STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

E. D. WIGGINS, )

)

Petitioner, )

)

v. ) CASE NO. 87-0606

) GENERAL TELEPHONE COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on May 15, 1987, in St. Petersburg, Florida. The issue for determination in this proceeding is whether General Telephone Company committed an unlawful employment practice against the petitioner due to discrimination based upon his race.

APPEARANCES

For Petitioner: Kathryn M. Lancaster, Esquire

501 First Avenue North, Suite 626 St. Petersburg, Florida 33701

For Respondent: Leslie Reicin Stein, Esquire

Post Office Box 110, M.C. 7

Tampa, Florida 33601 INTRODUCTION

In March of 1982, petitioner Wiggins filed a complaint with the Florida Commission on Human Relations alleging that he was discriminated against on account of his race. Specifically, Mr. Wiggins claimed that he was denied light duty assignments from May to December of 1981 and that he was discharged on February 3, 1982. He further alleged that both he and a white employee had

work-related injuries, that the white employee was permitted to perform light duty assignments and that he was denied that opportunity, even though several light duty jobs were available.

After the Commission's determination of no reasonable cause to believe that an unlawful employment practice had occurred, Mr. Wiggins filed a Petition for Relief, and the case was transmitted to the Division of Administrative Hearings on February 18, 1987. By Notice of Hearing dated March 25, 1987, the final hearing was scheduled for May 15, 1987. On the morning of the hearing, petitioner, through counsel, moved for a continuance on the grounds that he first met with his counsel on May 12, 1987, and desired additional time to have certain witnesses subpoenaed for the hearing. After hearing oral argument from both parties regarding a continuance, the motion was denied.

Petitioner Wiggins testified in his own behalf, and his Exhibits 4 through

13 and 17 were received into evidence.

After resting his case, the respondent moved for a directed recommended order in its favor on the grounds that petitioner had failed to make a prima facie showing of racial discrimination or disparate treatment based upon his race. After hearing oral argument on the motion, and advising counsel that any order on the motion would be in the form of a recommendation, the undersigned granted the motion and the respondent elected not to present any testimony at the hearing. Respondent's Exhibit A was received into evidence.

No transcript of the final hearing has been provided to the undersigned. Consequently, this Recommended Order is based upon the exhibits received into evidence and the petitioner testimony as noted by the Hearing Officer during the hearing.

The proposed findings of fact submitted by the parties subsequent to the hearing are specifically addressed in the Appendix attached hereto.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. The petitioner was employed by the respondent $` percent General Telephone Company in October of 1971. From November of 1980 to February 3, 1982, he was classified as a cable splicer. This position requires strenuous physical duties including climbing telephone poles, lifting and moving heavy equipment, handling compressed gas cylinders that weigh 150 pounds and digging splice pits. Performance of the duties of a cable splicer requires strong hands, arms, back and leg muscles.

   
   

2. In November of 1980, petitioner suffered a back injury and was unable to perform the activities of a cable splicer. He was placed on Absent Injury status, thus receiving 80 percent of his salary, and returned to work on or about January 6, 1981. He then took left-over vacation time until January 19, 1981, and about one week later, a light duty assignment was located for him at the Seminole DART Center. Although this assignment required no driving, petitioner complained that the drive to and from the Seminole location aggravated his back condition and was difficult for him due to the medications he was taking for his physical problems.

   
   

3. On or about February 17, 1981, petitioner was reassigned to duty as a clerk at the St. Petersburg main building. Due to several absences, complaints by petitioner that he could not sit, stand or bend for long periods of time and that alternating from sitting to standing was painful, petitioner was relieved of all duties on March 30, 1981. He was informed that he would again be placed on Absent Injury status until such time as respondent could verify with the treating physician exactly what petitioner was capable of doing.

   
   

4. There is some indication that petitioner may have returned to work in a light duty position in May and June of 1981, though petitioner had no recollection of these dates. In any event, petitioner returned to Absent Injury status on or about June 23, 1981, and was paid Absent Injury benefits until approximately December 15, 1981. He was then advised that his Absent Injury benefits were exhausted, that he would be placed on vacation as of December 16, 1981, and that his benefits with respondent would expire as of December 31,

   1981. Petitioner was further advised that he could request a 30-day leave of absence, provide a doctor's statement regarding his present condition and that, during that 30-day leave of absence period he could request an additional 5 month leave of absence. Upon the advice of his Union representative, petitioner did request and was granted a 30-day leave of absence, which expired on January 31, 1982.

   
   

5. On January 19, 1982, a meeting was held with petitioner to discuss his medical condition. He was advised that there were no light duty positions available at that time and that his 30-day leave of absence would terminate at the end of January. Petitioner's supervisor suggested that he request further leave of absence without pay in order to protect his employment and continue his benefits. Petitioner became angry at this suggestion, refused to request additional leave without pay, and uttered some statement about a "personal tragedy." His supervisor felt that he had been threatened by Mr. Wiggins and notified the police.

   
   

6. Petitioner was terminated on February 3, 1982. The reasons cited for the termination were failure to apply for an additional leave of absence before his last 30-day leave had expired and insubordination at the January 19, 1982, meeting.

   
   

7. Petitioner presented no evidence that other light duty assignments were available in January of 1982. He made reference to two other light duty assignments held by other employees. He acknowledged that one such position held by a white employee required extensive driving, and admitted that he was unable to drive for long distances or long periods of time. The other light duty position that petitioner believed he could have filled was awarded to a black employee. Other than these two positions, petitioner was not aware of any light duty assignments which were available between May and December of 1981 and were not afforded to him. Petitioner also admits that he was unable to perform the duties of a cable splicer in 1981 and in January of 1982.

   
   

   CONCLUSIONS OF LAW

   
   

8. In this proceeding, petitioner complains that he was discharged and/or otherwise discriminated against by being denied light duty assignments because of his race, in violation of Section 760.10(1)(a), Florida Statutes. Having so alleged, it was his initial burden to establish a prima facie case of discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.ED. 2d 207 (1981).

   
   

9. Discrimination connotes disparate treatment, i.e., that the employee was treated differently than others because of his race. In order to establish a prima facie case of discrimination, it was incumbent upon the petitioner to demonstrate: (1) that he is black, (2) that he performed his assigned duties satisfactorily or was qualified for the position held, and (3) that despite his performance or qualifications he was terminated. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.ED. 2d 668 (1973).

   
   

10. While it is undisputed that petitioner is black, he failed to meet his initial burden with respect to the remaining elements required to be demonstrated to establish a prima facie case of discrimination. Instead, the evidence adduced at the hearing by the petitioner himself was that he could not satisfactorily perform the duties of a cable splicer during 1981 and January of 1982. No evidence was presented that the respondent had a duty to place petitioner in another position or was otherwise obligated to find work for the

petitioner when he became unable to perform his assigned duties. Even if such evidence had been adduced, there was absolutely no evidence produced by the petitioner that there were other positions available which he could satisfactorily perform. The only two positions of light duty assignment he made reference to in his testimony were filled by other employees. Petitioner admitted that he was physically unable to perform the duties of one such position occupied by a white employee, and it was established that the other position was occupied by a black employee. Petitioner has simply failed to prove that he was qualified for a position and was replaced by a person who was outside his protected class. Lee v. Russell County Board of Education, 684 F.2d 769 (11th Cir. 1982). Having failed to produce any evidence of disparate treatment or discrimination, petitioner did not meet his initial burden of establishing a prima facie case. Therefore, there was no reason to shift the burden to the respondent to articulate reasons for petitioner's discharge.

Accordingly, the respondent's motion for a summary recommended order was granted.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that petitioner's charge that the respondent committed an unlawful employment practice be DISMISSED.

DIANE D. TREMOR

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0606

The undersigned has carefully considered the proposed findings of fact and conclusions of law submitted by the petitioner and the respondent. The proposed findings of fact have been accepted and/or incorporated in this Recommended Order, except as noted below.

Petitioner:

The document filed by the petitioner entitled "Proposed Findings of Fact and Conclusions of Law" contains neither factual findings nor legal conclusions. Instead, petitioner complains of the procedural rulings at the final hearing.

The undersigned would only note that the final hearing occurred on a Friday and that the parties were advised that if the hearing were not completed on that day, it would be continued to a later date. It was only after the petitioner announced that he had no further witnesses that respondent moved for a directed recommended order and elected not to present any evidence after that motion was granted.

Respondent:

(NOTE: Any reference to the hearing transcript and Mr. Wiggins' deposition transcript are rejected inasmuch as neither transcript was filed with the Division of Administrative Hearings.)

23 and 24. Rejected as irrelevant and immaterial to the issues in dispute.

COPIES FURNISHED:

E. D. Wiggins

4843 Campenella Drive

Jacksonville, Florida 32209

Kathryn M. Lancaster, Esquire

501 First Avenue North Suite 626

St. Petersburg, Florida 33701

Leslie Reicin Stein, Esquires Post Office Box 110, M.C. 7

Tampa, Florida 33601

Donald A. Griffin, Executive Director Florida Commission on Human Relations

325 John Knox Road, Bldg. F, Suite 240 Tallahassee, Florida 32399-1925

Regina McGriff, Clerk

Florida Commission on Human Relations

325 John Knox Road, Bldg. F, Suite 240 Tallahassee, Florida 32399-1925

Docket for Case No: 87-000606

Orders for Case No: 87-000606