STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILTON B. DUNCAN, III,

Petitioner,

vs.

FLORIDA PAROLE COMMISSION,

Respondent.

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) Case No. 07-1038

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RECOMMENDED ORDER

Pursuant to notice this matter came on for formal administrative proceeding and hearing before P. Michael Ruff, duly-designated Administrative Law Judge of the Division of Administrative Hearings in Tallahassee, Florida, on May 7, 2007. The appearances were as follows:

APPEARANCES

Petitioner: Wilton B. Duncan, III, pro se

2728 Oakleigh Court

Tallahassee, Florida 32399-2350

Respondent: Bradley R. Bishoff, Esquire

Florida Parole Commission

2601 Blair Stone Road, Building C Tallahassee, Florida 32399-2450

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concerns whether the Petitioner was subjected to a discriminatory employment action based upon his having a disability and,

embodied within that question, whether he has a physical impairment which meets the legal definition of disability.

PRELIMINARY STATEMENT

This cause arose when the Petitioner, Wilton B. Duncan, III, filed a Discrimination Complaint with the Florida Commission on Human Relations (Commission) on August 17, 2006. In the Complaint the Petitioner alleged that he was subjected to harassment and was denied reasonable accommodation for a disability based upon a physical impairment (dysautonomia). The Respondent contended that it has not discriminated against the Petitioner based on his disability, has not subjected him to harassment and has not denied a reasonable accommodation. It contends that the Petitioner had refused to participate in the interactive process designed to arrive at an agreement about reasonable accommodation by failing to submit a statement from his physician regarding the nature and extent of his physical impairment.

The Commission conducted an investigation and on February 5, 2007, entered a finding of "no reasonable cause" concerning the alleged unlawful employment practice complained

of by the Petitioner. The Petitioner then filed a Petition for Relief initiating this proceeding pursuant to Section 760.11(7), Florida Statutes (2006). In the Petition it is alleged that the Respondent Agency discriminated against the Petitioner by

engaging in an adverse employment action based upon his alleged disability, by failing to provide a reasonable accommodation for that disability and by subjecting him to a sick leave policy different from that used by other employees of the Respondent as an element of alleged discrimination. The dispute was referred to the Division of Administrative Hearings and the undersigned Administrative Law Judge for formal proceeding and hearing.

The cause came on for hearing as noticed. At the hearing the Petitioner testified in his own behalf and presented the testimony of three other witnesses, as well as having 83 exhibits admitted into evidence. The Respondent presented the testimony of six witnesses and had 14 exhibits admitted into evidence.

Upon concluding the proceedings a transcript was ordered and the parties requested an extending briefing schedule for submitting proposed recommended orders. The Proposed Recommended Orders were timely submitted and have been considered in the rendition of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner was employed by the Respondent, Florida Parole Commission, from July 2003 until January 29, 2007, when the Petitioner resigned. He had worked for the Respondent as a clerk on a part-time basis preparing inmate files for imaging. In October of 2003 he was promoted to records technician in

   charge of the imaging section. He was again promoted in 2004 to the position of Operations and Management Consultant II. He provided supervision for other employees and coordinated the work-load of the part-time workers (OPS workers) employed in the imaging section.

2. The Respondent is an Agency of the State of Florida that determines which convicted criminals receive parole, the setting of the policies and conditions of parole and other supervised inmate release programs. It also investigates violations of supervision, establishing the terms and conditions of an inmate's release and has a reporting function to the Florida Board of Executive Clemency.

3. On March 1, 2005, the Petitioner experienced the first of a serious of incapacitating physical episodes at work. He had to be removed from the office by ambulance for medical attention. Soon thereafter he was diagnosed as having acute dysautotonomia. Dysautotonomia is an incurable dysfunction of the autonomic nervous system, believed to be caused by a virus. The ailment include symptoms of gastrointestinal dysfunction, significant loss of blood pressure, extreme fatigue, panic attacks, as well as clinical depression. The Petitioner received emotional counseling for his depression and, according to Dr. Kepper, his treating physician, his incapacity is "intermittent and unpredictable."

4. The Petitioner adopted a practice of sitting in his chair and elevating his feet when he had a relatively minor episode. The episodes might last for up to an hour. During a minor episode he would become extremely fatigued and dizzy, was unable to eat or speak coherently and could only lie down to rest until the episode has passed. In the event of a major episode he might experience blackouts, was unable to care for himself and required emergency medical assistance in order to receive intravenous fluids. During major episodes he would summon an ambulance, his girlfriend, or his father to take him to an emergency room for medical attention.

5. The Petitioner's supervisor, Linda Summers, knew that the Petitioner was having these episodes and was resting in his office, prior to July 1, 2006. She allowed him to rest in his office with the door closed when he experienced a minor episode.

6. On June 5, 2006, the Petitioner begin feeling badly and felt that he was about to "pass out." His supervisor,

   Ms. Summer, asked him if she needed to call an ambulance, as had been done in the past, and he declined. She was concerned about him and suggested that he sit in his office with the door closed until he felt better. Sometime between 3:30 and 4:00 p.m., that day he begin feeling better and said he was going to attempt to drive to the emergency room. Ms. Summers was concerned about his safety and tried to dissuade him. He left, however, but

   shortly thereafter returned and an ambulance was called to take him to the emergency room. After this, during his episodes, he adopted a practice of closing his office door and putting up a "do not disturb" sign. The Respondent accommodated the Petitioner in this practice, although he had not made a formal request for accommodation, over a period of approximately one and one-half years.

7. The Department of Management Services (DMS) has a rule which was in effect prior to the Petitioner's hiring, which requires that an employee be absent for five consecutive days in order to be eligible to receive donated sick leave. The Respondent has followed this rule since before the Petitioner was hired and applied its standard to all employees. The only occasions when the Respondent has waived this rule-based policy for an employee, was twice in favor of the Petitioner in July and in August of 2006. On those occasions he received 132 donated sick leave hours. Even though the Respondent consistently followed this DMS requirement, it did not actually update its procedure in its personnel handbook to reflect the rule. The Respondent takes the position that if there is a discrepancy between its personnel handbook and the adopted administrative rule, then the rule controls.

8. In any event, on October 10, 2006, the Respondent issued a Revised Procedure Directive, Number 2.02.15, entitled:

   Attendance and Leave. This directive updated the Respondent's sick leave policy to correspond with its actual policy and with the current DMS rules. It updated the Respondent's Americans With Disabilities Act Policy to reflect established agency policy. Pursuant to this policy (or rule interpretation) the Petitioner received donated sick leave from 18 Respondent employees, including donations from the general counsel, and from the Petitioner's supervisor, in a total amount of 273 hours.

9. The Respondent requires a note from a physician if an employee is absent due to illness for three days in a 30-day period. The Respondent does not deem it a good business practice to waive that requirement nor did it choose to waive it as a reasonable accommodation.

10. On June 16, 2006, the Petitioner suffered a debilitating episode at his office at around 9:00 a.m. He went into his office and put up a "do not disturb" sign for about 30 minutes. A birthday party was occurring in the office at that time and several employees commented concerning their wish to go into their offices put up such a sign and take a nap.

    Ms. Summers discussed this with the Respondent's Chairman, the former Director of Operations, and the former Human Resources Administrator, Beatriz Caballero. Ms. Summers was thus advised that this could not continue. She therefore talked to the

    Petitioner and told him that she was sorry that he felt badly but that she could no longer allow him to put up a do not disturb sign as other employees were negatively affected by it and, inferentially, she felt that it affected employee morale.

11. Ms. Summers also established that she and the Petitioner had discussed the Petitioner's doctor's note and what it stated concerning the intermittent nature of his episodes. She told him that the doctor needed to make suggestions about what he should do when he suffers one of the episodes. She also suggested to Mr. Duncan that he probably should go home when he has one of the sick episodes. His response was that as long as he could sit down for a while and be quiet he would start feeling better and that he would hate to drive all the way home and then have to come back. He then said that he would simply go out to his truck in the parking lot and recover from an episode if one occurred. Ms. Summers told him that was an acceptable option and that it was a matter for his own decision. She also told him to be sure to tell her where he was going so that if he did not come back within a reasonable time she could go look for him. She was concerned about his condition and safety. She also told him to leave her a note telling where he had gone and the appropriate time when he left. He indicated that he would do so.

12. At the end of June 2006, Ms. Summers informed the Petitioner that his absences were affecting his productivity and negatively affecting his supervision of the imaging section. This was because the OPS staff, mostly college students, were observed sitting around talking, talking on cellular phones, coming in late and leaving early because of a lack of supervision. It was the Petitioner's responsibility to supervise them and the situation had been deteriorating, in relation to the Petitioner's absences.

13. Director of Operations Gina Giacomo found that the imaging section was not operating at an optimal level because the OPS employees, were undisciplined, and good productivity was not being achieved because of a lack of oversight. She attributes this, in part, to the Petitioner's habit of arriving at work at 7:00 a.m. but leaving at 3:30 p.m. After 3:30 p.m. to the end of the day his employees were unsupervised. The OPS employees were taking very long lunch breaks, leaving early and coming in late and not accounting for their work hours properly. It was the Petitioner's duty to approve the employee's time cards. As a result of the Petitioner's lack of oversight, three of the four employees were under-paid. Also, there were over expenditures as to OPS employees, resulting in a deficiency in the Agency's OPS budget, because the Petitioner allowed some OPS employees to work 35-40 hours per week when they were only

    supposed to work around 20 hours per week. This had an obvious adverse impact on the Agency's budgeting operations.

14. Because of the employee attendance problems and time- keeping problems, the Respondent Agency initiated a time clock procedure for the imaging section around the end of September 2006.

15. On August 1, 2006, the Petitioner sent the Respondent a written request entitled "Request for Reasonable Accommodation Under the Americans With Disabilities Act", requesting that: 1) he not be required to provide a physician's note when sick as it related to his pertinent disorder; 2) that he be permanently exempt from the five-day rule for sick leave donation as it related to his current disorder; and 3) that he be allowed to close his door while having a minor episode.

16. The Respondent's Human Resources Administrator responded to this request by a memo dated August 8, 2006, declaring that the Petitioner's request to receive a permanent exemption from the five-day rule for sick leave donation eligibility was not a reasonable accommodation request and would not be granted. The Respondent also declared, through the Human Resources Administrator, that the sick leave donation policy is designed for all State of Florida employees to follow.

17. The Respondent contends that the Petitioner's request for the Respondent to exempt him from a medical inquiry (i.e.

    the provision of a doctor's note or explanation for his illness and/or absence) is also unreasonable. The Respondent took the position that requiring the provision of a physician's note, as it relates to the Petitioner's current disorder, is job-related and consistent with business necessity concerning an employee's ability to perform essential job functions and whether he will be impaired by a medical condition. It is therefore important for an employee's physician to document the employee's need to be absent from work, as well as his ability to return to work and his ability to perform his job functions.

18. The Respondent in essence took the position that while the ADA requires reasonable accommodation to enable qualified disabled persons to perform the essential functions of their jobs, that donated sick leave is not related to ADA requirements, but rather is a benefit provided under state personnel rules. The Respondent did however suggest to the Petitioner that he confer with his supervisor and work with her in trying to make up his missed hours so that he would not have to suffer so many leave-without-pay hours.

19. The Respondent informed the Petitioner that the DMS rule involved clearly states that there is a five-day waiting period before donated sick leave can be used. It acknowledged that the Respondent's internal procedure directive did not specify the five-day rule because it was inadvertently omitted.

    Because of that oversight the Petitioner's last request dated July 28, 2006, was honored. Thereafter, the internal procedure directive was to be corrected by the Respondent in order to reflect enforcement of the five-day rule for sick leave donation. The Respondent informed the Petitioner that he must follow the requirement for sick leave donation requests in the future.

20. Concerning the Petitioner's request for the accommodation of closing his door while he was having a minor episode, the Respondent told the Petitioner that the request would be reviewed further, but that the Respondent needed information from the Petitioner's physician specifying how the accommodation would assist the Petitioner in performing his essential job functions. The Respondent informed the Petitioner that the documentation needed from his physician should specify the duration the door should be closed, as well as providing any useful accommodation suggestion the doctor might have as it relates to the Petitioner's condition and his request.

21. The general counsel for the Respondent made a determination that the Respondent should not allow the Petitioner to shut his door and remain on the premises due to liability concerns as well as concerns for the Petitioner's health. Instead of providing the requested documentation from the physician to support his accommodation request, on

    August 17, 2006, the Petitioner filed a Complaint of Discrimination with the Florida Respondent on Human Relations. Before filing that Complaint he never made any complaint to his supervisor concerning any perceived discrimination, or as to being treated differently due to his alleged disability.

22. The Petitioner provided a note from Dr. Kepper, his physician, on August 21, 2006, in which the physician stated that the Petitioner was unable to perform his job from August 16, 2006 to August 30, 2006. There were multiple absences from work during that period of time, as well as abbreviated work days due to the Petitioner's medical condition and other reasons.

23. A meeting was held on December 7, 2006, between Linda Summers the Petitioner's supervisor, the Petitioner, and the Director of Operations, Gina Giacomo. Ms. Giacomo discussed with the Petitioner the need for him to communicate better with his supervisor and for him to come to a better understanding about the importance of the "system" and people not being informed of it. She also addressed the fact that his unit was a very undisciplined unit and that the productivity was not what it should be due to lack of oversight. She attributed much of this problem to the fact that the Petitioner came into work at 7:00 a.m. and left at 3:30 p.m. She determined that there was no reason why he had to start his duties at 7:00 a.m. and

    changed his work hours so that thenceforth he would work from 7:30 a.m. to 4:30 p.m. with an hour for lunch. She did this in order that he might more closely supervise the part-time, OPS, college-student employees who needed more structure and oversight in the work place.

24. Ms. Giacomo also discussed the fact that the Petitioner's supervisor, Ms. Summers, was frustrated concerning his attendance. It caused difficulty when he was absent for frequent days or partial days because it is such a small agency that it was difficult for other staff members to perform his duties with full-time duties of their own to perform as well. She therefore discussed his schedule changing, her concerns about his working more closely with his supervisor, and his need to inform all of his staff that their schedules were going to change. They were going to thereafter perform all their OPS hours between 7:30 a.m. and 4:30 p.m. and to function more as a team. She also informed the Petitioner that the time-sheets which had been used to account for his employee's work hours were not accomplishing their purpose and that all but one of the time-sheets that he had approved were incorrect. Consequently, she announced the inauguration of a punch-clock procedure for people arriving at and leaving work, so that an accurate accounting of work hours and employees' pay could be accomplished.

25. During the discussion at the December 7th meeting, the Petitioner informed Ms. Giacomo concerning when he could address the time sheet problem, the OPS staff schedule change, and certain other issues. She wanted a time period from him as to when the matters could be cleared up and corrected. That meeting lasted approximately 45 minutes. She remained in the building except during the lunch time period that day but carried two cell phones with her at all times, her personal one and an agency-issued phone. When she got back to her office by mid-afternoon, however, the Petitioner had left with her executive assistant a medically-related form that he had to have already had in his possession before the meeting, which indicated that he would not be able to work from approximately December 4th, to January 9th. He had been present at the meeting and talked about the above-referenced issues without ever mentioning to his supervisor or to the director his need to be off from work for more than a month. He never addressed the issues he was instructed to handle with regard to the OPS employee schedule, etc., all of which finally had to be handled by Ms. Giacomo and Ms. Summers.

26. Upon assuming her duties in September 2006,

    
    

    Ms. Giacomo became very concerned with the lack of professionalism and the management of the imaging section under the Petitioner's supervision. She had four different meetings

    to try to determine a division of the duties of the Petitioner's position which could be performed by other persons in the office who also had their own full-time duties, because of the Petitioner's absences. Over the course of four or five meetings she re-arranged and re-assigned the functions of the office, on an informal basis, so the functions the Petitioner normally would be responsible for were being taken care of by other staff members.

27. The Petitioner never actually requested assignment to other duties in the Agency as an accommodation. Ms. Giacomo, however, as found above re-assigned functions of his position to other people. She had a meeting with all OPS workers and the permanent, full-time staff and announced that she wanted the Petitioner to be able to be at the meeting, but that it had already been delayed for two weeks because of his absence, and that she needed to proceed and restore the full functioning of the office. She announced that he would not be coming back to his supervisory position but would be greeted "with open arms." She also announced that the Petitioner would be given the same amount of pay, with the same job title, but would be re-assigned to as yet undetermined duties with the Agency. She then informed everyone what each person was going to be doing in terms of performing parts of the functions of the Petitioner's position, so that the office and Agency could function better.

28. On January 16, 2007, the Petitioner provided a note from Dr. Kepper excusing him from work beginning January 10, 2007, stating in effect that he should be excused from work from that date forward until Dr. Kepper could determine whether he was fit enough to resume his normal duties. Due to his medical condition and treatment the doctor stated that the Petitioner was unable to perform his regular duties and would continue to be treated. The doctor stated that the Respondent would continue to be provided updates on the Petitioner's work status, but that the Petitioner, at that time, would have to be placed on out-of-work employment status.

29. Thereafter, on January 29, 2007, the Petitioner submitted his resignation letter. The Petitioner was never terminated nor was he asked to resign by the Respondent. No disciplinary action had ever been taken against him. The Petitioner never asked the Respondent concerning the possibility of being moved to another job or position within the Agency.

30. The evidence shows that between March 2005 and January 2007, the Petitioner worked 3,674.25 hours out of 4,064 regularly scheduled work hours.

    CONCLUSIONS OF LAW

    
    

31. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2006).

32. The relevant provisions of Chapter 760, Florida Statutes (2006), commonly called the "Florida Civil Rights Act" specifically Sections 760.01 through 760.11, are closely patterned after Title VII of the Federal Civil Rights Act of 1964. Therefore, cases interpreting the Federal Civil Rights Statutes have been deemed applicable to and persuasive in interpreting the relevant provisions of Chapter 760, Florida Statutes. See Green v. Seminole Electric Cooperative, Inc., 701 So. 2d 646, 647 (Fla. 5th DCA 1997); Florida State University v. Sondel, 685 So. 2d 923 (Fla. 1st DCA 1996); Castleberry v.

    Chadbourne, Inc., 810 So. 2d 1028 (Fla. 1st DCA 2002).

    
    

33. The Petitioner maintains that he has been discriminated against based upon harassment in the workplace, due, in effect, to his disability and by being denied a reasonable accommodation for his disability.

34. In order for the Petitioner to establish a prima facie case of disability discrimination under Chapter 760, Florida Statutes, or 42 U.S. Code 21101, et seq., known as the "Americans With Disabilities Act," the Petitioner must demonstrate that he has a disability; that he is qualified to perform the essential functions of the position either with or without reasonable accommodation; that he had identified a reasonable accommodation to his employer; that he was unlawfully discriminated against because of his disability either through

    adverse employment action, failure to offer a reasonable accommodation after one has been identified by the disabled employee or the perpetration of or condonation of harassment related to his disability (hostile work place). See Schwertfager v. City of Boynton Beach, 42 F.2d 1347, 1357 (S.D. Fla. 1999).

35. The Petitioner has the burden of identifying an accommodation that would allow him to perform a job with the employer. The Petitioner bears the ultimate burden of persuasion to demonstrate that such an accommodation is reasonable and that he was discriminated against because of his disability. See Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278 (11th Cir. 1997). The Petitioner herein has not established a prima facie case of disability because he has not satisfied the above elements of proof.

36. A disability has been defined as a physical or mental impairment that substantially limits one or more of the major life activities of the individual; if he has a record of such an impairment or is regarded as having such an impairment or if his employer knows he has such an impairment. See 42 U.S.C. Subsection 12102(2). Physical impairment has been defined as any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following bodily systems: neurological, musculoskeletal,

    cardiovascular, respiratory, endocrine, etc. See 29 C.F.R. Subsection 1631.2(1). The Petitioner claims that he has a physical impairment due to his dysautonomia. He has established that he has the physical impairment related to his neurological system and the question becomes whether it substantially limits one or more major life activities.

37. The major life activities referenced in 29 C.F.R. Subsection 1630.2(i), include working. It would appear that the Petitioner's physical impairment on the occasion of the intermittent, unpredictable episodes he suffers temporarily substantially limits his working, as well as possibly walking, performing manual tasks, or generally caring for oneself. It is not clear that a major life activity has been substantially limited by his physical impairment because the episodes are intermittent and unpredictable and, to the extent that he had numerous absences, the record does not persuasively establish that all or most of them were due to his physical impairment.

38. Concerning the major life activity of working, "substantially limits" means "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes, as compared to the average person having comparable training skills and abilities." 29 C.F.R. Subsection 1630.2(j)(3)(i). The inability to perform a single job, however, does not constitute a substantial limitation to

    the major life activity of working. See Bolton v. Scrivner, Inc., 36 F.3d 939, 942 (10th Cir. 1994); cert. denied, 519 U.S. 1152 (1995). Here the Petitioner's employer was prepared to offer him a different position with the Agency at the same salary and with the same job title upon his return from his extended leave. He never returned to work, however, thus his ability to successfully perform in such a new position by way of a "reasonable accommodation," was never tested. He therefore has failed to establish that the major life activity of working has been substantially limited by his physical impairment, because his ability or lack of ability to perform in another job, class of jobs, or broad range of jobs in various classes, compared to average persons, having comparable training skills and abilities, has not been established.

39. Therefore, since the Petitioner has not persuasively proven that his significant physical impairment was the reason for all or the majority of his absences and because he did not establish that there was not another position, or class of jobs or a broad range of jobs in various classes which he was significantly restricted from performing, he has not established this element of a prima facie case for an actionable disability, in terms of his claims of discrimination.

40. The evidence shows that attendance is an essential function of the Petitioner's job, as his job required him to

    supervise part-time OPS workers and to approve their timesheets, among other duties. Because the Petitioner was clearly unable or unwilling to report to work or remain at work on a regular enough basis to adequately perform these duties, he did not show that he was a qualified individual for a position at the Parole Respondent under its attendance policy. Thus, even if proof of a disability had been established the Petitioner did not prove the second element of his prima facie case for disability discrimination. See Wu v. Thomas, 847 F.2d 1480, 1484 (11th Cir. 1988), cert. denied, 490 U.S. 1006 (1989) (there is no prima facie case established where a plaintiff has failed to show that she was qualified for the position); Waggoner v. Olin Corporation, 169 F.3d 481, 483 (7th Cir. 1999) (attendance is an essential requirement of a job). It has been held by the United States Court of Appeal for the Eleventh Circuit that plaintiffs are not qualified for a position for which they have been terminated because a disability prevented them from being present at work when needed. Jackson v. Veteran's

    Administration, 22 F.3d 277, 279 (11th Cir. 1994). Similarly, in Tyndall v. National Education Centers, 31 F.3d 209, 214 (4th Cir. 1994) a summary judgment was affirmed because attendance problems of a plaintiff demonstrated that she could not fulfill the essential functions of her job and therefore was not a qualified individual for purposes of the Americans With

    Disabilities Act. Even if an employee's failure to meet attendance requirements is due entirely to a disability, he is "not qualified" under the ADA. See Matthews v. Commonwealth Edison Co., 128 F.3d 1194 (7th Cir. 1997). The Petitioner's attendance issues have the legal consequence of removing from the Respondent any obligation to accommodate the Petitioner, if that obligation to accommodate ever arose, by the Petitioner identifying to the employer a reasonable accommodation, which he did not do. See Waggoner v. Olin Company, supra (an employer is not required to accommodate individuals with erratic, unexplained absences from work, even when the absences are the result of a disability, because attendance at the job site is a basic requirement of most jobs).

41. In order to prevail on a claim of disability discrimination based upon harassment, a Petitioner must show that he or she is a qualified individual with a disability; was subjected to unwelcome harassment; that the harassment was based upon his or her disability; and that the harassment was sufficiently severe or pervasive as to alter the conditions of his or her employment and to create and abusive, hostile working environment. It must also be shown that the employer knew or should have known of the harassment and failed to take prompt and effective remedial action. See McCaw Cellular Communications of Florida, Inc., v. Kwiatek, 763 So. 2d 1066

    and Razner v. Wellington Regional Medical Center, Inc., 837 So. 2d 437 (Fla. 4th DCA 2002).

42. The Petitioner did not establish a prima facie case for hostile work environment based upon harassment due to his disability, because he was not subjected to unwelcome harassment. The Petitioner's receipt of verbal notice from his supervisor that his absences were affecting his productivity and that he failed to meet the requirements to be eligible to receive donated sick leave hours constitute communication of relevant employment information clearly within the reasonable authority of the employer to deliver to him. They did not constitute unwelcome comments or conduct targeted at his physical impairment.

43. There is thus no evidence that the Respondent subjected the Petitioner to an unlawful, hostile, work environment based upon his physical impairment, particularly when no disciplinary action was ever taken against the Petitioner and where the Respondent was prepared to accommodate him by offering him a different position within the Agency at the same salary, with the same job title upon his return from his extended leave. He simply never returned.

44. A qualified individual with a disability may be unlawfully discriminated against because of the disability when the employer does not reasonably accommodate it, unless the

    accommodation would impose an undue hardship on the employer. See 42 U.S.C. § 12112(b)(5)(A). Under the ADA, the term "reasonable accommodation" may include, inter alia, "job re- structuring, part-time or modified work schedules, re-assignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities." 42 U.S.C. § 12111(9)(B). The use of the word "reasonable" as an adjective modifying the word "accommodate" conveys the meaning that an employer is not required to accommodate an employee in any manner requested. The work "reasonable" would be rendered superfluous if indeed employers were required by the ADA to provide employees "the maximum accommodation or every conceivable accommodation possible." Lewis v. Zilog, Inc., 908

    F. Supp. 931, 947 (N.D. Ga. 1995) an employee is only entitled to a reasonable accommodation not to the most preferred accommodation. See Vande Zande v. State of Wis. Dept. of Admin., 851 F. Supp. 353, 360 (W.D. Wis. 1994), affirmed 44 F.3d

    538 (7th Cir. 1995). Thus, under decisions such as those referenced above an employee is not entitled to the accommodation of his or her choice but rather to a reasonable accommodation, one which does not require an employer to re-

    structure its operations in a substantial way merely to provide the accommodation.

45. The burden of identifying an accommodation that would allow a qualified individual to perform a job rests with that individual, as does the ultimate burden of persuasion with respect to demonstrating that such an accommodation is reasonable. Willis v. Conopco, 108 F.3d 282, 283 (11th Cir. 1997).

46. The Petitioner herein has not established a prima facie case for discrimination based on disability because the accommodation he seeks is not a reasonable one under the factual circumstances preponderantly proven in this case. The sick leave donation policy of the Agency is based on Florida Statutes as well as Department of Management Services Rules, which apply to all State of Florida employees and which all employees and employers are required to follow. The Respondent had no obligation to continue to waive the statutorily-mandated policy concerning sick leave donation, particularly where it did not do so for any other of its employees. Additionally, the Petitioner impeded the ADA mandated interactive communication process for proposing, offering and ultimately agreeing upon a reasonable accommodation when he refused to comply with a reasonable request from the Respondent Agency for documentation from the treating physician concerning his physical impairment and its

    effect on the Petitioner. It was reasonable for the Respondent to wish to learn of the exact nature of the physical impairment, its effect upon the Petitioner's ability to perform his job functions, as his position was structured and for the further purpose of enlighting the Respondent as to any possible reasonable accommodations that would permit him to be able to perform his job functions.

47. In summary, in view of the above Findings of Fact and Conclusions of Law, no discriminatory conduct on the part of the Respondent, of the nature pled and advocated by the Petitioner, has been established. Indeed, there has been no adverse employment action taken against the Petitioner at all. There is simply no persuasive evidence that, in addition to not having formally terminated the Petitioner, that the employer took any adverse action against the Petitioner and his employment status due to any reason predicated on the existence of his physical impairment, or a putative disability, which could be deemed to amount to a "constructive termination." No discriminatory conduct on the part of the employer or any of its supervisory personnel or on the part of any of its employees, predicated upon disability or physical impairment has been demonstrated.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and

demeanor of the witness, and the pleadings and arguments of the party, it is, therefore,

RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition in its entirety.

DONE AND ENTERED this 21st day of September, 2007, in Tallahassee, Leon County, Florida.

S

P. MICHAEL RUFF 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 21st day of September, 2007.

COPIES FURNISHED:

Wilton B. Duncan, III 2728 Oakleigh Court

Tallahassee, Florida 32399-2350

Bradley R. Bishoff, Esquire Florida Parole Commission

2601 Blair Stone Road, Building C Tallahassee, Florida 32399-2450

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

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: 07-001038

Orders for Case No: 07-001038