STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLYDE A. JEFFERSON, )

)

Petitioner, )

)

vs. ) Case No. 01-3670

)

RYAN COMPANIES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on January 23, 2002, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Deborah A. Rodgers, Qualified

Representative

445 Australian Circle Lake Park, Florida 33403

For Respondent: Paul M. Woodson, Esquire

Houston & Shahady, P.A.

316 Northeast Fourth Street Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUE

The issue presented is whether Respondent terminated Petitioner's employment due to Petitioner's disability.

PRELIMINARY STATEMENT

On May 11, 1998, Petitioner filed a complaint with the Florida Commission on Human Relations alleging that he had been wrongfully terminated from his employment with Respondent Ryan Companies based upon his disability. On September 19, 2001, the Commission transmitted Petitioner's Petition for Relief to the Division of Administrative Hearings to conduct an evidentiary proceeding.

At the beginning of the final hearing, Petitioner's daughter was qualified to be his representative during this proceeding.

The Petitioner testified on his own behalf and presented the testimony of Jerry M. Stewart, Patrick L. Kirmann, and James Possanza. Patrick L. Kirmann, James Possanza, and Jerry M. Stewart also testified on behalf of Respondent Ryan Companies. Additionally, Petitioner's Exhibits numbered 1-3 were admitted in evidence.

Although both parties requested leave to file proposed recommended orders after the conclusion of the final hearing, only Respondent did so. Respondent's proposed recommended order has been considered in the entry of this Recommended Order.

FINDINGS OF FACT

1. Respondent Ryan Companies is in the business of site development, including underground utility work. Ryan employed

   Petitioner in September 1995 to operate a front-end loader for Ryan's pipe division. A front-end loader is a heavy machine used to carry heavy materials in a front-end bucket.

   Petitioner's duties involved unloading materials with the front- end loader and laying the materials out with the loader in an area adjacent to where the piping crews were working.

2. At the time of his employment, Petitioner wore a brace on his left leg as a result of complications from back surgery which Petitioner had undergone approximately ten years before his employment by Ryan. Petitioner disclosed on his written application that he wore the brace on his left leg but that he needed no reasonable accommodation to assist him in performing the essential functions of his job.

3. Petitioner was able to climb in and out of the cab of the front-end loader without assistance. He also drove his own vehicle to and from work. His only restriction on driving was that he was not able to operate a vehicle which had a clutch.

4. Although Petitioner asserts that he was disabled at the time he was employed by Ryan, Petitioner did not represent himself to be disabled to Ryan's other employees. Further, other Ryan personnel did not perceive him to be disabled. They only noticed that Petitioner walked stiff-legged with a limp, using a cane.

5. Petitioner admits that he was able to perform his duties. Although Petitioner was not able to lift heavy objects, his duties did not require him to do so, and no evidence was offered that any inability to lift heavy objects was related to his left leg. Petitioner's position only required him to drive the front-end loader and move material for the pipe crews.

6. Although Petitioner successfully completed his probationary period with Ryan, there were problems with his performance. On more than one occasion, Petitioner destroyed materials and knocked down grade stakes while operating his front-end loader. Petitioner's supervisor told him on more than one occasion that if it happened again, he would be replaced. Replacing the materials and having the survey crew return to the job site to re-position stakes cost Ryan money. However, Petitioner's supervisor was also concerned with the safety of the men laying pipe as a result of Petitioner's driving skills.

7. It was ultimately decided by Ryan supervisory personnel that it was too risky to allow Petitioner to continue to operate a front-end loader. Rather than terminating Petitioner for inadequate performance, his supervisor first inquired of other supervisors if any of them could give Petitioner a different position in the company. Another supervisor said he had a position for Petitioner.

8. Petitioner was transferred to the position of "ticket writer," in which Petitioner was to keep track of the material being trucked out from Ryan's haul pit at Winston Trails. Petitioner was required to write down the amount of material being hauled by each truck and was instructed in proper procedure by his new supervisor. His supervisor wrote out a sample for Petitioner to follow and filled out the first few tickets to show Petitioner what to do. Each time a new company came to the haul pit, Petitioner's supervisor wrote out a new form for Petitioner to follow.

9. The amount of information to be recorded on the ticket was minimal: the name of the company taking the material, the date, the job site, and how many yards of material were being taken. The driver of the truck then signed the ticket.

10. Petitioner was capable of performing his duties as a ticket writer. He never advised anyone that he could not read or write well enough. Rather, Petitioner admits he was capable of writing the tickets.

11. However, Petitioner was careless in completing the tickets accurately, sometimes writing the name of the wrong company or incorrectly noting whether the truck was hauling 16 yards or 18 yards. He also put tickets in the wrong piles, causing the wrong customer to be billed. The tickets represent a bill of sale, and Petitioner was advised by his supervisor

    more than once that it was important that Petitioner complete the tickets more accurately. Petitioner was advised that if he continued to be careless, he would be terminated.

12. Petitioner was terminated in August 1996 for continuing to write incorrect information on the truck loading tickets.

13. The brace on Petitioner's left leg had no impact on Petitioner's ability to write tickets.

14. Although Petitioner's representative appeared to argue at the final hearing that Petitioner cannot read or write, Petitioner disagrees with that suggestion. Petitioner was able to read maps and bills of lading when he had previously worked as a truck driver. He was also able to pass the Coast Guard four-hour written examination for a captain's license. He was also able to write for his daughter's use in his litigation a detailed report of his experiences at Ryan from the time he was hired until he was terminated.

15. Petitioner had worked as a charter boat captain for about ten years prior to going to work for Ryan. The brace he wore on his left leg did not impede his ability to operate a charter boat in the open ocean, regardless of rough weather conditions. Since being terminated by Ryan, Petitioner has been employed as a security guard and does not have any problem fulfilling his duties.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Sections 120.569 and 120.57(1), Florida Statutes.

17. Petitioner alleges that he was discharged by Ryan because of his handicap or disability, in violation of Section 760.10(1)(a), Florida Statutes. The threshold issue, therefore, is whether Petitioner is disabled within the meaning of the Florida Civil Rights Act of 1992, Sections 760.01-760.11, Florida Statutes, which is patterned after the Americans with Disabilities Act. Petitioner has failed in his burden of proof.

18. A "disability" is defined as: (1) a physical or mental impairment that substantially limits one or more of an individual's major life activities, (2) a record of such impairment, or (3) being perceived or regarded as having such an impairment. 42 U.S.C. 12102(2). It is not sufficient for an individual merely to suffer from a physical or mental impairment; the impairment must substantially limit one or more of the individual's major life activities. Since driving is not a major life activity, Petitioner is not disabled due to his inability to operate a front-end loader properly. Chenoweth v. Hillsborough County, 250 F.3d 1328 (11th Cir. 2001). Further, Petitioner has failed to show that he was unable to drive due to the condition which required him to wear a brace on his left

    leg. It is undisputed that Petitioner could drive. He simply did not do so carefully enough when working around people and objects.

19. An impairment substantially limits the major life activity of working only if it significantly restricts an individual's ability to perform either a class of jobs or a broad range of jobs in various classes. An inability to perform a single job or one aspect of a job while retaining the ability to perform work in general does not amount to a substantial limitation of the major life activity of working. Swanson v.

    Palm Beach County Board of County Commissioners, 932 F. Supp.

    
    

    283 (S.D. Fla. 1995). Petitioner has failed to show that he is unable to perform either a class of jobs or a broad range of jobs in various classes. Since the complication from his back surgery affected his left leg, Petitioner has worked as a charter boat captain, as a front-end loader driver, as a ticket writer, and as a security guard.

20. In short, Petitioner has failed to show he had a disability while employed by Ryan or that his disability was the cause of his termination. Rather, Petitioner was, by his own admissions, capable of operating the front-end loader and of writing tickets. He simply was not willing to do either in a careful manner.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a final order be entered finding Respondent Ryan Companies not guilty of terminating Petitioner due to his disability and dismissing Petitioner's complaint filed in this cause.

DONE AND ENTERED this 22nd day of March, 2002, in Tallahassee, Leon County, Florida.

LINDA M. RIGOT

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 2002.

COPIES FURNISHED:

Deborah Rogers, Qualified Representative

445 Australian Circle Lake Park, Florida 33403

Paul M. Woodson, Esquire Houston & Shahady, P.A.

316 Northeast Fourth Street Fort Lauderdale, Florida 33301

Cecil Howard, General Counsel Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Violet D. Crawford, Agency Clerk Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

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: 01-003670

Orders for Case No: 01-003670