STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAMELA I. FOSHEE, )

)

Petitioner, )

vs. ) CASE NO. 92-1039

)

USAir, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on August 25, 1992, in Orlando, Florida, before Joyous D. Parrish, a designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: N. James Turner

N. JAMES TURNER, P.A.

200 East Robinson Street, Suite 1110 Orlando, Florida 32801-4334

For Respondent: Vasilis C. Katsafanas

RUMBERGER, KIRK & CALDWELL, P.A.

Post Office Box 1873 Orlando, Florida 32802

and Alan L. Cohen

2345 Crystal Drive

Arlington, Virginia 22227 STATEMENT OF THE ISSUES

The central issue in this case is whether Respondent discriminated against Petitioner in violation of Chapter 760, Florida Statutes.

PRELIMINARY STATEMENT

On December 17, 1990, the Petitioner, Pamela Foshee, filed a charge of discrimination against the Respondent, USAir, Inc. That charge alleged that the Respondent had discriminated against Petitioner on the basis of her handicap, biceps tendonitis. More specifically, Petitioner alleged that after her physician released her to return to work for light duty, with a permanent weight lifting restriction of ten pounds, the Respondent refused to accommodate her handicap and refused to allow her to transfer to another position for which she was qualified.

The Florida Commission on Human Relations issued a notice of determination finding no cause on December 9, 1991. That determination found no reasonable

cause to believe that an unlawful employment practice had occurred. Thereafter, the Petitioner filed a petition for relief from an unlawful employment practice which was transmitted to the Division of Administrative Hearings for formal proceedings on February 18, 1992.

The parties' prehearing statement was filed on August 12, 1992. At the hearing, the Petitioner testified in her own behalf and presented the testimony of Rufus C. Huffman, a manager-administration employed by the Respondent. The Petitioner's exhibits numbered 1 through 6, 9, 10, 11, 12, 13, 15, 16, 17, 19, and 20 were admitted into evidence.

The Respondent presented the testimony of the following: Bruce Briggs, regional director for ground services; Robert Davis, ramp and service manager; Rufus C. Huffman; Barry Petracchi, customer service manager at the Orlando airport; and Marta Winks, staff manager of reservations administration. Its exhibits numbered 1 through 7 were also admitted into evidence.

After the hearing, the transcript of the proceedings was filed on October 2, 1992. The parties filed proposed recommended orders which have been considered in the preparation of this order. Specific rulings on the proposed findings of fact are included in the attached appendix.

FINDINGS OF FACT

Based upon the prehearing statement, the testimony of the witnesses, and the documentary evidence received at the hearing, the following findings of fact are made:

1. Petitioner was hired by Piedmont Airlines on January 26, 1987. When Piedmont Airlines merged with USAir, Inc., Petitioner became the Respondent's employee. Petitioner began work for Respondent in Orlando, Florida, in August, 1989. Prior to that time she had been employed in Boston.

   
   

2. Respondent is an employer within the meaning of Section 760.02, Florida Statutes.

   
   

3. On October 15, 1989, Petitioner received an on-the-job injury. Petitioner was given a medical leave of absence on March 26, 1990.

   
   

4. After October 16, 1989, Petitioner had a permanent lifting restriction and could not do work above her shoulders.

   
   

5. At all times material to the issues in this case, Petitioner was employed by Respondent as an open time station agent. Her job responsibilities in that position included: staffing the gates, the ticket counters, handling baggage, air freight, the ramp, and weight and balance checks.

   
   

6. Since she worked "open time," Petitioner was required to fill in for customer service agents on vacation or away from the job because of extended illness. The Petitioner's particular job function and schedule on any given week was determined by the absences of other employees and Petitioner's seniority to bid for the job assignments available.

   
   

7. When employees were out on vacation or other prolonged absences, their job positions were available for bid. Based upon seniority, Petitioner, and other open time station agents, received work and shift assignments from the

   open job positions. The most senior person bidding for a particular assignment would be awarded the job position.

   
   

8. In order for an open time station agent to receive an assignment at the ticket counter, for example, there must be an available opening, and the employee seeking the assignment must be the senior bidder for the job.

   
   

9. After October 16, 1989, Petitioner could not perform the duties associated with the jobs an open time station agent was required to perform. Since she could not lift more than ten pounds, Petitioner could not work the ticket counters or baggage. As ramp agents must be able to assist wheelchair passengers and check baggage unsuitable for carry on, it is unlikely Petitioner could have worked the ramp or gates.

   
   

10. Further, assuming openings were always available (an assumption not supported by the record), Petitioner could have performed weights and balance checks; however, she did not have enough seniority to successfully bid that position for a full-time assignment.

    
    

11. Respondent was not permitted to, unilaterally, deviate from the bidding system used with its employees.

    
    

12. Prior to her medical leave of absence, Petitioner received her full salary and all benefits.

    
    

13. From October, 1989 until March, 1990, there were no positions available in Orlando for which Petitioner was physically able to perform the duties. Vacancies in other USAir sites were made known to Petitioner. Specifically, vacancies in reservations in Pittsburgh, Syracuse and Utica were disclosed. It was believed that Petitioner could perform the duties required in the reservations department.

    
    

14. Ultimately, Petitioner was not interested in the reservations positions because she did not want to relocate at that time. Further, she had concerns related to her pay classification and seniority were she to accept such an offer.

    
    

15. Petitioner applied for open sales positions in February, 1990. The vacancies were in Newark, Chicago, and Pittsburgh. Petitioner did not attend an interview in Pittsburgh and all positions then available were filled.

    
    

16. In June, 1990, Petitioner accepted a position with American Airlines in Hartford, Connecticut. That job was as a reservations agent. Respondent deemed the acceptance of the job with American as a resignation and terminated Petitioner's employment with USAir.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

18. Section 760.10, Florida Statutes, provides, in pertinent part:

    
    

    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.

       2. To limit, segregate, or classify employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities, or adversely affect any individual's status as an employee, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.

          * * *

          1. Notwithstanding any other provision of this section, it is not an unlawful employment practice under ss. 760.01-10 for an employer, employment agency, labor organization, or joint labor-management committee to:

             1. Take or fail to take any action on the basis of religion, sex, national origin, age, handicap, or marital status in those certain instances in which religion, sex, national origin, age, absence of a particular handicap, or marital status is a bona fide occupational qualification reasonably necessary for the performance of the particular employment to which such action or inaction is related.

          
          

19. In this case, the Petitioner bears the burden of proof to establish, by a preponderance of the evidence, a prima facie violation of the Human Rights Act set forth above. Once Petitioner has met that burden, Respondent must articulate and substantiate legitimate, nondiscriminatory reasons for the actions complained of, which Petitioner must then show are pretextual.

    
    

20. As the statute identifies the protected classes of individuals, the Petitioner must first show that she fails within a named protected class. To that end, the Petitioner has alleged that she has a handicap, and that such handicap was the basis for Respondent's disparate or discriminatory treatment of her. To prevail, the Petitioner must establish that she was able to satisfactorily perform the duties of the employment and that, but for Respondent's discriminatory treatment of her, she could have continued in her job.

    
    

21. From the record in this case, it is clear that Petitioner could not perform the duties her job required. Assuming, arguendo, that Petitioner's condition, biceps tendonitis, is a handicap (a fact not proved nor disputed by the parties), the Petitioner failed to establish she was able to perform the physical requirements the position she held demanded. As an open time station agent Petitioner would, at times, be required to lift more than ten pounds. The ability to perform that task was a bona fide occupational qualification reasonably necessary for the performance of the particular employment. Since she was not able to do so, Petitioner could not perform that job. Petitioner's recourse against the Respondent for worker compensation benefits due to her on- the-job injury does not give rise to a claim for discrimination based upon a handicap.

22. Further, Petitioner was unwilling to accept employment with the Respondent in another job that would not require lifting. That she later accepted a job with American Airlines as a reservation clerk, suggests she at least thought she could perform that job's duties. If she could not handle the physical demands of that job, again, it speaks more of her claim for workers compensation than of discrimination.

    
    

23. Respondent has articulated reasonable, legitimate grounds for why Petitioner did not receive special consideration and light duty for an indefinite period. The company retained Petitioner until it was verified that the weight lifting restriction was permanent. At that time Petitioner was placed on medical leave and continued to receive benefits. Had Petitioner sought and accepted a reservations job with Respondent, her pay level (but not seniority) would have remained the same. That she was not allowed to continue with light duty is not, of itself, an act prohibited by Section 760.10, Florida Statutes. The company was obligated to abide by its bidding system and to allow an employee to circumvent that system would defeat the purpose of setting assignments by seniority.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the Florida Commission on Human Relations enter a final order dismissing Petitioner's claim of discrimination.

DONE and ENTERED this 5th day of January, 1993, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

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 5th day of January, 1993.

APPENDIX TO CASE NO. 92-1039

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER:

1. Paragraphs 1 through 8, 13, 15, 16, and 21 are accepted.

2. Paragraphs 9 through 12, 17 and 18 are accepted but are irrelevant.

3. Paragraphs 14, 19 and 20 are rejected as contrary to the weight of the evidence presented.

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT:

NOTE: The acceptance of the proposed finding of fact does not include the acceptance of the footnoted information which, in all instances, has been rejected as argument, editorial comment, or irrelevant.

1. Paragraphs 1 through 12, 14, 16, 17, 18, 20, 21, 22,

23, 24, 25, 28, 29, 33, 36 are accepted.

1. Except as set forth above, paragraph 13 is rejected as irrelevant.

2. Paragraph 15 is rejected as argumentative.

3. Paragraph 19 is rejected as repetitive.

4. Paragraph 26 is rejected as contrary to the weight of the evidence.

5. Paragraph 27 is rejected as argumentative.

6. Paragraph 30 is rejected as contrary to the weight of the evidence.

7. With regard to paragraph 31, it is accepted that Petitioner knew of, and applied for, sales positions, but did not attend the interview due, she alleged, to illness. Otherwise rejected as irrelevant.

8. Paragraph 32 is rejected as argument or irrelevant.

9. Paragraphs 34 and 35 are rejected as irrelevant.

COPIES FURNISHED:

N. James Turner, Esquire

200 E. Robinson Street Suite 1110

Orlando, FL 32801-4334

Vasilis C. Katsafanas, Esquire

P.O. Box 1873 Orlando, FL 32802

Alan L. Cohen

2345 Crystal Drive

Arlington, VA 32802

Margaret Jones, Clerk Human Relations Commission Building F, Ste. 240

325 John Knox Road Tallahassee, FL 32303-4149

Dana Baird, General Counsel Human Relations Commission Building F, Ste. 240

325 John Knox Road Tallahassee, FL 32303-4149

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.

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AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

PAMELA I. FOSHEE,

Petitioner, EEOC Case No. n/a FCHR Case No. 9O-4458

v. DOAH Case No. 92-1039

FCHR Order No. 94-017

USAIR, INC.,

Respondent.

/

FINAL ORDER DISMISSING PETITION FOR RELIEF FROM AN UNLAWFUL

EMPLOYMENT PRACTICE

Preliminary Matters

Petitioner Pamela I. Foshee 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. (1991). Petitioner alleged Respondent USAir, Inc., unlawfully discriminated against her on the basis of handicap (permanent lifting restriction and could not do work above her shoulders).

The allegations of discrimination set forth in the complaint were investigated. On December 9, 1991, the Executive Director found no reasonable cause to believe an unlawful employment practice occurred.

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). On January 5, 1993, DOAH Hearing Officer Joyous D. Parrish entered a Recommended Order of dismissal.

Public deliberations were held on February 9, 1994, in Tampa, Florida before this panel of Commissioners. Prior to the February 9, 1994 deliberation, the matter had been twice scheduled for deliberation and continued upon the request of Petitioner.

Exceptions to the Recommended Order

Petitioner first excepts to the hearing officer's failure to determine whether or not Petitioner does or does not have a cognizable handicap under the Act. Upon consideration, we grant the exception and find that Petitioner has a cognizable handicap within the meaning of the law. Fenesy v. GTE Data Services, Inc., 3 FALR 1764-A (FCHR August 11, 1981); Prewitt v. U.S. Postal Service, 662 F.2d 292 (5th Cir. 1981).

Petitioner next excepts to the hearing officer's conclusion that Respondent made reasonable accommodations to afford Petitioner the opportunity to continue with her employment. Upon consideration, this exception lacks merit.

Respondent is not required to deviate from its established seniority system for filing positions in order to accommodate Petitioner. Section 760.10(8)(b), Florida Statutes (1991).

Petitioner last excepts to the hearing officer's conclusion that Respondent did not have an obligation to continue Petitioner's employment within the scope allowed under "light duty." This exception lacks merit. An employer is not required to find alternative employment for employees who cannot perform their job unless the employer normally provides such alternative employment under its existing policies or unless it can do so without undue hardship. School Board of Nassau County v. Arline, 480 U.S. 273 (1987).

FINDINGS OF FACT

We have considered the hearing officer's findings of fact and are mindful of the record in this cause. As the hearing officer's findings are supported by competent substantial evidence, they are hereby adopted. Section 120.57(1)(b)10., Fla. Stat. (1991).

CONCLUSIONS OF LAW

Except as modified above in the "Exceptions to Recommended Order" portion of the Final Order, we agree with the hearing officer's analysis of the legal issues and conclusions based upon the factual findings. As modified, we adopt the hearing officer's conclusions of law.

Dismissal

The Petition for Relief from an Unlawful Employment Practice and the complaint of discrimination are DISMISSED with prejudice.

The parties have 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 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 8th day of March 1994. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

BY:

Commissioner James Mallue, Panel Chairperson;

Commissioner Judith S Kavanaugh; and Commissioner Sandra Garcia.

FILED this 9th day of March, 1994 in Tallahassee, Florida.

Sharon Moultry

Clerk of the Commission

NOTICE TO COMPLAINANT/PETITIONER

As your complaint was filed under Title VII of the Civil Rights Act of 1964, which is enforced by the U.S. Equal Employment Opportunity Commission (EEOC), you have the right to request EEOC to review this Commission's final agency action. To secure a "substantial weight review" by EEOC, you must request it in writing within 15 days of your receipt of this order. Send your request to Miami District Office (EEOC), One N.E. 1st Street, 6th Floor, Miami, Florida 33132.

COPIES FURNISHED:

Stephen L. Hale, Attorney for Petitioner James T. `Jim' Sanderson & Associates

A Professional Corporation

101 West Market Street Post Office Box 331 Bolivar, Tennessee 38008

Vasilis C. Katsafanas, Attorney for Respondent Cabaniss, Burke & Wagner, P.A.

Olympia Place, Suite 1800 800 North Magnolia Avenue Post Office Box 2513 Orlando, Florida 32802-2513

Dana Baird, Legal Advisor for Commission Panel Mary Clark, DOAH Hearing Officer

Docket for Case No: 92-001039

Orders for Case No: 92-001039