vs.
Respondent.
) Case No. 02-2749
A formal hearing was conducted in this case in Ocala, Florida, on September 18, 2002, by Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings.
For Respondent: Kade Spencer, Qualified Representative Dayco Products, Inc.
The issue is whether Respondent discriminated against Petitioner based on his race and/or disability by terminating his employment in violation of Section 760.10, Florida Statutes.
On November 19, 2001, Petitioner Ray Mayo (Petitioner) filed a Charge of Discrimination with the Florida Commission on Human Relations (FCHR). The charge alleged that Respondent Dayco Products, Inc. (Respondent) had committed an unlawful employment practice by discriminating against Petitioner based on his race and/or handicap.
FCHR issued a Notice of Determination: No Cause and Determination: No Cause on June 21, 2002. On or about July 1, 2002, Petitioner filed his Petition for Relief with FCHR. On July 11, 2002, FCHR referred the case to the Division of Administrative Hearings.
In a Notice of Hearing dated July 30, 2002, the undersigned scheduled the hearing for September 18, 2002. During the hearing, Petitioner testified on his own behalf but did not offer any exhibits for admission into the record. Respondent presented the testimony of two witnesses and offered two exhibits that was accepted into evidence.
The parties did not file a transcript of the proceeding or proposed recommended orders.
Respondent manufactures rubber hoses for the automotive industry.
Petitioner is a black male who began working for Respondent on February 17, 1999. Petitioner's job as a molder required him to work with his hands and arms pinning rubber hoses onto metal pins and removing the hoses from the pins after they cooled down. The job was dangerous and physically stressful to Petitioner's hands and wrists.
After working for Respondent for approximately three months, Petitioner suffered a job-related injury. Respondent sent Petitioner to a physician who diagnosed Petitioner as having sprained hand and wrist muscles. The physician prescribed anti-inflammatory medicine for Petitioner and recommended that he return to work on light duty.
For the next several months, Petitioner worked as a molder in an area of Respondent's plant that caused less physical stress on the muscles and ligaments in Petitioner's hands and wrists. Petitioner had no problems working in that area.
In time, Respondent began to experience a decrease in the number and type of orders that it received from its customers. The change in demand for Respondent's products resulted in a reorganization of the production line, a smaller number of available positions, and in some cases, layoffs of employees.
Eventually, Respondent moved Petitioner's work station back to his original position which was physically more stressful. After a couple of months, Petitioner suffered another work-related injury. Respondent told Petitioner that he would have to continue working as assigned because there was no other work or lighter duty available.
Petitioner continued to work in the more physically stressful area of Respondent's plant. On one occasion, Respondent took Petitioner to the hospital because he was experiencing pain. Petitioner did not go back to work until he saw a physician who specialized in treating Petitioner's type of injury.
Petitioner eventually was diagnosed as having bi- lateral carpel tunnel syndrome. The doctor recommended that Petitioner work on light duty until he could have surgery. Respondent accommodated Petitioner's needs by allowing him to work on light duty pending the proposed surgery.
Respondent has a substance abuse policy to maintain a work place that is free from the use of illegal drugs and the use of alcohol. The policy provides for assistance for employees who develop an addiction to drugs or alcohol and who voluntarily seek assistance before the company has knowledge of the problem. If an employee tests positive for illegal drugs or
alcohol use while on the job, the employee is subject to immediate termination.
Respondent's substance abuse policy provides for drug and alcohol screening under the following circumstances:
after any injury that requires outside medical attention;
after any incident that results in damage to other associates, company property, or a pattern of personal injuries;
upon observance of abnormal or erratic behavior while at work or a significant deterioration in work performance;
upon reasonable suspicion due to observable phenomena, direct observation of use, or a report of use by a reliable and credible source; and (e) pursuant to random drug screening.
Petitioner never tested positive for illegal drugs or alcohol use while he was working for Respondent. He never even went to work under the influence of illegal drugs or alcohol. However, on August 22, 2000, Petitioner voluntarily advised Respondent that that he had a substance abuse problem and that he desired to participate in the assistance referral program.
On August 23, 2000, Petitioner met with Respondent's human resource manager and occupational nurse. The nurse reviewed the company's substance abuse policy and assistance referral program with Petitioner. Additionally. the nurse advised Petitioner as follows: (a) he would have to enroll in a treatment program; (b) he would have to provide Respondent with
weekly letters from the treatment program, furnishing information about Petitioner's progress in the program; and
(c) he would be subject to random drug screens for two years.
The human resource manager advised Petitioner that he would be discharged if he failed to comply with and successfully complete the treatment program. Petitioner indicated that he understood Respondent's requirements for participation in the assistance referral program.
Petitioner elected to enroll in an outpatient substance abuse treatment program sponsored by Marion Citrus Mental Health. Petitioner missed his first appointment at the treatment center because he lacked transportation.
Petitioner eventually began attending the treatment program three nights a week. He continued to work light duty at Respondent's plant during the day.
Petitioner did not furnish Respondent with documentation showing that he had enrolled in the substance abuse treatment program. Instead, Petitioner advised Respondent's occupational nurse that he had signed a release at Marion Citrus Mental Health so that she could call his mental health counselor to verify his attendance in the program.
Meanwhile, Respondent continued to reorganize and downsize its operations. When there were more employees restricted to light duty than light duty positions available,
Respondent assisted the employees in filing workers' compensation claims and allowed them to stay at home on medical leave for up to 12 weeks.
In time, Respondent could no longer accommodate Petitioner's physical injury with a light duty position. Petitioner filed a workers' compensation claim and began staying at home on medical leave on September 11, 2000.
On September 11, 2000, Respondent's occupational nurse called Petitioner's mental health counselor at Marion Citrus Mental Health. The nurse learned that Petitioner had kept an appointment at the mental health facility on September 7, 2000. The nurse also learned that Petitioner had not signed a release of information form that would allow the counselor to share any other information about Petitioner's treatment program.
On September 12, 2000, Respondent's occupational nurse sent Petitioner a letter. The purpose of the letter was to remind Petitioner that he was required to furnish Respondent with a written statement from the substance abuse treatment facility each week. According to the letter, the written statement was supposed to include Petitioner's treatment plan schedule. The letter advised Petitioner that to remain employed, he would have to keep Respondent fully informed about his progress in and completion of the treatment program.
On September 14, 2000, Petitioner called Respondent's occupational nurse to advise her that he could not keep his appointment at Marion Citrus Mental Health that week. Petitioner advised the nurse that he was taking medication that made him dizzy and that he had transportation problems, which made it difficult for him to attend the treatment program.
On September 15, Petitioner went to Respondent's plant to see the occupational nurse. Because he claimed that he had not received the letter dated September 12, 2000, the nurse read the letter to him and gave him a copy of it. Once again the nurse explained Respondent's assistance referral program to Petitioner, advising him that Respondent would not tolerate future missed appointments at Marion Citrus Mental Health. The nurse also gave Petitioner a rapid drug screen, the result of which was negative.
On November 15, 2000, Respondent sent Petitioner another letter regarding his failure to furnish Respondent with evidence of his attendance at and completion of a treatment program. The letter advised Petitioner that he had to furnish the information on or before November 27, 2000, or risk having his employment terminated.
Petitioner received Respondent's November 15, 2000, letter but did not furnish Respondent with the requested information. Petitioner did not call Respondent to explain his
failure to do so. In a letter dated November 27, 2000, Respondent advised Petitioner that he was discharged.
Petitioner furnished Respondent with a letter dated December 4, 2000, from Marion Citrus Mental Health. The letter states that Petitioner had been enrolled in substance abuse outpatient counseling beginning August 31, 2000, and that he was progressing well.
There is no evidence that Respondent applied its substance abuse policy to non-minority employees differently than it did to Petitioner or other minority employees. Additionally, there is no evidence that Respondent treated non-minority employees who had workers' compensation claims differently than it treated Petitioner or other minority employees who were home on medical leave due to a workers' compensation injury. In fact, Petitioner admitted during the hearing that he had no proof that Respondent discriminated against him based on his race.
During the relevant time period, Respondent had approximately 52 employees (half black and half white) that suffered a workers' compensation injury. Employees with workers' compensation injuries were allowed to remain on family medical leave for 12 weeks. Employees who returned to work within the 12-week period were guaranteed a job. Subsequent to the 12-week period, employees with workers' compensation
injuries were not officially terminated unless they were unable to return to work after 12 months.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Sections 120.569, 120.57(1), and 760.11 (7), Florida Statutes.
Sections 760.01-760.11, Florida Statues, contain the provisions of the Florida Civil Rights Act of 1992 that apply in this case. FCHR and the Florida Courts interpreting the Florida Civil Rights Act of 1992 have determined that federal anti- discrimination law should be used as guidance when construing Florida anti-discrimination law. See Brand v. Florida Power Corp., 633 So. 2d 504, 509 (Fla. 1st DCA 1994); Florida
Department of Community Affairs v. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991).
Section 760.10(1)(a), Florida Statutes, states as follows:
It is an unlawful employment practice for an employer:
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.
Petitioner has the burden of proving by a preponderance of the evidence that Respondent discriminated against him based on his race and/or handicap. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089 (1981); McDonnell Douglas v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973).
Petitioner initially must prove a prima facie case of illegal discrimination. If a prima facie case is proven, the burden shifts to Respondent to articulate a legitimate nondiscriminatory reason for the alleged disparate treatment or adverse action taken against Petitioner. If Respondent produces evidence of a nondiscriminatory reason for its action, the burden then returns to Petitioner to prove that the articulated reason is a mere pretext for intentional discrimination. See Texas
Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 1093, 67 L.Ed.2d 207 (1981).
In order to prove a prima facie case of racial discrimination involving discharge, Petitioner must prove that he is a member of a protected class, that he was qualified to work as a molder, and that he was discharged and replaced by a person outside of the protected class or was discharged while a person outside of the class with equal or lesser qualification was retained. Anthony T. Lee, et al. v. Russell County Board of Education of Russell County, Alabama, et al., 684 F.2d 769, 773
(11th Cir. 1982). Petitioner offered no evidence showing that he was replaced by a non-minority or that he was discharged while a non-minority with equal or lesser qualifications was retained.
In Jones v. Gerwens, 874 F.2d 1534, 1540 (11th Cir.
1989), the court stated as follows:
Accordingly, we hold that, in cases involving alleged racial bias in the application of discipline for violation of work rules, the plaintiff, in addition to being a member of a protected class, must show either (a) that he did not violate the work rule, or (b) that he engaged in misconduct similar to that of a person outside the protected class, and that the disciplinary measures enforced against him were more severe than those enforced against the other persons who engaged in similar misconduct.
Petitioner admitted during the hearing that he did not know of any incident in which Respondent treated a non-minority employee, who voluntarily participated in a substance abuse treatment program, differently from himself or other minority employees. He presented no evidence showing that a non-minority employee, who had a substance abuse problem, was not required to furnish Respondent with a weekly written statement from the treatment program showing the employee's progress in the program.
Next, Petitioner asserts that Respondent terminated his employment due to one or both of his alleged handicaps. To prevail on his claim of handicap discrimination, Petitioner must
prove that he has a disability, that he is a qualified individual, and that he was unlawfully subjected to discrimination because of his disability. La Chance v. Duffy's Draft House, Inc., 146 F.3d 832, 835 (11th Cir. 1998).
Petitioner presented evidence that he had a substance abuse problem involving cocaine and alcohol. He also proved that he had been diagnosed with bi-lateral carpel tunnel syndrome, a work related injury that was covered under workers' compensation insurance.
Chapter 760, Florida Statutes, does not specifically define the term "handicap," as it is used in Section 760.10(1)(a), Florida Statutes, but does contain a definition of the term for purposes of Sections 760.20-760.37, Florida Statutes, which make up the "Fair Housing Act." In pertinent part, Section 760.22(7), Florida Statutes, defines "handicap" to mean:
(a) A person has a physical or mental impairment which substantially limits one or more major life activities, or he or she has a record of having, or is regarded as having, such physical or mental impairment . . . .
Both the federal Rehabilitation Act of 1973 and the federal Americans with Disabilities Act of 1990 incorporate essentially the same definition of "handicap." See 29 U.S.C. Section 791; 42
U.S.C. Sections 12101, et seq. Therefore, a similar definition
of the term "handicap" applies to a claim of discrimination under Section 760.10(1), Florida Statutes.
In this case, Petitioner has not proved that his substance abuse problem was an impairment that substantially limited his activities at home or at work, that he had a record of such an impairment, or that Respondent regarded him as having such an impairment. To the contrary, Petitioner never failed a drug or alcohol screening at work and was able to continue working after enrolling in the substance abuse treatment program. But for his physical injury, Petitioner could have continued to work regular duty while he completed the outpatient substance abuse treatment program three nights a week.
Respondent does not dispute that Petitioner suffers from an actual disability due to bi-lateral carpel tunnel syndrome. Additionally, it is uncontested that Petitioner is a qualified individual, who has the requisite skill and experience of a molder, such that with reasonable accommodation, Petitioner is able to perform the essential functions of the position. La
Chance v. Duffy's Draft House, Inc., 146 F.3d 832, 835 (11th Cir. 1998). In this case, the reasonable accommodation would be to allow Petitioner to work as a molder in an area of the plant that was not so stressful on his hands, wrists, and arms.
Petitioner's claim of handicap discrimination fails because he did not present evidence of the third and final prima
facie factor, i.e., that he was subjected to unlawful discrimination due to his disability. Petitioner presented no evidence showing that Respondent failed to follow its policies regarding employment of individuals on medical leave due to workers' compensation claims.
At all times material to this proceeding, Respondent was in the process of reorganizing and downsizing its workforce. Respondent found it necessary to lay off healthy employees, as well as employees like Petitioner, who were on medical leave due to workers' compensation claims. Respondent guaranteed a job to employees on medical leave if they were able to return to work within 12 weeks. After the 12-week period, Respondent allowed employees to return to work for up to 12 months if a job was available.
To the extent that Petitioner proved his prima facie case of racial or handicap discrimination, Respondent articulated a legitimate non-discriminatory reason for discharging Petitioner. The reason was Petitioner's failure to provide Respondent with a weekly letter from his counselor at Marion Citrus Mental Health regarding his progress in the substance abuse program.
Petitioner presented no evidence that Respondent's reason for terminating his employment was a pretext for racial or handicap discrimination. Respondent did not continue the
employment of any individual who was voluntarily participating in a substance abuse treatment program if the individual failed to provide Respondent with the necessary information showing the individual's progress in that program.
That FCHR enter a final order dismissing the Petition for Relief.
DONE AND ENTERED this 10th day of October, 2002, in Tallahassee, Leon County, Florida.
SUZANNE F. HOOD
Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 2002.
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Dayco Products, Inc.
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
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.
