vs. ) CASE NO. 91-3620
Respondent. )
Upon due notice, this cause came on for formal hearing on September 19, 1991, in Jacksonville, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.
For Respondent: J. Gregory Carton
as Qualified Representative Humana, Inc.
Has Respondent been guilty of an unlawful employment practice as defined in Sections 760.01 - 760.10, F.S., i.e., discrimination by termination of Petitioner from employment on the basis of handicap?
Petitioner testified on her own behalf and presented the oral testimony of Dale Venter, Claudia Paterson, and Violet Bumpers. She had 17 exhibits admitted in evidence. Respondent presented no oral evidence and had three exhibits admitted in evidence.
A transcript was provided and following arrangements for an after-filed exhibit, P-18, the parties filed proposed orders.
All properly and timely filed proposed findings of fact have been considered and ruled on in the appendix to this recommended order, pursuant to Section 120.59(2) F.S., following notice of Petitioner's pro se ex parte communication and ten days' opportunity for motions directed thereto.
The Petitioner is a white female, aged 53. She is a registered nurse (R.N.), licensed in Florida.
In early 1981, the Petitioner sustained a severe back injury, a herniated disk.
The Petitioner had a laminectomy in 1982.
The Petitioner's back injury was aggravated in 1984.
In May of 1985, the Petitioner had a second back surgery consisting of a laminectomy. Subsequent to this operation, the Petitioner continued to experience severe pain and physical limitations.
In 1985, the Petitioner was awarded disability benefits by the Social Security Administration for a limited period of time.
During 1986 and 1987, the Petitioner prepared herself, through education, for maternity and newborn care, areas of nursing that she considered less physically demanding than acute care, full charge floor nursing. Petitioner and her first surgeon had concluded that full charge floor nursing was too strenuous for her, considering her residual back condition and the likelihood of re-injury. Petitioner took 24 CEUs in obstetrics and new born nursing and took a course at St. Luke's Hospital in critical care/cardiac catheterization for which she received a certificate of completion.
From 1983 until October 1988, the Petitioner held various positions at hospitals but was unable to fully perform her job duties due to her physical impairment. Immediately prior to her employment with Respondent, Petitioner had not been hired, or had left employment with other Jacksonville, Florida, hospitals because the employment they had available to her as a full charge nurse was not compatible with her physical limitations.
On October 25, 1988, the Petitioner answered an advertisement for nurses placed by Respondent Humana Hospital in a local newspaper. At that time, the Petitioner was interviewed by Violet Bumpers, Assistant Director of Nursing.
As part of the interview process, Petitioner provided certain materials and filled out various forms for Respondent. Mrs. Bumpers had access to these in the course of her interview. Petitioner's work history demonstrated that she had worked as a staff nurse for another facility immediately prior, and her work history indicated no limitations of her job responsibilities. Petitioner also failed to complete the employment application section which asked whether or not she would be unable to perform safely any of the duties of the position for which she applied. Petitioner completed the hospital's medical questionnaire without indicating any physical limitations, and in fact, failed to indicate that she had any restrictions from her prior surgeries. Her explanation for these omissions was that she left blank the boxes provided to fill in because she wanted Respondent's interviewer to ask her about her condition or about the blank boxes and wanted to explain her situation orally to the nurse recruiter.
During the interview with Mrs. Bumpers, Petitioner stated that she had undergone two surgeries but did not disclose any residual disability as a result thereof. Mrs. Bumpers had had a single laminectomy herself, had continuously
worked as a nurse in some capacity for many years, and neither Mrs. Bumpers' professional nor personal experience led her to conclude from Petitioner's explanation of her situation that Petitioner could not do the full job of floor nurse which Mrs. Bumpers and Petitioner both agreed was difficult and physically demanding. Although Petitioner related that she told Mrs. Bumpers that she had chronic back pain and had to be careful not to exacerbate her back, Petitioner also admitted that she did not volunteer more information because she had the necessary information if Respondent asked and because she anticipated a preemployment physical such as she had been given by previous interviewers.
Petitioner put down "subsequent recovery" in reference to the second laminectomy based on recovery from the operation itself and not based on recovery from her various diseases or chronic back problems. Petitioner specifically did not list that she suffers from Padgett's Disease, arachnoiditis, or lost Achilles reflex.
Before hiring Petitioner, Mrs. Bumpers took the precaution of asking her to provide documentation from her surgeon saying she could return to full duty. Petitioner provided Mrs. Bumpers with a medical release to that effect from a different doctor dated October 1, 1986, which release Petitioner had gotten at that time for purposes of applying for the light duty job of school nurse.
Respondent only did a blood test and urinalysis and did not require a preemployment physical of Petitioner.
At all times material, Petitioner was assigned to the "step down unit," a unit addressing the needs of patients in transition from critical care to regular floor care. Before being hired for that unit, Petitioner was given an opportunity to talk to Mary Ann Wilkinson, the unit's nurse supervisor, concerning the duties she would take on.
Petitioner was hired by Respondent without any formal agreement for accommodation of her back condition by placing her in specialized nursing, but Petitioner still assumed from her conversation with Mrs. Bumpers that some accommodation would be made because Mrs. Bumpers said they would find a position in which Petitioner would be "comfortable." There is every reason to infer from the evidence as a whole that Mrs. Bumpers meant "professionally comfortable" and Respondent took that to mean "physically comfortable."
Shortly after beginning work, Petitioner realized the "step down unit" was too strenuous for her. Often she was unable to get patients out of bed or walk them according to doctors' orders, so she complained to other employees, but not necessarily to supervisors. Because her complaints of too much work and too heavy work were reasonably susceptible of less charitable interpretations than that Petitioner was requesting accommodation of her back condition or modification of her duties compatible with her physical limitations, Petitioner suffered relationship problems with other nurses in her unit.
On occasion, George, the charge nurse over her, would reassign patients at her request but sometimes he either would not or could not reassign patients.
When she first approached her head nurse supervisor, Mary Ann Wilkinson, in December 1989, about both her physical and personal problems with staff, Mrs. Wilkinson was sympathetic and helpful.
In March 1989, at Petitioner's request, Mrs. Bumpers met with her. As might be supposed, the testimony of Petitioner and Mrs. Bumpers is not in accord
as to whether Petitioner merely inquired of Mrs. Bumpers concerning openings she had heard about in cardiac catheterization, maternity, newborn, and recovery room nursing, or whether she actually requested transfer to these units. It is certain, however, that Petitioner never filed a job transfer request in writing. Viewed in the light most favorable to the Petitioner, it is found that Petitioner specifically told Mrs. Bumpers at that meeting that the work was too hard for her and requested a transfer to the newborn nursery or the recovery room. However, Mrs. Bumpers denied the request because, contrary to Petitioner's assertion, these areas of nursing in Respondent's facility required the same level of strenuous activity and were equally physically demanding as was Petitioner's existing acute care nursing assignment in the "step down unit." It is also undisputed that Mrs. Bumpers gave Petitioner that reason for her refusal of transfer at that time. Petitioner did not demonstrate either that such an opening existed or that it was less strenuous. Mrs. Bumpers is credible in her testimony that she did not perceive Petitioner's request as a request to accommodate a handicap and that she turned down Petitioner's request for transfer for the foregoing non-pretextual reasons. Petitioner then requested to become a part-time employee, and Mrs. Bumpers granted that request immediately.
In July 1989, Petitioner underwent a bladder sonogram and pelvic x-ray at Respondent's hospital. These procedures were part of her employee insurance package and were performed at her own doctor's request due to Petitioner's recurrent urinary tract infections. From a comment made to her by the technician who recognized that Petitioner also had "back problems," Petitioner inferred that thereafter her superiors knew that she had back problems, i.e., a handicap, and she imputed her subsequent personnel problems to those superiors' desire to get rid of her because she could not fully do her job, and/or due to her complaints, and/or due to her superiors having finally recognized the extent of her back limitations. There is, however, no evidentiary nexus to show that the knowledge of the technician, acting as a health care professional, was conveyed to Petitioner's supervisors or if such knowledge was conveyed to them, that it influenced their subsequent actions in any way.
Approximately July 24, 1989, Petitioner left the hospital with keys that controlled the "narcotics locker." This was a clear violation of hospital policy. Upon her return with the keys after approximately 45 minutes, Petitioner volunteered no explanation for her absence.
Although Petitioner's absence from the hospital with the narcotics keys was in clear violation of hospital policy, it was not a unique occurrence. Other nurses have inadvertently done the same thing. Petitioner's testimony at formal hearing that she used her "break" time to go to a nearby medical professional building for eyeglasses repair and had picked up "fast food" on the way back is credible. There is no evidence that she passed the narcotics keys to anyone or had them copied herself.
On July 26, 1989, the Petitioner was informed that since she had left the hospital with the narcotics keys and did not promptly return, she would be required to give a urine specimen for drug screening. The Petitioner was also told that this was "hospital procedure."
There is no written hospital procedure that specifically requires a drug screening when an individual leaves the hospital premises with the "narcotics keys," but Respondent regularly does such tests on employees when there is a change of behavior or any situation linked to narcotics. In this instance, Respondent's personnel sought advice from a contact at the Florida Department of Professional Regulation (DPR), who, due to the unexpected and
"prolonged" length of Petitioner's absence, directed or suggested that a drug screening be conducted by Respondent. No authority of DPR to require such test without some predicatory procedure was demonstrated at formal hearing.
The Petitioner was administered a drug screening test. That test proved "positive" for barbiturates and caffeine.
Immediately after being informed of the "positive" test results, Petitioner denied use of any barbiturates, which denial she repeated at formal hearing.
Immediately after being informed of the "positive" test results, the Petitioner also offered to submit herself to another drug screening. This offer was rejected by Respondent.
Because of the "positive" drug test result, Respondent instead requested Petitioner to submit to an evaluation at the Koala Center to determine if Petitioner were professionally impaired. Respondent selected the Koala Center because, upon information from its DPR contact, the Koala Center was the evaluator used by the Florida Impaired Nursing Program. The evaluation that Respondent contemplated was two days of drug and psychological testing. Respondent told Petitioner and Petitioner correctly understood that the cost of the evaluation and her two days off with pay to undergo evaluation at the Koala Center would be paid for by the Respondent employer. The Petitioner initially assumed that she was going to be "retested" for drugs, and she testified at formal hearing that she welcomed the opportunity. However, upon investigation, the Petitioner learned that the Koala Center was also a drug treatment center. Based upon this fact, and what she believed would be a detrimental effect on her nursing career if she were "admitted" there, the Petitioner informed Respondent that she would not report to the Koala Center.
When the Petitioner refused to go to the Koala Center, the Respondent informed her that the all-expense-paid evaluation offered was a "condition" of her future employment. The Petitioner still refused to attend and was accordingly constructively terminated from her position.
No scientific evidence of the accuracy of the results of Respondent's drug screening test of Petitioner was introduced.
Although the circumstances, chain of custody, and screening method of the original "positive" test present both constitutional questions and a strong potential for flawed factual results, it is found that the Respondent's request for further drug evaluation and the removal of Petitioner from patient care would have been requested by Respondent of any of its employees under the circumstances and were not based upon Petitioner's back condition but upon hospital policy and a concern for patient safety.
After leaving her employment with the Respondent, the Petitioner has remained unemployed. If she had remained with the Respondent, the Petitioner would have earned a salary of $39,949.00 from August of 1989 through September of 1991. However, the Petitioner has received $11,742.00 from the Social Security Administration in the nature of disability payments during that period. She is currently receiving "full disability" from the Social Security Administration.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause. See, Section 120.57(1) F.S.
The shifting burdens of proof in discrimination cases have most recently been examined in Department of Corrections v. Chandler, Case No. 90-648 (Fla. 1st DCA), opinion on rehearing dated July 10, 1991. They are:
Pursuant to the [Texas Department of Community Affairs v.] Burdine, [450 U.S. 248, 101 S. Ct.
1089, 67 L. Ed. 2d 207 (1981)] formula, the employee has the initial burden of establishing a prima facie case of intentional discrimination, which once established raises a presumption that the employer discriminated against the employee. If the presumption arises, the burden shifts to the employer to present sufficient evidence to raise a genuine issue of fact as to whether the employer discriminated against the employee. The employer may do this by stating a legitimate, nondiscriminatory reason for the employment decision, a reason which is clear, reasonably specific, and worthy of credence. Because the employer has the burden of production, not of persuasion, which remains with the employee, it is not required to persuade the trier of fact that its decision was actually motivated by the reason given. If the employer satisfied its burden, the employee must then persuade the fact finder that the proffered reason for the employment decision was a pretext for intentional discrimination. The employee may satisfy this burden by showing directly that a discriminatory reason more likely than not motivated the decision, or indirectly by showing that the proffered reason for the employment decision is not worthy of belief. If such proof is adequately presented, the employee satisfies his or her ultimate burden of demonstrating by a preponderance of the evidence that he or she has been a victim of intentional discrimination.
For purposes of proving a prima facie case of discrimination on the basis of handicap, Petitioner must minimally affirmatively show that she has a physical impairment which substantially limits one or more of her major life activities, that the employer knew of the handicap, and that the employer failed to find a job function consistent with those physical limitations. See, Section 760.22(7)(a) F.S.
Petitioner has proven that she is a handicapped person as contemplated by the statute, but her several other theories and perceptions upon which recovery for discriminatory termination might be predicated are so contradictory as to fail of persuasion.
First, Petitioner suggested that Respondent, knowing she was handicapped, hired her only to discriminate against her by placing her on heavy duty work. No motivation for such a perverse hiring practice was offered and none proven. Petitioner did not make Respondent fully aware of her handicapped status when Respondent originally hired her. The facts are persuasive that Petitioner intentionally omitted, or at least minimized, the extent of her physical limitations until after she was hired. Specifically, she failed to indicate her residual physical limitations due to her back surgeries and did not name her other diseases or handicapping conditions on her application and her medical history form. Likewise, she fell short of full disclosure of any residual disability during her job interview with Mrs. Bumpers. Moreover, the "full duty release" she submitted is particularly damning.
Petitioner's complaints in December 1988 and then March 1989 about the work being too "hard" or too "heavy" were in such general terms that the employer did not know even then that the back handicap was limiting her activities but even so, Mrs. Bumpers discussed with Petitioner, at Petitioner's request, other positions within the facility and explained why the positions were not less physically demanding and immediately granted Petitioner's request for reduced hours. Assuming arguendo, that Respondent knew of Petitioner's handicap, the change in hours was a reasonable accommodation by Respondent, particularly since, thereafter, Petitioner did not ask for further accommodation.
Contradictorily, Petitioner next contended that her disclosures at the hiring interview and her subsequent complaints aside, Respondent somehow first formed a plan to terminate her when an x-ray technician or her insurance claim for the pelvic sonogram and x-rays disclosed the extent of her back condition. However, no access to such knowledge in the Petitioner's superiors was proven, and no plot or plan was demonstrated.
Petitioner has proven that she is handicapped and that she was constructively terminated, but the proof falls short of a prima facie case of termination for handicap for all of the foregoing reasons. Employers must make reasonable accommodation for known handicap conditions of their employees, see, Kelly v. Bechtel Power Corporation, 633 F. Supp 927 (S.D. Fla. 1986), but they are not required to create work that the employee can do. Also, the Florida Commission on Human Relations has dismissed several handicap discrimination complaints pointing to the employees' failure to identify their conditions for their employers as handicap (especially when they have expressly denied having a handicap on their employment applications) or pointing to their failure specifically to request accommodation of their handicap by their employers.
See, e.g. Landers v. Broward County Commissioners, 12 FALR 4226 (FCHR 1989), Harvey v. Alachua County Board of County Commissioners, 12 FALR 2661 (FCHR 1990), Shepherd v. Redman Homes, 10 FALR 1610 (FCHR 1988), Lanham v. Seamless
Hospital Products, 8 FALR 4703 (FCHR 1986).
Lastly, despite Petitioner's failure to prove her prima face case of handicap discrimination, the proof did demonstrate that a nondiscriminatory, nonpretextual reason for Respondent's action did exist.
Upon the foregoing findings of fact and conclusions of law, it is recommended that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner's Petition and denying the relief sought.
RECOMMENDED in Tallahassee, Leon County, Florida, this 27th day of November 1991.
ELLA JANE P. DAVIS
Filed with the Clerk of the Division of Administrative Hearings this 27th day of November 1991.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3620
F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF
subordinate, or cumulative to the facts as found.
12-13 Accepted as modified to correctly reflect the credible evidence. What is rejected is rejected as not supported by the credible record evidence as a whole.
10, 25 Rejected as not supported by the greater weight of the credible record evidence as a whole.
24 Rejected as immaterial based on the burden of proof as described in the conclusion of law.
subordinate, or cumulative to the facts as found.
5-6, 11 Accepted as modified to correctly reflect the credible evidence as a whole and to show the correct chronology.
12 Rejected as subordinate and/or unnecessary but covered in FOF.
J. Gregory Carton
as Qualified Representative Humana, Inc.
Ronald M. McElrath Executive Director Florida Commission on
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.
