STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALEX K. SHINDLE, )

)

Petitioner, )

)

vs. ) Case No. 92-3781

)

CITY OF TAMPA, )

)

Respondent. )

)

RECOMMENDED ORDER

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 October 15, 1992, in Tampa, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Mark Herdman, Esquire

KELLY, McKEE, HERDMAN & RAMUS, P.A.

1724 E. Seventh Avenue Tampa, Florida 33605

For Respondent: Thomas M. Gonzalez, Esquire

THOMPSON, SIZEMORE & GONZALEZ, P.A.

Post Office Box 639 Tampa, Florida 33601

STATEMENT OF THE ISSUES

Whether Petitioner was wrongfully terminated from his position at the City because of his physical handicap, diabetes, in violation of Section 760.10(1(a), Florida Statutes.

Whether Petitioner could be reasonably accommodated to perform the essential functions of his duties as an Engineer I position with the City Sewer Department.

PRELIMINARY STATEMENT

Petitioner timely filed a Charge of Discrimination with the Florida Commission on Human Relations on May 20, 1991. Following action by the Commission, a Petition for Relief was filed May 4, 1992, and was transmitted to the Division of Administrative Hearings on June 23, 1992 for hearing. Following discovery, this hearing was held.

At the hearing, Petitioner called five witnesses, testified in his own behalf, offered the deposition of Dr. Sumesh Chandra, M.D., and introduced four other exhibits in evidence. Respondent did not offer the testimony of any

witnesses, and entered one exhibit in evidence. At the hearing, Respondent reserved objections to Dr. Chandra's testimony, and subsequently filed its Employer's Objections to Dr. Sumesh Chandra's Testimony on October 28, 1992. Petitioner filed his Response on November 3, 1992. Having reviewed the objections and the response thereto, Respondent's objection is overruled. The witness' testimony is admissible. Section 90.702, Florida Statutes. The transcript of the proceedings was filed on November 2, 1992. The parties each filed proposed findings of fact and conclusions of law on November 12, 1992. My specific rulings on the parties' proposals are set forth in the Appendix attached hereto.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Petitioner is a 40 year old male.

   
   

2. Petitioner was diagnosed with Diabetes Mellitus in 1979. This is a Type I Classification of diabetes which required that Petitioner must take insulin from its onset.

   
   

3. Petitioner is further classified as a "brittle" diabetic, which is a type that is difficult to control. Additionally, Petitioner has hypothyroidism (underactive thyroid) and an adrenal insufficiency. This combination is rare. Petitioner is a handicapped person.

   
   

4. Petitioner worked steadily at a variety of jobs in the engineering construction field from 1979 to the time he was hired by the City of Tampa on December 12, 1990.

   
   

5. Petitioner's diabetic condition did not place any restrictions on his ability to fulfill his job responsibilities at any of his places of employment between 1979 and December 12, 1990.

   
   

6. Petitioner was hired by the City of Tampa, an employer, as an Engineer Tech 2 on December 12, 1990.

   
   

7. As an Engineer Tech 2, Petitioner was responsible for monitoring the electrical and instrumentation construction at a sanitary sewage treatment plant, and for sewage pumping stations throughout the city. He was essentially an inspector.

   
   

8. Prior to accepting employment with the City, Petitioner talked with his prospective supervisors, Jack Kulik and Jeff Taylor, about his diabetic condition.

   
   

9. During the period Petitioner was employed as an Engineer Tech 2, he had some insulin reactions on the job in the office. Those reactions were caused by a lowering of Petitioner's blood sugar level. When these reactions occurred, office personnel would assist Petitioner by encouraging him to eat a food product containing sugar. The episodes would take 15-30 minutes to subside.

   
   

10. During the period Petitioner was employed as an Engineer Tech 2, he drove a City car alone while at work, and drove his personal car to and from work. When at a construction site, Petitioner went near high voltage panels, into manholes, and also into open pits with open wells on a regular basis.

11. The supervisor, Jack Kulik, did not have any concerns about Petitioner's ability to drive a car.

    
    

12. Petitioner received a good performance evaluation for his work as an Engineer Tech 2 on June 12, 1990. He was rated as either "Excellent" or "Fully meets Expectations" in all 13 rating categories.

    
    

13. Petitioner's diabetes did not prevent him from performing the essential functions of his job.

    
    

14. Petitioner was promoted to an Engineer I position in August 1990.

    
    

15. From August 1990 through early February 1991, Petitioner worked half- days at the Hookers Point facility, and then commuted to downtown Tampa to work a half-day.

    
    

16. The Engineer I position was primarily an office job, with 80% of the responsibilities in-office and 20% at various job sites.

    
    

17. During the period between August 1990 and February 1991, Petitioner had several insulin reactions in the office of the Engineer I position. His new supervisor Korchak did not recognize the symptoms of Petitioner's reaction. He characterized Petitioner as being "asleep" on the job on three occasions, and was impaired on numerous other occasions. Due to his physical handicap, Korchak lost confidence in Petitioner's ability as an engineer.

    
    

18. Petitioner ate food to counteract the reactions, which took 20 to 30 minutes to subside.

    
    

19. In August 1990, shortly after Petitioner was promoted to an Engineer I position, he was involved in an automobile accident, while driving his personal car. The accident resulted from a diabetic reaction.

    
    

20. When he was able, Petitioner called his supervisor, Mr. Korchak, and reported the accident.

    
    

21. Mr. Korchak relayed the information about the accident to Andy Cronberg, a deputy director, second in command of the department, who was in an office adjacent to Mr. Korchak when he received the call from Petitioner.

    
    

22. Mr. Cronberg made a decision, at that moment, in August 1990, based solely on his conversation with Mr. Korchak, to revoke petitioner's privilege to drive a City car.

    
    

23. The decision to revoke Petitioner's driving privileges was made in accordance with a general policy of the City, and not on individualized analysis of Petitioner's condition.

    
    

24. The decision to restrict Petitioner's driving privileges was not communicated to Petitioner until a performance review on February 8, 1991.

    
    

25. In addition, during this same period, Korchek began tailoring and limiting Petitioner's position to in-office functions only, based on what Korchek believed Petitioner could accomplish safely, and downgraded his evaluation when he rated him on his performance review.

26. Prior to the implementation of the decision to restrict Petitioner's driving privileges on February 8, 1991, the City's representatives did not speak to Petitioner about his driving abilities; they did not speak or consult in any way with Petitioner's doctors; nor did they speak with Petitioner's previous supervisor with the City, Jack Kulik.

    
    

27. The first contact the City had with Petitioner's doctor was a response to a questionnaire sent to Dr. Sumesh Chandra and, received by the City on February 27, 1991, wherein Dr. Chandra indicated that Petitioner could safely and effectively operate an automobile.

    
    

28. The City's representative Mr. Rice indicated that Dr. Chandra's response raised more questions than it answered, and the City did not restore Petitioner's driving privileges.

    
    

29. Neither Mr. Rice, nor any other City employee ever consulted with Dr. Chandra to clear up the confusion they had over Dr. Chandra's statement that Petitioner could safely and effectively drive a car.

    
    

30. Petitioner is licensed to drive by the State of Florida.

    
    

31. His license has never been revoked, either in Florida or any other state.

    
    

32. Dr. Chandra stated that, in his opinion, Petitioner could safely and effectively operate an automobile because, "He's capable, dexterous, and coordinated. He's like any normal individual except that he is unfortunately diabetic. So for routine capacity his skills are like any other normal individual."

    
    

33. Twenty percent of the Engineer I position required travel to various job sites.

    
    

34. Because Petitioner was not allowed to drive an automobile on city time, and was restricted in in-office functions while performing his Engineer I position, he was not able to fulfill the essential functions of the Engineer I position.

    
    

35. Following a request by Phil Rice of the Sewer Department, the City received a letter from Dr. Jai H. Cho, a physician on May 15, 1991, that Petitioner had seen for a short period of time. Dr. Cho's letter indicated, among other things, ". . . it is inevitable, that he will develop hypoglycemia with loss of consciousness in the future because of his concurrent illness with diabetes and adrenal insufficiency."

    
    

36. Dr. Cho never specifically addressed the issue of whether Petitioner could safely drive an automobile or work alone at job sites, either in writing or in phone conversations with Mr. Rice.

    
    

37. No City representatives ever discussed Petitioner's ability to drive a car or work alone on a job site with Petitioner, Dr. Chandra, Dr. Cho, Petitioner's previous supervisors with the City, or Petitioner's previous supervisors with other employers.

    
    

38. On May 20, 1991, the City terminated Petitioner's employment.

39. Petitioner was informed of his termination by Mr. Korchak, Mr. Hoel, and Mr. Rice. Mr. Rice told Petitioner that the reason for the termination was the City's concern about its potential liability.

    
    

40. Following his termination, Petitioner was unemployed for nine months.

    
    

41. Petitioner was then hired in September, 1992, by Omega Tech in Hardee County, Florida, to work at the Hardee Power Station, performing the same duties as he performed as an Engineer Tech 2 for the City of Tampa.

    
    

42. Petitioner commutes the 68 miles each way from Tampa to Hardee County every day in his own car.

    
    

43. At the Hardee Power Plant, Petitioner is exposed to the same conditions to which he was exposed while working for the City of Tampa.

    
    

44. During the 13 years since Petitioner was diagnosed with diabetes, he has never injured any other person as a result of his diabetes, nor received any serious injury to himself.

    
    

45. At the present time, the position of Engineer I with the City of Tampa has been eliminated, and has been replaced by a person holding a contractors license.

    
    

46. If Petitioner had remained employed with the City of Tampa, he would have earned $36,294.44 from the period June 20, 1991, through September 18, 1992, exclusive of health benefits.

    
    

    CONCLUSIONS OF LAW

    
    

47. 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.

    
    

48. The Petitioner contends that he was unlawfully discharged by the City because it unlawfully discriminated against him due to his handicap. The petitioner relies on the Florida Human Rights Act of 1977, Section 760.10, et seq., Florida Statutes (1987). The Human Rights Act prohibits certain specified unlawful employment practices and provides remedies for such violations. That statute provided, in pertinent part, as follows:

    
    

    760.01 PURPOSES, CONSTRUCTION; TITLE

    ***

    1. 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.

    2. 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

    1. It is an unlawful employment practice for an employer:

       1. 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.

    
    

49. The Florida Human Rights Act is patterned after Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e-2. School Board of Leon County v. Weaver, 556 So.2d 443 (Fla. 1st DCA 1990). In Florida, there is a long-standing rule of statutory construction which recognizes that if a state law is patterned after a federal law on the same subject, the Florida law will be accorded the same construction as in the federal courts to the extent the construction is harmonious with the spirit of the Florida legislation. O'Loughlin v. Pinchback, 579 So.2d 788 (Fla. 1st DCA, 1991).

    
    

50. 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 latter, 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

    
    

51. 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, non- discriminatory 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].

1. In order for a Petitioner to prevail in a disparate treatment case and obtain the relief he seeks, he 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 his handicap (diabetes) was a determining factor in the employment decision made to discharge him. 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 City to discharge him was his diabetic condition.

   
   

2. 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:

   
   

   1. That he is a handicapped person within the meaning of the Florida Human Rights Act;

   2. That he is otherwise qualified for the position in question; and

   3. That he suffered discrimination because of his handicap. 29 U.S.C. Section 794.

      
      

3. The parties have stipulated that Petitioner, at all times relevant to this action, suffered from diabetes, and that he is a handicapped person within the meaning of the Florida Human Rights Act.

   
   

4. Petitioner has met his burden of proving that he is otherwise qualified to perform the essential functions of the Engineer I position. His past work history, his work history with the City of Tampa prior to February 1991, his status as a fully licensed driver without revocations of his drivers license, and the testimony and documentary evidence from his primary physician, Dr. Sumesh Chandra, all indicate that Petitioner was qualified to drive an automobile, and work independently outside of the office. The evidence

   indicates that Petitioner could fully perform all of the duties required of an Engineer I.

   
   

5. The evidence further shows that the City failed to meet its burden of proving that Petitioner could not safely and effectively perform his job. See, Kelley v. Bechtel Power Corporation, 633 F.Supp. 927 (S.D. Fla. 1986). The City failed to undertake the kind of investigation and analysis necessary to determine whether Petitioner was qualified to perform the essential functions of his job. Rather, the City's revocation of Petitioner's driving privileges, and his restriction to in-office duties was based on the unreasonable fears of the City's responsible employees, without the benefit of sufficient independent information and investigation.

   
   

6. The revocation of Petitioner's driving privileges and the reduction of his job duties prevented Petitioner from fulfilling the 20% of the job requirements that required him to work alone on job sites only accessible by car. In addition, his supervisors, following his promotion, were unwilling, and in fact, hostile to his handicapped condition, and were unwilling to make reasonable accommodations for his condition. Thus, the City effectively terminated petitioner's employment because of an unreasonable and unlawful decision.

   
   

7. Furthermore, the City's decision was made in accordance with a general policy rather than the individualized case-by-case analysis required by law. Mantolete v. Bolger, 767 F.2d 1416, 1422-1423 (9th Cir. 1985).

   
   

8. In conclusion, Petitioner was discriminated against on the basis of his handicap, diabetes, when his employment was terminated. The Petitioner was otherwise qualified to fulfill all of the duties and responsibilities of the Engineer I position. The City's decision that Petitioner was not qualified was unreasonable, and caused the discriminatory termination of Petitioner's employment.

   
   

9. Petitioner is entitled to back pay for the nine month period he was unemployed, and for the difference in pay between the Engineer I position and his current position with Hardee County through September 18, 1992. However, Petitioner can not be reinstated to his former position with Respondent since that position has been eliminated.

66. Petitioner is entitled to recover reasonable attorney's fees and costs, as the prevailing party in this action.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that:

1. A Final Order be entered that Petitioner was discriminated against on the basis of his handicap when his employment was terminated;

   
   

2. The Petitioner receive back pay and health benefits in accordance with applicable law; and

   
   

3. The Petitioner be awarded the attorney's fees and costs incurred as a result of this action.

DONE and ENTERED this 28th day of December, 1992, in Tallahassee, Florida.

DANIEL M. KILBRIDE

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 28th day of December, 1992.

APPENDIX

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

Proposed findings of fact submitted by Petitioner.

Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12,

13, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 34,

35, 36, 37, 38, 39(in part), 40, 41, 42, 43

Rejected as against the greater weight of evidence: paragraph 15, 39 (Petitioners was hired by Omega Tech)

Rejected as hearsay: paragraph 33

Proposed findings of fact submitted by Respondent.

Accepted in substance: paragraphs 1,2,3,4,5,6,7,10,11(in part), 12,13,14(in part),15,17,18,19,20(in part),22(in part),23,25,26,30,31

Rejected as irrelevant or immaterial or argument: paragraphs 8,9,11(in part),14(in part), 20(Petitioner's written comment),21,24(in part),27,28,29

Rejected as hearsay: paragraphs 16,22(in part),24(in part)

COPIES FURNISHED:

Mark Herdman, Esquire KELLY, McKEE, HERDMAN

& RAMUS, P.A.

1724 E. Seventh Avenue Tampa, Florida 323605

Margaret A. Jones, Clerk Commission On Human Relations

325 John Knox Rd.

Building F Suite 240

Tallahassee, Florida 32303-4113

Mr. Kenneth C. Perry City of Tampa

306 East Jackson Street 7N Tampa, Florida 33602

Dana Baird, Esquire Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4113

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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.

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

ALEX K. SHINDLE,

EEOC Case No. n/a

Petitioner, FCHR Case No. 91-5866 DOAH Case No. 92-3781

vs. FCHR Order No. 94-024

CITY OF TAMPA,

Respondent.

/

ORDER FINDING THAT AN UNLAWFUL EMPLOYMENT PRACTICE OCCURRED; REMANDING THE MATTER TO THE HEARING OFFICER FOR

DETERMINATION OF MONETARY DAMAGES, ATTORNEY'S FEES AND COSTS

Preliminary Matters

Petitioner Alex K. Shindle filed a complaint of discrimination with the Commission pursuant to the Florida Human Rights Act of 1977, Sections 760.01- 760.10, Fla. Stat. (1991). Petitioner alleged that Respondent City of Tampa unlawfully discriminated against him on the basis of handicap (diabetes).

In accordance with the Commission's rules, the allegations of discrimination set forth in the complaint were investigated. A report was submitted to the Executive Director, who issued his determination finding no reasonable cause to believe that an unlawful employment practice occurred.

Thereafter, Petitioner filed a petition for relief from an unlawful employment practice and the case was transmitted to the Division of Administrative Hearings (DOAH) for a formal proceeding. Fla. Admin. Code Rule 60Y-4.106(1). On December 28, 1992, DOAH Hearing Officer Daniel M. Kilbride entered a Recommended Order which finds that unlawful discrimination had occurred and which states that affirmative relief must be awarded to Petitioner.

Public deliberations were held on November 16, 1993, in Tallahassee Florida, before this panel of Commissioners.

Rulings on Exceptions Exceptions filed by Petitioner

Petitioner filed exceptions to the Hearing Officer's Recommended Order. In essence, Petitioner takes exception only to the Hearing Officer's conclusion that Petitioner cannot be reinstated because the position of Engineer I with Respondent has been eliminated and has been replaced by a person holding a contractor's license. Petitioner argues that Respondent has not eliminated the Engineer I position; it has merely reclassified the duties and responsibilities to be filled by an outside contractor, which does not prevent Petitioner's reinstatement.

Upon consideration, Petitioner's exception has merit and is hereby adopted.

The independent contractor currently performs all the duties for Respondent which Petitioner formerly performed (Tr. 105). Thus, there are no budgetary reasons to deny Petitioner reinstatement and his position in essence has been perpetuated, not eliminated. Cf. Gaddy v. Abex Corp., 50 FEP Cases 1333 (7th Cir. 1989), where the court held that an employer who discriminatorily laid off an employee before selling its plant in which she worked is required to reinstate her at one of its remaining operations.

Exceptions filed by Respondent

Respondent filed exceptions to the Recommended Order. In summary, those exceptions are as follows:

1. Petitioner did not work steadily at a variety of jobs in the engineering construction field.

   
   

2. Petitioner's condition did place restrictions on his ability to perform jobs before he was hired by Respondent.

   
   

3. The decision to restrict Petitioner's driving privileges was based not on a general policy but on an individualized analysis of Petitioner's condition.

   
   

4. The one-word affirmation by Petitioner's primary doctor (Dr. Chandra) that Petitioner could safely and effectively drive a car was insufficient to permit Petitioner to drive a City vehicle.

5. Petitioner's subsequent employment has no relevance to this case, since it occurred after the insulin pump was given to Petitioner and he was better able to control his condition.

   
   

6. Petitioner's condition caused him to become difficult and argumentative, which affected the state of mind of his supervisors. This is not hearsay, and provided a basis for concerns that led to the decision to terminate Petitioner. Nor was the letter from another doctor (Dr. Cho) hearsay evidence, because it goes to the state of mind of Respondent. Finally, the unsuccessful attempts to contact Petitioner's doctor (Dr. Chandra) to resolve the supervisors' concerns were not hearsay, but went to the Respondent's state of mind and its inability to obtain information about Petitioner's condition.

   
   

7. Petitioner's previous supervisor (John Kulik) had no medical basis for determining the extent of Petitioner's condition when he testified that Petitioner could do his job in the position he held immediately prior to being employed by Respondent in the position from which he was fired.

   
   

8. Incidents caused by insulin reactions, when Petitioner passed out in his car, wandered around at job sites, and was incoherent at times, were critical to the mindset of Respondent when it made its decision to terminate Petitioner.

   
   

9. Respondent could not understand Petitioner's doctor (Dr. Chandra) when he stated that Petitioner could operate an automobile but not work on a ladder or around electrical panels. These go to the heart of Petitioner's condition and Respondent's perception of his condition.

   
   

10. Although the insulin pump was not obtained until after Petitioner was terminated, Dr. Chandra's testimony that there was a pre-pump and post-pump difference is relevant, particularly if Petitioner's current condition of driving and stet [sic] work at Hardee Power Station is cited by the Hearing Officer.

    
    

11. Petitioner never requested any accommodation for passing out and disregarded the advice of doctors.

    
    

12. Respondent took exception to the legal analysis of the Hearing officer, citing the following Commission decisions on the subject of uncontrolled diabetes which Respondent asserts are directly contradictory to the Recommended Order: Retton v. Dept. of Corrections, FCHR Order No. 86-045 (December 18, 1986), and Sanfrantello v. Palm Beach County School Bd., FCHR Order No. 91- 042 (amended)(January 13, 1992), in which the employer made a decision based upon conditions as they existed and were perceived by it at the time of discharge.

    
    

    Respondent's exceptions 1, 2 and 7 are rejected because competent substantial evidence exists in the record to support the Petitioner's work history as described by the Hearing Officer.

    
    

    Respondent's exceptions 3, 4 and 9 are rejected because competent substantial evidence exists in the record to support the finding that an insufficient individualized investigation and analysis of Petitioner's condition was conducted by Respondent before determining to restrict Petitioner's privilege to drive a city vehicle after Petitioner had an off-duty automobile accident, resulting from a diabetic reaction.

    Respondent acknowledges that it failed to reach Petitioner's primary doctor, Dr. Chandra, to clarify the confusion over the doctor's response to a city questionnaire received on February 27, 1991, wherein Dr. Chandra indicated that Petitioner could safely and effectively operate an automobile, while responding negatively to Petitioner's ability to work in an area only accessible by ladder, or in an area with an open wet well (concrete pit) or in close proximity to electrical panels with 13,000 volts of electricity. Furthermore, the Hearing Officer found that during the period Petitioner was employed as an Engineer Tech 2, he drove a city car alone while at work, and drove his personal car to and from work. When at a construction site, Petitioner went near high voltage panels, into manholes, and also into open pits with open wells on a regular basis. See Finding of Fact No. 10. Petitioner's former supervisor, Jack Kulik, did not have any concerns about Petitioner's ability to drive a car, nor did Petitioner's diabetes prevent him from performing the essential functions of his job. See Finding of Fact No. 13.

    
    

    Respondent's exceptions 5 and 10 are rejected. Even without regarding Petitioner's subsequent employment, in which he drove 68 miles each way daily and was exposed to the same conditions to which he was exposed while working for Respondent, Petitioner had never injured any other person as a result of his diabetes, nor received any serious injury to himself. See Findings of Fact No. 42, 43 and 44.

    
    

    Respondent's exceptions 6 and 8 are rejected because competent substantial evidence exists in the record to support the Hearing Officer's findings relating to the state of mind of Petitioner's supervisors. See, e.g., Conclusion of Law No. 57.

    
    

    Respondent's exception 11 is rejected. Petitioner was not required to request accommodation specifically for his passing out nor was evidence presented that Petitioner disregarded his doctor's advice in any way that exposed him or others to substantial risk of injury. In fact, Respondent did entertain various attempts at accommodation, but rejected them without discussion with Petitioner. Tr. at 61-70.

    
    

    Respondent's exception 12 is rejected. The Hearing Officer properly concluded that an unlawful employment practice had occurred. See Conclusions of Law No. 54-56, which read:

    
    

    1. Petitioner has met his burden of proving that he is otherwise qualified to perform the essential functions of the Engineer I position. His past work history, his work history with the City of Tampa prior to February 1991, his status as a fully licensed driver without re- vocations of his drivers license, and the testimony and documentary evidence from his primary physician, Dr. Sumesh Chandra, all in- dicate that Petitioner was qualified to drive an automobile, and work independently outside of the office. The evidence indicated that Petitioner could fully perform all of the duties required of an Engineer I.

    2. The evidence further shows that the City failed to meet its burden of proving that Petitioner could not safely and effectively perform his job. See Kelley v. Bechtel Power

       Corporation, 633 F.Supp. 927 (S.D. Fla. 1986). The City failed to undertake the kind of in- vestigation and analysis necessary to determine whether Petitioner was qualified to perform

       the essential functions of his job. Rather, the City's revocation of Petitioner's driving privileges, and his restriction to in-office duties was based on the unreasonable fears of the City's responsible employees, without the benefit of sufficient independent information and investigation.

    3. The revocation of Petitioner's driving privileges and the reduction of his job duties prevented Petitioner from fulfilling the 20 percent of the job requirements that required him to work alone on job sites only accessible by car. In addition, his supervisors, follow- ing his promotion, were unwilling, and in fact, hostile to his handicapped condition, and were unwilling to make reasonable accommodations

for his condition. Thus, the City effectively terminated petitioner's employment because of an unreasonable and unlawful decision.

The hearing officer's analysis is consistent with precedent. See, e.g., Kelley v. Bechtel Power Corporation, 633 F.Supp. 927 (S.D. Fla. 1986), citing Arline v. School Board of Nassau County, 772 F.2d 759, 765 (11th Cir. 1985), aff'd., U.S. 273 273 [sic] (1987), where the court opined:

".... [I]n some cases, a job requirement that screens out qualified handicapped individuals on the basis of possible future injury is necessary. However ... in order to exclude such individuals, there must be a showing of a reasonable probability of substantial harm.

Such a determination cannot be based merely on an employer's subjective evaluation or, except in cases of a most apparent nature, merely on medical reports. The question is whether, in light of the individual's work history and medical history, employment of that individual would pose a reasonable probability of sub- stantial harm. Such an evaluation necessarily requires the gathering of substantial informa- tion by the employer.

* * *

.... [A]n employer must gather all relevant information regarding the applicant's work history and medical history, and independently assess both the probability and severity of potential injury. This involves, of course, a case-by-case analysis of the applicant and the particular job.

Moreover, the Respondent's supervisors in Retton and Sanfrantello, supra, were not found "unwilling, and in fact, hostile to [the] handicapped condition..." as were Respondent's supervisors in the instant case.

Findings of Fact

That portion of the findings which establishes liability for unlawful discrimination is supported by competent substantial evidence. We adopt the liability portion of the Hearing Officer's findings of fact.

Conclusions of Law

That portion of the conclusions holding that unlawful discrimination was proven is correct. We adopt the liability portion of the Hearing Officer's conclusions of law.

We further conclude, however, that this matter should be REMANDED to the Hearing Officer for the calculation of affirmative relief, with all the associated questions, either legally or factually. In respect to amounts of backpay, length of backpay, deductions from backpay, fringe benefits and salary increases attendant to backpay, amounts for costs and attorney's fees, this case is REMANDED to DOAH.

Petitioner has certainly not waived his rights or otherwise defaulted by failing to submit evidence on these amounts at the initial DOAH hearing. In that there are certain presumptions associated with backpay, it is likewise proper to give Respondent its opportunity to present evidence for reducing the amount of backpay or for increasing the amounts for deduction from backpay.

That portion of the Recommended Order explicitly awarding backpay and other affirmative relief, but in nonspecific amounts, does not fully comply with essential requirements of law. The fundamental legal requirements are for the DOAH Hearing Officer to submit precise amounts for the relief, explaining the reasons for the amounts. Pursuant to Section 120.57(1)(b)9, Florida Statutes, rejection and remand is authorized, where remand is only for calculation of amounts for relief and associated issues.

In Sennello v. Reserve Life Insurance Company, 667 F.Supp. 1498 (S.D. Fla. 1987), the court explains that it is the trial court's duty, after a finding of discrimination, to place the injured party in the position in which she would have been absent the discriminatory action. The DOAH Hearing Officer functions as the trial court and thus the duty to calculate amounts for relief is with the DOAH Hearing Officer.

In Department of Corrections v. Chandler, No. 87-2124 (Fla. 1st DCA March 28, 1988), the court held that a Commission order without a calculated amount for backpay is a nonfinal agency order, which is not [normally] subject to judicial review. Consequently, the DOAH Hearing Officer is obligated to submit a Recommended Order sufficient to enable the Commission to issue a final agency order. Otherwise, noncompliance with the essential requirements of law occurs.

Admittedly, reopening and remanding a DOAH case is prohibited in the usual course of procedure. An exception is made, however, where unusual circumstances are present. In Florida Department of Transportation v. J.W.C. Company, 396 So.2d 778 (Fla. 1st DCA 1981), the court points out that a remand may occur in a case where the DOAH Hearing Officer recommends an additional proceeding and the recommendation is based upon evidence submitted during the initial Section 120.57(1) proceeding. The court referred to Public Bank of St. Cloud v. State,

351 So.2d 73 (Fla. 1st DCA 1977), where remand was approved, i.e., the DOAH Hearing Officer had recommended an additional proceeding for the purpose of

allowing the applicant to amend its application for a bank charter. In addition, it has been customary in employment discrimination cases to bifurcate the trial, the first stage for liability and, when necessary, the second for relief. See Collier v. City of Freeport, 48 FEP Cases 441 (N.D. Illinois 1988); Smallwood v. United Airlines, Inc., 728 F.2d 614 (4th Cir. 1984); Baker v. City of Detroit, 24 FEP Cases 1569 (E.D. Michigan 1978); Poole v. Williams, 7 FEP Cases 102 (S.D. Texas 1974); and Newmon v. Delta Airlines, Inc., 7 FEP Cases 26 (N.E. Georgia 1973).

Remand

An additional formal proceeding in accordance with the requirements of Section 120.57(1), Florida Statutes (1993), is appropriate with respect to determinations of monetary amounts for backpay, fringe benefits, costs, attorney's fees and associated issues. Accordingly, the panel remands this matter to the Hearing Officer for the conduct of such formal proceeding.

It is SO ORDERED.

Dated this 11th day of March, 1994.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

BY:

Commissioner Geraldine Thompson, Panel Chairperson;

Commissioner Whitfield Jenkins; and Commissioner Gerald Richman.

FILED this 11th day of March, 1994, in Tallahassee, Florida.

Sharon Moultry

Clerk of the Commission

Copies Furnished:

Daniel M. Kilbride, DOAH Hearing Officer

Lora Liss and Dana Baird, Legal Advisors for Commission Panel Mark Herdman, Esquire

Kelly, McKee, Herdman & Ramus, P.A. 1724 E. Seventh Avenue

Tampa, Florida 33605

Thomas M. Gonzalez, Esquire Thompson, Sizemore & Gonzalez, P.A. Post Office Box 639

Tampa, Florida 33601

Docket for Case No: 92-003781

Orders for Case No: 92-003781