MARK J. ATHERDEN, )
vs. ) Case No. 97-5868
Respondent. )
Pursuant to notice, a formal hearing was held in this case on June 9, 1998, in Tavares, Florida, before Donald R. Alexander, the assigned Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: Mark J. Atherden, pro se
For Respondent: J. Yvette Pressley, Esquire
The issue is whether Respondent committed a violation of the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on February 4, 1997.
Mark J. Atherden, filed a Charge of Discrimination with the Human
Relations Commission alleging that Respondent, Department of Corrections, had violated Chapter 760, Florida Statutes, by discharging him from employment on account of his handicap. When the agency had not completed its investigation within 180 days, Petitioner elected to proceed with a formal hearing under Section 120.569, Florida Statutes. The case was then referred by the agency to the Division of Administrative Hearings on December 12, 1997, with a request that an Administrative Law Judge conduct a formal hearing.
By Notice of Hearing dated January 28, 1998, a final hearing was scheduled on March 27, 1998, in Tavares, Florida. At Respondent's request, the matter was rescheduled to June 9, 1998, at the same location. On June 5, 1998, the case was transferred from Administrative Law Judge P. Michael Ruff to the undersigned.
At final hearing, Petitioner testified on his own behalf. Also, he offered Petitioner’s Exhibits 1-20. All exhibits were received in evidence. Respondent presented the testimony of Captain Morrisene Walter, a shift supervisor at Lake Correctional Institution; Colonel James Tridico, chief correctional officer at Lake Correctional Institution; Robert W. O'Connor, assistant superintendent for operations at Lake Correctional Institution; Don M. Dean, superintendent at Lake Correctional Institution; Connie Springer, personnel officer at Lake Correctional Institution; and Martie Taylor, ADA coordinator at Lake Correctional Institution. Also, it offered Respondent's
Exhibits 1-19. All exhibits were received in evidence.
There is no transcript of hearing. Proposed findings of fact and conclusions of law were filed by Respondent and Petitioner on June 18 and 22, 1998, respectively, and they have been considered by the undersigned in the preparation of this Recommended Order.
In this proceeding, Petitioner, Mark J. Atherden, contends that Respondent, Department of Corrections (Department), unlawfully terminated him from employment on account of a disability. After serving with the United States Marine Corps between 1957 and 1960, Petitioner received a ten percent disability rating by the federal government for a military service-connected disability, asthma. The Department denies the charge of discrimination and contends instead that Petitioner does not suffer from a disability, and even if he did, it terminated him, a probationary employee, for a lawful reason, insubordination.
Petitioner first applied for employment with the Department in August 1995 as a correctional officer (CO). He worked from January until April 1996 when he was terminated because he did not successfully complete his certification training.
After obtaining his certification, on October 9, 1996, Petitioner reapplied for employment as a CO. A part of the application is the Willingness Questionnaire, which specifically asks if the applicant is willing to work a double shift and overtime, if necessary. Working overtime and second shifts is a job requirement imposed on all correctional officers. If an applicant has a medical condition which would prevent him or her from working a double shift or overtime, the appropriate response would be "No," followed by a brief explanation. In Petitioner's case, he responded with a "Yes," which meant he was willing to work double shifts and overtime, if required by his employer.
In response to a question on the Medical History Questionnaire of whether he had ever received, or applied for, a disability pension, Petitioner answered "Veteran - 10%." To support that answer, he attached to his application a letter dated June 10, 1993, from the federal Department of Veterans Affairs reflecting that he was "in receipt of disability compensation on acct. of service-connected disability rated at less than 30 percent."
On the same application, Petitioner indicated that he had been diagnosed with asthma, in connection with military service. He added, however, that he was not then under a doctor's care for any condition, was not taking any medications, and had not been given a physical examination within the last three years. He also indicated that there was nothing "important
in [his] medical history" that should be brought to his prospective employer's attention. Finally, he did not identify, much less document, any work restrictions imposed by a physician. Therefore, based on the foregoing responses, and even assuming Petitioner had a disability, the Department had no actual or constructive notice that Petitioner was then suffering from a disability that substantially limited him in a major life activity, or that he did not enjoy the full and normal use of his physical facilities in some measure.
When Petitioner was accepted for a position, he was given a statement prepared by the Equal Employment Opportunity Commission which explained his right to seek an accommodation for a disability and a form by which an accommodation could be sought. Petitioner did not avail himself of this right. Importantly, Petitioner acknowledged at hearing that he did not need an "up-front" accommodation when he applied for employment.
Petitioner was employed as a CO in the Lake Correctional Institution (LCI) effective December 6, 1996. He was assigned to work the 4 pm - 12 midnight shift (shift 3) in Dormitory F.
Under career service rules, he was considered a probationary employee for at least the first six months. This meant he could be terminated during his probationary period without the right to an appeal under career service rules.
Although the parties disagree in some respects about the events which occurred on the evening of January 6, 1997, the
following facts are found to be the most credible. Just before midnight on January 6, 1997, Captain M. Walter, the shift commander for the midnight to 8 am shift (shift 1), discovered that he was one man short in establishing his "critical complement" of 25 COs for shift 1. Since it is essential that the critical complement be met, Walter began calling COs then completing shift 3 to ask for a volunteer to work the next shift. This was consistent with in-house policy that volunteers be sought before the shift commander order someone to involuntarily stay on duty. When Petitioner was asked by Walter if he would work the next shift, Petitioner responded, "No, I cannot."
When Walter could not get a volunteer, he telephoned the CO with the least seniority, who happened to be Petitioner. This time, he ordered Petitioner to stay for at least six hours on the next shift. Petitioner responded, "I can't." Walter asked why, and Petitioner responded, "I don't have a reason, I'm just not staying." Walter then instructed Petitioner to prepare an Incident Report (IR), which is required anytime an unusual event occurs, and to turn it into the control room. By refusing to work a second shift that evening, Petitioner could not perform an essential function of his job.
After leaving his shift at midnight, Petitioner went to the control room and obtained an IR form. Although Walter was still present in the room, he was very busy changing shift personnel. Consequently, Petitioner did not offer an explanation
for his refusing to work a second shift. Walter established, however, that had Petitioner (or any other CO) desired to speak with him about a matter such as this, he would have told him to wait a few minutes until the new personnel were on duty, and he would then discuss any problems.
Although Petitioner contended that Walter erred by not asking him at that time why he declined to work a second shift, Walter had no reason to make further inquiry with Petitioner since Petitioner had already told him that he didn't "have a reason." Walter accordingly construed Petitioner's refusal as insubordination. Walter did not know that Petitioner had asthma, or that he was contending that a disability prevented him from working a double shift.
On January 7, 1997, Walter prepared the following IR for his supervisor, which corroborates his account of events given orally at hearing:
On 1/7/97 at approximately 12:00mn, the first shift was 1 officer short of critical complement. I polled the previous shift for overtime, but no officer volunteered. At approximately 12:02 a.m., I ordered CO M. Atherden to stay for shift #1 for at least 6 hours to maintain critical complement. CO Atherden flatly refused to stay. I asked him for his reason and he stated "I don't have a reason, I'm just not staying."
Walter added that:
. . . Atherden was informed to write an incident report concerning his refusal and to report to the Chief Correctional Officer on 1/8/97 . . .
In Atherden's IR also prepared on January 7, 1997, he stated that:
Captain Walter contact[ed] CO Atherden by phone 1/6/97, 11:55 p.m. ordering me to work 1st shift (12-8). I refused by saying I could not. My refusal was based on; [sic] I cannot work (2) shifts with a 14-16 hours duration. Working this length of time will aggrevate my asthma and higher my blood pressure which will deteriorate my health (short/long term).
After receiving both IRs, Colonel James Tridico, the chief correctional officer at LCI, met with Petitioner on
January 17, 1997. During their ten-minute meeting, Tridico asked Petitioner why he wouldn't work a second shift even though he had agreed to do so in his Willingness Questionnaire. Petitioner responded that he was willing to work two extra hours, if needed, and an extra shift every fifth day when he would be off duty the following day. He stated, however, that he could not work sixteen consecutive hours, from 4 pm to 8 am, and then return eight hours later for his regular 4 pm shift, for fear this would trigger an asmtha attack. He also denied stating to Walter that he "did not have a reason" for failing to stay.
After meeting with Petitioner, Tridico prepared an intraoffice memorandum to the superintendent, Don M. Dean, in which he recommended that Petitioner be terminated for insubordination, since he had previously signed a statement expressing his willingness to work double shifts and overtime.
The fact that Petitioner may or may not have had a disability played no role in his decision.
Superintendent Dean accepted Tridico's recommendation, and Petitioner was terminated effective January 24, 1997. Like Tridico, Dean's decision was based on insubordination by the employee, and not on account of any disability that Petitioner may have had.
Between December 6, 1996, and January 7, 1997, Atherden had no discernible breathing problems; he had not suffered an asthma attack while on duty; he had not missed work because of asthma; and he did not require an inhaler. He runs two miles every other day and exercises regularly. In fact, asthmatic conditions are not unusual among LCI officers. Other than Petitioner's own testimony that he "knew" he would suffer an asthma attack if he worked a double shift, there was no evidence, medical or otherwise, to support a finding that, because of his asthma, Petitioner could not work a double shift, or that he was different from other COs who also had asthmatic conditions.
At hearing, Petitioner explained that when Walter first asked him, and later ordered him, to work the second shift, he did not think it "appropriate" to discuss his medical situation in the presence of three or four other COs. Therefore, he never mentioned the fact that he had asthma to Walter. For the reasons
given in Finding of Fact 10, he also failed to give an explanation to Walter when visiting the control room that same evening to fill out an IR.
Although not pled in his Charge of Discrimination, at hearing Petitioner requested reinstatement, relocation expenses if required to move, back payment of lost wages, payment for health, life insurance, and retirement benefits, payment of back sick days, vacation days, and holidays, expenses incurred in searching for other employment, reimbursement for having to use savings after being terminated, and damages for "pain and anguish." These claims total $96,469.00 and are summarized in Petitioner's Exhibit 2.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Section 120.569, Florida Statutes.
In his Charge of Discrimination, Petitioner has alleged that "[he] was discriminated against based on [his] disab[ility]" and that his "disability . . . did not allow [him] to work double shifts or overtime." If this charge is true, it would arguably constitute a violation of Section 760.10(1)(a), Florida Statutes (1996), which provides in relevant part as follows:
It is an unlawful employment practice for an employer:
To discharge . . . any individual . . . because of such individual's . . . handicap.
As to Petitioner's probationary status, it should be noted that
even though he had no property rights in his position, it would still be unlawful for the Department to terminate him on account of his handicap. Siefken v. The Village of Arlington Heights, 1994 WL 5055414 (N.D. Ill. 1994).
In this case, Petitioner asserts he is seeking redress under Title I of the Americans with Disabilities Act (ADA), which is codified at 42 U.S.C. sec. 12101, et seq. The ADA prohibits discrimination on the basis of a disability and requires reasonable accommodation for a known physical or mental limitation of an individual with a disability. 42 U.S.C. sec. 1112(a); 42 U.S.C. sec. 12112(b)(5)(A). A disability is a "physical or mental impairment that substantially limits the major life activities" of the individual. 42 U.S.C. sec. 12102(2)(A).
Here, the claim was filed under the Florida Civil Rights Act of 1992, as amended, and thus the controversy must be resolved under state law. Even so, as a practical matter, federal case law interpreting the ADA is highly persuasive authority in handicap (disability) actions brought under state law, since the state law parallels, to some extent, the federal
act. Brand v. Fla. Power Corp., 633 So. 2d 504, 509 (Fla. 1st DCA 1994).
The Florida Commission on Human Relations (Commission) has long held that in a discharge case such as this, to make out a prima facie case of handicap discrimination under Section 760.10(1)(a), Petitioner must show that he is disabled; that he performed or was able to perform his assigned duties satisfactorily; and that despite his satisfactory performance, he was terminated. See, e.g., Clark v. Jackson County Hospital, 20
F.A.L.R. 1 182, 184 (Fla. Comm'n Human Relations, June 25, 1997). At the same time, in contrast to the federal definition of a disability, if a person "does not enjoy in some measure the full and normal uses of his sensory, mental or physical facilities," the Commission considers one to have a handicap. See, e.g., Thomas v. Floridin Company, 8 F.A.L.R. 5457, 5458 (Fla. Comm'n Human Relations, October 9, 1986).
The parties have not cited any Florida decision, agency or appellate, which holds that asthma per se constitutes a "handicap" under state law. On the other hand, federal cases interpreting the ADA hold that such a determination must be made on a case-by-case basis. See, e.g., Ventura v. City of Independence, 1997 WL 94688 (6th Cir. 1997)("[t]he determination of whether a particular impairment constitutes a disability must be made on a case-by-case basis"). For example, many federal courts have held that asthma does not substantially limit the
particular plaintiff's ability to work or breathe and therefore does not constitute a disability under the ADA or Rehabilitation Act of 1973. Ventura, Id.; Castro v. Local 1199, Nat'l Health and Human Services Employees Union, 964 F. Supp. 719, 722 (S.D.
N.Y. 1997); Gaddy v. Four B Corp., 953 F. Supp. 331, 331-32, (D. Kan. 1997); Emery v. Caravan of Dreams, 879 F. Supp. 640, 645 (N.D. Tex. 1995); Heilweil v. Mount Sinai Hospital, 32 F.3d 718, 721 (2d Cir. 1994).
Here, Petitioner has failed to meet his burden of proving a prima facie case. To begin with, there is insufficient proof that Petitioner is disabled or handicapped within the meaning of the law. Except for Petitioner's own self-serving testimony, there was no corroborating testimony, medical or otherwise, that Petitioner's ability to breathe or work was substantially limited by his asthma, and thus he could not work a double shift. Even under the Commission's broader definition of a handicap, there is insufficient, competent evidence to show that, because of his asthma, Petitioner does not, "in some measure," enjoy the full and normal use of his physical facilities.
As to the second part of the test, Petitioner also failed to show that he was able to perform his assigned duties satisfactorily. While the evidence shows that Petitioner could satisfactorily work a single shift, he would not work a second shift because of a self-imposed restriction. Second shifts are,
of course, an essential part of the job for all correctional officers. Compare Gaddy, 953 F. Supp. at 338 (court will not permit claimants to "seek redress under the ADA based on their own unilateral perception that they are disabled").
Finally, even assuming Petitioner satisfactorily performed his job, he did not demonstrate that he was terminated, despite his job performance. Rather, the more persuasive evidence reflects that he was terminated for insubordination after refusing to work a second shift or give his supervisor a reason for his action. The fact that Petitioner had asthma played no role whatsoever in the Department's decision to terminate his employment.
Because Petitioner has failed to make a prima facie case of discrimination, his Charge of Discrimination should be dismissed, with prejudice.
RECOMMENDED that the Commission on Human Relations enter a final order dismissing, with prejudice, Petitioner's Charge of Discrimination.
DONE AND ENTERED this 8th day of July, 1998, in Tallahassee, Leon County, Florida.
DONALD R. ALEXANDER
Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 1998.
Mark J. Atherton Post Office Box 1477
J. Yvette Pressley, Esquire Department of Corrections 2601 Blairstone Road
Dana A. Baird, Esquire Commission on Human Relations Building F, Suite 240
All parties have the right to submit written exceptions to this Recommended Order within fifteen days. Any exceptions to this Recommended Order should be filed with the Commission on Human Relations.
