STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALLEN REYNOLDS, )

)

Petitioner, )

)

v. ) CASE NO. 89-0710

)

GURLEY REFINING COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter came on for formal hearing before P. Michael Ruff, duly designated Hearing Officer in Leesburg, Florida on July 13, 1989. The appearances were as follows:

APPEARANCES

For Petitioner: Allen Reynolds, pro se

2356 Oliver Avenue

Leesburg, FL 32748 For Respondent: No Appearance

STATEMENT OF THE ISSUES

The issue to be resolved in this proceeding concerns whether the Petitioner has been the victim of employment discrimination by reason of his being terminated, allegedly on account of his physical disability.

PRELIMINARY STATEMENT

This cause arose upon the filing of a Petition for Relief from an alleged unlawful employment practice by the above-named Petitioner, Allen Reynolds. In essence, it is alleged that petition alleges that Mr. Reynolds was terminated from his employment as a truck driver with the Respondent, Gurley Refining Company, on February 11, 1988. The termination was allegedly due to the Petitioner's physical or medical disability, to wit, a heart condition, first manifesting itself approximately one month before his termination by an acute myocardial infarction.

In due course, after the filing of the petition, the Human Relations Commission investigated and evaluated the claim, entering a determination of "no probable cause". After this finding was made, and in order to afford the Petitioner a right to a formal proceeding pursuant to Section 120.57(1), Florida Statutes, and in accordance with the mandate of Rule 22T-9.08, Florida Administrative Code, the petition was duly transmitted to the Division of Administrative Hearings and the undersigned Hearing Officer.

The cause came on for hearing as noticed. The Petitioner appeared at the hearing prepared to prosecute his claim, but the Respondent failed to appear. Because the Petitioner is the moving party herein, and has the burden of proof, the hearing went forward for the presentation of the Petitioner's case. The Petitioner's case consisted of the Petitioner's testimony on his own behalf. No exhibits were presented or admitted into evidence. The Commission on Human Relations, being the agency charged with preserving the record herein, inadvertently failed to have a Court Reporter present at the appointed hour of the hearing. Accordingly, the Hearing Officer contacted the General Counsel of the Commission who arranged for a Court Reporter's attendance after a lengthy delay. The Court Reporter failed to appear at the hearing, however. The Hearing Officer and the Petitioner waited approximately one hour and 15 minutes after the time the Court Reporter was scheduled to arrive at the hearing site.

After the Court Reporter still failed to appear, and in order to avoid extending the already lengthy delay in conducting the proceeding, the Hearing Officer and the Petitioner proceeded to conduct the hearing in the absence of the Court Reporter. In light of that circumstance, the Hearing Officer recorded the Petitioner's testimony, which was the sole evidence adduced at the hearing, on a portable dictation recorder. That tape will be preserved as the record of the proceeding as long as is necessary, or alternatively, may be transcribed at the behest of the agency or parties. After the taking of Petitioner's testimony, no evidence remained to be adduced and the hearing was adjourned.

FINDINGS OF FACT

1. The Petitioner is an "employee" as defined in Chapter 760, Florida Statutes, and the Respondent meets the statutory definition of "employer" appearing in that Chapter. The Petitioner is a truck driver by occupation and was employed by the Respondent, Gurley Refining Company, in that capacity from February, 1982 until February 11, 1988, with the exception of a very brief period of time when he performed some other duties for that firm. This cause arose under the auspices of the Florida Human Relations Commission, an agency of the State of Florida constituted in Chapter 760, Florida Statutes. It is charged by that Chapter with oversight of working conditions and circumstances between employers and employees in Florida to the extent that the agency, under the mandate of Chapter 760, provides a procedure whereby employee claims of employment discrimination on account of race, age, sex, religion, national origin or disability can be adjudicated in a due process hearing environment, including hearings before the Division of Administrative Hearings in the event such claims culminate in formal disputes.

   
   

2. During the course of the Petitioner's employment with Gurley Refining Company, in addition to being employed as a truck driver (the vast majority of his duties with that company), the Petitioner also had significant experience as a warehouse employee, handling the company's inventory and freight. The Petitioner had an unblemished record as a truck driver for the Respondent company. He had no disciplinary altercations with his supervisors and his attendance record was characterized by very few absences, sick leave and little tardiness.

   
   

3. In approximately early January of 1988, the Petitioner suffered an acute myocardial infarction (heart attack), which necessitated his absence from work for a period of approximately thirty days. His treating physician, a cardiologist, Dr. Story, of Orlando, released him approximately a month after his heart attack, but admonished him to engage in light duties, and restricting him against lifting weight in excess of seventy pounds.

4. During the course of his illness, the operations manager of the Respondent's Lake County facility and Petitioner's supervisor, Mr. Kenny Hart, had assured the Petitioner that his job would be waiting for him as soon as he recovered from his illness. In fact, however, in early February, when the Petitioner was released by his doctor to return to his job, with the restrictions mentioned above, the Petitioner requested his former job back and was refused. Mr. Hart indicated to the Petitioner that he would not hire him back, and in fact terminated him due to his medical condition, as Mr. Hart explained it. The Petitioner's doctor had not restricted him from doing his same job or from working an eight hour day, but merely had restricted him against lifting more than seventy pounds at any one time. When Mr. Hart refused to put him back to work in his old job, the Petitioner requested to be assigned to duties in the company's warehouse or bottling plant. The company had an operation involving bottling of windshield washer detergent fluid. The Petitioner had had substantial experience in those operations, especially as a checker of merchandise and as a forklift operator in the company warehouse. His physical disability would not preclude him from performing those functions. Mr. Hart, and his superior, Mr. Helton of the company's office in Memphis, Tennessee, declined to place the Petitioner in such an employment position with the company.

   
   

5. There have been a number of instances in which the company accommodated employees by placing them at work at various positions in the company operations during the period of time they were on medical restrictions by their doctors due to some disability or illness. The Petitioner described one case in particular involving an employee who had surgery for amputation of his leg and who was allowed to come back to work performing various minor jobs during his convalescence in order to allow him some gainful employment, later being restored to more meaningful permanent duties. The Petitioner was not thus accommodated, however. The Petitioner could have performed any of the types of duties mentioned above, involving the warehouse or the bottling plant or driving a truck once again, because all were within the scope of his years of experience with the company and his physical abilities, even as restricted by his doctor.

   
   

6. The Petitioner was making $7.80 an hour when he was terminated and during the year after his termination from February 11, 1988 to approximately February 1, 1989, the Petitioner was not able to get regular employment. For a time after termination, he was receiving unemployment compensation and thereafter worked at casual labor jobs involving loading and unloading trucks for a trucking company. He also worked at laying sewer lines, doing manual labor. During the year after his termination, the Petitioner and his wife earned approximately $18,000. Four thousand dollars of that sum was from the wife's part-time employment. The Petitioner had grossed approximately $30,000 in the past full year he worked for the Respondent company, that is, 1987. In February, 1989, the Petitioner again obtained full-time employment in a truck driving position with another firm. He is again making approximately $30,000 gross salary per year. At the time Petitioner was off work from his job with the Respondent due to his heart condition, and at the time of his termination, no mention was made or information given him about any right to medical disability to leave. The Petitioner apparently missed approximately thirty days of work, and then was terminated under the above conditions and circumstances.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding pursuant to Section 120.57(1), Florida Statutes.

8. The uncontradicted testimony of record, and the above findings of fact, reveal that the Petitioner is a "person" within the meaning of Section 760.02(5), Florida Statutes and is an "individual" within the meaning of Section 760.10(1), Florida Statutes. The Respondent is an employer within the meaning of Section 760.02(6), Florida Statutes.

   
   

9. Section 760.02(3) provides that a "discriminatory practice" is any practice made unlawful by Section 760.01-760.10. Section 760.10(1) provides:

   
   

   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.

         
         

10. The above findings of fact, based upon the unrefuted testimony of the Petitioner, reveal that indeed the Petitioner was discharged on account of his handicap, that is, the disability occasioned by his heart condition, and treatment therefor, the related absence from work and physical restrictions placed on him by his doctor. The testimony of the Petitioner reveals that his employment record had been exemplary and there were no other facts or circumstances established by competent, credible evidence of record to indicate any reason for his discharge, other than that it was due to the handicap caused by his heart condition.

    
    

11. The Petitioner has the burden to establish a prima facie case of such discriminatory employment practice by a preponderance of the evidence. The Petitioner here has accomplished that. It then becomes the employer's burden to go forward with evidence to show valid business reasons for such practice, or termination, upon which showing the burden to go forward with additional evidence to show that the reason is a pretextual, rather than a legitimate one shifts to the employee Texas Department of Community Affairs v. Burdine, 450 US

248 (1981). Here, however, the employer, after receiving duly served notice, failed to appear. Thus, there is no evidence to refute the prima facie showing established by the Petitioner that a discriminatory practice has occurred in this instance, by virtue of the Petitioner's termination on account of the handicap related to his heart condition. Consequently, the unlawful employment practice at issue having been established, the Petitioner is entitled to the lost wages and other benefits represented by the time he was out of work, from his termination date until he became employed as a truck driver once again for a similar salary.

RECOMMENDATION

Having considered the foregoing findings of fact, conclusions of law, the evidence of record, and the candor and the demeanor of the witnesses, it is therefore,

RECOMMENDED that a Final Order be entered by the Human Relations Commission finding that an unlawful employment practice occurred by Respondent's discrimination against the Petitioner on account of his handicap, and that he be accorded all relief allowed under the above-cited authority, including back pay of $16,000 and related benefits in accordance with the requirements of Section 760.10(13), Florida Statutes.

DONE and ENTERED this 16th of October, 1989, at Tallahassee, Florida.

P MICHAEL RUFF

Hearing Officer

Division of Administrative Hearings, The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1989.

COPIES FURNISHED:

Mr. Allen Reynolds 2356 Oliver Avenue

Leesburg, FL 32748

Mr. R. D. Helton Director of Operations Gurley Refining Company Post Office Box 626 Memphis, Tennessee 38101

Dana Baird, General Counsel Florida Commission on Human

Relations

Suite 240, Building F

325 John Knox Road Tallahassee, FL 32399-1570

Donald A. Griffin Executive Director

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925

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AGENCY FINAL ORDER

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STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

ALLEN REYNOLDS, EEOC Case No. n/a

Petitioner, FCHR Case No. 88-3930

v. DOAH Case No. 89-0710

GURLEY REFINING COMPANY, FCHR Order No. 90-007

Respondent.

/

FINAL ORDER FINDING AN UNLAWFUL EMPLOYMENT PRACTICE AND AWARDING

AFFIRMATIVE RELIEF

Preliminary Matters

Petitioner Allen Reynolds filed a complaint of discrimination with the Commission pursuant to the Human Rights Act of 1977, as amended. Sections 760.01-760.10, Fla. Stat. (1987). Petitioner alleged Respondent Gurley Refining Company unlawfully discriminated against him on the basis of handicap (heart condition)

The allegations of discrimination set forth in the complaint were investigated. On January 25, 1989, the Executive Director found no reasonable cause to believe an unlawful employment practice occurred.

On February 7, 1989, Petitioner filed a Petition for Relief from an Unlawful Employment Practice, requesting that a formal proceeding be conducted on the claim. The petition was referred to the Division of Administrative Hearings (DOAH). Fla. Admin. Code Rule 22T-8.016(1). On October 16, 1989, DOAH Hearing Officer P. Michael Ruff, entered a Recommended Order finding that an unlawful employment occurred and awarding Petitioner affirmative relief, including back pay of $16,000 and attendant fringe benefits.

Public deliberations were held on December 15, 1989, in Tallahassee, Florida, before this panel of commissioners.

Findings of Fact

Upon consideration of the hearing officer's Findings of Fact, it is concluded that each finding is supported by competent, substantial evidence.

The findings are, therefore, adopted. Section 120.57(1)(b)10, Florida Statutes; Fla. Admin. Code Rule 22T-8.025.

Conclusions of Law

We agree with the hearing officer's analysis of the legal issues and conclusions based upon the factual findings. Accordingly, we adopt the hearing officer's conclusions.

In addition, the $16,000.00 back pay shall accrue interest at the rate of

12 per cent per annum as is authorized in Section 687.01, Florida Statutes. Interest shall be calculated beginning with date of issuance of this final order.

Affirmative Relief

It is ORDERED that the relief to which Petitioner is entitled amounts to

$16,000.00 in back pay with interest payable thereon at the rate of 12 per cent per annum, beginning with the date of issuance of this final order.

Respondent has the right to seek judicial review of this Order. The Commission and the appropriate district court of appeal must receive a notice of appeal within 30 days of the date of this Order is filed with the clerk of the Commission. Explanation of the right to appeal is found in Section 120.68, Florida Statutes, and in Florida Rules of Appellate Procedure 9.110.

DONE AND ORDERED this 17th day of January 1990. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

BY:

Commissioner John W. Robertson, Panel Chairperson;

Commissioner Marc Curtis Little; and Commission Whitfield Jenkins.

FILED this 18th day of January 1990 in Tallahassee, Florida.

Margaret A. Jones

Clerk of the Commission

Copies Furnished:

Allen Reynolds, pro se

R. E. Helton, Representative for Respondent

P. Michael Ruff, DOAH Hearing Officer

Harden King, Legal Advisor for Commission Panel

Docket for Case No: 89-000710

Orders for Case No: 89-000710