STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JUDE L. STEWART, )

)

Petitioner, )

)

vs. ) CASE NO. 87-2390

) WACKENHUT CORPORATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held on January 26, 1988, in Lecanto, Florida, before Jose A. Diez-Arguelles, a hearing officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jude L. Stewart, pro se

Post Office Box 2695

Crystal River, Florida 32629

For Respondent: Duncan Dowling, III, Esquire

Jeffrey M. Fleming, Esquire ROGERS, DOWLING & BOS

Post Office Box 3427 Orlando, Florida 32802

BACKGROUND

On May 1, 1985, Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations (Commission). The Commission conducted an investigation and entered a Notice of Determination on April 21, 1987, finding that no reasonable cause existed to believe that an unlawful employment practice had occurred. On May 19, 1987, Petitioner filed a Petition for Relief with the Commission alleging that there were disputed issues of material facts. By Transmittal of Petition filed May 28, 1987, the Commission requested that the Division of Administrative Hearings assign a hearing officer to conduct further proceedings and submit a recommended order to the Commission.

At the hearing, Petitioner was not represented by counsel and she was informed of her right to cross examine Respondent's witnesses, to present testimony and to make any statements she wished to make. Petitioner testified on her own behalf and offered three exhibits which were accepted into evidence. Respondent presented the testimony of Charles R. Humphries and Philip S. Bassa and offered nine exhibits which were accepted into evidence.

The Respondent filed Proposed Findings of Facts and Conclusions of Law.

The proposed findings of fact are addressed in the attached Appendix. Petitioner did not file a posthearing statement.

ISSUE

Whether Petitioner was treated in a discriminatory manner?

FINDINGS OF FACT

1. At all times relevant, Respondent, the Wackenhut Corporation, was under contract with Florida Power Corporation to provide around-the-clock security at the Crystal River nuclear power plant.

   
   

2. Sometime in January, 1985, Petitioner, Jude L. Stewart, became aware that Respondent needed to train and employ persons to work as nuclear armed security guards.

   
   

3. On January 10, 1988, Petitioner filled out an application for employment which indicated that she was applying for the positions of guard, elevator operator and firewatch. The position of "firewatch" involves walking around and checking fire doors and identifying potential fire hazards.

   
   

4. Petitioner participated in a training class with fourteen other applicants. Of the fifteen applicants in the class, three were females, including Petitioner.

   
   

5. All applicants were told that only four full-time security guard positions would be available at the end of the training class and that the four positions would be given to the four applicants who received the highest grades during training. Applicants were graded on academic and practical tests, including a physical fitness test.

   
   

6. The remaining applicants who successfully completed the training would be employed "part-time," or on an as needed basis, as guards, firewatch persons and elevator operators. The use of the work "part-time" is misleading, since these employees in some cases worked more than forty hours a week. The employees would be utilized in the areas needed, depending on the level of activity going on at the plant and the absenteeism of the full-time employees.

   
   

7. Early on in the application and training process, Respondent's agents became concerned with Petitioner's weight and physical appearance. At the time of her application Petitioner was 5'6" tall and weighed 265 pounds. Petitioner was found to be physically capable to perform the duties of guard by Respondent's physician. Prior to starting her training, Petitioner was working on a weight-loss program with a doctor. Petitioner and her doctor had set a weight goal of 185 pounds to be reached in six months. Respondent's agents were made aware of this by Petitioner and they told Petitioner that she would be allowed to complete the guard training, but that she would not be employed as a guard until she reached the 185 pound goal.

   
   

8. Petitioner's first attempt to complete the physical fitness test ended in failure. The physical fitness test consisted of three parts which had to be completed within certain time periods. One part consisted of walking up an incline for approximately one-quarter mile. Another part consisted of climbing

   20 feet on a 40-foot ladder on the side of a tank. The ladder had a cage-like surrounding beginning at 7 feet and ending at the 20-foot mark. The third part of the test consisted of climbing up four flights of stairs. The fourth flight was at a height equivalent to that of three or four floors on an average building. In her first attempt at the physical fitness test, Petitioner was

   unable to complete the ladder portion of the test during the time allowed, and the test was ended at that time. Petitioner attributed her inability to climb the ladder to a fear of heights.

   
   

9. Petitioner was given the opportunity to take the physical fitness test again with a different instructor. Petitioner first completed the one-quarter mile walk. At the end of the walk Petitioner was breathing very heavily, her face was flushed and she was physically shaking. The instructor was concerned for her health and asked if she was capable of going on. Petitioner responded she was and they proceeded to the stairwell. Petitioner climbed three flights of stairs with some difficulty. Going up the final flight of stairs, she took three steps and stopped. Petitioner's breathing was extremely rapid and she stated something to the effect that she could not go on. With encouragement from the instructor and a passerby, Petitioner managed to climb the remaining steps by using the hand rail to pull herself up. After reaching the top, Petitioner able to go down the stairs and complete the test within the allotted time. Petitioner completed the ladder test within the allotted time, although with some difficulty, and came very close to exceeding the time limit.

   
   

10. When training was completed, Petitioner's academic standing was seventh out of fifteen and her overall standing, including academic, practical and physical fitness, was ninth out of fifteen. Petitioner was graded in the lower third of her class on physical agility.

    
    

11. The top four applicants were offered full-time guard positions. Two of the four declined the offer and the positions were filled with the next two highest graded applicants. Petitioner was offered a full-time position as an elevator operator and was told that she would be allowed to work as a guard once she met her weight goal. The rest of the applicants were offered part-time positions rotating as guards, elevator operators and firewatch.

    
    

12. After one day on the job as an elevator operator Petitioner resigned.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57, Florida Statutes.

    
    

14. Section 760.10, Florida Statutes, makes it an unlawful employment practice for an employer to discriminate against a person with respect to compensation, terms, conditions or privileges of employment, or to limit, segregate, or classify employees or applicants for employment because of such individual's sex or handicap.

    
    

15. In determining whether discrimination has occurred, Florida courts have looked for guidance to federal cases under Title VII of the Civil Rights Act of 1964, 46 U.S.C. Section 2000e, et. seq. See School Board of Leon County

    v. Hargis, 400 So.2d 103 (Fla. 1st DCA 1987).

    
    

16. In a discrimination case such as this, Petitioner has the initial burden of establishing a prima facia case of discrimination. If Petitioner succeeds in establishing the prima facia case, the burden shifts to the Respondent to articulate some legitimate reason for the disparate treatment. Should Respondent carry this burden, the Petitioner must then have an opportunity to prove, by a preponderance of the evidence, that the legitimate

    reasons offered by the Respondent were not his true reasons, but were a pretext for discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

    
    

17. In order to establish a prima facia case, Petitioner must show: (1) that she is in a classification covered by Section 760.10; (2) that she performed her assigned duties satisfactorily; (3) that despite her satisfactory performance she was treated in a discriminatory manner. Cf. McDonnell Douglas Corp. v. Green, 441 U.S. 792, 93 S.Ct. 1817, 33 L.Ed.2d 668 (1973).

    
    

18. In this case, Petitioner alleges that she was discriminated against because she was not employed as a security guard. Her complaint is not that she should have been one of the persons offered a full-time guard position. She argues that she should have been given an opportunity to serve as a "part-time" guard, elevator operator, or firewatch person, instead of being placed in a full-time elevator position. In effect, what Petitioner wanted was the opportunity to be a security guard.

    
    

19. Petitioner argues that she was discriminated against because of her sex and because of a handicap (obesity). She has failed to make a prima facia case on both charges. As to the charge of sex discrimination, the evidence is clear that there were other females in the training class who were given the opportunity to be guards. Petitioner also argues that a male security guard employed by Respondent is overweight. There is no competent evidence in the record to determine if this individual is in fact overweight nor is there any evidence to indicate how the alleged excess weight affected the male guard's performance. As to the charge of handicap discrimination based on obesity, there is no evidence in the record that Petitioner's weight is a physiological condition. Therefore, Petitioner does not have a permanent disability and is not handicapped. Franklin v. Hillsborough County Fire Control and Emergency Operations, FCHR Case No. 82-2094. FCHR Order No. 83-010 (1983).

    
    

20. Assuming that Petitioner had established a prima facie case of discrimination, Respondent has articulated a legitimate, nondiscriminatory reason for placing Petitioner in the elevator operator position until she achieved her weight goal. Even though Petitioner eventually passed the necessary physical fitness test, she did so with extreme difficulty and only after being given the opportunity to retake the test. Respondent had real concerns about whether Petitioner could function effectively as a security guard due to her weight, and Petitioner was informed of this concern early on in the training process.

    
    

21. Also, Respondent did not foreclose the possibility that Petitioner could in the future perform the duties of a security guard. When Respondent's agents expressed concern over her weight, Petitioner informed them that she was in a weight loss program and that she had a weight goal she and her doctor expected she could reach within six months. Based on this, Respondent gave Petitioner every opportunity to complete training and decided to employ her as an elevator operator until she reached her goal, at which time she could have been placed in a security guard position. Petitioner, however, refused to take advantage of this opportunity and resigned after one day on the job.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued dismissing the Petition for Relief

filed by Petitioner.

DONE and ENTERED this 6th day of April, 1988, in Tallahassee, Florida.

JOSE A. DIEZ-ARGUELLES

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 6th day of April, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2390

The Respondent submitted proposed findings of fact which are addressed below.

Respondent's

Paragraph Number Ruling and RO Paragraph

1. First eight words accepted. RO 2 Rest of sentence is irrelevant.

2. Accepted. RO 3

3. Accepted. RO 5

4. Accepted. RO 7

5. True but irrelevant.

6. Accepted. RO 5

7. Accepted. RO 8

8. True but irrelevant.

9. True but irrelevant.

10. Accepted. RO 10

11. Rejected. Petitioner successfully completed the physical fitness test on her second attempt, albeit with some difficulty.

12. Accepted. RO 10

13. First nine words true but irrelevant.

    Rest of sentence rejected. While this may be true there is no competent evidence of what type of appearance acts as a deterrent.

14. Rejected. While this may be true from Respondent's viewpoint, it is not a fact based on competent evidence.

COPIES FURNISHED:

Jude Lea Stewart Post Office Box 2695

Crystal River, Florida 32629

Duncan Dowling, III, Esquire Jeffrey M. Fleming, Esquire ROGERS, DOWLING & BOS

Post Office Box 3427 Orlando, Florida 32802

Donald A. Griffin Executive Director

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1925

Dana Baird, Esquire General Counsel

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1925

Sherry B. Rice, Clerk Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1925

Docket for Case No: 87-002390

Orders for Case No: 87-002390