STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAUL WOLFE, )

)

Petitioner, )

)

vs. ) CASE NO. 84-4355

) STATE OF FLORIDA, DEPARTMENT ) OF AGRICULTURE AND CONSUMER ) SERVICES, )

)

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 28, 1985, at Tallahassee, Florida.

APPEARANCES

For Petitioner: Brian Norton, Esquire

533 East Georgia Street Tallahassee, Florida 32301

For Respondent: Debra G. Steinberg, Esquire

Department of Agriculture and Consumer Services

The Capitol

Tallahassee, Florida 32301

By Petition for Relief from an Unlawful Employment Practice dated November 30, 1984, Paul Wolfe, Petitioner, by and through his attorney, appeals the REDETERMINATION: NO CAUSE of the Florida Commission on Human Relations dated October 31, 1984. Specifically, Petitioner alleges that he was discriminated against in employment by the State of Florida, Department of Agriculture, by reason of physical handicap (heart trouble) and age. The initial complaint was filed by Petitioner on June 25, 1981, the initial NOTICE OF DETERMINATION: NO CAUSE was entered January 19, 1982, and the redetermination as above-noted was entered before this appeal was filed.

At the hearing Petitioner testified in his own behalf, Respondent called two witnesses, and 16 exhibits were offered into evidence. Objection to Exhibit

14 was sustained and all other exhibits were admitted into evidence.

Proposed recommended orders submitted by the parties have been considered. Those proposed findings which are included herein are adopted; otherwise, they are rejected as not supported by the evidence, immaterial, redundant, or unnecessary to the conclusions reached.

FINDINGS OF FACT

1. Petitioner was hired by the Department of Agriculture, Respondent, in June 1965 as a Standards Inspector II with the Division of Standards, Bureau of Weights and Measures. He performed satisfactorily in that job for over 20 years and in September of 1977 he was promoted to Standards Inspection Supervisor and placed in a probationary status for a period of six months.

   
   

2. In his position as Standards Inspector II, Petitioner had been assigned to the small scale division and most of his work involved testing small capacity scales with a weight limit of 30 pounds or less. This work occasionally involved lifting weights up to 50 pounds and Petitioner worked alone.

   
   

3. Shortly after Petitioner was promoted to supervisor in 1977, his superiors started receiving complaints from inspectors supervised by Petitioner and from public establishments serviced by Petitioner. These complaints ranged from improper dress while visiting those establishments supervised by the Department of Agriculture to an inability to work harmoniously with the inspectors whose work Petitioner supervised. Petitioner's first Employment Performance Review as a supervisor was December 1, 1977. In this review (Exhibit 8) Petitioner was given an overall evaluation of 4.6, which is barely above-the 4.5 floor for a satisfactory evaluation. He was next evaluated June 1, 1978, and again given a marginally satisfactory evaluation, this time of 4.5. Following each of these evaluations, Petitioner was counseled by his supervisors regarding the unsatisfactory aspects of his performance, and serious doubts arose regarding Petitioner's qualifications to work satisfactorily as a supervisor. His probationary status was extended.

   
   

4. In March 1979 Petitioner suffered a heart attack, was hospitalized and returned to work within ten days. He exhibited no physical evidence of an inability to perform his duties and made no complaints about physical difficulties.

   
   

5. Petitioner's performance of duty did not improve and on his yearly evaluation June 5, 1979, he was given an overall rating of 3.5, which is unsatisfactory. By giving Petitioner an unsatisfactory rating following a conditional rating, Respondent had to elect between dismissing Petitioner or demoting him. In view of Petitioner's satisfactory performance as a Standards Inspector II for over 21 years, Respondent elected the latter and demoted Petitioner to Standards Inspector II but without loss of pay. The only vacancy open at that time for Standards Inspector II was in the Jacksonville area and Petitioner was transferred to Jacksonville effective September 14, 1979. On this date, September 14, 1979, Petitioner obtained a letter from his doctor stating it would be contraindicated for Petitioner to lift weights exceeding 50 pounds (Exhibit 1). Petitioner sent a copy of this letter to Respondent, and it was placed in Petitioner's personnel file.

   
   

6. Upon transfer to Jacksonville, Petitioner was placed on what is referred to as a medium scale truck. Two people are assigned to a medium scale truck and generally handle weights up to 50 pounds. This vehicle is, however, equipped with a 500-pound weight, for which a power tailgate on the truck and special dolly for towing the weight to the scales are provided for the two people assigned to handle this weight. Petitioner was specifically instructed to lift no more than 50 pounds.

   
   

7. Petitioner made several attempts to get a lateral transfer from Jacksonville back to Tallahassee. On September 18, 1978, Petitioner wrote a

   letter to his supervisor requesting he be reinstated as a Standards Inspection Supervisor (Exhibit 11); in April 1979 Petitioner met with the Commissioner of Agriculture to request reassignment to Tallahassee; and on March 20, 1980, Petitioner's attorney wrote a letter on Petitioner's behalf requesting a lateral transfer (Exhibit 12). In neither letters or meetings did Petitioner contend, or even raise the issue, that his performance of duty on the medium scale truck was physically difficult for him because of his age or heart condition.

   
   

8. By letter dated May 26, 1980 (Exhibit 2), Petitioner's doctor advised Respondent that pushing and pulling scales in Petitioner's work was detrimental to Petitioner's health. In this letter the doctor equivocated somewhat in the last paragraph thereof in which he wrote: "... what really can be said is that any sort of arm exercise which amounts to lifting and carrying, pushing or shoving anything beyond just the usual you do in day to day existence is a detrimental thing for people with coronary artery disease." Upon receipt of this letter, Petitioner was sent to another doctor by Respondent at Respondent's cost, for a second opinion. When this doctor confirmed the diagnosis of coronary artery disease and that Petitioner was unable to perform his duties due to his heart condition, Respondent was faced with the choice of dismissing Petitioner or placing him on sick leave to see if Petitioner's condition improved. Petitioner had a large amount of accumulated sick leave and he was placed on sick leave and told if he could not perform the work of Standards Inspector he should seek more sedentary employment. All the while on sick leave Petitioner drew the full pay he was receiving at the time he was placed on sick leave.

   
   

9. While on sick leave Petitioner called the personnel office of Respondent several times to see if they had found a job for him. Petitioner was told he needed to go to the Department of Administration and establish various positions for which his experience qualified him. He was also told on various occasions to go to specific agencies such as the Department of General Services, Department of State, Department of Natural Resources, and Department of Transportation, and contact the personnel officers at those agencies to inquire what jobs were available. Petitioner did go to the Department of Administration and established those categories of positions for which he was qualified, but he did not go to any of the other departments to which he was specifically directed by Respondent's personnel officer. On two occasions Petitioner was offered jobs in Respondent's Division of Forestry in Perry, Florida, but Petitioner declined these jobs since he did not want to leave Tallahassee. Petitioner testified he did not want to move away from the doctor who had been treating him. Both of these jobs offered to Petitioner paid considerably less than Petitioner was making while on sick leave.

   
   

10. It is clear from Petitioner's own testimony that he expected Respondent to find him a job. When no such job was forthcoming and Petitioner was advised by Respondent that his sick leave would soon run out, Petitioner, on May 4, 1981, became employed by the Leon County Sheriff's Department as a 911 operator. He did not advise Respondent of this employment and continued to draw his compensation from Respondent as well as compensation from the Sheriff's Department until his sick leave ran out in June 1981. Shortly before the exhaustion of Petitioner's sick leave, he was contacted by Respondent and given the options of going on leave without pay, of being placed in another job, or of going on disability retirement. Petitioner resigned from his employment on June 9, 1981. He continued to be employed by the Sheriff until October of 1981 when his employment there was terminated. Petitioner drew unemployment compensation from October 1981 until he was hired in his present job as a file clerk in the Department of Labor in June 1982.

11. Exhibit 16 contains a list of handicapped people employed by Respondent, of which several have suffered heart attacks and have other cardiac diseases.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

13. 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 handicap status or because of age. Petitioner presented no evidence of discrimination respecting age; accordingly, the only issue is whether Petitioner was discriminated against because of his handicap. It is not discrimination to dismiss an employee who becomes physically disabled and is thereby unable to perform the functions required by his job. Nor is it 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, 94 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 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 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 these 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. Section 760.10, Florida Statutes, follows in the footsteps of Title VII of the Civil Rights Act of 1964 (42 U.S.C. Section 2002e-2002e15) while extending its provisions to include the handicapped. The Civil Rights Act, which requires equal employment opportunities, does not command that any person be hired simply because he was formerly the subject of discrimination, or because he is a member of a minority group, but only proscribes discriminatory preference for any group, minority, or majority; what is required is removal of artificial barriers to employment when barriers operate invidiously to discriminate on basis of racial or other impermissible classification. Griggs v. Duke Power, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed. 2d 158 (1971).

    
    

17. In order to establish a prima facie case of discrimination, the Petitioner must show: (1) that he is handicapped; (2) that he performed his assigned duties satisfactorily; and (3) 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). The only one of these elements shown by Petitioner is that he is handicapped and his handicap disqualifies him from performing the duties of a standards Inspector II. That Respondent has not demonstrated a pattern of discrimination against the handicapped is shown by Exhibit 16, which lists several employees who have suffered cardiac disease and continue to be employed by Respondent.

    
    

18. If Petitioner contends that he was demoted from the job of supervisor to two standards Inspector II because of his heart attack and subsequent physical handicap, it is sufficient to say that the evidence here presented clearly fails to support this position. In fact, the evidence is clear that Respondent had no reason to believe or even know that Petitioner was physically unable to continue in his job when he was demoted from the position of Standards Inspection Supervisor to which he had been provisionally promoted; and that this demotion was solely due to Petitioner's incompetence as a supervisor.

    
    

19. Petitioner's contention that Respondent was under an affirmative duty to find him another job for which he was qualified after he became physically unable to perform the duties for which he had been hired, is without merit. Respondent assisted Petitioner by fully advising him of the procedures he needed to follow to have himself placed on the list of qualified applicants for state jobs; referred Petitioner to specific agencies that were likely to have job openings for which Petitioner was qualified but Petitioner failed to go to those agencies as suggested; and, in fact, Respondent offered Petitioner two jobs in the Department of Agriculture which Petitioner declined.

From the foregoing, it is concluded that Petitioner has failed to establish, by a preponderance of the evidence, that he was discriminated against in employment by the Department of Agriculture and Consumer Services by reason of his physical handicap brought on by cardiac disease or that he was discriminated against because of his age. It is

RECOMMENDED that the Petition of Paul Wolfe alleging that he was discriminated against in employment by the Department of Agriculture and Consumer Services by reason of his physical handicap (cardiac disease) and age be dismissed.

ENTERED this 6th 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 6th day of May, 1985.

COPIES FURNISHED:

Brian Norton, Esquire

533 East Georgia Street Tallahassee, Florida 32308

Debra Steinberg, Esquire Department of Agriculture and

Consumer Services

The Capitol, Plaza Level Tallahassee, Florida 32301

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

Docket for Case No: 84-004355

Orders for Case No: 84-004355