STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS A. RATEAU, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2378

)

SCHOOL BOARD OF PINELLAS )

COUNTY, FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on February 18, 1983, at Clearwater, Florida.

APPEARANCES

For Petitioner: Thomas A. Rateau, pro se

2858 Rampart Circle

Clearwater, Florida 33519

For Respondent: Usher L. Brown, Esquire

Post Office Box 4688 Clearwater, Florida 33518

By undated Petition for Relief, Thomas A. Rateau, Petitioner, seeks an order prohibiting the School Board of Pinellas County, Florida, Respondent, from discriminating against employment of Petitioner because of physical handicap.

The initial complaint made by Rateau was investigated by the Florida Commission on Human Relations and by Determination, filed June 21, 1982, the staff of the Commission found probable cause exists to find the School Board of Pinellas County unlawfully discriminated against Thomas A. Rateau in failing to employ him as a business education teacher in the Pine11as County school system. After attempts at conciliation failed, Rateau filed his petition and the case was transferred to the Division of Administrative Hearings for the hearing held February 18, 1983.

At the hearing Rateau testified in his own behalf, five witnesses were called by Respondent, and 12 exhibits were admitted into evidence.

Proposed findings submitted by Respondent and not included below were not supported by the evidence or were deemed immaterial to the results reached.

FINDINGS OF FACT

1. Respondent is an employer as that term is used in Section 23.167, Florida Statutes.

2. By memo dated November 6, 1981, all principals in Pinellas County were advised by Seymour Brown, Director, Secondary Placement and Substitute Teachers, that Thomas A. Rateau, Petitioner, was eligible to substitute in their schools as a teacher in business education and mathematics for grades 7 through 12.

   That substitute teacher offer was conditioned upon Rateau passing the November 11, 1981, physical examination. Rateau passed this examination.

   
   

3. The principal at Dunedin Senior High School needed a teacher in business education to complete the semester ending January 25, 1982. He reviewed the applications on file in the office of Dr. Seymour Brown, interviewed Petitioner, and selected Petitioner to fill the vacancy at his school. The principal notified Dr. Brown of his choice and Petitioner was offered a contract for a teaching position in the Pinellas County school system for the 1981-82 school year for a period of 32 duty days beginning November 30, 1981, and ending January 25, 1982, which Petitioner accepted (Exhibit 2). This offer and acceptance were conditioned upon acceptable certification by licensed medical practitioner on a medical information form provided by the Personnel Department (Exhibit 2).

   
   

4. At his option Petitioner took the medical information form to his attending physician, Dr. Guiterrez, who, on November 24, 1981, conducted a complete physical examination. Dr. Guiterrez summarized Petitioner's condition as "physically healthy." Following this entry the box checked provided: "Has permanent physical limitations acceptable for this job. Re-examine before transfer to another position." Dr. Guiterrez also completed the School Board form (Exhibit 6) in which he wrote or checked the following:

   
   

   Diagnosis: Status Post-spinal Surgery Prognosis: Fair

   Medication Prescribed: Bufferin Dosage:

   Restrictions, If Any: No heavy lifting Eligible To Work: Yes Under My Care: Yes

   
   

5. The physical examination conducted by Dr. Guiterrez was forwarded' to the School Board examining physician, Dr. Joseph A. Baird. Dr. Baird had Petitioner complete the medical information part of Exhibit 12. Therein Petitioner acknowledged that he had had back surgery, that he has a current medical problem with his back, that he has received worker's compensation, and that he has physical limitations. In describing his worker's compensation claim (Exhibit 12), Petitioner stated that while employed by the U.S. Postal Service an industrial accident caused by a failure of equipment exacerbated an unknown, pre-existing condition which was determined to be a tumor growing in his spinal column. Surgery subsequently removed that part of the tumor that had grown out of the bottom of his spine. He was terminated by the postal service because he could no longer perform the continually heavy lifting required by his postal service job.

   
   

6. Dr. Baird questioned Petitioner about his back problems and learned that if the tumor again grows out of his spine Petitioner may need additional surgery. Dr. Baird observed the scar on Petitioner's back, had Petitioner bend at the waist and checked his knee-jerk reflexes. This examination took less than five minutes.

   
   

7. Dr. Baird then contacted Patricia Diskey, Employment Coordinator for the School Board, and discussed with her Petitioner's condition and asked her to

   provide him with the physical requirements for a teacher of business education in a Pinellas County high school. Following this discussion, Dr. Baird submitted the form letter to the office of Dr. Brown stating simply that Petitioner did not meet the physical requirements necessary for employment in the Instructional Department of the Pinellas County School Board (Exhibit 11).

   
   

8. At the hearing Patricia Diskey testified that the job requirements for a high school business education teacher included the ability to do frequent and heavy lifting of typewriters, computer components, and other office equipment used to teach business education; to be able to bend down to clearly see the data processing screen used by the students; to move numerous books from classroom to classroom; to transport equipment to the school's service center several blocks distant, take the equipment into the center for repairs and return with replacement equipment; and to stand for long periods of time. She also testified that business education teachers would be required to lift and move equipment around the classroom weighing up to 100 pounds. However, no evidence was presented that a demonstration of such physical ability was ever required of a business education teacher in the Pinellas County school system. Dr. Baird never includes a muscle-tone test in the examinations he conducts for teacher applicants. Petitioner was not requested to demonstrate his capability or inability to lift equipment used in the classroom.

   
   

9. Physically, Petitioner is a well-developed white male. Exhibit 12 shows him 5 feet eleven and one-half inches in height and weight of 225 pounds. He is not obese and gives the appearance of one having greater than average strength normally found in men his age.

   
   

10. Respondent presented evidence that it has employed disabled persons, and a list of those handicapped persons employed in Respondent's secondary schools was presented as Exhibit 9. It is noted that the majority of those handicapped employees listed have permanent type disabilities such as blind in one eye, deformed arm, legally blind, uses crutches, part of limb missing, speech impediment, hearing problems, limps, crippled leg, etc. Respondent also presented evidence that persons suffering back problems were hired by the School Board (Exhibit 10), one of whom was a paraplegic confined to a wheelchair, but produced no evidence that it had employed a teacher so handicapped.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

12. Section 23.167(1), Florida Statutes, provides it is an unlawful employment practice for an employer to refuse to hire any individual because of such individual's handicap. This does not require an employer to hire an individual with a handicap which precludes the individual from performing the duties required by and related to the job position applied for.

    
    

13. In a discrimination case the petitioner has the initial burden of establishing a prima facie case of discrimination. If petitioner succeeds in proving the prima facie case, the burden shifts to the respondent to articulate some legitimate reason for the petitioner's rejection. Should the respondent carry this burden, petitioner must then have the opportunity to prove, by a preponderance of the evidence, that the legitimate reasons offered by the respondent were not its true reasons, but were pretext for discrimination. Texas Department of Community Affairs v. Burdine, 101 S.Ct. 1089, 1903 (1981).

14. In the instant case Respondent clearly refused to hire Petitioner because of his back condition which constitutes a physical handicap. A prima facie case is established by showing: (1) That Petitioner has a physical handicap; (2) That he applied for and was qualified for the job for which the employer was seeking applicants; (3) That despite his qualifications he was rejected; and (4) After his rejection the position remained open and the employer continued to seek applicants from persons of Petitioner's qualifications. McDonnell Douglas Corporation v. Green, 411 U.S. 792, 36 L.Ed 2d 668, 93 S.Ct. 1817 (1973).

    
    

15. Once Petitioner establishes a prima facie case the burden shifts to the Respondent "to articulate a legitimate nondiscriminatory reason for the employee's rejection." As noted in Burdine, supra, at p. 1091:

    
    

    To accomplish this, the defendant must clearly set forth, through the introduction of admissible evidence,

    the reasons for the plaintiff's rejection.

    The explanation provided must be legally sufficient to justify judgement for the defendant. If the defendant carries its burden of production,

    the presumption raised by

    the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity . . .

    
    

16. Respondent alleges that Petitioner is unable, because of his disability, to perform the duties required by the job for which Petitioner was otherwise qualified. To demonstrate that this articulated reason was not a pretext for refusing to hire Petitioner, Respondent produced witnesses to describe the physical demands of the position sought by Petitioner. These articulated physical demands, such as, the ability to lift and carry to other locations in the classroom equipment weighing as much as 100 pounds, would appear to be beyond the physical capabilities of many women, particularly if the equipment to be moved is bulky. No test is given to applicants to determine muscle tone or physical ability to move classroom equipment and no such test was given to Petitioner. These physical requirements were obviously formulated to eliminate the problems foreseen (or speculated) if Petitioner was employed, performed satisfactorily, acquired tenure, and thereafter gradually became incapacitated.

    
    

17. Petitioner has a handicap that may never greatly diminish his ability to perform physical tasks. On the other hand, it could become a life threatening condition and/or could severely restrict his usefulness as a teacher. Dr. Baird recognized the potential for future problems if the Petitioner was hired, alerted Respondent's staff to these problems and, between them, came up with "job qualifications" intended to exclude Petitioner from employment. Absence of any evidence that these requirements were ever enforced, or even considered, prior to the instant case casts serious doubts on their credibility.

    
    

18. Accordingly, I find the reasons for disqualifying Petitioner from the position for which he was otherwise qualified to be pretextual and devised for the primary, if not sole, purpose of keeping Petitioner off of the instructional staff in the Pinellas County school system.

19. From the foregoing it is concluded that Petitioner was unlawfully discriminated against because of a physical handicap and should receive the pay he would have received had he been hired. The contract which he signed covered a specific period of employment from November 30, 1981, to January 25, 1982. While it is obvious the contract could have been extended and Petitioner could have been given a contract for the 1982-83 school year, any such finding is speculative and cannot form the basis for damages. Inasmuch as the contract provided for a specific period of employment, that period should be used to determine the sum Petitioner would have received had he commenced work on November 30, 1981, and worked through January 25, 1982.

    
    

20. Such an award of damages does not resolve the issue of discrimination which could arise if Petitioner again applies for a position on the instructional staff of the Pinellas County school system. Future discrimination should be forbidden by the final order of the Florida Commission on Human Relations. It is therefore

RECOMMENDED that the Pinellas County School Board be found guilty of unlawfully discriminating against Thomas A. Rateau by failing to hire him because of a physical handicap and that Respondent be ordered to pay Thomas A. Rateau the wages he would have received for the period November 30, 1981, through January 25, 1982, but for this discrimination. It is further

RECOMMENDED that the Pinellas County School Board be ordered to cease and desist from future discrimination by reason of physical handicap.

ENTERED this 22nd day of March, 1983, at Tallahassee, Florida.

K. N. AYERS, 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 22nd day of March, 1983.

COPIES FURNISHED:

Thomas A., Rateau 2858 Rampart Circle

Clearwater, Florida 33519

Usher L. Brown, Esquire Post Office Box 4688 Clearwater, Florida 33518

Richard E. Williams, Executive Director Florida Commission on Human Relations 2562 Executive Center Circle, East Suite 100, Montgomery Building Tallahassee, Florida 32301

Nevin G. Smith, Secretary Department of Administration Carlton Building Tallahassee, Florida 32301

Docket for Case No: 82-002378

Orders for Case No: 82-002378