STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA COMMISSION ON HUMAN ) RELATIONS and E. R. BRANNON, )
)
Petitioner, )
)
vs. ) CASE NO. 80-2252
) FCHR NO. 808-79 THE BREVARD COUNTY SHERIFF'S )
DEPARTMENT, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. The first installment of this hearing was held on April 9, 1981, and the hearing was concluded on May 29, 1981. The hearings was held in the Law Library, Fourth Floor, Brevard County Courthouse, 400 South Street, Titusville, Florida.
APPEARANCES
For Petitioner: Gavin D. Lee, Esquire
E. R. Brannon, Sr. Post Office Box 517
171 East Morris Boulevard Winter Park, Florida 32790
For Petitioner: Florida Commission on Human Relations
No appearance
For Respondent: Catherine R. Riley, Esquire
Post Office Box 1675
2323 South Washington Avenue Titusville, Florida 32780
ISSUE
This case is presented for consideration based upon a claim by the Petitioner, E. R. Brannon, Sr. against the Respondent, Brevard County Sheriff's Department, contending that the Respondent, by its employment practices, has unlawfully discriminated against the petitioner Brannon related to an alleged handicap, in violation of Subsection 23.167(1)(a), Florida Statutes. In view of this purported violation, Petitioner Brannon requests money damages in the way of back salary payments and benefits, together with attorney's fees, in keeping with Subsection 23.167(13), Florida Statutes. The Petitioner Brannon declines the opportunity for any reinstatement in his former employment with the Brevard Sheriff's Office. In defending against these accusations, the Respondent has plead certain affirmative defenses and contends that its action dismissing the Petitioner Brannon was lawful in view of the provision, Subsection 23.167(8)(a),
Florida Statutes, specifically related to the portion of that provision dealing with taking action based upon the need for an absence of a particular handicap as related to a "bona fide occupational qualification reasonably necessary for the performance of the particular employment to which such action or inaction is related."
FINDINGS OF FACT
Case History
On April 2, 1979, the Petitioner, F. R. Brannon, Sr., executed a form complaint of discrimination with the Petitioner, Florida Commission on Human elations, which challenged his dismissal by the Brevard County Sheriff's Department, which occurred on January 5, 1979. After reviewing the complaint, the Petitioner Commission, by action of September 11, 1980, as filed on September 16, 1980, made its determination of case, i.e., reasonable cause to believe an unlawful employment practice had occurred reference the Brevard County Sheriff's Department's dismissal of the Petitioner Brannon. A separate notice of the determination of cause was forwarded to the complainant Brannon and the Respondent, Brevard County Sheriff's Department, on September 16, 1980. Efforts were then made to reach conciliation between the contesting parties and these efforts were unsuccessful and notification of this failure of conciliation was forwarded by the Commission on October 21, 1980.
On November 21, 1980, counsel for the Petitioner Brannon made known his appearance before the Commission through written Notice of Appearance and filed a Petition for Relief on the subject of the aforementioned claim brought by the Petitioner Brannon.
By document dated November 25, 1990, and placed on file November 26, 1980, the Commissioners of the Florida Commission on Human Relations were notified of the filing of Brannon's Petition for Relief from alleged unlawful employment practice. Subsequent to that notification, Brannon's Petition was transmitted to the State of Florida, Division of Administrative Hearings for consideration of the claim. This transmittal was made on November 26, 1980, and received by the Division of Administrative Hearings on December 1, 1980.
On December 1, 1980, counsel for the Respondent, Brevard County Sheriff's Department, filed its answer to the Petition and statement of affirmative defenses. The Respondent also, by motion of that date, moved to dismiss the Petition. The Motion to Dismiss was denied on December 12, 1980.
On December 31 1980, the Respondent, in the person of its former counsel, Charles F. Broome, Esquire, wrote to the Hearing Officer to advise that there had been a change in administration in the Brevard County Sheriff's Office and that the newly elected sheriff wished to have a substitution of counsel. There ensued a series of contacts on the part of this Hearing Officer to establish a hearing date which would accommodate the change in administration and substitution of counsel. After consultation with the parties, the month of March, 1981, was tentatively selected as a time for hearing. This determination was made upon consultation with counsel for the parties, to include Catherine Riley, Esquire, the substituted counsel for the Brevard County Sheriff's Office.
The case was subsequently scheduled for hearing on March 9, 1981. Prior to the time for hearing, a letter was written by counsel for the Respondent on January 16, 1981, to advise that one of her witnesses was unable to attend the hearing until after March 30, 1981. By correspondence dated
January 22, 1981, in response to the letter of January 16, 1981, which had been addressed to counsel for the Petitioner, counsel for the Petitioner acquiesced in the continuance of the hearing and asked that the matter be set at the first available date beyond March 29, 1981. The correspondence was treated as a motion to continue the case on behalf of the Brevard County Sheriff's office, and the matter was reset for hearing on April 9, 1981.
The Respondent, Brevard County Sheriff's Department, had also moved to file an additional affirmative defense, and this motion was granted on February 2, 1981.
The initial session of the hearing was held on April 9, 1981, and continued until May 29, 1981, allow the hearing to be concluded. The hearing was concluded on May 29, 1981, and this Recommended Order is being entered after such hearing.
In the way of argument, the parties have submitted written memoranda through counsel and have suggested proposed findings of fact, conclusions of law and recommended disposition in this matter. To the extent that those proposals, conclusions and recommendations are consistent with the Recommended Order, they have been utilized. To the extent that the proposals, conclusions and recommendations are inconsistent with this Recommended Order, they are hereby rejected.
Material Facts
The Petitioner, E. R. Brannon, Sr., is an individual who was forty- three (43) years of age at the time of the formal hearing. In the course of his adult life he has worked primarily in law enforcement for a period of sixteen
(16) to seventeen (17) years, to include service to the Lake City, Florida, police Department; Eau Gallie, Florida, Police Department: Melbourne, Florida, Police Department; two periods of service with the Brevard County, Florida, Sheriff's Office; the Orange County, Florida, Sheriff's Office and the Marion County, Florida, Sheriff's Office.
On July 4, 1974, while working for the Marion County Sheriff's Office as a line deputy, the Petitioner Brannon was shot in his left side and left hand in an attempt to apprehend a felon. He was given a period of convalescence by his employer and then returned as an investigator for the Marion County Sheriff's Office.
In September, 1976, after being returned to duty, the condition in his left hand was exacerbated by another job related injury, leading to the eventual amputation of his left hand on November 9, 1980, after the hand had become gangrenous. This final treatment intervention followed a series of approximately twenty (20) operations over the period of time following the initial gunshot wound.
The Petitioner Brannon left his employment with Marion County and in January of 1977, took employment with the Brevard County Sheriff's Office where he was hired as a Lieutenant in charge of the division dealing with communications and vehicle maintenance.
At all pertinent times to this inquiry, his employer, the Brevard County Sheriff's Office, was an employer with fifteen (15) or more persons working for that entity, for a period of twenty (20) weeks or more during the year.
While Brannon was working for the Brevard County Sheriff's Office, he was placed in the position of Captain, awaiting pay adjustment to that grade.
At the time of his dismissal from the Brevard County Sheriff's Office on January 5, 1979, he was receiving a salary of approximately $1,260.00 per month, with an additional $175.77 per month contributed for the benefit of his retirement.
While serving as the Division Commander of the Communications and Maintenance Unit of the Brevard County Sheriff's Office, Brannon had as many as thirty (30) persons under his supervision.
Brannon bad been hired by Sheriff Ronald W. Zimmerman and worked for that individual until September, 1978, when Zimmerman was suspended.
Following Zimmerman's suspension from September, 1978, until January 5, 1979, the date of his discharge, Brannon worked for Sheriff David U. Strawn.
During the course of Brannon's service under the command of Sheriff Strawn, the problem with Brannon's hand caused him mild to severe pain and led to frequent usage of Demerol and Vistaril to accommodate this problem. Although the visits were not made during working hours per se, Brannon made numerous visits to a local hospital during the September, 1978, to January 5, 1979, time frame, for purposes of treatment. The degree of his discomfort and the effect on Brannon was such that by January 30, 1979, his treating physician, Dr. Maurice Hodge, was of the opinion that Brannon was "totally disabled because he is unable [sic] to use his hand for any gainful purpose. See Petitioner's Exhibit No. 6, admitted into evidence and attachment identified as Respondent's No. 1.
Notwithstanding the physical discomfort, Brannon attempted to perform his role as Deputy Sheriff and supervisor; however, there were numerous absences from duty during the time of the Strawn administration, to include a period December 18, 1978, through December 30, 1978. All of these absences were accounted for as authorized holidays, annual leave or sick leave.
James H. Garvin, presently a Captain in the Brevard County Sheriff's Office, in the position of Jail Supervisor, was emoloyed with that Sheriff's Office during Sheriff Strawn's tenure. At that time, his office in the Sheriff's complex building was located adjacent to that of Brannon and to the extent that the two officers had contact, Garvin did not have difficulty with work coordination involving Brannon.
Other officers who had association with Brannon during the time of Strawn's service as Sheriff, included Johnny L. Manis, who was a Captain in 1978, in the Brevard County Sheriff's Office. The communication section was included in his area of responsibility and upon Brannon's dismissal, Manis took over the responsibilities which Brannon had fulfilled in the communications section. Upon taking over, Captain, now Lieutenant, Manis, found the morale in that section to be less than acceptable and the turnover rate to be, in his estimation, excessive.
Captain Charles Tenvooren who served as a Major in the Strawn administration, had supervisory responsibility for Brannon in that time period and recalls that Brannon was in the hospital at times. Tenvooren knew that Brannon was being treated for the condition related to his arm and hand and observed impairment in Brannon's job function. As supervisor, he spoke with Sheriff Strawn about the medication that Brannon was taking. Tenvooren also spoke with Brannon about the problem of impairment related to the injury to the
arm, as described by the witness Tenvooren. Brannon, in talking with Tenvooren, mentioned the pain which he was experiencing.
Lieutenant Harmon B. Wisby testified in the course of the hearing. When Strawn was Sheriff, Lieutenant Wisby was the coordinator of the reserve auxiliary group of the Sheriff's Department. During that time sequence, Wisby was aware of the fact that Brannon was under medication, information he gained from conversations he had with Brannon. Brannon indicated ythat he was having pain and that he was to go back to the hospital. Brannon also indicated to Wisby that he had been given medication to assist him in coping with the pain. Wisby recalls several times when Brannon did not seem aware of his surroundings while he was in the office building, in that Brannon would not respond to him when spoken to in the form of a greeting.
Alice Alderman who is a Communications Officer with the Brevard County Sheriff's Office, who worked in the communications section while Brannon was supervisor during the Strawn administration, testified at the hearing. She admits that she had a personality conflict with Brannon. Nonetheless, she testified that during this time sequence he seemed to be "distant."
Another employee within the communications section who testified at the hearing was Debbie Walden who was a Communications Dispatcher in the Brevard Sheriff's Office at the time that Strawn was Sheriff. Brannon was her shift supervisor and she recalls numerous absences by Brannon, who from her recollection worked on the same shift on which she was employed. She also indicated that morale was a problem at the time that Brannon was in charge of the section.
On January 5, 1979, through correspondence, Sheriff Strawn dismissed Brannon. A copy of the dismissal may be found as Petitioner's Exhibit No. 5, admitted into evidence.
In the course of the hearing, Strawn indicated that his decision to dismiss no basis for the correspondence was premised on evidence gained from other personnel in the Sheriff's Office; the medical reports pertaining to the Petitioner's physical condition related to his hand; the prognosis on that condition; the uses of pain medication; a few personal observations of the Petitioner in which Strawn felt the Petitioner to be "spacey"; the belief that the Petitioner was not capable of line duty, i.e., responsibilities as an armed deputy; the problem which Brannon appeared to have approaching his job with a "clear head"; the high turnover in the communications section, indicating a problem with management by Brannon; a property control problem related to equipment which Brannon had in his charge and Brannon's lack of ability as an administrator and supervisor.
All of Strawn's background reasons and observations were an accurate depiction of the circumstance with the exception that there was insufficient proof in the course of the hearing to demonstrate that Brannon had acted inappropriately on the subject of property control of equipment in the communications section. Likewise, reported observations by coworkers are correct.
In particular, the use of pain medication for the handicap related to the injured arm and hand was such that Brannon was incapable of performing the duty of a line officer charged with the direct protection of the public and the possibility of use of force to effect that purpose. This medication also compounded Brannon's problems as an administrator.
When the dismissal letter was drafted, the prime focus of that letter was to the effect that the Sheriff's Office was concerned about Brannon's return to employment duties because of the belief by the Department that there would be exposure for liability in terms of workmen's Compensation claims by Brannon, in that the Sheriff's office believed that they would be entirely liable for physical disability if Brannon suffered an "industrial accident" while acting in the scope and capacity of his position within the Department. In further explanation, it was stated that the Department believed the health circumstance of Brannon was intense in view of the pain and associated use of special medications. For these reasons, Strawn was concerned that any negligent act by Brannon could result in liability for the Department, apparently from claims by third parties.
The letter of dismissal went on to say that his duties were not being performed as well as expected because of Brannon's physical condition and the necessity for taking drugs to cope with those problems and further concern for fellow officers and members of the public. This statement can be related to Brannon's potential abilities as a lane officer and his primary function as supervisor of the communications and maintenance section. (Notwithstanding the fact that Brannon was not serving on a day-to-day capacity as a line officer, as a Deputy Sheriff he could reasonably be expected to be pressed into service in the eventuality of some emergency which called upon all appointees within the Sheriff's Office who are deputies to serve in that capacity, and as Brannon himself stated at the hearing, Sheriff's deputies are technically on duty
twenty-four (24) hours a day.)
Finally, the impression was created in the hearing process that the Strawn administration had been concerned about Brannon's absenteeism and morale in his section. Although this is not expressly stated in the letter of dismissal, the facts presented in evidence bear out the contention that Brannon was absent an inordinate number of times, notwithstanding the fact that the absences were taken under legitimate leave principles, and there were problems related to morale in the communications section.
In addressing Strawn's worries, there was no procedure undertaken for formal evaluation of Brannon's performance. Sheriff Strawn did discuss Brannon's physical condition with him and what the Sheriff perceived to be a problem with the communications equipment inventory control system.
On January 8, 1979, Brannon began to look for alternative employment and gained such employment with the Brevard County Public Safety Division, within the Brevard County Board of County Commissioners on march 26, 1979, and was employed by them until January 14, 1981. During the course of his employment, he received $16,812.40 in gross earnings, and was provided life insurance commensurate with his annual salary, as well as health insurance. In addition, this employer "paid-in" at the rate of 9.1 percent of annual salary, into a retirement system. This payment to the retirement system was not made during leave without pay between July 1, 1980, and August, 1980.
Following his employment with the Brevard Counts' Public Safety Division, Brannon worked for the Sheriff of Lake County, Florida, eighteen (18) to twenty (20) days, a month maximum.
Following Brannon's dismissal from the Brevard County Sheriff's Office, he also requested social security disability benefits in the summer of 1980, and that claim is now pending.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction to consider this dispute, in keeping with Section 23.162 and Subsection 120.57(1), Florida Statutes.
During the course of the hearing, the Petitioner offered its Exhibit No. 1, and ruling was reserved on the admission of that item. After consideration, the Petitioner's Exhibit
No. 1 is denied admission. Likewise, the Respondent offered its Exhibits Nos. 1 and 2, and ruling was reserved on the admission of those items of evidence. Having considered the question of their admissibility, Respondent's Exhibits Nos. 1 and 2 are denied admission. Finally, the Respondent offered its Exhibit No. 6. Having considered that exhibit, the portion of the exhibit which is the lead page dated October 13, 1978, is admitted. Those other pages to the exhibit are denied admission.
The Petitioner offered as Exhibit No. 6, a deposition of Charlotte White, to include the exhibits attached to that deposition. The deposition proper was admitted and ruling was reserved on the guest ion of the admissibility of the attached exhibits. Having now reviewed the deposition and attached exhibits, all exhibits attached to the deposition are admitted with the exception of an item identified as Respondent's No. 3, within the deposition, a purported memorandum from an official with the Brevard County Board of County Commissioners.
In order to find the Respondent guilty of an act of "unlawful employment practice," in this instance related to alleged discrimination based upon handicap, the Brevard County Sheriff's Office must first be found to be an "employer" within the meaning of Subsection 23.162(C)), Florida Statutes, and Petitioner Brannon must be found to be an "individual" within the meaning of Subsection 23.162(5), Florida Statutes.
The Brevard County Sheriff's Department, under the direction of the elected sheriff, was an "employer" of Petitioner Brannon, within the meaning of Subsection 23.162(6), Florida Statutes. The question of whether Brannon was an "individual," entitled to protection, in keeping with the "Human Rights Act of 1977," is a matter which must undergo further analysis.
Petitioner Brannon was discharging duties for the Brevard County Sheriff's Office in the position of Deputy Sheriff, as such, he had been appointed pursuant to Subsection 30.07, Florida Statutes. Those individuals who serve in the position of Deputy Sheriff are not "employees", in the traditional sense of that term. A deputy sheriff is a person who ordinarily serves at the pleasure of his employer, the Sheriff, absent some specialized "civil service" protection, which has not been demonstrated in this case and which is not relevant in view of the fact that this is not a grievance proceeding related to dismissal for cause and unrelated to accusations of discrimination.
Moreover, a deputy sheriff is not entitled to membership in a bargaining unit under the "Public Employees Relations Act" found in Chapter 447, Florida Statutes. This determination was reached in the case of Murphy v. Mack,
358 So.2d 822 (Fla. 1978) . Through that decision, the Florida Supreme Court found that, notwithstanding the fact that a sheriff in the State of Florida is deemed to be a "public employer" within the meaning of Chapter 447, Florida
Statutes, those individuals serving as deputy sheriffs are not "public employees" within the meaning of that act. The Court went on to say that deputies and the sheriff whom they serve do not operate in the traditional employer/employee setting and that they have not been historically protected through a civil service mechanism. A deputy, according to that Court, is an "official," not an "employee."
On the other hand, the Murphy Court cited favorably the opinion of the Florida Supreme Court in Parker v. Hill, 72 So.2d 820 (Fla. 3954) in which a denity sheriff was hold to be entitled to protection under the Workmen's Compensation laws of the State of Florida, but was so entitled as an officer not elected at the polls" as opposed to his capacity as "employee." The question then becomes one whether sheriff Strawn was entitled to dismiss a deputy, Petitioner Brannon, who theoretically serves at the Sheriff's pleasure without the benefit of representation in a bargaining unit or civil service protection, and further who held the rank of Captain and in that position was responsible as a supervisor and administrator, and whether Strawn was empowered to effect this dismissal without being subject to the scrutiny of the Florida Commission on Human Relations, acting in their capacity to protect individuals from unlawful employment practices related to discrimination against the handicapped.
In addressing the question of whether the acts of Sheriff Strawn fall within the purview of Chapter 23, Florida Statutes, it is helpful to examine Chapter 30, Florida Statutes, dealing with the role of the several sheriffs within the State of Florida, and also dealing with the role of their deputies. From a review of the provisions dealing with the appointment of deputies already alluded to; the powers and duties of those deputies set forth in Section 30.51, Florida Statutes, and the power to appoint a sheriff in the absence of the attendance of a sheriff or his deputy in a term of court as set forth in Section 30.12, Florida Statutes, it is clear that a deputy sheriff is in effect the "alter ego" of the sheriff in that county. In the sheriff's absence, the deputy becomes the sheriff's surrogate. A deputy, in the absence of the sheriff, carries with him the mantle of the sheriff's office and for this reason, the sheriff, by law, is responsible for "neglect and default" in the execution of the office of the deputy. See Section 30.07, Florida Statutes, supra.
In view of this special relationship, the responsibility of the sheriff for his deputies and the special power reposed in the deputies, they are made to serve at his pleasure. Does this then mean that the sheriff may dismiss his deputy even if doing so would constitute what in ordinary employment relations would be paramount to an "unlawful employment practice" based upon some form of discrimination, to include discrimination due to a deputy's handicap? If you follow the lead set forth in the Mack opinion, supra, a deputy sheriff would seem to be without any protection against the whim and caprice of a Florida sheriff in his employment practices; however, this analogy is not persuasive when considering a deputy's standing to bring a complaint pursuant to the "Human Rights Act of 1977."
The deputy's right to be protected against an act of discrimination is a fundamental principle recognized by legislation and is more akin to his right to pursue workmen's compensation claims as identified in the Parker case, supra, than to that of his entitlement to be represented in a "bargaining unit" or to be afforded civil service protection. Consequently, Petitioner Brannon is found to be an "individual" within the meaning of Subsection 23.162(5), Florida Statutes.
The inquiry then is one of whether the dismissal by the Brevard County Sheriff's Office was one related to Brannon's handicap within the meaning of Subsection 23.167(1)(a), Florida Statutes, and for which no legitimate explanation may be found as contemplated by Subsection 23.167(8), Florida Statutes.
Brannon's discharge was related to his handicap within the meaning of Subsection 23.167(1)(a), Florida Statutes. It was a dismissal, nonetheless, in which the absence of the particular handicap and the related problems associated with the handicap was a bona fide occupational qualification "reasonably necessary for the performance of the particular employment to which . . . " the dismissal action was related. Brannon was not in a position during the tenure of Sheriff Strawn to fulfill his role as unit supervisor in the command position Captain due to his handicap and associated medical problems and was not in a position to fill the position of line officer, the underlying role of all deputy sheriffs. Therefore, it was not unlawful for Sheriff Strawn to discharge Deputy Brannon. This determination is made, notwithstanding Sheriff Strawn's misconception of the question of liability on the part of the Brevard County Sheriff's Office, should Deputy Brannon be injured and make workmen's compensation claims. See Section 440.49, Florida Statutes. It would not have been necessary for Brevard County to pay the entire expense for workmen's compensation claims
In the face of the Findings of Fact and the Conclusions of Law reached in this matter, it is
That Petitioner E. R. Brannon, Sr.'s complaint of unlawful employment practices made against the Respondent Brevard County Sheriff's Department be DISMISSED.
DONE and ENTERED this 26th day of June, 1981, in Tallahassee, Florida.
CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 1981.
COPIES FURNISHED:
Gavin D. Lee, Esquire Post Office Box 517
171 East Morris Boulevard Winter Park, Florida 32790
Harry Lamb, Esquire
Florida Commission on Human Relations
2562 Executive Center Circle East Suite 100, Montgomery Building Tallahassee, Florida 32301
Catherine R. Riley, Esquire Post Office Box 1675
2323 South Washington Avenue Titusville, Florida 32780
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS
FLORIDA COMMISSION ON HUMAN RELATIONS and E. R. BRANNON, SR.,
Petitioners,
FCHR Case No. 808-79
vs. CASE NO. 80-2252
FCHR Order No. 82-012
THE BREVARD COUNTY SHERIFF'S DEPARTMENT,
Respondent.
/
ORDER FINDING UNLAWFUL EMPLOYMENT PRACTICE
On April 2, 1979, Petitioner E. R. Brannon, Sr., filed a Complaint of Discrimination with this Commission alleging that Respondent Brevard County Sheriff's Department had violated the Human Rights Act of 1977 1/ by discharging Brannon from its employ on January 5, 1979. In the complaint, the Department was alleged to have discharged Brannon on the basis of his handicap.
An investigation into the allegations raised by the complaint was conducted by the Office of Field Services pursuant to Florida Administrative Code Rule 9D-
2/ The Office of Field Services prepared and submitted its report of investigation to the Executive Director. Thereafter, on September 16, 1980, the Acting Executive Director issued a determination concluding that the investigation revealed reasonable cause to believe that the Department had committed an unlawful employment practice in violation of Section 23.161, Florida Statutes.
FINDINGS OF FACT
Pursuant to Section 120.57(1)(b)9., Florida Statutes, an agency shall not reject or modify a hearing officer's findings of fact unless it can determine, after a review of the complete record, that the findings were not based upon competent, substantial evidence or that the proceedings did not comply with the essential requirements of law.
In absence of exceptions from any party to the Hearing Officer's findings of fact, the Commission adopts the findings of fact of the Hearing Officer as its findings of fact. For convenience and clarity, the material facts found by the Hearing Officer are set forth below in numbered paragraphs.
The Petitioner, E. R. Brannon, Sr., is an individual who was forty- three (43) years of age at the time of the formal hearing. In the course of his adult life he has worked primarily in law enforcement for a period of sixteen
(16) to seventeen (17) years, to include service to the Lake City, Florida, Police Department; Eau Gallie, Florida, Police Department; Melbourne, Florida, Police Department; two periods of service with the Brevard County, Florida Sheriff's Office; the Orange County, Florida, Sheriff's Office and the Marion County, Florida, Sheriff's Office.
On July 4, 1974, while working for the Marion County Sheriff's Office as a line deputy, the Petitioner Brannon was shot in his left side and left hand in an attempt to apprehend a felon. He was given a period of convalescence by his employer and then returned as an investigator for the Marion County Sheriff's Office.
In September, 1976, after being returned to duty, the condition in his left hand was excerbated by another job-related injury, leading to the eventual amputation of his left hand on November 9, 1980, after the hand had become gangrenous. This final treatment intervention followed a series of approximately twenty (20) operations over the period of time following the initial gunshot wound.
Subsequent to the issuance of the determination, efforts were made to informally resolve the dispute through conciliation. Upon failure of the conciliation attempts, Brannon filed a petition for relief on November 20, 1980. The petition was referred to the Division of Administrative Hearings for assignment of a hearing officer to conduct proceedings pursuant to Section 120.57(1) Florida Statutes, and Florida Administrative Code Rule 9D-9.06(2).
By Notice of Transcription dated November 26, 1980, the parties here advised that the Commission intended to record the hearings held in this cause with mechanical transcription equipment. A copy of the Notice of Transcription is appended to this Order as Exhibit I. The Notice of Transcription informed the parties that, if desired, a party could request the Commission to provide the services of a court reporter in lieu of tape recording pursuant to Florida Administrative Code Rule 9D-8.25. By memorandum dated Mar. 5, 1981, Counsel for the Department advised the Commission that the Department intended to have a court reporter present at the Department's expense. A copy of the Mar. 5, 1981 memorandum is appended to this Order as Exhibit II. A copy of the March 17, 1981 letter, which advised the Hearing Officer and Counsel for Brannon that a court reporter would be present at the hearing, is appended to this order as Exhibit III.
On June 16, 1981, the duly appointed Hearing Officer completed and submitted to the Commission and parties a Recommended Order. Pursuant to Florida Administrative Code Rule 9D-8.27 and Section 120.57 (1)(b)8., Florida Statutes, the parties were allowed twenty days in which to submit written exceptions to the Recommended Order and to submit briefs in support of the exceptions. No exceptions or briefs were submitted.
Pursuant to the notice of hearing, the Commission sua sponte permitted oral argument at the final hearing held at Tallahassee, Florida, on September 21, 1981. The hearing was scheduled for the Commission to consider the Recommended Order. Counsel for the Department objected to the granting of oral argument because Brannon failed to submit written exceptions or brief. The Commission orally overruled the objection, reasoning that the Commission could require oral argument when such argument would be beneficial to the Commission in its deliberation of the issues in controversy. 3/
The Petitioner Brannon left his employment with Marion County and in January of 1977, took employment with the Brevard County Sheriff's Office where he was hired as a Lieutenant in charge of the division dealing with communications and vehicle maintenance.
At all pertinent times to this inquiry, his employer, the Brevard County Sheriff's Office, was an employer with fifteen (15) or more persons working for that entity, for a period of twenty (20) weeks or more during the year.
6 While Brannon was working for the Brevard County Sheriff's Office, he was placed in the position of Captain, awaiting pay adjustment to that grade.
At the time of his dismissal from the Brevard County Sheriff's Office on January 5, 1979, he was receiving a salary of approximately $1,260.00 per month, with an additional $175.77 per month contributed for the benefit of his retirement.
While serving as the Division Commander of the Communications and Maintenance Unit of the Brevard County Sheriff's Office, Brannon had as many as thirty (30) persons under his supervision.
Brannon had been hired by Sheriff Ronald W. Zimmerman and worked for that individual until September, 1978, when Zimmerman was suspended.
Following Zimmerman's suspension from September, 1978, until January 5, 1979, the date of his discharge, Brannon worked for Sheriff David U. Strawn.
During the course of Brannon's service under the command of Sheriff Strawn, the problem with Brannon's hand caused him mild to severe pain and led to frequent usage of Demerol and Vistaril to accommodate this problem. Although the visits were not made during working hours per se, Brannon made numerous visits to a local hospital during the September, 1978, to January 5, 1979, time frame, for purposes of treatment. The degree of his discomfort and the effect on Brannon was such that by January 30, 1979, his treating physician, Dr. Maurice Hodge, was of the opinion that Brannon was "totally disabled because he is unavle [sic] to use his hand for any gainful purpose." See Petitioner's Exhibit No. 6, admitted into evidence and attachment identified as Respondent's No. 1.
Notwithstanding the physical discomfort, Brannon attempted to perform his role as Deputy Sheriff and supervisor; however, there were numerous absences from duty during the time of the Strawn administration, to include a period
December 18, 1978, through December 30, 1978. All of these absences were accounted for as authorized holidays, annual leave or sick leave.
James H. Garvin, presently a Captain in the Brevard County Sheriff's Office, in the position of Jail Supervisor, was employed with that Sheriff's Office during Sheriff Strawn's tenure. At that time, his office in the Sheriff's complex building was located adjacent to that of Brannon and to the extent that the two officers had contact, Garvin did not have difficulty with work coordination involving Brannon.
Other officers who had associated with Brannon during the time of Strawn's service as Sheriff, included Johnny L. Manis, who was a Captain in 1978, in the Brevard County Sheriff's Office. The communication section was included in his area of responsibility and upon Brannon's dismissal, Manis took over the responsibilities which Brannon had fulfilled in the communications section. Upon taking over, Captain, now Lieutenant, Manis, found the morale in that section to be less than acceptable and the turn-over rate to be, in his estimation, excessive.
Captain Charles Tenvooren, who served as a Major in the Strawn administration, had supervisory responsibility for Brannon in that time period and recalls that Brannon was in the hospital at times. Tenvooren knew that Brannon was being treated for the condition related to his arm and hand and observed impairment in Brannon's job function. As supervisor, he spoke with Sheriff Strawn about the medication that Brannon was taking. Tenvooren also spoke with Brannon about the problem of impairment related to the injury to the arm, as described by the witness Tenvooren. Brannon, in talking with Tenvooren, mentioned the pain which he was experiencing.
Lieutenant Harmon B. Wisby testified in the course of the hearing. When Strawn was Sheriff, Lieutenant Wisby was the coordinator of the reserve auxiliary group of the Sheriff's Department. During that time sequence, Wisby was aware of the fact that Brannon was under medication, information he gained from conversations he had with Brannon. Brannon indicated that he was having pain and that he was to go back to the hospital. Brannon also indicated to Wisby that he had been given medication to assist him in coping with the pain. Wisby recalls several times when Brannon did not seem aware of his surroundings while he was in the office building, in that Brannon would not respond to him when spoken to in the form of a greeting.
Alice Alderman who is a Communications Officer with the Brevard County Sheriff's Office, who worked in the communications section while Brannon was supervisor during the Strawn administration, testified at the hearing. She admits that she had a personality conflict with Brannon. Nonetheless, she testified that during this time sequence he seemed to be "distant."
Another employee within the communications section who testified at the hearing was Debbie Walden who was a Communications Dispatcher in the Brevard Sheriff's Office at the time that Strawn was Sheriff. Brannon was her shift supervisor and she recalls numerous absences by Brannon, who from her recollection worked on the same shift on which she was employed. She also indicated that morale was a problem at the time that Brannon was in charge of the section.
On January 5, 1979, through correspondence, Sheriff Strawn dismissed Brannon. A copy of the dismissal may be found as Petitioner's Exhibit No. 5, admitted into evidence.
In the course of the hearing, Strawn indicated that his decision to dismiss and basis for the correspondence was premised on evidence gained from other personnel in the Sheriff's Office; the medical reports pertaining to the Petitioner's physical condition related to his hand; the prognosis on that condition; the uses of pain medication; a few personal observations of the Petitioner in which Strawn felt the Petitioner to be "spacey"; the belief that the Petitioner was not capable of line duty, i.e., responsibilities as an armed deputy; the problem which Brannon appeared to have approaching his job with a "clear head"; the high turn-over in the communications section, indicating a problem with management by Brannon; a property control problem related to equipment which Brannon had in his charge and Brannon's lack of ability as an administrator and supervisor.
All of Strawn's background reasons and observations were an accurate depiction of the circumstance with the exception that there was insufficient proof in the course of the hearing to demonstrate that Brannon had acted inappropriately on the subject of property control of equipment in the communications section. Likewise, reported observations by co-workers are correct.
In particular, the use of pain medication for the handicap related to the injured arm and hand was such that Brannon's incapable of performing the duty of a line officer charged with the direct protection of the public and the possibility of use of force to effect that purpose. This medication also compounded Brannon's problems as an administrator.
When the dismissal letter was drafted, the prime focus of that letter was to the effect that the Sheriff's Office was concerned about Brannon's return to employment duties because of the belief by the Department that there would be exposure for liability in terms of Workmen's Compensation claims by Brannon, in that the Sheriff's Office believed that they would be entirely liable for physical disability if Brannon suffered an "industrial accident" while acting in the scope and capacity of his position within the Department. In further explanation, it was stated that the Department believed the health circumstance of Brannon was intense in view of the pain and associated use of special medications. For these reasons, Strawn was concerned that any negligent act by Brannon could result in liability for the Department, apparently from claims by third parties.
The letter of dismissal went on to say that his duties were not being performed as well as expected because of Brannon's physical condition and the necessity for taking drugs to cope with those problems and further concern for fellow officers and members of the public. This statement can be related to Brannon's potential abilities as a line officer and his primary function as supervisor of the communications and maintenance section. (Notwithstanding the fact that Brannon was not serving on a day-to-day capacity as a line officer, as a Deputy Sheriff he could reasonably be expected to be pressed into service in the eventuality of some emergency which called upon all appointees within the Sheriff's Office who are deputies to serve in that capacity, and as Brannon himself stated at the hearing, Sheriff's deputies technically are on duty
twenty-four (24) hours a day.)
Finally, the impression was created in the hearing process that the Strawn administration had been concerned about Brannon's absenteeism and morale in his section. Although this is not expressly stated in the letter of dismissal, the facts presented in evidence bear out the contention that Brannon
was absent an inordinate number of times, notwithstanding the fact that the absences were taken under letigimate [sic] leave principles, and there were problems related to morale in the communications section.
In addressing Strawn's worries, there was no procedure undertaken for formal evaluation of Brannon's performance. Sheriff Strawn did discuss Brannon's physical condition with him and what the Sheriff perceived to be a problem with the communications equipment, inventory control system.
On January 8, 1979, Brannon began to look for alternative employment and gained such employment with the Brevard County Public Safety Division, within the Brevard County Board of County Commissioners on March 26, 1979, and was employed by them until January 14, 1981. During the course of his employment, he received $16,812.40 in gross earnings, and was provided life insurance commensurate with his annual salary, as well as health insurance. In addition, this employer "paid-in" at the rate of 9.1 percent of annual salary, into a retirement system. This payment to the retirement system was not made during leave without pay between July 1, 1980, and August 4, 1980.
Following his employment with the Brevard County Public Safety Division, Brannon worked for the Sheriff of Lake County, Florida, eighteen (18) to twenty (20) days, a month maximum.
Following Brannon's dismissal from the Brevard County Sheriff's Office, he also requested social security disability benefits in the summer of 1980, and that claim is now pending.
ANALYSIS AND DISCUSSION
The issues before the Commission are the following,: (1) Whether the Department is an employer within the meaning of Section 23.162(6), Florida Statutes; (2) Whether Brannon is a handicapped person within the meaning of Sections 23.162(5) and 23.167(1), Florida Statutes; (3) Whether the Department discharged Brannon on the basis of his handicap in violation of Section 23.167 (1), Florida Statutes; and (4) Whether the absence of Brannon's handicap is a bona fide occupational qualification within the meaning of Section 23.167(8), Florida Statutes.
With respect to the first issue, the Hearing Officer concluded that the Department was an employer within the meaning of Section 23.162(6), Florida Statutes, because the Department employed 15 or more employees for each working day in each of 20 or more calendar weeks. The Hearing Officer's conclusion was not disputed by the parties and is consistent with analogous Florida law and federal interpretations. 4/
With respect to the second issue, the Hearing Officer concluded that Brannon is a handicapped person within the meaning of Sections 23.162(5) and 23.167(1), Florida Statutes. In so concluding, he rejected the Department's contention that Brannon was not protected under the Human Rights Act of 1977 because he did not meet the traditional concept of having an employer/employee relationship with the Department, reasoning:
Petitioner Brannon was discharging duties for the Brevard County Sheriff's Office in
the position of Deputy Sheriff, as such, he had been appointed pursuant to Subsection 30.07, Florida Statutes. Those individuals who serve
in the position of Deputy Sheriff are not "employees", in the traditional sense of that term. A deputy sheriff is a person who ordin- arily serves at the pleasure of his employer, the Sheriff, absent some specialized "civil service" protection, which has not been demonstrated in this case and which is not relevant in view of the fact that this is not a grievance proceeding related to dismissal for cause and related to accusations of discrimination.
Moreover, a deputy sheriff is not entitled to membership in a bargaining unit under the "Public Employees Relations Act" found in Chapter 447, Florida Statutes. This determination was reached in the case of Murphy v. Mack, 358 So.2d 822 (Fla. 1978). Through that decision, the Florida Supreme Court found that, notwithstanding the fact that
a sheriff in the State of Florida is deed to be
a "public employees" within the meaning of Chapter 447, Florida Statutes, those individuals serving as deputy sheriffs are not "public employees" within the meaning of that act. The Court went
on to say that deputies and the sheriff whom they serve do not operate in the traditional employer/employee setting an1 that they have not been historically protected through a civil service mechanism. A deputy according to that Court, is
an "official," not an "employee."
On the other hand, the Murphy Court cited favor- ably the opinion of the Florida Supreme Court in Parker v. Hill, 72 So.2d 820 (Fla. 1954), in which a deputy sheriff was held to be entitled to pro- tection under the Workmen's Compensation laws of the State of Florida, but was so entitled as an officer "not elected at the polls" as opposed to his capacity as "employee." The question then becomes one whether Sheriff Strawn was entitled
to dismiss a deputy, Petitioner Brannon, who theoretically serves at the Sheriff's pleasure without the benefit of representation in a bar- gaining unit or civil service protection, and further who held rank of Captain and in that position was responsible as a supervisor and administrator, and whether Strawn was empower- ed to effect this dismissal without being sub- ject to the scrutiny of the Florida Commission on Human Relations, acting in their capacity
to protect individuals from unlawful employment practices related to discrimination against the handicapped.
In addressing the question of whether the acts of Sheriff Strawn fall within the purview of Chapter 23, Florida Statutes, it is helpful to examine Chapter 30, Florida Statutes, dealing
with the role of the several sheriffs within the State of Florida, and also dealing with the role of their deputies. From a review of the provisions dealing with the appointment of deputies already alluded to; the powers and duties of those deputies set forth in Section 30.51, Florida Statutes, and the power to appoint a sheriff in the absence of the attendance of a sheriff or his deputy in
a term of court as set forth in Section 30.12, Florida Statutes, it is clear that a deputy sheriff is in effect the "alter ego" of the sheriff in that county. In the sheriff's absence, the deputy becomes the sheriff's surrogate. A deputy, in the absence of the sheriff, carries with him the mantle of the sheriff's office and for this reason, the sheriff, by law, is responsible for "neglect and default" in the execution of the office
of the deputy. See Section 30.07, Florida Statutes, supra.
In view of this special relationship, the responsibility of the sheriff for his deputies and the special power reposed in the deputies, they are made to see at his pleasure. Does this then mean that the sheriff may dismiss his deputy even if doing so would constitute what in ordinary employment relations would be paramount to an "unlawful employment practice" based upon some form of discrimination, to include discrimination due to a deputy's hand- icap? If you follow the lead set forth in the Mack opinion, supra, a deputy sheriff would seem to be without any protection against the whim and caprice of a Florida sheriff in his employment practices; however, this analogy
is not persuasive when considering a deputy's standing to bring a complaint pursuant to the "Human Rights Act of 1977."
The deputy's right to be protected against an act of discrimination is a fundamental principle recognized by legislation and is more akin to his right to pursue workmen's compensation claims as identified in the Parker case, supra, than to that of his entitlement to be repre- sented in a "bargaining unit" or to be afforded civil service protection. Consequently, Petitioner Brannon is found to be an "individual" within the meaning of Subsection 23.162(5) Florida Statutes.
The Hearing Officer's analysis is consistent with recent judicial holdings regarding the status of duties. For example, the Supreme Court of Florida has interpreted Article III, Section 4 of the Florida Constitution as authorizing the creation of civil service systems by special or local laws for deputies as
officers not elected or appointed by the governor. In Ison v. Zimmerman, number
372 So.2d 431 (Fla. 1972), the Court held that a Brevard County deputy sheriff had a right to civil service protection, including the right to written charges for a hearing for cause before the incoming sheriff unilaterally notified him of his termination pursuant to Chapter 67-1149, laws of Florida, the act then in effect which created civil service employees of the office of the sheriff. In Escambia County Sheriff's Department v. Florida Police Benevolent Association, Inc., 376 So.2d 435 (Fla. 1st DCA 1979), cert. denied, 389 So.2d 1109 (Fla. 1980), the Court upheld Escambia County's Civil Service Act which transformed deputy sheriff's into employees for the purposes of that act and further provided the deputies the right to engage in collective bargaining and be covered under the Public Employees Relations Act, Chapter 447, Florida Statutes.
In parts here pertinent, the applicable statutory provisions provide:
23.162 Definitions -- For purposes of this part:
* * *
(5) "Person" includes an individual . . .
* * *
23.167 Unlawful employment practices; remedies; construction. --
It is an unlawful employment practice for an employer:
To discharge . . . any individual or other- wise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such in- dividual's race, color, religion, sex, national origin, age, handicap, or marital status.
* * *
(10) Any person aggrieved by a violation of this section may file a complaint with the commission within 180 days of the alleged violation . . .
* * *
It is clear under the plain language of the above-quoted provisions that Brannon is an individual within the meaning of Section 23.162(5) and 23.167(1), Florida Statutes. The Commission refuses to interpret these provisions as requiring an individual to establish the relationship of master/servant, which is commonly referred to as employer/employee, to be an aggrieved person within the meaning of Section 23.167(10), Florida Statutes. The Commission's interpretation is consistent with the general purposes of the Act and the legislative mandate for liberal construction. 5/
For the foregoing reasons, including the analysis set forth by the Hearing Officer, the Commission rejects the Department's assertion that Brannon is an aggrieved person within the meaning of the Act.
In Fenesy v. GTE Data Services, Inc., FCHR No. 214-79, DOAH No. 80-473, FCHR Order No. 810042, III FALR 1764-A (August 11, 1981), this Commission adopted the following interpretation of the term "handicap," as set forth in the Recommended Order:
Since this statute does not indicate a different connotation, the term "handicap" should be given a meaning accorded by common usage. See, Gaulden
v. Kirk, 47 So.2d 567 (Fla. 1950). In construing similar statutes, courts of three other states have resorted to the definition of "handicap" con- tained in Webster's Third New International Dictionary. Chicago, Milwaukee, St. Paul and Pacific Railroad Company v. Washington State Human Rights Commission, 577 P. 2d 307 (Wash. 1976), State v. Turner, 209 N.E. 2d 475 (Ohio, 1965), Chicago, Milwaukee, St. Paul and Pacific Railroad
v. Department of Industry, Labor and Human Rela- tions, 215 N.W. 2d 443 (Wis. 1974). Generally "handicap" connotes a condition that prevents normal functioning in some way: "A person with a handicap does not enjoy, in some manner, the full and normal use of his sensory, mental, or physical faculties." Chicago, Milwaukee, St. Paul and Pacific Railroad Company v. Washington State Human Rights Commission, supra.
Applying this plain language interpretation which we deem appropriate in the instant cause to the facts found by the Hearing Officer, we conclude that the loss of use of Brannon's left hand renders him a handicapped person.
With respect to third and fourth issues, the Hearing Officer concluded that Brannon's discharge was related to his handicap within the meaning of Section 23.167(1)(a), Florida Statutes, but that the absence of Brannon's handicap was a bona fide occupational qualification reasonably necessary for the performance of the particular employment within the meaning of Section 23.167(8)(a), Florida Statutes. In reaching this conclusion, the Hearing Officer opined:
Brannon was not in a position during the tenure of Sheriff Strawn to fulfill his role as unit supervisor in the command position Captain due to his handicap and associated medical problems and
was not in a position to fill the position of line officer, the underlying role of all deputy sheriffs.
Therefore, it was not unlawful for Sheriff Strawn to discharge Deputy Brannon. This determination is made, notwithstanding Sheriff Strain's mis- conception of the question of liability on the part of the Brevard County Sheriff's Office,
should Deputy Brannon be injured and make workmen's compensation claims. See Section 440.49, Florida Statutes. It would not have been necessary for Brevard County to pay the entire expense for workmen's compensation claims.
Section 23.167(8), Florida Statutes, provides in pertinent part:
Notwithstanding any other provision of this section, it is not an unlawful employment practice under this part for an employer, employment agency, labor organization, or joint labor-management commit- tee to:
Take or fail to take any action on the basis of . . . handicap . . . in those certain instances in which . . . absence of a particular handicap . . . is a bona occupational qualifica- tion reasonably necessary for the performance of
the particular employment to which such action or inaction is related. (Emphasis supplied).
The Commission rejects the Hearing Officer's conclusion that the absence of Brannon's handicap is a bona fide occupational qualification within the meaning of Section 23.167 (8)(a), Florida Statutes. In rejecting this conclusion, the Commission interprets that provision as requiring an identifiable handicapping condition, the absence of which is reasonably necessary for the performance of the particular employment. Such interpretation is consistent with the fundamental principles of statutory construction that exceptions to a general prohibition are to be construed strictly and that any ambiguity in an exception is to he construed in a manner that restricts the use of the exception. 6/
In addition, decisions in other jurisdiction, in support of the Commission's interpretation. See, e.g., Weeks v. Southern Bell Tel. & Tel. Co.,
408 F.2d 228, at 232, (5th Cir. 1969)(where the federal court of appeal rejected the bona fide occupational defense in a Title VII sex discrimination case, reasoning in part:
We think it is clear that the burden of proof must be on Southern Bell to demonstrate that this position fits with the "bona fide occupa- tional qualification" exception. The legis- lative history indicates that this exception was intended to be narrowly construed. This is also the construction put on the exception by the Equal Employment Opportunity Commission.
Finally when dealing with a humanitarian reme- dial statute which serves an important public purpose, it has been the practice to cast the burden of proving an exception to the general policy of the statute upon the person claiming it. Phillips Inc. v. Walling, 324 U.S. 490, 493, 65 S. Ct. 807, 89 L:Ed. 1095 (1942).
We agree with the Commission that the broad construction of the bona fide occupational qualification in Bowe v. Colgate-Palmolive Co., supra, is consistent with the purpose of the Act -- providing a foundation in law for the principle of non-discrimination. Construed that broadly, the exception will swallow the
rule. We conclude that the principle of nondis- crimination requires that we hold that in order
to rely on the bona fide occupational qualification exception an employer has the burden of proving that he had reasonable cause to believe, that
is, a factual basis for believing, that all or substantially all women would be unable to perform safely and efficiently the duties of the job involved. (footnotes omitted).
While the burden of proof rests with Brannon to establish the affirmative allegations in his petition for relief by a preponderance of the evidence, the burden rests with the Department to establish the affirmative defense that its action was based on a bona fide occupational qualification Fenesy v. GTE Data Services, Inc., FCHR No. 214-79, DOAH No. 80-473, FCHR Order No. 810042, III
FALR 1764-A (August 11, 1981). The Department, however, failed to raise the affirmative defense in its answer. The Commission's rules provide that: "The answer shall include a specific, detailed statement of any affirmative defense. Failure to plead an affirmative defense shall constitute a waiver of that defense." Fla. Admin. Code Rule 9D-9.08(4)(c).
In this case, Brannon's handicapping condition was the loss of use of his left hand. The Department failed to establish that the use of both hands is reasonably necessary for the performance of the particular employment. 7/
In the absence of a valid bone fide occupational qualification defense, the issue is simply whether the Department discharged Brannon because of his handicap. Resolution of that issue, however, is not as simple as the Hearing Officer implies when he concludes, based on his findings, that Brannon's handicap was related to the discharge, but that the Department's asserted reasons were good reasons for the action taken.
Unlawful motivation must usually be proven by circumstantial evidence and the inference reasonably drawn therefrom. In determining whether inferences have been dispelled by other evidence in the record, it is not enough simply to inquire whether there existed reasons which, absent allegations of unlawful motivation, could support the discharge. If that were sufficient, an unlawful discharge would seldom be proven because, absent unlawful reasons, an employer may discharge an individual for no reason at all.
While this Commission has held that a discharge leased upon the individual's inability to perform the duties required of the position is not an unlawful employment practice, the Commission found in those cases that the discharge was in fact because of inability, rather than because of handicap.
See, e.g., Felix v. Florida Real Estate Commission, FCHR No. 155-79, FCHR Order No. 810051, III FALR 2206-A (September 21, 1981).
While the Hearing Officer made several findings of fact regarding Brannon's work performance, the Hearing Officer neither found nor concluded that Brannon was discharged for unsatisfactory performance or inability to perform the duties required of the position.
In paragraph 19 of the finding of fact portion of the Recommended Order, the Hearing Officer found that Strawn indicated that his decision to discharge Brannon was based in part on Brannon's unsatisfactory work performance and his inability to perform all aspects of his position. In paragraph 20, the Hearing Officer found that the reasons asserted by Strawn were for the most part an accurate depiction of Brannon's performance. Such findings are insufficient to establish that Strawn in fact discharged Brannon for these reasons. Ball v.
Mann, 75 So.2d 758, 760 (Fla. 1954)(where the Court stated that the trier-of- fact has a duty to make findings of fact and that "[m]ere recitals of the evidence do not satisfy this requirement.").
While we might be otherwise inclined to remand this case to the Hearing Officer for more explicit factual findings, assuming such procedure is proper, 8/ other pertinent findings make clear that Brannon's handicap was a substantial or motivating factor in his dismissal. 9/
Sheriff Strawn, himself, admitted that his decision to dismiss Brannon was premised on the medical reports pertaining to the Petitioner's physical condition related to his hand, and the prognosis for that condition as well as his concerns regarding whether Brannon was able to perform his job responsibilities. See Paragraph 19, Findings of Fact.
In addition, the prime focus of the dismissal letter was Sheriff Strawn's concerns that the Department would be entirely liable for physical disability under Worker's Compensation if Brannon aggravated his previous injuries during the course and in the scope of his employment. See Paragraph 22, Findings of Fact.
The Commission's conclusion that Brannon's handicap was a substantial or motivating factor in the discharge is buttressed by the fact that Sheriff Strawn did not undertake any formal evaluation of Brannon's performance and the work related problems which Strawn discussed with Brannon prior to the dismissal related to property control and the Hearing Officer found that the Department failed to show that Brannon acted inappropriately with respect to that aspect of his work. See, Paragraphs 20 and 25, Findings of Fact.
Considering that the Department failed to establish that the use of two hands was a bona fide occupational qualification reasonably necessary for the performance of the position in which Brannon was serving, the Commission concludes that the Department violated Section 23.167(1)(a), Florida Statutes, by discharging Brannon because of his handicap. In light of the strong policy to provide equal treatment for individuals within the state, the possibility that the Department might be subject to financial risks will not justify the Department's action. Fenesy v. GTE Data Services, Inc., FCHR No. 214-79, DOAH No. 80-473, FCHR Order No. 810042, III FALR 1764-A (August 11, 1981); Sterling
Transit Company, Inc. v. Fair Employment Practice Commission, No. 22896, 175 Cal. Rptr. 548 (Cal. App. Ct. 1981).
CONCLUSIONS OF LAW
The Commission, on the basis of the foregoing, makes the following conclusions of law:
The Brevard County Sheriff's Department is an employer within the meaning of Section 23.162(6), Florida Statutes.
E. R. Brannon, Sr., is a person within the meaning of Section 23.162(5), Florida Statutes.
E. R. Brannon, Sr., is handicapped within the meaning of Section 23.167(1)(a), Florida Statutes.
By discharging Brannon because of his handicap, the Brevard County Sheriff's Department violated Section 23.167(1)(a), Florida Statutes. The
absence of E. R. Brannon's particular handicap is not a bona fide occupational qualification reasonably necessary for the performance of the particular employment within the meaning of Section 23.167 (8)(a), Florida Statutes.
E. R. Brannon, Sr., is a person aggrieved by a violation of Section 23.167, Florida Statutes, within the meaning of Section 23.167(10), Florida Statutes.
REMEDY
The Florida Commission on Human Relations orders the Brevard County Sheriff's Department to:
Cease and desist from discharging its deputy sheriffs because of handicap where the absence of such handicap is not a bona fide occupational qualification within the meaning of Section 23.167(8)(a), Florida Statutes.
Take the following affirmative action:
Offer E. R. Brannon, Sr., reinstatement as a deputy sheriff in the Brevard County Police Department at the rank held as of January 4, 1979.
Pay E. R. Brannon, Sr., back pay and fringe benefits from the date of his discharge on January 5, 1979, to the date payment is made, including interest computed at 8 percent per annum, less any interim earnings and benefits
E. R. Brannon, Sr., would have received had he been retained by the Brevard County Sheriff's Department.
Pay to E. R. Brannon, Sr., his reasonable attorney's fees.
Notify the Florida Commission on Human Relations in writing within 20 calendar days from the date of this order of the steps that have been taken to comply herewith.
The Commission reserves jurisdiction over the issues of the amount of lost wages and fringe benefits and attorney's fees. If the parties have reached a proposed settlement regarding the amount to be awarded within 45 calendar days from the date of this order, the parties shall prepare and submit a Joint Stipulation of Settlement for consideration by the Commission. If the parties are unable to reach an agreement regarding the amount to be awarded within 45 calendar days from the date of this order, the parties shall file a Notice of Failure of Settlement with the Clerk of the Commission.
It is so Ordered this 22nd day of February, 1982. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:
BY:
Reese Marshall, Commission Chairperson Commissioner Robert L. Billingslea Commissioner Robert L. Joyce Commissioner Thomas H. Poole, Sr.
Commissioner John J. Sulik
Commissioners Elvira M. Dopico, Melvin L. Levitt, and Robert Simms dissent, concluding that the findings of fact made by the Hearing Officer support his recommendation.
FILED this 23rd day of February, 1982, at Tallahassee, Florida.
BY:
Rosemary Scaringe
Clerk of the Commission
ENDNOTES
1/ The Human Rights Act of 1977, Chapter 23, part IX, Sections 23.161 - 23.167, Florida Statutes (1981), was initially codified at Chapter 13, Part II, Sections
13.201 - 13.261, Florida Statutes (1977). References to Florida Statutes will be to Florida Statutes (1981) inasmuch as the pertinent provisions at issue in this cause have not been changed.
2/ Section 9D, Florida Administrative Code, is in the process of being transferred to Section 22T, Florida Administrative Code.
3/ While Florida Administrative Code Rule 9D-8.28 provides that a party filing an exception or brief may request oral argument, the rule further provides that the Commission may require oral argument.
4/ Murphy v. Mack, 358 So.2d 822 (Fla. 1978), (where the Florida Supreme Court found that a sheriff in the State of Florida was a public employer within the meaning of Chapter 447; Florida Statutes); Owens v. Rush, 636 F.2d 283 (10th Cir. 1980) (where the Tenth Circuit Court of Appeals found that a county, through its agent the sheriff, was an employer within the meaning of 42 U.S.C. Section 2000e(b).
5/ 23.161, 23.165, Fla. Stat.
6/ Farrey v. Bettendorf, 96 So.2d 889 (Fla. 1957); Southern Bell Tel. & Tel. Co. v. D'Alemberte, 39 Fla. 25, 21 So. 570 (1897); Futch v. Adams 47 Fla. 257,
36 So. 575 (1904); State v. Nourse, 340 So.2d 966 (Fla 3d DCA 1976).
7/ Sterling Transit Co., Inc. v. Fair Employment Practice Commission, No. 22896, 175 Cal. Rptr. 548 (Cal. Ct. App. 1981)(where the California court rejected the bona fide occupational qualification defense because the employer was unable to show that all persons with back conditions were unable to perform the truck driver job duties safely and efficiently. Cf. Melvin v. City of West Frankfort, No. 80-239, 93 III. App. 3d 425, 25 EPD 20,252 (III. App. Ct.
1981)(where the Illinois court held that rejection of a handicapped individual, whose leg was amputated below the knee, for the position of firefighter on the basis of a statutory prohibition against amputees was unconstitutional under Article I, Section 19 of the Illinois Constitution); Simon v. St. Louis County, 656 F.2d 316 (8th Cir. 1981)(where the federal court of appeals, relying on Southeastern Community College v. Davis, 442 U.S. 397 (1979), remanded the case to the trial court to determine whether the department's physical requirements for police officers were reasonable, whether they were uniformly applied, and whether accommodations for a paraplegic former police officer's physical abilities could reasonably be required).
8/ Henderson Signs v. Florida Department of Transportation, 397 So.2d 769 (Fla. 1st DCA 1981)(where the court noted with approval that no procedure exists in Chapter 120, Florida Statutes, for the head of an agency to remand a cause to a hearing officer).
9/ Cf. McDonald v. Santa Fe Trail, 427 U.S. 273 (1976)(where the Court held in Title VII race discrimination case that the individual is not required to conclusively demonstrate that the factors asserted by the employer were wholly irrelevant to the challenged practice and that race was the sole causative factor, but rather it was sufficient for the individual to demonstrate that, regardless of the validity of the employer's assertions, race was one cause).
COPIES FURNISHED:
Galvin D. Lee, Attorney for Petitioner (C.M. number P337773103) Catherine R. Riley, Attorney for Respondent (C.M. number P337773104)
Aurelio Durana and Harry L. Lamb, Jr., Attorneys for the Commission's Executive Director.
Dana Baird, Advisor for the Commission. Commissioners
| Issue Date | Proceedings |
|---|---|
| Nov. 15, 1990 | Final Order filed. |
| Jun. 26, 1981 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 23, 1982 | Agency Final Order | |
| Jun. 26, 1981 | Recommended Order | Petitioner discharged after line of duty injury made it impossible for him to do his duty with any reasonable care. Recommended Order: dismissal not unlawful. |
