STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID ELLIOTT KELLY, JR., )

)

Petitioner, )

)

vs. ) Case No. 97-5996

)

DEPARTMENT OF CORRECTIONS, ) GULF CORRECTIONAL INSTITUTION, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for formal hearing on May 21, 1998, in Port St. Joe, Florida, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: S. Russell Scholz, Esquire

Rish and Gibson, P.A. Post Office Box 39

Port St. Joe, Florida 32457

For Respondent: Ernest L. Reddick, Esquire

Department of Corrections 2601 Blair Stone Road

Tallahassee, Florida 32303-4149 STATEMENT OF THE ISSUES

The issues are whether Respondent committed an unlawful employment practice by discriminating against Petitioner based on his physical disability, and if so, to what relief is he entitled.

PRELIMINARY STATEMENT

The Petitioner Elliott Kelly, Jr. (Petitioner) filled a

Charge of Discrimination against Respondent Department of Corrections, Gulf Correctional Institution (Respondent) with the Florida Commission on Human Relations (FCHR) in October of 1996. The complaint alleged that Respondent had discriminated against Petitioner based on his handicap.

FCHR did not complete its investigation within 180 days. On August 28, 1997, Petitioner requested that his case be referred to the Division of Administrative Hearings (DOAH). FCHR referred the case to DOAH on December 29, 1997.

The undersigned issued a Notice of Hearing which scheduled the case for hearing on May 22, 1998. An order dated March 19, 1998, rescheduled the case for hearing on May 21, 1998.

During the hearing, Petitioner testified on his own behalf and presented the testimony of one witness. He offered 20 exhibits which were accepted into evidence. Respondent presented the testimony of two witnesses and offered 22 exhibits which were accepted into evidence.

A transcript of the proceeding was filed on June 24, 1998.

On July 6, 1998 and July 21, 1998, Petitioner's counsel requested and was granted an extension of time in which to file a proposed recommended order.

Respondent filed a proposed recommended order on July 31, 1998. Petitioner did not file a proposed order.

FINDINGS OF FACT

1. Petitioner began working as a correctional officer at

   Franklin Work Camp, a facility operated by Gulf Correctional Institution, in April of 1994. At that time, he had no physical condition which would interfere with his ability to perform the duties of a correctional officer.

2. A correctional officer's principle duties include being responsible for the supervision, custody, care, control and physical restraint of inmates when necessary. A correctional officer must be able to sit, walk, stand, bend, stoop, squat, kneel, run, lift, carry and drag heavy objects (such as an inmate).

3. A correctional officer is subject at all times to assignment at any one of several security posts. Whatever the circumstances, the officer must be willing and able to perform the duties and follow the post orders of an assigned post without physical limitation.

4. There are assignments which may not require an officer to perform all of the duties of a correctional officer on a daily basis. However, there always is the possibility that an emergency may require an officer to perform any or all of those duties. Almost all posts require prolonged standing, and running as needed.

5. Respondent has established an alternate duty policy for employees which provides as follows in pertinent part:

   1. GENERAL POLICIES AND GUIDELINES

      A. A Department of Corrections employee who sustains a job-connected injury or illness that results in a temporary partial

      disability shall return to the work setting if the prognosis from the approved physician reasonably indicates a future return to alternate duties and the employee is able to perform some meaningful work. Employees with non-job connected injuries or illnesses shall not be considered for alternate duty.

      * * *

      1. Individuals employed in a Certified Officer's position must be prepared and able at all times to perform all the duties of an Officer. In keeping with that philosophy, if approved for [a]lternate [d]uty, individuals employed in the Certified Officer's position shall be temporarily assigned to non- Certified Officer duties for the period of time that are determined to have a temporary- partial disability by the Division of Risk Management.

      2. In no case shall Certified Officer duties be performed by an alternate duty employee.

      * * *

   2. PROCEDURES

      1. General Provisions

         [1.] When an employee is being considered for [a]lternate [d]uty, the Servicing Personnel Office and Appropriate Authority will determine the alternate duties to be performed.

         2. These tasks shall be some type of work that is beneficial to the Department and consistent with the employee's disability.

      2. Use of Alternate Duty

      1. In accordance with Chapter 60K- 5.012(1)(d), F.A.C., an employee who sustains a job connected temporary-partial or temporary-total disability shall be considered as a candidate for alternate duty if the prognosis from the approved physician indicates a future return to full duties within a reasonable amount of time and the employee can perform some type of work. Alternate duty shall be approved by the Appropriate Authority for a period not to exceed 90 calendar days. However, an extension of up to an additional 90 calendar days may be approved by the Appropriate Authority if there is a medical statement from the approved physician indicating the employee's current medical condition and

      prognosis for full recovery. An employee may be approved for alternate duty beyond 180 [calendar days], but no more than 365 calendar days with the approval of the Regional Director or appropriate Assistant Secretary.

      
      

      Respondent does not have a policy establishing "light duty" positions for correctional officers with non-work related injuries or illnesses or with permanent/chronic disabilities.

6. Petitioner claims that a doctor diagnosed him as having osteoarthritis of the left knee in March of 1995. There is no evidence indicating that Petitioner's alleged illness was or is related to his employment as a correctional officer.

7. Petitioner testified that Dr. Nina Camperlengo at the Veteran's Administration Clinic in Tallahassee, Florida, was his treating physician for osteoarthritis in 1996. According to Petitioner, Dr. Camperlengo recommended that Petitioner use a cane to relieve the pressure on his knee in June of 1996. Petitioner told, Tom Smith, the officer in charge at Franklin Work Camp, about Dr. Camperlengo's alleged recommendation.

8. Mr. Smith informed Petitioner that he would not be allowed to enter the compound while using a cane. Petitioner continued to work at the work camp facility, without the cane, until June 26, 1996.

9. Petitioner took annual leave between June 26 and July 5, 1996. Before he returned to work, Petitioner called the personnel office at Gulf Correctional Institution. During this conversation, Petitioner advised Paul Herbert, a personnel

   officer, that he had to use a cane and that he would be taking one with him when he reported for work the following Monday.

10. Mr. Herbert stated that Petitioner could not work in the compound if he needed a cane. Mr. Herbert told Petitioner that before he could return to work, he would have to furnish Respondent with a physician's statement clarifying Petitioner's medical condition and any physical limitations necessitated by that condition. Later that day, Petitioner's personnel office gave him a physicians' statement form and a correctional officer position description to take to his physician.

11. Petitioner had an office visit on or about July 8, 1996 with Dr. Camperlengo. Petitioner testified that the doctor used the physician's statement form to outline the restrictions she felt were necessary due to Petitioner's condition. He furnished a copy of the physician's statement to Respondent. The statement included the following restrictions: (1) no prolonged standing;

    (2) no running; (3) no physical force to be used by or against patient; and (4) needs to use cane.

12. Limitations like the ones imposed by Dr. Camperlengo would make it impossible for Petitioner to perform the duties of a correctional officer. Respondent appropriately informed Petitioner that he could not return to work until the medical restrictions were lifted by a doctor.

13. A letter dated July 8, 1998, advised Petitioner that Respondent was placing him on leave for a non-work related

    illness, from June 26, 1996, through September 18, 1996. Petitioner was entitled to this leave pursuant to the Family and Medical Leave Act of 1993.

14. Respondent's letter informed Petitioner that he would have to furnish Respondent with a doctor's statement of release, returning Petitioner to his regular duties without limitations, when he returned to work.

15. On September 17, 1996, Petitioner provided Jerry Keel, Personnel Manager at Gulf Correctional Institution, a note indicating that his condition had not changed and would not likely change in the future. Petitioner's note stated that he needed a cane to ambulate.

16. Petitioner also furnished Mr. Keel with a note from Second Lieutenant Smith, a physician's assistant assigned to Tyndal Air Force base, limiting Petitioner's return to full duty. According to the note from Second Lieutenant Smith, Petitioner needed to use a cane for ambulation, secondary to pain. Additionally, Second Lieutenant Smith's note stated that Petitioner's condition was chronic but that he could return to work provided he used his cane and was not forced to stand for prolonged periods of time.

17. In a letter dated September 18, 1998, Petitioner stated that he could perform his duties but that he still needed to use a cane to walk. He requested that Respondent afford him the opportunity to work with an accommodation for his handicap or

    place him in another job assignment.

    
    

18. Respondent did not allow Petitioner to return to work on September 19, 1998, because he did not provide a medical release stating that he could perform his duties without physical limitation. Respondent did not request an extension of his medical leave.

19. By letter dated October 11, 1998, Al Solomon, as Acting Superintendent of Gulf Correctional Institution, sent Second Lieutenant Smith a letter asking for clarification of his earlier note. Specifically, Mr. Solomon inquired as to what, if any, physical limitations would prevent Petitioner from performing his duties as a correctional officer.

20. Second Lieutenant Smith did not respond to Mr. Solomon's letter in writing. In a telephone conversation, Mr. Keel informed Second Lieutenant Smith that his response to the written inquiry had to be written, as well. Respondent did not receive a written response from Second Lieutenant Smith prior to Petitioner's dismissal.

21. A copy of Dr. Camperlengo's progress notes dated October 17, 1996, states as follows in its entirety:

    Mr. David Kelly was seen today in clinic for his ongoing medical conditions. He still requires a cane for ambulation.

    
    

22. Respondent notified Petitioner by letter dated November 20, 1996, that charges were being brought against him which could result in his dismissal. Specially, Respondent charged him with

    inability to perform his duties and/or excessive absenteeism.

    
    

    The only medical information available to Respondent at that time indicated that Petitioner had a chronic condition which limited his ability to perform his regular duties due to a non-work related injury. The letter advised Petitioner that Respondent had conducted a job search and found no other position available for which he was qualified.

23. At Petitioner's request, Respondent conducted a predetermination conference on December 6, 1998. Petitioner did not present any additional information indicating that his medical condition had improved or would improve so that he could perform, without limitation, the duties of a correctional officer. H.D. Alford, Superintendent of Gulf Correctional Institution, dismissed Petitioner from his employment effective December 10, 1998.

24. Petitioner made no independent effort to identify another position with Respondent for which he would have been qualified. Respondent attempted to find Petitioner another position within the agency's Region One area, but there were no position available to match his qualifications.

25. Petitioner received unemployment compensation for a while. He then sought outside employment and received a job offer. He did not accept the job because he hoped to return to work with Respondent.

26. On April 10, 1997, Respondent received a handwritten note from Second Lieutenant Smith stating that the use of a cane is incompatible with the position description for a correctional officer.

27. Petitioner is able to golf and walk for exercise one or two times a week. He personally does not feel that his osteoartritis is a serious condition. He believes that he has always been physically able to perform a correctional officer's duties. However, Petitioner feels more comfortable when he has the cane to relieve pressure on his knee in case he needs such relief. According to Petitioner, his ability to walk or stand for long periods of time depends on the weather and his level of activity.

28. Petitioner did not present the testimony of a medical expert to establish the following: (1) the exact nature and severity of his disability; (2) the duration or expected duration

    of the impairment; or (3) the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.

    CONCLUSIONS OF LAW

    
    

29. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding pursuant to Sections 120.569, 129.57, and 760.11, Florida Statutes.

30. Petitioner claims that Respondent unlawfully discriminated against him by denying him reasonable accommodation for his disability, and then terminating him because of that disability, contrary to the Americans with Disabilities Act of 1990, 42 U.S.C. Section 12101 et. seq., and Chapter 760, Florida Statutes.

31. Petitioner must establish a prima facie case of discrimination by showing that he has a disability, that he is qualified for the position at issue, and that Respondent discriminated against him because of the disability. Talavera v. School Board of Palm Beach County, 129 F.3d 1214, 1217 (11th Cir. 1997).

32. A disabled person is one who meets one of the following requirements: (1) has a physical or mental impairment that substantially limits one or more of the person's major life activities; (2) has a record of such impairment; or (3) has been regarded by the employer as having such impairment. Gordon v.

    E.L. Hamm & Associates, Inc., 100 F. 3d 907, 911 (11 Cir. 1996).

33. In this case, Petitioner has proved that he has a disability because Respondent treated him as if he were impaired. Respondent accepted the limitations placed on Petitioner by Dr. Camperlengo and Second Lieutenant Smith. Respondent required Petitioner to furnish a medical release from those limitations before he could return to work. When Petitioner did not furnish the required information, Respondent terminated him.

34. Petitioner has not met his burden of proving that he is qualified to be a correctional officer. Pursuant to 42 U.S.C. Section 12111(8), a person with a disability is qualified for a position if that person can perform the essential functions of the job with or without reasonable accommodation.

35. Petitioner claims that he could not perform his duties without the use of a cane to relieve the pressure on his knee. Depending on the weather and the level of his activity, Petitioner could not walk or stand for long periods without his cane. Even if he was allowed to use a cane as an accommodation, there was no persuasive evidence that Petitioner could run or physically restrain inmates as might be required in the performance of his duties. The greater weight of the evidence indicates that physical limitations which require the use of a cane prevent Petitioner from being able to perform the essential functions of his former job.

36. Finally, there is no evidence, direct or indirect, that Respondent terminated Petitioner based on unlawful discrimination

against his disability. Petitioner's medical leave expired on September 18, 1996. He did not request an extension of that leave or furnish Respondent with a physician's statement returning him to work without limitations. Petitioner could not adequately perform his duties, with or without a cane.

Petitioner did not prove by a preponderance of the evidence that his physical restrictions could be reasonably accommodated as a correctional officer. Respondent conducted a job search and could not find an appropriate job for Petitioner.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission On Human Relations enter a Final Order dismissing Petitioner's Charge of Discrimination.

DONE AND ORDERED this 17th day of August, 1998, in Tallahassee, Leon County, Florida.

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 1998.

COPIES FURNISHED:

S. Russell Scholz, Esquire Rish and Gibson, P.A.

Post Office Box 39

Port St. Joe, Florida 32457

Ernest L. Reddick, III, Esquire Department of Corrections

2601 Blair Stone Road Tallahassee, Florida 32399-2500

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

325 John Knox Road

Tallahassee, Florida 32303-4149

Dana Baird, General Counsel Commission on Human Relations 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 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: 97-005996

Orders for Case No: 97-005996