STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MAGGIE PEARLE VINSON, )

)

Petitioner, )

)

vs. ) Case No. 00-4425

) DEPARTMENT OF CHILDREN AND ) FAMILY SERVICES, d/b/a NORTH ) FLORIDA EVALUATION AND )

TREATMENT CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, Administrative Law Judge of the Division of Administrative Hearings, on May 15, 2001. The hearing was conducted in Gainesville, Florida.

APPEARANCES

For Petitioner: Maxie Broome, Jr., Esquire

3120 Atlantic Boulevard, Suite Two Jacksonville, Florida 32207-8814

For Respondent: Dennis M. Flath, Esquire

1200 Northeast 55th Boulevard Gainesville, Florida 32641-2759

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding, as stipulated at the hearing, is whether the Petitioner has been subjected to discrimination on account of a handicap or disability.

PRELIMINARY STATEMENT

This cause arose upon the filing of a charge of discrimination by the above-named Petitioner with the Florida Commission on Human Relations. Ultimately, a finding of "no cause" was entered by the Florida Commission on Human Relations (Commission) and the Petitioner elected to file a petition for relief in order to obtain a hearing before the Division of Administrative Hearings. An answer to the petition was filed by the Respondent, containing denials that discrimination had been perpetrated by the Respondent and various affirmative defenses including the defense that the agency had been released from all claims and causes of action by the Petitioner's execution of a general release on September 11, 1997, in which the release discharged and surrendered all claims whether or not asserted against the agency, without any limitation, except that a right to pursue a claim under the Americans With Disabilities Act was specifically reserved. It was stipulated at hearing that the sole issue to be litigated in this case involved the Petitioner's charge of handicap discrimination.

The Respondent also contends, by way of defense and by Motion to Dismiss, that the claim for relief was barred because it was filed beyond the 35-day period allowed by Section 760.11, Florida Statutes, and because some of the allegations occurred on or before October 1, 1996, and therefore are barred because

they allegedly occurred more than one year prior to the filing of the claim. The Motion to Dismiss was granted in part to the extent that evidence of discriminatory events allegedly occurring before October 1, 1996, would be allowed only to show a continuing pattern or practice but not to stand alone, in and of themselves, as actionable violations of Chapter 760, Florida Statutes. The Motion to Dismiss concerning the Petitioner's purported violation of the 35-day period allowed by Section 760.11, Florida Statutes, for filing the Petition for Relief after the "no cause" determination, was denied because the Commission's rule allows for a three-day mailing period if the response to the cause determination is made by mail. The Petitioner signed the Petition on the 35th day and apparently mailed it so that it arrived on Monday, October 9, 2000, at the Commission. Since the third day after the 35-day time period would have occurred on a weekend, on Saturday October 7, 2000, it is appropriate that timely filing be considered to have occurred on the next business day, Monday October 9, 2000, when the office of the Commission was open and available to receive the mailing.

The cause came on for hearing as noticed. At the outset of the hearing the Petitioner conceded that the issue to be resolved was limited to the charge of handicap discrimination and that the other claims were stipulated as being previously

resolved. The Petitioner presented her own testimony and three exhibits, and the Respondent presented the testimony of two witnesses and Respondent's Exhibits A-M. All exhibits, without objection, were admitted into evidence. Upon concluding the proceeding the parties were accorded a stipulated 30-day period to file proposed recommended orders. Ultimately, however, no transcript was filed and no proposed recommended orders have been filed.

FINDINGS OF FACT

1. The Petitioner at times pertinent hereto was an employee of North Florida Evaluation and Treatment Center in Gainesville, Florida. She began working for that entity in 1985. Her position was that of Unit Rehabilitation Treatment Specialist. This required her to work with residents of the treatment and evaluation center. Her duties involved such things as helping move residents, and carrying food trays up and down stairs to residents.

2. Sometime in 1993, the Petitioner suffered a back injury, the result of which has caused her to have chronic, substantial pain in her back and leg. The injury apparently occurred in the line of duty on the job with the Respondent agency. The Petitioner missed some time from employment for these medical reasons and in December of 1993, was placed on light duty status at work due to the medical restriction

   recommended by her doctor. This light duty status involved such restrictions on her full employment activities as doing only light lifting and restricted use of stairs. Her light duty restrictions involved a great many of her "resident contact- type" activities of her job such as meal monitoring, delivery of meals, escorting residents, handling laundry, medication delivery and the like because of the restriction against use of the stairs, as well as heavy lifting. She was on this light- duty status for approximately three years when, in November 1996, a doctor told her, and she informed her employer, that she could no longer climb more than four flights of stairs per day. Since all treatment buildings at the facility where she worked had at least one flight of stairs, this severely restricted her ability to perform her daily job functions. Nevertheless, she was maintained on light duty status in order to accommodate her disability.

3. In December 1996, her doctor further restricted her employment status to no climbing of stairs at all. At that time, the Respondent temporarily assigned her to duty in the pharmacy in order to accommodate her inability to climb stairs or lift significant weight, as well as because there was a staff vacancy in the pharmacy. In February 1997 that assignment to the pharmacy ended because the staffing need there had ended. A

   person qualified and experienced in the pharmacy duties involved was hired.

4. The Respondent then attempted to find a suitable position to accommodate the Petitioner's disability within the department's district. The job search was unsuccessful. Since there was no permanent position available outside the treatment area where the Petitioner worked, which could accommodate her disability, the Respondent requested a new status report from her doctor.

5. Consequently, on February 5, 1997, the Petitioner's doctor stated that she was able to climb one flight of stairs in an eight hour day. The Respondent, therefore, continued to employ her on light duty in accordance with this restriction to one flight of stairs climbed in an eight-hour day, during the Petitioner's regular shift. She was allowed to work in her normal building location during her regular shift with this restriction with the result that other employees had to assume the duty she would normally have in her position as a unit treatment and rehabilitation specialist, which involved carrying medications, food or other items, climbing stairs, as well as handling patients or residents. She worked on this regular shift with these light-duty restrictions approximately three more months because the Respondent employer expected that situation to be temporary. Thereafter, however, her doctor

   advised that there would be no foreseeable change in that restriction in the future and he considered her physical limitations to be continuing indefinitely.

6. Because of this more or less permanent restriction imposed by her doctor, the Respondent took the position and advised her, on May 22, 1997, that it believed that she was unable to perform a significant number of essential job functions required of unit treatment and rehabilitation specialists on the day shift. The Respondent advised her that it believed that she was unable to perform most meal-monitoring functions, to escort residents, handle laundry and do most supervised activities out of the building as well as crisis intervention, medication delivery, monitoring and "coverage" of other buildings. Consequently, the Respondent informed the Petitioner that it would no longer be able to assign her to light duty on the day shift because it did not feel that she could perform sufficient of her duties to reach an adequate performance level. Other employees were having to perform many of her duties on a more or less permanent basis. The Respondent did advise her that it felt her needs could be reasonably accommodated (as well as the needs of the employer) by changing her schedule to the night shift. The night shift has a much lower level of activities, with no regular duties out of the building and virtually no necessity for resident contact.

7. The Respondent advised the Petitioner of this proposal to change her duties to the night shift and gave her time and an opportunity to respond and either accept or reject the position on the night shift. The Petitioner submitted a doctor's note on May 8, 1997, stating that she would not be able to work on the night shift and the Petitioner declined the position due to this and to family-related reasons.

8. Consequently, the Respondent felt it had no choice but to start termination of the Petitioner's employment. The Respondent candidly told the Petitioner that this did not involve her misconduct and that it was not trying to discredit her in any manner. However, the Respondent was unable to keep her in her position because it was beyond her physical capabilities, even after according her a much longer than normal light duty status. In fact, unrefuted testimony shows that, normally, light duty status is accorded for a four to six-month period and the Petitioner was given that benefit or accommodation for approximately four years. In any event, the Respondent found that the position occupied by the Petitioner was beyond her physical capabilities, that the safety of residents and other personnel in the building required that every employee be able to fully perform essential job standards and functions and that the Petitioner could not do so. Thereafter she was given an opportunity to meet with the

   Respondent to discuss and propose any alternatives, but after these opportunities elapsed she was terminated from her position on or about June 3,1997.

9. There is no question that the Respondent knew the Petitioner had a disability. Indeed that disability was accommodated by light duty for more than four years. The testimony of Ellen Young and Sue Tennant, testifying for the Respondent, establishes that the normal course of a light-duty assignment, in the case of a disability, is for a period of four to eight months. Thus, the Respondent went far beyond the norm in according more than four years of light duty. Indeed, thereafter, the Respondent gave her a temporary re-assignment to the pharmacy and thereafter sought to find another position she could occupy and perform well enough, with her disability, to no avail. The Respondent also sought to continue her in its employ by re-assignment of her to the less strenuous night shift. She refused this re-assignment due to her doctor's restrictions on her activities, as well as for personal and family reasons (she simply did not want to work at night).

10. It is also the norm, according to the Respondent's unrefuted testimony, through the above two named witnesses, that light duty is a concept which means that such a disabled person cannot perform a small portion of his or her job. It does not mean that such a person can be maintained in employment for a

    long period of time or indefinitely when she cannot perform a large portion of the duties of the job. It was established by the preponderant evidence consisting of these witnesses' testimony that the Petitioner was unable to perform a large portion of the duties of her position and that other employees on her shift had to perform a significant portion of her duties. In summary, the Respondent made every reasonable effort to accommodate her disability and to continue her in employment, short of simply creating an entirely new position tailored to her disability limitations (and for that reason). It thus reasonably accommodated her disability limitations or tried to.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case. Section 120.57(1), Florida Statutes, and Chapter 760, Florida Statutes.

12. The burden of proof responsibilities in discrimination cases brought under Chapter 760, Florida Statutes, are best articulated in Department of Correction's vs. Chandler, 582

    So. 2d 1183 (Fla. 1st DCA 1991), citing with approval Texas Department of Community Affairs vs. Burdine, 450 U.S. 248, 101

    Supreme Court 1089, 67 Lawyers Edition Second 207 (1981). The Chandler opinion is instructive in stating that:

    Pursuant to the Texas Department of Community Affairs vs. Burdine, 450 U.S. 248,

    101 Supreme Court 1089, 67 Lawyers Edition Second 207 (1981), formula, 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 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, non-discriminatory 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 satisfies its burden, the employee must then persuade the fact finder that the proffered reason for the employment decision is 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.

    
    

13. The Florida Commission on Human Relations stated in Clark vs. Jackson County Hospital, Florida Commission on Human

    Relations Final Order in DOAH Case No: 95-4956, entered July 1, 1997, that:

    . . .to establish a prima facie case of handicap discrimination, the Petitioner must show: (1) she is handicapped; (2) that she performed or is able to perform her assigned duties satisfactorily; and (3) that despite her satisfactory performance, she was terminated. O'Neal vs. Sarasota County School Board, 18 FALR 1129, at 1130 (FCHR.

    1994), citing Swenson-Davis vs. Orlando Partners, Inc., 16 FALR 792, at 798 (FCHR.

    1993).

    
    

14. In applying these principles to the facts found above it must be concluded that the Petitioner established her handicap or disability. She had the specific medical restrictions involving her back and leg pain described in the above Findings of Fact, chiefly involved in not lifting excessive weight or in climbing stairs. She also proved, and indeed it is undisputed that these conditions were known to her employer. The Petitioner, however, did not proceed to prove the other portion of her prima facie case in that she did not prove that she performed her job satisfactorily and was terminated despite satisfactory job performance.

15. The Petitioner herein did not prove that she was able to do her job satisfactorily with or without reasonable accommodation. The restriction provided by her doctor against climbing stairs, first with only one flight per day permissible and then with none, was accommodated for a long period of time by the Respondent, but it was not reasonable in that it prevented her from doing the majority of her duties which had to

    be handled by other employees. The employer searched unsuccessfully for other jobs which she could perform which would accommodate her disability. The final solution proposed by her employer, which involved regular duties which were much lighter, was performing her job on the night shift. She voluntarily chose not to accept that accommodation. Although the employer dismissed her because she was unable to satisfactorily perform her duties, after its years of efforts to help her do so, at least a portion of the reason for that ultimate decision was her voluntary refusal to accept employment on the lighter duty night shift. She also chose, on or about the time of her dismissal, to seek disability retirement status.

16. For purposes of proving failure to accommodate the handicapped, a Petitioner must minimally show that he has a physical impairment which substantially limits one or more of his major life activities, that the employer knew of the handicap and the employer failed to find a job function consistent with those physical limitations. There is no question that the physical impairments involved in this case substantially limit one or more of the Petitioner's major life activities and it is undisputed that the employer knew of this handicap. The Petitioner must also show that the employer failed to reasonably accommodate her disability with a job function consistent with her physical limitations. See Section

    760.22(7)(1), Florida Statutes, and Brand vs. Florida Power

    
    

    Corporation, 633 So. 2d 504 (Fla. 1st DCA 1994).

    
    

17. In response to the doctor's limitations, which the employer was aware of, and which legally constitutes her "handicap" or disability, the employer accommodated the Petitioner by limiting the duties on the Petitioner's shifts. Actually, it was more than a reasonable accommodation because it resulted in a major portion of the Petitioner's duties being handled by other employees. This light duty also proceeded for more than the normal four to six-month period established by unrefuted evidence and indeed lasted more than four years. Moreover, the Respondent made efforts to place the Petitioner in other positions which she could satisfactorily perform with her handicap, but could find none other than the temporary pharmacy position which was never expected by the Petitioner or the Respondent to be permanent. The employer did arrive at a reasonable accommodation involving placing the Petitioner in the less strenuous night shift where she may have been able to satisfactorily perform. Nonetheless, the Petitioner elected, for understandable, if not legally germane reasons, to decline changing to the night shift.

18. An employer, however, is not required to create an entirely new job for a handicapped employee or to hire others to do his job for him, nor must it re-allocate work. See 29 CFR

app. Section 1630.2(0); Brand vs. Florida Power Corporation,

supra; Howell vs. Michelin Tire Corporation, 860 F.Supp 488 (MD Alabama 1994); Shiring vs. Runyon, 90 F.3d 827, (3rd Circuit 1996). The employee has the burden to prove the existence and reasonableness of any proposed accommodations for his handicap which have not been offered him. Taylor vs. Food World, Inc.,

133 F.2d 1419 (11th Circuit 1998). The Petitioner has not met that burden herein by showing a reasonable proposed accommodation which the employer could accord her without a major re-assignment of work, or the creation of an entirely new job position or by hiring others to simply do the employee's job or the major portion of it. In summary, the Petitioner failed to demonstrate a prima facie case in the above particulars. She

has not demonstrated that she has suffered discrimination on account of her disability or handicap.

RECOMMENDATION

Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore,

RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition in its entirety.

DONE AND ENTERED this 11th day of September, 2001, in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

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

Filed with Clerk of the

Division of Administrative Hearings this 11th day of September, 2001.

COPIES FURNISHED:

Maxie Broome, Jr., Esquire 3120 Atlantic Boulevard Suite Two

Jacksonville, Florida 32207-8814

Dennis M. Flath, Esquire 1200 Northeast 55th Boulevard

Gainesville, Florida 32641-2759

Azizi M. Dixon, Agency Clerk

Florida Commission on Human Relations Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

Dana A. Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

Josie Tomayo, General Counsel

Department of Children and Family Services Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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.

Docket for Case No: 00-004425

Orders for Case No: 00-004425