STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

Petitioner,

BRUNO'S, INC.,

)

)

) CASE NO. 96-1907

)

)

RECOMMENDED ORDER

January 7-8, 1997, in Tallahassee, Florida, before Ella Jane P.

of Administrative Hearings.

For Petitioner: Marvin Young,

2114 Saxon Street

For Respondent: Deborah A. Mattison, Esquire

GORDON, SILBERMAN, WIGGINS & CHILDS, P.A.

B

STATEMENT OF THE ISSUE

against Petitioner by terminating him due to his handicap

PRELIMINARY STATEMENT

Petitioner filed a timely complaint with the Florida Human Relations Commission against Respondent alleging Petitioner had been terminated by Respondent due to Petitioner's handicap.

Respondent did not file a Position Statement, and the Commission applied its "adverse inference rule" to enter a "DETERMINATION: CAUSE" on March 14, 1996.

Petitioner timely filed a Petition for Relief which added allegations of offenses under the federal Americans With Disabilities Act (ADA) to his original allegations under Chapter 760 Florida Statutes. The Commission's Determination had never considered any issues outside the Civil Rights Act of 1992. The cause was referred to the Division of Administrative Hearings on or about April 25, 1996.

On May 15, 1996, notice for formal hearing on July 29, 1996 was mailed. On June 23, 1996, Respondent filed a Motion for Continuance. By stipulation, an Order entered July 16, 1996 continued formal hearing until September 5, 1996. On August 7, 1996, Petitioner's Motion to Continue was granted, pending resolution of problems he was having with his attorney, who had filed a Motion to Withdraw on August 6, 1996. On August 28, 1996, an order was entered permitting withdrawal of Petitioner's attorney, resetting formal hearing for October 17, 1996, and giving notice that any ADA claims would not be considered in this case or forum. On October 7, 1996, after a telephonic conference

call on September 27, 1997, formal hearing was rescheduled for January 7-8, 1997, a date mutually agreed to by Petitioner and Respondent.

At formal hearing on January 7-8, 1997, Petitioner's oral motion for continuance for additional time to find an attorney was denied.

After oral argument, Petitioner's Answers to Requests for Admission 2 and 6 were deemed "admitted".

Petitioner presented the oral testimony of Mary Ann McCarthy and testified on his own behalf.

Exhibits P-1 through P-7 were admitted in evidence.

At the close of Petitioner's case-in-chief, Respondent moved for a summary recommended order. That motion was taken under advisement for resolution within this Recommended Order.

Respondent presented the oral testimony of Petitioner, Ron Funderburk and Calvin Jenkins and presented as exhibits, the depositions of Petitioner and of Ricardo Ayala, M.D.

Exhibits R-1 through 7A and 7B, R-12 through 15, and R-19 through 20 were admitted in evidence.

The transcript was filed March 7, 1997.

Over objection, as considered in Orders entered April 2 and April 8, 1997, Petitioner's late-filed Proposed Order was considered simultaneously with Respondent's Proposed Order.

FINDINGS OF FACT

1. This cause arose because Petitioner wanted to return to work in Respondent-Employer's grocery store after having been off work due to epileptic seizures and treatment therefor in March, 1995. Respondent terminated Petitioner effective April 10, 1995. Petitioner claims to be the victim of an unfair employment practice on the basis of handicap.

2. At least from March 22, 1995 and continuing through the date of formal hearing, Petitioner has suffered from epileptic seizures up to twice a day. During the entire period, Petitioner has remained on medication (Dilantin) for control of these seizures. At formal hearing, Petitioner complained that he must take Dilantin every 4-5 hours, but it sometimes is not effective to control his seizures after 3-4 hours. It is therefore concluded that his epileptic seizures are not under control.

3. Petitioner was hired by Respondent before his handicap manifested itself and was a good worker during the time employed.

4. On December 21, 1993, Respondent hired Petitioner to work as a Meat Cutter. His hours of employment were typically noon to 9:00 or 10:00 p.m., although apparently he worked one shift a week from 7:00 a.m. to 4:00 p.m. Between the hours of 4:00 p.m. and closing, Petitioner was the only Meat Cutter on duty in his grocery store.

5. Meat Cutters are highly skilled tradesmen who are required to be knowledgeable about cuts of meat. In the

   Respondent's grocery stores they are paid at the highest rate for non-supervisory personnel.

6. Petitioner worked primarily as a part-time apprentice Meat Cutter until July 23, 1994, when his pay rate increased and he was designated a full-time employee.

7. At all times material, Calvin Jenkins was Petitioner's immediate supervisor. As Market Manager, Mr. Jenkins was responsible for overseeing the Meat Department and its employees. At all times material, Ron Funderburk, Store Director, had ultimate supervisory, hiring and firing responsibilities and authority for the grocery store. Respondent qualifies as an "employer" under Chapter 760, Florida Statutes.

8. On or about March 22, 1995, Petitioner experienced a seizure while asleep at home. Thereafter, Petitioner received medical treatment, and Dr. Ayala placed him on Dilantin to control his seizures. Dr. Ayala remains Petitioner's primary treating physician.

9. As a result of his medical condition, Petitioner was totally unable to work for a few weeks immediately after he experienced his first seizure. Respondent gave Petitioner time off and did not fill his position as a Meat Cutter, hoping that he would be able to return to work.

10. Twice during March and April 1995, Petitioner had a friend deliver to Ron Funderburk and/or Calvin Jenkins Dr. Ayala's written restrictions to the affect that Petitioner should

    not work as a Meat Cutter while on medication and Dr. Ayala's recommendation that Petitioner be allowed to work as a Meat Wrapper. In making that recommendation, Dr. Ayala was unaware of what wrapping meat entails. He has since altered that recommendation. When deposed on July 16, 1996, he testified that he had not had enough information to recommend that Petitioner be hired back as a Meat Wrapper. As of that date, Dr. Ayala felt Petitioner should not be around heavy machinery that poses a risk to him until medication renders him seizure-free for six months.

11. At all times material, and presently, the essential functions and/or bona fide occupational duties of the Employer's Meat Cutters included unloading trucks of meat; slicing, grinding, and cutting meat; "working the case" (arranging the wrapped case goods), servicing customers, and cleaning up.

12. The Employer's Meat Cutters have been, and are, responsible for cutting all the meat in the store and for wrapping most of the meat. They must be able to use and were/are required to use knives, saws, slicers, meat grinders and meat wrapping machines.

13. The saw which is most used to cut meat consists of a "band saw". It relies on a circular blade to cut any bones in the meat.

14. The slicer consists of a saw with a 14-inch circular blade.

15. A Meat Cutter was/is also required to use a meat

    grinder.

    
    

16. Any of these machines would be dangerous to an individual, such as Petitioner, who may be rendered unconscious due to a seizure. Digits, and even limbs, can be automatically drawn into these apparatuses and/or severed.

17. In March or April 1995, when presented with Petitioner's medical restrictions, Ron Funderburk and Calvin Jenkins concluded that Petitioner could no longer function as a Meat Cutter.

18. By Request for Admission 6, Petitioner admitted that, "due to his physician's medical restriction, from April 1995 to the present, Petitioner was not qualified to perform the essential functions of a Meat Cutter." Further, Petitioner testified that he has not been "capable of cutting anything" since March 22, 1995 and that he never told Mr. Funderburk that he wanted to return to his job as a Meat Cutter.

19. Petitioner applied for Social Security Supplemental Security Income benefits on March 13, 1996. On his application, Petitioner claimed he had been disabled since March 1, 1995. He also said that his condition caused him to stop working as of April 10, 1995. Finally, Petitioner stated that he could not use any machinery, knives or work around machines. Several times, he has informed the Social Security Administration that he cannot use knives, or any machines, including a lawn mower. He also

    stated he cannot walk much, shop, cook, socialize, and/or perform housework, and that his condition is worsening.

20. It is abundantly clear that Petitioner consistently has not been qualified to perform the bona fide qualifications of the Meat Cutter position since March 22, 1995.

21. In March or April 1995, Mr. Funderburk offered to transfer Petitioner to another position. Petitioner responded by asking if the alternative position would pay him at the same rate as he had been earning as a Meat Cutter. The only position available at that time was a Clerk position which paid less than a Meat Cutter position even with no loss of Petitioner's earned seniority.

22. Mr. Funderburk is clear and credible that Petitioner never told him Petitioner would take the Clerk's job at less pay. Also, it is abundantly clear Petitioner did not report to work in that category, and his testimony generally suggests that he had not wanted to work for the lesser salary.

23. Respondent would have had to create a position to employ Petitioner as a cleanup person, but cleanup personnel also are paid less than a Meat Cutter.

24. In hindsight, Petitioner suggested that regardless of whether he ever actually asked Mr. Funderburk for a specific position or not, it was the Employer's duty to search out a job of comparable pay scale which Petitioner could do, such as working in the service case or deli. However, in March and April

    1995 there was no job position limited to working in the service case. Petitioner also believes now that he should have been transferred into the position of Stocker or Meat Wrapper, but each of those positions also made less than a Meat Cutter. Also, there is no credible evidence that Petitioner actually requested any accommodation of his handicap and only his self-serving testimony that he requested that he be designated a Meat Wrapper and paid at the higher salary he had previously been paid as a Meat Cutter.

25. It was initially Petitioner's contention that while employed as a Meat Cutter prior to his seizures, he actually had never been required to cut meat. Therefore, Petitioner reasoned, the Employer was obligated to "accommodate" his handicap by paying him at the rate for a Meat Cutter even if, after his seizures began, he was able only to clean up the store and perform the duties of a Meat Wrapper.

26. Contrary to his initial contention, however, Petitioner eventually testified that while employed by this Employer as a Meat Cutter prior to his first seizure he had, indeed, cut meat, mostly chicken; had sliced meat; had ground hamburger; and one day a week, he had to use the automatic wrapping machine.

27. Also, Petitioner failed to credibly show that he had never cut other types of meat before he began to have seizures. In making this finding of fact, every effort has been made to

    reconcile the witnesses' respective testimony so that all witnesses may be found to speak the truth. To that end, Petitioner has been given the benefit of the doubt, but where conflicts exist, the credibility issue has been resolved against Petitioner for the following reasons: Mr. Funderburk hired Petitioner based in part on Petitioner's vocational training and experience as a Meat Cutter. Petitioner's candor and demeanor while testifying that he had never cut meat other than chicken was not that of a wholly credible witness, and he frequently contradicted this statement. Petitioner has made myriad prior statements which are inconsistent and, indeed, contradictory to his denial of cutting meat. Petitioner had filled out a workers' compensation accident report for Respondent on July 21, 1994 asserting that he cut himself with a knife in the course and scope of cutting meat while employed by Respondent-Employer as a Meat Cutter. His supervisor, Mr. Jenkins, observed Petitioner cutting and grinding meat and using all of the equipment associated with the Meat Cutter position. Petitioner informed the federal Social Security Administration that he had used "cutting saw, meat department, knife, grinder for meat, buffing machine, meat slicer, chain saw, Meat Cutter at Harvey's, Bruno's, using all of these tools while there [sic]" Moreover, to believe Petitioner that he never had to cut any meat except chicken during his employment from December 1993 through February 1995 when he was the only Meat Cutter on duty in Respondent's

    store from 4:00 p.m. to closing would also require believing that in all that period of time no customer every requested a special cut of meat after 4:00 p.m. Common sense precludes finding such a representation by Petitioner to be credible.

28. More to the point is whether Petitioner asked for a Meat Wrapper position, was qualified to wrap meat, or could be accommodated by being assigned solely as a Meat Wrapper. The credible evidence clearly and convincingly demonstrated that at all times material, and presently, Respondent employs several Meat Cutters and only one Meat Wrapper, Ms. Toni Albert. Ms. Albert has occupied this sole Meat Wrapper position since 1993. The sole Meat Wrapper position has never been vacant. Therefore, it was never available to Petitioner. Respondent has phased the Meat Wrapper position out of most of its stores, and has made the corporate decision that if Ms. Albert retires or quits, she will not be replaced and her position of Meat Wrapper will be eliminated. At all times material, and presently, Respondent's Meat Cutters could/can, and did/do wrap meat as well as cut it.

29. Respondent-Employer's Meat Cutters are paid at a higher scale than is its sole Meat Wrapper. Petitioner was earning $7.50 per hour as a Meat Cutter at night when he was let go. If the Employer had made Petitioner a Meat Wrapper with his seniority in April 1995, Petitioner would have earned only $5.75 per hour, and would have had to consistently work the 7:00 a.m. to 4:00 p.m. shift.

30. A bona fide qualification of both Respondent's Meat Cutters and of its sole Meat Wrapper, Ms. Albert, requires them to be able to use Respondent's machinery to wrap meat. One of Respondent's machines which wraps meat is an automatic meat wrapper. This machine has moving parts and conveyer wheels or rollers. In the vernacular, it qualifies as "heavy machinery," which is precluded by Petitioner's use of medication and frequent seizures. (See Finding of Fact 10) It is capable of drawing Petitioner's hands into it if he fell unconscious. (See Finding of Fact 2) Although the automatic meat wrapper has a safety device, it requires pushing a button to activate it. The device would not activate just because an employee, such as Petitioner, suddenly became unconscious. The automatic meat wrapper is located in the Meat Department as are all the other Meat Cutter tools and machinery which are also dangerous to Petitioner. (See Finding of Fact 16)

31. Therefore, Petitioner has not demonstrated that he has been capable and qualified to perform the bona fide occupational qualifications of a Meat Cutter or a Meat Wrapper at any time since March 22, 1995. Nor has Petitioner clearly stated that he would accept the Meat Wrapper's reduced pay rate.

32. At formal hearing and by his post-hearing proposal, Petitioner expressed himself as not wanting his Meat Cutter job back but wanting some money because of the time he has been off work.

33. On his original December 2, 1993 application for employment by Respondent, Petitioner represented that he had never been convicted of a felony. In fact, Petitioner has been convicted of at least one felony. Petitioner knew that he had lied on his employment application, but he tried to justify his answer because Respondent did not check his background. Respondent first became aware that Petitioner had falsified his application during the Petitioner's deposition on January 9, 1996. While Respondent sometimes hires persons who admit felony convictions, Respondent maintains a policy of terminating employees who lie on their employment applications. Accordingly, Petitioner would not qualify as a "rehire" even if he were now able to return to work for the Respondent-Employer in any capacity.

34. Within a month of Petitioner's separation from Respondent-Employer he began working for Harvey's, but he only worked one month. Rather than search out other employment so as to mitigate his salary loss, Petitioner relied on unemployment compensation and sought federal Social Security Supplemental Security Income benefits. It was not until after Petitioner applied for these benefits, which were denied, that Petitioner decided to "try to go back to work." At the time of formal hearing, Petitioner was employed doing custodial work. The record does not reflect what functions he was actually performing or his rate of pay.

    CONCLUSIONS OF LAW

    
    

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

36. The Respondent is an "employer," as defined in Section 760.02(7), Florida Statutes.

37. The Petitioner alleged that he had been discriminated against by reason of a handicap.

38. Section 760.10(1)(a), Florida Statutes, applicable to this case, provides as follows:

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

       1. 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. (Emphasis supplied)

39. Unfortunately, no direct definition of the term "handicap" is provided in this portion of the statute. Fortunately, Section 760.22(7)(a) Florida Statutes, which technically applies only to "fair housing" issues, is instructive, and decisions of the Florida Human Relations Commission may be consulted to ascertain the meaning that case law has given this term. Section 760.22(7)(a), Florida Statutes, defines "handicap" in pertinent part, as:

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

    
    

    In Thomas v. Floridin Company, 8 FALR 5457, at 5458 (1986), the Commission defined, "handicap" as follows:

    In interpreting the term handicap, the Human Rights Act of 1977, the Commission has consistently chosen to give handicap a meaning in accordance with common usage

    
    

    Generally, "handicap" connotes a condition that prevents normal functioning in some way; a person with a handicap does not enjoy in some measure the full and normal use of his sensory, mental, or physical facilities. See also Kelly v. Bechtel Power, 633 F. Supp.

    927, 931 (SD Fla. 1986).

    
    

40. The Department of Corrections v. Chandler, 582 So.2d 1183 (Fla. 1st DCA 1991), Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.F. 1089, 67 L. Ed. 2d 207 (1981), and McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 86 L. Ed. 2d 668 (1973) analyses applicable to most employment discrimination claims under Title VII of the federal Civil Rights Act and Chapter 760, Florida Statutes, are not necessarily relevant to handicap discrimination claims wherein the employer, as here, has admitted that the claimant's handicap was the sole reason for rejection. See, Brand v. Florida Power Corp., 633 So.2d 504 (Fla. 1st DCA 1994), followed in Davidson v. Iona-McGregor Fire Protection and Rescue District, 674 So.2d 858 (Fla. 2nd DCA 1996).

41. In Cabany v. Hollywood Memorial Hosp., 12 FALR 2020 (FCHR 1990), the Florida Human Relations Commission has placed the burden upon the Employee to establish a prima facie case by showing (1) that he or she has a physical impairment which substantially limits one or more of his or her major life activities; (2) that he or she is otherwise qualified for the position; and (3) that he or she was excluded from the position sought, solely by reason of his or her handicap. See, also, Kelly v. Bechtel Power Corp., 633 F. Supp. 927 (S.D. Fla. 1996). This test has been approved in Brand, supra., but Brand distinguishes Kelly and departs from Kelly on other grounds.

42. Brand sets forth the respective duties to go forward and the shifting burdens of proof of the handicapped Employee and the Employer as follows:

    If the plaintiff is unable to make a prima facie case of handicap discrimination, the burden of producing evidence does not shift to the employer, and judgment is invariably entered in favor of the employer. . . .

    * * *

    If a prima facie case is established, the burden of producing evidence is then placed on the employer to show that its consideration of the handicap was relevant to the qualifications of the position sought.

    . . .

    * * *

    . . . the employer may meet its burden by showing (1) that the plaintiff's handicap is such that it simply cannot possibly be accommodated, or (2) if the handicap is such that accommodation is possible, the proposed accommodation is unreasonable because it would result in an undue hardship on the defendant's activities.

    * * *

    Once the defendant places into evidence valid reasons for the rejection, the plaintiff cannot remain silent, but must rebut the employer's position with evidence

    concerning his or her individual capabilities "and suggestions for possible accommodations."

    * * *

    The burden of persuasion on the ultimate issue of whether a handicapped person who meets all of the employment criteria except for the alleged discriminatory criterion "can perform the essential functions of the position in question without endangering the health and safety of the individual or others" remains with the plaintiff for the simple reason that a presumption (i.e. the presumption of discrimination arising from plaintiff's satisfaction of a prima facie case) cannot shift the burden of proof.

43. The Brand case also provides further guidance as to how "reasonable accommodation" to the Employee is to be balanced against an "undue hardship" on the Employer. The opinion provided, in pertinent part, "For example, the defendant is not required to make fundamental alterations in its program. . . .

    Nor is it required to create a new job for the plaintiff. . . .

    
    

    Moreover, the fact that a 'defendant could have provided a different set of reasonable accommodations or more accommodations does not establish that the accommodations provided were unreasonable or that additional accommodations were necessary.' " The opinion in Brand also departs from Kelly by explicitly holding, "We are of the view that neither Florida's Human Rights Act, nor section 504 [of the federal Rehabilitation Act] incorporated therein, places an affirmative obligation upon an employer to act." That is, to search for accommodations that can be made but which have not been affirmatively requested by the employee. Accordingly, Brand also stands for the proposition that under Chapter 760 Florida Statutes it is the handicapped

    employee's obligation to request accommodation with considerable specificity at the time in question, and not at the time of formal hearing.

44. Furthermore, the Brand court clearly stated 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 discrimination claims brought pursuant to Chapter 760, Florida Statutes. Although the Brand Court declined to look to cases under the ADA, there is no reason such cases would not be instructive for the instant case. In accord, see Fitzpatrick v. City of Atlanta, 2 F 3d 1112 (11th Cir. 1993).

45. Petitioner herein has proven that he is a handicapped person as contemplated by the appropriate statute, that the employer knew of the handicap, and that the employer declined to continue to employ Petitioner in his existing job description of Meat Cutter. However, Petitioner has not shown that he was capable of performing the essential functions and/or bona fide occupational qualifications of a Meat Cutter or of any other available position. He rejected the only available positions he might have performed due to the pay scale available. Therefore, he has failed to establish a prima facie case of discrimination due to handicap. See, Section 760.10(8)(a) Florida Statutes.

46. In Brand v. Florida Power Corp., supra., the employer declined to re-employ an individual with a disability as a

    certified welder/mechanic due to the Plaintiff's asbestosis. The Court concluded that the employee's medical condition made it impossible for him to perform his position safely, and because no job vacancies existed which the employee could have performed within his medical restrictions, the employer was not liable.

    Herein, Petitioner concedes that the Respondent-Employer had to consider Dr. Ayala's medical restrictions. Petitioner also acknowledges that he would be unable to perform at least one of the bona fide job qualifications of a Meat Cutter, which is to cut meat. The evidence further shows that Petitioner would have constituted a "direct threat" to the health and safety of others as well as himself if he had been employed as either a Meat Cutter or a Meat Wrapper. "Meat Wrapper" is the only position Petitioner may have requested as an accommodation to his handicapped condition. The potential for Petitioner to cut himself or to fall into a band saw or be dragged into an automatic meat wrapping machine involved in the preparation of food for sale to the public is clearly dangerous to the public. Even more obvious is the physical danger to Petitioner of such a situation.

47. The employee bears the burden of proof to demonstrate that he is not a direct threat of danger to himself or others. See, Moses v. American Non-Movers, Inc., 97 F.3d 446 (11th Cir. 1996). In Moses, a case decided under the ADA, the Eleventh Circuit held that an employee who experienced seizures was at a

    grave risk of injury, because he worked with fast moving machines. The court specifically distinguished Moses' situation from that in Kelly v. Bechtel Power Corp., supra, in which the employee, although diagnosed as epileptic, had never suffered a seizure and the employer had no basis for concluding that she was likely to suffer one. Moses was on medication and his seizures were not controlled. Moses failed to identify any reasonable accommodation which would make his employment safe and therefore he did not prevail. All of these elements also apply to Petitioner herein. Also, see, Willis vs. Conopco, Inc., F. 3d (11th Cir.), opinion issued March 25, 1997, a case of first impression under the ADA, which held that at least after the case has been filed and the employer has had an opportunity for discovery, the employee bears the burden to demonstrate the existence of any possible accommodation, which Petitioner has not done here.

48. In Milton v. Scrivner, Inc. 53 F. 3d 1118 (10th Cir. 1995), also an ADA case, it was held that altered or reduced productivity standards or designation of a lighter work load was not a reasonable accommodation because it would result in other workers having to work harder or longer. Transferring other employees to other jobs contrary to a collective bargaining agreement on seniority was not possible and therefore not reasonable.

49. In West v. Russell Corp., 868 F. Supp. 313 (M.D. Ala.

    1994), another ADA case, the court determined that when an employer hires, giving preference to an applicant who is already employed over an equally qualified outsider was clearly a legitimate basis for an employer to hire the one already employed, even though the outsider was disabled.

50. In Jackson v. Veteran's Administration, 22 F. 3d 277 (11th Cir. 1994), a federal Rehabilitation Act case, it was ruled that the employer did not have a duty to accommodate the disabled employee by requiring someone else to do his work repeatedly on a last-minute basis.

51. Treadwell v. Alexander, 707 F.2d 473 (11th Cir. 1993), another Rehabilitation Act case, follows the ruling of the classic accommodation case of Southeastern Community College v. Davis, 442 U.S. 397, 406, 99 S. Ct. 2361, 2367, 60 L. Ed 2d 980 (1979), that the employee must make at least a facial showing that his handicap can be accommodated and the employer must persuade that it is unable to accommodate. In Treadwell, having other employees do part of the job description was held to be an undue hardship on the federal employer, considering the cost and limited resources. Cost and limited resources is a permitted consideration under that federal Act.

52. From these cases, the undersigned concludes that requiring the Respondent-Employer to accommodate Petitioner by hiring him as a Meat Wrapper at the Meat Cutter's rate of pay would be unreasonable, as would be requiring the Respondent to

    displace the sole Meat Wrapper from her position and then having to find the Meat Wrapper a different job she could do at her old rate of pay.

53. Assuming, arguendo, but not ruling, that Petitioner timely asked for a Meat Wrapper position back in 1995, a vacant Meat Wrapper position did not exist, and has never existed. The Employer was not/is not required to displace another, fully capable employee (Ms. Albert), just to accommodate Petitioner. Even assuming, arguendo, and in light of the Willis decision, supra., that Petitioner had timely asked for Ms. Albert's job wrapping meat or had the right to ask for it after discovery was completed in this case, he never demonstrated at formal hearing that he could safely perform all the bona fide qualifications of a Meat Wrapper. He could not safely use all the machinery a Meat Wrapper has to use daily. He also did not demonstrate that he would have agreed to take the Meat Wrapper position at Ms. Albert's lower rate of pay. There is no statute or case law requiring employers to be guarantors of existing salaries for handicapped employees.

54. There is no competent evidence herein to show that Petitioner ever asked to be allowed to fill any available job description.

55. The evidence shows Petitioner did not make a prima facie case, but even if it could be argued that he had, the Respondent has demonstrated that under the case law no reasonable

    accommodation was requested or possible. The evidence as a whole does not show that Respondent refused Petitioner employment commensurate with his abilities regardless of his disability.

    The evidence as a whole shows that Respondent, through Mr. Funderburk, was prepared to employ Petitioner at a job he could do for the standard pay scale. Apparently, it was a specific salary level as opposed to the opportunity to work within his limitations that Petitioner was seeking from Mr. Funderburk.

56. Chapter 760, Florida Statutes, is designed to ensure that handicapped persons can work for pay commensurate with their abilities, regardless of their disabilities. It does not require that the Employer create a job description that the handicapped person can do, or tailor-make a job for him to do, or guarantee him pay commensurate with what he once could do and can no longer do. See, cases cited, supra.

57. Petitioner has failed to prove the third prong of the test, that he could do his old job with reasonable accommodation or that the Respondent failed to reasonably accommodate him with a specifically requested available job. Petitioner therefore has failed to establish a prima facie case for recovery herein.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Human Relations Commission enter a final order dismissing the Petition for Relief and its underlying claim/complaint of discrimination by an unfair employment practice.

RECOMMENDED this 6th day of June, 1997, at Tallahassee, Florida.

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SUNCOM 278-9675

Fax FILING (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 1997.

COPIES FURNISHED:

Deborah A. Mattison, Esquire Robert F. Childs, Esquire GORDON, SILBERMAN, WIGGINS

& CHILDS, P.A.

1400 South Trust Tower Birmingham, AL 35203

Marvin Young

2114 Saxon Street

Tallahassee, FL 32304

Sharon Moultry, Clerk Human Relations Commission

325 John Knox Road Tallahassee, FL 32303

Dana Baird, Esquire

Human Relations Commission

325 John Knox Road Tallahassee, FL 32303

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-001907

Orders for Case No: 96-001907