STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES A. CLARK, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 95-4956

) JACKSON COUNTY HOSPITAL, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on February 9, 1996, in Blountstown, Florida, before Ella Jane P. Davis, a duly- assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles A. Clark, pro se

Post Office Box 2356 Blountstown, Florida 32424

For Respondent: Matt Fuqua, Esquire

Post Office Box 854 Marianna, Florida 32447

STATEMENT OF THE ISSUE

Is Respondent employer guilty of an unlawful employment practice, pursuant to Section 760.10, F.S., for discrimination on the basis of handicap, to wit: diabetes?

PRELIMINARY STATEMENT

This cause was referred to the Division of Administrative Hearings on October 13, 1995, after a determination of "No Cause."

Petitioner testified on his own behalf and offered no exhibits. Respondent presented the oral testimony of Jim L. Treglon and Wayne

Austin and had one composite exhibit admitted into evidence.

No transcript was ordered.

All timely-filed proposed findings of fact have been ruled upon in the Appendix to this Recommended Order, pursuant to Section 120.59(2), F.S.

FINDINGS OF FACT

1. At all times material, Petitioner was employed part-time at Respondent Jackson County Hospital as an x-ray aide. In this position, he transported patients to and from the x-ray department.

   
   

2. Petitioner had diabetes when he was hired by Respondent. He disclosed his diabetes on his initial health information sheet. The employer was aware of Petitioner's diabetes when he was hired.

   
   

3. However, on his initial health information sheet Petitioner also represented his health status as "excellent" and denied having any physical condition which impaired his body as a whole. He further represented that he had no defect "which may prevent your performance in the job. . . ". Accordingly, the employer did not know that he had a handicap, if any, when it hired Petitioner.

   
   

4. While he was employed as an x-ray aide, Petitioner had two "reactions" on the job due to his diabetes, and he was laid off immediately prior to having a third "reaction."

   
   

5. Petitioner did not describe the nature of his diabetic "reactions", and no other record evidence revealed their symptomatology.

   
   

6. Nonetheless, Petitioner felt that he did his job well and got along well with everyone. This testimony was unrefuted. Indeed, both of Respondent's witnesses acknowledged that Petitioner performed his job duties acceptably.

   
   

7. Petitioner went to Respondent hospital's emergency room as soon as he had these reactions. He assumed that some of the x-ray technicians whom he worked with in the hospital x-ray department talked to Wayne Austin, the head of the x-ray department, about his situation. No other witnesses supported his assumption.

   
   

8. No forms reporting either of Petitioner's "reactions" were received by Jim L. Treglon, Respondent hospital's assistant administrator.

   
   

9. Wayne Austin knew of Petitioner's diabetes but had no knowledge of either of Petitioner's "reactions" prior to laying him off. When Mr. Austin laid Petitioner off on August 15, 1994, he told Petitioner that it was due to the hospital's economic restructuring.

   
   

10. Petitioner believed, upon the basis of conversations with other employees who were not called to testify, that he was laid off due to his diabetes.

    
    

11. According to Mr. Treglon and Mr. Austin, the employing hospital underwent a personnel restructuring process by reduction of work force for financial reasons, and Petitioner was laid off as part of the larger financial conservation scheme. Petitioner had the least seniority and was a part-time employee, so his position was eliminated.

12. There is no evidence that Petitioner's position was ever recreated or refilled.

    
    

13. At the same time Petitioner's position was eliminated, another x-ray aide with more seniority was allowed to work weekends only, thereby reducing the hours for which that aide was paid. It is possible, but not proven, that this other aide's hours were eventually increased or restored when the hospital's economic situation improved.

    
    

14. At the same time Petitioner's position was eliminated, the x- ray department's clerk-secretary was allowed to resign, and that position was not filled.

    
    

15. As part of the employer's restructuring process, a total of 17 employees were eliminated from the employer's total work force based only upon seniority at approximately the same time Petitioner's position was eliminated.

    
    

16. Mr. Treglon testified that as of the date of formal hearing, the employer employed at least 40 people who have disclosed disabilities. The definition of "disability", as used in his testimony, was not given.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause. See, Sections 120.57(1) and

    760.10 F.S.

    
    

18. The shifting burdens of proof in discrimination cases have been extensively examined in Department of Corrections v. Chandler, 582 So. 2d 1183 (Fla. 1st DCA 1991). They are:

    
    

    Pursuant to the [Texas Department of Community Affairs v.] Burdine, [450 U.S. 248, 101 S. Ct.

    1089, 67 L. Ed. 2d 207 (1981)] formula, the employee has the initial burden of establishing a prima facie case of intentional discrimination, which once established raises a presumption

    that the employer discriminated against the employee. If the presumption arises, the burden shifts to the employer to present sufficient evidence to raise a genuine issue of fact as

    to whether the employer discriminated against the employee. The employer may do this by stating a legitimate, nondiscriminatory reason for the employment decision, a reason which is clear, reasonably specific, and worthy of credence. Because the employer has the burden of production, not 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 satisfied its burden, the

    employee must then persuade the fact finder that the proffered reason for the employment decision was a pretext for intentional discrimination. The employee may satisfy this burden of showing directly that a discriminatory reason more likely than not motivated 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 or her ultimate burden of demonstrating by a preponderance of the evidence that he or she has been a victim of intentional discrimination.

    
    

19. Section 760.10 F.S., dealing with employment discrimination, does not define "handicap," but its fair housing component does. See, Section 760.22(7), F.S.. That statute's definition of "handicap" also has been consistently applied in Florida employment discrimination cases.

    
    

20. In Brand v. Florida Power Corporation, 633 So. 2d 504 (Fla. 1st DCA 1994), an opinion by Judge Richard C. Ervin III, who also authored Chandler, supra., held that Florida courts should look to the Federal Rehabilitation Act, to federal regulations implementing that act, and to federal case law interpreting that act for guidance in resolving handicap employment discrimination claims brought pursuant to Section 760.10 F.S. The opinion goes on to hold that where the Florida Statute is modeled after federal law on the same subject, the Florida Statute will take on the same construction as is placed on its federal prototype insofar as that interpretation is harmonious with the spirit and policy of the Florida legislation.

    
    

21. The foregoing federal acts, state statutes, and cases show that, for purposes of proving a prima facie case of employment discrimination on the basis of handicap, Petitioner must minimally affirmatively show (1) that he has a physical or mental impairment which substantially limits one or more of his major life activities, (2) that he was otherwise qualified for the employment position apart from his handicap, (3) that the employer knew of his handicap, and (4) that the employer failed to find a job function consistent, through reasonable accommodation, with his handicap limitations.

    
    

22. Even so, the fact that the result of the process seems unfair to the employee alleging discrimination is not sufficient to establish proscribed discrimination if the employer's decision is based on a legitimate business reason. See, Florida Department of Community Affairs

    v. Bryant, 566 So.2d 1205 (Fla. 1st DCA 1991).

    
    

23. Herein, all witnesses, including Petitioner, concur that he was fully able to work at the tasks assigned within his job description. There is no evidence he needed or asked for any accommodation for his diabetic condition. If Petitioner required no "accommodation" by the employer, his diabetic condition did not constitute a "handicap" as

    statutorily defined, and he has not met the first step of establishing a prima facie case.

    
    

24. The Florida Commission on Human Relations has dismissed several handicap discrimination complaints pointing to the employees' failure to identify their conditions for their employers as handicap, especially when they have expressly denied having a handicap on their employment applications, or pointing to their failure specifically to request accommodation of their handicap by their employers. See, e.g. Landers v. Broward County Commissioners, 12 F.A.L.R. 4226 (FCHR 1989), Harvey v. Alachua County Board of County Commissioners, 12 F.A.L.R. 2661 (FCHR 1990), Shepherd v. Redman Homes, 10 F.A.L.R. 1610 (FCHR 1988), Lanham v. Seamless Hospital Products, 8 F.A.L.R. 4703 (FCHR 1986). See, re diabetes, specifically, Kraft v. Bechtel Power Corp., 483 So.2d 56 (Fla. 3d DCA 1986) citing Jasany v. United States Postal Service, 755 F.2d 1244 (6th Cir. 1985) to the effect that under the Rehabilitation Act the burden is upon the plaintiff to establish existence of an impairment that substantially limits a major life activity and that where a condition never had any effect on past work history and ability to carry out duties, a prima facie case of handicap discrimination was not established.

    
    

25. Since Petitioner did not establish a prima facie case of handicap discrimination (i.e. he has proven he was terminated but not that he is handicapped as defined by the statute or that he was terminated due to handicap), it is not necessary to go further.

    
    

26. However, even if a prima facie case of termination due to handicap had been established herein, Petitioner could not prevail upon the facts of this case. 1/ The employer has put forth a nondiscriminatory reason (economics) for terminating Petitioner and further, has shown gross similarities between its actions toward Petitioner and towards other non-handicapped employees similarly situated. Petitioner was the aide with the least seniority, so he was the first to be terminated, but other employees left and were not rehired or had their hours reduced to save the employer's money.

    
    

27. Pursuant to the controlling case law, Chandler, et al., supra., the employer need only articulate such a nondiscriminatory reason. In the absence of affirmative proof of a clearly discriminatory motive or a mixed motive for the employer's actions, the employer need not persuade the trier of fact that its proffered reason for its employment decision was its real reason. Once the employer has advanced the facially non- discriminatory reason, it is Petitioner's job to then persuade that the reason given by the employer for termination was a pretext for discrimination. Petitioner has not offered any persuasive evidence to the contrary. His "belief" is insufficient as a matter of law.

    
    

28. That Petitioner was unable to demonstrate that the employer either knew of his on-the-job "reactions" or that the employer recreated his position or hired anyone in his place strongly supports a conclusion of "no discrimination."

29. In this case, the undersigned is persuaded, in light of no evidence at all to the contrary, that economics was the employer's legitimate, nondiscriminatory reason for terminating the Petitioner.

RECOMMENDATION

Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED:

That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief herein and determining that Petitioner recover nothing thereby.

DONE and ENTERED this 26th day of March, 1996, in Tallahassee, Leon County, Florida.

ELLA JANE P. DAVIS, 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 26th day of March, 1996.

ENDNOTE

1/ Under the case law, it is conceivable that an unlawful employment practice could be found to exist if an employee proved he was terminated due merely to the employer's apprehension that the employee's physical condition might, in the future, impair the employee's job performance or increase the employer's insurance exposure or for some other corollary discriminatory reason. Herein, due to the employer's lack of knowledge of any of the "reactions" and the legitimate, nondiscriminatory reason for Petitioner's termination, it is not necessary to reach any of those "what ifs?" in this case.

APPENDIX TO RECOMMENDED ORDER CASE NO. 95-4956

The following constitute specific rulings, pursuant to Section 120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF).

Petitioner's PFOF:

Petitioner submitted no proposed findings of fact.

Respondent's PFOF:

Respondent's proposals are rejected for failure to conform them to Chapter 60Q-2 F.A.C. and the requirements of the posthearing order and because they are wholly legal argumentation, not proposed findings of fact.

COPIES FURNISHED:

Mr. Charles A. Clark Post Office Box 2356

Blountstown, Florida 32424

Matt Fuqua, Esquire Post Office Box 854 Marianna, Florida 32447

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

325 John Knox Road

Tallahassee, Florida 32303-4149

Dana C. Baird, Esquire Human Relations Commission Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

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 10 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: 95-004956

Orders for Case No: 95-004956