STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD H. BLAKE, )

)

Petitioner, )

)

vs. ) CASE NO. 84-3523

)

CITY OF TALLAHASSEE, )

)

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 March 26, 1985, at Tallahassee, Florida.

APPEARANCES

For Petitioner: Marva A. Davis, Esquire

229 East Washington Street Quincy, Florida 32351

For Respondent: Patrick Hurley, Esquire

Post Office Drawer 1049 Tallahassee, Florida 32302

By Petition for Relief dated September 13, 1984, Richard H. Blake, Petitioner, contests the NOTICE OF DETERMINATION: NO CAUSE entered by the Executive Director, Florida Commission on Human Relations on August 15, 1984. As grounds therefor it is alleged that Petitioner was discriminated against in employment by reason of a physical handicap (alcoholism) and his race (black).

At the hearing Petitioner called six witnesses, including himself, Respondent called three witnesses, and eight exhibits were offered into evidence. Ruling on the admissibility of Exhibit 1 was reserved at the hearing and the other seven exhibits were admitted. Exhibit 1 is now admitted into evidence.

Proposed recommended orders have been submitted by the parties. Findings of fact contained therein which are consistent with those below are adopted; otherwise, they are rejected as not supported by the evidence, a mere recitation of testimony presented, immaterial, redundant, or unnecessary to the conclusions reached.

FINDINGS OF FACT

1. Richard H. Blake, Petitioner, was employed by the City of Tallahassee in February of 1981 as a coach operator driving a Taltran bus. During the period between February 1981 and his discharge on May 11, 1982, his attendance had not been good and in April 1982 he was issued a written reprimand (Exhibit

   5). The specific incident giving rise to this reprimand was Petitioner's calling in shortly before he was due to take his bus out saying he did not feel like driving. The City has a policy that drivers must notify their supervisors at least one hour prior to the time their run is due out if they are unable to meet that scheduled commitment. The reprimand was given for Blake's failure to comply with this policy. He was directed to report for work, which he did after the supervisor had departed with Blake's bus. Blake did not claim to be sick or ask for sick leave. At the same time this reprimand was issued Blake was directed to report to the Employee Assistance Program for evaluation and help.

   
   

2. The Employee Assistance Program (EAP) for employees of the City of Tallahassee is operated by Apalachee Mental Health Services. City employees with certain problems affecting their work performance are referred to EAP for evaluation and, if desired by the employee, assistance. The evaluation is not revealed to the employer and the employee is not required to undergo treatment recommended by EAP. The employee referred to EAP is required to go for evaluation. The program is conducted at no cost to the employee and time off is given the employee to go for evaluation and treatment. This program is considered to be a fringe benefit to the employees of the City of Tallahassee.

   
   

3. Petitioner reported to EAP as directed and embarked on a rehabilitation program with Apalachee Mental Health Services. No report of Petitioner's evaluation or treatment was made to Respondent.

   
   

4. On Monday, May 10, 1982, Petitioner called in around 6:45 a.m. to say he was sick and did not feel like coming to work. The call was made within 30 to 45 minutes before time for his run to start and too late for a relief driver to be obtained. Blakes's supervisor told him to come to work so his bus could go out on schedule. Blake reported as directed, took his bus out and about an hour later (around 8:00 a.m.) called in from his route claiming he was sick and needed someone to relieve him. At the time this call for relief came the Superintendent of Operations, Lloyd McCoy, was at the Taltran depot and he drove a relief driver to Blake's location where Blake was relieved and driven back to the depot by McCoy. Enroute back to the depot McCoy smelled what he thought to be alcohol on Blake's breath and asked Blake if he would consent to a breathalyzer test. Blake agreed to a test and was left in the car while McCoy went into the station to make arrangements with the police. When McCoy came out to tell Blake arrangements had been made for the test, Blake had departed.

   
   

5. Later that morning Blake reported to the Police Station but the police would not administer the breathalyzer test without his supervisor being present. Blake then went to the City of Tallahassee Personnel Office where he talked to Beulah Gregory, a Personnel Analyst with the City and Coordinator of EAP. Blake told her he had been told to take a breathalyzer test but would not go unless she went with him. Gregory called McCoy, who met her and Blake at the Police Station, where, at approximately 11:25 a.m. the breathalyzer test was taken by Blake. The test showed a reading of between .05 and .06 percent blood-alcohol.

   
   

6. Blake testified that during the period he worked for the City of Tallahassee as a Taltran bus driver he was an alcoholic; that he had been an alcoholic for ten years but did not list this as a handicap on his employment application; that he drank every evening until midnight when he would stop drinking and go to bed so he would be able to work the following morning; that during the weekends while he was not on duty he drank all weekend; that Sunday, May 9, 1982, he drank all day and into the night; that after he went to bed that night at his girlfriend's house he started coughing and had a runny nose; that he started taking Nyquil to help his cough; that between midnight and 7:00 a.m.

   the following day he drank almost one and one-half bottles of Nyquil; that he did not know Nyquil contained alcohol until after he had taken the breathalyzer test; that when he called in May 10 to say he was sick he had a cough and runny nose; and that it was his cough and runny nose that necessitated him calling for a relief driver after he started his route on May 10, 1982. Between the time he was relieved at his bus until the breathalyzer test was taken Blake took one dose (one and one-half ounces) of Nyquil.

   
   

7. A person the weight of Petitioner with the blood-alcohol reading of

   .055 at 11:25 a.m. related back to 8:00 a.m. when Petitioner was relieved from his run on May 10 would, in the absence of additional alcohol intake after the run started, have shown a blood-alcohol level of .11 percent at 8:00 a.m. A blood-alcohol reading of .10 percent is conclusively presumed to represent intoxication and any person driving a vehicle with that blood-alcohol level will be charged with driving under the influence. The police may arrest and charge a driver with DUI whose blood-alcohol level is .05 and above who is driving erratically or otherwise indicates something abnormal.

   
   

8. Following receipt of the results of the blood-alcohol test on May 10, 1982, Petitioner was dismissed as a Taltran bus driver by Respondent on May 11, 1982.

   
   

9. No evidence was presented by Petitioner to raise any inference that his race had any relation to his discharge. The evidence respecting race that was presented is that the majority of Taltran bus drivers are black and that the driver hired to replace Petitioner following Petitioner's dismissal was also black.

   
   

10. Blake was subsequently rehired by the City of Tallahassee as a Custodian II. He contends that he is now sober and a reformed alcoholic. This testimony was not rebutted.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

12. Section 760.10, Florida Statutes, makes it an unlawful employment practice for an employer to discharge or otherwise discriminate against any individual because of such individual's race or handicap. Petitioner presented no evidence of discrimination respecting race; accordingly, the only issue is whether Petitioner was discriminated against because of his handicap.

    
    

13. Discrimination connotes disparate treatment, i.e., that the employee was treated differently that others because of his race, handicap, etc. It is not unlawful discrimination to dismiss an employee who becomes physically disabled and is thereby unable to perform the duties required of his job. Nor is it unlawful discrimination to refuse to hire one not physically capable of performing the duties required by the job. It is not unlawful discrimination to refuse to hire one who is not a citizen if such refusal is not based on national origin, Esposito v. Farrah Mfg. Co., 414 U.S. 86, 96 S.Ct. 334, 38 L.Ed.2d 287 (1973); to base hiring on bona fide occupational qualifications which, although they are narrowly construed, permit sex-based discrimination, Dothard v. Rawlingson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977); or to limit certain employment in religious institutions to persons of that faith.

14. 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 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 a pretext for discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981).

    
    

15. To present a prima facie case, Petitioner must present facts which "raise an inference of discrimination only because we presume those acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors." Id. at 450 U.S. 254. The prima facie case serves to eliminate the most common non-discriminatory reasons for the plaintiff's rejection. See, Teamsters v. United States, 431 U.S. 324, 358 and n. 44, 97 S.Ct. 1843, 1866, 52 L.Ed.2d 396 (1977).

    
    

16. In order to establish a prima facie case of discrimination, the Petitioner must show:

    
    

    1. That he is handicapped;

    2. That he is black;

    3. That he performed his assigned duties satisfactorily;

    4. That despite his satisfactory performance he was terminated.

       
       

       Cf. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 37 L.Ed.2d

       668 (1973).

       
       

17. That Petitioner is black is acknowledged; however, not a scintilla of evidence was presented that Taltran employees of a different race than Petitioner were treated differently.

    
    

18. While no evidence was presented that alcoholism is a physical handicap which comes under the protection of Section 760.10, Florida Statutes, for the purpose of this order that is assumed to be true. Nor was evidence presented that sobriety is an occupational requirement for city bus drivers. However, it is general knowledge that driving under the influence of intoxicants is not only illegal but hazardous to the health and property of all unfortunate enough to become closely associated with such a driver through advertence or inadvertence. Accordingly, that too will be accepted as a bona fide job requirement for one aspiring to drive a city bus in the City of Tallahassee. Neither of these issues is essential to the determination of discrimination in this case.

    
    

19. The evidence is clear and convincing that on the morning of May 10, 1982, Petitioner reported to work as a Taltran bus driver with a blood-alcohol level in the range clearly showing intoxication and that he operated his bus in that condition. To say that Petitioner is protected from dismissal under these circumstances because he has a physical handicap (alcoholism) is reminiscent of the plea of mercy, because he is an orphan, of one convicted of murdering his parents.

From the foregoing, it is concluded that Petitioner has failed to establish a prima facie case of discrimination because of race or handicap and that Respondent presented evidence showing no pattern of racial discrimination exists

in the City's employment practices and that Petitioner was fired because he operated a Taltran bus transporting passengers while under the influence of intoxicants. It is

RECOMMENDED that the appeal of Richard H. Blake alleging he was unlawfully dismissed from his employment with the City of Tallahassee because of his race and handicap be dismissed.

ENTERED this 10th day of May, 1985, 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 10th day of May, 1985.

COPIES FURNISHED:

Marva Davis, Esquire

229 East Washington Street Quincy, Florida 32351

Patrick E. Hurley, Esquire Assistant City Attorney Henry, Buchanan, Mick &

English, P.A.

Post Office Drawer 1049 Tallahassee, Florida 32302

Donald A. Griffin, Executive Director Florida Commission on

Human Relations

325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303

Aurelio Durana, Esquire General Counsel Florida Commission on

Human Relations

325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

RICHARD H. BLAKE,

EEOC Case No. 046833703

Petitioner, FCHR Case No. 84-2477 DOAH Case No. 84-3523

1. FCHR Order No. 85-0031

   
   

   CITY OF TALLAHASSEE,

   
   

   Respondent.

   /

   
   

   ORDER DISMISSING PETITION FOR RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

   
   

   1. Panel of Commissioners

      
      

      The following three Commissioners participated in the disposition of his matter:

      
      

      Commissioner Elvira M. Dopico, Panel Chairperson;

      Commissioner Robert R. Joyce; and Commissioner Learna G. Ramsey.

      
      

   2. Appearances For Petitioner Richard H. Blake:

      Richard H. Blake 907 Frazier Street

      Tallahassee, Florida 32304 For Respondent City of Tallahassee:

      Patrick Hurley, Esquire Post Office Drawer 1049 Tallahassee, Florida 32302

      
      

   3. Preliminary Matters

      
      

      Richard H. Blake, Petitioner herein, filed a complaint of discrimination with this Commission pursuant to the Human Rights Act of 1977, as amended, Section 760.01-760.10, Florida Statutes (1983), 1/ alleging that City of Tallahassee, Respondent herein, unlawfully discriminated against Petitioner on the bases of his handicap (alcoholism) and race (black) by discharging him from its employ.

      In accordance with the Commission's rules, the allegations of discrimination set forth in the complaint of discrimination were investigated and a report of said investigation was submitted to the Executive Director. On August 15, 1984, the Executive Director issued his Determination finding no reasonable cause to believe that an unlawful employment practice had occurred in violation of the Human Rights Act of 1977.

      
      

      On September 13, 1984, Petitioner filed a Petition for Relief from an Unlawful Employment Practice. The Petition was referred to the Division of Administrative Hearings (DOAH) for the conduct of a formal proceeding pursuant to Rule 22T-8.16(1).

      
      

      The formal proceeding was held on March 26, 1985, before K. N. Ayers, DOAH Hearing Officer, in Tallahassee, Florida. The Hearing Officer entered a Recommended Order in this matter on May 10, 1985, recommending that the Petition be dismissed.

      
      

      Petitioner filed exceptions to the Recommended Order. Petitioner did not serve the exceptions upon Respondent.

      
      

      Pursuant to notice, public deliberations were held on June 21, 1985, in Tallahassee, Florida, before the aforementioned Panel of Commissioners. After oral argument was presented for the respective parties, the Panel conducted public deliberations in this matter and determined the action to be taken upon the Petition.

      
      

   4. Rulings on Exceptions

      
      

      The Panel declined to consider Petitioner's exceptions because they were not served upon Respondent as required by Rule 22T-8.05. Further, many of the exceptions addressed factual issues which should have been presented to the DOAH Hearing Officer.

      
      

   5. Findings of Fact

      
      

      Having considered the Recommended Order, the record of the proceeding, and oral arguments of the respective parties, the Panel finds that the Hearing Officer's findings of fact are supported by competent, substantial evidence.

      The Hearing Officer's findings of fact are hereby adopted.

      
      

   6. Conclusions of Law

The Hearing Officer concluded as a matter of law that Petitioner failed to establish a prima facie case of race or handicap discrimination:

"To present a prima facie case, Petitioner must present facts which `raise an inference of discrimination only because we presume those acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.' [Texas Department of Community Affairs v. Burdine] at 450 U.S. 254. The prima facie case serves to eliminate the

most common non-discriminatory reasons for the plaintiff's rejection. See, Teamsters v.

United States, 431 U.S. 324, 358 and n. 44, 97

S.Ct. 1843, 1866, 52 L.Ed.2d 396 (1977).

In order to establish a prima facie case of discrimination, the Petitioner must show:

1. That he is handicapped;

2. That he is black;

3. That he performed his assigned duties satisfactorily;

4. That despite his satisfactory performance he was terminated.

Cf. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 37

L.Ed.2d 668 (1973).

That Petitioner is black is acknowledged; however, not a scintilla of evidence was presented that Taltran employees of a different race than Petitioner were treated differently.

While no evidence was presented that alcoholism is a physical handicap which comes under the protection of Section 760.10, Florida Statutes, for the purpose of this order that is assumed to be true. Nor was evidence presented that sobriety is an occupational requirement for city bus drivers. However, it is general knowledge that driving under the influence of intoxicants is not only illegal but hazardous to the health and property of all unfortunate enough to become closely associated with such a driver through advertence or inadvertence. Accordingly, that too will be accepted as a bona fide job requirement for one aspiring to drive a city bus in the City of Tallahassee. Neither of these issues is essential to the determination of discrimination in this case.

The evidence is clear and convincing that on the morning of May 10, 1982, Petitioner reported to work as a Taltran bus driver with a blood-alcohol level in the range clearly showing intoxication and that he operated his bus in that condition. To say that Petitioner is protected from dismissal under these circumstances because he has a physical handicap (alcoholism) is reminiscent of the plea of mercy, because he is an orphan, of

one convicted of murdering his parents.

From the foregoing it is concluded that Petitioner has failed to establish a prima

facie case of discrimination because of race or handicap and that Respondent presented evidence showing no pattern of racial discrimination exists in the City's employment practices and that Petitioner was fired because he operated a Taltran bus transporting passengers while under the influence of intoxicants."

The Panel rejects the Hearing Officer's conclusion that Petitioner failed to establish a prima facie case of race or handicap discrimination.

The Petitioner established a prima facie case of race discrimination in that the evidence does reveal that he was treated differently regarding Respondent's attendance practices than a white employee whose attendance was as poor as if not worse than Petitioner's. 2/ Disparate treatment under similar circumstances raises an inference of discrimination. Teamsters v. United States, 431 U.S. 324 (1977).

Furthermore, Petitioner established a prima facie case of handicap discrimination. In Fenesy v. GTE Data Services, Inc., FCHR Order No. 81-0042, 3 FALR 1764-A (August 11, 1981), the Commission adopted a plain language interpretation of the term "handicap":

"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.'"

The Rehabilitation Act of 1973, 29 U.S.C. Section 794, prohibits discrimination against otherwise qualified handicapped individuals. Alcoholism has been included in the Act's regulations as a handicap. 29 C.F.R. Section 32.3(b)(1)(iii)(1981). Accordingly, alcoholism is a handicap within the meaning of Section 760.10, Florida Statutes.

Under the Rehabilitation Act of 1973, the individual must show that he or she is handicapped under the Act and was terminated from employment because of the handicap. The employer must then show that the handicap precludes the person from remaining employed in the position. If the employer meets this burden, the individual must show that he or she is qualified for the position despite the handicap. Doe v. New York University, 666 F.2d 761 (2d Cir. 1981); Pushkin v. Regents of University of Colorado, 658 F.2d 1372 (10th Cir. 1981).

Under the facts presented in this case, Petitioner established that he is handicapped within the meaning of Section 760.10, Florida Statutes, and that he was terminated from employment for a condition related directly to his handicap. The termination of an alcoholic for alcoholic consumption raises an inference of discrimination no less than does the termination of an epileptic for having a seizure.

In Southeastern Community College v. Davis, 442 U.S. 397, 413 n.12 (1979), the Supreme Court indicated that an employer may consider the safety risks posed by a handicapped employee in making an employment decision. In Bucyrus-Erie Company v. State Department of Industry, Labor and Human Relations, 90 Wis.2d 408, 280 N.W.2d 142 (1979), the Wisconsin Supreme Court held that the employer must establish to a reasonable probability that because of the complainant's

physical condition, employment in the position sought would be hazardous to the health and safety of the complainant or to the other employees or frequenters of the place of employment. In Boynton Cab Company v. Department of Industry, Labor, and Human Relations, 96 Wis.2d 396, 291 N.W.2d 850 (1980), the Wisconsin Supreme Court held that the employer's burden of proving a "reasonable probability" of harm is reduced by operators of common carriers.

Applying the above-stated analysis to the instant facts, there is no question that Petitioner's behavior placed his life as well as the public's in danger and that Respondent substantiated that risk. Ultimately, Petitioner was unable to show that he was qualified for the position despite the handicap.

Notwithstanding the above-noted modifications in the Hearing Officer's conclusions of law, the Hearing Officer's ultimate conclusion that no unlawful employment practice occurred is supported by the record and is a correct application of law to fact.

The Hearing Officer's conclusions of law, as modified in this section, are a correct application of law. The Hearing Officer's conclusions of law, as modified, are hereby adopted.

VI. Dismissal

The Hearing Officer's recommendation is adopted and his Recommended Order is incorporated herein by reference.

Accordingly, the Petition for Relief from an Unlawful Employment Practice and the underlying complaint of discrimination are hereby DISMISSED with prejudice.

Petitioner is advised of his right to petition the Florida District Court of Appeal for review of this Order within 30 days of the date that this Order is filed with the Clerk of the Commission. Section 120.68, Fla. Stat. (1983); Fla. R. App. P. 9.110(b).

It is so ORDERED.

DATED this 16th day of August, 1985, Tallahassee, Florida. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

BY:

Commissioner Elvira M. Dopico, Panel Chairperson.

Commissioner Robert R. Joyce: I concur with the majority opinion except with respect to the ruling that Petitioner established a prima facie case of race discrimination. Regarding that issue, I agree with the Nearing Officer's conclusion that no prima facie case was established.

Commissioner Learna G. Ramsey: I concur with the Chairperson that Petitioner established a prima facie case of race and handicap discrimination. I dissent from the remaining portions of the opinion and would find that Respondent discriminated against Petitioner on the basis of race in violation of the Human Rights Act of 1977.

FILED this 21st day of August, 1985, in Tallahassee, Florida.

Betsy Howard,

Clerk of the Commission

ENDNOTES

1/ Unless otherwise indicated, all statutory references are to Florida Statutes (183), and all rule references are to Florida Administrative Code.

2/ The attendance records are contained in Exhibit 4.

COPIES FURNISHED:

Richard H. Blake, Petitioner (C. M. # P085350053).

Patrick Hurley, Attorney for Respondent (C. M. # P085350054).

Dana Baird, Legal Advisor for Commission Panel. Administrator of Field Services.

K. N. Ayers, DOAH Hearing Officer.

Docket for Case No: 84-003523

Orders for Case No: 84-003523