vs.
Respondent.
) Case No. 01-3837
A formal hearing was held by Daniel M. Kilbride, Administrative Law Judge, Division of Administrative Hearings, in the above-styled case on January 28, 2002, in Clearwater, Florida.
For Petitioner: Craig L. Berman, Esquire
Berman Law Firm, P. A.
360 Central Avenue, Suite 1260 St. Petersburg, Florida 33701
For Respondent: Alan S. Zimmet, Esquire
Zimmet, Unice, Salzman & Feldman, P.A. Two Prestige Place
Whether Petitioner was denied reasonable accommodation for his disability by Respondent in violation of the Pinellas County Code, Chapter 70 (“Chapter 70").
Whether Petitioner was wrongfully terminated from his position as a bus operator by Respondent because of his disability in violation of Chapter 70.
On or about August 12, 1997, Petitioner filed a Charge of Discrimination with the St. Petersburg Community Affairs Department, Human Relations Division, alleging that Respondent discriminated against him on the basis of his disability. He had requested and was denied reasonable accommodation for his disability while employed by Respondent as a bus operator and was subsequently terminated in violation of the Americans with Disabilities Act (“ADA”) and Chapter 70. After investigation, the Human Relations Division issued a determination on November 27, 2000. Thereafter, on July 18, 2001, the Human Relations Division filed a Complaint for relief with the Community Affairs Department alleging that Petitioner was subjected to adverse terms and conditions of his employment,
including the denial of reasonable accommodation and termination from employment, because of his disability, diabetic retinopathy. On August 20, 2001, the Human Relations Division requested an administrative hearing be conducted by the Division of Administrative Hearings.
Petitioner’s claims were referred to the Division of Administrative Hearings and were scheduled for a final hearing
on November 28, 2001. On November 19, 2001, Respondent filed a Motion to Dismiss based on the fact that the Human Relations Division failed to request an administrative hearing within four years of the date of the last act of alleged discrimination, which Petitioner alleged in his Charge as June 10, 1997, the date of his termination. The Motion also sought the dismissal of the ADA claims for lack of jurisdiction. A teleconference was conducted on the Motion on November 26, 2001, during which the parties consented to a continuance of the final hearing.
In response to the Motion to Dismiss, Administrative Law Judge Lawrence P. Stevenson issued an Order finding that Petitioner timely filed the Charge of Discrimination but that the Human Relations Division did not timely issue the cause determination--the necessary predicate to a hearing before the Division of Administrative Hearings. The Order concluded that the Human Relations Division’s tardiness was not within the control of Petitioner and should not be interpreted to his prejudice. It was noted, however, that the Division of Administrative Hearings does not have jurisdiction over claims made under the ADA. The final hearing was rescheduled to January 28, 2002, and the case was reassigned to the undersigned Administrative Law Judge.
At the hearing, Petitioner, represented by counsel, testified on his own behalf and offered the testimony of Gail
Bilbrey, Benefits Specialist; Roger Mogle, Director of Human Resources; and Roger Sweeney, Executive Director. Petitioner’s Exhibits 1 through 16 were admitted into evidence. Respondent, also represented by counsel, recalled Gail Bilbrey and also presented the testimony of Susan Lanham. Respondent’s
Exhibits 1 through 5 were admitted into evidence.
At the close of the hearing, the parties agreed to file proposed findings of fact and conclusions of law, and briefs in support of their position, within 20 days of the filing of a transcript of the hearing. A Transcript of the hearing was filed on February 11, 2002. Each party timely filed their Proposed Findings of Fact and Conclusion of Law, and they have been given careful consideration in the preparation of this Recommended Order. On March 11, 2002, Respondent filed a Motion to Strike and Petitioner filed a response on March 14, 2002.
Upon review of the record, Respondent's motion is denied.
Petitioner, Richard Mastromarino, is a resident of St.
Petersburg, Pinellas County, Florida.
Respondent, Pinellas Suncoast Transit Authority, is publicly funded transit agency and is an employer under Pinellas County Code, Chapter 70.
Petitioner was employed by Respondent from May 7, 1979, until June 10, 1997, as a bus operator. The position of bus operator requires a commercial driver’s license.
After experiencing vision problems, Petitioner visited his primary physician in February 1997. The primary physician diagnosed Petitioner with diabetic retinopathy and referred him to an ophthalmologist. After his diagnosis, Petitioner informed his immediate supervisor of his condition and availability to do light-duty work, and requested a medical leave form to take with him to his appointment with the ophthalmologist.
On March 3, 1997, Petitioner visited ophthalmologist Dr. William T. Cobb, who confirmed the diagnosis of diabetic retinopathy, a condition that causes the blood vessels in the retina of the eye to excrete liquid and blood, thus impairing vision. Dr. Cobb informed Petitioner that as a result of his diabetic retinopathy, his vision was insufficient to drive any vehicle, including PSTA buses. In a Progress Report dated March 3, 1997, Dr. Cobb indicated that Petitioner “works as a bus driver and his occupation is threatened by his ocular disease.” Dr. Cobb also completed Petitioner’s medical leave form entitled Certification of Health Care Provider. On the form, Dr. Cobb described Petitioner’s vision as “limited to less than required for driving a bus.” The form also inquired whether Petitioner was able to perform any one or more of the
essential functions of his job. In response, Dr. Cobb indicated that Petitioner was “unable to see to drive.” With regard to the probable duration of Petitioner’s incapacity, Dr. Cobb stated that the duration was “unknown.”
Petitioner was referred by Dr. Cobb to Dr. W. Sanderson Grizzard for laser surgery. The first of several surgeries were performed in May and June of 1997. During this time, Petitioner was extremely concerned about the outcome of the surgeries. He understood from his physicians that there was a chance that his visual limitations could worsen and that there was a possibility that he might lose his eyesight altogether. Therefore, his immediate goal was to obtain medical leave under the Family Medical Leave Act (“FMLA”) in order to have the surgeries performed. He also desired light-duty work in order to stay employed while he scheduled the surgeries. He was hoping that when his surgeries were complete, he could discuss his future with PSTA as far as which other jobs he could perform. He estimated that he would be able to discuss future work with PSTA in August or September of 1997. This information, however, was not conveyed to PSTA.
Petitioner’s inquiries to his immediate supervisor regarding light-duty were referred to Gail Bilbrey, Benefits Specialist. Bilbrey administers a program instituted by Respondent, although not in writing, that assigns eligible
employees on workers’ compensation leave to available temporary, part-time light-duty positions that accommodate their physical restrictions. In administering the program, Bilbrey reviews the medical documentation of an employee on workers’ compensation leave and determines if an existing position is vacant within one of several PSTA departments that the employee may be able to perform given the employee’s physical limitations. Because the positions available under this program are existing positions and are part of a bargaining unit of a labor union, light-duty assignments are not created for individual employees. Light- duty positions are extremely limited in number and are often not available for all employees injured on the job.
The purpose of PSTA's light-duty program is to save costs of workers' compensation injuries by utilizing employees on workers' compensation leave, whom PSTA is required to pay, in vacant light-duty positions. Temporary light-duty positions, thus, are given to employees on workers' compensation by PSTA. The intent of the program is for the employee to occupy the position only on a temporary basis; thus, light-duty assignments are only granted to employees who are expected to return to work in their regular job.
Since Petitioner was not on workers' compensation leave and was not expected to return to his bus-driving job, Petitioner was not eligible for a light-duty assignment.
Even if Petitioner had qualified for light-duty, no light-duty positions were available at PSTA at the time of his request. Petitioner was informed of the lack of light-duty work during several conversations with Bilbrey. In response to his request, Bilbrey also prepared a memorandum dated April 23, 1997, indicating that no light-duty was available at that time.
The main light-duty positions available at PSTA involved money-counting and ride surveying. Petitioner’s vision impairment prevented him from performing the functions of ride surveying, which includes observing passengers boarding and exiting PSTA buses at each bus stop and recording the results in writing. The money-counting light-duty position required the use of money-counting machines, checking bills, handling coins, and delivering/picking up tickets and money at Respondent’s remote terminals.
Despite his vision limitations, Petitioner claims to have been aware of several full-time positions that he alleges he would have been able to perform in June 1997. First, Petitioner claims to have been able to perform the position of fueler/cleaner, which requires a valid Florida Class “B” Commercial Driver’s license, with passenger endorsement and air brakes, the ability to clean buses, and the ability to check coolant and oil levels. However, Petitioner had relinquished his commercial driver’s license in 1997, his physicians had
stated he could not drive a bus, and, as observed by Bilbrey, his vision was insufficient to perform the job duty of checking coolant and oil levels.
Two other positions became available at PSTA during the time in question which Petitioner now contends he would have been able to perform with adaptive equipment. First, the position of Customer Service Representative was posted by PSTA in early March 1997. This position involves selling tickets and passes, giving route and scheduling information to the public, and delivering supplies to three of Respondent’s remote locations. In 1997, maps and route schedules were not computerized and involved reading very small print. In addition, if Petitioner had qualified for and had been awarded the position, as the least senior Customer Service Representative, Petitioner likely would have been assigned as a “floater,” requiring Petitioner to be able to “float” between different remote terminals at different times to relieve other Customer Service Representatives. The shift of Customer Service Representatives begins at 6:00 a.m., prior to regular bus service. Given the fact that Petitioner was unable to read the fine print of the maps and schedules in a timely fashion and because transportation to deliver supplies, to float between terminals, and to report to work at 6:00 a.m. prior to bus service would have been a significant issue, Petitioner would
not have been able to perform the job of Customer Service Representative.
Also, in June 1997, the position of Clerk Risk Management became available. Petitioner had limited computer and clerical experience. Therefore, because this position requires extensive typing, computer work, and proofreading, Petitioner did not qualify for the position due to his limited vision and lack of computer experience.
Petitioner was unable to perform these functions.
After several surgeries, Petitioner's vision has stabilized but he is still legally blind by Social Security disability standards.
Regardless of whether Petitioner would have been qualified, Petitioner did not apply for a request consideration for any of these positions or provide any documentation to Respondent indicating his ability to perform these jobs.
Instead, in May 1997, Petitioner applied for long-term disability benefits. He completed the application in Bilbrey’s office with the aid of a magnifying glass. Attached to the application for long-term disability benefits was an Attending Physician’s Statement dated April 30, 1997, which was also provided to Respondent by Petitioner. On the form, Dr. Cobb indicated that the approximate date Petitioner would be able to resume any work was “indefinite” and that his prognosis for work
was secondary to vision. Petitioner was granted and accepted long-term disability benefits. Pursuant to the long-term disability policy, Petitioner was found totally disabled and could not work.
In addition, in April 1997, Petitioner requested an extended leave of absence beyond his FMLA leave that was due to expire in June 1997. However, when applying for the extended leave of absence, Petitioner was unable to specify a time frame in which he would be able to return to work. In fact, in a letter dated May 28, 1997, provided to Bilbrey on June 9, 1997, in support of Petitioner’s request for extended leave,
Dr. Grizzard indicated that he “would expect [Petitioner] to not be able to work for at least 3 months.” Because Petitioner’s physicians were not able to provide a specific date when he could return to work, Petitioner’s request for extended leave was denied in accordance with Respondent’s policy. Thereafter, since Petitioner had exhausted all FMLA leave, was unable to perform the essential functions of his job as a bus operator, even with reasonable accommodations, and was unable to provide a definite date of return, Petitioner was terminated from his position as a bus operator on June 10, 1997, in accordance with PSTA policy.
After his termination, Petitioner filed a grievance wherein he again requested an extended leave of absence until
September 9, 1997, so that he could concentrate on his surgeries and to determine if he would be able to return to work at PSTA. A grievance hearing before Executive Director Roger Sweeney was held on June 30, 1997. At that hearing, Petitioner did not request light-duty assignment or reassignment to a new permanent position. Petitioner’s grievance was denied since Petitioner was unable to perform the duties for which he was hired, had been absent from employment with PSTA in excess of three months, had exhausted all FMLA leave, and was unable to provide a definite date of return.
Following the grievance hearing, Petitioner was referred by the Division of Blind Services to Abilities of Florida for vocational rehabilitation training in January 1998. An assessment of his abilities indicated that Petitioner had limited keyboarding, computer, and clerical experience and was unable to score high enough on the 10-key calculator test to qualify for clerical training. Approximately three years after his termination, Petitioner also requested an evaluation to determine whether he could count money. In an informal test, Petitioner counted $55 in petty cash. However, no vocational report was ever provided to PSTA by Petitioner.
The evidence fails to prove that Respondent’s employment decisions toward Petitioner were based upon or influenced by his disability.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and Petitioner claims under Chapter 70, Pinellas County Code, pursuant to Sections 120.569 and 120.57(1), Florida Statutes.
However, the Division does not have jurisdiction over Petitioner's claims under the ADA and they previously have been dismissed; although to the extent the provisions of the ADA are the same as Chapter 70, cases arising under the federal ADA may be instructive. James v. Alachua County Department of Criminal
Justice Service, 2001 WL 1107836 (Fla. Div. Admin. Hrg. Sept. 18, 2001).
The Pinellas County Code, Chapter 70 provides, in pertinent part, as follows:
Sec. 70-52. Purposes and intent.
The general purposes of this division are to:
Provide for execution within the county of the policies embodied in the Federal Civil Rights Act of 1964, as amended.
Secure for all individuals within the county the freedom from discrimination because of race, color, religion, national origin, sex, age, marital status, or disability in connection with employment, and thereby to promote the interests, rights and privileges of individuals within the county.
Sec. 70-53. Unlawful practices.
Unlawfully discrimination in employment practices.
Employers. It is a discriminatory practice for an employer to:
Fail or refuse to hire, discharge, or otherwise discriminate against an individual with respect to compensation or the terms, conditions, or privileges of employment because of race, color, religion, national origin, sex, age, marital status, or disability; or
Limit, segregate, or classify an employee in a way which would deprive or tend to deprive an individual of employment opportunities or otherwise adversely affect the status of an employee because of race, color, religion, national origin, sex, age, marital status, or disability.
The above described prohibited discrimination on the basis of sex includes sexual harassment, including same-sex sexual harassment, and pregnancy discrimination.
Sec. 70-51. Definitions.
Disability means:
A physical or mental impairment which substantially limits one or more of such person’s major life activities;
A record of such an impairment; or
Being regarded as having such an impairment.
An individual having a disability is “qualified” with respect to employment if he can perform the essential functions of the job in question with reasonable accommodations.
In this administrative action, Petitioner has the initial burden of establishing a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792,
93 S. Ct. 1817 (1973). If Petitioner sustains his initial burden, Respondent then must establish some legitimate, non- discriminatory reason for the action taken in order to rebut the inference of discrimination, a reason which is clear, reasonably specific, and worthy of credence. Texas Department of Community Affairs, v. Burdine, 450 U.S. 248, 101 S. Ct. 1089 (1981); Cheeseman v. Lincoln Construction Company, 1989 WL 644456 (Fla. Div. Admin. Hrgs. Aug. 22, 1989). The employer has the burden of production, not one of persuasion, which remains with the employee at all times. 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 was a pretext for intentional discrimination. Id. 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 is not worthy of belief. If such proof is adequately presented, the employee satisfies his or her ultimate burden of demonstrating by a
preponderance of evidence that he or she has been the victim of intentional discrimination. Id. at 1185-86.
Like the Americans with Disabilities Act, in order to establish a prima facie case of employment discrimination based on disability under Chapter 70, Petitioner must demonstrate that: (1) he is disabled; (2) he is an otherwise qualified individual, with or without accommodation; (3) he was subject to unlawful discrimination because of his disability; and (4) his employer knew or had reason to know of his disability. See Hilburn v. Murata Electronics North America, Inc., 181 F.3d 1220 (11th Cir. 1999). In this case, there is no dispute that Petitioner was disabled and that Respondent knew of Petitioner’s disability. Thus, the dispositive issues in this case are whether Petitioner, despite his disability, was an otherwise qualified individual, with or without accommodation and if so, whether Petitioner was subject to unlawful discrimination because of his disability when Respondent failed to provide Petitioner with light-duty and an extended leave of absence and terminated him because of his inability to drive after he had exhausted all FMLA leave.
The burden is on the employee to prove that he is an “otherwise qualified” individual. Shiring v. Runyon, 90 F.3d 827, 832 (3rd Cir. 1996). Under Section 70-51 of the Pinellas County Code, an individual having a disability is “qualified”
with respect to employment if he can perform the essential functions of the job in question with reasonable accommodations. The definition of “qualified individual” under Chapter 70, therefore, is significantly different from the definition of that term contained in the ADA. It provides that a “qualified individual” is “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. Section 12111(8). Thus, while the ADA requires an employer to consider positions other than the disabled employee’s current job in determining whether an individual is otherwise qualified, there is no such requirement under Chapter 70. Therefore, if an employer determines under Chapter 70 that an employee cannot perform the essential functions of the employee’s job in question with reasonable accommodation, the employee will not be entitled to the protections as a “qualified individual” under Chapter 70.
Respondent thus correctly argues that where an individual is not otherwise qualified to perform the essential functions of his current job, the employer is not required under Chapter 70 to consider whether the employee might be able to perform another position.
In determining which job functions are essential, the ADA instructs that “consideration shall be given to the
employer’s judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.” 42 U.S.C. Section 12111(8). A job function may be considered essential if, inter alia, (1) the reason the position exists is to perform the function; (2) there are a limited number of employees available among whom the performance of the job function can be distributed; or (3) the function is highly specialized so that the incumbent in the position is hired for his ability to perform the particular function. 29 C.F.R. Section 1630.2(n)(2); Santos v. Port Authority of New York and New Jersey, 1995 WL 431336 (S.D.N.Y.
1995). A showing by an ADA plaintiff that he can satisfactorily perform light-duty functions is insufficient since light-duty, by its very nature, does not encompass all of the essential duties of a job. Id.
Obviously, the essential function of a bus operator is to drive a bus. The reason the position of bus operator exists is to perform the essential functions of driving a bus, which can be performed only by a limited number of employees. Indeed, the function of driving a bus is particularly important in this case given the nature of Respondent’s business as a transit agency.
In his testimony at the final hearing, Petitioner concedes that driving a bus was impossible for him to do. From the record it is clear that no amount of accommodation on the part of Respondent would have made this possible. In fact, Petitioner had relinquished his commercial driver’s license, an undisputed essential requirement of the job, in 1997. Because Petitioner was no longer able to drive a bus, he was not a qualified individual entitled to protection under the plain terms of Section 70-51.
Even though Petitioner was not a “qualified individual” under Chapter 70 and no further analysis is required, it is clear from the record that in 1997, Petitioner requested that Respondent reassign him to light-duty or grant him an extended leave of absence following the expiration of his FMLA leave as a reasonable accommodation. By his own testimony, Petitioner sought light-duty and extended leave in order to allow him time for his eye surgeries and to evaluate his ability to return to work. Unlike the ADA, however, Chapter 70 does not define “reasonable accommodation.” To the extent the ADA is applicable, “reasonable accommodation” under the federal act is one that would “enable the employer’s employees with disabilities to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.” 29 C.F.R. 1630.2(o). A
qualified individual with a disability is not entitled to the accommodation of his choice, however, but only a reasonable accommodation. Stewart v. Happy Herman’s Cheshire Bridge, Inc.,
117 F.3d 1278, 1286 (11th Cir. 1997). For example, it is clear under the ADA that reasonable accommodation does not require an employer to create a light-duty position or a new permanent position, nor is the employer required to convert a temporary job into a permanent one. Howell v. Michelin Tire Corporation, 860 F.Supp. 1488, 1492 (M.D. Ala. 1994).
An employer may be required to provide light-duty only where the employer has an existing vacant light-duty position available. Id. Even in these instances, if the light-duty job is a temporary position, reassignment to that job need only be for the temporary period of the job. Id. An employer is also not required to provide reasonable accommodation by reason of a transfer to a new position, such as light-duty where, independent of concerns about disability, the employer has a business policy against the pertinent kind of transfer or where the transfer would violate a collective bargaining agreement. See Duckett v. Dunlop Tire Corporation, 120 F.3d 1222, 1225 (11th Cir. 1997).
In this case, PSTA has a policy of placing only eligible employees on workers’ compensation leave in available, existing light-duty positions which were part-time. That
Respondent, as a matter of business policy, chose to create a light-duty program for employees on workers’ compensation leave does not establish that it was required to allow Petitioner, on leave for a medical condition unrelated to his employment, to receive benefits under that program as a reasonable accommodation. Duckett, 120 F.3d at 1225. That fact notwithstanding, the testimony of Respondent’s witnesses is uncontroverted that no light-duty positions were available at the time of Petitioner’s request. Where no vacant light-duty positions were available, Respondent was not required to create a new one for Petitioner. Id.
Moreover, it is clear from the record that Petitioner did not qualify for the main light-duty of money counting and ride surveying because of his vision impairment. Petitioner, as the employee, must show that he possessed the requisite skill, experience, education, and other job-related requirements of the employment position, with or without reasonable accommodation. Id.
Respondent was similarly not required to grant Petitioner’s second request for accommodation in the form of an extended leave of absence. In April 1997, Petitioner requested leave of at least two months after his FMLA leave, which was due to expire in June 1997. In response to PSTA’s request for medical documentation to support the leave request, PSTA
received correspondence from Dr. Grizzard on May 28, 1997, indicating that he did not expect Petitioner to be able to return to work for at least three months. Other medical documentation provided to Respondent could not predict Petitioner’s future vision and described his ability to return to work as “indefinite.” In his testimony at the final hearing, Petitioner acknowledges that he likely would not have been able to consider returning to any type of work prior to August or September of 1997.
An employer does not violate the ADA by refusing to grant an employee an extended period of time in which to cure his disabilities where the employee sets no temporal limit on the advocated grace period, urging only that he deserves sufficient time to ameliorate his conditions. Duckett, 120 F.3d at 1226. This is because the ADA, like Chapter 70, and its regulations contain no reference to a person’s future ability to perform the essential functions of his position. Id. To the contrary, the law is formulated entirely in the present tense, framing the precise issue as to whether an individual can, not will be able to perform the job with reasonable accommodation. Id. Accordingly, Petitioner’s request that PSTA accommodate his disability by providing him with two or more months leave when he could not show if or when he would likely be then able to return to work was not “reasonable” within the meaning of
Chapter 70 or the ADA; the course of Petitioner’s health was too uncertain. See Id.
It is clear from the record that at the time of his termination, Petitioner had only requested Respondent to provide light-duty and an extended leave of absence pending the outcome of his surgeries. After the fact, Petitioner now contends that Respondent was required to offer and reassign him to one of several vacant positions that became available as reasonable accommodation even though Petitioner never asked for or applied for these two positions. Petitioner did not become interested in these positions until long after his termination. However, as stated above, Chapter 70, which does not define “reasonable accommodation” does not require reassignment to another position. See Shiring v. Runyon, 90 F.3d at 831 (prior to 1992 when Rehabilitation Act did not require reassignment prior to amendment to include such option).
Although under the ADA, to the extent it is applicable, reasonable accommodation may include job restructuring, part-time or modified work schedules, or reassignment to a vacant position, the initial duty to inform the employer of the necessary specific accommodations falls on the employee. 42 U.S.C. Section 1211.2(8); Beck v. University
of Wisconsin Board of Regents, 75 F.3d 1130, 1136 (7th Cir. 1996). Blanket medical restrictions provided by the employee
will not be sufficient to inform an employer of the nature of the accommodations sought. Steffe v. Stepan Company, 144 F.3d 1070, 1072 (7th Cir. 1998). The employee also is required to update or further clarify the kinds of work he or she can do. Id. at 1073. Where an employer does not obstruct the process, but instead makes reasonable efforts to communicate with the employee, liability for failing to make reasonable accommodation will not follow. Beck 75 F.3d at 1137.
In the instant case, Petitioner provided Respondent with the blanket medical restriction that his vision was insufficient to drive a bus. Petitioner never further clarified his abilities, requested or applied for any other position, provided any documentation regarding his other abilities or skills, or indicated any ability to perform any other type of job. PSTA posts notice of its job opening at a number of locations including close to Bilbrey’s office, where Petitioner visited during his FMLA leave. He never asked Bilbrey, or anyone else at PSTA, about open positions at PSTA. None of the vocational rehabilitation information provided by Petitioner during the final hearing was provided to Respondent prior to his termination. In any case, these evaluations were of limited value given the fact that they were conducted well after his termination date. Instead, the documentation provided by Petitioner only indicated that he was unable to perform any work
for at least three months. Because Petitioner failed to clarify the extent of his abilities and in fact failed to show that he could work at all, Respondent cannot be held liable for failing to reassign Petitioner.
Even though Respondent was not required to reassign Petitioner under Chapter 70 and was nevertheless not asked to do so by Petitioner, it is obvious from the record that Petitioner was unable to perform the essential functions of the positions for which he now claims to have been qualified. Petitioner was unable to perform the essential functions of Customer Service Representative given the fact that Petitioner was unable to read the fine print of the maps and schedules in a timely fashion and to drive to deliver supplies or float between terminals. Because of his limited vision and lack of computer experience, Petitioner also could not perform the position of Clerk Risk Management since this position required extensive typing, computer work, and proofreading. Finally, Petitioner did not qualify as a fueler/cleaner because the position requires a commercial driver’s license. An employer is not required to reassign a disabled person to a vacant position unless the disabled person is qualified for the position. Howell v. Michelin Tire Corporation, 860 F. Supp. 1488, 1492 (M.D. Ala. 1994).
Respondent has rebutted any inference of discrimination which might be drawn in this case with legitimate, non-discriminatory reasons for its actions regarding Petitioner, and has presented no evidence that he was treated any differently than other disabled employees.
RECOMMENDED that Petitioner’s Charge of Discrimination be dismissed with prejudice.
DONE AND ENTERED this 9th day of April, 2002, in Tallahassee, Leon County, Florida.
DANIEL M. KILBRIDE
Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 2002.
Craig L. Berman, Esquire Berman Law Firm, P. A.
St. Petersburg, Florida 33701
William C. Falkner, Esquire Pinellas County Attorney's Office
Stephanie N. Rugg
City of St. Petersburg
St. Petersburg, Florida 33701
Alan S. Zimmet, Esquire
Zimmet, Unice, Salzman & Feldman, P.A. Two Prestige Place
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.
