STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOE E. WILLIS, )

)

Petitioner, )

)

vs. ) CASE NO. 85-0264

)

CITY OF CHIPLEY, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Chipley, Florida on August 15, 1985, before the Division of Administrative Hearings and its duly appointed Hearing Officer R. T. Carpenter.

APPEARANCES

For Petitioner: Paul D. Srygley, Esq.

1030 East Lafayette Street Suite 101

Tallahassee, Florida 32301

For Respondent: William J. Mongoven, Esq.

Post Office Box 187 Chipley, Florida 32428

This matter arose on Petitioner's Complaint of Discrimination filed with the Florida Commission on Human Relations alleging he was discharged from employment by Respondent because of a physical handicap in violation of Section 760.10(1)(a), Florida Statutes (1983) (F.S.)

The matter was referred to the Division of Administrative Hearings for proceedings under Section 120.57(1), F.S. Subsequent to hearing, Respondent submitted proposed findings of fact pursuant to Subsection 120.57(1)(b)4, Florida Statutes. A ruling on each proposed finding of fact has been made either directly or indirectly herein, except where such proposed findings have been rejected as subordinate, cumulative, immaterial, or unnecessary.

FINDINGS OF FACT

1. Petitioner was employed by the City of Chipley from April 16, 1982 until July 1, 1983, when he was terminated. Petitioner was suspended prior to termination by his supervisor on June 23, 1983.

   
   

2. During the period of his employment, Petitioner worked as a laborer in the Public Works Department. His duties required physical labor including heavy lifting.

   
   

3. On January 28, 1983. Petitioner injured his thumb and was assigned to light duty when it became apparent that his regular duties aggravated the injury.

   
   

4. Petitioner returned to regular duties, but on March 22, 1983, he injured his back while loading cement bags. He was again assigned to light duty. These were essentially "make work" assignments since virtually all duties in Petitioner's department were of a heavy duty nature. Thus, Petitioner was considered unproductive by his supervisor during such periods.

   
   

5. On April 11, 1983, his supervisor advised him that his employment with Respondent "looks dim" and that he should seek other employment. Petitioner refused to do so in the belief that no one else would hire someone with a "bad back."

   
   

6. Petitioner was informed by a coworker that the Public Works supervisor did not want injured employees working for him and "runs them off" when they get hurt. Although Petitioner's injury was a factor in Respondent's decision to terminate him, this hearsay testimony was not supported by other evidence. Rather, competent evidence was introduced which established that several employees who have been injured continued to be employed by Respondent in the Public Works Department.

   
   

7. Petitioner's work with Respondent was generally satisfactory. He received routine raises and his annual evaluation carried an overall satisfactory rating. He had some difficulty getting along with his supervisor and fellow employees, and the quantity of work he performed was no more than average even during periods when he was not injured.

   
   

8. Petitioner's supervisor, the Director of Public Works, presented him with his evaluation form in late June, 1983. He discussed the evaluation with Petitioner and asked him to sign

   it. Petitioner refused, which his supervisor believed to be unreasonable and insubordinate. The Director of Public Works then advised Petitioner that he was fired.

   
   

9. Respondent's Public Works Supervisory Committee held a meeting thereafter where the decision to terminate Petitioner was upheld. The committee consisted of the Mayor, a city council member and Petitioner's supervisor. Petitioner was present at the meeting and was permitted to state his views.

   
   

10. Petitioner unreasonably refused to sign his evaluation which was satisfactory even though it contained a few somewhat critical comments. The reason for requiring Petitioner's signature was explained to him as signifying merely that he had seen the evaluation and that all portions had been completed prior to his review.

    
    

11. The immediate basis for discharge was Petitioner's refusal to sign the evaluation form. However, the other factors noted above contributed to the termination decision of Petitioner's supervisor and the local review authority.

    
    

    CONCLUSIONS OF LAW

    
    

12. Section 760.10, F.S. provides in part:

    
    

    1. It is an unlawful employment practice, for an employer:

       
       

       1. To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.

          
          

13. Petitioner contends he was unlawfully discharged because of his handicap. However, he did not demonstrate that he is handicapped within the meaning of the above provisions. There was no evidence presented to establish that he had suffered any permanent disability from his back injury.

    
    

14. Petitioner's back injury was a factor in Respondent's decision to discharge him. However, even if Petitioner had established that he was physically handicapped so as to be

protected by the above provisions, Respondent may well have demonstrated that freedom from such handicap is a "bona fide" job requirement. See Section 760.10, F.S. which provides in part:

8) Notwithstanding any other provision of this section, it is not an unlawful employment practice . . . for an employee .

. . to:

(a) 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 fide occupational qualification reasonably necessary for the performance of the particular employment to which such action or inaction is related.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the Florida Commission on Human Relations enter a Final Order dismissing Petitioner's Complaint.

DONE and ENTERED this 6th day of September, 1985 in Tallahassee, Florida.

R. T. CARPENTER 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 September, 1985.

COPIES FURNISHED:

Paul D. Srygley, Esq.

1030 East Lafayette Street Suite 101

Tallahassee, Florida 32301

William J. Mongoven, Esq. Post Office Box 187 Chipley, Florida 32428

Donald A. Griffin, Executive Director

Florida Commission on Human Relations

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

Aurelio Durana, Esq. General Counsel

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

Docket for Case No: 85-000264

Orders for Case No: 85-000264