STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN MICHAEL HATCHER, )

)

Petitioner, )

)

vs. ) CASE NO. 94-264

)

CITY OF GAINESVILLE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings, on March 8, 1995, in Gainesville, Florida.

APPEARANCES

For Petitioner: John M. Crotty, Esquire

Post Office Drawer 2759 Gainesville, Florida 32602

For Respondent: Ronald D. Combs, Esquire

Assistant City Attorney II

City of Gainesville-Law Department Post Office Box 1110

Gainesville, Florida 32602 STATEMENT OF THE ISSUES

The issue to be resolved in this proceeding concerns whether the Respondent discriminated against the Petitioner by allegedly terminating his employment because of a handicap. Embodied within that issue is the question of whether the Petitioner is "handicapped" for purposes of Chapter 760, Florida Statutes, and other relevant law.

PRELIMINARY STATEMENT

This cause arose upon the Petitioner being terminated by the Respondent from his position of employment. The termination occurred on October 7, 1992 and was ultimately upheld by the City of Gainesville through the three steps of its internal grievance procedure. Thereafter, the Petitioner filed a complaint of discrimination with the Florida Commission on Human Relations (Commission) and ultimately requested an administrative hearing concerning his allegations that he was terminated from his employment as an electrician with the City of Gainesville Utilities Department because of his handicap.

The cause came on for hearing as noticed at which the Petitioner presented the testimony of himself, Ken Daniels, Tommy Ferguson, Paul Donnelly, and Dr.

Andrea Itzkowitz (this last by deposition). Petitioner's exhibits 1-12 were also admitted into evidence.

The Respondent called as witnesses Curtis Holder, Darrell Dubose, and Michael Kurtz in its defense. The Respondent submitted exhibits 1-19 into evidence. Thereafter, the parties availed themselves of the opportunity to file Proposed Recommended Orders, which were timely filed. The proposed findings of fact set forth therein are addressed in this Recommended Order and again in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. The Petitioner, John Michael Hatcher, is an electrician by training and was employed at times pertinent hereto by the City of Gainesville. His job as an electrician spanned the years 1979 to 1992. He first worked at the Deer Haven Power Plant operated by the City of Gainesville. In 1987, he was transferred to a position as a substation electrician with the City utility entity. His primary duties as a substation electrician involved performing maintenance and repair to high-voltage circuit breakers and other equipment involved in the transmission and distribution of electrical power. Substation electricians perform their work by employing two crews of three members each.

   On each crew, there were two electricians and one crew leader. The work of substation crews is performed on 90-day schedules.

   
   

2. In September of 1992, the Petitioner was suspended from his position for "inability to perform the essential functions of his job" and was ultimately terminated on October 7, 1992. That termination was upheld by the City of Gainesville through its grievance process on November 10, 1992, after exhaustion of the three-step grievance process provided for in the City's collective bargaining agreement.

   
   

3. Sometime in 1987, the Petitioner experienced breathing difficulties or respiratory irritation, when in the presence of electric power circuit breaker vapors, related to petroleum products used to cool the circuit breakers. The Respondent installed high-volume ventilation fans at the substation and encouraged the Petitioner to use the fans to remove the noxious vapors from the power circuit breaker area prior to the fume exposure which he states caused his injury. The Respondent also advised the Petitioner to use breathing masks.

   
   

4. The ventilation fans proved to be effective in removing the vapors which the Petitioner found irritating in the electric substation environment. The masks were also effective in allowing him to work in that environment without being bothered by the fumes, as he admitted.

   
   

5. These steps solved the Petitioner's problem in his main working environment but still left a problem for him when he drove the vehicle he used to get from job site to job site. The Petitioner maintained that he was bothered by exhaust fumes when traveling through downtown traffic in the open van-type vehicle. The Respondent recommended that he wear the breathing mask during this time, as well, and he acknowledged that it was effective in preventing the respiratory irritation that had bothered him when driving or riding in the van. The Petitioner, however, advised that he could not wear the protective mask for very long periods. This was purportedly because the heat and humidity gave him problems wearing the mask for an extended period, although traveling across a town the size of Gainesville did not take a very extended period of time. The protective mask was shown to be effective at his regular

   work station and in the van. The irritation problem was caused by the Petitioner not timely donning the mask before he became symptomatic.

   
   

6. It is not clear exactly when, after mid-1987, the Respondent learned that the Petitioner was purportedly having breathing difficulties in association with his work environment. In any event, during mid-1989, the Respondent, after hearing that the Petitioner had experienced breathing difficulties when in the presence of power circuit breaker vapors, began an independent study of the causes of his complaint. This was in addition to its recommendation that he use the high-volume ventilation fans and the protective masks the Respondent provided. The Respondent's risk management division hired Lipsey & Associates to conduct a toxicology evaluation of the areas in which the Petitioner worked. The air quality in the Petitioner's work environment, tested by this independent firm, was found to be within appropriate air-quality standards or "OSHA" standards. None of the Petitioner's co-workers suffered the symptoms the Petitioner complains of. The Petitioner did not always wear the breathing mask in the work areas where fumes occur nor does he always wear it when driving the van through downtown Gainesville.

   
   

7. Because of the Petitioner's health complaints, he was referred to the Family Practice Medical Group and examined by Dr. Marvin Dewar on June 8, 1992. Previously, the Petitioner was examined by Dr. Pravda on April 23, 1991 and diagnosed with sinusitis and asthma. He was examined by Dr. Stringer, an ear, nose and throat specialist, on August 27, 1991, with no physical abnormalities being found. He was also examined by Dr. Gonzalez-Rothi on October 10, 1991, with no significant pulmonary disease being found. He was then diagnosed with a "sinobronchial syndrome".

   
   

8. During this period of time, beginning in 1989, the Petitioner's attendance for his various evaluation periods was rated "conditional" and "below average" (in 1990-1991). In 1992, he received a score of "2" (out of 10) for below-average attendance. His absences in the 1992 evaluation period increased both in number of hours used and number of incidents. The Petitioner attributed his absences during his 1992 evaluation period to a recurring illness caused by his exposure to irritants in the work place. He acknowledged in his testimony, however, that the breathing mask and ventilation fans had helped prevent the problem but that he did not always avail himself of the protective devices on a timely basis to prevent symptoms. Rather, he only wore the masks intermittently after he felt symptomatic with respiratory irritation.

   
   

9. Because of his continuing absences, the Respondent finally notified the Petitioner that he was being terminated, due to an inability to perform the essential functions of his job, rather than because of an unwillingness to do so. At the time the Petitioner was notified that his employment would be terminated, he had not ever informed the Respondent, or filed any claim, for an alleged disability. The Respondent was aware that he had a sensitivity to petroleum and automotive fumes, but with the ventilation fans and masks that it had provided, and with the air quality report stemming from the study, the Respondent was of the belief that the Petitioner was able to perform all of the duties of his job as an electrician. It only became convinced that he was unable to perform the essential functions of his job because of the frequency of absences, which failed to improve.

   
   

10. An informal conference related to the termination was scheduled for September 17, 1992 and held on September 21, 1992. At this time, the Petitioner had not yet informed the Respondent of any alleged disability, as shown by Mr. Holder's testimony.

11. Although the Petitioner claimed in his testimony that he informed the Respondent of his diagnosis of "chronic fatigue immune system dysfunction" and "idiosyncratic reaction to petroleum vapors" by purportedly giving Mr. Holder, his supervisor, a copy of Dr. Itzkowitz's diagnosis on one of the prescription forms, the credible testimony and evidence is that those diagnoses were not known to the Respondent nor discussed at the September 21, 1992 informal conference.

    
    

12. The credible evidence and testimony shows that the Petitioner informed the Respondent that he had found a doctor who had diagnosed his problem and could cure him, but did not mention any handicap or the need for any accommodation at the time of that informal conference. In fact, the Petitioner's testimony in this regard is contradicted in a document he himself wrote, in evidence as Respondent's Exhibit 3. In this self-authored "termination summary," the Petitioner himself states that prior to that September 21, 1992 meeting with management, management personnel did not know he had found a doctor who had diagnosed his condition. The Petitioner attempts to correct this contradiction by testifying that his statement to that effect referred to "upper management" not knowing. This attempted correction is itself contradicted by the Petitioner's statement on direct examination that he believed Mr. Holder would give the prescription form document, supposedly containing his diagnosis, to Mr. Holder's superior, Mr. Williams. Therefore, if, indeed, he had given the diagnosis on the prescription form to Mr. Holder, and if his statement that he believed Mr. Holder would convey it to Mr. Williams and "upper management" is his true belief, how could he then testify that management did not know (unless he really knew he had never informed the Respondent at or before the September 21, 1992 meeting at all)? Indeed, that is found to be the case. The Respondent did not learn of Dr. Itzkowitz's diagnosis until after that conference.

    
    

13. In testifying at hearing, the Petitioner presented a "diagnosis" of "chronic fatigue syndrome" and "hypertriglecemia" by presenting a prescription form of Dr. Itzkowitz as Petitioner's Exhibit 2. That form is dated August 24th. The Petitioner stated that he presented it to his supervisor, Mr. Holder, in August or early September of 1992, before his September 14, 1992 suspension. He stated that he believed Mr. Holder would give the document to his superior, Mr. Randy Williams. In contrast, the Respondent presented its Exhibit R-1, which is a copy of the same document on Dr. Itzkowitz's prescription form. This copy is undated. It had been included in a packet of medical information from the Petitioner to the Commission, which contained copies of all the medical information previously submitted to the Respondent by the Petitioner. When asked how the same document could be dated in one version and undated in another, the Petitioner stated that he had received an undated version from Dr. Itzkowitz and had returned it to her for signature, whereupon the date was put on it.

    
    

14. Dr. Itzkowitz, in her testimony, however, contradicts this and stated that she "absolutely" dated the document when she originally wrote it. The Petitioner and Dr. Itzkowitz cannot both be right. One of the two is either giving untrue testimony or has a very faulty memory in this regard. In any event, the authenticity of the document containing the purported diagnosis and by which the Petitioner maintains he informed the Respondent of his diagnosis and handicap before his suspension, the September 21, 1992 meeting, and his termination, is called into serious question, as are the motives of the document originators, particularly the Petitioner. It is thus found that the Respondent was not informed of the Petitioner's diagnosis and handicap before

    the termination and that Mr. Holder's testimony in this regard to the effect that he did not know of any handicap, or the diagnosis upon which the Petitioner relies, before the termination, is accepted as more credible and worthy of belief under these circumstances. The Petitioner's Exhibit 2 is not deemed a credible document.

    
    

15. Subsequent to the Petitioner's September 21, 1992 informal conference with the Respondent, Petitioner's physician, Dr. Itzkowitz, sent the Respondent a letter dated September 29, 1992, stating her diagnosis of fibromyalgia and idiosyncratic reaction to petroleum vapors. Dr. Itzkowitz's letter to the Respondent does not state that the Petitioner was able to perform the duties as a substation electrician. The doctor states that he would do well at his previous assignment (power plant electrician). The doctor's September 29, 1992 letter finds "significant, reversible respiratory illness" even though prior medical examinations found no physical abnormalities.

    
    

16. The doctor also supplied a "certificate of examining physician", for purposes of the Petitioner's unemployment compensation claim, stating that the Petitioner was unable to work from August 14, 1992 through September 14, 1992. In fact, that was an inaccurate statement because the Petitioner worked all but about four of the days between those two dates.

    
    

17. The Petitioner submitted this document to the Department of Labor, Division of Unemployment Compensation, without advising that entity that the information was incorrect and that, indeed, he had been working during most of that period of time.

    
    

18. When Dr. Itzkowitz was questioned by the Respondent about the Petitioner's ability to work during that period, following exchange occurred:

    
    

    1. Do you have any recollection as to whether or not Mr. Hatcher was actually not working during all that period?

       1. When Mr. Hatcher came to me, he told me he was not allowed to work. Whether that meant that he was given time off, he was suspended, or what, I have no clue.

          2. So, when you say unable to work,

          you are going from what Mr. Hatcher told you?

          a. Or what other information was given to me, and again this is only a partial record. I mean I don't have the full

          record here, and what I do have I can't read. (See Petitioner's Exhibit 1 in evidence)

19. However, according to the information on Respondent's Exhibit 4, the Petitioner became Dr. Itzkowitz's patient on August 14, 1992; and on that same day, the doctor wrote the Petitioner a doctor's excuse to be off work indefinitely. The Petitioner, however, only stayed off work for four days. The Petitioner was asked in this regard:

    
    

    Q. Whose idea was it for you to go back to work, yours or hers? Dr. Itzkowitz being the her.

    A. Mine, I believe.

    Q. Did you check with her to see if that was approved?

    A. Yes.

    
    

20. Consequently, when Dr. Itzkowitz filled out the form represented in Respondent's Exhibit 4 in evidence, she must have known that it was not really accurate that the Petitioner was unable to work from August 14, 1992 through September 14, 1992. She authorized the Petitioner to be off work and approved the Petitioner returning to work, if the Petitioner's testimony quoted last above is true, that is. In any event, it has not been credibly demonstrated that the Petitioner had to be off work due to any disability or illness from August 14, 1992 through September 14, 1992.

    
    

21. Up to the date of his termination on October 7, 1992, the Petitioner had not actually alleged a disability nor had he requested accommodations for such. He was terminated based upon his inability to perform the essential functions of his job and not because of his handicap. He could not perform the essential functions of his job because he was not there often enough, due to his pattern of frequent absences. He is able to perform the duties of his electrician job without accommodation, aside from the presence of irritating fumes. The problem of the irritating fumes was already alleviated by the voluntary provision of ventilation fans and face masks provided to him by his employer.

    
    

22. After his termination on October 7, 1992, the Petitioner appealed to the third level or step of the Respondent's internal grievance procedure and alleged there for the first time that he was handicapped by "chronic fatigue syndrome". He requested accommodations for that alleged disability. The accommodations he requested involved a proposed return to his previous position as a power plant electrician at the Deer Haven Power Plant or the setting up of a rotating assignment, as a full-time position, as well as the allowance of an air-conditioned truck to perform this new position. None of the accommodations requested involved the Petitioner performing the same job and position from which he was terminated.

    
    

23. During the period of time the Petitioner was experiencing high absenteeism from 1989 through 1992, purportedly because of his aversion to the fumes, he was encouraged to apply for other positions with the City that would take him away from fumes. The Petitioner stated to the Respondent during his "step 3" grievance conference, after his initial termination, that he considered job openings in the Human Resources Department but had not talked to anyone with that entity or filed an application. Subsequent to his termination, he applied two or three times for a position as a power plant electrician, the position he held before becoming a substation electrician. He falsified his application, where he stated that he had never been discharged or terminated but he was still allowed to take the test for the open position.

    
    

24. Instead of testing for the position, however, he called the Respondent before the day of the test and advised the Respondent that he could not take the test due to illness. This is somewhat curious. Since the test was scheduled for the afternoon, it would seem if he wanted to avoid the test due to illness on the day of the test, he would have called on the morning of the test, rather than the day before it was administered to state that he could not take the test due to illness. The Petitioner could have consulted a physician to find out if something could be done to allow him to take the test at a different time and he could have called and requested some accommodation in taking the test, if he believed he was an applicant with a handicap. However, The Petitioner did

    neither of these things. He simply said he could not take the test due to illness and apparently never sought any alternative time or means of taking the test to become qualified for the position. This calls into question whether the Petitioner genuinely has any interest in returning to work at the power plant.

    
    

25. Moreover, in his Petition for Relief, the Petitioner requested that he be reinstated to his former position. Subsequent to his termination, however, he filed a claim for social security benefits. In order to be considered disabled for purposes of social security benefits, a person must be "unable to do any substantial, gainful work due to a medical condition which has lasted or is expected to last for at least 12 months in a row. The condition must be severe enough to keep a person from working not only in his or her usual job but in any other substantial, gainful work." See Respondent's Exhibit 8, in evidence. The Petitioner's testimony at hearing conflicts with his representation of his condition in Respohndent's Exhibit 8. It reveals, in effect, that he did not meet this definition for disability when he unsuccessfully applied for those benefits. He was, and is, not in accord with that definition of disability, is able to work as stated above and seeks reinstatement to his former position with the power plant.

    
    

26. The Petitioner stated in his Petition for Relief that his handicap is not hypersensitivity to petroleum vapors but, rather, is a chronic fatigue illness of his immune system, causing immune dysfunction and resulting sensitivity to drugs, allergies, odors, and chemicals. The Petitioner also alleges that the chronic fatigue causes the sensitivity to vapors. At the hearing, he could not point out any single incident of chronic fatigue suffered by him, but which preceded his sensitivity to petroleum vapors, which occurred back in 1987. The medical evidence indicates that prior to his sensitivity to vapors, his health had been good.

    
    

27. Fibromyalgia is a chronic condition causing people who suffer from it to have chronic aches most of the time. It is a syndrome, and sufferers often also have associated chronic fatigue. The two terms are synonomous for the same condition. The Petitioner's medical history does not reflect any history of severe or chronic aches. Nothing in his medical records reflects any history of the fatigue syndrome preceding his vapor sensitivity. His allegation that his vapor sensitivity is a symptom of two separate conditions, chronic fatigue and fibromyalgia, is not credible.

    
    

    CONCLUSIONS OF LAW

    
    

28. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Section 120.57(1), Florida Statutes.

    
    

29. The order and burden of proof in a handicap-discrimination case such as this involves the "traditional" standard set forth in McDonnell-Douglass Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d, 668 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089,

    67 L.Ed.2d 207 (1981). That is, the plaintiff or petitioner has the burden of establishing by preponderant evidence a prima facie case of unlawful discrimination. If the prima facie case is demonstrated a presumption of discrimination arises and the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for its action. The burden of producing evidence is next placed on the petitioner to demonstrate that the proffered reason was pretextual. However, the ultimate burden of persuasion remains with the plaintiff or petitioner. See, St. Mary's Honor Center v. Hicks, 509 U.S.

    , , 113 S.Ct. 2742, 2747, 125 L.Ed.2d 407, 416 (1993). This more

    traditional burden of proof in a discrimination action applies in this proceeding by authority of Brand v. Florida Power Corporation, 633 So.2d 504 (Fla. 1st Dist. 1994). This is because, in this proceeding, the employer is not conceding that there is a handicap and is not conceding that the employee in question was terminated because of that handicap. Thus, the burden to demonstrate discriminatory animus on the part of the employer in its taking of the employment action in question remains on the petitioner.

    
    

30. "Handicap" is defined in Section 760.22(7), Florida Statutes (1993),

    as:

    
    

    1. A person has a physical or mental impairment which substantially limits one or more of major life activities, or he has

    a record of having, or is regarded as having, such physical or mental impairment; . . .

    
    

    This definition is essentially like that in the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. Sections 12101-12213, which provides that disability is:

    
    

    1. A physical or mental impairment that substantially limits one or more of the major life activities of such individual;

    2. A record of such an impairment;

    3. Being regarded as having such an impairment.

    
    

31. The case of Bisbee v. Thatcher Glass Manufacturing Company, 3 F.A.L.R. 892-A, 893-A (Florida Commission on Human Relations, 1981), contains a statement that the Commission's definition of handicap "tracks the definition of 'handicapped individual' in 29 U.S.C. Section 706(7)(b)." That provision defines an individual with handicaps, as pertinent hereto, as being one "who has a physical or mental impairment which substantially limits one or more of such person's major life activities . . .". Examples of major life activities include caring for oneself, walking, sitting, speaking, breathing, learning, and working. 29 C.F.R., Section 1630.2(i)(1993), as cited in the Brand decision, supra. Thus, it can be seen that the Florida definition and the federal definition of "disability" and "handicap", cited above, applicable in Florida by virtue of the Bisbee opinion by the Commission, are essentially equivalent.

    
    

32. In order for Petitioner to demonstrate a prima facie case under the proof standard set forth above, the Petitioner must demonstrate:

    
    

    1. That he is handicapped within the meaning of the above authority.

    2. That he is otherwise qualified for the position from which he was terminated.

    3. That he suffered an adverse employment action under circumstances which give rise to an inference that the employment action was based solely upon his handicap.

    
    

    See, Cabany v. Hollywood Memorial Hospital, F.C.R. 90-001, DOAH #89-0237 (January 4, 1990); Pushkin v. Regents of University of Colorado, 658 F.2d 1372

    (10th Cir. 1981).

33. If the Petitioner demonstrates a prima facie case of handicap or disability discrimination, the burden to go forward with an articulation of a legitimate, non-discriminatory reason for the employment action taken shifts to the employer, the Respondent. Upon such an articulation being made by the Respondent, the burden to go forward with evidence to show that that is a pretext for what really amounts to discrimination shifts back to the Petitioner. Under the St. Mary's Honor Center decision, supra., however, the ultimate burden of persuasion remains with the petitioner.

    
    

34. Concerning the first element of the prima facie burden of proof, that the employee is handicapped, the Petitioner and his testifying physician have only described an inability to perform a specific job, at a specific place, under specific circumstances, involving exposure to fumes, but not a significant decrease in the Petitioner's ability to obtain and perform other satisfactory employment. This does not constitute a showing of disability. See, Mackie v. Runyon, 804 F.Supp. 1508, 1511 (M.D. Fla. 1992). See, also, Solomon v. Department of Transportation, 531 So.2d 691 (1st DCA 1989); Byrne v. Board of Education, 979 F.2d 560 (7th Cir. 1993). The evidence from Dr. Itzkowitz and the Petitioner is to the effect that the Petitioner can continue to work and that he still wants to work. He merely wants to be transferred to his old job as power plant technician. The Petitioner has shown, at most, that he has a temporary impairment which is site specific. It does not qualify as a disability or handicap as to its extent, duration, and impact upon his life and major life activities, including, especially, working. In fact, it would have little impact at all, other than an inconvenience, if the Petitioner was conscientious about using the ventilation fans and protective masks, as requested by his employer. It has not been demonstrated, as a matter of fact or law, that the Petitioner has a disability or handicap.

    
    

35. Additionally, the claim for disability and request for accommodation in this case did not occur until after the Petitioner was terminated. The record is devoid of any credible documentary evidence or testimony which would show that the Petitioner ever represented to the Respondent that he had a disability prior to his termination. There was no request for accommodation prior to his termination. The Respondent may have provided voluntary accommodations back in 1987 concerning his complaints regarding sensitivity to petroleum and exhaust fumes. This voluntary assist to the Petitioner did alleviate his problem, or would have if he had conscientiously followed the Respondent's recommendations, as delineated in more detail in the above Findings of Fact.

    
    

36. An employer must know of a disability in order to be liable for discrimination against an employee on account of his disability. In Hedberg v. Indiana Bell Telephone Company, 4 AD Cases 65, CA 7, February 21, 1995, cited by the Respondent in its proposed Recommended Order, the court stated that "observing the ADA does not require clairvoyance". The court opined that an employer who is unaware of an employee's disability cannot be held liable for discriminating against him because of that disability as a matter of law.

    
    

37. In that case, an employee had been working for 32 years with the respondent's company. He was terminated during a work force downsizing effort for economic reasons. Two months before his termination, he discovered he had a terminal illness. For several months, he underwent testing, evaluations, and treatments, which caused him to miss work. He was chosen for layoff because of his absences and lack of "work ethic". He sued his employer under the ADA, claiming he was terminated because of his disability. The federal district court hearing the case granted summary judgment to the employer, holding that

    there is no violation of the ADA when an employer makes an adverse employment decision without knowledge of the disability claimed. The United States Court of Appeals for the Seventh Circuit upheld the district court's order, stating that since the company was unaware of the petitioner's disability, it was not legally liable.

    
    

38. The appellate court in that case rejected the employee's argument that his employer's actual knowledge of the disability was irrelevant because the company knew of the symptoms of his disease when it terminated him. The court stated that allowing liability when an employer had no knowledge of the disability but knew of the effects or symptoms of it, with no obvious link to an actual disability, created an enormous sphere of potential liability. The court determined that the ADA did not require that merely because some perceived tardiness (or absences) was rooted in disability, that an employer who has not been informed of the disability, and who has no reason to know of it, is bound to retain all apparently tardy and lazy employees on the chance that a disability may have caused their behavior.

    
    

39. There is no credible evidence of record in this case to establish that the Petitioner claimed disability before his termination or sought accommodation therefor, save for his post-termination request. That does not describe a legally-cognizable disability nor does that request seek to enable him to perform the job he had held. The Petitioner sought, in substantial part, the creation of a new type of position or job duties (rotating assignment), which the employer is not legally obligated to do. See, School Board of Nassau County v. Arline, 480 U.S. 273, 289, N.19, 107 S.Ct. 1123, 1131 N.19, 94 L.Ed.2d, 307, N.19 (1987).

    
    

40. Thus, it simply has not been proven that the Petitioner suffered from a handicap because it has not been demonstrated that any medical problem the Petitioner suffers causes substantial impairment to a major life activity, specifically his working at his place and duties of employment. This is particularly so because, by the Petitioner's own admission, the voluntary assistance to his petroleum and exhaust fume sensitivity provided by his employer, discussed above, alleviated his irritation and symptoms when timely and properly used. Thus, the inference is drawn that a substantial portion of the Petitioner's absences from work due to claimed medical reasons were, in essence, self-inflicted. Accordingly, for the above-discussed reasons, no disability has been proven and no failure to make reasonable accommodation therefor has been established. Thus, that element of the Petitioner's prima facie case has not been established.

    
    

41. Moreover, the Petitioner has not established himself to be qualified for the position from which he was terminated. This is because of his excessive absences. The Respondent clearly showed that it was essential, to the adequate performance of his job, that the Petitioner be there at the job site working a substantial portion of the time. The Petitioner did not meet this standard. Even if the substantial majority of his absences were truly for medical reasons, which has not been clearly proven by the Petitioner, the preponderant evidence shows that, to the extent that the Petitioner failed to use the protective measures voluntarily provided to him, which often triggered his symptoms, that his absences were often avoidable and self-inflicted.

    
    

42. The Respondent offered a solution related to the petroleum vapors and the Petitioner's sensitivity to them, which was effective, if the Petitioner had properly used that solution The Petitioner had a hand in causing his own problems because he did not timely and consistently use the corrective measures

    offered by his employer. These excessive patterns of absences, over time, rendered him unqualified to perform the position from which he was terminated. Thus, his burden of proof has not been met in this particular either, since he has not proven himself qualified for the position from which he was terminated. Moreover, even had a prima facie case been established, and the burden to go forward with a demonstration of a legitimate, non-discriminatory reason for the termination shifted to the employer, the increasing pattern of absences, which rendered the Petitioner's employment performance substandard, was shown by the Respondent to be a legitimate, non-discriminatory for his termination.

    
    

43. In summary, the Petitioner was terminated because he could not perform the essential functions of his job because he was not there often enough to successfully perform. Thus, he did not establish his qualification to perform the job from which he was terminated, an essential element of his prima facie case under the above-cited legal authority. Further, the Petitioner is not disabled as a matter of law because, as he and his doctor both admitted, he can perform the functions of an electrician without any accommodation at his old job as power plant electrician or at his last job when fumes are not present. By his own admission, he can perform the job around the petroleum or exhaust fumes so long as the protective measures described above are timely and consistently used. At most, the Petitioner simply cannot perform the specific job from which he was terminated at the specific place of his job duties under the peculiar circumstances involving working around petroleum fumes without using the above- described protective measures correctly.

    
    

44. In light of the above discussion and analysis, this does not constitute such an impairment of a major life function, to wit, working, as to constitute a legally-cognizable handicap. Thus, it is determined that the Petitioner does not have, and was not terminated because of, a disability. Further, there has been no showing of discriminatory animus, in any event, when weighed against the employer's demonstration that the Petitioner was terminated because of excessive absences, in view of the fact that the employer had never been informed of the disability, nor any request for accommodation, at the time the termination decision was made. It is, therefore, concluded that the Petitioner has failed to sustain his burden of proof in light of the facts established by preponderant evidence and the above-discussed legal authority.

RECOMMENDATION

Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is

RECOMMENDED that a Final Order be entered dismissing the Petitioner's Petition for Relief in its entirety.

DONE AND ENTERED this 31st day of August, 1995, in Tallahassee, Florida.

P. MICHAEL RUFF, 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 1st day of September, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-264

Petitioner's Proposed Findings of Fact 1-4. Accepted.

1. Rejected, as contrary to the preponderant weight of the evidence and subordinate to the findings of fact of the Hearing Officer.

2. Rejected, as irrelevant.

3. Rejected, as immaterial.

4. Accepted, but not materially dispositive.

9-11. Accepted, but not itself materially dispositive.

12. Accepted, in terms of describing Dr. Itzkowitz's testimony but not as to its purported material import.

13-15. Accepted, but not itself materially dispositive.

16. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely in accord with the preponderant weight of the evidence.

17-19. Accepted, but not materially dispositive.

Respondent's Proposed Findings of Fact

The Respondent's proposed findings of fact are accepted to the extent that they are not inconsistent with the findings of fact made by the Hearing Officer. To the extent that they differ from the Hearing Officer's findings of fact, they are rejected. Certain of the Respondent's proposed findings of fact are omitted as being irrelevant or unnecessary.

COPIES FURNISHED:

John M. Crotty, Esq. Post Office Drawer 2759 Gainesville, FL 32602

Ronald D. Combs, Esq. Assistant City Attorney II

City of Gainesville-Law Department Post Office Box 1110

Gainesville, FL 32602

Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240

325 John Knox Road Tallahassee, FL 32303-4149

Dana C. Baird, Esq.

General Counsel

Human Relations Commission Building F, Suite 240

325 John Knox Road Tallahassee, FL 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the Final Order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

================================================================= AGENCY FINAL ORDER

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

STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

JOHN MICHAEL HATCHER,

Petitioner, EEOC Case No. N/A FCHR Case No. 93-4486

vs. DOAH Case No. 94-0264

FCHR Order No. 96-005

CITY OF GAINESVILLE,

Respondent.

/

FINAL ORDER DISMISSING PETITION FOR RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

Preliminary Matters

Petitioner John Michael Hatcher filed a complaint of discrimination pursuant to the Florida Civil Rights Act of 1992, Sections 760.01 - 760.11, Florida Statutes (1992 Supp.), alleging that Respondent City of Gainesville committed an unlawful employment practice on the basis of handicap by terminating him from his position. The allegations set forth in the complaint were investigated and, on October 11, 1993, the Executive Director issued his determination, finding that no reasonable cause existed to believe that an unlawful employment practice had occurred.

Following the granting of extensions of time to file a Petition for Relief from an Unlawful Employment Practice, Petitioner filed such a Petition, received by the Commission on January 10, 1994, and the matter was transferred to the Division of Administrative Hearings for the conduct of a formal proceeding.

A formal administrative hearing was held in Gainesville, Florida, on March 8, 1995, before Hearing Officer P. Michael Ruff.

Hearing Officer Ruff issued a Recommended Order of dismissal, dated August 31, 1995.

Pursuant to notice, public deliberations were held on March 19, 1996, in Pensacola Beach, Florida, before this panel of Commissioners, at which deliberations the panel determined the action to be taken upon the Petition for Relief.

FINDINGS OF FACT

The Hearing Officer's findings of fact are supported by competent substantial evidence. We adopt the Hearing Officer's findings of fact.

CONCLUSIONS OF LAW

The overall application of the law by the Hearing Officer is a correct disposition of the case. We note the following corrections, clarifications and modifications to the conclusions of law in three respects:

First, the Hearing Officer cites the Fair Housing Act, Section 760.22(7)(a), Florida Statutes (1993), and the Americans with Disabilities Act of 1990, 42 U.S.C. Sections 12101-12213, as sources for the definition of "handicap" within the meaning of the Florida Civil Rights Act of 1992.

Recommended Order, I 30.

In employment discrimination actions brought pursuant to the Human Rights Act of 1977, as amended, and its successor, the Florida Civil Rights Act of 1992, the source of the definition of "handicap" is more appropriately the decision in Brand v. Florida Power Corporation, 633 So.2d 504 (Fla. 1st DCA 1994). Therein, the court adopted the definition of handicap found in Section

504 of Title V of the Rehabilitation Act of 1973, but noted that the traditional Commission definition that "a person with a handicap does not enjoy in some measure the full and normal use of his sensory, mental or physical faculties," generally parallels that provided in the Rehabilitation Act. Brand, supra, at 510, footnote 10 (where, inter alia, the court indicates that under the Rehabilitation Act an "individual with handicaps" is one "who (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment.")

Further, we note that the Commission has relied on Brand, supra, to indicate that in a case in which the Hearing Officer used a definition of handicap that was essentially the same as that found in the Rehabilitation Act, the. same decisional result would have been achieved using the Commission's "traditional" definition-of handicap referenced in Brand, at footnote 10, and set out in the previous paragraph of this Order. See Williams v. Metro Traffic Control, Inc., 17 F.A.L.R. 3772, at 3773 and 3774 (FCHR 1995).

Second, in analyzing whether Petitioner established a prima facie case of discrimination, the Hearing Officer concluded that Petitioner did not establish himself to be qualified for the position from which he was terminated.

Recommended Order, I 41, 42, and I 43.

The Commission has indicated that in concluding whether an individual is "qualified" for a position for the purposes of establishing a prima facie case,

"only a total lack of qualification would prevent the establishment of a prima facie case." Little, et al. v. Monsanto Company, 15 F.A.L.R. 621, at 622 (FCHR 1992).

The Hearing Officer found that Petitioner had held the position from which he was terminated from 1987 to 1992. Recommended Order, I 1.

Therefore, for purposes of determining whether a prima facie case of discrimination was established we conclude, contrary to the Hearing Officer, that, evidenced by his tenure in the position, Petitioner was at least minimally "qualified" for the position from which he was terminated.

Third, while we agree with the Hearing Officer's disposition of this matter, we are concerned that the conclusions of law, particularly Recommended Order, I 39, could be construed to mean that chronic fatigue syndrome is not a handicap under either the Human Rights Act of 1977, as amended, or the Florida Civil Rights Act of 1992.

We note that, in a prior decision, the Commission has adopted conclusions of law which have indicated that chronic fatigue syndrome is a "handicap." See Ehlers v. Florida Employers Insurance Service Corporation, 16 F.A.L.R. 972 (FCHR 1993)

With these corrections, modifications and clarifications, we adopt the Hearing Officer's conclusions of law.

Dismissal

The Petition for Relief and Complaint of Discrimination are DISMISSED with prejudice.

The parties have the right to seek judicial review of this Order. The Commission and the appropriate District Court of Appeal must receive a notice of appeal within 30 days of the date this Order is filed with the Clerk of the Commission. Explanation of the right to appeal is found in Section 120.68, Florida Statutes, and in the Florida Rules of Appellate Procedure 9.110.

DONE AND ORDERED this 17th day of April, 1996. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Whitfield Jenkins, Panel Chairperson;

Commissioner Clarethea Brooks; and Commissioner Ronald Townsend

Filed this 17th day of April, 1996, in Tallahassee, Florida.

Sharon Moultry

Clerk of the Commission

COPIES FURNISHED:

John M. Crotty, Esquire

P.O. Drawer 2759 Gainesville, Florida 32602

Ronald D. Combs, Esquire Assistant City Attorney II

City of Gainesville - Law Department

P.O. Box 1110

Gainesville, Florida 32602

James Mallue, Legal Advisor for Commission Panel

P. Michael Ruff, DOAH Hearing Officer

Docket for Case No: 94-000264

Orders for Case No: 94-000264