STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ULYSESS S. UQDAH, )

)

Petitioner, )

)

vs. ) CASE NO. 91-5360

) PACE CONSTRUCTION CORPORATION ) OF GEORGIA, )

)

Respondent. )

)

RECOMMENDED ORDER

On November 20, 1991, a formal administrative hearing was held in this case in Tampa, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ulysess S. Uqdah, pro se.

2604 Banyan Court Apt. 31-G

Tampa, Florida 33613

For Respondent: C. Samuel Ellison

1 North Dale Mabry Highway Tampa, Florida 33609

STATEMENT OF THE ISSUE

The issue in this case is whether the Florida Commission on Human Relations (FCHR) should grant the Petition for Relief, charging the Respondent with discrimination based on handicap (back and knee injuries), in violation of Section 760.10, Fla. Stat. (1989).

PRELIMINARY STATEMENT

The record in this case reveals that, on or about March 26, 1990, the Petitioner, Ulysess S. Uqdah, filed with the FCHR a Charge of Discrimination against the Respondent, Pace Construction Corporation of Georgia. The Charge of Discrimination alleged discrimination based on handicap (back and knee injuries), in violation of Section 760.10, Fla. Stat. (1989). It was assigned FCHR No. 90-3459.

The Charge of Discrimination was investigated, and on or about July 3, 1991, the FCHR issued a Notice of Determination: No Cause, i.e., a determination was made that there was no reasonable cause to believe that unlawful discrimination had occurred.

The Petitioner then filed with the FCHR a Petition for Relief again alleging discrimination based on handicap (back and knee injuries), in violation of Section 760.10, Fla. Stat. (1989). On or about August 22, 1991, the FCHR forwarded the Petition for Relief to the Division of Administrative Hearings for formal administrative proceedings under Section 120.57(1), Fla. Stat. (1989).

Final hearing was scheduled for November 20, 1991.

At the final hearing, the Petitioner testified in his own behalf and also had Petitioner's Exhibits 1 and 2 admitted in evidence. The Respondent called three witnesses and had Respondent's Exhibits 1 through 3 admitted in evidence.

The Petitioner filed a proposed recommended order, but it consists primarily of a statement of the Petitioner's request for relief rather than proposed findings of fact. The Respondent did not submit a proposed recommended order.

FINDINGS OF FACT

1. The Petitioner, Ulysess S. Uqdah, is a carpenter. He has injured his back on-the-job with a construction company other than the Respondent in 1981 or 1982 and, with another construction company other than the Respondent, in early 1984. On one of those occasions, the Petitioner received worker compensation. On both occasions, after a period of time off, the Respondent returned to work with the same employer without any continuing difficulties.

   
   

2. In 1984 or 1985, while working for a construction company other than the Respondent, the Petitioner hurt his knee while on the job. He took time off, received worker compensation, and ultimately required surgery. After recuperating from the surgery, the Petitioner was able to return to work. Other than occasional recurring pain, the Petitioner does not worry about the knee, and his knee does not significantly hamper him in the performance of his work as a carpenter.

   
   

3. On or about December 12, 1986, the Petitioner was hired by the Respondent, Pace Construction Corporation of Georgia. The Respondent was aware of the Petitioner's prior injuries. He disclosed them on his written employment application. The application also disclosed that the Petitioner had received worker compensation.

   
   

4. The Petitioner worked for the Respondent until June 17, 1988, when he was terminated because of the Respondent's lack of work. During his employment with the Respondent, the back and knee injuries did not cause the Petitioner any difficulties in performing his work, and his work was satisfactory. In fact, the Separation Notice states: "Ulysess has proved himself to be a very good worker and gives 100% at all times. He has leadership qualities and shows his concern for the success of the project."

   
   

5. The Respondent's regular practice was 1/ to box up all paperwork relating to a construction project when it is completed and put the paperwork in storage. The paperwork from finished projects was stored off the premises of the main business office and was not accessible to the Respondent for reference in connection with subsequent construction projects. 2/

   
   

6. In approximately late 1989 or early 1990, when the Respondent started a major new project in Tampa, the Petitioner applied to again work as a carpenter for the Respondent. His application was held, along with others applying for work, until the Respondent was ready to begin hiring. In approximately March,

   1990, the project superintendent reviewed the applications, selected those he wanted to hire, and forwarded those applications to the Respondent's business office for processing. The Petitioner's application was among those selected.

   
   

7. In accordance with the Respondent's normal practices, arrangements were made to have the Petitioner and the other chosen applicants undergo a drug and physical examination. The Petitioner's examinations took place on or about March 16, 1990.

   
   

8. Meanwhile, the Respondent's personnel office verified the answers given by the Petitioner and the other chosen applicants to the question on the employment application asking whether the applicant had ever received worker compensation. The Respondent located a worker compensation claim report from April, 1989, which noted as to the Petitioner: "10/13/83 West Coast Form. LT- Back" and "4/24/86 Johnson Glen LT-Left leg/ft." 3/ This indicated that the Petitioner had received worker compensation on those two occasions.

   
   

9. The Respondent's personnel office forwarded the worker compensation report to the project superintendent, who told the Petitioner that he would not be hired.

   
   

10. The Petitioner understood the superintendent to say that the Petitioner was not being hired because of his history of on-the-job injuries and because it would not be in the best interest of the Respondent to hire the Petitioner. The Petitioner understood the superintendent to mean that the prior injuries, which had resulted in worker compensation, would handicap the Petitioner in his ability to perform his assigned duties as carpenter and that the Respondent did not want to have to pay worker compensation if the Petitioner reinjured himself. The superintendent testified that he told the Petitioner he was not being hired because he had falsified his answer to the question on the employment application concerning worker compensation history.

    
    

11. It was the Respondent's company policy not to hire any applicant who failed to disclose on his employment application the receipt of worker compensation in the past. This is because a special disability fund would pay worker compensation for such employees only if the receipt of worker compensation in the past was disclosed on the written employment application.

    
    

12. The Petitioner claims that he in fact disclosed on his application his receipt of worker compensation in the past and that the Respondent's claim to the contrary is a pretext for intentional discrimination on the basis of a perceived handicap. The Respondent's evidence was that, at that point in time, the Respondent's policy was to discard the application and similar paperwork on applicants who were not hired. Now, after the claims the Petitioner made in this case, the Respondent keeps this documentation. Neither party could produce the Petitioner's application at the final hearing to clarify whether the Petitioner had in fact disclosed on his application his receipt of worker compensation in the past. 4/

    
    

13. The Petitioner concedes that, on or about April 11, 1990, he was advised by an investigator with the Florida Commission on Human Relations that the Respondent was contending it declined to hire the Petitioner due to false statements on his employment application relating to worker compensation.

    
    

14. The Respondent submitted persuasive evidence that, besides hiring the Petitioner in 1986 with knowledge of past injuries, it has continued to hire other individuals with a history of on-the-job injuries. The Respondent also

    submitted persuasive evidence that it has fired employees when it later came to the attention of the Respondent that the employee had falsified an employment application, particularly by falsely stating that worker compensation had not been received in the past.

    
    

15. It is found that the Respondent declined to hire the Petitioner based on the Respondent's perception that the Petitioner had falsified his employment application by stating that he had not received worker compensation in the past. It is specifically found that the Respondent did not discriminate against the Petitioner due to a handicap or perceived handicap. There is no evidence of any reason why the Respondent would have discriminated against the Petitioner due to a handicap or perceived handicap. To the contrary, the evidence is clear that the Respondent viewed the Petitioner as being fully capable of performing the job of carpenter satisfactorily notwithstanding his prior back and knee injuries. 5/

    
    

16. In light of the findings made in this case, it would appear that the Petitioner misunderstood the statement made by the job superintendent as to the reasons why the Petitioner was not being hired. This proceeding resulted from the Petitioner's misunderstanding.

    
    

    CONCLUSIONS OF LAW

    
    

17. Section 760.10(1), Fla. Stat. (1989), makes it illegal to discharge or otherwise to discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment because of the individual's handicap (among other things).

    
    

18. In a case such as this, the Petitioner initially has the burden to at least prove a prima facie case of illegal discrimination. If a prima facie case is proven, the burden shifts to the Respondent to articulate legitimate nondiscriminatory reasons for the disparate treatment or adverse action taken against the Petitioner. Then the burden returns to the Petitioner to prove that the articulated reasons are a mere pretext for intentional discrimination. See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981).

    
    

19. In this case, consistent with the Petitioner's allegations, the evidence was clear that the Petitioner is not handicapped. The Petitioner's claim is predicated on the allegation that the Respondent perceived the Petitioner to be handicapped. But the Petitioner did not make a prima facie case that the Respondent perceived the Petitioner to be handicapped.

    
    

20. Even if the Petitioner had proved a prima facie case that he was discriminated against on the basis of a perceived handicap, the Respondent articulated legitimate nondiscriminatory reasons for not hiring the Petitioner. The Petitioner did not prove that the articulated reasons were a mere pretext for intentional discrimination on the basis of a perceived handicap.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a final order denying the Petition for Relief filed in this case.

RECOMMENDED this 20th day of December, 1991, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 20th day of December, 1991.

ENDNOTES

1/ It was revealed at final hearing that Pace Construction Corporation of Georgia no longer exists as a corporate entity. Its corporate parent, The Beck Company, still exists and continues to do business through another corporate subsidiary, HCB Contractors.

2/ If it were accessible, it would have shown not only that the Petitioner had disclosed his history of back and knee injuries on his December 29, 1986, application but also that the injuries were absolutely no handicap to the Petitioner in the performance of his duties as carpenter.

3/ Although some of the testimony suggested that the report was ordered from a research company about the time the Petitioner had his drug and physical examination, the "filed" stamp on the report indicates that the Respondent received the report on April 3, 1989. If the report was the basis for not hiring the Petitioner, it could not have been received on April 3, 1990, because the Petitioner filed his Charge of Discrimination on or about March 26, 1990.

4/ The Petitioner included with his proposed recommended order a copy of a pre- employment physical examination form which he asserts relates to the application in question. It is not clear why, but the Petitioner did not introduce the document in evidence at final hearing. The document cannot be considered evidence in the case. It is not clear where the Petitioner obtained the document, but it would not seem to be documentation obtained from the Respondent through discovery or at the final hearing. In any event, it is not clear from the document itself that it indeed relates to the application in question. Even if it were accepted as evidence that the Petitioner disclosed the prior back and knee injuries in the application in question, the document does not make any representation as to whether the Petitioner received worker compensation for them.

5/ One of the Petitioner's main concerns throughout this proceeding, besides back pay, seems to have been his concern that the Respondent (or its parent, The Beck Company, and its subsidiaries, such as HCB Contractors) give the Petitioner fair consideration for future employment when it becomes available. There seems to be no reason to think that the Petitioner would not be given fair consideration, assuming his next employment application is accurate, in that the Petitioner is viewed as being fully capable. As for the Petitioner's concern

that he might be retaliated against for having brought this action, Section 760.10(7), Fla. Stat. (1989), prohibits such retaliation.

COPIES FURNISHED:

Ulysess S. Uqdah 2604 Banyan Court Apt. 31-G

Tampa, Florida 33613

C. Samuel Ellison

1 North Dale Mabry Highway Tampa, Florida 33609

Dana Baird, Esquire General Counsel

Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1570

Margaret Jones Clerk

Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1570

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT TO THE FLORIDA COMMISSION ON HUMAN RELATIONS WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST TEN DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONSULT WITH THE FLORIDA COMMISSION ON HUMAN RELATIONS CONCERNING ITS RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER.

Docket for Case No: 91-005360

Orders for Case No: 91-005360