STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM M. DUNWOODY, )

)

Petitioner, )

)

vs. ) CASE NO. 92-2475

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Mayo, Florida on October 29 and 30, 1992 before Robert T. Benton, II, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For the Petitioner: Jonathan P. Rossman, Esquire

1300 Executive Center Drive Tallahassee, Florida 32310

Mary C. O'Rourke, Esquire

324 West College Avenue Tallahassee, Florida 32301

For the Respondent: Ernest L. Reddick, Esquire

Department of Corrections 2601 Blairstone Road

Tallahassee, Florida 32399-2500 STATEMENT OF THE ISSUES

The issue for consideration in this matter is whether Petitioner, William

M. Dunwoody, was unlawfully discharged from employment with the Respondent, Department of Corrections, because of his disability, his race, or in retaliation for seeking a shift change.

PRELIMINARY MATTERS

On January 16, 1991, Petitioner filed with the Florida Commission on Human Relations, a Complaint of Discrimination against the Respondent, Department of Corrections, alleging discrimination in employment on the basis of his race and handicap. After investigation into Petitioner's allegations, on November 8, 1991, the Commission entered its Determination, (No Cause,) and Petitioner requested re-determination. A subsequent Re-determination, (No Cause), was entered on February 14, 1992 and thereafter, on March 30, 1992, Petitioner filed a Petition for Relief alleging discrimination by Respondent based on disability, race, and retaliation.

The file was transmitted to the Division of Administrative Hearings for the appointment of a Hearing Officer on April 22, 1992. By Notice of Hearing dated July 22, 1992, the matter was set for hearing in Mayo on October 29, 1992 at which time the hearing was held as scheduled. At the hearing, Petitioner testified in his own behalf and presented at hearing the testimony of nine additional witnesses in addition to that of three others by deposition.

Petitioner also introduced documentary Exhibits. Respondent presented the testimony of three witnesses, and exhibits.

The record was left open to allow the parties to depose certain witnesses and submit those depositions to the Hearing Officer for consideration. On December 20, 1993, the Hearing officer entered an Order requiring the parties to submit their Proposed Recommended Orders by February 4, 1994. Thereafter, on January 14, 1994, the Director of the Division of Administrative Hearings, based on the unavailability of Hearing Officer Benton, reassigned this matter to the undersigned for the preparation of the Recommended Order herein.

A transcript of the proceedings has been provided. Both parties have submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the matters in issue herein, the Respondent operated the Mayo Correctional Facility, (Mayo), and employed the Petitioner, William M. Dunwoody, (Dunwoody), there as a Corrections Officer 1, (CO1). He was hired by the Respondent on December 3, 1983 and served at Cross City Correctional Institution until his reassignment to Mayo in 1985. He served at Mayo from that point until his employment with the Department was terminated on August 30, 1991.

   
   

2. Wayne Winburn has been the recreational therapy director at Mayo since December, 1984. In that capacity, he provides recreational activities, including basketball, football, soccer and board games, some supervised and some not, to the facility's inmates. Petitioner worked for him for two years in 1990 and 1991, and in Winburn's opinion, did a good job despite his asthma condition which got progressively worse during the period of employment. At first, Petitioner worked in the office, but as his condition worsened, Mr. Winburn assigned him to outside work, because numerous people who were smokers, including Winburn, who is a chain smoker, would come into the office during the day, and their smoking made breathing difficult for Petitioner.

   
   

3. At the time Petitioner worked there, the recreation office was a small room, much of which was used for the storage of supplies. There was a window, which was blocked, as well as an air conditioner in addition to a dutch door. However, it was difficult at best to keep smoke out of the area. As a result, Mr. Winburn attempted to impose the no-smoking rule for that area and bar any smoking there at all. He suggested that to his supervisors but they did not readily endorse his proposal.

   
   

4. At one point, when Petitioner was working for Mr. Winburn, he brought in a doctor's certificate which indicated he should be in a smoke-free environment. When Winburn received the note, he took it to his supervisor, the personnel director, Mr. Witt. At the same time, he wrote a memorandum to Mr. Davis, the Assistant Superintendent, indicating his desire to provide Petitioner with a smoke-free environment. To accomplish that end, he suggested that smoking not be permitted in either the recreation office or the storage room.

   Shortly thereafter, Petitioner was notified by a letter from Mr. Mathis, the Superintendent, stating that he had given instructions to place Petitioner in a position which would limit his chances of coming into contact with tobacco smoke. This was assignment to a perimeter position, outdoors, on the midnight shift.

   
   

5. Shortly thereafter, Petitioner requested a shift change which was denied, and on November 5, 1990, he filed a grievance citing the institution's failure to approve his shift change. Mr. Locke, the Corrections Officer Supervisor, denied Petitioner's request for shift change because he was attempting to keep Petitioner away from cigarette smoke.

   
   

6. Before putting Petitioner on perimeter duty, Locke and his staff looked at all 156 security positions that could be filled by a CO1 and found that none would keep Petitioner away from smoke as well as a perimeter post. Most COI positions are dormitory officer positions and smoking is permitted in the dormitories. When the vacant day position for which Petitioner had applied was filled, it was filled with someone with more seniority that Petitioner.

   
   

7. Perimeter posts are located at each of the four corners of the facility. There is a truck parked at each for the guard to use, but during foggy weather, the guard is required to stand outside the truck in order to see and hear better. This procedure was established after Petitioner was assigned perimeter duty. Mr. Locke did not feel it was his responsibility to evaluate whether the change from recreation to perimeter duty was helping or hurting Petitioner's asthma condition. He only knew he had to find Petitioner a job which reduced his exposure to smoke and he did that. He did not believe it was his determination to make whether it worked or not was not.

   
   

8. As chief correctional officer at Mayo, Mr. Locke considers the perimeter posts as among the most important positions in the institution. They are the last line of defense between the convicted inmate and the public. Perimeter guards are the only armed guards at the facility. Guards are not routinely rotated to and from that position. Instead, changes come about as the result of a request for shift change. Some CO's have been on perimeter duty for a long time and don't want to change. Petitioner's request for change was not only of shift but of post as well. He wanted to change from a job which had Tuesday and Wednesday off to one which had Saturday and Sunday off. Until he was advised Petitioner could not enter a smoke filled environment, Mr. Locke had no reason to feel Petitioner could not perform any job. Only when he learned of Petitioner's problem with smoke were any restraints on his assignments considered.

   
   

9. DOC rule 22A-8.011 concerning medical excuses requires a doctor's excuse after the third day of an absence, but in the case of an employee who has a preexisting tendency to call in sick, local policy, provided for in the rule, calls for a doctor's excuse right away. This provision was applied not only to the Petitioner but also to several other officers who took a lot of time off. There was some suspicion among his supervisors that Petitioner might have been taking sick leave to get long weekends. Mr. Locke felt Petitioner was taking excessive time off, some of which, it appears, was not related to his illness.

   
   

10. To determine if this was true, in September, 1990, Mr. Davis asked Mr. Witt, the personnel manager at Mayo, to prepare a ledger of Petitioner's days off. The tally showed a disproportionate number of leave days were used immediately before and after Petitioner's scheduled days off of Monday and Tuesday over the preceding year. Including holiday leave, Petitioner had taken

    37.25 days off. Just after Witt put this information together, but before he had an opportunity to show it to Mr. Davis, Mr. Winburn brought up the issue of Petitioner's asthma and the doctor's note. Sometime later, Mr. Witt also defined Petitioner's time off during that portion of 1991 which he worked. Institutional records show he took 241 hours of authorized leave without pay and

    406.5 hours of unauthorized leave without pay. According to Witt, that is an exceptional amount of time off - more than Witt has seen taken by any other employee during his 9 years experience at Mayo.

    
    

11. Mr. Mathis, the institution Superintendent, cannot recall the exact date he became aware of Petitioner's asthmatic condition, The information was given to him by Mr. Witt who presented him with the doctor's note. As he recalls it, that note said Petitioner should be placed on 100 percent medical disability or in a smoke-free environment, and that further excessive exposure to cigarette smoke could cause permanent damage. When he got this information, Mr. Mathis directed Mr. Davis, his assistant, to come up with an appropriate assignment for Petitioner to get him out of harm's way. Davis, after consultation with Locke and others, recommended the perimeter post. Mathis also contacted Department officials in Tallahassee about the situation but did not contact the doctor for further input nor did he call in Petitioner to discuss the matter with him. Because he could not define the term "reasonably smoke free" as used by the doctor, Mathis chose to put Petitioner in a "smoke free" environment concluding this is what was called for by the terms of the medical note.

    
    

12. Before making this decision, Mathis had received the memorandum from Mr. Winburn to Mr. Witt which recommended making the recreation office a nonsmoking area. For several reasons, including the fact that the recreation office was just next to the canteen where cigarettes were sold, was too far removed from the office for adequate enforcement, was frequently visited by staff and inmates who were smoking, and because Winburn was a chain smoker, Mathis declined to follow Winburn's recommendation and agreed with that of Locke and Davis to place Petitioner on midnight shift perimeter duty. Petitioner was specifically told this was not to accommodate a medical disability but only to get him away from cigarette smoke until further information was received from his doctor. Though he did not speak directly with Petitioner, Mathis stated this in his letter to Petitioner advising him of the change.

    
    

13. Mr. Mathis did ultimately communicate with Petitioner's doctor. In one contact, Dr. Rawls noted that Petitioner "... has no specific limitations." Mathis did not interpret the doctor's comments about damage from exposure to smoke as being limited to only in an enclosed area. He considered there to be a contraindication to smoke exposure at all, and this is not an unreasonable interpretation, especially in light of the doctor's comments recommending 100 percent medical disability.

    
    

14. On January 1, 1991, Petitioner again called in sick. On January 24, 1991 he was instructed to bring a medical excuse from his physician but did not do so even after a second request on February 1, 1991. As a result, disciplinary action was taken.

    
    

15. In February, 1991, Mr. Mathis again contacted the doctor after the issue of cold night air came up. This happened after Petitioner filed his grievance about not getting a shift change. Petitioner's request to be assigned to the day shift with Saturdays and Sundays off was neither a request for reassignment nor transfer which are covered by Article 9 of the union contract. Instead, he was seeking a shift change and there is a separate procedure for

    that which he either was or should have been aware of. Shift changes are covered by Article 23 of the contract, but both Articles make reference to the needs of the agency, to seniority, and to employee preference, in that order.

    
    

16. In May, 1991, Petitioner was directed by the Superintendent to have a medical examination by a physician in Gainesville, Dr. Wynne, at the Department's expense to determine the nature and extent of his illness because Petitioner was not coming to work regularly. Doctor Wynne rendered his opinion that Petitioner suffered from "mild asthmatic bronchitis" which was well controlled by medications but that he could perform all the duties of a Corrections Officer, so long as exposure to cigarette smoke could be minimized. That same month, Petitioner again failed to report for duty and failed to notify his immediate supervisor prior to the intended absence.

    
    

17. On July 18, 1991, Mr. Witt sent a certified letter to Petitioner, who had been away from work since sometime in June, 1991, advising him to return to his duties or provide a certification of a medical reason to remain away. Petitioner had called in on July 16, 1991, indicating his attorney had recommended he ask for leave until his discrimination complaint was settled, but that he would be in on July 18, 1991 at the suggestion of Mr. Witt. Petitioner did not appear as indicated. With again wrote to him instructing him to come to work immediately and provide medical certification for his absences subsequent to June 27, 1991.

    
    

18. On August 9, 1991, Mr. Mathis notified Petitioner by certified mail that disciplinary charges had been prepared alleging excessive absences, absence without authority, and failure to follow written and verbal instructions, and that these charges could result in his being dismissed as of August 26, 1991. This action was based on repeated prior notifications in writing by management to Petitioner concerning the absentee problem as evidenced by the memorandum prepared in June and July, 1991.

    
    

19. On August 19, 1991, Petitioner, through counsel, formally requested leave without pay until resolution of his charge of discrimination filed with the Commission. This was supported by a letter from Petitioner's physician dated August 13, 1991 citing stress at work resulting in depression coupled with asthma. Nonetheless, by letter dated August 30, 1991, Petitioner was dismissed from employment with the Department as of that date. The bases for dismissal were those matters cited in Mr. Mathis' letter to Petitioner of August 9, 1991.

    
    

20. Department Rule 33-20.001 makes all indoor areas used for common purposes nonsmoking areas unless otherwise designated. In September, 1990, dorms, common inmate areas (except CO work stations), and offices used by smokers at Mayo were designated as smoking areas. Nonsmoking areas included medical and food preparation areas, transfer vehicles, and some others. The choice of designating an area as either smoking or nonsmoking is up to the head of the department using it. Therefore, if Mr. Winburn wanted to make the recreation office a nonsmoking area, he could have done it.

    
    

21. The Department has a policy that all COs must be able to perform all CO assignments. Mr. Mathis wrote to Dr. Rawls asking when he felt Petitioner could be assigned other work without reference to a smoking restriction. It was not Mathis' intention to keep Petitioner on perimeter post indefinitely. Petitioner could have been assigned to other areas away from smoke such as the medical section, the control room, or medical escort duties, but he never applied for any of those positions when they were open. At the time of the doctor's note, only the perimeter post was open and as a result, Petitioner was

    assigned there. Had he applied for another post when one came open, he would have been considered for it.

    
    

22. Petitioner's request for transfer to a different shift on perimeter was denied because under the contract the Department had with the union, the opening had to go to Mr. Hawkins who was senior to Petitioner. There are several other reasons listed in the contract for restricting the duty assignment of COs. Included are nepotism, the prohibition against female officers working alone in dormitories, and illness, and there is also a provision for alternate duty for COs who have been injured in the line of duty. All are legitimate.

    One of the considerations in assigning Petitioner to perimeter duty was the potential liability to the state if he were not moved, in light of the doctor's comments about his condition.

    
    

23. Petitioner relates he was first diagnosed as having asthma when he was

    9 years old. Nonetheless, he played all sports without difficulty as a youth. He indicates his attacks now are brought on by tobacco smoke and other materials such as dust, chemicals, and vehicle fumes. When an attack comes on, he uses an inhaler and takes prescription medications. With it all, he does not voluntarily restrict his activities because of his condition and periodically enters buildings where smoking is allowed. Sometimes it triggers an asthma attack and sometimes it doesn't.

    
    

24. Mr. Dunwoody started working at Mayo in 1985 as a dormitory relief officer with Sundays and Mondays off. Smoking was permitted in the dormitories and it was sometimes irritating to his condition. Nevertheless, he stayed in that job until, at his own request, he was transferred to the recreation section so he could be away from the smoke. His early ratings showed he either achieved or exceeded standards, but in 1987 he received a rating which referred to excess leave due to family illness. In that regard, he indicates, his daughter has cystic fibrosis.

    
    

25. While at recreation, Petitioner worked both the 8 - 4 and the 12 - 8 shifts. He was outdoors most of the time when the weather was good. He worked with 2 officers and at least 3 inmate clerks. Nobody would smoke when he was around in deference to his condition. He claims to have gotten along "great" with Mr. Winburn. He was also trained for the institution's confrontation team but was taken off that duty because of the potential conflict his asthma might cause. He did not file a handicap discrimination complaint because of that action.

    
    

26. In September, 1990, after a bout with asthma, he went to see Dr. Rawls, by whom he has been treated since childhood, who told him he should either get a job in a smoke-free environment or a 100 percent disability. At first, Petitioner did not report this to Mr. Winburn for fear he would be removed from recreation because of it. When he did give the note to Winburn, about a week later, Winburn took it to Mr. Davis with the recommendation for a smoke free status in recreation. Petitioner was happy about that. However, on October 10, 1990, he got the letter from Mr. Mathis stating he was being moved to a perimeter post. At first, he didn't know which post it would be. Only when he went to work on the follow Saturday, October 13th, was he told to come back that night as he was to be on the night shift.

    
    

27. On his way out of the building, he saw Mr. Mathis who at first said he was too busy to talk. However, when he saw Mathis again shortly thereafter, Petitioner asked him about the letter and Mathis replied there should be no smoking "out there" without further explanation. Petitioner did not report for

    duty that night because he was "mentally not functioning." When he did come in at midnight on October 18, 1990, he was told where he was going to be posted.

    
    

28. On October 29, 1990, because he had noticed an opening on a day shift, Petitioner submitted a request for a shift change from the midnight shift to the day shift to his immediate supervisor, Lt. Fales. Fales indicated he would approve it only if he got a replacement for Petitioner. When the response came through several days later, Petitioner found his request had been denied for "medical reasons" but he was never given any further explanation. On November 5, 1990, he filed a grievance for the failure to approve his request for shift change. During the meeting on the grievance Petitioner had with Mr. Davis, he was told the shift he had applied for was not available because the slot was to be filled by another CO with more seniority. This was true.

    
    

29. Petitioner objected to the assignment to perimeter duty for several reasons. First, he felt it was an entry level position and his five years of experience as a CO merited a higher level position. Second, it was isolated. Compounding that was the fact he was prohibited from even entering the compound while on duty except to go to the security building and the medical facility. To his knowledge, he was the only CO on whom these limitations were imposed and when he asked a supervisor why this was done, he got no answer. He felt this

    placement diminished his status and reputation among his fellow COs, limited his promotion potential, and, though he never was reduced in pay, he considered it as a demotion.

    
    

30. He also discussed with Lt. Fales, one cold night when Petitioner was not feeling well, the problem he was having regarding the cold night air. Fales sent him to the clinic but would not let him go home because he was operating on minimum compliment. Fales called the nurse who indicated Petitioner's temperature, pulse and respiration were all within normal limits, and when Petitioner got back and Fales told him what the nurse had said, he began to argue and had to be ordered back to work. The verbal altercation which transpired was memorialized by Fales in an incident report dated January 3, 1991. The following day, Mr. Locke gave Petitioner a memorandum noting his frequent absences and outlining the req uirements imposed to monitor his further absences. At that time he had an opportunity to discuss the matter with Mr. Locke but did not do so because Locke "looked to be very busy."

    
    

31. Petitioner was hospitalized during December, 1990 for 5 days. Between December 14, 1990 and January 2, 1991, he was on leave without pay for 108 hours, and on January 2, 1991, he was released for return to duty by Dr. Martin at the Tallahassee Neurological Clinic. On January 21, 1991, he called in sick. On January 24, 1991, he was instructed by Lt. Funderburk to bring in a medical certificate from his doctor outlining his condition and the reason for his absence. On February 1, 1991, when he had failed to bring it, he was again requested to bring in the certificate but as of February 5, 1991, had not done so. At that time, Funderburk filed an incident report pertaining to the matter.

    
    

32. Petitioner claims that at no time did Mr. Mathis, Mr. Davis or Mr. Locke speak with him about his medical condition and neither did Mr. Witt until he requested a leave of absence in the summer of 1991. On June 24, 1991, Petitioner failed to report for duty on to call in in advance as required. When he finally called, almost 1 1/2 hours late, he indicated he did not know when he could report and explained his tardiness as well as his absence on June 23, 1991 as being because he "did not feel good." This incident resulted in the filing of an incident report.

33. Petitioner also contends that the perimeter post afforded him no relief since factors other than smoke were equally as devastating to his condition. The cold night air, heat depending on season, the smell of insect repellant, the engine fumes from the vehicle he had to sit in, all negatively impacted him. He claims it was worse than being in the recreation area from which he would periodically enter the dormitories to use the bathroom. While the smoke in the recreation office bothered him, at no time did the smoke in the dormitory do so. Therefore, Petitioner does not accept the agency excuse that he could not be given a post inside the perimeter because he might have to go into smoking areas at times. He further asserts his belief that his attendance record could have improved if his disability had been reasonably accommodated.

    
    

34. Petitioner resented being prohibited from entering the compound except for the security and medical buildings. He knows of only two other COs who faced the same restrictions, and both were under a disciplinary cloud at the time. He disagrees with the contention it would be hard to make the recreation office nonsmoking. The inmates knew of his reaction to cigarette smoke, he claims, and, historically, would extinguish their cigarettes when they saw him coming.

    
    

35. Petitioner attributes his attendance problems to the change in his posting from the recreation center to the perimeter and the loss of his grandmother at just about the same time. He could not get used to working nights, and the conditions on the perimeter post combined to create a problem for him. Nonetheless, in February and March, 1991, his attendance improved, but in April his problems got the best of him and he admitted himself to the Tallahassee Psychiatric Clinic. He was drinking and, at one point, using cocaine. However, at no time did he ever ask to participate in the institution's Employees' Assistance Program designed to assist troubled employees with getting help for their problems. This program is designed to deal with alcohol, drug, family and work problems, not disabilities. While claiming his posting to the perimeter and the conditions there caused his deterioration, he admits he was not required to do anything more than was required of any other CO on perimeter duty.

    
    

36. When Petitioner was first hired at Mayo, he listed his asthma condition on his application but did not claim it as a disabling handicap condition. Notwithstanding his claims that his attendance problems commenced with his posting to the perimeter, at least one earlier performance report during the periods 1983 to 1984, and 1986 to 1987 reflected he was counselled about attendance and leave problems.

    
    

37. Petitioner denies that his sick days on Saturdays and Sundays were timed to get long weekends. He claims his repeated absences were due not only to asthma but also to the depression he was experiencing because of his working conditions. He admitted himself to the Tallahassee Psychiatric Clinic for 10 days or so in April, 1991 where he was treated by Dr. Chockhwala and Mr. Edwards, a psychiatrist and psychiatric social worker, respectively. Doctor's notes for that time reveal Petitioner felt his work problems were racially motivated and his assignments were punishment for being assertive about his asthma condition.

    
    

38. In August, 1991, Dr. Chockhwala, in his report to Mr. Mathis, noted the combination of stress, asthma and depression and recommended Petitioner be placed on indefinite leave," until his stamina returns, he is reassigned to a less stressful situation, when the weather changes, or he can be placed at another facility."

39. On August 9, 1991, by certified mail, Mr. Mathis advised Petitioner of his right to attend a predetermination conference relative to his absences and the proposed agency action. Though the Mathis letter indicated disciplinary action would be taken on August 26, 1991 if Petitioner did not request a conference, at hearing Petitioner treated the matter as though he had been directed to attend a conference on a day certain and failed to attend because he was sick that day. At some point in that period, Petitioner contacted Mr. Witt who advised him the agency planned to proceed with action based on the record available.

    
    

40. Petitioner claims that though he wants to be reinstated as a CO, he would not want to work at Mayo even though he felt support from his fellow COs.

    
    

41. According to Hal Johnson, General Counsel to the Florida Police Benevolent Association and chief negotiator for the union in its collective bargaining with the Department of Corrections, reassignments are covered by Articles 9 and 23 of the contract. Article 9 defines a reassignment as moving an employee from one position in a class to another position in the same class or to a different position in a different class. Article 23 indicates that where practicable, shift transfers and days off will be assigned with due regard to the needs of the agency, seniority, and employee preference.

    
    

42. Article 9 also provides that a vacancy should be filled with the employee who has the most seniority in the class and who has a request for that vacancy on file. Other factors, such as work history, affirmative action goals, and employee preference can also be considered. While the agency has a great deal of discretion in assignments it must articulate a legitimate reason to fail to honor a request for transfer or to involuntarily reassign a person to another position.

    
    

43. According to Dr. Randolph A. Malone, IV, a Board certified allergist and immunologist, cold air will flare, (trigger), asthma attacks but will not worsen the condition over a long period. In mild cases of asthma, the patient usually has a mild shortness of breath and a cough. The symptoms are self- limiting. Symptoms tend to be worse at night. As the condition gets more severe, the symptoms appear more frequently and the patient may get an upper respiratory infection. The patient then suffers symptoms on a daily basis to include inflammation and obstruction of the air passage. At this point, after a time, the patient feels terrible and experiences chest tightness, decreased energy and increased fatigue, and has more severe reactions to colds and other respiratory ailments.

    
    

44. An asthmatic is hypersensitive to various irritants and should not be continually exposed to them. However, asthmatics are not respiratory cripples who need to be completely sheltered from exposure to such irritants as cigarette smoke; though they should not stay for prolonged periods with smokers in a room that did not have adequate ventilation. Asthma can also be triggered by emotions.

    
    

45. Review of Petitioner's medical records generated by Dr. Wynne in Gainesville indicate to Dr. Malone that Petitioner has chronic, moderate asthma with a tendency to severe flares. In his opinion, the old recreation office, where Petitioner was working, with a chain smoker present, would not be an appropriate place for an asthmatic. The perimeter post, as described by counsel in his hypothetical, however, would be a reasonable work environment, if not optimal. The cold or dust encountered could flare Petitioner's asthma, and at

    those times he would have to take additional medication, but it would probably not make his condition chronically worse as cigarette smoke would. Cold dry air is the worst combination for an asthmatic. Normally, the higher the humidity is, the better it is for the asthmatic. Cigarette smoke is the worst trigger.

    
    

46. The psychiatric social worker who saw Petitioner in conjunction with Dr. Chockhwala, Gerald Edwards, took over the therapy sessions after the initial visit with the doctor on January 22, 1991, and saw Petitioner four times thereafter. He determined that Petitioner suffered from dysthymia, a form of chronic depression, the onset of which extends over a period of several years. In his therapy with Petitioner, Mr. Edwards identified the problems in Petitioner's life and tried to set goals with him to allow Petitioner to get through this period. Petitioner's problems included family matters and job related stress and a lack of self esteem. Working together, they tried to get Petitioner into another line of work and back into school. After the fourth visit, Petitioner chose not to continue the therapy.

    
    

47. However, Mr. Edwards saw Petitioner again in October, 1992 at which time he was completely different than he had been previously. Petitioner was energetic, animated, smiling, and free to express himself much better. He was enrolled in school, had another part time job, was planning to move from his prior home town, and had custody of one of his children. He felt good about life and could, in Mr. Edwards' opinion, successfully hold down a full time job.

    
    

48. Mr. Edwards concluded that much of Petitioner's original work problem was that he could not get a job in a smoke free environment inside the compound where he preferred to be. Petitioner felt he had been denied promotion and discriminated against because of his race.

    
    

49. The issue of racial discrimination in employment practices at Mayo subsequently was treated in a study conducted by Dr. Edgar A. Fresen, an economist with a concentration in labor economics. This study of CO employment terminations at Mayo from January, 1985 through September, 1992, was based on employment records submitted by the Respondent and was conducted on behalf of the Petitioner.

    
    

50. Dr. Fresen concluded in his study that terminations during the referenced period were not neutral with respect to race. He asserts his tests indicated, beyond a 99 percent level of confidence, that terminations of minority employees far exceeded a racially unbiased incidence projection. In his study, Dr. Fresen examined the racial composition of Corrections Officers I and II utilizing both a 13 percent and 14 percent benchmark. The 14 percent benchmark resulted in a 99.79 percent level of confidence and the 13 percent benchmark increased the level of confidence to 99.87 percent. The analyzed data, he concluded, strongly supported the inference that race is a factor which influenced Respondent's decisions on discharges.

    
    

51. Another study was conducted thereafter regarding the same subject matter, on behalf of the Department, by Dr. Michael J. Piette, also an economist and Senior Vice President/Economist with Economic Research Services, Inc. He specializes in labor, industrial organization and antitrust, and economics of the financial services industry. Dr. Piette found several problems with the methodology employed by Dr. Fresen in his study, objecting specifically to Fresen's combining COIs and COIIs in a binomial analysis on the basis that the two groups are different in responsibility and in terms of time in the system which affects the likelihood of their termination. He also objected to the method of selecting and using benchmarks, indicating the levels used by Fresen

    were artificially low, which increased the chance of finding a significant difference in terminations between white and "minority" employees. A third problem found by Dr. Piette relates to the data utilized by Dr. Fresen in his analysis. Piette claims this data did not include all involuntary resignations during the relevant period, while this type of resignation is often used in lieu of termination as the result of investigation into misconduct.

    
    

52. Dr. Piette's analysis of the available material contends that once the process includes all involuntary resignations, examines COIs only, and uses an appropriate comprehensive benchmark, the same statistical test used by Dr. Fresen indicates there are no statistically significant differences in the termination rate at Mayo with regard to race. He found no evidence of racial patterns in Mayo's termination decisions and concluded race was not a factor.

    
    

53. Dr. Fresen then submitted an affidavit in opposition to Dr. Piette's analysis, in which he cites numerous grounds for discrediting it. This dispute could be carried on indefinitely with neither expert conclusively proving his point. While neither analysis is considered to be determinative of the factual issue of whether Petitioner was improperly discharged on the basis of his race or handicap, Dr. Piette's analysis is found to be more probative of the issue treated.

    
    

54. Subsequent to the hearing and the filing of the above materials, Petitioner filed a Motion in Limine to exclude the report of Dr. Piette on the basis that Piette relied in his analysis on basically unreliable and improperly obtained evidence. Petitioner is correct in his legal position that an expert may not rely on unreliable and improperly obtained evidence. However, the original opinion evidence and the supporting affidavits thereto and to the Motion and Response, clearly indicate that both experts used basically the same material obtained from basically the same source. Taken as a whole, little valid objection can be found to Dr. Piette's presentation and the Motion in Limine is denied.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

56. Section 760.10(1)(a), Florida Statutes, makes it an unlawful employment practice to discriminate against any person because of such person's race, color, religion, sex, national origin, age, handicap or marital status. Here Petitioner has claimed Respondent discriminated against him when it discharged him from employment because of his race and his handicap.

    
    

57. Petitioner has the initial burden of proving a prima facie case of discrimination, McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). The Florida Commission on Human Relations has adopted this evidentiary model, Kilpatrick v. Howard Johnson Co., 7 FALR 5468, 5475 (FCHR 1985).

    
    

58. Once the Petitioner has proven all the elements necessary to establish a prima facie case, the employer must then articulate some legitimate, nondiscriminatory reason for the employment decision to allow the trier of fact to conclude the employer's action had not been motivated by a discriminatory mind set.

59. In this case, Petitioner also has the initial burden to establish a prima facie case of handicap discrimination and in order to successfully do that, he must show that (1) he is handicapped; (2) he performed or is able to perform his assigned duties satisfactorily; and (3) he was terminated despite his satisfactory performance, McDonnell Douglas, supra.

    
    

60. The pertinent Florida statute does not define the term, "handicap." Therefore, in assessing this issue, one must rely upon the decisions of the Commission, and handicap has been defined by the Commission, in accordance with common usage, as a condition that prevents normal functioning in some way. A person with a handicap does not enjoy in some measure the full and normal use of his sensory, mental, or physical faculties. See Thomas v. Floridin Company, 8 FALR 5457, (1986).

    
    

61. The evidence shows that Petitioner, an African American male, had been employed by the Respondent, Department of Corrections, since 1983; and at the Mayo Correctional Institution, basically without incident, since May, 1985, save for one prior evaluation comment regarding excessive absences. At first he worked as a Corrections Officer in one of the dormitories but subsequently asked for and received a transfer to the recreational department because such an assignment would afford him the opportunity to be outside most of the time and away from tobacco smoke.

    
    

62. Petitioner's immediate supervisor in recreation, Mr. Winburn, was a chain smoker, and during inclement weather, other staff personnel and inmates, many of whom smoked, would congregate in the recreation office. Recognizing Petitioner's condition, Mr. Winburn allowed him to work outside as much as possible. However, Petitioner's condition appeared to have progressively worsened, and in September, 1990, Petitioner went to see his longtime family physician, Dr. Rawls, about it and thereafter presented Mr. Winburn with a physician's statement. This statement indicated Petitioner either should be provided with a smoke free work environment or given a 100 percent disability. At this point, Mr. Winburn, in an effort to accommodate Petitioner's condition, proposed to the installation management, that the recreation office be made a nonsmoking area. DOC policy provides that all work areas should be nonsmoking unless specifically determined otherwise by local officials. Winburn's efforts in Petitioner's behalf were consistent with Departmental policy.

    
    

63. Notwithstanding Mr. Winburn's recommendation, the installation management chose to place Petitioner in an outside perimeter post on the night shift, with midweek days off. The reason given for this action was that it was the only way to insure that Petitioner was in a smoke free environment. There is also some reason to suspect another motivation might have been to avoid the potential for placing Petitioner on a 100 percent disability as suggested by his doctor, but this cannot be clearly established. In any case, it would appear, from other evidence subsequently developed, that such an extreme measure was not medically necessary. Medical evidence from physicians who saw Petitioner at the request of the Department and who reviewed the doctors' notes prepared by other physicians who saw him, indicates his condition did not require absolute freedom from smoke but merely a lack of constant exposure to it. It would appear, therefore, that the reassignment was unnecessary from a medical standpoint but there is no evidence it was motivated by race or any other inappropriate basis.

    
    

64. It is at this point that Petitioner's employment difficulties begin to accumulate. After several months on perimeter duty, during which, Petitioner claims, his asthma condition worsened due to other irritants to which he was exposed there, Petitioner applied for a change of assignment from night

    perimeter duty with midweek days off, to an open day shift perimeter post. This requested reassignment was denied Petitioner and the requested post given to another Correctional Officer who had been transferred from public works duties and who was senior in time of service to the Petitioner. This choice is completely consistent with the terms of the union contract governing working conditions to which the institution and Petitioner were both subject.

    Petitioner filed a grievance regarding the failure to change his assignment, but the grievance was properly denied.

    
    

65. With but a few months exception during February and March, 1991, from the time Petitioner was assigned to the perimeter post, his absenteeism record was less than satisfactory. Between October 14 and December 28, 1990, he was absent from work 28 days, including 10 days over the holiday period. Petitioner was hospitalized some portion of that time in December, 1990. In calendar year 1990, he use in excess of 400 hours of leave, in addition to 182 hours of leave without pay. He was counseled about his absenteeism on several occasions including by in depth memorandum. His absenteeism continued, however, and he failed to comply with supervisors' instructions to provide a proper medical excuse therefor. During that period, the institution implemented a policy requiring all perimeter officers to remain outside their vehicle during those times when visibility was impaired in an effort to insure officers could better hear attempted escapes even if they could not see them. This policy applied to all perimeter guards, not merely to Petitioner. Petitioner did not, at that time, present any medical information indicating the night air was aggravating his condition, and the medical testimony presented at hearing did not conclusively so indicate.

    
    

66. Petitioner admitted himself to a psychiatric clinic in early April, 1991, where it was determined he was suffering from depression brought about, at least in part, from the stress of his job where, he believed, his treatment was racially motivated. When he discharged himself and returned to work, he was sent for medical evaluation at state expense to Dr. Wynne, a pulmonary specialist, whose professional opinion was that Petitioner could perform all the duties of a corrections officer so long as his exposure to cigarette smoke was minimized.

    
    

67. Based on the state of this evidence, then, it cannot be concluded that Petitioner has satisfied his initial burden of establishing a handicap. To be sure, he had an asthmatic condition which was aggravated by cigarette smoke, but, except for the initial comment of Dr. Rawls relating to total freedom from cigarette smoke or, in the alternative, a 100 percent disability, an opinion not supported by the other evidence, there is no real demonstration that Petitioner could not perform his duties as a result of his condition so as to be classified as handicapped.

    
    

68. The evidence also indicates that Petitioner never returned to work after his examination by Dr. Wynne. Though he was in contact with institution officials and inquired about an extended leave of absence, he neither complied with the instructions given him about returning to work before that issue was addressed, nor provided the requested medical information to support his position, and in mid July, 1991, was issued a written reprimand because of his continuing absenteeism. Even after that action, Petitioner, when on August 1, 1991 was advised to return to work because additional leave would not be authorized, still, without authority, failed to report. This additional misconduct, a continuation of a well documented continuing course of misconduct, resulted in the notice to Petitioner, on August 9, 1991, that he should return to work or face possible dismissal.

69. Even in the face of that very real threat, Petitioner still refused to report to work, submitted a request for additional leave without pay, and refused to attend the predetermination conference on his employment status of which he was advised toward the end of August. On August 30, 1991, Petitioner, who had failed to take advantage of the opportunity given him to meet with the institution Superintendent in a last-ditch effort to reconcile the differences and maintain his employment, was discharged from employment as a corrections officer at Mayo. The basis for this action was stated as excessive absenteeism, absence without authorized leave, and failure to follow oral and written instructions to report of provide medical justification for not doing so.

    
    

70. Petitioner asserts that his assignment to perimeter duty and his exclusion from any building within the compound except security and the medical facility were demeaning to him, restricted his chances for promotion, were unnecessary and unrelated to his condition, and were racially motivated as well as retaliatory While case law indicates assignment to a perimeter post can be a retaliatory act, it is not necessarily so. Petitioner does not allege any action on his part which would form the basis for retaliation, and it can only be assumed he refers to the fact that he brought in a doctor's statement suggesting a smoke-free environment. At worst, the position change after the medical note was an overreaction, possibly based on the doctor's reference to

    100 percent disability. Assuming, arugendo, the reassignment to that post and the additional exclusion were medically unnecessary, there is no showing those actions were retaliatory, racially motivated or based on handicap. (cf. Sefsick

    v. Department of Corrections, DOAH Case Nos. 87-5347 and 88-0663) The issue of race was addressed in the instant hearing as it pertains to separation, not reassignment. The issue of handicap is not valid since the change related not to duties but to place of performance and this did not meet the legal criteria.

    
    

71. A main thrust of Petitioner's argument in this case relates to racially motivated discrimination. He has submitted a statistical analysis of employees dismissed by Respondent or who resigned involuntarily at Mayo to support his claim of racial discrimination. In cases of this nature, utilizing the disparate impact theory, racial discrimination can be shown by showing that a normal employment practice, usually considered neutral, had a disproportionate adverse impact on a protected group because it is not justified by a legitimate business goal.

    
    

72. Proof of class-wide discriminatory treatment generally requires the use of statistical evidence. The courts have held that such evidence is often a telltale sign of purposeful discrimination, International Brotherhood of Teamsters v. United States, 431 U.S.324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). However, for the very reason that statistics have such a compelling probative nature in discrimination cases, they must be relevant, material and meaningful and, therefore, in cases alleging individual disparate treatment, are not necessarily controlling. This is especially so when the employer can show a legitimate, nondiscriminatory basis for its action.

    
    

73. In any case, the law is clear that when statistical disparity is an issue, the courts should be extremely cautious in using statistics. The statistical conclusions must be shown to be based on complete, correct and reliable underlying data. It has also been held that the size of sample has an effect on the accuracy of the conclusions. The smaller the size of the sample, the greater the likelihood the under-representation represents chance rather than discrimination. Williams v. Tallahassee Motors, 607 F.2d 689, 693 (5th Cir. 1979). In this case, the sampling utilized by Petitioner's expert, Dr.

    Freden, is extremely small; that by Respondent's, is not much better. For these reasons it was found herein that the statistical surveys by both experts were of little probative value.

    
    

74. From the evidence as a whole it is clear that Petitioner was discharged from employment at Mayo Correctional Institution because of his excessive absenteeism and his misconduct, not because of a handicap, racial discrimination, or in retaliation for exercising a right.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that Petitioner's Petition for Relief from a discriminatory employment practice alleging discrimination on the basis of race and handicap, and retaliation by the Department of Corrections be denied.

RECOMMENDED this 24th day of February, 1994, in Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 24th day of February, 1994.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-2475

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

FOR THE PETITIONER:

1. Accepted and incorporated herein.

2. - 6. Accepted and incorporated herein.

7. - 17. Accepted and incorporated herein.

18. - 22. Accepted and incorporated herein.

23. - 33. Accepted and incorporated herein.

34. & 35. Accepted and incorporated herein.

1. Accepted but modified by the additional recommendation that if this could not be done, Petitioner be given a 100 percent disability.

2. Accepted and incorporated herein.

3. -& 39. Accepted.

40. - 44. Accepted.

45. - 49. Accepted and incorporated herein.

1. Accepted.

2. - 56. Accepted and incorporated herein.

1. Accepted.

2. - 189. Not Findings of Fact but comments on the testimony.

190. Not a proper Finding of Fact but a comment on the quality of the evidence. The ultimate conclusion regarding the establishment of discrimination is not supported by a preponderance of the evidence.

FOR THE RESPONDENT:

1. - 3. Accepted and incorporated herein.

4. - 6. Accepted and incorporated herein.

7. - 9. Accepted and incorporated herein.

10. & 11. Accepted and incorporated herein.

12. - 14. Accepted and incorporated herein.

1. Accepted and incorporated herein.

2. Accepted and incorporated herein.

3. & 18. Accepted and incorporated herein.

19. & 20. Accepted.

1. Accepted and incorporated herein.

2. & 23. Accepted and incorporated herein.

1. Accepted.

2. Accepted and incorporated herein.

3. & 27. Accepted.

1. Accepted and incorporated herein.

2. & 30. Accepted and incorporated herein.

1. Accepted.

2. - 38. Accepted and incorporated herein.

1. Accepted and incorporated herein.

2. & 41. Accepted.

42. - 48. Accepted and incorporated herein.

49. & 50. Accepted.

COPIES FURNISHED:

Mary C. O'Rourke, Esquire

1. W. College Avenue Tallahassee, Florida 32301

   
   

   Ernest L. Reddick, Esquire Department of Corrections 2601 Blairstone Road

   Tallahassee, Florida 32301

   
   

   Dana Baird General Counsel

2. John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Sharon Moultry, Clerk Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 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 consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.

Docket for Case No: 92-002475

Orders for Case No: 92-002475