EURETHA L. DAVIES,
vs.
Respondent.
) Case No. 03-4666
A hearing in the above style cause was held pursuant to notice on February 27, 2004, by Stephen F. Dean, assigned Administrative Law Judge of the Division of Administrative Hearings in Pensacola, Florida.
For Respondent: Danny K. Guerdon
Whether Respondent engaged in employment practices in violation of Chapter 760, Florida Statutes.
This case arose when Petitioner, Euretha L. Davies (Petitioner), filed a Petition for Relief with the Florida Commission on Human Relations (FCHR) on February 18, 2003. Davies alleged that Respondent, Laidlaw Educational Services (Respondent), by whom she had been employed, had discriminated against her because of a handicap by denying her promotion, permitting a hostile work environment, and wrongfully terminating her.
FCHR investigated the allegations and issued a determination of "No Cause" on September 12, 2003. FCHR found that there was insufficient evidence to establish a charge of discrimination. Petitioner filed a Petition for Relief on October 14, 2003, which alleged discrimination based upon Petitioner's handicap.
On or about December 8, 2003, FCHR transmitted the case to the Division of Administrative Hearings. The case was set for formal hearing on February 27, 2004, by a notice of hearing dated January 15, 2004. The case was heard as noticed.
Petitioner called Dr. Minoo H. Hollis and Bradley Marcilliat to testify, and introduced Petitioner's Exhibits 1 through 6, which were received in evidence. Respondent presented the testimony of Stephanie Slaton. Respondent offered
Exhibits D through J, which with the exception of Exhibit E, were received into evidence.
After the hearing, a transcript was not ordered; however, Respondent requested an extension of time to file its post- hearing brief, which was granted. Petitioner timely filed a Proposed Recommended Order that was read and considered.
Respondent filed a "position statement" in the form of a letter, which was read and considered.
Petitioner, Euretha L. Davies, is a white female, who was first employed by Respondent, Laidlaw Educational Services (Laidlaw), in 1997 as a school bus driver.
Respondent is an employer within the meaning of the Florida Civil Rights Act. Respondent provides pursuant to contract school bus transportation in Santa Rosa County School District. This includes all aspects of transportation: training drivers, maintaining vehicles, preparing routes and administering the system, and preparing reports to state and federal authorities.
Petitioner had been an employee of the Santa Rosa County School District for nine years prior to Laidlaw contracting to provide these services in 1997. She transferred her employment to Laidlaw at that time, maintaining her senority and pay rate.
On January 4, 2000, Petitioner contacted Jeffrey R. Capozzi, Driver Development and Safety Supervisor for Laidlaw at their office in Milton, Florida, about pain she was experiencing in both her wrists. She was sent to Immediate Care at West Florida Medical Center, Pensacola, Florida. There, she was seen by Kenneth Hill, M.D., an orthopedic specialist. Dr. Hill performed surgery to release the carpal tunnel in the right wrist on May 23, 2000. On August 24, 2000, a follow-up evaluation of the right had revealed that soft support of the wrist was needed, but Petitioner had reached maximum medical improvement with a one percent partial impairment. Petitioner was released to full duties.
On May 2001, an annual check up was done in order to maintain Petitioner's entitlement to future workman's compensation medical treatment. This examination was performed by James St. Louis, M.D., who took over Petitioner's case when Dr. Hill moved. Dr. St. Louis ordered nerve conduction studies of the right upper extremity, which was performed on July 30, 2001, by Dr. Gerhard. Dr. Gerhard found that the transmittal of nerve impulses was normal in the right upper extremity and left median nerve.
On May 2, 2002, approximately a year later and after Petitioner had had a nerve conduction study, she was sent to see Michael L. Shawbitz, M.D., a neurological specialist.
Dr. Shawbitz concluded that she had tendonitis in her right wrist and recommended physical therapy.
On May 15, 2002, Petitioner was given a Dexterity Test for School Bus Drivers by Lillian Barnes, which Petitioner passed. On June 5, 2002, Dr. T. F. Brown gave Petitioner a physical, which she passed.
On August 6, 2002, Petitioner returned to work when school started, driving a school bus with an automatic door opener. On September 4-6, 2002, Petitioner began training to become a driver trainer. Her instructor was Zeke Zeigler, a training director for Laidlaw. From September 9 through 13, 2002, Petitioner attended classroom training presented by Stephanie Slaton, who was in charge of Driver Safety and Development at the Laidlaw office in Milton, Florida. At this time, Petitioner was driving her bus seven hours and 35 minutes each day on a regular schedule.
On September 16 through 20, 2002, Petitioner completed the classroom training and was scheduled to go on the road training with the trainer who fit into her schedule. At this time, Dianne Hall, Head of Routing and Data Entry, requested that Petitioner be taken off her driving schedule to assist in preparation of the report prepared by Laidlaw for the State of Florida on bus schedules and routes for the children in the district. Petitioner was taken off her bus to assist with this
report, and when it was completed, she was to continue coming into the office between the morning and afternoon bus routes to keep information in the data system updated and correct. This data entry amounted to several hours of light typing daily.
On October 15, 2002, Petitioner was informed that she had an appointment to see Dr. Minoo Hollis, for Petitioner's annual checkup on her workman's compensation injury. This examination was conducted on October 17, 2002. Dr. Hollis determined that Petitioner had tenosynovitis of the right flexor, a ganglion cyst of the left wrist volar ganglion, and diffused chronic pain of the left forearm and wrist. Dr. Hollis prescribed medication and physical therapy for Petitioner and put her on light duty not driving a school bus.
On October 23, 2002, Petitioner started physical therapy at Santa Rosa Medical Center three times per week for three weeks. Petitioner continued to work at the school office and to make entries into the computer system. Petitioner was assigned to the school office where she worked on various projects. She did light typing, copied documents for the school staff, and handled mail.
There is a conflict in testimony regarding whether these assignments were in pursuit of assisting with the data entry or were the result of light duty because of Dr. Hollis'
findings. It is found that at the point Petitioner ceased driving the bus, it was the result of the light duty assignment.
These light duties continued until December 10, 2002, when Petitioner was assigned to Pace High School (PHS) where the assistant principal, Bradley Marcilliat, was delegated authority to assign her duties. Upon her assignment to PHS, Petitioner's hours per week were reduced to 30, and her typing was restricted further by her supervisors at Laidlaw.
On December 12, 2002, Dr. Hollis did a follow-up examination of Petitioner after physical therapy and found that she had a two percent permanent partial impairment and prescribed the following restrictions as they relate to her bus driving duties:
Can sit, stand, and walk without interruption for eight hours;
Reach above shoulder level frequently
Can use hands for repetitive actions such as:
Simple grasping-both hands
Pushing and pulling-right hand no; left hand yes
Restrictions of activities involving:
Unprotected heights-none
Moving machinery-none
Changes in temperature and humidity-none
Driving automotive equipment-none
Restrictions to automatic transmission-yes
Fumes and gas-none
On December 12, 2002, Jennifer Jack, MSN, RN, who was the case manager employed by Genex Services, Inc., for Crawford and Company, Respondent's workman's compensation insurer, reported to Stephanie Slaton that Petitioner could drive a vehicle with automatic transmission per Dr. Hollis. Ms. Jack opined, "I am not sure if driving the bus requires any repetitive pulling, but if it does not, then it looks like
Ms. Davies can drive a school bus."
A question existed about whether Petitioner could operate the automatic door opener on the school bus, which required the driver to pull a knob with the right hand.
Ms. Jack queried Dr. Hollis, and was told Petitioner could drive a bus with an automatic door opener.
On December 24, 2002, Crawford and Company informed Petitioner that she would be paid one percent as the difference between the one percent she had initially been paid, and her current permanent impairment of the body as a whole.
Petitioner continued her duties at PHS until
January 31, 2003. Nothing was said about her returning to her normal bus driving duties, although she had been released by her doctor to return to work with the limitations stated above.
On January 31, 2003, Petitioner was advised by personnel at PHS to report to Bobbie Williams' office at Laidlaw at 10:30 that morning. When she reported to Williams, he gave
her a dismissal letter, and stated that Laidlaw had been informed by the insurance company that she had reached maximum medical improvement with regard to her injury that had occurred on January 4, 2000, and that with her current restrictions she was no longer able to perform essential requirement necessary to drive a school bus.
This determination was based upon the Laidlaw's determination that Petitioner could not operate the automatic door opener on the school bus. This conclusion is contrary to the evidence presented by Petitioner that she had operated the door without problem before she developed the tendonitis, and contrary to Dr. Hollis' reports and the information provided to Ms. Jack by the doctor.
Although the record shows that Petitioner continued to improve as revealed in her May 2003 examination, the fact that the doctor indicated that Petitioner had a permanent impairment of two percent in December 2002 indicates that Petitioner had reached maximum medical improvement as of that date.
The facts reveal that Petitioner was ready to return to work; was discharged by Respondent because of an alleged inability to open the door of the bus; that Petitioner was able to open the door of a bus equipped with an automatic door opener; and that the "inability to perform the duties of the job" asserted by Respondent were not supported by the medical
restrictions communicated to Respondent's agent, who made that information known to Respondent.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case pursuant to Section 760.11, Florida Statutes.
Chapter 760, Florida Statutes, prohibits an employer from discriminating in its employment practices, to include promotion and discharge, based upon race, color, religion, sex, national origin, age, handicap, or marital status. See
§ 760.10, Fla. Stat.
Generally, the federal law interpreting human rights issues is looked to for guidance in interpreting the Florida law. Federal law has interpreted "handicap" to mean an impairment that rises to the level of a disability. The impairment must be one that substantially limits a major activity of life activity. The law requires that Petitioner show that the employer knew or perceived that Petitioner was so limited. The regulations implementing the ADA enumerate several functions that qualify as "major life activities," included among which is the activity of "working." See Carruthers v. BAS Advertising, Inc., 357 F.3d 1213, (11 Cir. 2004).
The employee has the burden to establish a prima facie case of intentional discrimination by a preponderance of the
evidence. If the employee makes this showing, a presumption is raised that the employer discriminated against the employee, and the burden shifts to the employer to present sufficient evidence to raise a genuine issue of fact as to whether the employer discriminated against the employee. See McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973).
To state a prima facie case of disability discrimination under the ADA, Petitioner must prove that he or she had a disability known to the employer, that he or she was otherwise qualified to perform the essential functions of the job and that the employer refused to reasonably accommodate the employee's disability. Coaker vs. Home Nursing Services, Inc., 1996 WL 316739, S.D. Ala., 1996, affirmed 98 F.3d 1354 (11th Cir. 1996). If Petitioner meets this burden, the employer must articulate some legitimate, non-discriminatory reason for its actions. Coaker citing McDonnell, supra. If the employer does so, then Petitioner must prove that the reasons articulated were in fact a pretext. Coaker again citing McDonnell Douglas. In order to prove that the reason articulated is a pretext, Petitioner must demonstrate not only that the reason is false, but also that discrimination was the real reason. Also see Hilburn v. Murata Electronics North America, Inc., 181 F.3d 1220 (11th Cir. 1999).
In this case, the employer's stated reason for discharging Petitioner was her alleged inability to perform a specific function of driving a school bus because of an injury to her hand or arm and the resulting restrictions allegedly placed upon her by her doctor. The alleged source of the information was a report of the doctor rendered upon the occasion of the doctor's finding that Petitioner had reached maximum medical improvement as indicated by the doctor's determination that Petitioner had a two percent impairment of the body as a whole.
There is no question that the employer's action was taken with knowledge or perceived knowledge of a job-limiting disability or handicap. Petitioner showed that she had been released by her doctor to return to work and that she could perform the duties of the job, notwithstanding the limitations placed upon her by the doctor if provided a bus with an automatic door opener. Petitioner also showed that the employer operated buses equipped with automatic door openers, and that she had previously operated one of these buses. In sum, Petitioner showed she was qualified to perform the duties of the job. Petitioner showed that she was terminated by the employer rather than being returned to work with reasonable accommodation. Petitioner states a prima facie case.
Respondent offered the testimony of its trainer supervisor that, based upon her reading of the information provided by the doctor through the workman's compensation insurer's case manager, Petitioner could not perform the essential duties of the job. This opinion was not supported by testing Petitioner to determine objectively if she could perform the activities. This opinion was not based upon returning Respondent to work and seeing if she could perform the duties. This opinion was not supported by independent examination by medical or vocational specialists. There is evidence that a question raised by Ms. Jack about Petitioner's ability to perform certain repetitive tasks, like opening the door, was resolved in Petitioner's favor by her doctor. In sum, there was no factual basis to support the conclusion that Petitioner could not perform the essential duties of the job and Respondent's decision to terminate her. It must be concluded in the absence of factual support for Slater's decision that the stated grounds were pretextual.
In this case, it was the existence of the handicap, the limitations placed upon her physical activities that was the basis of the discrimination, i.e, the denial of accommodation and termination. Given the availability of equipment to accommodate Petitioner's handicap, it must be concluded that the disability itself was the basis for the discrimination.
No evidence of economic damages suffered by Petitioner was presented. There is evidence that she had completed the classroom portion of the materials necessary for her to become a trainer-driver. Her termination prevented her from being promoted.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that FCHR enter its final order directing that Respondent desist from discriminatory employment practices and directing Respondent to re-employ with appropriate accommodation Petitioner, promote her to a trainer-driver, and cease any further discriminatory practices.
DONE AND ENTERED this 4th day of June, 2004, in Tallahassee, Leon County, Florida.
STEPHEN F. DEAN
Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 2004.
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Danny K. Guerdon
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.
