STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARLOS A. MANGUAL, )

)

Petitioner, )

)

vs. ) Case No. 01-4014

)

MIAMI DADE COUNTY CONSUMER )

SERVICES, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case by video teleconference on February 22, 2002, with the parties appearing from Miami, Florida, before

1. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

   APPEARANCES

   
   

   For Petitioner: Ana M. Urrechaga, Esquire

   Urrechaga, P. A.

   8603 South Dixie Highway Suite 209

   Miami, Florida 33143

   
   

   For Respondent: Eric A. Rodriguez, Esquire

   Robert A. Ginsburg

   Miami-Dade County Attorney

   111 Northwest First Street Suite 2810

   Miami, Florida 33128-1993

   STATEMENT OF THE ISSUE

   
   

   Whether the Respondent failed to make a reasonable accommodation in order to allow the Petitioner to perform his job functions and thereby committed an unlawful employment practice constituting discrimination that is prohibited by the Florida Civil Rights Act.

   PRELIMINARY STATEMENT

   
   

   On or about April 2, 2001, the Petitioner, Carlos A. Mangual, executed a Charge of Discrimination and filed it with the Florida Commission on Human Relations. Such document alleged that the Respondent, Miami Dade County Consumer Service, had committed an act of discrimination within the jurisdiction of that entity. The last act of discrimination allegedly took place on June 9, 2000, when the Petitioner was "demoted" from a position of consumer protection officer to a parks security supervisor.

   Petitioner alleged he had been discriminated against because of a disability.

   The claim was concurrently filed with the U.S. Equal Employment Opportunity Commission. That entity dismissed the Charge of Discrimination, as it determined the Petitioner is not a qualified individual with a disability. Subsequently, the Petitioner filed a Petition for Relief with the Florida Commission on Human

   Relations. That Petition was then referred to the Division of Administrative Hearings for formal proceedings on or about October 18, 2001.

   Prior to hearing, the parties filed a Joint Pre- hearing Stipulation. Such stipulation outlined the parties' statements of the case and identified issues to be addressed by the evidence. The Respondent has disputed that the Petitioner is disabled, denied that the Petitioner made a reasonable accommodation request, and contested Petitioner's claim as a matter of law.

   At the hearing, the Petitioner testified in his own behalf and offered Petitioner's Exhibit 1 into evidence. A late-filed deposition with one exhibit attached has also been received into evidence and marked for identification as Petitioner's Exhibit 2.

   The Respondent offered testimony from William Collins, Lee Sauls, and Mario Goderich. The Respondent's Exhibits 3 and 4 were received in evidence.

   The transcript of these proceedings was filed with the Division of Administrative Hearings on March 25, 2002. An Order granting the parties an extension of time to file proposed recommended orders was entered on

   April 1, 2002. Thereafter, the parties filed proposed

   orders that have been considered in the preparation of this order.

   FINDINGS OF FACT

   
   

   1. Miami-Dade County is a political subdivision of the State of Florida. The Respondent, Miami Dade County Consumer Service, is a department of Miami-Dade County.

   2. The Petitioner, Carlos A. Mangual, is an employee of Miami-Dade County, Florida (the County). He currently is employed as the security manager for the Port of Miami. The Petitioner has held his current position since April of 2001.

   3. Prior to his current position, the Petitioner was a Parks and Recreation Security Supervisor for the County. As a supervisor he was eligible to participate in seminars and training meetings that were geared toward making supervisors aware of personnel rules and regulations.

   4. During his employment with Parks and Recreation, the Petitioner attended a meeting regarding the Americans with Disabilities Act (ADA). Mr. Collins is the County's Employee Relations ADA specialist who was the guest instructor for the supervisor's certification program.

   5. Mr. Collins met the Petitioner at the ADA meeting and discussed with the Petitioner whether the

      Petitioner's weight (and size) would be considered a disability under the ADA provisions.

   6. Subsequently, while employed with the County, the Petitioner was involved in an automobile accident that resulted in a knee injury. The Petitioner has undergone two surgeries to correct the damaged knee. Because the knee has adversely affected the Petitioner's gait, he also suffers back pain from the incident.

   7. The knee injury, resultant back pain, and residual physical impairments have caused the Petitioner to receive a workers' compensation overall impairment rating of 8 percent. For purposes of this case, the Respondent does not challenge such impairment.

   8. Subsequent to the accident and knee injury, the Petitioner applied for a position with the Respondent. Such position, Consumer Protection Inspector/Officer, required the Petitioner to attend to office duties for approximately 1-2 hours per day and to "be on the road" the rest of the time. Consequently, while working as a Consumer Protection Inspector, the Petition logged anywhere from 100 to 200 miles per day in a County-owned vehicle.

   9. The Petitioner began his probationary status with the Respondent in January 2000. During the

      probationary period, the Petitioner received monthly job performance evaluations.

   10. After approximately 5 months and while still during his probationary status, the Petitioner was not retained as a Consumer Protection Inspector. Instead, he was returned to the Parks Department where he continued employment with the County until he began his current position with the Port.

   11. The Petitioner considered the return to Parks a "demotion" based upon his alleged disability.

   12. It is undisputed the Petitioner requested a larger vehicle during his tenure with the Respondent.

       The Petitioner maintained the mileage logged in small vehicles was damaging to his knee and uncomfortable. The Petitioner claims he was entitled to an accommodation under the ADA because of his alleged disability.

   13. During his time with the Respondent, the Petitioner did not make a formal request for an accommodation.

   14. In fact, the credible evidence supports a finding that the Petitioner obtained the form but did not file it with supporting medical documentation as advised by the County's ADA specialist.

   15. The Petitioner maintains that the small vehicle assigned for his use required him to frequently stop and stretch. Such stops were necessary because the interior of the vehicle did not allow for an extension of his leg. There is no evidence that the employer refused to allow the Petitioner to make such stops or that the Petitioner was adversely evaluated because of the stops.

   16. During the Petitioner's probationary period, the Respondent did not have a larger vehicle readily available to assign to the Petitioner. Vehicles that might have become available would have been assigned based upon seniority with the Respondent. The Petitioner went back to Parks prior to such vehicles becoming permanently available to the Respondent.

   17. The Petitioner's impairment rating has not affected his abilities to walk every day, to drive to and from his place of employment, to shop, to engage in leisure activities, or to go to a gym once a month for workouts.

   18. There is no evidence of any life activity that Petitioner cannot perform as a result of his knee impairment.

   19. The Petitioner was fully able to perform the functions of his job.

   20. The Petitioner performed his job with the Respondent even when using a small vehicle.

   21. The Respondent never refused a request for an accommodation from the Petitioner.

   22. The Petitioner's informal inquiry regarding how to seek an accommodation was never formally filed.

   23. The Petitioner's size as well as any knee impairment contributed to the uncomfortable nature of the small vehicle used by the Respondent. This was especially true when the Petitioner was required to share the vehicle with another employee.

       CONCLUSIONS OF LAW

       
       

   24. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings.

   25. Section 760.10, Florida Statutes, provides, in pertinent part:

       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.

   26. In this case the Petitioner bears the burden of proof to establish he has a "handicap" as defined by law and that such condition was the basis of the Respondent's action. He has failed to meet that burden.

   27. The Petitioner's impairment rating for workers' compensation purposes does not equate to a "handicap" as that term is used by the statute. The impairment did not constitute a "disability" (or handicap) as it did not substantially limit one or more major life activities.

       By his admission, the Petitioner was able to do many life activities. Moreover, it is undisputed that the Petitioner was able to perform the physical requirements of the job. It is also undisputed that the Respondent did not discipline or adversely evaluate the Petitioner based upon the breaks he took to make his leg more comfortable.

   28. Had the Petitioner formally sought an accommodation for his knee condition, there is nothing in this record to suggest the Respondent would not have allowed the Petitioner the ability to continue to take breaks for stretching purposes. In fact, however, the Petitioner never formally sought an accommodation. As such, the Respondent was never formally on notice of an

       alleged disability such that an accommodation should have been made.

   29. Finally, the Petitioner never went past a probationary status with the Respondent. The Petitioner went from one job site with the County to another job without any significant interruption of employment. The Petitioner has not established that such transfer was the result of an unlawful discrimination based upon a disability, as the Petitioner is not disabled. As a matter of law, if the Petitioner is not disabled, there can be no discrimination based upon that criterion.

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 the Petitioner's complaint.

DONE AND ENTERED this 30th day of May, 2002, in Tallahassee, Leon County, Florida.

___________________________________

J. D. PARRISH 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 30th day of May, 2002.

COPIES FURNISHED:

Cecil Howard, General Counsel

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Carlos A. Mangual

1290 Northeast 135th Street North Miami, Florida 33161

Consumer Services Miami Dade County

140 West Flagler Street, Suite 901 Miami, Florida 33128

Eric A. Rodriquez, Esquire

111 Northwest 1st Street, Suite 2810 Miami, Florida 33128-1993

Ana M. Urrechaga, Esquire Urrechaga, P. A.

8603 South Dixie Highway, Suite 209

Miami, Florida 33143

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: 01-004014

Orders for Case No: 01-004014