ROSE E. BLAKE, )
vs. ) Case No. 92-3575
Respondent. )
Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on August 21, 1992, in Clearwater, Florida. The following appearances were entered:
For Respondent: Ronald W. Stutzman
Whether Respondent wrongfully failed or refused to hire Petitioner because of her physical handicap, obesity, if she was otherwise qualified, in violation of Section 760.10(1)(a), Florida Statutes.
Petitioner timely filed a Charge of Discrimination with the Community Relations Division of the City of Clearwater and also with the Florida Commission on Human Relations on July 26, 1991. The matter was deferred to the City and following action by the Community Relations Division, this matter was referred to the Division of Administrative Hearings for formal hearing on June 5, 1992. Following discovery, this hearing was held.
At the hearing, Petitioner called one witness, testified in her own behalf and introduced five exhibits in evidence. Respondent called two witnesses, and the Petitioner as an adverse witness, and offered seven exhibits in evidence.
The transcript was filed with the Clerk of the Division on September 14, 1992. Neither party filed proposed findings of fact or conclusions of law.
Petitioner, Rose E. Blake, at all time relevant, is a Certified Nurses Assistant in the State of Florida. In the summer of 1991, Petitioner was a 45 year old female, whose height was 5 feet, 4 inches and she weighed in excess of
250 pounds.
Respondent, Sunset Point Nursing Home, is a health care facility that provides nursing home care for patients, and employs more than five employees.
On March 11, 1991, Petitioner completed an application for the position of Nurses Aide at Respondent's facility. Petitioner's employment application made no claim of "handicap" of obesity or otherwise. Prior to being interviewed, Petitioner withdrew her name from consideration, and accepted a position at another health care facility.
On July 11, 1991, Petitioner contacted Respondent's personnel department, and asked that her application for the nurse's aide position be reactivated. They did so and Petitioner was interviewed for a position on July 15, 1991.
On July 15, 1991, she was informed that she was accepted for the position of nurse's aide, but would be required to undergo pre-employment orientation and a physical examination before she could start work in the next few days.
On July 16, 1991, she went through a two hour orientation training at Respondent's facility which was conducted by Respondent's staff.
On the same day, July 16, 1991, Petitioner underwent a physical examination at the office of a Dr. Johnson, a physician that Petitioner was referred to at Lakeside Medical Center.
On the following day, after receiving a message from the physicians office, Helen Mills, Respondent's Assistant Director of Nursing, talked with Dr. Johnson on the telephone. After performing a physical examination, he recommended against hiring Petitioner on the basis that she was susceptible to developing low back problems, due to her obesity.
Based on this conversation alone, Mills called Petitioner, and withdrew her offer of employment at Respondent's facility as a CNA.
The position of CNA is physically very demanding. A CNA is required to lift patients, transfer them from bed to chair, bed to bathroom, bed to wheelchair. There is a great deal of stooping, bending, and lifting involved throughout a CNA's shift. A CNA is also required to feed patients, turn and position them in their beds. A CNA is also required to be on their feet constantly throughout her shift.
Petitioner had successfully performed the functions of a CNA for 27 years, with the last ten years having been certified by the State of Florida.
During this period of time, Petitioner has weighed in excess of 200 pounds, and her weight has not impaired her functioning successfully as a CNA.
There was no expert medical evidence offered to establish whether Petitioner's obesity is endogenous (metabolic) or exogenous (caused by overeating). There was no competent evidence offered upon which to find Petitioner's obesity is physiological in origin or that it is permanent.
Petitioner did not offer evidence to show damages.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes.
The Petitioner contends that the Respondent unlawfully failed, or refused to hire her, because it unlawfully discriminated against her due to her handicap, or perceived handicap. The petitioner relies on the Pinellas County Ordinance 84-10, as adopted by the City of Clearwater, Florida which is patterned after the Florida Human Rights Act of 1977, Section 760.10, et seq., Florida Statutes (1991).
Pinellas County Ordinance No. 84-10, adopted April 24, 1984, and entitled "Human Rights," codified at Chapter 2-17.5, Pinellas County Code, prohibits discriminatory practices by employers. Pinellas County Code, Section 2-17.5-3(A)(1), states:
It is a discriminatory practice for an employer to:
Fail or refuse to hire, discharge or otherwise discriminate against an individual with respect to compensation or the terms, conditions or privileges of employment because of . . . handicap; or
Limit, segregate or classify an employee in a way which would deprive or tend to deprive an individual of employment opportunities or otherwise adversely affect the status of an employee because of
. . . handicap."
Pinellas County Code, Section 2-17.5-2(H), the definition section, states:
Employer means a person who employs five or more employees for each working day in each of thirteen or more calendar weeks in the current or preceding calendar year and any agent of such a person, but such term does not include the United States or a corporation wholly owned by the U.S. Government, an Indian tribe, a private membership club, or the
State of Florida. See Pinellas County Code, Section 2-17.5-2.(H).
A "person" under the Ordinance means one or more individuals, partnerships, associations, corporations, legal representatives, trustees, trustees in bankruptcy or receivers. Pinellas County Code, Section 2-17.5- 2.(R).
The language and purpose of this Ordinance are the same as those of Chapter 760, of the Florida Statutes. It applies to employers with a smaller number of employees than the state or federal law. As such, it is appropriate to construe this local Ordinance in light of the cases interpreting the state human rights statutes. See: Byrd v. Richardson-Greenshields Securities, Inc., 552 So.2d 1099 (Fla. 1989).
The Human Rights Act of Florida prohibits certain specified unlawful employment practices and provides remedies for such violations. That statute provides, in pertinent part, as follows:
760.01 PURPOSES, CONSTRUCTION; TITLE
***
The general purposes of Section 760.01-760.10 are to secure for all individuals within the State freedom from discrimination because of race, color,
religion, sex, national origin, age, handicap, or marital status and thereby to protect their interests in personal dignity, to make available to the state their full productive capacities, to secure the state against domestic strife and
unrest, to preserve the public safety, health and general welfare, and to promote the interests, rights, and privileges of individuals within the state.
Section 760.01-760.10 shall be construed according to fair import of its terms and shall be liberally construed to further the general purposes stated in this section and the special purposes of the particular provisions involved.
***
760.10 Unlawful employment practices; remedies construction
It is an unlawful employment practice for an employer:
To discharge or to fail or refuse to hire
an individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges or employment, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.
In Department of Corrections v. Chandler, 581 So.2d 1183 (Fla. 1st DCA 1991), the court analyzed the types of claims under the Florida Human Rights Act. In that case, the court noted as follows:
Pertinent federal case law discloses two means by which a discriminatory employment claim may be tried. The first, . . ., by showing disparate treatment,
and the second, by showing discriminatory impact. When employing the former, a claimant must establish an employer's intentional discrimination, however, as to the later, intentional discrimination is not required, and the claimant essentially challenges practices which are fair in form but discriminatory in operation. [citations omitted] Id. at 1821 n.2
The Petitioner in this case has sought to establish a disparate treatment claim. The Chandler court delineated the procedure for establishing a disparate treatment claim. The Court held as follows:
. . . The United States Supreme Court set forth
the procedure essential for establishing such claims in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(3 S.Ct. 1817, 36 L.Ed. 2d 668 (1973), which was
then revisited in detail in Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Pursuant
to the Burdine formula, the employee has the initial burden of establishing a prima facie case of intentional discrimination, which once established raises a presumption that the employer discriminated against the employee. If the presumption arises, the burden shifts to the employer to present sufficient evidence to raise a genuine issue of fact as to whether the employer discriminated against the employee. The employer may do this by stating a legitimate, nondiscriminatory reason for the employment decision; a reason which is clear, reasonably specific, and worthy of credence.
Because the employer has the burden of production, not one of persuasion, which remains with the employee, it is not required to persuade the trier of fact that its decision was actually motivated by the reason given. If the employer satisfies the burden, the employee must then persuade the fact finder that the proffered reason for the employment decision was pretext for intentional discrimination. The employee may satisfy this burden by showing directly that a discriminatory reason more likely than not motivated by the decision, or indirectly by showing that the proffered reason for the employment decision
is not worthy of belief. If such proof is adequately presented, the employee satisfies his other ultimate burden of demonstrating by a preponderance of evidence that he or she has been the victim of intentional discrimination. [citations omitted].
In order for a Petitioner to prevail in a disparate treatment case, and obtain the relief she seeks, she must establish that the Respondent's employment decision was based on a protected status, i.e., the Petitioner's handicap. In this case, Petitioner has the burden of presenting evidence sufficient to establish that her handicap (obesity) was a determining factor in the employment decision made not to hire her. See, U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715 (1983); Penna v. Brattleboro Retreat, 702 F.2d 812 (10th Cir. 1978). In other words, the Petitioner must prove what motivated the Respondent to fail or refuse to hire her was her obese condition.
The Florida Commission on Human Relations has adopted federal standards for allocating the burden of proof in handicap discrimination claims.
See, e.g., Hunter v. Winn-Dixie Stores, Inc., FCHR Case No. 82-0799 (Feb. 23, 1983). Accordingly, petitioner must prove:
That she is a handicapped person within the meaning of the Florida Human Rights Act;
That she is otherwise qualified for the position in question; and
That she suffered discrimination because of her handicap. 29 U.S.C. Section 794.
Since no direct definition of the term "handicap" is provided in Chapter 760, decisions of the Florida Human Relations Commission must be consulted to ascertain the meaning that has been given this term. In Thomas v. Floridian Company, 8 FALR5457, at 5458(1986), the Commission defined "handicap" as follows:
In interpreting the term handicap, the Human Rights Act of 1977, the Commission has consistently chosen to give handicap a meaning in accordance with common usage. Generally,
handicap connotes 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 also: Kelly v. Bechtel Power, 633 F. Supp. 927, 931(U.S.D.C.,S.D.Fla. 1986).
The Petitioner must first establish that her obesity is a "handicap", that is, her weight must be so excessive that her normal functioning is significantly impaired. It is undisputed that Petitioner, at all times relevant to this action, suffered from obesity, but did not consider herself significantly impaired because of it. It was only after completing the physical examination required by her prospective employer that Respondent determined that her condition would significantly impair her normal functioning. Therefore, Petitioner has shown that she is a handicapped person within the meaning of the Florida Human Rights Act and the Pinellas County Ordinance 84-10. See: Nichols
v. First National Bank of Clearwater, 9 FALR 5970 (1987) and Stewart v. Wackenhut Corporation, FCHR Order88-015(June30, 1988).
Petitioner has met her burden of proving that she is otherwise qualified to perform the essential functions of the CNA position. Her past work history, her certification by the State of Florida for over ten years without any record of disciplinary action being taken against her license, and the testimony of Respondent's witnesses that but for the physicians recommendation not to hire her, Petitioner was otherwise qualified for the position, and that Petitioner could fully perform all of the duties required of a CNA at Respondent's facility.
The evidence further shows that the Respondent failed to meet its burden of proving that Petitioner could not safely and effectively perform her job. See, Kelley v. Bechtel Power Corporation, 633 F.Supp. 927 (S.D. Fla. 1986). The Respondent failed to undertake the kind of investigation and analysis necessary to determine whether Petitioner was qualified to perform the essential functions of her job. Rather, the Respondent's withdrawal of their offer of employment to Petitioner was based on a verbal recommendation by their physician, without the benefit of sufficient independent information and investigation. The Respondent's decision was made on the basis of a generalized
classification rather than the individualized case-by-case analysis required by law. Mantolete v. Bolger, 767 F.2d 1416, 1422-1423 (9th Cir. 1985).
In conclusion, Petitioner was discriminated against on the basis of her handicap, obesity, when Respondent wrongfully failed or refused to hire her. The Petitioner was otherwise qualified to fulfill all of the duties and responsibilities of the CNA position, and the Respondent's decision that Petitioner was not qualified was unreasonable, and caused the discriminatory failure to hire.
Petitioner did not show proof of damage at the hearing.
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered holding that:
DONE and ENTERED this 29th day of December, 1992, in Tallahassee, Florida.
DANIEL M. KILBRIDE
Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 1992.
The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties.
Neither party submitted proposed findings of fact or conclusions of law.
Ronald W. Stutzman Qualified Representative
470 Atlantic Avenue Boston, Ma. 02210
Ms. Rose E. Blake
P.O. Box 616
P.O. Box 4748
All parties have the right to submit written exceptions to the 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 their 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.
