evidence to

    support this contention. Compare Greene v. Seminole Electric Cooperative, Inc., 701 So. 2d 646, 647 (Fla. 5th DCA 1997).

25. Because Petitioner has failed to make a prima facie case of discrimination, his Charge of Discrimination should be dismissed, with prejudice.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Commission on Human Relations enter a final order dismissing, with prejudice, Petitioner's Charge of Discrimination.

DONE AND ENTERED this 31st day of August, 1999, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(850) 488-9675, SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1999.

COPIES FURNISHED:

Jeffrey S. Wytrwal Post Office Box 701

Satsuma, Florida 32189-0701

Joseph P. Shelton, Esquire 1500 Resurgens Plaza

945 East Paces Ferry Road Atlanta, Georgia 30326-1125

Sharon Moultry, Clerk

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana A. Baird, General Counsel Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order within 15 days. Any exceptions to this Recommended Order should be filed with the Florida Commission on Human Relations.

Docket for Case No: 99-001782

Orders for Case No: 99-001782