STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

BARRY DELONG, )

)

Petitioner, )

)

vs. ) CASE NO. 91-0867

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above styled case on May 2, 1991, at Tampa, Florida.

APPEARANCES

For Petitioner: John R. Council, Esquire

306 South Fifth Street Dade City, Florida 33525

For Respondent: Charles G. Gardner, Esquire

Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32399-0458 STATEMENT OF THE ISSUES

Whether Respondent was discriminated against in employment by reason of a physical handicap.

PRELIMINARY STATEMENT

By Petition for Relief served January 4, 1991, Barry DeLong, Petitioner, alleges he was released from his employment with the Florida Department of Transportation based on false premises, viz. he was perceived as having a handicap when, in fact, he does not have a physical handicap. At the hearing the Petitioner testified in his own behalf, Respondent called two witnesses and six exhibits were admitted into evidence. Proposed findings have been submitted by the Respondent. Proposed findings were not timely submitted by the Petitioner. Treatment accorded these proposed findings is contained in the Appendix attached hereto and made a part hereof.

FINDINGS OF FACT

1. Petitioner was employed by the Department of Transportation as a Highway Maintenance Technician Supervisor working out of Brooksville, Florida. He had been so employed by the Department of Transportation for some 5-7 years.

2. As Maintenance Supervisor, Petitioner's job description required him to be a working supervisor, working along with his crew maintaining the roads, bridges, and rights-of-way on the state highway system. This involved heavy lifting, pulling and pushing.

   
   

3. In January, 1989, Petitioner injured his back chopping firewood at his home and remained off duty until he was terminated on May 4, 1989.

   
   

4. Petitioner was under the care of Dr. McBath, D. O. for this injury. Dr. McBath referred the Petitioner to Dr. Sutterlin, M. D., an orthopedic surgeon, who, following an examination on March 24, 1989, pronounced Petitioner capable of returning to unrestricted activity.

   
   

5. Petitioner still contended that his back was bothering him and that he could not do the pushing, pulling and heavy lifting required of his job and requested assignment to a job where heavy lifting work was not required.

   
   

6. At this time there were no vacancies in the Department of Transportation for the type of work sought by Petitioner.

   
   

7. The report from Dr. Sutterlin was not presented to D.O.T. by Petitioner although Petitioner had a copy of that report at his predetermination hearing on May 4, 1989. At this predetermination hearing Petitioner contended that he was able to return to work but did not present medical evidence to this effect.

   
   

8. Although the doctors pronounced Petitioner capable of returning to unrestricted activity they could not guarantee he would not have further back problems after returning to unrestricted activity.

   
   

9. Petitioner contends that he was fit for duty and wanted to go back to work but his supervisor would not let him because they felt he was a high-risk due to his back problems.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding.

    
    

11. Section 760.10, Florida Statutes, provides it is an unlawful employment practice to discharge any individual because of such individual's handicap. This is the discrimination alleged in these proceedings.

    
    

12. In order to prevail in a discrimination case the Plaintiff has the initial burden of proving a prima facie case of discrimination. McDonald Douglas Corp. v. Green, 411 US 792 (1973) and Texas Department of Community Affairs v. Burdine, 450 US 248 (1981). The FCHR has accepted this evidentiary model. Kirk Kilpatrick v. Howard Johnson, Co., 7 FLAR 5468, 5475 (FCHR 1985).

    
    

13. In order to establish a prima facie case of discrimination the Plaintiff must prove (1)that he belongs to a protected group; (2)that he was qualified for the job; and (3)that he was discharged from the job by reason of his handicap. McDonald Douglas v. Green, supra at P.802.

    
    

14. Proving a prima facie case serves to eliminate the most common non- discriminatory reasons for the Plaintiff's disparate treatment. See, Teamsters

    v. U.S. 431 US 324, 358 and N.44 (1977). It is not, however, the equivalent of a factual finding of discrimination. It is simply proof of actions taken by the

    employer from which discriminatory animus is inferred because experience has proved that in the absence of any other explanation it is more likely than not that those actions were bottomed on impermissible considerations. The presumption is that more often than not people do not act in a totally arbitrary manner without any underlying reason, in a business setting. Furnco Construction Corp. v. Waters, 438 US 567, 576 (1978).

    
    

15. Although Petitioner alleges he was discriminated against in employment by reason of handicap, at this hearing he testified he had no handicap, that he was physically capable of performing all of the tasks required by the position of highway maintenance technician supervisor and that he was not allowed to return to work in this position. However, the credible evidence presented was that Petitioner called in sick claiming his back injury would not permit him to do heavy lifting, pushing and pulling, and, he never presented to his employer the doctor's certificate that he was physically able to perform all of the tasks required of his job description. His job called for heavy lifting, pushing and pulling which Petitioner contended at the time he was not able to perform; and that if he attempted to perform these tasks he would likely suffer further injury.

    
    

16. Accordingly, Petitioner failed to present a prima facie case of discrimination; and therefore, has failed to carry his burden of showing that he was discriminated against in employment by reason of a physical handicap. If Petitioner, in fact, had the handicap he alleged at the time, he could not perform the duties required by his job description. Under these circumstances the employer is not required to continue employing the employee.

    
    

17. From the foregoing it is concluded that Petitioner has failed to establish a prima facie case that he was discriminated against in employment by reason of a physical handicap.

RECOMMENDATION

It is recommended that the complaint of Barry DeLong that he was discriminated against in employment by reason of physical handicap be dismissed.

ENTERED this 4th day of June, 1991, in Tallahassee, Florida.

K. N. AYERS 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 4th day of June, 1991.

APPENDIX TO RECOMMENDED ORDER

Proposed findings submitted by Respondent are accepted except for findings

8 and 10 insofar as these proposed findings are inconsistent with the Hearing Officers findings that DeLong never presented Dr. Sutterlin's report to the Department until after he had been dismissed.

COPIES FURNISHED:

Ben G. Watts, Secretary Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

Thornton J. Williams General Counsel

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

John R. Council, Esquire

306 South Fifth Street Dade City, Florida 33525

Charles G. Gardner, Esquire Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32399-0458

Margaret Jones, Clerk

Florida Commission on Human Relations

325 John Knox Road Suite 240, Building F

Tallahassee, FL 32399-1570

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-000867

Orders for Case No: 91-000867