STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DANIEL J. CELLUCCI, )

)

Petitioner, )

)

vs. ) CASE NO. 94-1614

) AMERICAN CABLESYSTEMS OF FLORIDA ) LIMITED d/b/a CONTINENTAL ) CABLEVISION OF BROWARD COUNTY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Susan B. Kirkland, held a formal hearing in this case on July 26, 1994, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Ronald Thomas Spann, Esquire

Ronald Thomas Spann & Associates

1600 Southeast 17th Street, Suite 414 Fort Lauderdale, Florida 33316

For Respondent: William C. Thomas, III, Esquire

Diane E. Stanton, Esquire

Jackson, Lewis, Schnitzler & Krupman

390 North Orange Avenue, Suite 1285 Orlando, Florida 32801

STATEMENT OF THE ISSUES

Whether Respondent committed an unlawful employment practice.

PRELIMINARY STATEMENT

On March 21, 1994, Petitioner, Daniel J. Cellucci, filed a Petitioner for Relief from an unlawful employment practice alleging that Respondent, American Cablesystems of Florida Ltd., d/b/a Continental Cablevision of Broward County, discriminated against him by failing to hire him because of a disability. The case was forwarded to the Division of Administrative Hearing for assignment to a hearing officer on March 25, 1994.

At final hearing, Petitioner testified in his own behalf and called Richard Jacobi and Bernard Dorsett as witnesses. Petitioner Exhibits 1-6 were admitted into evidence. Respondent called Bernard Dorsett as a witness. Respondent's Exhibits 1, 2, 4, 5, and 6 were admitted into evidence.

At the final hearing the parties agreed to file proposed recommended orders within ten days of the filing of the transcript. The transcript was filed on August 12, 1994. Petitioner did not file a proposed recommended order.

Respondent filed its proposed recommended order on August 22, 1994. Respondent's findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent, American Cable Systems of Florida, Ltd., d/b/a Continental Cablevision of Broward County (Continental), is a supplier of cable television services. Petitioner, Daniel J. Cellucci (Cellucci), filed an application for employment as a Service Technician I with Continental on or about January 13, 1993.

   
   

2. Cellucci gave the receptionist at Continental his completed application form, his resume, and letters of reference.

   
   

3. Bernard Dorsett (Dorsett) and Richard Jacobi (Jacobi), both Supervisors of Technical Operations at Continental, shared the responsibility for interviewing applicants for the position of Service Technician I. Dorsett called Cellucci and set up an interview.

   
   

4. Cellucci was interviewed by Dorsett and Jacobi on January 15, 1993. During the interview, Cellucci wore a back brace underneath a loose fitting shirt. Dorsett and Jacobi explained the requirements and the benefits of the position to Cellucci. It was standard practice of Continental to show all applicants a copy of the position description during the interview. Dorsett showed Cellucci a copy of the position description for a Service Technician I during the interview.

   
   

5. The position description listed the following as essential job functions of a Service Tech I:

   
   

   1. Monitors customer's reception and radio frequency with test meters to ensure cable is in proper working condition.

   2. Replaces any or all parts of drop as necessary to resolve customer problems or leaks, back to the line extender.

   3. Makes necessary adjustments and repairs to equipment to resolve customer problems or leaks.

   4. Handles difficult or confrontational customer situations tactfully.

      
      

6. The position description required that the applicant possess the following skills:

   
   

   Ability to lift and climb 70 pound ladders, ability to climb a pole and work at heights up to 25 feet, basic mathematics skills, good verbal and written communications skills.

   Needs tack and ability to handle difficult customers. Ability to crawl, bend, stoop, crouch.

7. The 70 pound ladder, which is used by a Service Technician I throughout his workday, is transported to the job site on top of a service van. In order to remove the ladder from the top of the service van, the Service Technician I must lift the ladder from the top of the service van. The Service Technician I then carries the ladder to the location where the work is to be performed and puts the ladder in position.

   
   

8. In addition to being able to lift a 70 pound ladder, a Service Technician I must be able to lift spools of cable which weigh from 25 to 50 pounds. Service Technician I's work alone. Being able to lift up to 70 pounds is an essential function of the job of a Service Technician I.

   
   

9. Based on his past experience in the cable industry, Cellucci knew that he would have to be able to lift ladders which could weigh up to 70 pounds in order to carry out the functions of a Service Technician I.

   
   

10. Sometime during the interview, Cellucci voluntarily advised Dorsett and Jacobi that he had a back problem and provided them with a letter dated January 4, 1993, from his treating physician, Dr. George Bonis. The letter stated, "Lifting is limited to 25 pounds at the present time and he should be able to change positions between standing, walking and sitting at will."

    
    

11. At the time of the interview, Cellucci could lift more than 25 pounds; however he did not advise either Jacobi or Dorsett that he could lift more than

    25 pounds at that time. Cellucci did advise them that he was undergoing physical therapy, that he was improving and that he expected the lifting restriction to be a temporary one.

    
    

12. At the time of the interview Cellucci, Jacobi, and Dorsett, viewed Cellucci's lifting restrictions to be temporary. Neither Dorsett nor Jacobi perceived Cellucci's back injury or his lifting restrictions to be a disability.

    
    

13. On January 30, 1993, Dr. Bonis discharged Cellucci. Cellucci was able to lift more than 70 pounds at the time he was discharged. Additionally, he was no longer required to wear the back brace which he had worn during his interview. He did not advise anyone at Continental that he no longer had a lifting restriction after he was discharged by Dr. Bonis.

    
    

14. Cellucci was not hired because he could not meet the 70 pound lifting requirement.

    
    

15. Cellucci's back injury does not limit one or more major life activities. When asked at hearing whether his disability prohibited him from doing any major life activities, Cellucci replied, "None whatsoever. In fact I work out on a day-to-day basis. I run every evening, I swim."

    
    

16. In June of 1993, Cellucci became employed as a sales manager for Inter-Continental at a rate of pay of $17.00 per hour plus commissions.

    
    

17. In November of 1993, Petitioner became a full-time student and became employed by Production Arts at a rate of pay of $10.00 per hour. In that job, Cellucci currently lifts objects which weigh up to 200 pounds.

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

    
    

19. Section 760.10(1), Florida Statutes, makes it an unlawful employment practice to:

    
    

    To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to

    compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.

    
    

20. In handicap discrimination cases based on Section 760.10, the courts look to Section 504 of the Rehabilitation Act of 1973 for guidance in resolving the claims. Brand v. Florida Power Corporation, 633 So.2d 504 (Fla. 1st DCA 1994).

    
    

21. In order to establish a prima facie case of handicap discrimination, the Petitioner must show 1) that he is handicapped; 2) that he is otherwise qualified for the position; and 3) that he was excluded from the position solely because of the handicap. If the Petitioner establishes a prima facie case, the Respondent has the burden of producing evidence to show that its consideration of the handicap was relevant to the qualifications of the position sought. If the Respondent establishes valid reasons for the rejection, the Petitioner must present evidence concerning his individual capabilities and suggestions for possible accommodations. Id. at 510-512.

    
    

22. An individual with a handicap is defined as "one who (i) has a physical or mental impairment which substantially limits one or more of such person's life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment." 29 C.F.R. s.1630.2(i). A temporary condition is not a handicap. Paegle v. Department of Interior, 813 F.Supp 61 (D.D.C. 1993).

    
    

23. Cellucci did not establish by a preponderance of the evidence that he has a handicap. He testified that his major life activities are not impaired by his back injury and in fact claims that he lifts up to 200 pounds in his present job. Although he may have had a lifting restriction at the time of his interview, that restriction was lifted a little over two weeks after the interview. Although Cellucci contends that he could lift more than 25 pounds at the time of the interview, he did not advise either Jacobi or Dorsett that he could do so. Nor did Cellucci advise them when the restriction was lifted.

    
    

24. Cellucci's lifting restrictions and any other restrictions related to his back injury at the time of the interview were temporary. Cellucci advised Jacobi and Dorsett at the time of the interview that the 25 pound lifting restriction was temporary and that he was in therapy.

    
    

25. Cellucci has not established that he has a record of a physical or mental impairment which substantially limits one or more of his major life activities. Cellucci had injured his back approximately a year before the

    interview and was recovering from that injury. No testimony was presented that his back injury was a permanent, disabling condition.

    
    

26. Cellucci did not establish that his lifting restrictions were perceived as permanent. He told Jacobi and Dorsett that it was temporary and they thought that it was a temporary condition. Cellucci also perceived the lifting restrictions as temporary.

    
    

27. An essential function of the job of a Service Technician I is to be able to lift objects up to 70 pounds and, in particular, a 70 pound ladder which is used on a daily basis in performing the job of a Service Technician I. Based on the information that Cellucci supplied Dorsett and Jacobi at the interview, Cellucci could not perform this essential requirement of the job. Service Technician I's work alone in the field; therefore another service technician would not be available to assist Cellucci in lifting the ladder and other objects weighing more than 25 pounds. Additionally, because the service technicians worked alone the job could not be restructured so that Cellucci would not have to lift objects weighing more than 25 pounds.

    
    

28. In Paegle, the court discussed the requirement for being a "qualified handicapped person."

    
    

    A `qualified handicapped person' is one who, with or without reasonable accommodation, can perform the essential functions of the position in question without endangering the health

    and safety of the individual or others.

    29 C.F.R. s.1613.702(f). See also Southeastern Community College v. Davis, 442 U.S. 397, 407, 99 S.Ct. 2361, 2367, 60 L.Ed.2d 980 (1979)

    (An 'otherwise qualified person is one who is able to meet all of a program's requirements in spite of his handicap').

    
    

    Id. at 65.

    
    

29. Cellucci has failed to establish that he is a qualified handicapped person. He did not establish that he could meet the 70 pound lifting requirement at the time of the interview. In fact, he advised Dorsett and Jacobi that he could not meet the lifting requirement.

    
    

30. Cellucci has failed to establish a prima facie case of handicap discrimination.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Daniel Cellucci's claim

of handicap discrimination against American Cable Systems of Florida, Ltd.,

d/b/a Continental Cablevision of Broward County.

DONE AND ENTERED this 29th day of August, 1994, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

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 29th day of August, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1614

To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on Respondent's proposed findings of fact:

Respondent's Proposed Findings of Fact.

1. Paragraph 1: The first part of the paragraph is accepted in substance. The second half of the paragraph is rejected as constituting a conclusion of law.

2. Paragraphs 2-12: Accepted in substance.

3. Paragraph 13: The first sentence is accepted in substance. The remainder of the paragraph is rejected as unnecessary.

4. Paragraph 14: The first sentence is accepted in substance. The remainder of the paragraph is rejected as subordinate to the facts actually found.

5. Paragraphs 15-17: Rejected as unnecessary.

6. Paragraphs 18-31: Accepted in substance.

COPIES FURNISHED:

Sharon Moultry, Clerk Commission on Human Relations

325 John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149

Dana Baird General Counsel

Commission on Human Relations

325 John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149

Ronald Renzy, Esquire

Ronald Thomas Spann, Esquire

1600 Southeast 17th Causeway, Suite 414 Ft. Lauderdale, Florida 33316

William C. Thomas, III, Esquire

120 East Robinson Street Orlando, Florida 32801

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 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.

Docket for Case No: 94-001614

Orders for Case No: 94-001614