STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRED BURKE, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 91-5278

)

FLORIDA DEPARTMENT OF ) HEALTH AND REHABILITATIVE ) SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Don W. Davis, held a formal hearing in the above- styled case on November 21, 1991, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Robert Travis, Jr., Esq.

16 North Adams Street Quincy, Florida 32351

For Respondent: Scott D. Leemis, Esq.

Assistant District Legal Counsel

P.O. Box 2417

Jacksonville, Florida 32231-0083 STATEMENT OF THE ISSUES

The issue for determination is whether Respondent is guilty of discrimination in employment on the basis of sex and handicap.

PRELIMINARY STATEMENT

On June 5, 1989, Petitioner filed a charge of discrimination against Respondent. Petitioner, alleged that Respondent reassigned him to different employment duties as the result of Petitioner's sex and his handicap, a heart condition.

On March 5, 1991, the Florida Commission on Human Relations entered a Notice of Determination: No Cause. A subsequent request for redetermination was made by Petitioner. A Notice of Redetermination was issued on July 1, 1991.

Again, the Commission found no cause.

On August 19, 1991, a form for a Petition for Relief, signed by Petitioner, without any information on the face of that form was forwarded to the Division of Administrative Hearings from the Commission on Human Relations for conduct of formal proceedings pursuant to Section 120.57(1), Florida Statutes. Attached to

the form were copies of the charges of discrimination, previously filed by Petitioner with the Commission. In those blank spaces existing on the Petition for Relief form, Petitioner had written "see attached."

On September 17, 1991, the undersigned issued an Order To Show Cause why the Petition for Relief should be considered to reflect disputed issues of material fact as required by applicable provisions of Rule 22T-8.009, Florida Administrative Code. Following Petitioner's response, filed on October 1, 1991, the Order To Show Cause was discharged and the matter set for final hearing on the basis of allegations Respondent had committed an unlawful employment practice with respect to sex and handicap in regard to Petitioner's employment in violation of Sections 760.01- 760.10, Florida Statutes.

By answer dated September 3, 1991, Respondent denied all allegations of discrimination on the basis of sex or handicap.

At the final hearing, Petitioner presented the testimony of one witness, himself, and three evidentiary exhibits. Respondent presented the testimony of three witnesses and six evidentiary exhibits. Upon request of Respondent, official recognition is taken of the Final Order entered by the Public Employees Relations Commission (PERC) in Case No. CS-89-166, involving the parties to this action. That decision is reported at 4 FCSR 327.

No transcript of the final hearing was provided by the parties. Proposed findings of fact submitted by the parties are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Petitioner is Fred Burke, Jr. He was an existing employee of a juvenile detention facility in Jacksonville, Florida in 1978, when Respondent assumed responsibility for operation of the facility.

   
   

2. Petitioner continued to be employed by Respondent in the position of detention careworker class I, until notified of his demotion and reassignment to other duties on May 25, 1989.

   
   

3. Respondent's demotion and reassignment of Petitioner followed Petitioner's refusal to work overtime on two occasions. On each of these occasions, Petitioner cited his cardiac condition as the basis for his refusal.

   
   

4. All detention care workers in the facility are subject to mandatory overtime policy requirements which provide that overtime may be required if there is a need for additional supervisory coverage of clients.

   
   

5. Prior to taking the demotion and reassignment action, Respondent sought an independent medical evaluation of Petitioner's ability to perform the duties of the position of detention careworker class I.

   
   

6. Respondent required Petitioner to report to a family care physician who declined to make a medical judgement regarding Petitioner's health. Instead, the physician suggested that Respondent obtain the opinion of the cardiologist who had treated Petitioner for his heart condition in 1987.

   
   

7. On May 4, 1989, that cardiologist offered his opinion as to Petitioner's health. Specifically, the doctor, who had seen Petitioner as recently as February 1989, noted that Petitioner's health deficiencies dictated

   that he work no more than eight hours per day; that he refrain from strenuous activity; that he not break-up fights; and that he not carry clients out of the facility in the event of fire.

   
   

8. The specific work prohibitions noted by the cardiologist are all job tasks that an individual assigned to a detention careworker position, may be expected to perform.

   
   

9. Upon the expiration of a required notice period to Petitioner, Respondent effectuated the reassignment of Petitioner to the position of cashier in the food stamp office. The position requires no overtime work and is less stressful. Petitioner is generally permitted to sit in the course of performing his duties.

   
   

10. Following his reassignment, Petitioner continued to enjoy his same salary, although the cashier position occupied a lower pay grade than his previous position.

    
    

11. Two other employees were alleged by Petitioner to have received favored treatment from Respondent. These employees, both female, did receive evaluations for the period ending in 1989 which indicated that their work performance exceeded required standards.

    
    

12. While the evaluations made the other two employees eligible for merit incentive pay increases, neither employee ever received such an increase or any other pecuniary benefit.

    
    

13. Petitioner, whose evaluation reflects that he achieved required work standards, did not receive disparate treatment from that accorded the two female employees by Respondent.

    
    

14. As established by the Final Order of the PERC Commission in Case No. CS-89-166, Respondent's transfer to the position of food stamp cashier was warranted, comported with procedural requirements and served a legitimate governmental interest.

    
    

15. Respondent does not have a work practice which discriminates with regard to compensation, conditions and privileges of employment on the basis of an employee's sex or handicap. Further, Petitioner has not been subjected to such discrimination by Respondent.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this action. Section 120.57(1), Florida Statutes.

    
    

17. The adverse effectuation of an employee's compensation, conditions and privileges of employment on the basis of sex or handicap is an unlawful employment practice. Section 760.10(1)(a), Florida Statutes.

    
    

18. The burden of proof rests with Petitioner to show a prima facie case of employment discrimination. After such a showing by Petitioner, the burden shifts to Respondent to articulate a nondiscriminatory reason for Petitioner's termination. If Respondent is successful and provides such reason, the burden shifts again to Petitioner to show that the proffered reason for termination is

    pretextual. School Board of Leon County v. Hargis, 400 So.2d 103 (Fla. 1st DCA 1981).

    
    

19. In this case, Petitioner has not shown a prima facie case of employment discrimination. The Final Order of the PERC Commission in Case No. CS-89-166 establishes that Respondent's transfer to the position of food stamp cashier was warranted, comported with procedural requirements and served a legitimate governmental interest.

    
    

20. Allegations of Petitioner that his subsequent demotion from the detention careworker class I position to the food stamp cashier position constituted discriminatory treatment on the basis of sex and handicap are not supported by adequate proof. The medical evidence established, in effect, that Petitioner simply was not able to perform certain tasks. The ability to perform those tasks, i.e. working overtime when necessary, breaking-up fights, or carrying clients out of the facility in the event of a fire, were deemed essential by Respondent to effective performance of the duties of the position of detention careworker class I. Petitioner did not contest that he was unable to perform those duties, nor did he establish that such an expectation by Respondent was unreasonable.

    
    

21. The evidence establishes that although Petitioner was unable to physically perform the duties of his position, Respondent permitted Petitioner to continue working in a position where his health problems did not pose a barrier to effective performance. Further, Petitioner's salary was not reduced.

    
    

22. Petitioner's argument that his reassignment resulted from illegal discriminatory treatment on the basis of sex and handicap is unpersuasive and unsupported by a preponderance of direct admissible evidence.

RECOMMENDATION

Based on the foregoing, it is hereby recommended that a Final Order be entered dismissing the Petition for Relief.

RECOMMENDED this 11th day of December, 1991, in Tallahassee, Leon County, Florida.

DON W.DAVIS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Fl 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 1991.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5278

The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties.

RESPONDENT'S PROPOSED FINDINGS

1.-18. Adopted in substance, but not verbatim. PETITIONER'S PROPOSED FINDINGS

Petitioner's proposed finding consisted of nine unnumbered paragraphs. Those paragraphs have been numbered one through nine, respectively, and are addressed as follows:

1.-7. Adopted in substance.

1. Rejected, not supported by the greater weight of the evidence.

2. Rejected, not supported by the greater weight of the evidence. Further, one female employee had always been employed in the "lighter duty" situation of the control room. The other female employee was placed in a telephone receptionist position. Notably, no creditable evidence was presented that either of these employees refused to work overtime, or that they were not put on the "bubble list."

COPIES FURNISHED:

Robert Travis, Jr., Esq.

16 North Adams Street Quincy, FL 32351

Scott D. Leemis, Esq.

Assistant District Legal Counsel

P.O. Box 2417

Jacksonville, FL 32231-0083

Ronald M. McElrath Executive Director

Florida Commission On Human Relations

325 John Knox Road Suite 240 / Building F

Tallahassee, FL 32399-1925

Margaret Jones Clerk

Florida Commission On Human Relations

325 John Knox Road Suite 240 / Building F

Tallahassee, FL 32399-1925

Dana Baird, Esq.

General Counsel

Florida Commission on Human Relations

325 John Knox Road Suite 240 / Building F

Tallahassee, FL 32399-1925

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 consult with 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: 91-005278

Orders for Case No: 91-005278