Judges: LARRY J. SARTIN
Agency: Commissions
Latest Update: Sep. 07, 1988
Summary: Whether the Respondent discriminated against Ruby D. Johnson on the basis of a handicap in violation of the Human Rights Act of 1977, as amended?Petitioner failed to prove respondent discriminated against her due to a handicap-head injury.
88-0110.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
RUBY D. JOHNSON, )
)
Petitioner, )
)
vs. ) CASE NO. 88-0110
) ITT THOMPSON INDUSTRIES, ) METAL DIVISION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on May 24, 1988, in Lake City, Florida.
APPEARANCES
For Petitioner: Ruby D. Johnson, pro se
1802 North Georgia Street Lake City, Florida 32055
For Respondent: William B. Hatfield
Supervisor of Human Relations
ITT Thompson Industries - Metal Division Post Office Box 928
Valdosta, Georgia 31603-0928 INTRODUCTION
The Petitioner, Ruby D. Johnson, filed a Petition for Relief from an Unlawful Employment Practice with the Florida Commission on Human Relations (hereinafter referred to as the "Commission") on approximately October 28, 1986. The Petition was filed against the Respondent, ITT Thompson Industries - Metal Division. The Commission issued a Notice of Determination: No Cause on November 13, 1987. On January 4, 1988, the Commission forwarded the Petition to the Division of Administrative Hearings.
At the formal hearing Ms. Johnson testified on her own behalf and presented the testimony of Albert Lonnie Johnson. Ms. Johnson also offered two exhibits which were accepted into evidence.
The Respondent presented the testimony of William B. Hatfield and Kate Johnson. The Respondent offered two exhibits which were accepted into evidence.
The parties were given an opportunity to file proposed recommended orders containing proposed findings of fact. Neither of the parties filed a proposed recommended order.
ISSUE
Whether the Respondent discriminated against Ruby D. Johnson on the basis of a handicap in violation of the Human Rights Act of 1977, as amended?
FINDINGS OF FACT
The Petitioner began employment with the Respondent at its Lake City, Florida, plant during 1977 or 1978.
The Respondent manufactures metal parts for automobiles. The Petitioner was employed by the Respondent as a parts assembly worker.
At the time the Petitioner began employment with the Respondent, she informed the Respondent that she did not have any handicap.
On June 28, 1984, the Petitioner was accidently struck on the head with a broom by another employee while at work. She was struck with the straw end of the broom.
The Petitioner did not return to her job for approximately two months after being struck on the head.
The Petitioner was treated by George G. Feussner, M.D.
When Dr. Feussner authorized the Petitioner's return to work, he recommended that she not be required to perform any work requiring standing or leaning, climbing or operation of dangerous equipment for approximately three to four weeks.
In September, 1985, the Petitioner experienced dizziness and fell while at work.
In a letter dated October 2, 1985, Dr. Feussner informed the Respondent of the following:
Despite and [sic] extensive evaluation of this lady, I cannot find objective findings to go along with her symptoms. I believe that she should be able to return to work at her regular job, but I still think that it would be dangerous considering her emotional dedication to her symptoms she is likely to injure herself if she works around dangerous equipment or at heights. She should therefore find a job that does not involve these activities...
The Petitioner, when she tried to return to work, was not allowed to work because she had filed a workmen's compensation claim as a result of her alleged condition. This claim was being disputed by the Respondent's workmen compensation insurance carrier.
On October 31, 1985, the Respondent laid off several employees with seniority equal to or greater than the Petitioner's seniority. Employees were
laid off because of a lack of work. The Petitioner would have been laid off also, but was not because of the disputed claim over workmen's compensation.
In November, 1985, the Petitioner's workmen compensation claim was denied. At that time the Petitioner was informed that she was also being laid off.
In October, 1986, the Respondent began recalling the employees it had laid off in November, 1985. The Petitioner was not recalled, however, because of the restrictions on the Petitioner's ability to work.
The Petitioner filed a Petition for Relief from an Unlawful Employment Practice with the Commission in October, 1986. On November 13, 1987, the Commission issued a Notice of Determination: No Cause.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987).
Section 760.10(1)(a), Florida Statutes (1987), provides the following:
It is an unlawful employment practice for an employer:
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. [Emphasis added].
The Petitioner has alleged that the Respondent has refused to allow her to return to her employment with the Respondent apparently because of the injury she received when hit on the head with a broom. In order for this action to constitute an unlawful employment practice for which the Petitioner is entitled to relief under Chapter 760, Florida Statutes, the Petitioner must have proved that the Respondent's action was taken because of a "handicap." A "handicap" is defined by Section 760.22(5), Florida Statutes (1987), in pertinent part, as follows:
(a) A person has a physical impairment which substantially limits one or more major life activities, or he has a record of having, or is regarded as having, such physical impairment; or
* * *
The burden of proving that the Petitioner was not allowed to return to her employment because of a "handicap", as that term is defined in Section 760.22(5)(a), Florida Statutes (1987), was on the Petitioner. See Department of Transportation v. J.W.C. Company, Inc.; and Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). Based upon the weight of the evidence presented in this case, the Petitioner has failed to meet
her burden of proving that she has a "handicap" or that the Respondent failed to allow her return to her job with the Respondent because of a "handicap."
The Petitioner has failed to prove that the Respondent has committed any unlawful employment practice with regard to the Petitioner's termination of employment.
RECOMMENDATION
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Human Relations enter a final order
denying the Petitioner's Petition for Relief.
DONE and ENTERED this 7th day of September, 1988, in Tallahassee, Florida.
LARRY J. SARTIN
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 7th day of September, 1988.
COPIES FURNISHED:
Ruby D. Johnson
1802 North Georgia Street Lake City, Florida 32055
William B. Hatfield Supervisor of Human Relations
ITT Thompson Industries - Metal Division Post Office Box 928
Valdosta, Georgia 31603-0928
Donald A. Griffin Executive Director
Commission On Human Relations, Florida
325 John Knox Road Building F, Suite 240
Tallahassee, Florida 32399-1925
Dana Baird General Counsel
Commission On Human Relations, Florida
325 John Knox Road Building F, Suite 240
Tallahassee, Florida 32399-1025
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS
RUDY D. JOHNSON,
Petitioner,
EEOC CASE NO. n/a
FCHR CASE NO. 87-0285
DOAH CASE NO. 88-0110
ITT THOMPSON INDUSTRIES FCHR ORDER NO. 89-001 METAL DIVISION,
Respondent.
/
ORDER DISMISSING PETITION FOR RELIEF FROM AN UNLAWFUL
EMPLOYMENT PRACTICE
Panel of Commissioners
The following three Commissioners participated in the disposition of this matter:
Commissioner Robert L. Billingslea, Panel Chairperson;
Commissioner Robert R. Joyce; and Commissioner Learna Ramsey
Appearances
For Respondent ITT Thompson Industries - Metal Division:
Mr. John M. Morford Director of Personnel and
Industrial Relations 2206 East Hill Avenue Valdosta, Georgia 31603
No appearance was entered at the Commission deliberation by or on behalf of Petitioner.
Preliminary Matters
Ruby D. Johnson, Petitioner herein, filed a complaint of discrimination with this Commission pursuant to the Human Rights Act of 1977, as amended, Sections 760.01-760.10, Florida Statutes (1987), 1/ alleging that ITT Thompson Industries - Metal Division, Respondent herein, unlawfully discriminated against Petitioner on the basis of her handicap (vertigo).
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 November 13, 1987, the Executive Director issued his Determination finding no reasonable cause to believe that an unlawful employment practice occurred.
On January 4, 1988, the 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-8.016(1). The formal proceeding was scheduled to be held on May 24, 1988, in Lake City, Florida, before Larry J. Sartin, DOAH Hearing Officer. The Hearing Officer entered a Recommended Order in this matter on September 7, 1988.
Pursuant to notice, public deliberations were held on January 19, 1989, in Tallahassee, Florida, before the aforementioned Panel of Commissioners, at which deliberations the panel determined the action to be taken upon the petition.
Exceptions to the Recommended Order
On October 4, 1888, Petitioner filed a letter stating, in substance, that she did not feel that she had been treated fairly regarding the ruling. The Commission accepted the letter as being Petitioner's exceptions to the Recommended Order and sent a copy to Respondent far their review. Respondent replied that after reviewing the entire case, it did not feel change in action was warranted and maintained that Petitioner had not been discriminated against.
After consideration, the Panel finds that the Hearing Officer's findings are supported by competent substantial evidence in the record. As such, Petitioner's exceptions are rejected for failing to raise any factual or legal arguments which would warrant modification of the Recommended Order.
Findings of Fact
Having considered the Hearing Officer's findings of fact, and being particularly mindful of the record in the cause, 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.
Conclusions of Law
The Panel finds that the Hearing Officer's conclusions of law, based upon his findings of fact, are a correct application of law except that the definition of handicap is erroneously stated. The Hearing Officer relied upon the definition contained in the Fair Housing Act, Section 760.22(5), Florida Statutes, rather than the broader definition of handicap applicable to the Human Rights Act of 1977. In interpreting the term handicap under the Human Rights Act, the Commission has consistently chosen to give the term a meaning in accordance with common usage:
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.'
See Thomas v. Floridin Company, 8 FALR 5457 (FCNR September 15, 1986), and cases cited therein.
The Hearing Officer's construction of the term handicap under the Human Rights Act of 1977 is rejected. The Panel, however, concurs with the Hearing Officer's remaining conclusions. Even under the Commission's broader construction, Petitioner has failed to show that she is a handicapped person within the meaning of the Act.
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 complaint of discrimination are hereby DISMISSED with prejudice.
Petitioner is advised of her 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 120.60, Fla. Stat.; Fla. R. App. P. 9.110(b).
It is so ORDERED.
Dated this 6th day of February, 1989.
FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:
BY:
Commissioner Robert L. Billingslea, Panel Chairperson;
Commissioner Robert R. Joyce; and Commissioner Learna G. Ramsey
FILED this 10th day of February, 1989, in Tallahassee, Florida.
Margaret Agerton
Clerk of the Commission
ENDNOTE
1/ Unless otherwise indicated, all statutory references are to Florida Statutes (1967), and all rule references are to Florida Administrative Code.
COPIES FURNISHED:
Ruby D. Johnson, Petitioner
John M. Morford, Representative for Respondent Danica Parker, Legal Advisor for Commission Panel Larry J. Sartin, DOAH Hearing Officer
Docket for Case No: 88-000110
Orders for Case No: 88-000110
| Issue Date |
Document |
Summary |
|
Feb. 06, 1989 |
Agency Final Order
|
|
|
Sep. 07, 1988 |
Recommended Order
|
Petitioner failed to prove respondent discriminated against her due to a handicap-head injury.
|
