a Proposed Recommended Order based on the merits of the case, excluding reference to Dr. Mathew's deposition.
Dr. Mathew's deposition. Respondent's cover letter stated that Respondent would file the signed errata sheet upon its receipt. The signed errata sheet was filed on May 28, 2003.
On May 27, 2003, Petitioner filed proposed findings of fact.
Petitioner began his employment as a firefighter with the City of Leesburg on or about October 20, 1987.
Respondent operates two fire stations: Station One and Station Two. At all times material here, Petitioner was assigned to Station One.
In the months prior to October 15, 2001, Respondent began using an advance life support (ALS) rescue truck at Station One. The ALS rescue truck had to have a paramedic on board for all emergency calls, a requirement that did not exist for fire trucks. The ALS rescue truck was required to respond to all emergency calls for both rescue stations. All firemen, even those who were not paramedics or emergency medical technicians (EMTs) had to take turns, on a rotating basis, riding with the paramedic in the ALS rescue truck.
Petitioner was nearing the time when he could retire.
He felt that his seniority in the department entitled him to a transfer to Station Two, which answered fewer calls and did not have an ALS rescue truck. Petitioner requested the transfer, telling some of his superiors that he did not feel he was qualified to ride the ALS rescue truck. Petitioner told Lieutenant Richardson that he did not like riding the ALS rescue truck and "wanted off of it."
Captain Pierce, Petitioner's supervisor, denied Petitioner's request to transfer to Station Two. However, Captain Pierce did agree to ask some of the more junior firemen to take Petitioner's rotation on the ALS rescue truck from time to time.
On or about October 15, 2001, the firefighters assigned to Station One were viewing a training video. During the video presentation, Petitioner was reclining on a sofa with a built-in recliner. Petitioner had his arm over his eyes and a sucker in his mouth.
Lieutenant Richardson asked Petitioner if he was sick.
Petitioner replied that he was taking his temperature. Lieutenant Richardson asked Petitioner what he meant in stating that he was taking his temperature. Petitioner responded that he was going to get off that rescue truck, one way or the other.
Shortly thereafter, Lieutenant Richardson again asked Petitioner if he was OK. Petitioner replied that he was fine.
Station One then got a call to respond to an emergency.
Petitioner questioned Lieutenant Richardson about the ALS rescue truck responding to the call. Lieutenant Richardson explained that the ALS rescue truck was to follow the fire engine.
Petitioner then stated that he wanted to make sure that he was doing things properly because his time on Rescue One, the ALS rescue truck, was limited. Lieutenant Richardson asked
Petitioner to repeat his statement. Petitioner complied with the request.
The emergency call on the afternoon of October 15, 2001, came in about 4:00 p.m. The weather was hot and sunny. The firemen were bunkered out, wearing heavy fire pants and jackets, safety boots and gloves, and helmets. The firemen did not wear their air packs/breathing units.
The emergency was located at the scene of an automobile accident on Dixie Highway near Leesburg Regional Medical Center in Leesburg, Florida. The accident involved two vehicles: a small car and a large truck/trailer.
There were two persons in the car. The driver of the car died in the accident. The passenger in the car was alive, but unconscious, when the firemen arrived at the scene. The rescue crew immediately removed the passenger, who was sent to the hospital by ambulance. Petitioner assisted in the rapid extrication of the passenger.
The firemen could not extricate the deceased driver of the car until a wrecker pulled the semi-truck off of the car. Therefore, the firemen stood around, during a brief delay, waiting for the wrecker.
A large crowd gathered at the scene because the accident was very severe. Petitioner assisted in crowd control, asking some people to stand back. Alphonso Sanders,
Petitioner's former neighbor was in the crowd. Petitioner did not appear to be his usual chipper self, so Mr. Sanders asked Petitioner what was wrong. Petitioner replied, "I don't feel good. I think it's my sickle cell and my legs are hurting."
After the wrecker moved the truck, the firemen began extricating the driver of the car. The extrication required the use of heavy hydraulic equipment. For a while, Petitioner assisted in operating the levers that turned the hydraulic power off and on.
As the extrication process continued, other firemen began operating the hydraulic equipment. Petitioner, who was no longer involved in the operation, leaned casually back on the rear of the car that contained the deceased victim. Petitioner had his legs and feet crossed in front of him.
Lieutenant Richardson, the officer in charge of the operation, was standing within six feet of Petitioner. Lieutenant Richardson perceived Petitioner’s stance to be unprofessional and disrespectful due to the severity of the accident and the presence of the deceased victim in the car. Lieutenant Richardson gave Petitioner a direct order to stop leaning on the car. Petitioner replied that he was tired and did not change his position.
Lieutenant Richardson then gave Petitioner a second direct order to stand up. Petitioner responded that his leg
hurt and did not obey the order. Petitioner did not appear to be in pain to Lieutenant Richardson, who is trained as an EMT to observe and assess people in physical distress.
Captain Pierce was also standing close to Petitioner.
He asked Petitioner if he had heard his lieutenant give him two orders and if he was going to obey his superior officer.
Petitioner responded, "No, I'm tired, my leg hurts, I'm not going to stand up." Captain Pierce then ordered Petitioner to get into the Captain’s vehicle in order to leave the scene.
Once ordered to leave the scene by Captain Pierce, Petitioner walked unassisted from the car to the Captain’s vehicle and sat inside. The car and the Captain’s vehicle were approximately 50 feet apart. Petitioner was not limping and did not appear to be distressed in any way.
When Petitioner and Captain Pierce got into the Captain's vehicle, Captain Pierce asked Petitioner whether he was hurt or injured. Petitioner denied being hurt or injured. Petitioner then began to chastise Captain Pierce for not transferring him to Station Two.
After returning to the fire station, Petitioner stood outside in the sun, filling out paperwork. He did not request nor receive any medical attention.
Upon report of the incident to Deputy Chief Geoffrey Beyer, Petitioner was placed on administrative leave pending an
investigation of the incident at the scene and Petitioner’s failure to obey direct orders. Petitioner continued on administrative leave until November 20, 2001, when he was terminated.
Petitioner was told he had sickle cell trait in 1971 when he was in the military. In 1981, Petitioner complained to a physician that he had blood in his urine on two occasions. In 1991, he complained to a physician had blood in his urine on one occasion. Petitioner admits, and his medical records reflect, that he is diagnosed with sickle cell trait and not sickle cell disease.
All firefighters like Petitioner are required to undergo an annual medical examination. The doctors performing these exams do not make any report to Respondent about the exams unless they find some indication that a fireman is not fit to perform their duties pursuant to state guidelines.
Petitioner also had medical examinations every time Respondent changed health insurance carriers and on certain occasions when Petitioner was ill. During at least some of these exams, Petitioner informed the physicians that he had sickle cell trait. However, Respondent was not entitled to review Petitioner's medical records without his permission. Moreover, Respondent never had a reason to make such a request.
Sickle cell trait in and of itself is not a disease or disability. Rather, sickle cell trait is a genetic predisposition for the presence of Hemoglobin S in the blood.
Petitioner has had only a few occasions throughout the past 20 years where he experienced any symptoms related to sickle cell trait. Dr. Lourdes Mathew, Petitioner's hematologist, classified the occurrence of these symptoms, such as urine in the blood, thrombosis or cramping, dehydration or joint pain, as sporadic in nature. Permanent effects or
long-term impact have only been observed in rare cases where severe nerve damage has occurred.
Dr. Mathew’s opinion is that despite Petitioner’s diagnosis with sickle cell trait, he was physically able to perform his normal job duties at the City of Leesburg as a firefighter. Dr. Mathew also testified that sickle cell trait does not substantially impair any of Petitioner’s major life activities. However, Dr. Mathew would not advise Petitioner to engage in fighting forest fires where he might become overexerted and unable to maintain his hydration.
There are no medications that are generally prescribed for individuals with sickle cell trait. Treatment for individuals with sickle cell trait is merely self-policing in nature and involves preventative and corrective measures, such as maintaining hydration and avoiding overexertion.
Respondent learned for the first time of Petitioner’s alleged "disability" as a result of the charge filed against Respondent. At no time prior to the incident on October 15, 2001, did the City of Leesburg or its employees have knowledge of any physical limitations of Petitioner due to sickle cell trait. Any evidence to the contrary is not persuasive.
Respondent's Human Resources Director, Jakki Cunningham-Perry, performed an investigation of the October 15, 2001, incident. During her interview of Petitioner, he told her that he had been diagnosed as having sickle cell trait. Petitioner also told Ms. Cunningham-Perry that he could have moved away from the vehicle when Lieutenant Richardson ordered him to stand up but that he did not know what to do because whatever he said seemed to fall on deaf ears.
Respondent has written rules and regulations, operating procedures, and general orders that are provided to all firemen. The document contains the following provisions, in pertinent part:
ATTENTION TO DUTY
Department personnel shall at all times be attentive to their duties and by their alertness and observations, demonstrate their interest in their work. They shall act with dignity, maintaining a bearing conducive to a good department at all times.
OBEDIENCE TO ORDERS
All personnel shall respect and obey all laws and ordinances and the provision of departmental orders from their superior, including rules and regulations, duties, and procedures.
Respondent's disciplinary policy defines insubordination as refusal to carry out a reasonable request/directive given by a supervisor. The disciplinary range for insubordination includes suspension for one to three days, suspension for four to five days, and discharge/termination.
Ms. Cunningham-Perry recommended termination of Petitioner in a report dated November 13, 2001. Termination of Petitioner's employment was appropriate instead of some form of progressive discipline due to Petitioner's refusal to obey direct orders during a rescue operation. The greater weight of the evidence indicates that Petitioner refused the orders because he wanted to be transferred to Station Two and not because he was experiencing a flare up of symptoms related to sickle cell trait.
Respondent did not receive any medical information from Dr. Mathew about Petitioner's sickle cell trait diagnosis until November 15, 2001. Petitioner admits he did not give prior direct notice to anyone at the fire department of any physical limitations or symptoms he experienced as a result of
sickle cell trait. Petitioner’s physical performance on the job had always been outstanding.
Prior to receiving Dr. Mathew's letter on November 15, 2001, Respondent never had a reason to question Petitioner's fitness for duty. In fact, Petitioner was extremely fit for his age. On one occasion, Petitioner won a foot race with other younger firemen. The race took place in August during a training session in which the firemen were fully bunkered out and wearing their air packs.
Petitioner’s alleged disability was not a factor in the Respondent’s decision to terminate him. The decision was based solely upon Petitioner’s insubordination, failure to show attention to duty, and failure to obey direct orders in violation of City policy and fire department rules.
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, Florida Statutes.
Chapter 760, Florida Statutes, does not specifically refer to a "Petition for Relief" or require the timely filing of a "Petition for Relief" in order to confer jurisdiction on the Division of Administrative Hearings after receipt of a timely
request for hearing. Chapter 760, Florida Statutes, refers exclusively to complaints filed by aggrieved persons.
Rule 60Y-5.008, Florida Administrative Code, sets forth the procedure for filing a Petition for Relief from an unlawful employment practice. Specifically, Rule 60Y-5.008(1), Florida Administrative Code, requires a complainant to file a Petition for Relief within 30 days of service of a Notice of Failure of Conciliation, a Notice of Determination of No Reasonable Cause, etc. Rule 60Y-5.008(2), Florida Administrative Code, states as follows:
(2) For good cause shown, the Chairperson may grant an extension of time to file the Petition for Relief from an Unlawful Employment Practice, provided the motion for extension of time is filed within the 30-day period prescribed by Rule 60Y-5.008(1).
Petitioner did not file a Petition for Relief with FCHR or the Division of Administrative Hearings. Even so, the case should not be dismissed on procedural or jurisdictional grounds for several reasons. First, the time period set forth in Rule 60Y-5.008(1), Florida Administrative Code, is not jurisdictional; therefore, it is subject to equitable tolling. Coleman v. City of Jacksonville, 16 FALR 786 (1993). Second, the Amended Charge of Discrimination, can and is hereby construed to be a Petition for Relief. Third, FCHR referred the case to the Division of Administrative Hearings without
including an Election of Rights form or a Petition for Relief. Fourth, Respondent did not raise the issue of Petitioner's failure to file the Petition for Relief until after the hearing commenced. Finally, Respondent has shown no prejudice as a result of Petitioner's failure to file a timely Petition for Relief. Accordingly, Respondent's motion to dismiss is denied.
Florida law prohibits employers from discriminating against employee on the basis of a handicap. Section 760.10(1)(a), Florida Statutes. The Florida Civil Rights Act of 1992, Section 760.01, et seq., is modeled after Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000, et seq.; therefore, case law interpreting Title VII is also relevant to cases bought under the Florida Civil Rights Act. Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205, 1209 (Fla. 1st DCA 1991). Additionally, the Florida Civil Rights Acts is construed in accordance with the Americans with Disability Act (ADA), 42 U.S.C., Section 12101, et seq.
Razner v. Wellington Regional Medical Center, Inc. 837 So. 2d 437, 440 (Fla. 4th DCA 2002).
A petitioner in a discrimination case has the initial burden of proving a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.Ed.2d 668 (1973).
If the petitioner proves a prima facie case, the burden shifts to the respondent to proffer a legitimate non-discriminatory reason for the actions it took. Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 101
S. Ct. 1089, 67 L.Ed.2d 207 (1981). The respondent's burden is one of production, not persuasion, as it always remains Petitioner's burden to persuade the fact finder that the proffered reason is a pretext and that the respondent intentionally discriminated against the petitioner. Burdine, 450 U.S. at 252-256.
In the instant case, Petitioner alleges that Respondent discriminated against him based on his disability of sickle cell trait by terminating his employment. Petitioner did not present any direct evidence or statistical proof of the alleged discrimination. Therefore, in order to prove a prima facie case of discriminatory discharge, Petitioner must establish the following elements: (a) he is a disabled person within the meaning of the Florida Civil Rights Act and the ADA;
(b) he was "qualified" to perform the job apart from his disability; and (c) he was terminated solely because of his disability. Brand v. Florida Power Corporation, 633 So. 2d 504,
510 (Fla. 1st DCA 1994).
The first question is whether Petitioner presented evidence that he was disabled. A person is disabled when:
he or she has a physical or mental impairment that substantially limits one or more major life activities;
he or she has a record of having an impairment; or (c) he or she is regarded as having an impairment. 42 U.S.C. Section 12102(2); 29 C.F.R. Section 1630.2(g)(I). A physical impairment standing alone is not necessarily a disability. See Dutcher v.
Ingalls Shipbuilding, 53 F.3d 723, 726 (5th Cir. 1995).
"Major life activities" means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. Section 1630.2(g)(I).
Medical testimony establishes that symptoms of sickle cell trait are sporadic in nature and short in duration. The effects of overexertion, resulting in dehydration and cramping, are indistinguishable in people who have sickle cell trait and people who do not have that diagnosis.
Courts have acknowledged that sickle cell trait is not a disease but merely the existence of the gene that may or may not result in sickle cell anemia. Norman-Bloodsaw v. Lawrence Berkley Laboratory, 135 F.3d 1260, 1265 FN 3 (9th Cir. 1998); Vincent v. Wells Fargo Guard Service, Inc. of Florida,
3 F.Supp.2d 1405, 1421 (S.D. Fla. 1998).
In Vincent, the court found that even if an individual did have the sickle cell anemia disease, that individual might
not be a "qualified individual" under the ADA because the disease is unpredictable in nature and the episodes or attacks are sporadic. Id. at 1416-18. The unpredictability of episodes makes it difficult for an employer to accommodate the employee. Id. at 1416-1418. Accordingly, the court found that a security guard with sickle cell anemia was not a "qualified individual" due to the unpredictable nature of both the job and the disease. Id. at 1416-1418.
Additionally, a person who has a physical or mental impairment that can be corrected by medication or other measures does not have an impairment that presently "substantially limits" major life activities. Sutton v. United Airlines, Inc.,
527 U.S. 471, 481 (1999). A disability exists only where an impairment "substantially limits" any major life activity, not where it "might," "could," or "would" be substantially limited if mitigating measures were not taken. Id. at 482.
Petitioner has not met his burden of proving that he has a disability. In fact, the most persuasive evidence indicates that Petitioner was physically fit, experiencing no impairing symptoms of sickle cell trait in over a decade of working as a fireman, including October 15, 2001. Petitioner knew symptoms related to sickle cell trait were preventable and correctable by maintaining proper hydration. Petitioner's
sickle cell trait is not a disability because it does not substantially impair one or more of his major life activities.
The second question is whether Petitioner was qualified to perform the job for which he was hired. A qualified individual with a disability is one who can perform the essential functions of the job with or without reasonable accommodation. 42 U.S.C. Section 12111(8). The term "essential functions" means the fundamental job duties of the employment position. 29 C.F.R. Section 1630.2(n)(1). In this case, the evidence indicates that Petitioner was qualified to work as a fireman for Respondent.
The third issue is whether Petitioner was terminated solely because of his disability. The ADA imposes a duty on employers to provide reasonable accommodations for known
disabilities unless doing so would result in undue hardship. Hernandez v. Prudential Insurance Company, 877 F. Supp. 1160, 1165 (M.D. Fla. 1997). Employer obligations under the ADA do not arise until the employer becomes aware of "known physical or mental limitations of an otherwise qualified individual with a disability." Id. at 1165
Petitioner did not meet his burden of proving that he was terminated because of his disability. Petitioner did not advise Respondent that he had sickle cell trait until after he was suspended and placed on administrative leave with pay. Dr.
Mathew's letter dated November 14, 2001, and received by Respondent on November 15, 2001, confirmed that Petitioner had sickle cell trait and should avoid exposure to extreme heat.
However, by that time, Ms. Cunningham-Perry had completed her investigation and recommended that Respondent terminate Petitioner.
Nothing in Dr. Mathew's letter indicated that Petitioner was in fact unable to stand up when ordered to do so. He was not ordered to walk or to exert himself in any way. Petitioner admitted to Ms. Cunningham-Perry during the investigation that he could have but chose not to follow the orders for his own reasons. There is no persuasive evidence that Respondent terminated Petitioner solely because he had sickle cell trait.
Respondent is not expected to provide accommodations that Petitioner never requested. Petitioner wanted a transfer to Station One for the same reason that he refused to follow the orders to stand up; he did not want to ride the ALS rescue truck or go on so many calls. He did not request a transfer because he had sickle cell trait.
An employer is not required to create a position or "bump" another employee from a position in order to accommodate an otherwise qualified individual with a disability, especially when the employee does not make such a request. Hedberg v.
Indiana Bell Telephone Company, 47 F.3d 928, 934 (7th Cir. 1995).
Assuming arguendo that Petitioner met his prima facie burden, Respondent presented a legitimate, non-discriminatory reason for terminating Petitioner, i.e. Petitioner's failure to follow orders. Petitioner presented no evidence that Respondent's reason was pretextural and that Respondent intentionally discriminated against him. Petitioner has not carried his burden of ultimate persuasion.
