R. PERROTT, INC., )
Respondent. )
Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its assigned Hearing Officer, Donald R. Alexander, on July 20, 1995.
For Petitioner: P. Daniel Williams, Esquire
For Respondent: Winston K. Borkowski, Esquire
Whether respondent is guilty of an unlawful employment practice as alleged by petitioner.
This matter began in July 1994 when petitioner, William C. Eagle, filed a charge of discrimination with the Florida Commission on Human Relations alleging that respondent, S. R. Perrott, Inc., had violated Section 760.10, Florida Statutes, by discharging him because of a handicap. After the agency conducted a preliminary investigation, its executive director issued a Determination: No Cause on January 23, 1995. Petitioner then filed a petition for relief on March 2, 1995. The matter was referred by the agency to the Division of Administrative Hearings on April 12, 1995, with a request that a Hearing Officer be assigned to conduct a formal hearing.
By notice of hearing dated May 12, 1995, a final hearing was scheduled on July 10, 1995, in Daytona Beach, Florida. At respondent's request, the matter was rescheduled to July 20, 1995, at the same location.
At final hearing, petitioner testified on his own behalf and offered petitioner's exhibits 1-3. All exhibits were received in evidence. Respondent presented the testimony of R. Gary Connors, its general manager, Richard H.
Shaffer, its plant manager, and Dr. James W. Bennett, a chiropractic physician. Also, it offered respondent's exhibits 1 and 2. Both exhibits were received in evidence.
There is no transcript of hearing. Proposed findings of fact and conclusions of law were filed by petitioner on August 4, 1995. None were filed by respondent. A ruling on each proposed finding is made in the Appendix attached to this Recommended Order.
This case involves a claim by petitioner, William C. Eagle (petitioner or Eagle), that in February 1994 he was denied employment as a delivery helper by respondent, S. R. Perrott, Inc., on account of a real or perceived handicap. According to the complaint, at the time the alleged discriminatory practice occurred, petitioner was suffering from a "soft tissue injury" from a "work related accident with his former employer." Because the evidence shows that in February 1994 petitioner did not enjoy in some measure the full and normal use of his physical facilities, he was a handicapped person, at least temporarily, within the meaning of the law. A preliminary investigation by the Florida Commission on Human Relations (Commission) found no reasonable cause to believe that an unlawful employment practice had occurred.
Respondent is a beer distributor in Ormond Beach, Florida. Whether respondent employs "fifteen or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year" so as to be subject to the Florida Civil Rights Act of 1992, as amended, is not of record.
In February 1994, petitioner learned of an opening for a delivery helper at respondent's plant. The position required that the employee unload beer kegs weighing 167 pounds from a delivery truck onto a dolly and then push the dolly into the business establishment. At that point, the employee would have to bend over and lift the keg off of the dolly to a waist-high position and place it in the desired location. Empty kegs would then be loaded onto the dolly and taken back to the truck and loaded. Since a truck would typically make up to 30 to 40 stops per day, the helper was required to engage in repetitious bending, twisting and lifting of heavy objects.
After filing an application with respondent, petitioner was interviewed by respondent's general manager, Gary Connors, on February 23, 1994. During the interview, petitioner failed to disclose that he had suffered a back injury on a previous job, he was receiving worker's compensation benefits, he was then being treated by a doctor, and because of the injury, he was, at least arguably and temporarily, a handicapped individual. Without these undisclosed facts, Connors believed Eagle was qualified for the job and told him to report to work the next morning as a delivery helper. Like every other applicant, however, Eagle was also told that the job was contingent on his successfully passing a pre- employment physical examination.
On the same morning that petitioner began work, or February 24, 1994, Connors contacted the office of Dr. James W. Bennett, a local chiropractic physician who conducted employment physicals for respondent, to set up an appointment for Eagle. During his telephone conversation with Dr. Bennett, Connors learned that Eagle was being treated by Dr. Bennett for a back injury
suffered on his previous job, and that he had been examined by Dr. Bennett on February 14, 1994, or ten days earlier. Dr. Bennett accordingly saw no need to re-examine Eagle, and he advised Connors that Eagle could aggravate "an existing, active injury," and that he could not pass the pre-employment physical examination.
Based on this information, Connors immediately spoke with the plant manager, Richard Shaffer, and instructed him to recall Eagle from his route and terminate his employment. In making this employment decision, Connors was not motivated by discriminatory animus, but rather he made the decision solely because of Eagle's inability to pass a pre-employment physical examination, a prerequisite for employment for all job applicants. Indeed, at that time, while Connors knew that Eagle had a pre-existing back injury through conversations with Dr. Bennett, he neither knew, or had reason to believe, that the injury constituted a handicap under the law.
Shaffer recalled Eagle from his route and discharged him around noon on February 24, 1994. Since Shaffer did not know the reason for the termination, he told Eagle to check back in a few days and he would find out the specific reason for his discharge. A few days later, Eagle returned and met with Connors who told him that he was discharged because he could not pass the pre-employment physical examination. Several months later, Eagle filed his charge of discrimination.
At hearing, Eagle denied that he was handicapped and asserted that as of February 1994 he "felt fine" physically. Indeed, he described in some detail the type of heavy manual labor he had performed with another employer up to the time he applied for the position. He also contended that the injury was minor and would not interfere with a delivery helper's tasks. But testimony from Dr. Bennett established that as of February 24, 1994, Eagle had "a current, precarious injury," namely, moderate chronic lumbar sprain strain, that work restrictions with his former employer had been recommended, and that Eagle was "highly likely" to worsen that injury should he engage in the job activities required of a delivery helper. This testimony was not credibly contradicted. Although Eagle was later discharged from Dr. Bennett's care on April 1, 1994, Eagle could not pass the pre-employment physical examination on February 24, 1994, when the employment decision was made, and thus he did not qualify for the job.
Eagle further suggested at hearing that, assuming he was handicapped, respondent failed to take reasonable steps to accommodate his disability. But Eagle made no request for accommodation either at the time he sought the position or after he learned the reason for his termination. Even if Eagle had requested accommodation, respondent had no positions in the business that did not require some heavy lifting except for a secretarial slot, for which Eagle was not qualified. Moreover, respondent's general manager did not know, or even believe, that Eagle was handicapped and thus may have required accommodation. Then, too, in order to accommodate Eagle, respondent would have had to make fundamental alterations in its work program or even create a new job. Eagle did not rebut this showing at hearing, and he failed to respond with any evidence regarding his individual capabilities and suggestions for possible accommodations by respondent within the restrictions imposed by Dr. Bennett.
There is no evidence regarding the compensation Eagle would have received as a delivery helper. The record also fails to establish his compensation since that time, and thus there is no basis on which to make a
finding as to lost wages. Whether petitioner seeks reinstatement as a delivery helper is also not of record.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Section 120.57(1), Florida Statutes.
The alleged unlawful employment practice occurred in February 1994. Therefore, the Florida Civil Rights Act of 1992, as amended, governs this proceeding. Section 760.10(1)(a), Florida Statutes, provides in part as follows:
It is an unlawful employment practice for an employer:
(a) To discharge . . . or refuse to hire any individual . . . because of such individual's
. . . handicap . . .
As a threshold matter, petitioner is obliged to show that respondent is an employer subject to the Florida Civil Rights Act of 1992, as amended. To do this, he must affirmatively demonstrate that respondent employs "15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year." Because such a showing was not made, there is no record basis on which to conclude that respondent is subject to the Commission's jurisdiction. On this basis alone, the petition should be denied.
Notwithstanding this fatal deficiency, the undersigned will address the merits of the claim. In doing so, the undersigned notes that the parties have suggested different allocations of burdens of proof in proving petitioner's claim. Although respondent failed to file a post-hearing proposed order setting forth its theory, it contended at hearing that the employment decision was made for reasons unrelated to Eagle's handicap, that is, his inability to pass a pre-employment physical examination. Assuming this to be the proper class of case, the traditional analysis used in employment discrimination cases must apply. Brand v. Florida Power Corporation, 633 So.2d 504, 508 n. 5 (Fla. 1st DCA 1994). Thus, Eagle would be required to establish a prima facie case of unlawful discrimination, which if made, would shift the burden to respondent to produce evidence articulating a legitimate, non-discriminatory reason for its action. Assuming this burden is met, the burden of producing evidence is next placed on Eagle to show that the employer's proffered reason was not the true reason but was in fact a pretext for discrimination.
Eagle has failed to establish a prima facie case of unlawful discrimination. But even if he did, respondent has articulated a legitimate, non-discriminatory reason for its action, namely, a rejection based on Eagle's failing to meet a standard prerequisite for employment, the pre-employment physical examination. Because Eagle did not show that the proffered reason was a pretext for discrimination, the petition must accordingly fail.
In his proposed recommended order, petitioner argues that he was rejected on account of a perceived handicap, a theory not borne out by the evidence. Even so, in order to make out a prima facie case in this class of case, Eagle must show that he was perceived to be a handicapped person under the law, he is qualified for the position apart from his perceived handicap, and he was denied the job solely because of the perceived handicap. If this showing is
made, the burden shifts to the employer to show that its consideration of the handicap was relevant to the qualifications of the position sought. In other words, respondent must show that Eagle's perceived handicap is such that it cannot be accommodated, or if it could be accommodated, the proposed accommodation would be unreasonable or result in an undue hardship on respondent. Once this showing is made, the burden then shifts to Eagle to produce evidence showing his individual capabilities and suggestions for further accommodations. Brand at 511-12. As set forth in the findings of fact, however, there is no evidence to support the notion that Eagle was rejected on account of a perceived handicap. Even if this were the case, respondent nonetheless demonstrated that any proposed accommodation would be unreasonable or result in an undue hardship.
In his petition for relief, Eagle argues alternatively that if he qualifies as a handicapped individual, respondent was obligated to seek reasonable accommodations for his condition. As noted above, as to this issue, respondent established that petitioner's handicap (or temporary injury) could not be accommodated given the nature of work involved at the plant, and any proposed accommodation would be unreasonable because it would essentially require the employer to make fundamental alterations in its program. Alexander
v. Choate, 469 U. S. 287, 300 (1985) (employer not required to make fundamental alterations in its work plan); School Bd. of Nassau County, Fla. v. Arline, 480
U. S. 273, 289 n. 19 (1987)(employer not required to create a new job for the applicant). This showing was unrebutted, and thus petitioner's alternative theory of relief must also be rejected.
Finally, in reaching the above conclusions, the undersigned has considered the case of E. E. Black, Ltd. v. Marshall, 497 F. Supp. 1088 (D. C. Hawaii 1980), which petitioner contends is controlling. For the following reasons, however, the undersigned deems that case to be distinguishable. In Marshall, the federal district court reviewed an order of the United States Department of Labor which found in favor of a job applicant who had been rejected on account of a perceived handicap. More specifically, an applicant was denied employment as an apprentice carpenter because of an incorrect perception by the employer that the applicant was handicapped due to a congenital back anomaly discovered during the course of a pre-employment physical examination and thus he could not safely perform the required job duties. Shortly thereafter, the applicant was examined by another doctor who concluded that, nothwithstanding the applicant's various physical infirmities, they did not prevent him from performing his required job duties. Given these subsequent medical findings, the Department of Labor concluded that the applicant had the present capacity to perform the job, and he could not be disqualified when at best his condition had only a potential for future significance. Without making a final adjudication on the merits of the claim, the district court granted partial summary judgment in favor of the agency on the limited issues of whether the definition of the term "qualified handicapped individual" within the Act and regulations was constitutional, and whether the rejected applicant was in fact a qualified handicapped individual within the meaning of the law. All other issues, including whether the employer could lawfully screen out qualified handicapped individuals on the basis of possible future injury, were reserved for trial. How those issues were ultimately resolved by the court is not reported in the opinion.
In contrast to Marshall, there was no credible proof here to verify that Eagle was physically able to perform the job at the time he filed his application. Indeed, the more credible and persuasive accepted evidence on this issue, as offered by Dr. Bennett and contained in finding of fact 8, showed that
Eagle could not pass a pre-employment physical examination, he then had a "current, precarious injury," and it was "highly likely" that he could worsen his injury should he undertake a delivery helper's job duties. This testimony was not credibly contradicted. It is further noted that the Marshall decision predates the wealth of law governing accommodation of handicapped individuals, and this issue was never addressed by the court. In the instant case, as to this issue, a ruling has been made in favor of the employer.
In summary, petitioner has failed to prove that respondent is an employer subject to the Florida Civil Rights Act of 1992, as amended. Further, under either the traditional analysis used in employment discrimination cases or the analysis used when handicap is the proffered reason for rejection, Eagle has failed to establish a prima facie case. This being so, the petition for relief should be denied.
Finally, respondent's request for reasonable attorney's fees under Section 760.11(7), Florida Statutes, is referred to the Commission, which by law has the discretion to award the same to the prevailing party.
